Amardeep Dabas vs Union Of India And Ors
2013 Latest Caselaw 5455 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+            W.P.(C) No.1250/2013 & CM No.2369/2013

                                     Date of decision : 26th November, 2013

             AMARDEEP DABAS                                       ..... Petitioner
                          Through       Mr.S.S. Pandey, Adv. with petitioner
                                        in person.

                                        versus

             UNION OF INDIA AND ORS             ..... Respondents
                      Through  Mr.Pavan Narang, Adv. with
                               Mr.Anish Dhingra, Adv. &
                               Ms.Vasundhara Chauhan, Adv.

     CORAM:
     HON'BLE MS. JUSTICE GITA MITTAL
     HON'BLE MS. JUSTICE DEEPA SHARMA

     GITA MITTAL, J. (Oral)

1. The petitioner in the instant case has assailed the judgment dated

4th February, 2013 passed in OA No.4 of 2013 Cpl. Amardeep Dabas Vs.

Union of India & Ors. by the Armed Forces Tribunal. A challenge was

laid before the Tribunal to an order dated 3rd December, 2012

communicated to the petitioner under cover of a letter dated 11 th

December, 2012 cancelling his candidature for commissioning as a flying

officer in the Indian Air Force.

2. To the extent necessary, the facts giving rise to the instant petition

are briefly noted hereafter.

3. The petitioner was enrolled in the Indian Air Force on 22nd June,

2000 in the post of Airman. In June, 2001, he was appointed as Leading

Aircraftman and in July, 2005, was promoted to the post of Corporal.

Between 2001 to 2005, the petitioner was employed on security duties at

a forward Air Base i.e. 11th Wing Air Force Station, located in Tezpur,

Assam.

4. On 9th August, 2005, a court of inquiry was ordered by the

respondents against the petitioner based on a complaint made by a

civilian on the following grounds:-

"(a) Entering house of Shri Pinku Chetry, resident of Goraimari, in his absence, and forcing his wife to hand over a civil driving license belonging to Shri Sarkar.

(b) Committing forgery by submitting fake address certificates and other documents bearing signatures and stamps of different units/sections of 11 Wing, to District Transport Officer, Tezpur, for procuring driving licences for civilians.

(c) Committing forgery by making a fake Service Driving Licence, for the purpose of obtaining a Heavy Motor Vehicle (HMV) civil during licence for Shri Pinku Chetry.

(d) Involvment in making Civil Driving Licenses for Civilians from DTO, Tezpur, on commission basis ranging from Rs.1000/- to Rs.2500/-."

5. The court of inquiry was ordered to inquire into the involvement of

the petitioner. It is undisputed that in this court of inquiry, on the 4 th

June, 2007, the Air-Officer-Commanding-in-Chief in Headquarters,

Eastern Area Command (EAC), after considering the material against the

petitioner, awarded severe displeasure for 18 months. In addition, the

petitioner‟s case was processed for change of trade on disciplinary

grounds. His trade was changed from the Indian Air Force Police to

Environment Support Service Assistant (ESSA). It is undisputed before

us that the petitioner submitted his willingness to the change of trade as

well. It appears that with effect from 1st July, 2009, the petitioner was

promoted to the rank of Corporal as well.

6. In respect of these allegations, a show cause notice dated 16th

January, 2007 was issued to the petitioner to show cause as to why he

should not be removed from service under Section 20(3) of the Air Force

Act, 1950 read in conjunction with Rule 18 of the Air Force Rules, 1969,

on account of blameworthiness for the above allegations. The petitioner

submitted a preliminary as well as a detailed reply to the notice. After

considering the entire facts and circumstances of the case and the replies

submitted by the petitioner, he was still found blameworthy by the AOC-

in-C, EAC for the following lapses:-

"(a) Entering house of a civilian i.e. Shri Pinku Chetry in his absence, and pressuring his wife to hand over a Civil Driving License belonging to Shri Sarkar, and

(b) Involvement in making Civil Driving License for Civilians from DTO, Tezpur, on commission basis ranging from Rs.1000/- to Rs.2500/-."

