Capt. Pawan Kumar Vs. Chief of Air Staff and anr. - Court Judgment

K. Ramamoorthy, J.

1. The writ petitioner was enrolled in the Indian Air Force in 26.11.1985. At the time when he joined the service he had passed all necessary examinations. Later on, in the year 1992 he acquired Engineering degree. Subsequently he acquired M.B.A degree in April 1996, from Pune University.

2. On 28.02.1997, the petitioner applied for premature discharge as he had completedthe age of 30 years and having regard to his higher educational qualification, if he getsdischarge he can get the better employment. According to the petitioner on the basisof the post he has held as he crossed 30 years. He is not eligible to be considered forcommissioning. But according to the learned counsel for the respondents the can still apply for commissioning when he became a Sergeant until he attainsthe age of 40 years. The respondents had filed annexure R-1 which is the instructionsor guidelines for discharge of Airmen on Educational Grounds. Para 2 of the instructions read as under:

The discharges granted so far under this policy were analysed recently to remove the disparties that have crept into it over the years. The policy decision taken in the light of this analysis is indicated below:

(a) Qualification: The academic qualifications prescribed for direct commissioning are laid down by Dte. of Personnel (Officers) at this HQ. A serving airman must have acquired the laid down qualifications with prescribed percentages of of marks division as applicable and must submit his application for grant of commission within one year of his acquiring the qualifications(i.e. Date of Mark Sheet/Provisional Certificate, whichever is earlier). This aspect is to be verified by the unit while forwarding the application for commissioning to this HQ (Dte of PO). Airmen who fulfilll the prescribed qualification and do not apply for commissioning within one year of acquiring such qualification are not eligible to seek discharge.

(b) Age AH 79/70 amended vide Corrigendum 14/74 relaxes upper age limit by four years for the airmen of the rank of Cpl. and below possessing prescribed qualifications over and above that prescribed for corresponding civilian candidates. Likewise, airmen of the rank of Sis and above fulfillling the laid down eligibility conditions must apply for direct commissioning up to the age of 40 years, provided they have put in at least 10. years of service as on date of commencement of the course. Airmen, thereforee, must become coverage within the permissible relaxed age limit for applying for discharge under this policy appropriate to their rank.

(c) Number of Attempts: Airmen, after acquiring requisite qualification vide (a) above and within the prescribed (relaxed) age limit must avail a maximum of three attempts to be selected for grant of commission, irrespective of as a Cpl and/or Sgt. The application for first attempt must be within one year of this acquiring the qualification vide (a) above and if he fails to qualify in the third attempt, he can seek immediate discharge from service within 6 months of availing the third chance vide (b) above.

(d) Sits who acquire the requisite e'ducational qualifications for Permanent Commission at an age which do not permit them to avail all three chances for commissioning, may opt for immediate discharge within six months of becoming overage, even if they do not avail the prescribed number of attempts vide (b) above.

(e) The grant of discharge is at the discretion of Air HQ.

3. Learned counsel for the respondents submits that the petitioner did not apply for commissioning within one year and one can apply for three times and he did not do it and thereforee, the petitioner is not entitled to discharge. It is stated in the counter affidavit that the application for discharge was considered and rejected by the competent authority. The petitioner can appear for the commissioning up to the age of 40 years and the case of the petitioner that there is no opportunity for promotion is not correct.

4. I am of the view that the authority like respondents should act in a rational and reasonable manner when a request is made by an officer like the petitioner. The functioning of the authority like the respondents is circumscribed by the parameters laid down by the Supreme Court in several decisions regarding exercise of discretion by public authorities.

5. In the Administrative Law, 7th edition, H.W.R. Wade and C.F. Forsyth the statement of law is in the following terms.

'The characteristically legal conception of discretion just explained is firmly established and dates at least from the sixteenth century. Rooke's Case (1598) 5 CR 99. referred to by Lord Halsbury, contains a well-knownstatement made in 1598 which has lost nothing of its accuracy in nearly 400 years. The Commissioners of Sewers had levied charges for repairing a river hank, hut they had thrown the whole charge on one adjacent owner instead of apportioning it among all the owners benefitted. In law they had power to levy charges in their discretion. But this charge was disallowed as inequitable and the report proceeds, !n Coke's words:

..... and notwithstanding the words of the Commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and hound with the rule of reason and law.'

Learned Coke in the year 1647 had laid down:

wheresoever a commissioner or other person hath power given to do a thing at his discretion, it is to be understood of sound discretion, and according to law, and that this court hath power to redress things otherwise done by them.'

The learned author (under an admitted law) expressed his view on reasonableness in the following manner:

Unreasonableness has thus become a generalised rubric covering not only slider absurdity or capriee, hut merging into illegitimate motives and purposes, a wide category of errors commonly described as 'irrelevant considerations and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question. But the language used in the cases shows that, while the abuse of discretion has this variety of differing legal facts, in practice the courts often treat them as distinct. When several of them will fit the case, the court is often inclined to invoke them all.

6. The Supreme Court has also laid down the principle to as how the authorities should be reasonable in exercising discretion. A reading of the counter would show that the respondents had not approached the question in its proper perspective. I am not able to appreciate the stand taken by the respondents in the counter. The respondents ought to have granted the relief to the petitioner especially when he states that he does not claim any monetary benefits and he wants the respondents only to relieve him from duty honourably when his chances of climbing up the rungs of the ladder of service are dim and bleak Learned counsel for the petitioner submits that the petitioner is not seeking any benefits when he is granted discharge. Mr. Narender Kaushik, learned counsel for the petitioner fairly stated that what he is doing is only to submit the resignation implicate and the nomenclature of the employed by the respondents is 'discharged'. So far as the facts of this case are concerned, the term discharge would only mean resignation, fn these circumstances, I am of the view, that the petitioner is entitled to discharge.

7. Accordingly, the writ petition is allowed. The petitioner shall stand discharged witheffect from 31.03.1998 without any monetary benefits. There shall he no order as to costs.