Padmanabhan Nair, Member (J).
1. Petitioner has filed this proceedings for quashing Ext. P15 order and to reinstate him in the Aviation Cadre and assign him the Observer's Badge. This proceedings was filed as a Writ Petition before the Honourable High Court of Kerala. The proceedings was transferred to this Tribunal, consequent to its formation.
2. In the petition the petitioner has averred that the petitioner was commissioned in Indian Navy in the Executive Branch in January, 1981. He underwent 100 hours of flying training in Islander Aircraft (fixed wing aircraft) and he was awarded Observer's Badge in the year 1984. The petitioner got his training in Squadron 330, which was having Sea King Helicopter 42A. He continued in the Squadron 330 till January, 1988. In July/August, 1988 he fell ill due to Jaundice and placed under low medical category. When the petitioner was declared medically fit for flying, Squadron 330 was upgraded with Helicopter Sea King 42B and the Helicopter Sea King 42A was shifted to Squadron 336. So, the petitioner sought for transfer to Squadron 336. That request was turned down and he was transferred for non-flying duties in the Indian Naval Ship Vindyagiri. The petitioner had acquired a total of 500 hours of flying training in Islander Aircrafts and 97 hours of training in Helicopter 42A. He applied for a change of duties. The Head Quarters decided to continue the petitioner in the Sea King Helicopter and gave an opportunity for him to improve his professional competence by undergoing flying training for 30 hours in SKG 42A as the petitioner was away from actual flying after he was declared in the low medical category. He reported to Squadron 336 on 19.12.1991 for acquiring 30 hours of flying training. Immediately after his joining, he was assigned with different duties other than flying. He was posted as a Member of Board of Inquiry constituted to inquire the unnatural death of a sailor. Because of the said fact, the petitioner could not undertake 30 hours of flying training as authorised by the Head Quarters. He could avail of 3 hours 30 minutes of flying till mid January, 1992. In the year 1992, the petitioner filed application for leave in connection with the marriage of his sister. Petitioner's father was a cardiac patient and there was no other person in the family of the petitioner to take care of the affairs relating to the marriage of his sister. That request was rejected. It is averred that without any basis, the petitioner was withdrawn from the Aviation Cadre as per Ext. P2 order in violation of the provisions laid down in paragraph 2 of Article 0501. It is further averred that an officer posted in Aviation Cadre can be withdrawn temporarily or permanently only on the recommendation of the Commanding Officer or of a Court Martial. Such person can be reinstated in the Aviation Cadre only after a minimum period of one year from the date of withdrawal and the same shall also be made on the recommendation from the Administrative Authority concerned. The petitioner was withdrawn based on Ext. P3 report dated 6.3.1992. According to the petitioner, in Ext. P3 there was no recommendation to withdraw the petitioner, but the recommendation was only to allow the petitioner to continue in the Aviation Cadre and thereafter assign flying duties to the petitioner, after the petitioner resolves his personal problems. It is averred that the wings of the petitioner were removed. The opinion tendered by the Surgeon Commander and the report of the Senior Adviser in Aviation Medicine as evidenced by Ext. P5 shows that there is absolutely no justification in withdrawing the petitioner. The petitioner submitted a representation on 28.5.1993, which was forwarded by the Senior Air Staff Officer, Head Quarters, Naval Aviation to the second respondent as per his communication dated 9.6.1993, strongly recommending reinstatement of the petitioner. But without assigning any reason, that request was rejected by the second respondent as per Ext.P7 order dated 25.8.1993. It is alleged that Ext. P7 order was a non-speaking order and the same was issued in violation of the principles of natural justice. The petitioner submitted representations directly to the second respondent, which were strongly recommended by the Commodore, Chief Staff Officer. But all those representations were rejected. Challenging Exts. P2, P7 and P9, the petitioner filed O.P.No.18160 of 1996 before the Honourable High Court of Kerala. The Honourable High Court disposed of the same as per Ext. P10 judgment directing the petitioner to file a representation before the Chief of Naval Staff, highlighting the justifications for his appointment in the Aviation Cadre in a non-flying post like Operation Officer, Safety Officer, Executive Officer or the like and the Chief of Naval Staff was directed to dispose of the petition within three months from the date of receipt of the judgment. Accordingly, the petitioner filed a representation and the same was dismissed as per Ext. P12 order. Challenging Ext. P12 order the petitioner filed O.P.No.25092 of 2001 before the Honouroable High Court of Kerala. That Original Petition was disposed of as per Ext. P13 judgment, setting aside Ext. P12 order with a direction to call for fresh recommendation of the Commanding Officer. The petitioner filed a petition for review of Ext. P13 judgment to the extent it directs the second respondent to call for fresh report from the Commanding Officer. That petition was allowed as per Ext. P14 order. The second respondent was directed to consider the claim of the petitioner for reinstatement in the light of Exts. P2 and P8. The second respondent, without considering the points arising for consideration, had again rejected the claim of the petitioner for reinstatement in the Aviation Cadre. Copy of the order is marked as Ext. P15. Hence, this Petition for quashing Exts. P15 and for a direction to the second respondent to reinstate the petitioner in the Aviation Cadre and assign him in the Observer's rank and for other reliefs.
