(Order of the Tribunal made by Lt Gen (Retd) S Pattabhiraman)
1. The case before the Tribunal is a transferred case from the Honble High Court of Judicature of Andhra Pradesh at Hyderabad bearing Writ Petition No.11219 of 2003 pertaining to a retired (then serving) Junior Warrant Officer (JWO) of the Indian Air Force (IAF) against the impugned order of denying extension of service to the petitioner for three years, from July, 2003 to July, 2006 as unjust. On transfer to the Chennai Regional Bench of the Armed Forces Tribunal, in accordance with Section 34 (2) of the Armed Forces Tribunal Act, 2007, the same has been re-numbered as TA No.153/2010.
2. The short facts of the petition to the affidavit sans irrelevant particulars are set out as follows:
2(a) The petitioners request for extension of service for three years from 01.08.2003 to 31.07.2006 was rejected by the respondents. Enrolled in the IAF as Airman on 27.07.1974 as Mechanical Transport Driver, the petitioner had rendered 29 years of unblemished service and has also got five promotions during his service. The petitioner has a clean conduct sheet except for one admonition (warning) awarded on 20.12.1979 for not wearing head-dress and for not keeping proper hair-cut. The petitioner has a large family consisting of wife and four children, whose only source of income is the pay that he draws from the IAF. The petitioners wife is also a kidney patient and the children are college-going. The rejection of extension of three years has shocked his family and brought in worries for survival in the future.
2(b) The petitioner got his first extension of engagement from fifteen to twenty years. The petitioner, thereafter, got further extension on completion of twenty years of service on 27.07.1994 and granted up to July, 2000 and a further three years of extension to run up to July, 2003. Thus, the petitioner has rendered 29 years of continued service.
2(c) On 01.10.2001, the petitioner applied for further extension of service as per orders from July, 2003 to July, 2006. The petitioners application for extension was forwarded to respondent No.3 after having been certified medically fit and strongly recommended by his immediate Commander. The petitioner was however, informed by a signal bearing No.RRD/785 dated 06.06.2002 by respondent No.3 that his extension of service has not been granted. The petitioner thereafter, made an application on 17.06.2002 to respondent No.4 to re-consider his case for extension of service. He was, however, issued a Discharge Order by respondent No.3 dated 07.06.2002 effecting the date of discharge from 31.07.2003. The petitioner would state that his application dt 07.06.2002 was not forwarded to higher authorities (respondents No.2 and 3 ) by respondent No.4 on the ground that the application has no merits for re-consideration. The petitioner thereafter sought an interview with respondent No.4 and during the interview on 03.05.2003, he was orally informed that there are some adverse reports against the petitioner for involvement in religious activities and hence he cannot be retained in IAF.
2(d) The petitioner would say that the respondents have never issued any earlier notice / warnings against the conduct and no opportunity was ever given to him for explaining his innocence. The alleged adverse reports would therefore, have been submitted behind his back.
2(e) The petitioner would say that since he belongs to Muslim community, he has been discriminated against. The petitioner would cite his long 29 years of service with good conduct as proof of his bonafide and would also quote from the reports of his recommending officer, who is the Section Commander on 31.10.2001:
âHe is very sincere and hardworking airman. He has taken special interest in improving the serviceability of MT vehicles. Exceptionally suitable.â
2(f) The petitioner would further contend that while the matter stood thus, his Course-mates JWO Laxminarayana, JWO BN Singh and JWO Shukla have all been granted extension of service and retained in the IAF. The petitioner would also say that granting of extension would seem to be at the whims and fancies of higher-ups and even in an instance of WO D H Rao, of Accounts trade of Shillong, who was to go on discharge, has been granted extension at the eleventh hour to stay back in the IAF.
2(g) The petitioner would contend that paragraph 4 (a) of Air Force Order (AFO) 11/99 was not being implemented fairly. The petitioner would say that even though extension of service cannot be claimed as a matter of right, the discretionary powers of respondents 2 and 3 do not appear to be free from malice and would say that the denial of extension to the petitioner without bringing to his notice the false reports has cut short his future service while his children are still studying in colleges in Chennai and Hyderabad and thus the action of the respondents in not granting extension of service is malafide and hence the petition.
