Air Commodore M.M. Arora vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1886 Del

JUDGMENT

G.S. Sistani, J.

1. The petitioner is a retired Air Commodore of the Indian Air Force and has had an outstanding career in the Indian Air Force. The petitioner was commissioned in the Royal Air Force in August 1994. The petitioner had been serving the Indian Air Force and retired in the year 1980. The Presidential Secretariat vide notification No. 24-Press/67 dated 26.1.1967, was pleased to approve the award of Vayu Sena Medal (VM) to the petitioner for inter alia successfully flying over the North Atlantic despite bad weather conditions and bringing critically needed aircraft to India carrying out supply, dropping and hazardous missions in the NEFA and Nagaland regions and for display of courage, initiative and devotion to duty.

2. It is stated in the petition that it came to the knowledge of the petitioner that all the VMs awarded before 1998 had been reviewed by a special Committee for the purpose of categorising the awards into two lists i.e., VM and VM(G). The petitioner sought clarification regarding the status of the VM awarded to him and vide letter dated 5.8.2002 received from the office of the Air Force Officer (Personnel), it was clarified inter alia that the Vayu Sena Medal awarded to the petitioner in the year 1967 vide AFO 340/67 was essentially for devotion to duty and not for an act of gallantry.

3. Being aggrieved by the decision of the Air Force Authorities not placing his name on the gallantry list of the VM awardees, the petitioner wrote to the Air Chief Marshal vide his letter dated 22.8.2002 inter alia stating the circumstances under which he was awarded the VM in 1967 and highlighting that the award, thus, was a display of courage, devotion to duty and acts of courage performed in hazardous conditions. He further highlighted that as such the award could not have been for devotion of duty alone and the petitioner ought to have been placed on the gallantry list of VM. The Air Force Officer In charge (personnel) vide his letter dated 30.9.2002, wrote to the petitioner informing him that after the institution of VM(G) award, all VMs awarded before 1998 were reviewed by a committee for appropriate recommendations for change over to VM(G) in cases where the VMs were awarded specifically for acts of gallantry. The petitioner was further informed that the VM awarded to him in 1967 was essentially for "devotion to duty" and, therefore, did not fulfill the gallantry clause. On 18.10.2002, the petitioner again wrote to the Air Marshal/Air Officer In Charge (Personnel) reiterating his stand and requesting him to review his decision not placing his award in the gallantry list. On 6.11.2002, the petitioner was informed by the Air Marshal/Air Officer In Charge (Personnel) that the points raised by the petitioner in his letter dated 18.10.2002 had been re-examined and it was reaffirmed that the VM awarded to the petitioner was only for exceptional devotion to duty and not for gallantry. The petitioner, thereafter, met the Air Marshal/Air Officer In Charge (Personnel) in the first week of December 2002 and requested him to explain the stand of the petitioner to the Chief of Air Staff and thereafter the petitioner addressed another letter to the Air Marshal dated 19.12.2002. The Air Chief Marshal wrote to the petitioner on 3.2.2003 that the points raised by the petitioner in his letter dated 19.12.2002 had been re-examined and it was reaffirmed that the petitioner's award was for exceptional devotion to duty and could not be placed in the gallantry list. The petitioner, thereafter addressed a letter to the Minister of defense, Government of India which according to him met the same fate and the petitioner was informed vide letter dated 12.5.2003. The petitioner, thereafter, continued to address letters including letters dated 16.6.2003 to the defense Minister, 13.2.2004 to the Air Marshal and thereafter a legal notice dated 2.4.2004 to the Air Chief Marshal. Aggrieved by not being placed in the category of VM (Gallantry), the petitioner has filed the present writ petition for quashing the list of pre 1994 Vayu Sena Medal Award for the act of courage/gallantry dated January 2001 and for issuance of a writ in the nature of certiorari or any other writ or directions commanding the respondents No. 1, 2 and 3 to notify a fresh revised list including the petitioner's name after due ratification.

