Sqn. Ldr. R. Bhusal vs Union Of India (Uoi)
2003 Latest Caselaw 182 Del

JUDGMENT

Vijender Jain, J.

1. Rule D.B.

The petitioner has filed writ petition as he has not been granted Permanent Commission. In the writ petition, the petitioner prayed for quashing the order dated 14.2.2002, of the respondent being arbitrary, unreasonable and discriminatory. The other prayer of the petitioner is to the following effect:

"(b) Issue an appropriate writ, order or direction in the nature of mandamus to the respondents directing them to provide alternate employability and job in case if he became permanently disabled for flying being attributable to service.

(c) Issue an appropriate writ, order or direction in the nature of mandamus to the respondents directing them to consider the petitioner for flying in case he improves and provide appropriate medical aid if so required."

2. The petitioner joined as Trainee Pilot after necessary competition and examination, with an assurance that he will be considered for Permanent Commission after Short Service Commission term. It is the case of the petitioner that when he was on his mission of "Search & Rescue" operation of another crashed Helicopter on 17.5.2000, the Helicopter developed some snag during flying and crashed. Later it was revealed that engine failure of his helicopter was due to overheating and failure of Turbine Blades. The Chief of the Air Staff on an inquiry held that no one could be blamed and the injuries sustained by the petitioner were attributable to service. In the said helicopter crash the petitioner sustained injury i.e. compression fracture of spine (LVI) as a result he was graded lower in medical category. He was thereafter posted as operational officer at Pachora Missile Squadron, after career course against employability in which the employability of flying branch officer exists.

3. The petitioner received an order dated 11.4.2002 from the respondent, indicating that he will be released from service w.e.f. 20.2.2003. He challenged the said order by filing an appeal. The appeal of the petitioner was rejected by the respondent.

4. Counsel for the petitioner has assailed the order of release on the ground that the petitioner's disability, which is attributable to service was without his fault and the said disability was also not of a permanent nature and hence the action of the respondent in releasing the petitioner is arbitrary and violative of Article 14 of the Constitution of India. It was also contended that after the disability in 2000 the respondent asked the petitioner to undergo a career course in view of disability which is available to the flying branch officer only for alternate employment and now the impugned action of the respondent in depriving him of his livelihood is violative Article 21 of the Constitution of India.

5. We had directed the respondent to produce the records. Mr. Sud, learned Additional Solicitor General appearing for the respondent has contended that the petitioner could not be considered for grant of Permanent Commission as he did not fulfill the minimum performance criteria. It was further contended that the incident of the helicopter crash of 2000 was not taken into consideration for deciding the case of the petitioner for grant of Permanent Commission. It was contended by Mr. Sud that for grant of Permanent Commission, officers are assessed on demonstrated performance and medical fitness and the minimum grading of 6.5 in the last three years report is a must.

6. We have seen the Appendix 'B' internal directive principle No. DBO/03/ 1/2000. We have also perused petitioner's Annual Confidential Reports for the last three years. An argument was raised before us on behalf of the petitioner that the ACRs were downgraded from 6.40 in 1999 to 6.20 in 2000 and from 6.20 in 2000 to 5.20 in 2001 but he was not given any notice of such down gradation. It was contended that although in terms of the grading the said ACRs may amount to 'average' only but if the same had the effect of adverseness, a notice ought to have been given to the petitioner by the respondent. On the other hand the respondents have, referring to the ACRs for the relevant period, taken the stand that performance counselling was given to the petitioner during the relevant years which amounted to notice to the petitioner regarding aforesaid downgrading.

7. We would like to note that for the purpose of grant of Short Service Commission the following terms and conditions as filed by the respondent along with their counter affidavit are relevant to decide the controversy in question. The same read as under:

"Refer to Para 2 of the

No. 4(1) 89/D (Air-III) dated 13 July 90

Terms and Conditions of Service for SSC Helicopter Pilots

1. Age Limit : Same as applicable to candidates for Permanent Commission in the F(P) Branch.

2. Entry qualification : Same as applicable to candidates for Permanent Commission in the F(P) Branch.

3. Mode of Selection : Application would be called for directly by the Air Force through open advertisement and the candidates selected through AFSB as for Permanent Commission officers.

4. Commission : Candidates selected under this scheme will be granted Provisional Short Service Commission on successful completion of their Helicopter training. The SSC will be confirmed after a probationary period of one year. Failure to pass requisite examinations/flying tests etc. during training may result in suspension from the course. Also if in the opinion of the Head of Training Institute or due to medical reasons, the trainee is unlikely to benefit by further training, he would be suspended from the course.

