Delhi High Court
Lt. Col. Nikhil Kumar Singh vs Union Of India And Ors. on 13 March, 2020
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2809/2020
LT. COL. NIKHIL KUMAR SINGH ..... Petitioner
Through: Mr. Shree Prakash Sinha, Mr. Anand
Kumar & Ms. Marina Wheeler, Advs.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Rajesh Gogna & Mr. Akshya,
Advs. with Ms. Aakanksha Kaul
(GP).
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER
% 13.03.2020
CM No.9800/2020 & CM No.9801/2020 (both for exemptions)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
W.P.(C) 2809/2020 & CM No.9799/2020 (for stay)
3. The petitioner, a Short Service Commissioned officer, having been
denied permanent commission in Army, approached the Armed Forces
Tribunal (AFT), New Delhi by way of OA No.410/2020, notice whereof
was issued on 2nd March, 2020 but interim order sought, of allowing the
petitioner to continue, declined. Aggrieved therefrom the petitioner has
preferred this writ petition.
4. The counsel for the respondents appearing on advance notice has
raised an issue qua the very maintainability of the petition. It is contended
that the remedy of a writ petition is not available as per the dicta of the
Supreme Court in Union of India Vs. Shri Kant Sharma (2015) 6 SCC 773.
Attention is however drawn to Bal Krishna Sharma Vs. Union of India
AIR 2020 SC 341, stating that though the same has opened a window for the
aggrieved persons to approach the High Court under writ jurisdiction, but
only in the case of patent irregularity in the order of the AFT. It is
contended that there is no such patent irregularity in the order of the AFT
declining interim relief to the petitioner.
5. The counsel for the petitioner per contra has contended that since the
impugned order is an interlocutory order and the remedy of appeal under
Section 30 of the Armed Forces Tribunal Act, 2007 having been expressly
barred, the petitioner would be left remediless if such petitions were not to
be entertained. It is also contended that the option under Section 31 of the
Act, of preferring a Special Leave Petition to the Supreme Court against the
interlocutory order, is also barred by Article 136(2) of the Constitution of
India.
6. On enquiry, we have been informed that this Bench, in the past, has
been entertaining similar writ petition.
7. I have thus asked the counsel for the petitioner to address on the
merits of the petition.
8. The counsel for the petitioner has contended that the Short Service
Commission of the petitioner expired on 18th March, 2016 but the petitioner
at that time was undergoing M. Tech. course in IIT, Madras and which was
concluded only in August, 2017 and the petitioner was granted extension till
then. It is further contended that after August, 2017, the petitioner was
granted extensions vide communications dated 15th March, 2018, 14th
September, 2018 and 15th March, 2019 at pages 73 to 75 of the paper book
and the petitioner is to be discharged on 17th March, 2020.
9. The counsel for the respondents has contended that the petitioner
applied for absorption in permanent commission in the ninth year of his
Short Service Commission but did not submit the medical papers therewith;
that the petitioner was granted extensions awaiting his medical papers and
ultimately has not been found to be medically fit for absorption. It is also
stated that the petitioner has been found in Low Medical Category P2, being
suffering from primary hypertension and a decision has been taken not to
absorb the petitioner in permanent commission.
10. The counsel for the petitioner has contended that the case of the
petitioner for permanent absorption has not even been considered.
11. The counsel for the respondents contends that the Short Service
Commission for ten years is extendable only for four further years and on
17th March, 2020, the fourteen years are expiring and the petitioner has not
been considered for permanent commission owing to Low Medical
Category.
12. The AFT, in the impugned order has denied interim relief reasoning,
that the petitioner being a Short Service Commissioned Officer and having
completed his contractual tenure and the petitioner, having been found to be
in Low Medical Category, the case of the petitioner was not a fit case for
granting interim protection. It was further observed that if ultimately OA
No.410/2020 is allowed, the petitioner can be granted all consequential
benefits and thus the question of the petitioner suffering any irreparable loss
did not arise and the balance of convenience was not in favour of the
petitioner.
13. We are of the view that the reasons given by the AFT for denial of
interim relief are cogent and do not require any interference in exercise of
powers under Article 226 of the Constitution of India.
14. Dismissed.
RAJIV SAHAI ENDLAW, J
SANGITA DHINGRA SEHGAL, J
MARCH 13, 2020
'gsr'..
