Letters Patent Appeal No.301 of 2008 (Against the judgment and order dated 11.3.2008 passed by Hon’ble Mr. Justice Shiva Kirti Singh in C.W.J.C. No. 3535/2008) ABHIMANYU KUMAR, S/O- SRI TRIBENI PD. SINGH, RESIDENT OF VILLAGE- LAXMIPUR, P.O.- LAXMIPUR, P.S.- BARAHAIYA, DISTRICT- MUNGER, 741205- F LAC. A KUMAR, ADSO 71 SU AIR FORCE --------Appellant Versus 1. UNION OF INDIA THROUGH COMMANDING OFFICER, 71 SU SRI S. S. P. RAO, 2. SECTION COMMANDER, AIR FORCE STATION, BIHTA, PATNA (BIHAR) (SRI B MALLIK (COO- 71 SU) AIR FORCE). 3. ADJT 6C & MU – 71 SU AIR FORCE, BIHTA, PATNA. For the appellant : Mr. Tara Kant Jha, Sr. Advocate Mr. Amish Kumar, Advocate For the U.O.I : Mr. Sarvadeo Singh, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K. Katriar & Kishore K. Mandal, JJ Heard Mr. Tara Kant Jha for the appellant, and Mr. Sarvadeo Singh, learned counsel for the respondents. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the petitioner of C.W.J.C. No. 3535/2008 (Abhimanyu Kumar Vrs. Union of India & Ors.), and raises a grievance with respect to dismissal of the writ petition by order dated 11.3.2008. The respondents filed counter affidavit in the writ petition as well as in the present 2 L.P.A., and have supported the impugned order. The writ petitioner challenged the order of discharge from the Indian Air Force (hereinafter referred to as the I.A.F.), but the writ petition was dismissed. Hence this appeal. 2. We shall go by the description of the parties occurring in the writ petition. The petitioner was enrolled in the I.A.F. on 22.3.1994 as Aircraftsman. Show-cause notice dated 19.10.2007 (Annexure-1), was issued calling him upon to show cause as to why he be not discharged from service under Rule 15 (2) (g) (ii) of Air Force Rules, 1969 (hereinafter referred to as the Rules), read with Rule 15 (2) of the Rules. The reasons for the proposed action were indicated therein, namely, extremely bad record of service. The petitioner had shown cause by his communication dated 4.12.2007 (Annexure-3). This was followed by order dated 28.1.2008 (Annexure-B in the appeal), whereby the petitioner was discharged from service of the I.A.F., under the aforesaid provisions of law for his extremely bad record of service. The same in original was served on the petitioner on 19.2.2008. It is relevant to state that the petitioner did not challenge this order in the writ proceedings and has been brought on record by the respondents in appeal. 3. On the other hand, the petitioner was required to pass C.P.L. promotion examination for his promotion as Corporal. The petitioner had appeared in the examination but failed to pass the same as a result of which the petitioner cannot continue 3 beyond 15 years of service. This led to the order dated 7.11.2007 (Annexure-2 to the counter affidavit in the writ proceeding), whereby the petitioner was discharged from service for having failed to pass the C.P.L. promotion examination. The order of discharge was to become effective w.e.f. 31.3.2009. This was followed by inter-departmental communication dated 19.11.2007 (Annexure-2), whereby it was directed that the order of discharge on the ground of not having passed the examination may be communicated to the petitioner. The same also stated that the order of discharge was to be effective w.e.f. 31.3.2009, and, in fact, was a summary of the aforesaid order dated 19.11.2007. This was followed by the communication dated 11.2.2008 (Annexure-4), wherein it is stated that the petitioner shall be discharged from service w.e.f. 24.2.2008. It is also stated that the petitioner was required to report for collection of clearance of required documents. The petitioner challenged the order dated 11.2.2008, by preferring the writ petition which was dismissed by a learned Single Judge of this Court by the impugned order. 4. Learned counsel for the petitioner raises a grievance before this Court that once the order dated 19.11.2007 (Annexure-2), had fixed 31.3.2009 to be the date of discharge from service, the same could not have been preponed to 24.2.2008, by the impugned order. It is further submitted that once the said order dated 19.11.2007 (Annexure-2), fixing 31.3.2009 as the date of discharge was communicated to the 4 petitioner, it created enforceable right in his favour. The same could have been altered as has been done by the order dated 11.2.2008 (Annexure-4) only after affording an opportunity of hearing. He next submits that impugned order does not assign reasons in support of the order. He relied on the following reported judgments: (i) A.I.R. 2007 S.C. 1363 (Union of India and Ors. Vrs. Jai Prakash Singh & Anr. and (ii) 2008 (2) P.L.J.R. 363 Komal Tiwari Vrs. The State of Bihar & Ors). 