Sqn. Ldr. Shkul Tyagi vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1723 Del

JUDGMENT

H.R. Malhotra, J.

1. The petitioner, a Helicopter pilot in Indian Air Force currently having attained the status of Sqn. Leader seeks premature retirement from service on the ground of extreme hardship because of matrimonial discord between the petitioner and his wife as according to him they have hardly lived together, both being employed, former in Indian Air Force and latter as a dental surgeon in Haryana State Services. The present writ petition has been filed under Article 226 of the Constitution of India seeking direction to the respondents to retire the petitioner from service on the ground of conjugal disharmony.

2. Brief facts, necessary to deal with this writ petition are as under:-

(a) The petitioner was selected as pilot officer in the Indian Air Force after successful training and was commissioned in the year 1993 and rose to the rank of Sqn.Leader having specific duties of flying helicopter.

(b) In the year 1996, the petitioner married Dr.Mamta Tyagi who was employed with Haryana Civil Medical Services as a senior Dentist at that time.

(c) It is stated in the petition that during the period of eight years petitioner had six postings at various places and thus had hardly any occasion to live with his wife and two children. This led to serious matrimonial discord between the petitioner and his wife as neither the petitioner nor his wife were able to stay together because of exigencies of their services. Because of long separation, the petitioner's wife served a legal notice for dissolution of marriage on account of the cruelty caused to her for non-cooperation of the petitioner.

(d) The petitioner made an application for premature release from Air Force on extreme compassionate ground as per Human Resources Policy dated 7th March, 2003 issued by respondent No. 2 i.e. the Chief of Air Staff which resulted in its rejection thus necessitating the petitioner to file the instant writ petition.

3. It is averred by the petitioner in the writ petition that similarly and identically situated officers with similar difficulties and hardships were given premature discharge on compassionate grounds. Details of such officers find place at Para 3.12 of the writ petition. It is the grievance of the petitioner that the respondents have turned down the prayer of premature discharge of the petitioner without assigning any reasons. The petitioner while placing reliance on the policy dated 7th March, 2003 pleaded that such policy favors the petitioner but the respondents arbitrarily and discriminately rejected the case of the petitioner.

4. The respondents filed the counter affidavit refuting the averments made in the petition and justifying the rejection. In the counter affidavit, the respondents pleaded that each officer's case is considered on individual merits and in accordance with the Government policy on the subject and at the time of dealing with such application, the Chief of the Air Staff has to keep in view the manpower situation and operational requirement of the service. The respondents further stated in the counter affidavit that the petitioner's case for premature retirement was not genuine but with a view to seek better employment in the commercial airlines and he created such grounds by joining hands with his wife. What was further stated in the counter affidavit was that the petitioner underwent three years of training at National defense Academy at the expense of the State and this was followed by flying training, the cost of which had come in crores which was fully borne by the State and now the petitioner cannot be permitted to seek premature discharge merely because of certain inconveniences concerning his family and that national interest comes prior to the interest of the family.

5. As regards the policy of premature retirement the respondents reaffirmed in their counter affidavit that the case of the petitioner did not fit in any of the grounds incorporated in such policy and, therefore, the application of the petitioner seeking premature release was rightly rejected.

6. The petitioner filed his rejoinder to the counter of the respondents giving details of his career, his marriage and matrimonial life and also repudiated the allegations made in the counter affidavit.

7. We have heard the learned counsel appearing for the petitioner and that for the respondents. We have also looked into the policy dated 7th March, 2003 laying down criteria for premature retirement. Clause (b) of such criteria deals with extreme compassionate grounds which reads as under:-

"Extreme Compassionate Grounds Requests on extreme compassionate grounds would be considered after the facts represented by the officer are verified, to the extent possible by the Service Headquarters. Such verification is necessary to ensure that the grounds are genuine. Domestic problems such as need to look after ailing parents, inheritance problem, need to look after family business, serious illness of wife requiring officer's presence at home, possibility of break-up of conjugal life if the officer continues in service etc., would be treated as compassionate grounds depending on the circumstances of each case."

8. Reading of this clause indicates that circumstances of each case shall be looked into while dealing with the request for premature retirement and further the authority shall verify if the grounds were genuine.

