WP(C) No.9109/2005 Page 1 of 38 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Reserve : 29.02.2008 Date of Decision : 14.03.2008 +1. WP(C) No.9109/2005 Sqn. Ldr. Himanshu Goswami F (P) .... Petitioner S.NO. – 22728 (L) 88 Pocket B, Phase II, Ashok Vihar, Delhi – 52 Versus 1. UOI, Secretary, Ministry of Defence South Delhi Block, New Delhi 2. Chief of Air Staff, Vayu Bhawan, New Delhi ... Respondents Advocates who appeared in this case : For the petitioner : Mr.Rajiv Shakdher, Sr.Advocate with Mr.Rakesh Gosain, Advocate For the respondents : Ms.Jyoti Singh, Advocate 2. WP(C) No.20269/2005 Sqn. Ldr. V. Shukla ...... Petitioner Versus 1. Union of India Secretary, Ministry of Defence, WP(C) No.9109/2005 Page 2 of 38 South Delhi Block, New Delhi 2. Chief of Air Staff, Vayu Bhawan, New Delhi ..... Respondents Advocates who appeared in this case : For the petitioner : Mr.Rajshekhar Rao and Mr.Akashdeep Singh. For the respondents : Ms.Jyoti Singh 3. WP(C) No.11359/2005 Sqn. Ldr. P. Bakshi ...... Petitioner Versus 1. Union of India Secretary, Ministry of Defence South Delhi Block, New Delhi 2. Chief of Air Staff, Vayu Bhawan New Delhi ..... Respondents Advocates who appeared in this case : For the petitioner : Mr.Manmohan, Sr.Advocate with Mr.Rakesh Gosain, For the respondents : Ms.Jyoti Singh, CORAM : HON'BLE MR. JUSTICE A.K. SIKRI WP(C) No.9109/2005 Page 3 of 38 HON'BLE MR. JUSTICE J.M. MALIK (1) Whether the Reporters of local papers Yes may be allowed to see the judgment? (2) To be referred to Reporter or not? Yes (3) Whether the judgment should be Yes reported in the Digest? J.M. MALIK, J. * 1. The core issue in all the abovesaid three petitions is whether all the petitioners who are working as pilots/Sqn. Leaders are entitled to discharge from service/pre-retirement from Indian Air Force. The facts and questions of law are almost identical hence this judgment would dispose of all the three petitions. 2. Case of Sqn. Leader Himanshu Goswami (F) WP (C)No.9109/2005. The petitioner in response to a public notification in the year 1990-1993 applied and was selected for the flying branch of Indian Air Force. After successful training he was commissioned as pilot and rose to the rank of Sqn. Leader having specific duty of flying Transporter Aircraft and other secondary duties as per the directions and orders of the respondents as NDA candidate. WP(C) No.9109/2005 Page 4 of 38 Thereafter, the petitioner carried out his duties with full zeal and zest for a period of nine years. The mother of the petitioner, who was employed with a Bank, suffered with arthritis, migraine attacks with hyper tension and cholesterol problem. She had to resign her job in 2001. The doctors had certified her to be a case of total disability. She is bed-ridden and needs constant care and attention. The petitioner is her only child. The father of the petitioner is aged about 65 years, suffers from a host of old age related diseases and is unable to do the needful. He is jobless since 1996 and is totally dependent upon the petitioner. It is also pointed out that nowadays the life of the old couples and senior citizens in the cosmopolitan city is not safe due to law and order position prevalent here. Keeping in view the above-said circumstances, the petitioner filed an application for premature discharge/release from service on compassionate grounds with effect from 20th January, 2005. The said application of the petitioner was duly recommended and verified by the medical officer of the department and Air Officer Commanding of the respondents. However, contrary to their policy dated 7th March, 2003 the respondent rejected the prayer of the petitioner vide WP(C) No.9109/2005 Page 5 of 38 letter dated 18th March, 2005. 3. Case of Sqn. Ldr V.Shukla WP (C) No.20269/2005. The petitioner in response to a public notification in the year 1992- 1996 applied and was selected for the flying branch of Indian Air Force. After successful training he was commissioned as Pilot in the Indian Air Force and rose to the rank of Sqn. Leader having specific duty of flying Transport Aircraft and other secondary duties as per the directions and orders of the respondents. Thereafter, he carried out his duties with full zeal and zest. The petitioner applied for premature discharge on the following compassionate grounds. Firstly, in the year 2002, his mother was diagnosed for suffering with acute depression, sugar and hypertensive. She was operated upon thrice. Secondly, the petitioner is a resident of a village situated within the areas of Allahabad and Dehradun. His brother has been non-cooperative. The above-said property is unsafe. Lastly, the younger sister of the petitioner is not getting married and now she is over age. During the pendency of his above-said application his mother suffered an eye haemorrhage and lost her vision. The father of the petitioner is also stated to be old who suffers with multiple WP(C) No.9109/2005 Page 6 of 38 diseases and is unable to render any help to his mother. On 24th August, 2005, the petitioner was interviewed by Mr. K.D. Singh, ACS PO AVM at Air Head Quarter and his application was referred for sympathetic consideration. But Mr.Singh displayed his inability to help the petitioner in this context. His application for premature release was ultimately rejected on 26th August, 2005 without assigning any reason. 