5. Learned counsel for the respondents has supported the impugned action. He submits that the order dated 28.1.2008, brought on record by Annexure-B to the counter affidavit in appeal, discharging the petitioner from service on account of extremely bad record of service (habitual offender) in terms of Rule 15 (2) (g) (ii), has not been challenged in the writ proceeding, and has attained finality. He next submits that the aforesaid order dated 19.11.2007 (Annexure-2), discharging the petitioner from service w.e.f. 31.3.2009, on the ground of not having passed the examination, was never conveyed to the petitioner. He further submits that, in view of the position that after the respondent authorities noticed that the petitioner had already been discharged from service on account of bad record of service, the order dated 19.11.2007 had to be modified. He further submits that the order dated 19.11.2007 was not communicated to the petitioner. 6. We have perused the materials on record and 5 considered the submissions of learned counsel for the parties. It appears to us that show-cause notice was issued to the petitioner on 19.10.2007, as to why he be not discharged from service because of extremely bad record of service (habitual offender). The petitioner had shown cause on 4.12.2007 (Annexure-3). On a consideration of the entire materials on record, he was discharged from service by order dated 28.1.2008 . It appears on a plain reading of the same that the petitioner had himself received the original copy on 19.2.2008, on which date the discharge order became effective forthwith and, therefore, did not need any order in any parallel proceeding to discharge him from service. As noticed hereinabove, he never challenged this order and has attained finality. It further appears on a perusal of the order that it was after full consideration of the case shown by the petitioner. To conclude this part of the matter, we are convinced that the petitioner was discharged from service as a habitual offender in terms of Rule 15 (2) (g) (ii) of Rules, on a full consideration of the cause shown by the petitioner. The order dated 28.1.2008 cannot be faulted and has attained finality. 7. It further appears that the petitioner simultaneously gave another cause of action to the respondent authorities. He did not pass the requisite examination to get promoted as a Corporal, and cannot continue under the relevant Rules as a member of the I.A.F. beyond 15 years of service if he is below the rank of Corporal. In that view of the matter, the order was passed 6 discharging the petitioner from service on that ground. It further appears that the respondent authorities did pass the order dated 19.11.2007, discharging him from service w.e.f. 31.3.2009, because he had not passed the examination and cannot, therefore, be allowed to complete 15 years of service. This order remained confined to the relevant files of the respondent authorities. This was followed by the consequential order dated 19.11.2007 directed to be communicated to the petitioner. The respondents have taken the stand in the counter affidavit that the order dated 19.11.2007, was never communicated to the petitioner and the same cannot, therefore, create any enforceable right in favour of the petitioner. The following portion of paragraph 16 of counter affidavit must be reproduced: “Para 16: ……………… The Annexure-2 annexed by the petitioner in writ petition is a copy of letter addressed to various sections informing about the issuance of discharge order in respect of the petitioner, which was to take effect on 31 Mar 09 and the petitioner was never conveyed of the issue of this discharge order since his case was processed for discharge under habitual offender policy. It is not understood as to how the petitioner got the possession of this letter.” (emphasis added) Once it is held that the order dated 19.11.2007 was never communicated to the petitioner, and the same remain confined to the files of the respondent authorities maintained in routine course of business, the same did not create any enforceable right, and the authorities were free to alter the same. Accordingly, the order 11.2.2008 (Annexure-4) was issued whereby it was 7 conveyed to the petitioner that he had been discharged from the service w.e.f. 24.2.2008, for having failed to clear the examination. In that view of the matter, we do not find any fault with the impugned order. The appeal is dismissed. Patna High Court 15th April, 2009 NAFR/pkj (S.K. Katriar, J) ( Kishore K. Mandal, J. )