3. The second respondent has filed a counter affidavit for and on behalf of other respondents. Filing of the earlier two Original Petitions is admitted. Existence of the orders was also admitted. The direction was only to consider his request for reinstatement as a non-flying cadre. It was considered by the competent authority and rejected. It is contended that the duties of Operations Officer and the Safety Officer are carried out by officers who may be called upon to carry out flying duties as well. It is contended that in pursuance of the review order passed in O.P.No.25092 of 2001, the matter was again considered and rejected by a reasoned order. As such, nothing more survives in the matter. The only question that may be considered is whether he had followed the procedures properly. It is contended that the Honourable High Court has considered this aspect and issued suitable directions with regard to the same. In pursuance of the directions of the Honourable High Court, suitable speaking orders have been passed. It is also contended that against Ext. P15 order, the petitioner had efficacious alternative remedy available under the statutory scheme of the Navy Act, 1957 by way of filing petition before the Central Government. Since he had not utilised that remedy, the Writ Petition is premature. It is averred that the petitioner was commissioned on 1.7.1981 in the Indian Navy. He joined the observer cadre on award of wings on 15.12.1984. On completion of ab-initio observer course, he was appointed as Staff Observer in INAS 550/Garuda from December, 1984 till December, 1985 and thereafter, in INAS 318/Utkrosh from August, 1985 till January, 1987. These squadrons were holding Islander 2B (Piston) aircraft. His performance was average. In February, 1987, he was transferred to INAS 336/Garuda for conversion to Sea King 42A. His performance was average, but slightly slow in the uptake and needed to put in consistent effort to accrue results. In January, 1988, the petitioner was appointed to INAS 330, where he qualified as Sonar Operator only. He could not achieve fully operational status on SKG 42A as his TACCO consolidation could not be progressed in view of low medical category due to jaundice from September, 1988 till June, 1989. In the meantime, Sea King 42A were withdrawn from INAS 330 and as such the officer did not fly at all after regaining his flying medical category. He was not recommended for conversion on SKG 42B due to low response on 42/42A. The officer was recommended for transfer to a unit operating SKG 42A. In May, 1991, the petitioner was transferred to Vindhyagiri Flight at Mumbai. He expressed his unwillingness to continue flying Rotary Wing Aircraft, admitting the fact that he was unable to cope up with SKG 42A due to being slow on uptake and requested for change over to Fixed Wing Aircraft. He was considered grounded from flight law INAP 2 Article 0125 (below standard aircrew) vide Vindhyagiri letter 236/11/1 dated 1.8.1991. He was sent for medical examination. The medical officer opined that the officer's problem was only administrative in nature ruling out any psychological or medical problem. He was recommended to be transferred to ship borne flight. His request for change over to Fixed Wing aircraft was forwarded to Naval Head Quarters. The Naval Head Quarters did not approve the petitioner's request for change over to Fixed Aircraft in view of limited experience on Fixed Wing vis-a-vis his seniority. He was given an opportunity to improve his professional competence by flying 30 hours on Sea King Helicopters. HQWNC sought deputing the officer to INAS 336 considering the anticipated requirement to keep the officer under supervision for a period of more than two months to fly 15 hours each on simulator and aircraft. The officer reported to INAS 336 on temporary duty on 19.12.1991 for flying. His knowledge about Sea King Aircraft and general aviation subject was very poor. After 7 hours 30 minutes of simulator flying and 3 hours 30 minutes of aircraft flying, the officer's performance remained far from satisfactory. In addition, the officer refused to fly as his request for leave was rejected. He declined to fly any more. Accordingly, he was returned to his unit in January, 1992. The Administrative Authority of the petitioner, vide their letter dated 29.1.1992 had recommended the following:
âa) Examination by AIRCATS to ascertain the suitability of the officer for retention in the Observer cadre would serve no useful purpose.