4. Case of Sqn. Ldr. P.Bakshi WP(C) No.11359/2005. The petitioner was commissioned as Pilot in the Indian Air Force and rose to the rank of Sqn. Leader having specific duty of flying Helicopter during the years 1989-1993. Thereafter, within the span of nine years he carried out his duties with full zeal and zest. He was transferred four times. His father suffered a Heart attack and was operated for triple vessel bypass surgery at Escorts Heart Institute, New Delhi on 14th February, 2002. The petitioner's father did not recover fully and further suffered other multiple health problems. In February, 2004, his gall bladder had to be removed. His health deteriorated and he was re-admitted in ICU where he was diagnosed with an acute form of pancreatitis. In April, 2003 the father of the petitioner suffered WP(C) No.9109/2005 Page 7 of 38 from repeated loss of consciousness and fainted for no apparent reason on four occasions. He was medically treated and had been on regular medication for “syncope” to prevent seizure. The father of the petitioner, who is aged 63 years, is not able to look after himself. Petitioner's mother suffered from arthritis and B.P. She is also not able to render much of assistance. The health of the father of the petitioner further deteriorated as he is now also ailing from hyper tension and cervical spondalitus. He needs constant care and attention with medical aid. For security reasons they cannot be left alone because the life of old couples and senior citizens nowadays are in danger due to law and order position prevalent in the city. Common Facts 5. It was averred in all the petitions that the similarly situated officers were given the premature retirement. The petitioners have furnished the list of seventeen to twenty such like officers who were given the pre-retirement. It was pointed out that this Court, too, vide its order dated 17th February, 2002 had discharged one Sqn. Leader Gautam Banerjee, in Writ Petition No. 7825/2001. On these grounds, the present writ petitions were WP(C) No.9109/2005 Page 8 of 38 filed with the prayer that the respondents be directed to discharge the petitioners from service on the aforesaid grounds. 6. The respondents have listed the following defences in their counter affidavits. Pursuant to the selection of the petitioners, they underwent three years training at the cost of the State. This was followed by the flying training, the cost of which is in crores of rupees, which was fully borne by the State. Lakhs and crores of rupees are spent over a pilot to train him for the said purpose. The petitioners‟ training has cost the public ex chequer substantially. To train another officer and to meet his service requirements would be an additional liability both financially as well as operationally. The request made by the petitioners were considered on merits and though their request was rejected, yet they were advised that they could seek a posting near their hometowns for resolving their problems. The applications of the petitioners were considered in accordance with the guidelines of the existing policies by the competent authority. The respondents have placed on record a copy of the human resource policy dated 7th March, 2003 as Annexure R-1, which according to the respondent provides broad guidelines in respect to premature WP(C) No.9109/2005 Page 9 of 38 retirement/release of officers and has been sincerely adhered to in the case of the petitioners. It is explained that the actual purpose for seeking premature retirement is not infirmity of parents but to seek employment for better prospects. Had the intention of the petitioners been to look after their parents, they were offered with an opportunity to seek a posting near their hometown while continuing in service but the same was not availed. It is contended that the facts of the above-said seventeen/twenty officers are different from the facts of the instant case. It is explained that as a matter of fact petitioner P.Bakshi has brother and sister. Despite this fact the petitioner was advised to apply for a posting so as to enable him to continue in service and to look after his father. As per the terms and conditions of service of the Indian Air Force, all personnel are to serve in any part of India or abroad. It is alleged that in the shield of father's illness the petitioner wants to be discharged so that he can join the private service and earn monetary benefits without appreciating the factum of expenses borne by the Government to give him such an extensive training of a pilot. It is admitted that though the petitioner's application was WP(C) No.9109/2005 Page 10 of 38 recommended by the Commanding Officer, yet it was not approved by the competent officer, Air Head Quarter due to lack of merit. The petitioner was advised vide letter dated 4th May, 2005 that he could seek a posting of his choice so as to enable him to resolve his difficulties. 