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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24.12.2024
+ W.P.(C) 17909/2024
LAC ARVIND KUMAR (SER NO. 962396-H) ....Petitioner
Through: Ms. Garima Parsad, Sr. Adv.
with Mr. Pradeep Shukla, Mr.
Arvind and Ms. Mukta Arora,
Advs.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Kameshwar Nath Mishra,
SPC with Ms. Vidya Mishra
and Mr. Ashish, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (ORAL)
CM APPL. 76224/2024
1. Allowed, subject to all just exceptions.
W.P.(C) 17909/2024
2. This petition has been filed by the petitioner, challenging the
Order dated 19.12.2024 passed by the learned Armed Forces Tribunal,
Tribunal Original Application
Principal Bench, New Delhi (“ ”) in
LAC Arvind Kumar v. Union of India
(“OA”) No. 5269/2024 titled
& Ors., by which the learned Tribunal has refused to grant an interim
order of continuation of service of the petitioner.
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3. The petitioner had filed the above OA before the learned
Tribunal, challenging the Air Force Instruction 1/2019 and the Policy
letter dated 13.06.2023. The petitioner has further challenged the
Order dated 06.06.2024, by which the petitioner was asked to show
cause as to why he should not be discharged from service under the
Rule 15(2)(e) of the Air Force Rules, 1969, as having been found
inefficient and unwilling to accept re-mustering.
4. Though the petitioner has replied to the Show Cause Notice
dents.
(“SCN”), the final decision is yet to be taken by the respon
5. Apprehending that the petitioner would be discharged from
service, the petitioner approached the learned Tribunal, also praying
for an interim relief restraining the respondents from discharging the
petitioner from service. However, the said prayer has been rejected by
the learned Tribunal by the Impugned Order.
6. The learned Senior Counsel for the petitioner submits that the
learned Tribunal has failed to appreciate that, in terms of Air Force
Instructions No. 12/S/48, which were in force when the petitioner
joined the service with the respondents, the period of engagement
mentioned in Clause 12(a) was for a period of 20 years. It was further
provided that those who failed to attain the rank of Corporal within 15
years would be discharged. She submits that, therefore, a minimum of
15 years of service was protected under the said Policy, which was
applicable to the petitioner,
7. In the course of service of the petitioner, however, the
respondents issued a fresh Policy in the form of Air Force Instruction
No. 1 dated 02.09.2019, Clause 11 whereof provided that all
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candidates joining the respondents shall be enrolled for 20 years of
regular service. In Clause 15(b) thereof, however, it empowered the
respondents to discharge an Airman at any time on the ground of
finding him inefficient in rank or trade (failure to clear MOD-II /
in three permissible
Corporal Promotion Examination (“CPE”)
chances and unwilling to remuster).
8. She submits that the said Policy was implemented by an Order
dated 13.06.2023, wherein it was further provided that Airmen, who
have failed to clear the MOD-II and hence become ineligible for CPE
and have 11 years or lesser of service as on 31.12.2022, shall be given
an option to remuster, and in case, they express their unwillingness to
remuster, then they shall be discharged under Rule 15(2)(e) of the Air
Force Rules.
9. She submits that the same policy, however, discriminates in
favour of those Airmen who have completed more than 11 years of
service as on 31.12.2022, in as much as these Airmen are not to be
discharged.
10. She further submits that certain Airman, who, in fact, prayed for
being discharged from service, were refused permission on the ground
that the administrative procedure laid down for the discharge has not
been followed in their case. The same is the position as far as the
petitioner is concerned in as much as the administrative procedure as
laid down in the Policy letter dated 26.12.2014 has not been followed,
however, the petitioner is sought to be discharged from service.
11. She submits that, therefore, the petitioner had made out a prima
facie case for the grant of an interim order of protection in his favour.
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12. She submits that considering that the petitioner has a family to
sustain, the balance of convenience was also in favour of the
petitioner.
13. The learned Senior Counsel for the petitioner submits that,
although the petitioner could not clear the MOD-II examination
required for attaining the rank of Corporal, however, did clear his own
trade examinations and has been granted promotion. The respondents
have therefore, wrongly contended that he is inefficient.
14. On the other hand, the learned counsel for the respondents, who
appears on advance notice, submits that the jurisdiction of this Court
to interfere with an interim order of refusal to pass the same by the
learned Tribunal, is restricted. He further submits that the learned
Tribunal has duly considered the submissions of the petitioner and
thereafter, found that the petitioner has not been able to make out a
case of irreparable loss being suffered. The learned Tribunal has
observed that in case the petitioner succeeds in the OA, he shall be
reinstated in service with full benefits and seniority. He submits that,
therefore, a balance has been struck by the learned Tribunal and
warrants no interference by this Court.
15. We have considered the submissions made by the learned
counsels for the parties.
16. Rule 15(2)(e) read with Clause (e) of the Table appended
thereto, states that persons enrolled under the Act who have attested,
having been found inefficient in his rank or trade, and being unwilling
to accept reduction or remustering, may be discharged from the
service. The Policy letters governed the manner in which this power is
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to be exercised by the respondents.
17. In the present case, the petitioner has admittedly failed to clear
the MOD-II examination in spite of three chances granted to the
petitioner. Futhermore, the petitioner has also refused to accept
remustering.
18. At this stage, we must note that, though in his reply to the SCN,
the petitioner has contended that he is ready to be remustered, the
learned Senior Counsel for the petitioner before us has urged that such
remustering is also against the Policy as the petitioner would lose his
seniority, pay and allowances.
19. In our opinion, the claim of the petitioner that the petitioner is
to be governed only by the Policy issued under Air Force Instruction
12/S/48 and not by the 2019 Policy, can be considered by the learned
Tribunal only on obtaining a response from the respondents. For the
present, an Airman, who is sought to be discharged from service on
the ground of inefficiency cannot be forced upon the respondents by
way of an interim order. By way of an interim order, final relief in the
OA could not have been granted by the learned Tribunal and, hence,
has been rightly rejected by the learned Tribunal.
20. The learned Tribunal has also clarified that in case the petitioner
succeeds in the OA, not only will he be reinstated in service, but also
be entitled to salary and other allowances, seniority and other
consequential benefits on his reinstatement. The learned Tribunal has,
therefore, also balanced the equity.
21. In any case, as noted herein above, the respondents are yet to
take a final decision on the SCN. We have no reason to doubt that the
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respondents shall keep in mind the case of the petitioner, including the
submissions that have been made and recorded hereinabove by us,
while taking its final decision.
22. We, therefore, find no infirmity in the Impugned Order passed
by the learned Tribunal and no reason to interfere with the same.
Accordingly, the present petition is hereby dismissed.
23. We make it clear that any and all observations made by us
herein above are only prima facie in nature and shall in no manner
prejudice the case of the petitioner before the learned Tribunal or the
consideration of the SCN by the respondents.
NAVIN CHAWLA, J
SHALINDER KAUR, J
DECEMBER 24, 2024/ss/sk
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By:NEELAM
Signing Date:27.12.2024
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