3. The respondents in their common counter would raise a preliminary objection to say that the petitioner had not strictly exhausted the departmental remedies available to him in terms of Section 26 of Air Force Act 1950 and para 621 of the Regulations for the Air Force (revised edition) 1964 before approaching the Honble High Court. The respondents, while confirming the details of service of the petitioner having completed initial twenty years of service and a further nine years of extension in two spells of six and three years, would confirm that his present engagement expires on 31.07.2003. The petitioners application for further extension, after due processing, was turned down by AFRO vide their signal bearing No.RRD/785 dated 06.06.2002 since he did not fulfil the required criteria as per AFO 11/99 (extension of service beyond the initial term of engagement can not be claimed as a matter of right. Grant of extension will depend on the requirements of service and also the suitability of the airmen seeking such extension). Air Force Record Office (AFRO), thereafter, issued a discharge order in respect of JWO vide RO/2504/2/RW(Dis) dated 07.06.2002 for discharging him from service w.e.f. 31.07.2003. After the application of the petitioner for extension was turned down on 06.06.2002, the petitioner had put an application to the Commandant, Air Force Academy for re-consideration. At the Air Force Academy, the application was disposed of by the Base Commander with the remarks that the case is to be closed in accordance with AFO 11/99 and it cannot be taken up further and the same will not be forwarded to the AFRO and Air HQs.
3(a) The petitioner, thereafter, kept quiet and did not submit any application or representation. The request of the JWO for grant of extension of three years was turned down by the AFRO as per paragraph 4 (a) of the AFO 11/99, which reads as follows :
âExtension of service beyond the initial term of engagement can not be claimed as a matter of right. It shall be the discretion of Air HQ or such other authority, as may be specified by Air HQ, to grant or deny extension of service. Grant of extension or its denial shall depend on the requirement of the service and also the suitability of the airmen seeking such extension.â
3(b) The respondents, while confirming the strength of the petitioners family, would however, deny any knowledge of the state of health of the petitioners wife as brought out by him in his petition. They would say that the grant of extension has been rejected as per the policy of the IAF. The respondents would re-iterate once again, that while the petitioners application was forwarded after he was in a fit medical category âAYEâ and recommended suitable by Air Office Commanding (Base), Air Force Academy to the AFRO. However, extension of service was not agreed to by the AFRO in accordance with paragraph 4 (a) of AFO 11/99. The petitioner, subsequently submitted an application on 17.06.2002 to the Commandant, AFA for re-consideration of his request for extension of service. The request of the petitioner was turned down at the Air Force Academy by the Base Commander in accordance with HQ TC letter No.TC/10021/P3 dated 25.10.1999, which has been re-produced at Annx. âEâ to the typeset. This application was not forwarded to the Command HQs / AFRO as per the aforesaid policy on the subject.
3(c)The respondents would say that the contention of the petitioner that he was interviewed by the Commandant, AFA and was informed that there were some adverse report against him for involving himself in religious activities due to which he could not be retained in the IAF, is totally concocted, false and deserves to be rejected. The respondents would say that there was no adverse report against the petitioner and references to this by the petitioner are denied. The respondents would aver to the facts that the Air Force makes no discrimination on grounds of colour, creed or religion and the allegation made by the petitioner that he was denied extension since he belonged to a particular community are biased and un-founded and deserves to be rejected. The petitioner was assessed âsuitable only by the AOC (Base), AFA while forwarding the application on 01.10.2001 for grant of extension of service.
3(d) Further, the allegation made by the petitioner that he was discriminated vis-a-vis. his course-mates is also totally false and unfounded. Each case is dealt with by AFRO as per merits of the case, the number of tradesmen required and the existing policy on the subject. The fact remains that in the case of the petitioner his extension could not be granted in accordance with paragraph 4 (a) of the AFO 11/99. Hence, the petition is liable to be dismissed.