7. We have heard the counsel for the parties and gone through the written notes filed by them. The counsel for the petitioner Sqn. Ldr Himanshu Goswami argued with vehemence that the position of the mother of the petitioner is precarious. It was submitted that she took VRS in the year 2001. The father of the petitioner, who is aged about 69 years, is also sick. It is explained that while deciding the case of the petitioner the concerned authority did not apply its mind and did not give any reason for rejecting the application. It was also submitted that the other similarly situated persons were given the release/discharge order. The petitioner furnished a number of such cases and the respondents have failed to give any satisfactory reply. Again, the petitioner has already completed fourteen and a half years of service and this fact should have been taken into consideration. It was argued that the posting WP(C) No.9109/2005 Page 11 of 38 tenure in Delhi is only two years and posting in Delhi would not serve any purpose. It was also pointed out that the petitioner does not have any vested right and he is ready to give undertaking to the Court that he will not join any other private job. The petitioner has made a query under the RTI Act. The following opinion was supplied to him: “(a) Per Capita cost of Training of PC Pilot (1992-93) (Rs. In lakhs) Streams NDA Cost Non-NDA Cost Fighter 221.54 221.86 Transport 193.29 193.61 Helicopter 110.43 110.75 (b) SSC Helicopter Pilot for 1992-93 The cost of training of PC & SSC is same as the syllabus of PC and SSC pilot is same. Hence, the cost as mentioned above for helicopter stream can be applicable both for PC and SSC. (c) SSC (Women) Helicopter Pilot for 2005-06 As the syllabus for PC and SSC pilot is same, the cost of training for both is also same. Per capita cost (Rs in lakhs) of Helicopter pilot of NDA and Non NDA stream is Rs. 239.88 and Rs. 240.90 respectively” It was brought to the notice of the Court that a lot of pilots (example of five were cited) of varying seniority were arbitrarily released by Air Force over the period running upto five years during and after the process of petitioner‟s application on almost the same grounds and a few on frivolous ones such as Sqn. WP(C) No.9109/2005 Page 12 of 38 Leader J.S. Ahuja on the ground, “Evincing lack of interest in service” and four others whose cases were not covered in the abovesaid policy. Father of Mukesh Sehgal was suffering from arthritis and he was released. However, in case of petitioner it was stated that the petitioner‟s case was not meritorious enough. The respondents have failed to cite a single case of “only child” whose application was turned down. The petitioner was treated discriminately and partially. 8. The learned counsel for Sqn. Leader V. Shukla made the following submissions. The petitioner was interviewed on his application for premature release on 24th August, 2005 where he was dissuaded from leaving the services. It was submitted that no alternative posting was ever suggested to him during the said interview as alleged in the counter affidavit. The application of the petitioner was rejected vide impugned order dated 26th August, 2005. The relevant portion of the impugned order runs as follows: “Request for premature retirement for service on compassionate grounds in respect of the above mentioned officer has been considered at an WP(C) No.9109/2005 Page 13 of 38 appropriate level at this HQ and has not been agreed to.” It is argued that this is completely a non-speaking order containing no reasons in support thereof. The petitioner has filed CM No. 7012/2007 seeking a direction to the respondents to consider the recent medical records pertaining to his parents which clearly establish that the petitioner„s request for pre- retirement is genuine one and he is covered by the above-said policy. It was further explained that the above-said request was not responded. It was also submitted that the petitioner was offered a posting to either Allahabad or Dehradun. But when the petitioner moved a formal application dated 14th November, 2006 for his posting close to his home town in order to be nearer to his parents, he was instead posted further away to Hyderabad despite the existence of vacancy against which he could be adjusted in Hindon, Ghaziabad. It was also argued on behalf of the petitioner that he has recently gone through a divorce. Again he has been placed in low medical category and therefore rendered unfit for flying itself since 19th March, 2006 which has WP(C) No.9109/2005 Page 14 of 38 added further mental and emotional trauma suffered by him. In his written submissions the petitioner has named six persons, who according to him, are similarly situated. According to him, they do not satisfy the requirement of a pre-retirement policy but have been granted premature retirement. It is alleged that arbitrary discrimination has been meted out to the petitioner. The application of the petitioner is not considered in accordance with the aforesaid policy. 9. Counsel for the P.Bakshi submitted that the petitioner has got one married brother who is settled in Romania and a married sister who is settled in Dubai. The father of the petitioner is an old man of 64 years. He was retired from BHEL, a public sector company. He draws no pension and has no source of income. It was argued that the petitioner's appeal for reconsideration of his discharge was also turned down. The petitioner had filed an application under the Right to Information Act. He came to know that the respondent had obtained information regarding his father's ailment of heart by pass and syncope from Doctor (Aviation Mission). Though the father of the petitioner was not examined, yet an opinion was given that a heart patient of sixty WP(C) No.9109/2005 Page 15 of 38 four years with syncope seizure and cervical spondalitis requires no medical attention. However, the same doctor opined that the medical conditions and surgeries stated by the petitioner are genuine. It was also stressed that a number of officers are applying for release on vague reasons such as :  Failing business of father.  