b) Consider officer's case for withdrawal from aviation cadre (Ext.P2).â
The petitioner was given ample opportunity to improve both in ground subjects and flying proficiency by imparting extra classes and additional flying hours. However, he had shown no inclination to improve despite hard work of the instructors. After all the avenues had been exhausted, the procedure for withdrawal from aviation cadre was followed. The decision to withdraw the officer from aviation cadre was taken by the competent authority at the appropriate level. It is not liable to be interfered with by the court. The officer's fixed wing flying experience is 470:50 hours. Training is a time bound activity and any discontinuity/break in training has adverse effect on trainee, more so when the petitioner has shown decline in his professional knowledge. The petitioner was not granted leave in the interest of the officer and service. They pray for a dismissal of the petition.
4. Petitioner filed a reply affidavit on 11.8.2009 in which he had denied all contentions raised by the respondents in their counter affidavit. It is contended that Ext.P15 order challenged in the Writ Petition is passed by the second respondent in pursuance of the direction issued by the Honourable High Court. Hence, invoking statutory remedy may not be an efficacious remedy. It is contended that respondents has relied on Article 0125.7 of INAP-2. A reading of clause 7 of that Article will show that the contention raised is not correct. The recommendation contained in Ext.P17 by the administrative authority is in tune with Article 0125.7 of INAP-2. It is contended that the reason for training for 3 hours, 30 minutes on aircraft and 7 hours and 30 minutes on simulator for the period from 19.12.1991 to mid January 1992 was because of the inclusion of the petitioner as member of Board of Enquiry from 19.12.1991 to Mid January, 1992. It is contended that Ext.P8 will show that suppression of fact and violation of INAP 2 Article 0126 paras (a) and (b). It is contended that respondents had extracted amended provisions of Article 0501 of INAP-2 which was not applicable to the petitioner's case. It is contended that Ext.P2 order was issued on 29.2.1992 and on that date, the case of aircrew who was withdrawn temporarily or permanently can be considered by Naval Head Quarters after a period of one year from the date of withdrawal. It was contended that the said clause was amended on 4.12.1996 and thereafter only the case of aircrew who was temporarily withdrawn can be considered.
5. The petitioner filed an additional affidavit on 26.3.2009 contending that there are posts in the Aviation Cadre which do not contain any flying duties. It is contended that flying duties are assigned to those officers initially for 10-20 years and thereafter they need not undertake flying duties but will be posted in other duties. Petitioner has given the names and details of four such persons.
6. On 11.6.2009, the respondents filed an additional reply affidavit contending that air crew is expected to have a minimum acceptable level of proficiency for that post. The petitioner was lacking all the way through the period. He was given ample opportunity to improve. But his refusal to undertake anymore flying on SK 42A and his below average performance resulted in his withdrawal. It is also contended that all aircrew in he aviation cadre are suitably qualified and medically fit to carry out flying duties as well as other flying related duties. The contention that aircrew posted at aviation cadre need not undertake flying duties and they will be assigned flying duties initially only for 10-20 years is not correct. It is contended that the officers on getting adequate qualification and experience are rotated in different assignments. However, when these officers carry out duties other than flying, they are available for flying also since they are medically fit and suitably qualified. The details of the qualification of the five persons are given in the additional reply affidavit.
7. The petitioner filed two additional reply affidavits. One on 15.9.2010 and another on 6.8.2010. In the first reply affidavit, it is contended that no seniority is maintained for aircrew in the Aviation cadre. According to the petitioner inclusion of the petitioner with retrospective effect will not affect any other aircrew. He again filed an additional affidavit in which he had given the names of six other persons. They have not undertaken any flying duties for more than past 10 years. It is contended that petitioner is aged 51 years and medically fit for aviation. He was examined and awarded medical category, A1 G1, as per the latest medical report. He is due to retire on 2012. The petitioner filed I.A.No.8289/2008 for amending the Writ Petition while the case was pending before the Honourable High Court. The prayer in the amendment application is only to include one more prayer. That is to say, to issue a direction to the respondents to reinstate the petitioner in the aviation cadre with effect from 31.1.1992. The I.A. was allowed by this Tribunal. Accordingly, the petitioner produced amended Transferred Application incorporating the additional relief also. Even though there was no additional averments in the amended Transferred Application, the respondents filed two counter affidavits repeating the statements/contentions already raised in the counter affidavit and the additional counter affidavit. In one of the affidavits, the details of the qualifications of the six persons stated in the reply affidavit is also stated. Since it is a mere repetition of the pleadings already stated, we do not find any reason to repeat the same. The petitioner has filed another reply affidavit virtually reiterating all the averments he has raised in the T.A. and also additional affidavits.