4. The learned Counsel for the petitioner has vehemently argued that the citation of the petitioner's V.M. dated 26.1.1967 was for courage, initiative and devotion to duty. He submitted that the respondents have unilaterally not included the name of the petitioner in the list of VM(Gallantry). He submitted that the citation itself shows that the act of the petitioner which approved him for the Vayu Sena Medal was for gallantry. The petitioner successfully flew a caribou Aricraft across the North Atlantic despite the bad weather conditions and brought the critically needed aircraft to India, he carried out several supply, dropping and hazardous missions in NEFA and Nagaland. He completed 1200 hours of operational flying during the period while his squadron was still in the formative stage. As a Flight Commander, he had thus set a very high example to his junior pilots in his squadrons.

5. It was submitted that the actions of the respondents in not including the name of the petitioner for gallantry was illegal, arbitrary and discriminatory. The actions of the respondents were without any application of mind and thus, they were arbitrary and that the respondents also did not follow the principles of natural justice. The petitioner was not given any show cause notice nor was he awarded any hearing. Learned Counsel for the petitioner further argued that although the petitioner has filed the present writ petition as it affects his honour nonetheless by not including the name of the petitioner in the VM(G) list the petitioner would also suffer a financial loss and since the action of the respondents has a financial implication on the petitioner, the respondents were duty bound to follow the principles of natural justice. The acts of the respondents have changed the character of the award which was instituted for Presidential Notification retrospectively.

6. On the other hand, it has been contended by the learned Counsel for the respondent that as per practice prevalent up to the year 1994, there was no distinction in the Vayu Sena Medals awarded for courage or devotion to duty. However, with effect from 1998, the name of the recipient of VM for devotion to duty and courage were notified separately. A representation was received from the petitioner that such a distinction should be applied in his case as well. As various requests were received from persons who had been awarded the V.M. prior to 1998, after deliberation it was decided to appoint a Committee to examine the citations pertaining to pre 1998. The committee recommended 320 personnel whose citations revealed an act of courage. The decision to convert VM to VM(G) was taken after going through in detail each and every citation and after perusal of the citation and only if it was revealed to be an act of courage, it was recommend to conversion for VM(G). Learned Counsel submitted that the citation of the petitioner reveals the professional competence of the petitioner rather than courage or bravery. Negotiating bad whether is a task of an experienced pilot and the same is done as a routine by the Indian Air Force Pilots. He further submitted that the petitioner is not the only pilot who had carried supply dropping missions in NEFA in bad weather conditions. The Committee, therefore, after due deliberations concluded that the contribution, achievement brought out in the citation of the petitioner reflected professional competency and managerial initiative rather than courage. It was submitted that undue emphasis was laid by the petitioner on the word "courage" appearing in his citation although his citation clearly brings out his professional acumen, managerial effectiveness and initiative. Mere appearance of the word "courage" in the citation cannot lead to the conclusion of gallantry, nor the word "courage" appearing can be the sole basis of ignoring the crux of the matter.

7. The counsel for the petitioner had relied upon the case of Squadron Leader Okhely, who according to the petitioner was similarly placed and had been included in the list of VM(G). This case was distinguished by the counsel for the respondents as the citation in respect of the said officer clearly mentions "during Chinese aggression in 1962, he flew 94 hours on operational sorties in support of our Army in Ladakh". In case of the petitioner, he had carried out supply dropping missions in NEFA and Nagaland but not during the Chinese aggression. Counsel for the respondents further submitted that no benefits which accrued to the petitioner, have been withdrawn. In fact there is neither social or financial impact on the petitioner as VM and VM(G), both are written as VM after the name. As the decoration is written as VM, it does not reveal the nature of duty for which it has been awarded. Therefore, there is no change in social grace. There is no financial impact as far as the petitioner is concerned since he was not getting any monetary benefit till now as well. No change had been carried out in the character of the award i.e., nomenclature, shape of medal, ribbon and order of precedence for wearing the award/medal. Subsequent to the implementation of the recommendations of the 5th Pay Commission in 1998 some financial benefits/relaxations in income tax were given to gallantry award winners by Ministry of Finance. Representations from pre 1994 awardees were received for bifurcation of the awards, for which a committee was formed. The first Committee submitted its report on 25.1.2000 and thereafter the second Committee was formed which gave its report in June 2001. The second Committee also reviewed the recommendations of the earlier Committee wherever it was necessary to ensure that no deserving case was left out. It was argued that the Committee comprised of two Air Force Officers - one Civilian Officer and one Junior Warrant Officer. The Committee applied their mind and considered each case minutely before categorising the awardees as VM and VM(G).