The AOC-in-C EAC, has therefore, awarded to the petitioner his

`severe displeasure‟ for 18 months on 4th June, 2007.

7. We may note that censure awarded to the petitioner as well as the

change of trade from the Indian Air Force Police to ESSA, has not been

challenged by the petitioner by way of any statutory appeal or by way of

the present writ petition.

8. Apart from this censure, in respect of the loss of luggage by the

petitioner, he was awarded a red ink entry on the 14th of October, 2008

and a black ink entry on the 28th May, 2009.

9. It appears that the respondents invited applications from eligible

and desirous Airman to apply for the Ground Duty Officers Course

(hereinafter referred to as `GDOC‟). The petitioner claims to have

applied for 131, 132 & 133 Ground Duty Officers Courses. The

petitioner could not clear the selection process for the 131 & 132 GDOC.

10. The instant case relates to the petitioner‟s application for the 133

GDOC and confines its challenge to the same. Applications for this

course were invited vide a communication dated 8th December, 2011.

The petitioner has claimed that he satisfied all eligibility requirements

and had submitted application in compliance of the laid down procedure

prescribed in the advertisement. It is also urged that as per the applicable

procedure, the application was processed by the Board of officers and his

case was recommended to the Command Headquarter for inclusion in the

written examination. The petitioner submits that he not only qualified the

written examination but also the interview which was held by the Air

Force Selection Board and he was included in the list of successful

candidates. In the medical test conducted on 7th July, 2010, he was found

medically fit. Despite the above, the petitioner‟s name did not feature in

the list of successful candidates published on the website on 20 th

December, 2012. The petitioner was informed on 24th December, 2012

by his Commanding Officer that his name was not included in the list of

successful candidates for such commissioning and that his candidature

has been cancelled because of the afore-noticed censure awarded to him

in the year 2007. The petitioner has also submitted that he learnt that the

respondents had proceeded with the cancellation of his candidature based

on para 38(f) of AFO 3/2008.

11. The challenge by the petitioner rests primarily on the ground that

the petitioner‟s application and candidature was required to be processed

in terms of AFO 39 dated 3rd November, 2006 wherein procedure for

commissioning has been prescribed. It is urged that once the petitioner‟s

candidature was cleared by the Board as well as Headquarters and that he

had successfully undertaken not only the written examination but the

interview as well as medical examination, no discretion was available to

any other person to reject the petitioner‟s candidature on merit.

12. So far as the AFO 3 dated 18th January, 2008 is concerned, it is

urged by Mr.S.S. Pandey, learned counsel for the petitioner that in terms

of Clause 38(a), the award of censure can be considered only once by the

authority or the Board of Officers before whom the Airman‟s case came

comes up for consideration after award of the censure. The submission is

that the petitioner having crossed the stage of first consideration by the

authority and his candidature having been approved by the Board of

Officers, for this reason as well, no discretion lay with any authority for

rejecting the petitioner‟s merit and that the petitioner was entitled to

commissioning with the Indian Air Force in terms of the laid down

procedure.

13. The issue which has been considered by the Armed Forces

Tribunal and has been pressed before us, is as to the manner in which the

respondents would be required to consider the candidature for Airman for

commissioning in the Indian Air Force.

14. Given the limited issue which has been pressed before us, we may

usefully advert to the prescription contained in Air Force Order 3 of

2008; which standardises aspects with regard to processing, conduct and

conclusion of disciplinary and administrative action in respect of the Air

Force personnel. As per the introduction to the Air Force Order 3 of

2008, it provides guidelines on important issues directly or indirectly

relating to disciplinary/administrative actions which were not specifically

laid down in any other Air Force publication. We may usefully advert to

the paragraph 38 of the Air Force Order 3 of 2008 which is captioned

"Effect of Censure", the relevant portion whereof reads thus:-

"Effect of Censure

38. (a) The award of Censure will be considered only once by the authority or Board of Officers before which the airman‟s case first comes up for consideration after the award of Censure. The award shall be considered irrespective of the currency of the Censure.

