Avm M.S. Brar, Avsm, Vm
Vs. Union of India & Ors  Insc 511 (3 September 2004)
K.G. Balakrishnan & B.N.
Srikrishna With Civil Appeal No. 1208 of 2003 Union of India & Anr. ..
Appellants Avm M.S. Brar, Avsm, Vm .. Respondent K.G. Balakrishnan, J.
Both these appeals arise out of a common judgment passed on 11.7.2002 by the
Delhi High Court in C.W.P. No. 2600 of 2002. Stated in brief, the facts of the
case are thus.
The appellant in Civil Appeal No. 1207 of 2003 was commissioned in the
Indian Air Force in 1964 and he was promoted to the rank of Air Vice Marshal in
1997. The retiring age of the officers of the rank of Air Vice Marshal was 56
years extendable upto 57 years. Later, it was raised to 57 years and 58 years
respectively. According to the appellant, he had outstanding flying performance
and was awarded Vayu Sewa Medal in 1986 and later the Ati Vishisht Sewa Medal
in 1992. He was posted as Air Officer Commanding 2 Air Deference Control Centre
at Jodhpur in 1997 and continued to hold this post till February 1999. He
contended that he performed the task of shifting the Headquarters of SWAC from Jodhpur
to Ahmedabad, for which he had worked day and night and gave a dedicated
service. He also contended that during that time, the third respondent in Civil
Appeal No. 1207, namely, the AOC-in-Chief, had some difference of opinion with
the appellant. In February 2001, the appellant was considered along with six
other officers for extension of service upto the age of 58 years and that
except the appellant, all other officers considered along with him were granted
extension of service upto the age of 58 years. Thereupon the appellant
submitted a statutory petition under Section 27 of the Air Force Act against
the denial of extension of service upto the age of 58 years. The appellant
suspected that there must have been some adverse entries in his Confidential
Register and he prayed for expunging those remarks.
The appellant also suspected that the said third respondent must have been
instrumental in making such adverse entries. The appellant submitted a
representation to the Chief of Air Staff complaining of the denial of extension
of service upto the age of 58 years. The appellant further suspected that he
might have been denied consideration for promotion to the rank of Air Marshal
due to the denial of service upto the age of 58 years. The appellant was
informed by the Chief of Air Staff by letter dated 14.5.2001 that he had not
been cleared for promotion to the rank of Air Marshal. Against this denial the
appellant submitted a statutory application under Section 27 of the Air Force Act, 1950.
The appellant also filed Civil Writ Petition No. 3242 of 2001 against the
denial of extension of service upto the age of 58 years. The appellant sought
for quashing of the order dated 2.3.2001 denying grant of extension of service
to the appellant. In June, 2001, the appellant filed another writ petition [No.
3807 of 2001] against the denial of promotion to the rank of Air Marshal.
Though this writ petition was tagged with Civil Writ Petition No. 3242 of 2001,
the earlier writ petition alone came up for hearing and by judgment dated
7.1.2002 Civil Writ Petition No. 3242 of 2001 was allowed and the learned
Single Judge set aside the communication dated 2.3.2001 by which the appellant
was denied extension of service upto the age of 58 years and also directed for
reconsideration of the appellant's application for extension of service. In the
writ petition, the respondent Union of India authorities contended that the
appellant was considered for extension of service in accordance with the
guidelines, but the extension was not approved by the authorities because of
the remarks in his Annual Report for the period from 1.12.1997 to 30.9.1998 and
also on the basis of the Appraisal Reports for the preceding five years. The
respondent in the writ petition also contended that the remarks were negative
and not adverse and, therefore, these were not communicated to the appellant.
These pleas were not accepted by the learned Single Judge and ultimately the
Writ Petition No.