9. True, the "possibility of breakup of conjugal life", if the officer continues in service is to be treated as a compassionate ground but this is again subject to the circumstances of each case. Let us take the case of the petitioner to find out if the petitioner is faced with such great hardship that his continuance in service shall be so detrimental so as to lead to a break up of his conjugal life. The concerned Air Force authorities i.e. respondent No. 2 had made a close scrutiny of his case and came to the conclusion that it was not a fit case for giving premature discharge to the petitioner from service. The question which arises for our consideration is whether this court while exercising power under Article 226 of the Constitution of India can go into the legality of such an order. Certainly court while exercising powers provided under Article 226 can look into the fact if the authorities had applied the criteria in its true spirit or over looked the material points while dealing with the policy or acted malafide or disciminately. Ordinarily the courts would not interfere with the policies made by the military authorities, it being their domain to implement it looking to the interest of the nation and armed forces but where courts find the element of bias, favortism, nepotism or other extraneous considerations, the court must come to the rescue of the aggrieved person. True, the petitioner averred in his petition that cases of officers of identical problems were considered by the authorities and they were given premature retirement but as we have noticed in the policy dated 7th March, 2003, that cases of premature retirement on compassionate grounds shall be determined on the circumstances of the each case.

10. The petitioner, on whom the Government of India had spent huge amount by imparting flying training to him and had undergone three years extensive flying training while in National defense Academy and other academies now wants to quit abruptly because of the stated family problem. We would not hesitate in stating that at the time of joining the elite force the petitioner was aware of the exigencies of serving as an Air Force Officer and can not now be permitted to cite reasons of conjugal bliss. We may further state that at the time when cadets pass out they take oath to make a supreme sacrifice if the occasion arise and even otherwise having joined Indian Air Force, and having received expensive training at the cost of the State exchequer, he should not have thought of quiting Air Force particularly abruptly when he has a long and enthusiastic career ahead. Domestic problems do come in the way of armed personnel. These forces are trained to overcome these difficulties and not to succumb to these problems which we would call tiny problems in comparison to the interest of the nation.

11. Even otherwise we are not satisfied if the petitioner is quiting because of family problems. The possibility that the petitioner desires to go for better prospects in terms of money as there is a growing need of commercial pilots because of induction of numerous private airlines cannot be ruled out. We do not say so on surmises but the petitioner has himself stated in clause D of grounds of writ petition that the right to employment for better prospects is available to the petitioner and same can not be denied by the authority having no power to do so. This gives an indication that the possibility that the petitioner may join some other airlines or some other employment for better prospects can not be ruled out. We cannot lose sight of the fact that the petitioner was trained at considerable public expense to serve his motherland.

12. Even if the hardship of the petitioner is taken to be genuine then too it is not of such a grave nature so as to vitiate the impugned order dated 4th March, 2005 rejecting the request of the petitioner for premature release. It is not true that the petitioner and his wife would hardly any occasion to be together. The petitioner being in Air Force is entitled to two months annual leave, casual leave besides other permissible leave. Similarly, we are sure his wife being in Government service would be entitled to similar leave facilities and in this way, the petitioner and his wife can always plan in such a manner so that family live together several months in a year. During the course of the arguments the learned counsel for the petitioner had urged that when the petitioner was not interested to continue with the service why should the Air Force then retain an unwilling officer as it would amount to retaining an officer who is not willing to carry out with the Air Force any more. We are not impressed with such arguments. It is not a question of an officer being wiling or unwilling. The officer while in defense services is not only under a moral obligation to perform his duties willingly and diligently but also under a legal obligation to perform his duties to the best of once ability.

13. The respondents had offered to place the petitioner at a station closest to his wife's place of working. Notwithstanding the dismissal of this petition if the petitioner makes a request for such a posting within six weeks from today, the respondents shall grant such a request a as per the offer made in court for a transfer to a station proximate to his wife.

14. In any case, this is not a case where this court while exercising powers under Article 226 of the Constitution of India should interfere in the decision of the authorities as no case of malice, bias or discrimination has been made out by the petitioner in the challenge to the rejection of the plea of the petitioner for premature discharge.

15. With these observations, the writ petition is dismissed. No order as to costs.