(b) Censure awarded to an airman will be considered while deciding his suitability or otherwise for his promotion to the next higher rank only e.g. if an airman incurs Censure in the rank of JWO. Such award shall be considered for grant of acting rank of WO only. To determine suitability of the airman for promotion, the gravity of misconduct, the authority which censured the airman and the period for which the Censure was awarded would be taken into account.

(c) The award of Severe Displeasure and `Displeasure‟ shall carry negative marks while considering an airman for promotion to the acting rank of JWO, WO and MWO. If such award of Censure has not been considered on on any earlier occasion. The basis for awarding negative marks shall depend upon the status of the authority that censured the airman and in case of Severe Displeasure, besides the authority, the period for which the Severe Displeasure was awarded will also be taken into consideration. If after taking into account the negative marks for the award of Censure, the airman is cleared for promotion, then, the currency of `Severe Displeasure‟ will not be the ground to deter his promotion.

xxx xxx xxx

(f) The Censure shall also be taken into consideration by the competent authority for

considering suitability of airmen for commissioning important assignments and courses postings abroad courses abroad extension of service etc."

(Emphasis supplied)

15. While the petitioner has placed reliance on para 38(a), the

respondents have relied on para 38(f) afore-noticed both before the

Armed Forces Tribunal as well as in the present proceedings. It is

noteworthy that sub para (a) only states that censure will be considered

only once. The instant case is concerned with accelerated commissioning

into the officer rank of the Air Force, pursuant to a competitive

examination and an interview which is prescribed. The issue, therefore,

does not relate merely to eligibility of the person participating in the

examination and the selection process but also, after his meeting the

eligibility criterion and his successfully undertaking the written

examination and interview, the suitability of such candidate for the

appointment. It has thus been left open to the competent authority to

consider suitability of the candidates to such commissioning as well. The

scheme of para 38 shows that in sub para (f) it mandatorily provides that

a censure given to a candidate, shall also be taken into consideration by

the competent authority for considering suitability of the Airman for

commissioning into the Air Force. The use of the expression `also‟

clearly shows that the power under Section (f) is additional to the power

conferred on the authority in paras (a) to (e). Sub para (f) is strictly

related to „commissioning‟ with which we are concerned in the present

case.

16. We may note that Air Force Order 3 of 2008 was issued w.e.f. 18th

January, 2008 and was applicable to the Selection Process conducted by

the respondents. This fact is undisputed. Therefore, the rigors of para

38(f) of Air Force Order 3 of 2008 had to be applied by the respondents.

17. In view thereof, the vehement submission of learned counsel for

the petitioner that the censure could have been considered only by the

authority who first considers the petitioner‟s application and recommends

the same or the Board of Officers before whom Airman comes up after

award of censure, is without any merit and has been rightly rejected by

the Armed Forces Tribunal.

18. It is noteworthy that the original record of the case has been

scrutinized by the Armed Forces Tribunal. The same has been produced

before us as well. Given the detailed finding returned by the Armed

Forces Tribunal with regard to the unsuitability of the petitioner based on

his antecedent record, it is not necessary for us to repeat the findings.

19. Learned counsel for the petitioner has submitted that given the

dicta of the Supreme Court dated 13th September, 1996 entitled Jahar

Singh Vs. Union of India & Ors., the petitioner‟s candidature could not

have been cancelled by the respondents. In this case, cancellation of

Jahar Singh‟s candidature for appearance for the PO & RMS Accountant

examination was challenged. Jahar Singh had been granted unqualified

and unconditional permission to participate in the examination and he had

also been informed that he had qualified for the post. The Supreme Court

noted that the respondents had been unable to produce any rule or circular

which empowered the respondents to cancel his candidature. The

Tribunal had set aside the order cancelling the candidature of the

petitioner yet had not granted relief. It was in this background that the

Supreme Court had accepted the appeal filed by Jahar Singh and had

directed the respondents to grant the benefit to him. No principle of law

as urged by the petitioner has been laid in this judicial pronouncement.

The judgment has been rendered in the facts of the case we have noted

heretofore.

