Punjab-Haryana High Court
Major Amarinder Singh Mehar vs Union Of India And Others on 18 September, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.13100 of 2013
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.13100 of 2013
Date of Decision: 18.09.2013
Major Amarinder Singh Mehar ..... Petitioner
Versus
Union of India and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Salil Sabhlok, Advocate,
for the petitioner.
Mr. Rupinder Khosla, Assistant Solicitor General and
Mr. Sanjay Joshi, Senior Panel Counsel, UOI,
for the respondents.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
The case of the petitioner is that he was commissioned in the Indian Army and posted with 1821 Rocket Battalion (Artillery Regiment) as Lieutenant in 2006. He earned his wings on 18.11.2010. He pleads that in the Aviation Wing, an officer has to complete his CR (Combat Ready) Syllabus which is to be spanned within 6-8 months of being posted there. It is the duty of the Flight Commander and Squadron Commander to ensure that an officer deputed completes his CR Syllabus within the stipulated time frame of 6-8 months. Till date the petitioner has completed 108 hours of solo and about 18 hours as co-pilot flying. Petitioner has been in the present unit for more than two and half years but has not been given even a chance to appear in the GEB and neither his CRS has been completed. The Mittal Manju 2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.13100 of 2013 -2- petitioner has alleged vendetta and bias of respondent No.3 who is Lieutenant Col. in the Army against him. It is his case that because of bias and vindictiveness, the petitioner has not been able to complete the stipulated hours of flying as required to complete the CRS which remain incomplete. He claims that aviators in Army Aviation who joined the Squadron after him and his juniors in the Army have completed their CRS in the stipulated period of 6-8 months and have been categorized successfully. The petitioner remonstrates that career has been destroyed by the 3rd respondent who has made constant wrong entries in the Blue Book/Log Book of the petitioner that have to be filled and remarks of the Flight Commander and Squadron Commander recorded therein. He pleads that he is one of the finest pilots the Army has and for this reason, he has been deployed time and again to fly the Army Commander who is listed in the category of Very Important Persons by the Government of India which is a measure of his expertise.
The petitioner has approached this Court against the order dated 09.05.2013 (P-5) which posts him out of aviation wing to his parent artillery unit without any justification or valid reason and without any prior warning given to him. He imputes the 3rd respondent as behind this order. The prayer is made for quashing of the order and for permitting the petitioner to complete what remains of the course which is not much according to him. His complaint is that an aviator is required to have 38.5 flying hours to his credit but he has been denied flying duties by the 3rd respondent dileberately and persons who joined later have been allowed to complete their course namely, Major Divedi, Capt. Dhankar and Capt. Joshi Mittal Manju 2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.13100 of 2013 -3- who joined in June 2011 and November 2011 while the petitioner joined the course in November 2010 but he has been singled out for adverse treatment and has not been allowed to complete this course.
On notice of motion being issued, a counter affidavit has been filed on behalf of respondent Nos.1 and 2. The 3rd respondent against whom allegations of mala fide have been alleged has filed a separate counter affidavit. He has vehemently denied allegations of personal vendetta made by the petitioner against him. He has explained that the petitioner's progress was very slow. The petitioner has filed a rejoinder to the counter-affidavit filed by the 3rd respondent in which he explains that he was declared flying fit on 16.04.2012 after a thorough examination. Allegations of bias and mala fides are reiterated.
The petitioner relies on a recommendation made by the Corp Commander in the rank of Lieutenant General holding that the petitioner should be given an opportunity to progress his mandatory qualification as Aviator in a changed environment. The Lieutenant General had further recommended that the Officer be posted to another Aviation Squadron to complete what remained of the course. The Lieutenant General had by his order instructed the petitioner to await further instructions.
In these circumstances, when this matter was argued on both sides I had thought that it may not be fair to pin down the petitioner to the assessment earlier made on 13.04.2013 declaring the petitioner as not fit to complete the course since the recommendation of the Corp Commander was made thereafter in his favour. In such a scenario I passed the following order on 01.08.2013:-
Mittal Manju2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.13100 of 2013 -4-
"The declaration that the petitioner is unfit to complete aviation course ended on 30.4.2013 with the Deputy Chief of Army Staff endorsing the view of all the three officer below him is evidenced from the original record produced by Mr. Khosla.
In the writ petition, the petitioner has levelled bias against respondent No.3. In the replication filed to the written statement the petitioner has asserted that Brig. Aviation had made a surprise check in June 2013 of the petitioner and had put him to a flight test in which the petitioner says that he was found satisfactory till the level reached as on that date. This reflects a change of circumstances obtaining after the matter was concluded on 13.4.2013 by the Deputy Chief of Army Staff.
Mr. Sablok, has produced a document obtained by him under the Right to Information Act, 2005 which suggests that the Corp Commander in the rank of Lt. General had recommended that the officer/petitioner be given an opportunity to "PROG" his mandatory qualification as aviator in a changed environment and had further recommended that the officer be posted to another AVN SQN. He has also fixed a reporting date to "70 MED REGT as June 10". The petitioner was instructed to await further instructions. The message was signed of "for your early necessary action please".