4(a) In the reply affidavit filed by the petitioner, having gone through the counter-affidavit of the respondents, the petitioner would say that respondent No.4 was fully aware that it is the respondent No.2 who is empowered to grant extension. The refusal of respondent No.4 to forward his application to respondent Nos. 2 and 3 on the grounds of existing policy runs counter to their contention that the petitioner did not exhaust remedies available under the Air Force laws. In the Air Force, all representations are addressed to the local commander who, in turn, forwards it to the higher authorities through proper channel. The petitioner once again re-iterates that his grievance is that the discretionary powers vested with the respondents are being misused and not being exercised fairly. Except for saying that the petitioner did not fulfil the required criteria as per AFO 11/99, no reason has been spelt out as to what exactly is the criteria. On the generic ground of âservice requirements the respondents are misusing their powers without transparency. In the same vein, the petitioner would once again reiterate that his application of 17.06.2002 for re-consideration, having been denied the extension, was not forwarded by respondent No.4 on grounds of existing policy. The petitioner would agree that he was not awarded any commendation or decoration, but would also say that the same grounds are not found to be a discrimination in the case of those airmen who have been granted extension. The petitioner would once again re-iterate that he was interviewed by respondent No.4 and was told that there were some adverse reports against the petitioner being involved in religious activities.
4(b) In the end, the petitioner, as per information available to him, would refer to a similar case, according to him, in WP 16362 of 2001, wherein the Honble High Court of Andhra Pradesh, by an order on 08.10.2001, had directed the respondents to maintain the status quo and would pray for consideration of the petition. (But the order in WP 16362/2001 was not filed.)
5. This morning, the respondents have filed an additional counter stating that there is an intelligence report against the petitioner which was taken into consideration when the petitioners case has been considered for extension of service. The respondents had also made a reference to a report from Air HQs bearing No.Air HQ/S 20173/2516/A(S) dated 13.08.2003 which encloses a copy of the Directorate of Intelligence input dated 18 Feb., 02 which was considered crucial for deciding the case for non-grant of extension to the petitioner. This letter with the Intelligence input letter, was placed for the perusal of the Members of the Tribunal.
6. We have heard the learned counsel for the Petitioner and the learned Senior Central Government Standing Counsel assisted by Lt Col Sandeep Kumar, Legal Officer, ATNKandK Area HQ and Sqn Ldr P M Ilamurugu(27305-G), Adjutant of Air Force Station, Tambaram (who has brought the confidential documents for perusal of the Tribunal) and considered their submissions. We have also perused the remark of D Int on page No.1 of the application for extension of engagement in respect of the petitioner. The remark has been shown and shared with the learned counsel for the petitioner. We have also perused the confidential letter No.Air HQ/4012/ME/270/PA(CC) dated 20.12.2010 addressed to 23 ED Air Force (OIC, Legal Cell) enclosing therein the inter-office note Air HQ bearing No. Air HQ/S 20173/2516/A(S) dated 13.08.2003 of the Directorate of Intelligence (Security) bearing the subject matter as WP 11219 of 2003 filed by JWO Masoom Ali Vs UoI and others in the High Court of Andhra Pradesh and another confidential letter of Air HQs bearing No.20173/2516/A(S) dated 18.02.2002 addressed to AFRO. In the last letter mentioned, the subject matter pertains to security clearance for extension of engagement of airmen.
6(a) Having heard at length the arguments advanced by the learned counsel for the petitioner with regard to not having been communicated detailed reasons for denial of extension and not having been given a chance to send the petitioners application for reconsideration to the higher authorities and on the other hand, the arguments advanced on the side of the respondents in favour of maintenance of confidentiality in cases involving doubtful integrity from security point of view, we find that the only point for consideration in this application is whether the petitioners case for grant of extension has been denied in accordance with the policy on the subject as also in terms of conveying such an order in a fair and transparent manner?
7. THE POINT :At the heart of the rejection is the Air Force order referred as AFO 11/99. Paragraph 4 (a) of the order which is germane to the issue is extracted below:
â4. The principles are explained below:-
(a) Service Requirement : 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 by Air HQ, to grant or deny extension of service Grant of extension or its denial shall depend on the requirements of the service and also the suitability of the airmen seeking such extension.