5. Tenure of Engagement : The engagement period would be for 10 years from the date of commissioning. Grant of Permanent Commission would be considered subsequently, subject to service requirements.

6. Permanent Commission : SSC officers granted Permanent Commission will be eligible for all benefits/privileges which are admissible to the regular PC officers.

7. Seniority of SSC officers will reckon from the date of grant of provisional Short Service Commission so as to place them at par but junior to their contemporary PC officers. They would be eligible for promotion up to the rank of Sqn. Ldr. Under the same conditions as are applicable to permanent commissioned officers of F(P) Branch.

8. Pay & Allowances : As applicable to Permanent Commission Officers of the F(P) Branch. However, SSC officers will not be entitled to any advance for Car/Motor Cycle/Housing etc.

9. Other Perquisites : SSC officers will be entitled to all the perquisites of housing, traveling, leave medical facilities and rations etc. as applicable to permanent commissioned officers. However, they will not be eligible for service sponsored postgraduate studies or for study leave.

10. Gratuity : On completion of their tenure, SSC officers leaving the Air Force shall be paid gratuity at the rates applicable to SSC officers at that time.

11. Termination of Commission : Provisional Short Service Commission granted under this scheme may be terminated in case of failure of complete the specified training in establishments or for any other reason involving unbecoming personal conduct of an officer. If an officer voluntarily withdraws from initial training, or resigns during the probational period, he shall be required to refund the cost of training in whole or in part, as may be determined by the entire period from the Government, together with interest on the said money calculated at the rate in force for the Govt. loans. The SSC officer and his father or guardian will be jointly required to sign a bond to this effect. Also, if at any stage, an SSC officer is declared medically unfit to perform the duties of a pilot, then this SSC would be terminated and the officer boarded out on medical grounds.

12. Privileges and Liabilities : As for PC officers.

13. Application of AF Act : As for PC officers.

14. Emphyability: As for PC officers.

15. Group Insurance : As for IPC officers.

From the aforesaid terms and conditions it is manifestly clear that age limit, entry qualification, and mode of selection are the same as for permanent commissioned officers.

Same is the position in the matter of Privileges and Liabilities, Applicability of the Air Force Act, Employability and Group Insurance as reflected in paras 12, 13, 14 & 15 of the circular. If the entry qualification and mode of selection is the same and the Air Force Act, rules and regulations are also applicable in terms of paragraphs 12, 13 & 14 of the aforesaid circular, how a different yardstick can be prescribed by the respondent which is not mentioned in the aforesaid circular. The criteria for the promotion is as under:

Headquarter

South Western Air Command, IAF

Ratanada, Jodhpur - 342011 (Raj)

SWAC/C3028/P2

19 March 96

All Independent Stns/Units under SWAC, IAF

(for AOSC/Stn Cdrs/COs 2222 Sqn, AP

BRIEF ON ACTING/SUBSTANTIVE PROMOTIONS

1. The Rules governing substantive promotions are contained in AFIs 3/87, 69/70 and Paras 161 to 185 of Regulations for the AF, 1964.

2. Substantive promotions to the ranks of Flt Lt. and Sqn. Ldr. are time bound, but are subject to recommendation, suitability and other criteria like medical category, years of service, AR grading, etc. The rides governing are contained in AFI69/90 and 15/71 respectively. However, to dispel some of the doubts in this context, a brief on the procedure followed is given in the succeeding paras. It is requested that this may be disseminate to all concerned officers under your Station/Units.

  (a)    Acting promotions
To the Grading in appraisal                         Existing
Rank                                              qualifying service from
                                                     time to time
Fg offr                                              2 year
Flt Lt          Minimum of in the last three         4 year
                reports, if service exigencies
               demand, and officer may be
               promoted on only 2 reports with
               a minimum 5 in each report. Direct
               entry technical officer may be
               promoted only on one report with a
               minimum grading of '5' with a
               special recommendation from both
               IO and RO that the officer is
               considered suitable for grant of
               acting rank of Flt. Lt.

Sqn Ldr            Minimum of '5' in the last three  9 year
                  reports and with a minimum
                  total of 16, i.e. At least one
                  assessment of '6' in the last
                  three years.

(b)   Substantive Promotions 

Fg offr to      A minimum report status of 4 in the last

Flt Lt        three years with no adverse remarks in the last report.
Flt Lt to      Minimum of '4' in the last 3 reports and with a
               minimum total of 13 i.e. at least one assessment of
              '5' in the last 3 years, with no adverse remarks in
               the last report 
 

Grant of substantive promotion to the ranks of Flt and Sqn Tr is subjected to the officer qualifying in the relevant promotion examinations well in time.