8. This is the third attempt of the petitioner to restore the Aviation Observer's Badge removed from him and for reinstatement in aviation cadre. Even though the pleadings in this case is voluminous and runs into pages, the dispute to be resolved in this case lies in a very narrow compass.
9. The petitioner was commissioned in the Navy in January, 1981. He underwent 100 hours of flying training in Islander Aircraft (fixed wing aircraft) and he was awarded Observer's Badge in 1984 in the Aviation Cadre. He was appointed as a Staff Observer in INAS 550/Garuda. He joined as a staff observer on 15.12.1984 and continued there till December 1985. During December 1985, he was appointed as a Staff Observer in INAS 318/Utkrosh. He was attached with that ship till January, 1987. According to the respondents, his performance was average, though relying on Ext.P1 the petitioner would argue that his performance was good. In February 1987, he was transferred to INAS 336/Garuda for conversion to Sea King 42A (a rotary wing helicopter). According to the respondents, there also his performance was average. During January 1988, he was appointed as Sonar Operator in INAS 330. He did not achieve the operation status in Sea King Helicopter 42A as his Tactical Officer (TACCO) consolidation did not progress due to his inclusion in low medical category, A4G5. He was included in low medical category from September 1988 till June 1989. He regained his flying medical category in June 1989. In the meanwhile, Sea King Helicopter 42A was withdrawn from INAS 330. According to the petitioner, he could not fly after upgradation in medical category. The petitioner requested for a transfer to a unit operating SKG 42A. But his request was turned down and he was transferred to INS Vindyagiri in April 1991. He was posted to perform executive duties without any basis. The petitioner requested for a change to fixed wing aircraft. According to the petitioner because of the upgradation of Squadron 330, the helicopter 42B that was available, could not be flown by the petitioner. The Naval Head Quarters decided to gave an opportunity to improve his professional competence by undergoing 30 hours of flying training in Sea King Helicopter 42A. He reported to Squadron 336 on 19.12.1991, but he was assigned duties other than flying from 19.12.1991 till mid January 1992. He could avail only 3 hours and 30 minutes of flying and 7 hours and 30 minutes in simulator.
10. The petitioner applied for leave for 48 days in connection with the marriage of his sister. The case of the petitioner was that father of the petitioner was a cardiac patient and there was nobody else to take care of the affairs in relation to the marriage of his sister. He reduced the leave to12 days. Even that was rejected and he was withdrawn from Aviation cadre. The Headquarters, Western Naval Command on 29th January 1992 recommended the withdrawal of the petitioner from air flying duties on the ground that examination by AIRCATS will serve no useful purpose and hence recommended that he be withdrawn. On 31.1.1992, the Naval Headquarters directed withdrawal of the petitioner. According to the respondents, the withdrawal of the petitioner was under Article 0501 Para 2, Article 0125 and Article 0126 Para 10. These Articles relates to identifying aircrew who are accident prone/below standard.
11. Challenging Ext.P2 order withdrawing him from Aviation Cadre, petitioner filed O.P.No.18160 of 1996. The matter was heard and disposed of by a learned Single Judge of the High Court of Kerala on 26th March, 2001. The Honourable High Court disposed of the Original Petition with a direction that petitioner would be at liberty to file a representation before the Chief of Naval Staff highlighting the justifications for his appointment in the Aviation Cadre in a non-flying post like Operation Officer, Safety Officer, Executive Officer or the like. He was directed to file the representation within one month. If such a request is made, the respondents were directed to consider the same by the officer to whom it is addressed independently and in an unprejudiced manner and the matter disposed of through a speaking order within a period of three months.
