H.S. Pathania vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1805 Del

JUDGMENT

Khan, J.

1. Petitioner, a Tima Scale Wing Commander in the Air Force is wanting to wriggle out of his premature retirement tangle, though of his own making. He was sought to be removed first but was instead prematurely retired which he is hotly contesting now.

2. Petitioner joined Air Force in 1973 and rose through ranks to the rank of Wing Commander (TS). He, however, failed to cross Efficiency Bar for 1993, 1994 and 1995 under respondents' EB Policy GOI letter dated 16.3.1988. He was given show cause notice on this and informed of his proposed removal from service for having failed to cross the Efficiency Bar three times under the policy. He replied to the show-cause notice which was found unsatisfactory. But his removal from service was, at this stage, put on hold and he was advised and counselled to seek voluntary retirement to ward off his removal from service to save him from after effects of such removal like loss of pensionary benefits and prospects of civil employment etc. He allegedly followed this and applied for premature retirement which was eventually granted.

3. Petitioner has turned round now and has filed this petition challenging the action on several grounds. Besides asking for quashment of the show cause notice dated 8.7.1996 and his premature retirement, he also prays fro striking down of Air Headquarter letter dated 23.10.1991 which according to him had changed the criteria for assessing his ACRs and AFO 2/90 both of which he believes had superseded GOI letter dated 16.3.1988.

4. Petitioner's case makes an interesting reading. He firstly asserts that there was no requirement of crossing of Efficiency Bar in existence on 8.7.1996, (date of show cause notice) under the amended Rules. He then pleads that respondents had, under mistaken belief of existence of such a requirement, taken illegal proceedings against him leading to his premature retirement from service. According to him their whole action was based on GOI policy letter dated 16.3.1988 which had ceased to operate on 1.1.1996 with implementation of Fifth Pay Commission recommendations.

5. Petitioner alternatively contends that even if efficiency bar was presumed to be in existence, he was all set and qualified to cross it on the basis of laid down criteria in GOI letter dated 16.3.1988 which amongst other things provided for taking into account satisfactory reports in ACR/ICRs from 12 years of his service which he possessed. He complains that R-2 (Air Chief) had later changed this criteria by Air Headquarter letters dated 22.11.1988 and 23.10.1991 and AFO 2/90 increasing the figurative marks of 'Satisfactory' (3-4) to 5-6 for 'average', which ran counter to terms of GOI policy letter dated 16.3.1988 and was incompetent. He contends that these AHQ letters could not supersede government instructions and since Screening Boards had assessed him on the basis of these, their assessment was lacking in basis and vitiated. More so because when respondents had promoted him to the rank of Wing Commander (T.S.) on 1.7.1993 itself, it was illogical that they should have held him disqualified to cross the Efficiency bar in this year also when such promotion involved higher requirement of merit.

6. Petitioner's last grievance is that he was made to sign on the dotted line while applying for premature retirement. He alleges that his application was procured under threat and coercion and thus could not be treated voluntarily. It was a dictated 'voluntary resignation' and he procured it under the threat of removal from service. All this, according to him, would show that respondents had resorted to malafide exercise of power to see him out of service.