8. It has been argued before us by the counsel for the respondents that not only the committees applied their mind, but various representations made by the petitioner were replied to by the respondents after looking into the record. Even at the time when the representations were being dealt with the respondents applied their mind and thus there is absolutely no reason or justification or reasonable ground as to why the decision of the two committees as well as the decision taken in response to the representations of the petitioner should be reviewed by the court, more so as the subject in question would be technical in nature and only members of the Armed Forces would be competent to take a decision in the matter.

9. We have heard the learned Counsel for the parties and given our thoughtful consideration to the matter. The first submission of the learned Counsel for the petitioner that the respondents have unilaterally not included the name of the petitioner in the list of Vayu Sena medal Gallantry is not factually correct as per the records and documents filed by the parties. It is noticed that prior to 1994 there was no distinction in the Vayu Sena medal Award for courage or devotion to duty and only w.e.f. 1998 onwards the name of the recipients for Vayu Sena medal for devotion to duty and courage were notified separately. Keeping in view this distinction representations were received from the recipients of pre 1998 Vayu Sena medal awardees to the effect that the distinction should be applied to their case also. After due consideration it was decided by the Ministry of defense that separate Committees should be constituted by the three services at a very senior level so as to work out the details after going through the records in order to arrive at a decision with regard to the Vayu Sena medal being for gallantry or otherwise. Along with the additional affidavit the respondents have filed a copy of a communication from the Under Secretary, Ministry of defense giving extract of the minutes of the meeting held on 7.9.1999. It would be useful to reproduce the aforesaid minutes at this stage:

MINISTRY OF defense

D (CEREMONTALS)

SUBJECT: Treatment of pre-1994 Sena, Nao Sena and Vayu Sena Medal series of awards given for act of gallantry as gallantry awards.

To finalise the issue raised in the JS(Military)'s note on the subject dated 24th June, 1998 , a meeting was held in the room of JS(G) on 07.09.1999 with the representatives Committee be constituted by the three services at a fairly senior level so as to work out the details after going through the records. More than two months have lapsed since then and no response has been received in this regard.

2. To avoid any further delay it is requested that the matter may please be processed on immediate basis. Present status of the case may be intimated by 30.11.1999.

Sd/-

(Y.K. TALWAR ) UNDER SECRETARY ARMY Hqrs AG's Branch (Brig. Ramesh Dixit, VSM, DDG(Cer))

MS Branch (Shri T.S. Sial, Dy. MS(X))

NAVAL Hqrs< (Cdr. R. Mahindra, DDPS(Cer))

AIR Hqrs (Wg. Cdr Vivek, DDPP-IV)