(b) â¦â¦.
(c) â¦â¦.
(d) â¦â¦.
(e) â¦â¦.
(f) â¦â¦.
(g) â¦â¦.
(h) â¦â¦.
7(a) Further, paragraph 8 of this same AFO reads as under :
â8. Extension of Engagement of certain specific cases : Cases for extension of engagement in the following specific cases will be referred to Air HQ by AFRO for a final decision with the specific recommendations of AOIC AF Records, along with brief facts of the case in duplicate, application of the airman and extract of conduct sheet.
a) Airmen who have either undergone or are undergoing pre-cum-post release course;
b) Airmen whose discharges have duly been authorised but subsequently submit willingness to extend their service due to compelling compassionate grounds;
c) Airmen who have not been categorised/declared potential/habitual offenders but have one Red Ink or two Black Ink entries in the preceding five years as mentioned in para 4 (e) above;
d) Airmen not recommended by Dte of Intelligence, Air HQ.â
7(b) The Tribunal also perused Annx. âEâ to the typeset of the respondents referring to a policy letter bearing No.TC/10021/P3 dated 25.10.1999 of Head Quarters Trg Command, IAF, Bangalore which the respondents rely on saying that there have been numerous cases of airmen, not having been granted extension by AFRO, have submitted applications for reconsideration of their cases. Apparently, the policy letter would say where the extension of engagement is not considered by the AFRO for not meeting the minimum eligibility criteria, no application will be forwarded either by AFRO or by the HQ as relaxation in the minimum eligibility criteria is not permissible. This same letter would go on to say that similarly, where specific cases are referred to this HQs by AFRO for decision under para 8 of AFO 11/99, this HQ examines each case on its merit and communicates its decision to AFRO. Such cases referred to this HQ under this provision and finally rejected by the competent authority will not be reconsidered unless there are extreme grounds to do so, which should invariably be supported by documentary evidence. The full contents of this letter are also re-produced:
âTele : 309 4318
HQ Training Command, IAF Bangalore 560 006
TC/10021/P3 25 Oct 99.
AFA
(All Units under HQ TC, IAF)
(For Comdts/AOC/Stn Cdrs/COs)
POLICY : AFO 11/99 EXTENTIONOF ENGAGEMENT
AIRMEN â APPLICATION FOR RE-CONSIDERATION
1. Reference is made to this HQ letter of even number dated 19 Aug 99 forwarding Air HQ letter No. Air HQ/40811/PA III dated 29 Jul 99 and advance copy of AFO 11/99.
2. Appended below please find contents of Air HQ letter No.40811/PA III dated 04 Oct 99 for information and strict compliance:
âAFO 11/99 lays down exhaustive guidelines for submission of application for extension of engagement and action required to be taken by various authorities in this regard. It has, however, been observed that airmen who are not granted extension by Air Force Record Office (AFRO) for not meeting the minimum eligibility criteria as laid down in AFO 11/99, are submitting applications for re-consideration of their cases. It is clarified that as a policy, it has been laid down that airmen who do not meet the minimum criteria will not be considered for extension of engagement and no relaxation will be made in this regard. Accordingly, where extension of engagement is not considered by AFRO for not meeting the minimum eligibility criteria, no application for reconsideration will be forwarded either to AFRO or to this HQ, as relaxation in the minimum eligibility criteria is not permissible.â
Similarly, where specific cases are referred to this HQ by AFRO for decision under para 8 of AFO 11/99, this HQ examines each case on its merit and communicates its decision to AFRO. Cases referred to this HQ under the above provisions and finally rejected by the competent authority will not be reconsidered unless there are extreme grounds to do so, which should invariably be supported by documentary evidence. Applications forwarded to this HQ for reconsideration through AFRO without any supporting documents or where there is no material change in the grounds specified earlier will not be entertained. Applications for reconsideration may be scrutinized and only deserving cases accompanied by supporting documents be forwarded for reconsideration.