7. Respondents have filed a detailed counter subscribed by Air Vice Marshall T.M. Asthana explaining that petitioner was considered by Annual Screening Efficiency Bar Boards in 1993, 1994 and 1995 but was found unfit to cross the efficiency bar in all three successive considerations. He was, therefore, liable to be removed from service on grounds of inefficiency under the EB Policy enunciated in GOI letter dated 16.3.1988. Accordingly, a notice dated 8.7.1996 was served on him under Rule 17(1) of Air Force Rules 1969 requiring him to show cause against his removal from service on account of his inefficiency. He filed his reply which was considered but found unsatisfactory. His case was thereafter processed for removal from service under Section 19 of the Air Force Act. But it was given a second look on the request of Eastern Air Command recommending counselling and advice to petitioner to seek voluntary retirement from service to save him from losing his terminal benefits and any stigma attached to such removal. He favorably responded to this and showed his willingness to seek voluntary retirement, though after implementation of Fifth Pay Commission report which was not acceptable. He was again counselled and he ultimately applied for premature retirement which was accepted. it is submitted that requirement of crossing of efficiency bar was very much in existence pursuant to GOI letter dated 16.3.1988 during the relevant assessment years of 1993 to 1995 and that Fifth Pay Commission recommendations, which had come into force on 1.1.1996 replacing integrated pay scales by rank based pay scales, had nothing to do with it. It is also denied that Army Headquarter letters dated 22.11.1988 and 23.10.1991 or for that matter AFO 2/90 had superseded any Government instruction, least of all EB Policy contained in GOI letter dated 16.3.1988. These were on the contrary issued to supplement the policy letter dated 16.3.1988 and that AFO 2/90 dealt with appraisal reports of IAF Officers and not with the EB Policy. It is also explained tat criteria for crossing the efficiency bar was different from that of placement in the rank of Wing Commander (TS). The quantitative requirement of AR grading for crossing the efficiency bar was never 3 or 4 and was 5 for both minimum average and also in the mandatory qualities, as provided in EB Policy letter dated 23.10.1991. It was altogether different for placement in rank of Wing Commander (TS) where the officer had to possess a minimum report status of 4 for the last three years and a minimum aggregate total of 13 for the last three years. It is also denied that petitioner was forced to apply for his premature retirement or tat it was procured from him under any threat or coercion. He was shown indulgence instead to save him from the adverse consequences of removal from service which would have deprived him of his pensionary benefits and cast stigma on him disabling him from even seeking private employment etc.

8. L/C for petitioner Mr. Manhas laboured hard to canvass that petitioner was wronged through and through and was first sought to be removed from service on the mistaken belief of existence of requirement of crossing the efficiency bar and then held disqualified to cross it even though he was eligible and would have qualified, if assessed on the basis of criteria prescribed n GOI latter dated 16.3.1988 which only required a satisfactory report in his ACRs from 12 years of his service. He submitted that respondents assessment was based on the changed criteria provided in Air HQ letters dated 22.11.1988 and 23.10.1991 and which was incompetent because both these and AFO 2/90 contravened the term of the Govt. policy letter and could not be relied upon to assess petitioner for crossing of efficiency bar. He cited several Supreme Court judgment to show that petitioner's was a 'dictated voluntary resignation' and that respondents had proceeded against him under the mistaken belief of existence of a Rule. He referred to Supreme Court judgments in S.R. Venkataraman v. UOI , Sukhdev Singh v. Bhagat Ram , Central Inland Water Transport Corporation v. Brojo Nath AIR 1986 SC 157 in support.

9. Mr. Jayant Bhushan, L/C for respondents, on the other hand, pointed out that Fifth Pay Commission may have removed the efficiency bar requirement but it had not so removed petitioner's liability to cross the efficiency bar which was existing and was in force pursuant to EB Policy letter dated 16.3.1988 for the relevant years of 1993 to 1995. He also refuted that the Air Headquarter letters or for that matter AFO 2/90 had contravened or superseded any Government instruction of GOI Policy letter dated 16.3.1988. He referred to Section 19 of the Act and Rule 17 to show that it was for the Air Chief to satisfy himself about the efficiency of an officer and of his fitness to be retained in service and he alone was competent to lay standard for this. Moreover, petitioner was not found up to the mark by the Screening Boards three times which was conveyed to him and in case he ever believed that he possessed the requisite merit to cross the efficiency bar, he ought to have challenged the assessment of these Boards to contest his proposed removal from service. He was at pains to show that petitioner had opted for voluntary retirement on his own volition and that his case on the efficiency bar aspect in this petition was irrelevant as respondents had not acted upon his failure to cross efficiency bar, which would otherwise have entailed his removal from service but had only granted him premature retirement.