3242 of 2001 was allowed with the following direction :
"For the foregoing reasons, the writ petition is allowed; the impugned
communication is set aside and the rule is made absolute. The respondents are
directed to communicate the remarks in question to the petitioner in terms of
paragraph 33 of the AFO-50 and take a fresh decision on the question of grant
of extension in the age of the petitioner. The said exercise shall be completed
as expeditiously as practicable but not later than eight weeks from the date of
this order. There will, however, be no order as to costs." As the order
denying extension of service to the appellant was set aside, the appellant made
a request to permit him to join duty, but the respondent authorities did not
permit him to attend the duty. The appellant moved a civil contempt petition
praying for contempt action against the respondent authorities for disobeying
the order of the court. The respondent authorities later filed a Letters Patent
Appeal [No. 95 of 2002] against the order and judgment dated 7.1.2002 passed by
the Single Judge. According to the appellant the respondent authorities
deliberately got adjournments in L.P.A. and the request of the appellant to
rejoin duty was rejected. The Division Bench was informed that the respondent
authorities had already communicated the adverse remarks to the appellant as
directed by the learned Single Judge. The appellant then filed a fresh writ
petition [No. 2600 of 2002] challenging the order dated 1.3.2002 wherein he
prayed for a writ of mandamus to quash the communication dated 1.3.2002 and
also prayed for directions to the respondent authorities that the remarks of
I.O. for the period 1.12.1997 to 30.9.1998 (ACR) should be communicated to him
to provide him an opportunity of representation after complying with the order
and judgment dated 7.1.2002 passed by the learned Single Judge. By the impugned
judgment, the Division Bench held that the appellant had been deprived of his
valuable rights and he had not been given a reasonable opportunity of hearing.
However, the Division Bench observed that at this stage there could not be any
direction to extend the service of the appellant and in the interests of
justice the Division Bench imposed heavy cost on the respondent authorities
which was quantified at Rs.50,000/-. This judgment of the Division Bench,
insofar as the costs are concerned is challenged by the appellant-Union of
India in Civil Appeal No. 1208 of 2003.
We heard Shri K.S. Bhati, learned counsel for the appellant and also the
Addl. Solicitor General, Shri Raju Ramachandran. On behalf of the Union of
India, it was urged that the appellant did not have the requisite grading. As
per the guidelines, during the last preceding five years, not only the
appellant should have secured at least 3 gradings of 7, but also no grading
below 6. The appellant's gradings from 1983 to 1988 are as follows :
- 1983 .. 7 - 1984 .. 7.4 - 1985 .. 7.5 - 1986 .. 7 - 1987 .. 5.3 - 1988 ..
7 It is pointed out that the appellant had been awarded below 6 grading for the
year 1987 and therefore there could not have been any extension of service in
his case. However, the appellant contended that the grading for the year 1987
is 5.3 in view of the adverse remarks for the year 1986 which were subsequently
expunged by the High Court.
The appellant seriously contended that the remarks made against him were not
communicated to him and as they were not communicated the authorities should
not have acted upon the basis of those adverse remarks. The learned Single
Judge in his judgment dated 7.1.2002 held that the remarks were adverse in
nature and were required to be communicated to the appellant and by that judgment,
the respondent authorities were directed to communicate the remarks in question
and to take a fresh decision on that question after affording the appellant a
reasonable opportunity of being heard. Ultimately, the Appraisal Report dated
21.2.2002 was communicated to the appellant. The Appraisal Report is as follows
" However, his professional knowledge and application are not
commensurate with his seniority and appointment. He depends on his subordinates
to the efficiency and effectiveness of his department. His conceptual ability
and analytical skills are below the expectations to make any contribution. He
could at best take up moderate workload of routine nature but has limitations
in being able to motivate his subordinates to any high degree.
Lacking sufficient depth and confidence, he hesitates at times in directing
briefings or chairing discussions He is overweight and paunchy. This
personality in 'senior' air rank would not be inspiring. His potential to head
a senior management post is extremely limited." This was communicated to
the appellant and he received it on 21.2.2002.
He was asked to submit his representation by 25.2.2002.
The Addl. Solicitor General appearing on behalf of the Union of India
contended that the appellant did not seek any further time to submit his
representation. The Division Bench was of the view that the appellant was not
given sufficient opportunity of hearing and the conduct of the Union of India
authorities was not appreciable. Nevertheless, the Division Bench ultimately
held that by the decision in C.W.P. 3242/99, the question of extension of
service to the appellant upto the age of 58 years has attained finality.
However, the High Court directed payment of costs of Rs.50,000/- to be paid by
the Union of India authorities as the appellant had not been given reasonable
opportunity of hearing.
We are of the view that it was not justified in the circumstances of the
case to order payment of costs. The appellant could not establish that there
was any mala fides on the part of the Union of India authorities. Therefore,
the direction to pay costs was not warranted. In the circumstances of the case,
we set aside the direction to pay Rs.50,000/- as costs. As the other writ
petition filed by the appellant seeking promotion to the post of Air Marshal is
pending consideration by the High Court, we direct that the same may be
considered and disposed of expeditiously.
Both the appeals shall stand disposed of accordingly. There will be no order
as to costs.