20. It is an admitted position before us that the petitioner was awarded

a censure. There is a mandate in para 38(f) of AFO 3 of 2008 that the

censure awarded to him was mandatorily required to be taken into

consideration by the competent authority for considering his suitability

for commissioning. The competent authority would be the authority

considering the petitioner‟s candidature for issuance of the offer of

appointment. In the instant case, no offer of appointment had been issued

to the petitioner.

21. It was at this stage that the respondents arrived at a finding of

unsuitability of the petitioner for commissioning and rejected his

candidature. No right, therefore, would flow in favour of the petitioner,

merely because the respondents had overlooked para 38(f) while

considering his application and permitting him to participate in the

examination and interview.

22. Learned counsel for the petitioner has urged that so far as the

permanent commissioning of an airman in the Indian Air Force is

concerned, the procedure, therefore is prescribed in the AFO 39 of 3rd

November, 2006 and reliance has been placed on para 3. Mr.Pandey,

learned counsel for the petitioner has urged that in terms thereof the

petitioner‟s case having been recommended by his station-in-commander

and the same having been scrutinized by the Board of Officers, no

discretion remained with the authorities to cancel his candidature.

23. We may usefully extract the provisions contained in para (e) of sub

para 3 of Armed Force Order 39 which reads as follows:-

"(e) Airman who incurred any Red Ink Entry in Sheet Roll, due to lack of integrity, moral turpitude, financial irregularities or such other act of misdemeanour or against whom criminal proceedings or investigation/inquiry of such a nature are pending which in the opinion of Commanding Officer make them unfit for commissioning, shall not be considered for commissioning. Further, airmen who incurred more than one Red Ink Entry for any type of offence in the preceding five years will not be considered for commissioning. Commanding Officers of such applicants will ensure that their applications are not forwarded."

24. The stipulation in para (e) is clear and unequivocal. It renders

Airmen who have incurred more than one red ink entry for any type of

offence in the preceding five years, not eligible for consideration for

commissioning. A mandate is given to the commanding officer to ensure

that such applications of such applicants are not forwarded. Para (e) also

stipulates that Airmen who have incurred any red ink entry in the sheet

roll due to lack of integrity, moral turpitude, financial irregularities or

such other act of misdemeanour which in the opinion of commanding

officer make them unfit for commissioning, shall not be considered for

commissioning.

25. It is trite that merely because a person has been brought on the

merit list, does not give a person right for appointment. The appointing

authority is within its right to examine the suitability of the person

concerned for his appointment. The authority may be required to record

reasons for effecting appointment of a person who is on the merit list.

26. The Tribunal has noted that the original file placed before it

showed the reasons recorded for not appointing the petitioner. The

Tribunal has noted that the record showed that the subordinate officer had

erred in making the recommendations of the cases petitioner. The

respondents have stated that the petitioner was permitted to apply for the

written as well as the Air Force Selection Board interview due to

oversight of understanding of AFO 3 of 2008 by the Board of Officers

completed at the station level. This was pointed out by the Directorate of

Intelligence and remedial measures were taken resulting in cancellation

of the petitioner‟s candidature. The record of the respondents includes

the inputs received from the Directorate of Intelligence which are also

against the selection of the petitioner.

27. The record of the respondents shows that an inquiry was conducted

with regard to the recommendations of the petitioner‟s candidature by the

Station Commanding Officer as well as the Board of Officers and the

possibility of misinterpretation of the applicable Air Force orders which

may have resulted in the recommendation of the petitioner‟s candidature.

28. The petitioner has placed before us the directions made by the

respondents in the communication dated 13th December, 2012 reiterating

the position that the procedure for commissioning of Airman as laid

down in Air Force Order 39 of 2006 has to be read in conjunction with

para 38(f) of Air Force Order 3 of 2008.

29. In view of the above, the challenge laid down by the petitioner is

hopelessly misconceived and is hereby rejected.

The writ petition is dismissed.

CM No.2369/2013

30. In view of the writ petition having been dismissed, this application

does not survive for adjudication and is dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE

NOVEMBER 26, 2013 aa