R.P. Dubey vs Chief Of Air Staff & Others
2014 Latest Caselaw 5596 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) No. 3742/2011
        R.P. DUBEY                                   ..... Petitioner
                           Through:     Mr. V.S. Tomar, Adv.

                           versus

        CHIEF OF AIR STAFF & OTHERS          ..... Respondents
                       Through: Mrs. Raman Oberoi, Adv.

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI
                         ORDER

%                        10.11.2014

KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Article 226 and 227 of the Constitution

of India, the petitioner seeks to challenge the impugned judgment dated

24.1.2011 passed by the Armed Forces Tribunal (AFT) dismissing his

TA /32/2010. The petitioner also seeks a writ of mandamus to direct the

respondents to grant extension of service to the petitioner for a further

period of 3 years with all consequential benefits like promotion, arrears of

pay and allowances and seniority etc.

2. The main contention raised by the learned counsel representing the

petitioner is that the application of the petitioner seeking grant of

extension was not considered by the Chief of Air Staff and the same was

disposed off by the Assistant Chief of Air Staff (Personnel Airmen &

Civilians), who was not competent to exercise the power in terms of the

Air Force Instruction 12/S/48 para 13(i). The submission of the learned

counsel for the petitioner is that once under the Statute, power has been

delegated to the Chief of Air Staff then any further delegation would be

sub-delegation, which is not permissible under law.

3. Another contention raised by the counsel for the petitioner is that

the "Severe Reprimand", which was awarded to the petitioner by his

Station Commander under Section 82 of Air Force Act, 1950 (hereinafter

referred to as the Act.) for a civil offence could not have been tried for

without taking prior sanction of AOC-in-C in terms of Section 83 of the

Act, which was never taken in the case of the petitioner.

4. We have heard the learned counsel for the parties.

5. The contentions raised by the counsel for the petitioner have been

convincingly dealt with by the learned AFT and we find no infirmity,

illegality or perversity in the reasoning given by the learned AFT. The

grant of further extension in service is not a right vested in the petitioner.

The benefit of extension may accrue to a person in service, on the

discretion of the employer in consonance with its policy and depending

on the service record of the applicant. This legal principle has been

explained in a catena of judgments and we may usefully refer to one of

the judgments of the Division Bench in the case of Sqt. Ranbir Singh v.

UOI and Others W.P. (C) 24786/2005 decided on 27.7.2006 wherein

dealing with the issue of grant of extension to a Sergeant in Indian Air

Force it was held as under:-

"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 cannot 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:

"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."

6. It can thus be seen that the grant of extension is not an indefeasible

right as the same has to be considered by the competent authority in terms

of the applicable policy guidelines. There cannot be any dispute that the

persons who have incurred one red ink entry in the preceding five years

would not be entitled even for consideration for grant of extension, but

this again would not mean that the consideration of one case would

confer any vested right in him to claim extension in service. So far as the

contention raised by the learned counsel for the petitioner that the

authority to grant extension has been vested in the Chief of Air Staff,

which could not have been further sub-delegated to Assistant Chief of Air

Staff (Personnel Airmen & Civilians) is concerned, this issue has been

adequately dealt with by the learned AFT. We do not find any reason to

differ with the reasoning given by the learned AFT. However, we found

no answer from the learned counsel representing the petitioner as to the

legality and validity of the earlier two extensions, which were granted in

favour of the petitioner by the same officer. Once having taken the

benefit of two previous extensions from the same officer the petitioner

cannot now turn around to challenge the said officer's competence when

he was denied the third extension. The other issue with regard to Award

of "Severe Reprimand" to the petitioner which resulted in the red ink

entry in his service record, this is an issue which cannot be raked up by

the petitioner now when no challenge to the same was earlier made by the

petitioner. There is no merit in the present petition. The same is hereby

dismissed.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

NOVEMBER 10, 2014 rkr