12. The petitioner filed Ext.P11 representation. The respondents rejected that request by Ext.P12 dated 25.5.2001. Challenging Ext.P12 order, petitioner filed O.P.No.25092 of 2001. Ext.P12 was set aside and the Original Petition was disposed of directing the Naval Headquarters to call for the recommendation of the Commanding Officer in regard to the petitioner's case and deal with it in terms of Article 0501.2 of INAP-2 within a period of three months from the date of receipt of that judgment. The petitioner filed a review petition, R.P. No. 670 of 2007, stating that the present Commanding Officer would not be able to give a report regarding the competence of the petitioner, as he has not carried out the activities of flying under the said officer. The Honourable High Court after noting that though the petitioner had grievance against Ext.P1 report filed in that case, directed that the case of the petitioner is to be considered having regard to Exts.P1 and P6 produced in that case. Ext.P1 is produced as Ext.P3 and Ext.P6 is produced as Ext.P8 in this case. The matter was considered by the Directorate of Naval Air Staff. Again his request for restoring to Aviation Cadre was rejected by Ext.P15 order. Challenging that order, this Transferred Application is filed.
13. The learned counsel appearing for the petitioner has argued the following points. In Ext.P10 judgment, the Honourable High Court has set aside Ext.P7 order by which second respondent had rejected the request of the petitioner for reinstatement. In spite of the specific order given by the Honourable High Court in Ext.P10 judgment to consider the case of the petitioner independently and in an unprejudiced manner, his application was rejected by stating the very same reasons and that order was challenged in Ext.P12 proceedings. In Ext.P12 judgment, the Honourable High Court found that Ext.P2 order withdrawing the petitioner from the Aviation Cadre was without any authority and in flagrant violation of the rules and directed the respondents to reconsider the same in the light of Ext.P3 and P8 report. It is argued that request was rejected by Ext.P15 order and the reason stated are exactly the same as stated in Ext.P3. It is contended that respondents have shown scant respect to the direction issued by the Honourable High court.
14. There are certain admitted or proved facts. The petitioner had completed more than 100 hours flying in fixed wing aircraft and he was transferred to SKG 42A Helicopter. The petitioner did not achieve full operational status in SKG 42A due to his inclusion in low medical category from September 1988 on account of the disease, Jaundice. The petitioner could not fly even after upgradation in June, 1989 and by that time (in January 1990) SKG 42A were completely withdrawn from the squadron of INAS 330 and the Helicopter available was SKG 42B, in which the petitioner has not undergone training. He was posted to INS Vindyagiri in May 1991. He was posted to INAS 336 for 15 hours training in simulator and 15 hours for flying aircraft. It is an admitted fact that during Mid January 1992, he had completed only 3 hours and 30 minutes of flying aircraft and 7 hours and 30 minutes training in simulator. According to the respondents, this was on account of the poor performance of the petitioner. The specific case put forward by the petitioner is that immediately on reporting for training on 19.12.1991 he was included in a Board of Enquiry constituted to enquire into the cause of death of a sailor. The order nominating the petitioner as a member of the Board of Enquiry is produced as Ext.P4 in O.P.No.18160 of 1996 (Ext.P10 case). This fact is not denied by the respondents in any of the counter affidavits filed by them. The respondents have not mentioned this fact of inclusion of petitioner in Board of Enquiry in any of the orders or the counter affidavits. It is now established that the petitioner was not able to complete his flying training assigned because of his inclusion in Board of Enquiry. Thereafter, the petitioner applied for 48 days leave in connection with his sister's marriage. It was not granted. Subsequently he reduced the period of leave to 12 days. The specific case put forward by the petitioner is that his father who was a retired government servant, was suffering from heart illness and the petitioner being the only son of his father and the brother of the bride, it was his duty to perform the marriage. The leave applied was not granted. The petitioner refused to fly any aircraft unless and until he was granted leave so as to enable him to conduct the marriage of his sister. Now, the case projected by the respondents is that petitioner was transferred to INS Garuda and he was directed to complete 30 hours training within a specific time and hence it was not possible to grant leave to the petitioner. This contention is without any bona fides. If that was the intention, petitioner should not have been included in the Board