In these circumstances, it may not be fair to pin down the petitioner to the assessment on 13.4.2013 and it may be necessary in order to secure the ends of justice and ensure fairness in action that the Deputy Chief Army Staff, Corp Commander, Brig. Aviation and Director General Aviation may take joint decision as to the future of the petitioner as an Army Aviator.
For this, Mr. Khosla, learned counsel for the respondents prays that he may be granted some time as the process may take some time. A copy of the message dated 27.5.2013 obtained, according to the learned counsel for the petitioner, through Right to Information Act 2005 is placed on the record of this case as Mark "A".
An action taken report be submitted to this Court on or before the next date of hearing with an advance copy to the counsel opposite so that the matter is not delayed any further.
List on 18.9.2013.
Interim order to continue.
A copy of this order be given dasti to Mr. Khosla, learned counsel for the respondents under the signatures of the Bench Secretary of this Court."
Mittal Manju2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.13100 of 2013 -5- Since the request in the order was for a consultative decision between four authorities to take a joint decision as to the future of the petitioner as an Army Aviator, time was granted. Mr. Khosla has produced a confidential file in which the four authorities have arrived at the same conclusion as the stand taken in the written statement filed by respondent Nos.1 and 2 that the petitioner's overall performance after analyzing the case in its entirety is not commensurate to the duration spent by him in Army Aviation since 2010 since on account of attitudinal deficiency his retention in flying unit is not recommended which is detrimental to flight safety environment. Therefore, it has been again recommended to revert the Officer back to his parent arm. In taking this decision, the Director General, Army Aviation appears to have written a letter dated 06.09.2013 with reference to the order passed by this Court on 01.08.2013 to Lieutenant General N.S. Ghei Commanding General Officer commanding 10 Corps to again opine on his earlier recommendation made in favour of the petitioner, copy of which decision the petitioner dad obtained under the Right to Information Act, 2005. In his response dated 11.09.2013 the Lieutenant General has stated that the petitioner had sought his interview which was given to him on humanitarian grounds to enable the officer to voice his grievances. It was during the course of the interview that he felt that the officer could be given an opportunity to progress his mandatory aviator qualification in a changed environment and this was accordingly recommended. However, on sharing inputs and being informed of other technical parameters evaluating overall performance of an aviator as shared by the office of the Director General, Army Aviation he has changed his Mittal Manju 2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.13100 of 2013 -6- opinion and the decision of the Aviation Department to revert the officer (petitioner) to his parent unit has been endorsed.
I have read out the material parts of the file in open Court and in the presence of the petitioner and his counsel which includes the decision of the Deputy Chief of Army Staff (P&S) endorsing paragraphs 6 and 7, Note
4. Note 6 & 7 prepared by Lieutenant General, PR Kumar, Director General, Army Aviation dated 11.09.2013 read as follows:-
"6. On reviewing of the case in totality GOC 10 Corps and Brig Avn HQ South Western Comd have recom that the offr be reverted to his parent arm with imdt effect (Flag B & C).
7. The Army Avn Dte continues to maint its stance in r/o Maj AS Mehar wrt his reversion to his parent arm."
The question whether the petitioner should continue in Army Aviation to complete the course or be reverted back to his parent arm remains in the subjective assessment of the competent authorities in the Army. All that this Court could do in the light of the recommendations of the Lieutenant General, N.S. Ghei, General Officer, Commanding 10 Corp. was to request a joint decision at the highest level in the Army which I though was a fair thing to do. In the present scenario it does not appear possible for this Court in exercise of writ jurisdiction under Article 226 to stretch the matter further. It is neither expedient nor necessary for this Court in the circumstances to forge new tools to explore new and further possibilities of the petitioner continuing in Army Aviation or to send the petitioner for further examination of a psychologist to test 'attitudinal deficiency' as assessed by his immediate superiors and thereafter aby the highest echelons of the Indian Army. It was said once by this Court many years ago and in the nascent exploration behind administrative curtains Mittal Manju of 2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh CWP No.13100 of 2013 -7- the defence forces that the Court should not enter into Army thickets unless there were compelling circumstances to do so. Extent of judicial review from those early years may have grown exponentially in interference in army service matters as it exists presently but circumspection still is judicially advised. This Court having done what it could do at best in the matter and looking to the fact that a person no less than the rank of Lieutenant General has reviewed his own decision based on availability and sharing of full facts can do no more. The top brass in the Indian Army acting dispassionately and honestly in their vast cumulative experience while making decisions are to be trusted and the Court cannot lightly interefere. Even if the 3rd respondent had some chip on his shoulder against the petitioner the decision now taken jointly as shown to this Court does not appear to be biased or irrational. Army remains the best judge of its flying needs. I feel sorry though for dismissing this case.
(RAJIV NARAIN RAINA) JUDGE 18.09.2013 manju Mittal Manju 2013.09.27 17:06 I attest to the accuracy and integrity of this document Chandigarh