Sqt Ranbir Singh (702322-L) vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1216 Del

JUDGMENT

Swatanter Kumar, J.

1. The relief claimed by the petitioner in the present writ petition under Article 226 of the Constitution of India depends upon the application of the following para 4(e) of AFO11/99 to the facts of the present case:

4(e) Conduct Sheet. Extension of engagement will be granted to airmen who are suitable for retention and amendable to service discipline. Airmen who have been declared as habitual/potential habitual offenders will not be granted extension of engagement, except if they have not incurred any Red/Black Ink entry in the preceding eight years of their current RE expiry. However, grant of extension of engagement in respect of airmen who have not been categorised/declared potential/habitual offenders but have incurred one Red Ink or two Black Ink entries in the preceding five years of the expiry of their current RE will be considered on individual merits.

2. According to the petitioner, extension of engagement is a right vested in the petitioner and once he satisfies the criteria, the respondents have no option but to grant extension of engagement to the petitioner. In order to examine, the merit of this contention, we may refer to the facts giving rise to the filing of the present petition.

3. The petitioner was enrolled as an Aircraftsman in the trade Clk/PA in the Indian Air Force on 6.6.1986. He earned various good reports and was promoted to the rank of Corporal on 1.3.1992. As per the facts stated in the petition, the petitioner, during the course of his service, was awarded two punishments of severe reprimand on 7th October, 1996 and 5th May, 1997 for being absent without leave. Thereafter, the petitioner earned good report and was promoted to the rank of Sergeant on 1.12.2000. Again he was awarded punishments at different intervals. He earned reprimand resulting in black ink entry despite the fact that the petitioner earned a very good report in the year 2004. The petitioner who had applied for extension of service in terms of the above rules/instructions framed by the authorities for a period of three years, was not granted the same and despite his good service record, the petitioner was discharged vide order dated 12th April, 2005. It is the case of the petitioner that respondent No. 4, his immediate superior, had strongly recommended his extension of service but without serving any show cause notice upon the petitioner as contemplated under the policy, the petitioner was discharged from the Air Force. It is also stated by the petitioner that he was not declared a potential habitual offender and, thus, he was not unfit for extension. The correctness of the said order is questioned by the petitioner on the ground that it is contrary to the policy of the respondents and is arbitrary.

4. The respondents have filed a detailed counter affidavit wherein they have stated that the petitioner had applied for extension for service and on scrutiny it revealed that he had incurred three red ink and one black ink entries in his conduct sheet without a clear gap of 8 years between the two consecutive entires. Thus, in terms of Air HQ circular No. AIR HQ/C 23406/685/PS dated 18th December, 1996 he came in the category of potential habitual offender. That being so, he could not have been considered for grant of extension of service. Since he was not granted extension, discharge order No. 84/05 was issued to him and in terms of the provisions of AF Rules 1969 Chapter III Rule 15(2)(d) and paras of AFO 11/99 'on transfer to pension establishment otherwise than at his own request' without reserving any liability, the order was passed. The other facts are not much disputed. However, it is stated that on regular intervals, the petitioner had been incurring red ink or black ink entires during the course of his service. The various red/black ink entires which were awarded to the petitioner related to fighting in civil area with other persons including members of the force, running illegal business in Government accommodation in violation to specific instructions and giving false living out address. The record of the petitioner reflected that he was an habitual offender and despite warnings he had failed to improve. As late as on 17.11.2003 as instructed by Command HQ, the incident of fighting in civil area was looked into and even disciplinary action against the petitioner and other persons were directed. Finally, they were awarded reprimand vide order dated 11.12.2003. Based on the service record of the petitioner, the respondents have referred to the ACRs of the petitioner for preceding five years from the relevant period for extension of engagement which according to them are to be either exceptional or superior. The grading of the petitioner as per the counter affidavit reads as under:

  Year          Grading
2000          Satisfactory
2001          Superior
2002          Superior
2003          Superior
2004          Exceptional

 

5. In the above circumstances, the submission on behalf of the respondents is that the petition is liable to be dismissed and in any case extension in service is no right vested in the member of the Force. It has to be considered by the authorities which may in their discretion grant or decline the same keeping in view their policy decisions and the service record of the concerned member of the Force.
 