Looking after property of grandfather.  Feeling of discontentment.  Better prospects in civil.  Grounds of in-laws. - Cases of release to officers who were in relation/proximity of Senior Air Ranks. Again, some officers were trained on particular type of aircraft, given time to clear their civil license and then given premature release. It was further submitted that the cost incurred on the training of a pilot of Indian Air Force is recovered in ten years. The Short Service Commissioned Officers have a fixed tenure of ten years and/or free to leave after the expiry of that term. If the petitioner is discharged he will loose the benefit of pension which would in excess of Rs. 30 lakhs. Again, no Airlines would take a helicopter pilot to fly its passenger WP(C) No.9109/2005 Page 16 of 38 airliner. The petitioner himself has been out of flying for two years. The learned counsel for the petitioner lastly pleaded that the petitioner is ready to give an undertaking to the effect that in case he is discharged form service, he will not join any such like service in any private airline. 10. In order to embolden their respective cases the learned counsel for the petitioners have cited few authorities. In Major S.K. Jain Vs. Union of India and Ors. [2000 (54) DRJ 188], the judgment given by one of us (HMJ A.K.Sikri), it was held, “The competent authority, on the basis of para 4, observed that as grounds advanced by the officer were not covered under the laid down criteria, his application may be rejected. The aforesaid record shows that the authorities were influenced mainly by the consideration that the examples in para B of the guidelines dated 20.1.1979 did not specifically stipulate the grounds mentioned by the petitioner. Thus the approach adopted by the Central Government was clearly erroneous. As already pointed out, the examples in para B are only illustrative. The application of the petitioner was rejected only on the basis that the reasons given by the petitioner are not covered by specific instances mentioned therein and the authorities did not look into this aspect as to whether the grounds mentioned by the petitioner could be considered as 'extreme compassionate grounds'. The Army Hqrs. had recommended the case of the petitioner which clearly implies that reasons given by the WP(C) No.9109/2005 Page 17 of 38 petitioner were treated as falling under 'extreme compassionate grounds' by Army authorities. Therefore it was necessary for the competent authority to examine whether the recommendation of the COAS treating the reasons given by the petitioner as 'extreme compassionate grounds' was proper or not, instead of confining the consideration to the specific instances mentioned in para B and coming to the conclusion that the case of the petitioner did not fall in those specific instances. Competent authority thus committed an error in treating these specific instances as exhaustive rather than illustrative.” 11. In Union of India Vs. Mohan Lal Capoor and Ors. [1974 1 SCR 797], it was held, “A place on the approved select list certainly confers a right to be appointed, according to Rules 8 and 9, to cadre posts. Although, the process of assessment by the Selection Committee, and, thereafter, approval by the Union Public Service Commission does not involve observance of the "audi alteram patrem" rule in all its rigour and with all its implications, yet, it seems unfair to deprive a person suddenly of either an expectation to be placed, and, even more, of a place on a finalised select list, which confers certain valuable rights on him, without informing him of even the reasons for his proposed supersession before its approval. At any rate, Article 16 of our Constitution gives rights to Govt. servants to be treated fairly and squarely, reasonably and impartially in matters relating to service.” WP(C) No.9109/2005 Page 18 of 38 It was further held, “We next turn to the provisions of Regulation 5(5) imposing a mandatory duty upon the Selection Committee to record "its reasons for the proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber- stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession". The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected”. In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections if that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based WP(C) No.9109/2005 Page 19 of 38 and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5(5) were not complied with. We think that reliance was rightly placed by respondents on two decisions of this Court relating to the effect of non- compliance with such mandatory provisions. These were : Associated Electrical Industries (India) Pvt. Ltd. Calcutta v. Its Workmen [AIR 1967 SC 284] and the Collector of Monghyr and Ors. v. Keshav Prasad Goenka and Ors. [ 1963 (I) SCR 98].” 12. In Badrinath Vs. Government of Tamil Nadu [2000 (8) SCC 395], the Apex court was pleased to hold, “88. We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan, (1986) 2 SCC 679, such a power on WP(C) No.9109/2005 Page 20 of 38 the part of this Court was accepted by a three Judge Bench, Madan, J. referred to the