10. Initially the Committee gave its report on 25.1.2000. Copy of the report was filed by the respondents. The committee perused 753 citations in respect of Vayu Sena medals award prior to 26.1.1994 out of which they short listed total 180 names for Vayu Sena medal for the acts of courage/gallantry. In the report it has been mentioned that each member of the committee including the Chairman went through all the 394 citations individually and separately. Those names were marked for gallantry which were short-listed by all the three members of the committee. In addition thereto those names that were marked as gallantry either by one or two members only, were discussed by the committee to arrive at a final decision. Thus the final recommendations reflect both the individual and collective judgment of the Committee. In the report of the second Committee dated 21.6.2001 it was noticed that subsequent to the publication of the list of Vayu Sena medals for Gallantry mentioning 180 personnel, representations were received from the past Vayu Sena medal awardees saying that their award was also given for the acts of courage and, therefore, they should also be included in the list. After examining the representations it is noticed in the report of the second Committee that a need was felt to broaden the criteria for short-listing the past awardees with a view to ensure that no genuine case was left out. As per the terms of reference of the second Committee, the said committee was to review the recommendations of the earlier committee wherever necessary, to ensure that no deserving case was left out. The name of the petitioner did not find mention in the lists of both the committees. The petitioner has written various letters to the respondents dated 22.8.2002, 18.10.2002, 8.11.2002, 24.3.2003, 16.6.2003 and 26.1.2004, which include two letters to the Raksh Mantri . Copies of most of these letters have been filed on record. On perusal of the record it is noticed that each and every letter addressed by the petitioner to the respondents has been acknowledged by the respondents. In response to the communication dated 22.8.2002, Air Martial Narain Menon (as he then was) replied to the petitioner, stating that on receipt of the letter of the petitioner, he directed the concerned staff to once again review the matter. In response to letter dated 18.10.2002 Air Martial Narain Menon while acknowledging the aforesaid letter wrote back that "all the points brought out in your letter have been re-examined and it is reconfirmed that the V.M. was awarded to you for exceptional devotion to duty, the IAF values highly the contributions made by you in the formative years of service and looks forward to continued association with one of its stalwarts." In another communication dated 19.12.2002 the petitioner while giving the example of one Squadron Leader Oakley, who had been placed in the Gallantry list, pointed out that the case of the petitioner had been discriminated to that of above named Squadron Leader. Air Martial Narain Menon replied to the aforesaid letter and clarified to the petitioner that the said Squadron Leader Oakley had flown 94 hours of operational sorties in support of the army in Laddakh during the Chinese aggression and thus his case is clearly distinguishable. The fact that not one but all the letters of the petitioner were replied to by the respondents and the language suggests that even at that stage they applied their mind.

11. Having regard to the fact that two committees were appointed comprising of fairly senior members and the manner in which they short listed the names cannot be faulted with. It cannot be said that the respondents have acted unreasonably or arbitrarily or without any application of mind. In fact the petitioner had also personally met the Air Martial in charge (Personal) in the first week of December 2002 as has been admitted in the writ petition itself. It cannot be said that the respondents did not comply with the principles of natural justice. The courts have consistently held that the scope of judicial review is rather limited and the test is to see whether there is any infirmity in the decision making process and not the decision itself and merely because another view is possible this in itself cannot be a ground for interference.

12. The Hon'ble Supreme Court in the case of State of NCT of Delhi and Anr. v. Sanjeev reported at has held as under:

The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference.

One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co.). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn. at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows: The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.

13. During the course of arguments we had asked the learned Counsel for the petitioner whether the petitioner had suffered any financial loss due to the petitioner's name not being considered as VM (Gallantry), the learned Counsel for the petitioner had very fairly submitted that except for some concession from the Haryana Government, the petitioner in fact had not derived any financial benefit, since he was given the award. This concession by Haryana Government will continue, even in the present situation. In fact there is neither social or financial impact on the petitioner as VM and VM(G), both are written as VM after the name. As the decoration is written as VM, it does not reveal the nature of duty for which it has been awarded. Therefore, there is no change in social grace. No change had been carried out in the character of the award i.e., nomenclature, shape of medal, ribbon and order of precedence for wearing the award/medal.

14. In view of this it cannot be said that the petitioner has been put to a financial loss by not being considered as Vayu Sena Medal Gallantry awardee. During the pendency of the matter, the respondents had filed an additional affidavit. Together with the additional affidavit, respondents had annexed copies of citations of persons similarly situated as that of the petitioner. To support their argument that merely because the word courage appears in the citation it does not mean that the person is bound to be considered as having qualified for grant of Vayu Sena Medal (Gallantry). It is clear from the various citations produced that there are other persons similarly situated as that of the petitioner, who have not been included in the list of Vayu Sena Medal (Gallantry). There is thus no social or financial impact on the petitioner as he was not getting any monetary benefit in the past and there is no change in the character of the award i.e. nomenclature, shape of model, ribbon and honour of the precedents for wearing the award. Once the committees have applied their mind and various communications of the petitioner have been replied to and even at that stage also the respondents have reconsidered the case of the petitioner, there is no scope for this Court to substitute its decision.

15. For the aforesaid reasons, we find no grounds to interfere and accordingly the present writ petition is dismissed, but in the facts and circumstances of the case we leave the parties to bear their own costs.