10. It all boils down to whether existence of requirement of efficiency bar was to be determined in relation to the relevant assessment years of 1993 to 1995 or to the date of show cause notice on 8.7.1996 and if this requirement was presumed to be in existence, whether petitioner could be said to have made the grade at the cost of assessment made by Screening Boards and whether Air Headquarter letters and AFO 2/90 could be struck down for contravening any terms of GOI Policy letter dated 16.3.1988 and lastly whether petitioner's premature release was tainted by any threat, force, coercion to render it involuntary.

11. Petitioner's case appears misdirected all through. According to him, since requirement of efficiency bar was done away with on the implementation of Fifth Pay Commission from 1.1.1996, he could not be charged of having failed to cross the bar three times on the date of show cause notice (8.7.1996) proposing his removal from service.

12. The fallacy of the contention is apparent on the face of it. In fact, it is petitioner who is mistakenly believing that existence of requirement of the efficiency bar was to be determine don the date of show cause notice of 8.7.1996 and not at the relevant time when he was assessed for 1993, 1994 and 1995. He conveniently overlooks in the process that he was to be assessed for crossing of the efficiency bar in 1993-95 when efficiency bar policy contained in GOI letter dated 16.3.1988 was very much in force. Therefore, even if requirement of efficiency bar was non-existent on the date of the implementation of Fifth Pay Commission report, it would not operate retrospectively for assessment years of 1993-95 to exempt petitioner from crossing the efficiency bar. The date of show cause notice had no bearing or relevance in the matter. This notice only informed him about the proposed action and nothing more and had nothing to do with the existence or otherwise of the efficiency bar on the date. The boot is, therefore, on the other leg. The efficiency bar was very much in existence on the date petitioner was assessed and it was for him to qualify to cross it in accordance with the prescribed minimum criteria at the relevant time. Since he had failed according to the assessment of the Screening Boards, that was the end of the matter and he was to suffer its consequences under the policy.

13. Petitioner's alternative contention that he was otherwise set to cross the efficiency bar but for the change in the prescribed criteria which according to him was invalid is as much fallacious as the first one. He believes that if he was assessed as per the first minimum criteria laid down in GOI policy letter dated 16.3.1988 which required him to possess the satisfactory reports only after 12 years of service, he would have made it. He also claims that since respondents had changed the minimum performance criteria by the two Air Headquarter letters contravening the terms of the Government policy letter dated 16.3.1988, the action was invalid and his assessment vitiated.

14. The FB policy contained in letter dated 16.3.1988 provided for crossing of the efficiency bar by the officers who would reach the stage of Rs. 4200/- in the integrated scale. It also stipulated that their professional competence would be assessed on the basis of 'Satisfactory' reports in the ACRs/ICRs/ARs on record from 12th year of their service and those who failed to quality on first consideration would be given two reviews and informed of the result after every screening and if any officer failed to qualify three such considerations, his service would be liable to be terminated on grounds of inefficiency. This policy letter was followed by two Air Headquarter letters dated 22.11.1988 and 23.10.1991 and AFO 2/90. The first letter provided that minimum performance criteria in crossing the efficiency bar would be the same as for getting promotion to the rank of Wing Commander i.e. minimum overall average of 5.5 and minimum of 5.0 in mandatory qualities which were specified. The other letter prescribed the minimum performance criteria of 5.0 for both, minimum overall average in ARs under considerations from 12th year of service and also in mandatory qualities.

15. There is no dispute that petitioner was assessed under the minimum performance criteria laid down by Air Headquarter letter dated 23.10.1991 which prescribed minimum 5.0 for both minimum overall average and mandatory qualities and which was in force at the relevant time and that he had failed to qualify under this as per assessment of the screening boards. He was informed of the outcome vide communications dated 25.11.1993, 2.8.1994 and 6.12.1995. It is surprising that he should have accepted it as a fait accompli all these years and should have now thought of ranking it up.

