Delhi High Court
Sgt. Shukla 'P' Pa, Sgt. Dagore J.S. Clk ... vs Union Of India (Uoi) And Ors. on 30 September, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. These petitions involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. However, the fact of the matter would be noticed from CW 3033/2002.
2. The petitioner joined the Air Force as Airman in the rank of clerk PA on 22nd April 1981. He was promoted to the post of Corporation in 1986 and Sgt. in August 1993 upon passing the requisite examination. In July 1997, he was detailed for conversion course which was a pre-condition for promotion to the rank of Junior Warrant Officer.
3. In July 1999, the petitioner gave his unwillingness to serve the Army any more after twenty years as per rules. He, therefore, refused to enhance his terms of service engagement. He underwent pre-release training of one year for each settlement from August 1999 to July 2000. However, in August 2000, when he joined back the PRC, he was informed that his order of discharge had been cancelled. The service of the petitioner was extended up to 30th September, 2002 on the basis of an undertaking while going on conversion course.
4. The petitioner allegedly had given the undertaking while going on pre-release training that he would not pray for cancellation of his discharge order. However, giving an opportunity to the petitioner, the said discharge order was unilaterally cancelled. On or about 4th August, 2000, the petitioner requested the Air Commanding Officer to retain his date of discharge as 30th April 20001 in terms of discharge order No. 50/2000 instead of 27th September 2002 as per CDO List No. 619/2000. But by an order dated 5th September, 2002, the said prayer was rejected stating:
"Discharge: Airmen 673162L SGT Mishra SN CLK PA
1. Reference is made to your letter C/A/O/767/1/P3 dated 22 Aug 2000.
2. It is intimated that the SNCO had completed Clk Accts conversion course from 21 Jul 97 to 28 Sep 97 and given undertaking to serve for five years on completion of course. Hence he is to be retained in service till undertaking period i.e. 27 Sep. 2002 though his RE expiry is 21 Apr 2001.
3. This is not the single case of the SNCO who has been retained in the service. All the airmen who have given undertaking due to Posting Abroad, Deputation and course abroad or courses in India are being retained in service till undertaking period. Even under-mentioned SNCOs of your unit who had given undertaking for the Clk Accts conversion course are retained.
RE UTRE 671782R Sgt Monda R P Clk PA AFCAO 29.06.2000 12/2001 673041N Sgt Das N Clk PA AFCAO 19.04.2001 00/2003
4. Hence contention of the SNCO as mentioned in para 1(c) of his application that forced retention in service up to 29 Sept 2002 because of not fault of his is not correct as SNCO had given undertaking to serve for five years on completion of course."
5. The petitioner appeared for JWO Part-II examination. He thereafter prayed for change of his option from 'unwillingness' to 'willingness' as allegedly by that time his plans of resettlement had been shattered wherein he requested:
"2. In view of the above said facts, your kind honour is requested to accept my change of option from unwillingness to willingness for further extension of service. Your sympathetic action will help me in a big way to tide over the impending crisis of job in security due to retaining me in service for one year and five months only after RE date."
6. However, by reason of an order dated 28th May 2001, the prayer was refused stating:
" Change of Option: Airmen 673162L SGT Mishra SN CLK PA
1. Reference is made to your letter CAO/776/1/P3 dated 18th May 2001
2. It is intimated that the present term of the Engagement in respect of the above named SNCO had expired on 21 Apr. 2001. However he is retained in the service till undertaking period i.e., 27 September 2002, as he had undergone Clk Accts conversion course from 21 July 97 to 28 Sep 97 and given undertaking to serve for 05 years on completion of the course.
3. The SNCO has also not passed his promotion Examination 03 months before his RE expiry as stipulated in para (d) and para 5(c)(iv) of AFO 11/90.
4. In view of the above, the application for grant of Extension of Engagement in respect of the above named SNGO is returned herewith unactioned."
7. The petitioner made a representation thereagainst in terms of his letter dated 5th July 2001. However, the same was not acceded to.
8. The respondents, however, contended that although the original period of regular engagement (RE) of the petitioner was up to 21st April 2001, in view of undertaking given at the time of the conversion course to serve up the to September 2002, his engagement stood extended. He could be retained in service provided he passed the promotion examination three months prior thereto. It is contended that having regard to para 4(h) of AFO 11/99, not only an undertaking is required to be given but also application therefore and as no such application was submitted by him, no order for extension of his engagement could be passed.
9. Further contention of the respondent is that there exists a distinction between period of C.E. and extension of Regular Engagement.
10. The question which arises for consideration in this writ petition is as to whether having regard to the fact that the petitioner was permitted to sit at the examination which was held in the month of February 2001 and the result whereof was published in April 2001, he had, inter alia, fulfillled the pre-conditions laid down in the afore-mentioned Air Force Order No. 11/99 or not.