(c) Medical Category--For flying branch officer is A2G2 (P/T). This may be condoned to A3G3 (P/T) with the concurrence of the Case in exceptional/meritorious cases. For ground duties (other than medical), it is A2G2 (P/T).

(d) Effect of Censure -- Censure awarded to an officer mil be considered while deciding his suitability or otherwise for his promotion to the next acting rank only erg. If an officer incurs censure in the rank of Plt. Offr/ Fg Offr, such award shall be considered while deciding his suitability of otherwise for grant of acting rank of Flt. Lt. (AFO 227/77 also refers).

2. In order to have desired results, it is felt that the young officer during their formative years may be made to understand that they should maintain a befitting medical category, pass the relevant promotion examination and aim to maintain a report profile much above the minimum status so as to achieve Career Progression."

8. We had asked the learned Additional Solicitor General as to whether the criterion for promotion for the Short Service Commission Officer as well as Permanent Commission Officer particulary from Flying Officer to Right Lieutenant and from Flight Lieutenant to Squadron Leader is the same or different, the answer was in the affirmative. That means that a Flight Officer who is to be promoted to the post of Squadron Leader irrespective of the fact whether he is from Short Service Commission or from Permanent Commission, he would be judged on the basis of prescribed qualification as mentioned in the aforesaid criterion.

9. The criterion for promotion as reproduced above are framed by the respondent pursuant to paragraphs 111 to 113 which are contained in Air Force Regulations 1964. The paragraphs 111 to 113 are reproduced below:

"111. Pilot Officer to Flying Officer. A Pilot Officer will be eligible for promotion to the rank of Flying Officer provided he:

 (a)    has completed one year's commissioned service as a general duties
officer; 
 

 (b)    has been recommended as in all respects suitable for advancement by his Commanding Officer; and  
 

 (c)    is medically fit for duties of his branch. 
 

 112. Flying Officer to Flight Lieutenant. A Flying Officer will be eligible for promotion to the rank of Flight Lieutenant provided he: 
 

 (a)    has completed four years service in the substantive rank of Flying
Officer; 
 

 (b)    has been recommended as in all respects suitable for advancement by his Commanding Officer.; 
 

 (c)    is medically fit for duties of his branch; and  
 

 (d)    has passed the prescribed promotion examination. 
 

 113. Flight Lieutenant to Squadron Leader. A Flight Lieutenant will be eligible for promotion to the rank of Squadron Leader provided he: 
 

 (a)    has completed six years' service in the substantive rank of Flight Lieutenant as General Duties Officer; 
 

 (b)    has been recommended as in all respects suitable for advancement by his Commanding Officer; 
 

 (c)    is medically fit for duties of his branch; and  
 

 (d)   has passed the prescribed promotion examination of the defense
Services Staff College course."  
 

 To Supplement Regulations 111 to 113, the aforesaid criteria for promotion have been laid down by the respondent. 
 

10. It is an admitted case of the parties that the petitioner was first promoted from Flying Officer to Flight Lieutenant in the year 1997 and then on 26.8.2002 the petitioner was promoted as Squadron Leader from the rank of Flight Lieutenant. An argument was raised before us by the Counsel for the respondent that the promotions given to the petitioner were time bound promotions. Even if that be the case, the fact remains that the petitioner was promoted on the basis of criteria prescribed by the respondent as per rules only. A plea was raised on behalf of the respondent that the minimum performance criteria for grant of Permanent Commission emanates from Clause 5 of the Circular dated 13.7.1990 itself. This, therefore, makes us to advert to the issue as to whether the criteria which has been prescribed pursuant to an internal policy is consistent with Clause 5 of the above referred Circular of the respondent which has been issued pursuant to the Rules. Clause 5 which has been relied upon by both the parties relates to tenure of engagement. The same is to the following effect:

"The engagement period would be for 10 years from the date of commissioning. The grant of Permanent Commission would be considered subsequently, subject to service requirements."

11. The question for adjudication is whether 'service requirement' deals with requirement of the personnel in the service on Permanent Commission only or also with the minimum performance criteria including gradings of the officers on Short Service Commission, for being granted Permanent Commission. The dictionary meaning of the word 'requirement' according to Chambers Dictionary is as follows:

"A need, a thing needed, a demand."