16. Even otherwise also, we find nothing wrong in this because both Air Headquarter letters dated 22.11.1988 and 23.10.1991 seem to have been issued under the Government EB Policy letter dated 16.3.1988 to supplement it and not to contravene it. These letters only prescribed the guidelines and the minimum performance standard at the relevant time, which could not be expected to remain static in a war-machine like Air Force which demanded high degree of efficiency and proficiency from is personnel. The first criteria of satisfactory, measured by whatever numerical strength laid down way back in 1988 could not, therefore, hold good for all times to come. Nor could petitioner lay any claim on this in disregard of the subsequent up to date fixed standards. In any case, it was prerogative of the Chief of the Air Staff to set standards of efficiency in the force under Rule 17 of Air Force Rules and to decide whether an officer was unfit to be retained in the force on account of his inefficiency or not. It all fell within his domain and not of this court which is loathe to interfere in the thickets of experts unless the action was shown to be irrational or incapable of performance or violative of any law or rules which was not the case here. Petitioner had also no say in the matter because his obligation was to satisfy the prescribed minimum standards if he wanted to be in service. He could not complain of any harshness or rigour of these standards and yet ask for his retention in service.

17. This apart, petitioner's outory on the issue of existence or crossing of efficiency bar becomes irrelevant after his premature retirement instead of removal from service. His plea on this would have merited consideration if he was removed from service on grounds of inefficiency because of his failure to cross the efficiency bar three times under the policy. But that was not to be, because respondents had not taken the efficiency bar issue to its logical conclusion and had instead prematurely retired petitioner on his application. Therefore, all the remained to be seen was whether his premature retirement could be held invalid on some ground. His case in this regard is that he was forced to seek his premature retirement under threat, coercion and force and that it amounted to dictated voluntary retirement', which was liable to be quashed.

18. We have examined the record but were unable to gather any element of threat, force, coercion or undue influence forcing petitioner to apply for his premature retirement. The record shows that while his case for removal was in process, SOA, HQ, Eastern Air Command had recommended by letter dated 5.2.1997 to Director (Personnel) that he be counselled and advised to seek voluntary retirement to save him from the fall out of his removal from service. He was counselled and advised accordingly and he reacted to this by his letter dated 17.2.1997 expressing his willingness to seek voluntary retirement, though after the implementation of Fifth Pay Commission report which was not acceptable to the respondents. He was thereafter again counselled and asked either to opt for seeking premature retirement or to face the removal proceedings. He took the first option which ultimately led to his premature retirement. It becomes difficult in this scenario to hold that he was prematurely retied forcibly through threat or coercion or that it was dictated to him. In fact, the option of premature retirement was given for his sake and for his benefit. Or else he would have faced removal from service with all its adverse consequences. That is why he appears to have seized upon this and having enjoyed its benefits turned round to question it. All this does not lead us to the view that petitioner's premature retirement was surrounded or tainted by any threat or coercion or that it was a 'dictated voluntary retirement' in any sense of this expression.

19. L/C for petitioner has cited several Supreme Court judgments before us to suggest that petitioner's premature retirement was a 'dictated voluntary retirement' procured under threat and coercion and was liable to be set aside. We have gone through these judgments only to find these distinguishable and irrelevant to the points in issue in the present case.

20. We accordingly hold that the efficiency bar policy contained in Government of India letter dated 16.3.1988 was very much in existence of India letter dated 16.3.1988 was very much in existence and in force at the time petitioner was assessed for crossing the efficiency bar in 1993-1995 and that show cause notice dated 8.7.1996 was not relevant for ascertaining its existence. We also hold that petitioner was required to qualify in accordance with the minimum prescribed criteria in force at the relevant time and that provision of such criteria in subsequent Air Headquarter letters was not in contravention or supersession of the Government Policy/instructions contained in policy letter dated 16.3.1988. Nor was petitioner's premature retirement surrounded or tainted by any threat, coercion, force or undue influence or result of any exercise of any malafide power.

21. This petition accordingly fails and is dismissed.