R.K. Pandey And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 810 Del

JUDGMENT

Mukundakam Sharma, J.

1. This writ petition is filed by the petitioners challenging the legality and validity of the order of discharge passed against the petitioners and also the order passed by the respondents disposing of the representations filed by the petitioners as against the aforesaid order of discharge passed under Rule 15(2)(j) of the Air Force Rules, 1969.

2. The petitioners were enrolled in the Indian Air Force as Aircraftsman (under training) on various dates. Their recruitment formalities were completed at the recruitment centre and they were given trainee numbers on their arrival before the respondent No.4, the Station Commander, Air Force Station, Belgaum, Karnataka.

3. The services of the petitioners were, however, guided by the instructions which were issued at the time when the petitioners were selected to undergo the joint basic training at the Administrative Training Institute. In the said instructions it was clearly stipulated that the duration of the said training would be six months and that after successful completion of the said joint basic training the petitioners would further undergo training as per trade allotted to them. The Joint Basic Training posturated inculcation of militarism, jointmanship and trade training. It also included general service training, languages, general knowledge, etc. The trainee was required to undergo monthly tests, schedule whereof was also provided in the instructions. I paragraph 4 of the said instructions it was stated as follows:-

(a) The trainee will be issued with a warning letter for his first failure in any of the tests/examinations conducted by UEB. The warning letter will clearly indicate that any further failure will result in CT and Discharge. Cognisance of failure, however, will be taken only from the second monthly test with a view to giving the trainees adequate time to adjust to the changed pattern of life.

(b) A letter will also be written to the parent of the trainee indicating his failure in the test, the areas of weakness of the trainee, warning given to the trainee, efforts being put up by the Institute to improve his standard and that CT and Discharge

might be the ultimate consequence of further failure.

(c) All second time failures in the monthly/term tests including the final TEB examination will be processed for Cease Training and Discharge through Station Review Board.

In paragraph 5 thereof it was clearly stipulated that all trainees were required to read and understand the aforesaid instructions carefully as it would affect their future in the Indian Air Force.

4. The petitioners started receiving training in the aforesaid manner. However, during the said training the petitioners failed two times in the tests/examinations. The petitioners were given warnings by the Chief Instructor in writing that in case of further failure in the examination the same would lead to cease training and discharge from service under Rule 15(2)(j) of the Air Force Rules under the clause of `unlikely to make an efficient airman'. After giving such warnings to the petitioners calling upon them to improve their performance, the petitioners were allowed to take a further test in which also the petitioners failed. Accordingly show cause notices were issued individually to the petitioners directing them to show cause as to why they should not be discharged from service under Rule 15(2)(j) of the Air Force Rules, 1969. The petitioners submitted their replies to the aforesaid show cause notices which were considered and thereafter the impugned orders were passed discharging the petitioners from service. Representations were filed by the petitioners as against the aforesaid orders of discharge which came to be rejected by the respondents and hence this writ petition by the petitioners.

1. At the time of their enrolment and while sending them to the training it was clearly stipulated by the respondents that those trainees who fail to make the grade in basic phase would be given `cease training' and `discharge' from service. The guidelines on which such cease training and discharge from service would be given were also outlined and stipulated in the aforesaid instructions. It was clearly stipulated that a trainee would be issued with a warning letter for his first failure in any of the tests/examinations clearly indicating that any further failure would result in `cease training' and `discharge', and that all second time failures in the monthly/terms tests including the final TEB examination will be processed for Cease Training and Discharge through Station Review Board. The congnisance for failure, therefore, was to be processed and counted only from the second monthly/terms tests so as to enable the trainees to settle down and get adequate time to adjust to the changed pattern of life. If there was any failure by any of the trainees in the first monthly test, that would stand excluded from the aforesaid provisions. However, the petitioners are all failures in the second monthly test and one test thereafter and, therefore, in all the cases of the petitioners, it is second time failures in the monthly/term test. Warning letters as envisaged were issued to the petitioners upon their first failure in the test/examination, but even after the aforesaid warnings issued to them they again failed resulting in the second time failure in the monthly/term test. Only thereafter show cause notices were issued to the petitioners calling upon them to show cause as to why they should not be given `cease training' and `discharge' from service.

2. The cases of the petitioners, therefore, squarely fall within the purview of the instructions. The petitioners even after their first failure were given warning letters as envisaged and were allowed to take another examination in which they again failed. They have been discharged from service in terms of the provisions of Rule 15(2)(j) of the Air Force Rules after issuance of warnings to improve and due service of notices to show cause.

