Delhi High Court
Pawan Kumar vs Union Of India & Ors. on 11 April, 2012
Author: Anil Kumar
IN THE HIGH COURT OF DELHI AT NEW DELHI
WRIT PETITION(C) NO.5602/2011
AND
CM NOS. 11430 & 12631/2011
PAWAN KUMAR ..... Petitioner
Through Mr. Arvind Nayar, Advocate
versus
UNION OF INDIA & ORS. .... Respondents
Through Ms. Barkha Babar, Advocate for
respondent Nos. 1 & 2
Mr. Rajat Arora, Advocate for
respondent Nos. 3 & 4
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ORDER
11.04.2012
ANIL KUMAR,J.
The learned counsel for the petitioner has drawn our attention to
his application dated 15.06.2011 seeking discharge from the Air Force.
By that letter, he has stated that due to his colour blindness, he would be
deprived of the opportunity for a commission in the Air Force since he is
unfit to sit in the GDOC examination, and hence his request for discharge
may be considered sympathetically. In passing, he had also informed the
authorities that he has been selected for the post of probationary officer in
Bank of India. We notice that his application was also recommended for
acceptance "on sympathetic grounds" by the petitioner's Section
Commander. This was, however, turned down by the superior authorities
on the ground that he is "not eligible for discharge from service as per
policy". His request was, therefore, rejected.
We notice that the petitioner's Section Commander has considered
his application in the proper perspective pointing out that although the
petitioner is not eligible for discharge in terms of AFO 14/08; the
petitioner is, in fact, seeking discharge, "on the ground that he is colour
blind and his future prospects in Air Force as an officer cannot be
envisaged". In other words, he is seeking discharge on compassionate
grounds because of the unavailability of the opportunity to serve the Air
Force as an officer. Consequently, the Section Commander forwarded
the application with his recommendation that the same be considered on
sympathetic grounds.
Our attention has been drawn to the Air Force Order No. 16 dated
19.09.2008 which envisages discharge from the service in exceptional
cases on compassionate and other grounds before the expiry of their
regular engagement. This policy, inter alia, contains clause 2(f) which
states as follows:
"(f) Other valid personal reasons deserving sympathetic
consideration."
We have also noticed that at the time when the petitioner was
initially offered recruitment as an Airman, he was never informed that
whilst he is fit to be appointed as such, he would be ineligible to seek
appointment as a commissioned officer by sitting in the GDOC
examination because, unlike most others who are being offered similar
recruitment, he suffers from colour blindness and has been placed in
medical category A4G1(CPIV). In other words, it cannot be said that he
accepted his initial appointment with the full knowledge that the
opportunity to seek commissioned service as an officer in the Air Force
would never be available to him in contrast to others who were similarly
appointed.
Counsel for the respondent, on instructions, states that, in fact, the
case of the petitioner was never considered under AFO 16 dated
19.09.2008 and the respondents have merely considered the petitioner's
request in terms of AFO 14/08 which deals with seeking discharge on the
ground that they have been offered civilian employment.
We are satisfied that the respondents have missed the point
altogether. What an applicant does after he is discharged is of no concern
to the Air Force. Merely because he has mentioned his future course and
prospects, which he thinks are available to him, while seeking discharge
from the Air Force on sympathetic or compassionate grounds, could not
have been taken to mean that he is seeking discharge in terms of AFO
14/08. In fact, his case deserves consideration under AFO 16 dated
19.09.2008.
What was in the mind of a petitioner when he sought recruitment as
an Airman, who is otherwise found fit, was obviously that the entire
gamut of rights and opportunities normally available to every Airman,
would also be available to him. This included the chance of selection as a
commissioned officer and he had no way of knowing at that time that, in
his case in particular, this would not be available to him. Had he known
it at that time, it was always open to him to refuse the offer of
recruitment. In any case, since the petitioner was not made aware of his
medical category at the time of his recruitment, as also the curtailment of
his future prospects within the Air Force for that reason, his consent for
recruitment cannot be taken to be an informed consent.
Under the circumstances, the respondents are directed to consider
the request of the petitioner for discharge under AFO 16 dated
19.09.2008, particularly under clause 2(f) thereof, keeping in mind the
above observation of this Court. The grounds raised by counsel for the
petitioner in his writ petition as also in his application dated 15.06.2011
may also be taken into consideration.
Needful be done within four weeks and the orders passed after due
consideration be intimated to the counsel for the petitioner before the next
date of hearing.
List on 16th May, 2012.
Interim order to continue.
Dasti.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
APRIL 11, 2012
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