of Enquiry on 19.12.1991. He could have been granted some more time to complete the training. In stead of that, a recommendation was forwarded on 29th March 1992 to withdraw the petitioner and on 31.3.1992 he was permanently withdrawn. The petitioner filed a petition to reinstate him in Aviation Cadre. In view of the attitude taken by the petitioner, he was subjected to medical examination by Surgeon Commander, Graded Aviation Specialist, who recommended that problem of the petitioner is administrative in nature and the application of Article 0125 is not proper (Ext.P4). The Senior Adviser in Aviation Medicine agreed with the opinion of the Surgeon Commander. Accordingly, Ext.P3 letter was written by Commodore SC Dewan on 6.3.1992. It is stated that the performance of the petitioner is unsatisfactory. It was stated that though he has to undertake the flying training for 30 hours in the simulator and aircraft, it could not be carried out because he has insisted that he will not undertake flying training unless he was granted leave. In paragraph 6 of Ext.P3 report, it is stated as follows:
â6. It is therefore considered that the officer be returned to his parent unit and sent for continuation of flying after he has resolved his personal problem and was mentally prepared to fly. The officer was thereafter returned to INS Vindyagiri on 17th Jan. 92 vide FOC South Signal DTG 171540/Jan. (not all).â
So, the report in general was against the petitioner. The recommendation was not to withdraw him permanently, but to be sent for continuation of training after he has resolved his personal problem and was mentally fit to fly. Thus, the matter was sent to Naval Head Quarters for consideration. It was considered during August 1993. Within that time, the very same officer Commodore SC Dewan, who sent Ext.P3 report became the Director of Naval Air Staff and he himself has considered his report and passed Ext.P7 order for and on behalf of Chief of Naval Staff rejecting the request for reinstatement. Two strange things have happened. The officer who has forwarded an adverse report, but at the same time recommended that petitioner be sent back for flying duties after sorting out personal problems, himself has taken the decision not to reinstate the petitioner in the Aviation Cadre. That fact was noticed by the Honourable High Court in Ext.P10 judgment. In page 2 of the judgment, it is stated that the very same officer who was responsible for Ext.P5 and P5(a) (Ext.P3 in this case) has reached the position of Staff Officer to Chief of Naval Staff who was to deal with the petitioner's request for restoration of his service in the Flying Section. The Honourable High Court after considering all aspects, held as follows:
â4. The documents referred to during the hearing do not show that the petitioner is an incompetent officer with bad record. His present claim to be given a non-flying appointment is one which was never presented before the authority nor considered. The circumstances of the case warrant an independent and unprejudiced consideration of the aforesaid request of the petitioner.â
The Honourable High Court has noticed that petitioner will be satisfied if he is restored to the Aviation Cadre and given a non-flying post like Operation Officer, Safety Officer or Executive Officer. Thereafter, Ext.P11 request for reinstatement in Aviation Cadre was made by the petitioner, which was rejected by Ext.P 12 order. A reading of Ext.P12 order shows that virtually those reasons which were set aside and which was found not satisfactory in Ext.P10 judgment are again repeated. It was further held that Executive Branch Officers who need not necessarily be aircrew carry out the duties of Executive Officer. It is also stated that duties of Operation Officer and the Safety Officer are carried out by officers who may be called upon to carry out flying duties as well. So, the only reason stated for rejecting the claim was that even if the petitioner is assigned non-flying duties, he may be asked to carry out flying duties. This was again challenged in Ext.P13 case. The Honourable High Court found that petitioner was withdrawn from flying duties without considering the recommendation of the Commanding Officer in this regard and there is violation of Article 0501.2 of INAP-2. Ext.P2 order was also set aside by the Honourable High Court. Initially, the High Court directed that the matter be reconsidered after calling for a fresh report and when the petitioner pointed out that it may not be practical, the High Court directed the Chief of Staff to re-consider the case of the petitioner based on P1 and P3 report, (which is produced as Exts.P3 and P8 in this case). The High Court had specifically found that withdrawal of the petitioner was totally illegal. Those findings in Ext.P10 and P12 judgment has become final and conclusive, both sides have not challenged it. So, the findings in Exts.P10 and P13 judgments will operate as res judicata.