Sd/- XXXXXX
(RPM Nair)
GpCapt
SPSO
For SOAâ
7 (c) In the first of the two documents produced by the respondents in their affidavit today, the remark of D Int which has been made on page No.1 of the application of the petitioner, i.e., ânot cleared by D Int â Ref Air HQ /S.20175/2(AI)S dated 18.02.02. The confidential letter No. Air HQ/S 20173/2516/AI(S) dated 13.08.2003 gives enough ground to say that while there is no concrete evidence of the petitioner indulging in any anti-State activities, (thus preventing initiation of formal disciplinary action), his conduct does warrant discrete watch to be kept on his activities. The enclosure to that confidential letter No. Air HQ/S20173/2516/AI(S) dated 18.02.2002 includes names of three airmen for possessing adverse character traits and these are :-
a) _______, JWO - indulges in corrupt practices;
b) Masoom Ali, JWO â xxxxxxxx
c) Cpl ____ - a case of habitual offender and indulges in heavy drinking.
7(d) A perusal of the above documents placed in front of the Members of the Tribunal today and hearing the arguments advanced on the side of both the petitioner and the respondents, clearly establishes that the respondents have, while considering the case of the petitioner for extension, been guided by security considerations which is inherent in âservice requirements â para 4(a) of AFO 11/99. The remark on page 1 of the application of the petitioner ânot cleared by D Int and remarks on personal character qualities perused by us in the letter placed in respect of two other airmen, would go to show the bonafides of the respondents in strictly adhering to the policy and yet for want of documentary evidence, not being in a position to state it as such, while promulgating the orders of non-grant of extension to the petitioner. The reliance placed on the policy letter placed at Annx. âEâ to the typeset of proceedings of non-entertainment of such applications for re-consideration would also justify their stand on taking shelter under the existing policy. It is a clearly admitted fact by the respondents that the individual, on being denied extension, made a formal application on 17.06.2002 and the same was not forwarded for re-consideration. Perusing the remark of the D Int. on page 1of the application , the remarks of the officers who considered the case of the petitioner in the Board, including the final approval granted by the ACAS (Asst. Chief of Air Staff) (PAandC) on 25.05.2002 that the petitioner has been given due credit for the total marks of nearly 90 per cent (88.8 %) as against the required marks of 72.5 per cent and also having no Red Ink entry except for one minor punishment of Admonition, we are satisfied that the case of the petitioner has been fairly considered and the respondents have been unable to overcome the constraints of policy which in turn has been dictated on security considerations.
7 (e) There remains only one point in terms of not having given a chance for reconsideration to the petitioners application of 17.06.2002, and the denial on grounds of policy. Since the AFO is only a restricted document and it should be accessible to all airmen, we find inexplicable that in the same AFO, wherein para 8 (d) is mentioned as âairmen not recommended by D Int Air HQs as to why this could not have been communicated after reconsideration of the airmens application. This alone, perhaps, has led to this airman making a plea initially at the Honble High Court of Andhra Pradesh and sustaining the litigation all these years, till later transferred to the Tribunal of the AFT.
7(f) Considering the long period of service of the petitioner with sustained good conduct and considerations for his family, we find the ends of justice would be met by notionally granting the three years of extension which he would have been entitled to had be not been denied the same.. This additional period of three years would only go so far as to add to his total weightage for pensionable service. The point is answered accordingly.
8. In fine, the petition is disposed of in the following terms :
(i) The petitioner is notionally granted the extension of three years as sought with the date of discharge being extended by three years;
(ii) We make it clear that he is not entitled to his back-wages.
(iii) The confidential documents produced today are to be kept under safe custody by the Registrar till appeal time is over and shall be returned to the respondents on proper application. The learned counsel for the petitioner at this juncture orally applied for Leave to appeal. But, we consider the case as not a fit one to be granted Leave to Appeal as per Section 31 (1) of the Armed Forces Tribunal Act, 2007, since there is no point of law of general public importance involved in this petition.
(iv) No costs.