3. Counsel for the petitioner, however, during the course of his submissions submitted that even if the cases of the petitioners were covered by Rules 15(2)(j) of the Air Force Rules read with the aforesaid instructions, yet the petitioners should have be in given a scope for re-examination as was given in some other cases. In support of the said contention, the counsel appearing for the petitioners pointed out the cases of A.P. Tiwari, N.K. Singh, R.B. Singh, N.K. Tiwari, B.K. Rai and Anil Kumar. The respondents, however, in their counter-affidavit submitted that re-examinations of only those trainees were conducted who had failed only in a part of the final examination for the first time. It was also submitted that the trainees who failed in the retests were awarded `cease training' and `discharge'. It was also submitted that all the petitioners were given chances of two failures like any other trainees. At that stage, the counsel for the petitioners drew our attention to the statements made in the rejoinder-affidavit wherein he pointed out that so far Shri N.K. Singh is concerned he was discharged on May 23, 2001 but he was afforded an opportunity of re-examination/re-test after he failed in first term U.E.B. Examination. It was also submitted that one Shri A.P. Tiwari was given an opportunity of re-test like N.K. Singh and that Shri N.K. Tiwari was also given a similar opportunity of re-test.

4. Counsel appearing for the petitioners also during the course of his arguments also relied upon the said memorandum dated November 7, 2000 issued by the respondents. In paragraph 2 of the said memorandum it is stated as under:-

Counsel for the petitioner contended that this memorandum enabled the respondent to give another chance to the petitioners which was not given arbitrarily and discriminatingly.

5. The respondents, however, have brought to our notice that so far Shri A.P. Tiwari and Shri N.K. Tiwari are concerned, they were given one extra chance as their cases came within the parameter of the memorandum issued by the respondents dated November 7, 2000.

6. The aforesaid memorandum lays down an exception to `no back phasing decision' which is to be exercised only in exceptional cases like prolonged illness or hospitalisation which is also to be examined and approved on merit. Shri N.K. Tiwari was given one extra chance on the ground of his illness after examining his case on merit. Incidentally, Shri N.K. Tiwari is petitioner No.4 in the present petition. It is further explained that so far the case of Shri A.P. Tiwari is concerned, he was a spots person being a wrestler, and since he participated in Command Championship and earned Gold Medal (First Position), therefore, he could not study for the examinations and was given an extra chance after examining his case on merits. It is also pointed out that one of 1022 trainees, 69 trainees have been discharged on the same ground as the case of the petitioners. It is also stated by the counsel appearing for the respondents referring to the statements made in the additional affidavit that an extra chance has been given only to some of the deserving trainees to clear the periodical test after examining each case on merit. So far Shri N.K. Singh is concerned, it is stated that he was also discharged from service and his discharge certificate is a annexed as Annexure R-12. Similarly, Shri R.B. Singh was also discharged by the respondents which is provided and established on a bare reading of Annexure R-14. So far the cases of Shri Anil Kumar and Shri B.K. Rai are concerned, it was submitted by the counsel for the respondents that the petitioners have not given full particulars of the aforesaid persons and, therefore, the respondents could not find any trainees like Shri B.K. Rai and Shri Anil Kumar in their records.

Counsel appearing for the petitioners thereafter sought to contend that actually Shri B.K. Rai was mis-spelt as his name actually is B.K. Ray.

7. In our considered opinion, the petitioners are resorting to witch hunting and requiring the respondents to cause a roving and fishing enquiry to be made. The terms and conditions of the training and the enrolment of the petitioners were governed by the relevant rules. If the cases of the petitioners came within the purview of discharge on account of their failures as envisaged in those guidelines and the rules, no infirmity could be found in the action of the respondents. The respondents are bound to follow the laid down guidelines. Anything done in violation thereof would be illegal. Such action would not create a right in favor of any person to plead discrimination or violation of rights under Article 14 of the Constitution of India. Regard could usefully be made to the judgment of the Supreme Court in Chandigarh Administration and another v. Jagjit Singh and another . We, however, hasten to add that in the present case we have found no such mistake, nor and wrong doing by the respondents even after scrutiny of the records and minute examination of all the provisions. Vested discretion was exercised in the two cited cases on their merits. Petitioner No.4 was the beneficiary of such scrutiny.

8. Accordingly, we find no merit in this writ petition and the same is dismissed.