11. Mr. Kaushik, the learned counsel appearing on behalf of the petitioner would submit that the matter relating the extension of his service is governed by the provisions of statutory rules and having regard to the fact that in terms of para 253(d) of the Regulations, a person undergoing the training is required to serve a period of six years, AFO 11/99 cannot supersede the same. According to the learned counsel, the refusal on the part of the respondent herein to grant extension to the petitioner, inter alia, on the ground that the had failed to pass the examination during initial RE till 31st March 2001 must be held to be bad in law inasmuch in a situation of his nature, date of appearance in the examination should be treated to be date of passing of the examination.
12. The learned counsel would contend that the AFO 11/99 could not have been applied retrospectively so as to take away the right of the petitioners. The learned counsel would submit that the respondents had filed application as also the certificate and in that view of the matter, it was obligatory on their part to extend the period of service.
13. Mr. Jayant Bhushan, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the provisions of para 4(d) and 4(h) of AFO 11/99 are mandatory in nature and it was, therefore, obligatory on the part of the petitioner to pass the said examination three months prior to expiry of his RE. According to the learned counsel, there exists a distinction between the period of CE and the period of RE. It was reiterated that the petitioner did not file any application for his extension and further he did not submit his CE at the time of his application. The learned counsel has relied upon an unreported decision of this court in JWO Shankar v. Union of India and Ors., LPA No. 416/98 decided on 24th September 1998.
14. The terms and conditions of service of Airmen are governed by Air Force Instructions 12/S which has ben published in the Gazette on 24th July 1948. It is not in dispute that in terms of para 253 to the regulations upon passing the examination, an undertaking has to be given by the candidate concerned that he is to serve the RE for a period of six years. In the case of the petitioner, in ordinary course, he was prepared to serve the Army for a period of six years from 30th March 2001. RE of the petitioner was to expire on 19th April 2001. He applied for extension on 1st October 1999 for a period of six years from the date of completion of his RE. As noticed hereinbefore, his prayer for extension was rejected only on the ground that he had not passed the examination for promotion three months prior to expiry of his RE.
15. It is not in dispute that the examination was held in February 2001. It is also not in dispute that the petitioner was permitted to appear at the examination. Even certificate had been granted in his favor. However, the results were published only in April 2001.
16. Para 915 and 917 of the Army Regulations read thus:
"915. Air force instructions.--All Government of India sanctions of a general nature of those which affect an appreciable number of units, individuals or classes of individuals will be published as air force instructions. All decisions of this kind will be published in a self contained and compact from clarifying their meaning without necessitating any reference to other books or documents."
"917. Air Force Order.--Air Force orders will be issued by the Chief of the Air Staff on matters of an administrative nature affecting the air force formations and units as a whole."
17. In the afore-mentioned backdrop, the provisions of the Air Force Order 11/99 are required to be considered. The relevant provisions thereof read thus:
"1. The initial term of engagement for airmen is 20 years vide para 12 of AFI 12/S/48, amended vide AFIs 19/77, 15/79 and 21/79). There being no other type of engagement prevailing at present, this AFO lays down the detailed procedure for grant of extension of engagement beyond the initial term of engagement.
2. On completion of initial term of engagement, an airman may be granted extension of engagement for a further period of six years to complete 26 years' regular service subject to general principles explained in para 3 and 4 below. Thereafter, extension (s) of regular engagement may be granted for a period of three years at a time of such shorter period, as deemed fit, up to the age of superannuation subject to fulfillling the conditions mentioned in paras 3 and 4 below. The discretion for grant of extension of engagement has been delegated to Air Officer I/o AIR Force Records except n specific cases as mentioned in para 8 below which will be exercised by AIR HQ.
4.(a) to (c) .....
(d) Passing of Promotion Examination:
Extension of engagement will be granted only to those airmen who have passed all parts of their promotion examination which make them eligible for promotion to their next higher rank. However, those airmen who have already appeared at promotion examinations before submission of their applications for grant of extension or those who are likely to appear at such promotion examinations which will make them eligible for promotion to the next higher rank may be considered for grant of extension of engagement if they pass the promotion examinations three months prior to the expiry of their regular engagement. Airmen who do not attain the rank of Cpl within 15 years will be discharged by AOIC AF Records vide para 12(a)(i) of AFI 12/S/48 as amended by AFI 21/79.
(h) Certificate of Undertaking (CoU):
Airmen who proceed abroad for course or on deputation or on posting and those who are detailed for special courses in India are to give Certificate of Undertaking (CoU) to serve for specific/extended period of engagement for reasons of having undergone courses in India/Abroad or having been posted to foreign countries etc. Such CoU must invariably be submitted Along with applications for extension of engagement for a period till the date of their net "Due RE' even if it exceeds the prescribed period of Undertaking as extension of engagement could be granted only for a period of 06 years or 03 years as explained in Para 2 above. Copies of such applications must be forwarded to AFRO (O i/c Recording Wing) immediately.