15. In this case, the respondents have raised a contention that petitioner has misquoted Article 0501.2 of INAP-2. A reading of the said Article shows that both sides are wrong. Originally Article 0501.2 stood as follows:
â2. Notwithstanding the above, the privilege of wearing the aircrew badges and the further employment of an officer or sailor in aircrew duties can be withdrawn temporarily or permanently for inability to carry out the required duties, indiscipline or other reasons. Such withdrawals can be ordered by Naval Headquarters on the recommendations of the Commanding Officer or of a Court Martial. Reinstatement into the aircrew cadre may be considered by Naval Headquarters after a minimum period of one year from the date of the withdrawal of the privilege on recommendations from the Administrative Authority concerned.â
On 4.12.1996, there were two amendments. The words 'President, AIRCATS' were added between the words 'Commanding Officer' and 'Court Martial'. The sentence after âCourt Martialâ was substituted. The last sentence in Para 2 of Article 0501 of INAP 2 reads as follows:
â.........Reinstatement of those aircrew who have been temporarily withdrawn from the cadre may be considered by Naval Headquarters after a minimum period of one year from the date of withdrawal of the privilege on recommendations from the Administrative Authority concerned.â
After 4.12.1996 if a man was permanently withdrawn from Aviation Cadre, his request for reinstatement cannot be considered. But when the petitioner was withdrawn, the request for reinstating a person who was permanently withdrawn could also be reconsidered. As already stated, going by Article 0501 of INAP-2 which stood on the date of withdrawal, the petitioner's request for reinstatement can be considered again. Challenging Ext.P2 order, petitioner filed representation for reinstatement and it was considered by Commodore, Chief of Staff Officer, for Flag Officer-Commanding in Chief and his recommendation was forwarded to the Government on 11.10.1995. This recommendation is Ext.P6 in the earlier case and Ext.P8 in this case. The Honourable High Court directed to reconsider the request in the light of Exts.P3 and P8.
16. Ext.P8 was rejected on a very flimsy reason by the Chief of Naval Staff on the ground that the report came into existence three years after the time of withdrawal of the petitioner. Article 0501 of INAP-2 shows that when an officer is withdrawn from the Aviation Cadre, his case can be reconsidered only after expiry of minimum period of one year. The provision did not fix any outer time limit. Ext.P3 report recommending temporary withdrawal by the Commodore was forwarded on 6.3.1992. Ext.P2 order withdrawing the petitioner was passed on 29.3.1992. The petitioner submitted a petition for reinstatement. That request was strongly recommended and forwarded on 9.6.1993. The request for reinstatement was rejected on 25.8.1993. The petitioner submitted another representation on 30.8.1995 and the same was forwarded on 11.10.1995 under Ext.P8. There is no unusual delay in sending Ext.P8 report. Further no objection on the ground that Ext.P8 report came into existence three years after the withdrawal of the petitioner was raised by the respondents when the review petition was heard. The High Court was fully aware of the fact that recommendation of the Commanding Officer in Ext.P8 (Ext.P6 in that case) was made in 1995. When the Honourable High Court issued a direction to reconsider the petitioner's case on the basis of recommendations of Commanding Officer contained in Ext.P8, the second respondent ought to have considered the case on its merits. He had shown scant respect to the direction issued by the Honourable High Court. So, the reasons stated by the second respondent for rejecting Ext.P8 report is illegal and unsustainable.
17. Now, we shall consider how far that is relevant or helpful in solving the issue. In Ext.P8, it is stated that the Naval Head Quarters has given an opportunity to the petitioner to improve his professional competence by undergoing flying training for 30 hours after which he has to be examined by AIRCATS to decide whether the officer should continue in Aviation Cadre. It is stated that the petitioner could not fly for 30 hours due to the reason that on reporting to INS Garuda on 19.12.1991, he was nominated as a member of Board of Inquiry. It was also noted that on completion of Board of Inquiry, the petitioner requested for leave for conducting his sister's marriage, a requirement projected prior to his arrival at Garuda. The leave was not granted and this resulted in his psychological disturbance and hence he was not able to concentrate in training. It is further noted that petitioner was unwilling to fly as leave was not granted to him on the ground that he was attached for flying training. At the same time, it is specifically stated that no mention is made regarding his nomination as member of Board of Inquiry or the reasons for doing so. So, actually it is the respondents themselves who made the flying training impossible. It is also noted that he could have been granted leave. It is also noted that granting of leave to aircrew is a requirement for flight safety and in the instant case, the leave was not for attending the marriage, but for conducting the marriage of his sister as the petitioner's father is a cardiac patient and he is the only son. Further, it is to be noted that no time limit was fixed for completing the 30 hours flying and hence the petitioner could have been granted time to complete the flying. It was also stated that the decision to withdraw the officer from Aviation Cadre was taken without giving a fair chance to the officer to explain. So, he was recommended for reinstatement. How this report is unrelated to the facts in this case is not explained by the counsel for the respondents. An officer who had an occasion to consider independently the facts and circumstances leading to the withdrawal of the petitioner had meticulously considered it and recommended his reinstatement. The reason stated for rejecting that recommendation is flimsy and cannot be upheld.