12. Obviously, the term 'service requirement' occurring Clause 5 of the aforesaid circular, is directly related to the vacancy position in the cadre of Permanent Commission and it has nothing to do with minimum performance criteria of those waiting for being considered for Permanent Commission. Therefore, by ousting the petitioner for consideration for grant of Permanent commission on the basis of certain gradings prescribed by the respondent by way of some internal policy cannot be held to be consistent with Clause 5 as pleaded on behalf of the respondent. It is not denied by the respondent that the respondent do require persons from the Short Service Commission for the grant of Permanent Commission. As a matter of fact a batch mate of the petitioner has been granted Permanent Commission. Now the question is if the service requirement is there it cannot be said that unfit person or persons who are not fully fit be automatically given Permanent Commission. For that purpose the respondents can make their rules which are in consonance with the Air Force Act and Rules and Regulations made there under. Any grading or method prescribed for adjudging the suitability of an officer for grant of Permanent Commission must conform to the provisions of the Air Force Act, Rules & Regulations made there under. Nothing has been placed before us as to whether the prescribing of 6.5 marks grading as a qualification has been done by the respondent pursuant to the Act and Rules/Regulation framed there under. Further, the provision of grading of 6.5 as a qualification by the respondent pursuant to internal policy cannot withstand the test of paragraph 915 of the Air Force Regulations. The same is as under:

"All Government of India sanctions of a general nature or those which affect an appreciable number of units, individuals or classes of individuals will be published as Air Force instructions. All decisions of this kind will be published in a self contained and compact form clarifying their meaning without necessitating any reference to other books or documents."

13. We must note here that the learned Additional Solicitor General had contended that paragraph 915 of the regulation of Air Force Act will be applicable only to Permanent Commissioned Officer. In paragraph 13 of the circular dated 13.7.90, which has been quoted above, it has been specifically mentioned in the said paragraph that the Air Force Act shall be applicable even to the Short Service Commissioned officer. Nothing has been placed on record before us that paragraph 13 of the said circular has been deleted subsequently. If that is the case then the argument that the Air Force Act or rules and regulations made there under are not applicable to a Short Service Commissioned officer cannot be sustained. There is yet another aspect of the matter which we would like to note. Although the stand of the respondent is that helicopter crash of 2000 has not been taken into consideration while considering the case of the petitioner for Permanent Commission. However, on perusal of the original record there is note attached to the ACR of the petitioner that he was involved in an accident in 16.10.95. If three years grading was the sole criterion then no other consideration ought to have been placed before the authorities. Now coming to the helicopter incident of 2000, the remarks of the Chief of the Air Staff are important, in which it was specifically mentioned that the superior officer of the petitioner instructed the petitioner to proceed on commitment for a rescue mission. The specific finding of the Chief of the Air Staff was to the following effect

"2. The cause of the accident is engine failure, due to prolonged operation at high rating leading to overheating and subsequent burning of the turbine blades.

3. No one is held to blame for this accident.

4. Fatal injuries sustained by Wg. Cdr. Chandra Singh and Capt. Vishal Srivastava (Medical Srivastava (Medical Officer) and injuries sustained by Flt. Lt. R. Bhusal are attributable to service.

(B.M. Bali)

AVM

Offg IG

14. A young man who was performing his duty under the command of his superior incurs injuries and becomes medically unfit though temporarily, though the injuries are attributable to service, no consideration has gone into for the loss which he has sustained at the young age. It was strange to hear the argument that the petitioner will not be entitled to a shelter appointment as he is not a Permanent Commissioned Officer. At the time of entry of the petitioner on the Short Service Commission, the terms and conditions provided that the age limit, the qualifications the selection as well as the applicability in relation to the liabilities and employability shall be at par with the Permanent Commissioned officer, then not to grant Permanent Commission to the petitioner on the ground that shelter employment is only for Permanent Commissioned officer and not for Short Service Commissioned officer, in the facts and circumstances of the case is an act which does not commend to reasoning. Judging from any angle we hold that the internal policy of the respondent of prescribing 6.5 mark, in terms of grading is not in conformity with paragraph 915 of Air Force Regulations, framed under the Air Force Act The respondents cannot keep some policy in the matter of grant of Permanent Commission to themselves without notice to the persons who joined short service Commission. We are also of the view that it is for the respondent to prescribe the criteria for the persons who are in Short Service Commission to be given Permanent Commission but the same must be transparent. We fail to understand that on the one hand petitioner was promoted to the post of Squadron Leader on the basis of grading of 5 and above in August 2002 but he has been denied Permanent Commission on the basis of a policy which we have already said cannot be construed to be a policy in terms of rules and regulations framed under the Air Force Act.

In the circumstances, we quash the orders dated 11.4.2002 as well as 23.12.2002 of the respondents, and direct the respondents to grant the petitioner a Permanent Commission. However, it is left open to the respondents to provide alternate employability in their own discretion, keeping in view the medical fitness of the petitioner.

Rule is made absolute.

Writ petition is allowed.