....."
18. It is not in dispute that the matter relating to extension has been provided for the first time by reason of the afore-mentioned Air Force Order No. 11/99. Although normally the grant of extension should be considered to be discretionary in nature, but having regard to the policy decision adopted by the Chief of Army Staff, the provisions have to be considered taking into consideration the facts and circumstances of the present case.
19. The petitioner herein wanted a discharge. He was denied the said benefit purported to be on the basis of his undertaking furnished at the time of undergoing the conversion course. Such an act on the part of the respondent was an unilateral one. The petitioner, however, was bound to serve the respondents for a further period of 18 months. On 13th June 2000, the petitioner herein was informed:
" Extension of engagement: AIRMEN
1. The under mentioned airmen of your units, have submitted application for extension of engagement/unwillingness/not submitted any option as shown against their names:-
Sl.
No Service number Rank Name & initial Trade Units RE-expiry Criteria DO No. UTRE Remarks 01 672518 -S Sgt Dagore JS Clk EA 38 Wg 08.01.2001 Not passed Prom. Exam 272/ 99 27.09.2002 Clk Accts.
Con course 02 673008 -S Sgt Shukla P Clk PA 4 Wg 19.04.2001
-do-
37/2000 27.09.2002
-do-
03. 073158 -B Sgt Pathak RU Clk PA 2203 Sqn.
20.04.2001
-do-
37/2000 27.00.2002
-do-
04. 673182 -K Sgt Mishra SN Clk PA AFCAO 21.04.2001 Unwillingness /not passed 50/2000 27.09.2002
-do-
05. 672094 -F Sgt Kumar A Clk PA 17 Wg 03.10:2000 Discharge order issued in absence of option/ not passed 231/99 27.09.2002
-do-
06. 654542 -G Sgt Singh B Elect. Fit 115HU 21.04.2001 Discharge order issued in absence of option 50/2000
---
Danla Alwage (Sierria Leon) since Mar. 2000
07. 654575 -T Sgt Y Chandra Rad Fit 109 HU 21.04.2001 Unwillingness 50/2000
---
-do-
2. These airmen have not passed their promotion examinations/submitted unwilingness certificate/not submitted any option hence they are not granted extension of engagement. The discharge orders issued in respect of these airmen are being cancelled. However, they are being retained in the service till undertaking period for the reasons as shown against their names.
3. The grant of extension of engagement is governed under AFO 11/98. As per para (4) of this AFO, those airmen mentioned above who have not passed their promotion examinations may be advised to pass their promotion examinations in time to be eligible for grant of extension of engagement."
20. It is true that even in terms of the said letter, the petitioners were required to comply with para 4(d) of the said AFO 11/99. However, there is nothing on record to show that any examination was held immediately thereafter. Admittedly, examinations were held in January/February 2001 wherein the petitioners were permitted to appear. If the intention of the respondents was not to grant extension to the petitioners, there was absolutely no reason as to why the petitioners were allowed to appear at the said examination. It will bear repetition to state that not only the permission to appear at the said examination had been granted but even certificate thereof had been issued. The petitioner had no hand in the delay of holding the examination or in public of the result. Furthermore, the petitioners are required to serve till 30th September 2002. The result of the examination was published in April 2001.
21. The matter might have been different had such re-engagement was permitted or an order of extension was to be issued within a period of three months from the date of publication of the result.
22. The Apex Court in Shri Krishan v. The Kurukshetra University, held that when a candidate was allowed to appear at the examination, they had no jurisdiction to cancel his candidature therefore. The principle of acquiescence in that case was applied against the university. It was held:
"7. It appears from the averments made in the counter-affidavit that according to the procedure prevalent in the College the admission forms are forwarded by the head of the Department in December preceding the year when the Examination is held. In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May 1972. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinize thefrom in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither the Head of the Department nor the University authorities took care to scrutinize the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant...."
Almost a similar situation arises in this case.
23. Public interest demands that the experience gained by the petitioner for passing the examination should be utilized. The respondents have spent a lot of money towards giving training to the petitioners. Public interest demands that the respondents utilise the same.
24. It is now well settled that in the event, all the pre-conditions for exercise of discretion are satisfied, the court can also in exercise of jurisdiction under Article 226 of the Constitution of India can exercise the same power as that of the statutory authority (see The Comptroller and Auditor General of India, Gian Pakash, New Delhi and Anr. v. K.S. Jagannathan and Anr., .
25. In the instant case, the other conditions stand satisfied. The petitioner has filed application as also annexed his certificates. In this view of the matter, we are of the opinion that it is a fit case in which the respondents ought to have granted extension to the petitioner.
26. In view of the above, these civil writ petitions are allowed, however, without any order as to costs.