6. Firstly, we will deal with the contention of the petitioner that the extension in engagement is a right vested in the petitioner. This argument is devoid of any substance. Extension is the benefit which may accrue to a person in service in the discretion of the employer in consonance with its policy and depending on the service record of the applicant. There is no right much less any indefeasible right vested in the petitioner to claim extension in service. The relevant rules clearly provide and proceed on the basis that an applicant would seek extension and may be granted extension of engagement for initial or extended period as the case may be. The Air Force Order dated 10th September, 1999 on its plain reading shows the limitations and restrictions which are to be kept in mind by the authorities while considering an application by the member of the force seeking extension. The principles which have been stated under instruction para 4 of the air force order clearly itself stipulates extension of service beyond the initial term of engagement can not be claimed as a matter of right. It shall be the discretion of Air HQ or such other authority, as may be specified . In fact, this aspect does not require any further discussion in view of a Division Bench judgment of this Court in the case of JWO Shankar v. UOI and Ors. LPA 416/98, decided on 24.9.1998, where the court held as under:

7. The plea of violation of principle of natural justice has also to fail. Firstly, an extension in service is not as of right. A refusal to extend the service need not comply with principle of natural justice. Still an opportunity of hearing has been given to the petitioner consistently with the directions of the Court. The petitioner can hardly complain of violation of principles of natural justice

7. In view of the above unambiguous position of law, we have no hesitation in rejecting the contention raised on behalf of the petitioner.

8. Learned Counsel appearing for the respondents argued that the petitioner falls in the first category mentioned in para 4(e) of the AFO 11/99 as he had been habitual/potential habitual offender and was not entitled to grant of request for extension of engagement and in any case the petitioner had earned one red ink and one black entry in the preceding five years of the expiry of the relevant period and as such even on that score, he was not eligible to be considered for grant of extension.

9. On the other hand, the learned Counsel appearing for the petitioner while relying upon the same paragraph 4(e) argued that the petitioner was entitled to seek extension as he completely satisfied the requisite conditions and the red/black ink entries in his service record were beyond the prescribed period. Though, it was not disputed by him that the petitioner had one red ink and one black ink entry in the preceding five years.

10. During the course of hearing, the respondents produced records which were perused by us. From the records, it appears that the petitioner was even sought to be discharged from the Air Force for his consistent bad conduct. He was served with a notice as contemplated under Rule 15 of the Air Force Rules informing him that the petitioner was a habitual offender and why should he not be declared as such and be not discharged. However, when these proceedings were pending, the petitioner was discharged by the respondents on completion of his engagement vide order dated 12th April, 2005 and along with the petitioner number of other persons whose term had expired and were not granted extension, were also discharged. The order impugned by the petitioner clearly states Discharge : Airmen on transfer to pension establishment without reserve liability which obviously means that the petitioner had superannuated from his service and he had no legal right to claim an extension of engagement as a matter of right. It may also be noticed that on the clear interpretation of para 4(e) referred supra, the petitioner was not even eligible. There is no dispute to the fact that the petitioner had earned one red ink and one black ink entry in the period of five years immediately preceding the date of his superannuation. The contention of the petitioner that he was not factually declared as habitual /potential habitual offender, in terms of the circular and thus does not fall in the first category of paragraph 4(e) is of no effect as still, he would be covered in the latter category specified in the said rule. The petitioner certainly had earned three red ink entries as well as one black ink entry in the eight years of his service. Still the court does not have to rely upon that aspect of the service record of the petitioner. As we have already noticed that there is no dispute to the fact that the petitioner had earned one red ink entry and one black ink entry in the five years preceding the date of consideration of the application of the petitioner seeking extension. In terms of para 4(e), the case of an airman can be considered on merit provided he had earned only one red ink or two black ink entires in the preceding five years of the expiry of his current regular employment. If the petitioner had earned only one red ink entry or two black ink entires then his request could obviously be considered by the authorities. Once the petitioner had incurred one red ink entry as well as one black ink entry in the preceding five years, he obviously become ineligible.

11. Thus, the conclusion of the respondents that the petitioner is not even eligible for consideration for grant of extension of engagement cannot be said to be arbitrary or discriminatory. The conclusion arrived at by the respondents is based upon correct interpretation of the relevant para and does not suffer from any infirmity so as to call for interference by the court in exercise of its writ jurisdiction.

12. Consequently, we find no merit in this petition and the same is dismissed while leaving the parties to bear their own costs.