18. In Ext.P10 judgment the Honourable High Court found that the officer who forwarded Ext.P6 report himself had considered that report and passed Ext.P7 order rejecting the request of the petitioner for reinstatement. Ext.P7 order was passed in violation of the principles of natural justice. The effect of the finding in Ext.P10 judgment is to the effect that Ext.P7 order was set aside. That is the reason why Honourable High Court directed the second respondent to re-consider the case of the petitioner for reinstatement. In Ext.P13 judgment in O.P.No.25092 of 2001, the Honourable High Court has found that Ext.P12 order was passed in violation of Article 0501.2 of INAP-2. The effect of that finding is that the Honourable High Court found that the order withdrawing the petitioner was null and void. So, in view of Ext.P13 and P10 judgments of the Honourable High Court, Ext.P2 order dated 29.3.1992 withdrawing the petitioner from Aviation Cadre and Ext.P7 order dated 25.8.1993 rejecting his request for reinstatement are not in force. The Honourable High Court could have straightaway ordered reinstatement without giving another opportunity to the second respondent to re-consider the case of the petitioner. But, still the Honourable High Court gave an opportunity to reconsider the case based on Exts.P3 and P8 which were marked as Exts.P1 and P6 in that case.
19. The learned counsel for the respondents has strenuously argued before us that in the final order dated 22nd June, 2007, the Honourable High Court thought of giving the petitioner a fresh opportunity and that is why the Honourable High Court directed that Naval Headquarters shall call for the recommendation of the Commanding Officer in regard to the petitioner's case. It is argued that petitioner himself spoiled that chance by filing a review and in the review petition the direction was to reconsider the matter based on Exts.P3 and P8, and thereby ruined the chance of getting reinstatement. It is an admitted fact that after January 1992. petitioner had not undertaken any flying operation. So, even if a report is called for from the Commanding Officer as contemplated in Article 0501.2 it will not help either the petitioner or the respondents. How the Commanding Officer can assess the flying skill of a person who has not undertaken flying operation for more than 15 years is not explained by the counsel for the respondents. So, we are of the view that direction issued by the High Court to reconsider the case of the petitioner with reference to Exts.P3 and P8 is perfectly correct.
20. The learned counsel has argued that petitioner will be satisfied if a direction is issued to the respondents to assign the petitioner the Observer's Badge and to post him in a nonflying post. This prayer is opposed. The reason stated for opposing that prayer of the petitioner is that every officer who is in the flying cadre even if he is assigned a non-flying post, may be called upon to fly any aircraft. In one of the reply affidavits, the petitioner had specifically averred that none of the aircrew of his age have had any flying operation for the last 10-15 years even if they are medically fit. It is averred that they will be holding executive appointments and retire. The petitioner has given the names of six persons who have not undertaken any flying appointment for the last 10 years. The respondents have raised a contention that every person in the Aviation Cadre even if he is assigned nonflying posts, may be directed to undertake flying. But the respondents have not denied the averment that 10 persons whose names are given had not undertaken any flying operation for the last 10 years. So, it is virtually admitted that it is not a mandatory requirement that every person in the aviation cadre shall undertake flying duties also. The reason stated by the respondents for not even assigning a non-flying post is not legal and proper and hence cannot be accepted.
21. So, Ext.P15 order passed by the competent authority rejecting the claim of the petitioner for reinstatement is unsustainable and illegal. The petitioner is entitled to be reinstated in Aviation Cadre. However, after considering all aspects of the matter, we are of the view that it is not a fit case in which reinstatement can be ordered with retrospective effect. Consequently, the petitioner is not entitled to get any monetary benefit with retrospective effect.
22. In the result, the Transferred Application is allowed in part. Ext.P15 order rejecting the claim of the petitioner for reinstatement to Aviation Cadre is set aside. There will be a direction to the respondents to reinstate the petitioner in any one of the non-flying posts available in the Aviation Cadre and to restore the Observer's Badge.
The parties are directed to suffer their costs.
Issue free copy of the order to both sides.