Union of India & Ors Vs. Flight Cadet Ashish Rai  Insc 28 (18 January 2006)
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
of India and its functionaries calls in question legality of the judgment
rendered by a Division Bench of the Allahabad High Court holding that the
learned Single Judge was right in quashing the orders dated 16.6.2000 and
27.6.2000, and further directing appellants to allow the respondent to complete
training from the stage he had left and to act in terms of the instructions of
the Headquarters, Indian Air Force as regards re-testing.
background in a nutshell as highlighted by the appellants is as follows:- The
respondent was selected as a Flight Cadet to undergo training to become a pilot
in the Indian Air Force (in short 'Air Force'). The concerned course for being
commissioned as pilot officer was course no. 157 which covered a period of 72
commenced on 5.2.1995. During training the respondent complained of knee injury
which was sustained prior to training on 28.12.1994 due to a road accident.
Since he remained absent during the course, it was felt that he could not be
continued in the pilot course, flying training was terminated and he was given
option of joining Ab-initio Navigator's course which the respondent accepted
and joined in January 1998. The course was 86 Ab-initio Navigator's course. In
November 1998, he was found to be lagging behind in the studies and the
training was terminated. Further option was given to join Ground Duty Officer's
course which the respondent opted to join and, in fact, in July 1999 joined as
a trainee in the Administrative branch which was to be held at Air Force Academy in Ground Duty Officer's Course No.
106. During such training the authorities came to know various acts of
misconduct on the part of the respondent. A Court of Inquiry was conducted
where the respondent admitted the aberrations. A warning was given in November
1999. As he failed in three academic subjects, a Training Review Board was
formed and its opinion was forwarded to the Headquarter for processing with the
Central Government. He was suspended from training on 1.2.2000 which in Air
Force terminology is called "Struck Off Ration Strength". He was
"routed home" pending final approval. Respondent filed a writ
petition on 1.2.2000 before the Allahabad High Court challenging suspension of
training where interim order was passed allowing the respondent to continue
training. The respondent was directed to resume duty on 11.3.2000 whereas he
actually reported for duty on 13.3.2000. On 11.3.2000 he was again involved in
drunken brawl outside the Academy and was arrested and sent to policy custody.
On 22.3.2000 the case was compounded by a Magistrate. On 2.4.2000 the Duty
Officer of the Air Force Academy visited the trainees' mess and
found the respondent smelling of liquor.
12/13.5.2000 the respondent in a drunken condition physically assaulted
co-trainees, used abusive language and terrorized a large number of trainees by
his violent behavior.
12.6.2000 he was involved in another criminal case in having misused credit
card of the other Cadets. First information report was lodged, cognizance was
taken and warrants were issued. Since he failed in final examination he was
assessed to be unsuitable for further training by the Review Board on 29.5.2000
and on 14.6.2000 his training was terminated because of his failure in
academics and for maintaining low standard of discipline. The report was
forwarded to the Air Force Headquarters, he was "routed home" and
order of termination of Cadetship was passed.
writ petition was filed before the High Court challenging termination of
training. Both the writ petitions were heard together and by order dated
25.5.2001 the learned Single Judge allowed both the writ petitions and quashed
the orders dated 16.6.2000 and 27.6.2000. Writ appeals filed by the present
appellants were dismissed with the directions as afore-noted. Learned Single
Judge has directed that the respondent be commissioned. By order dated 16.1.2003
the judgment was stayed.
Counsel for the appellants submitted that the High Court has not noticed the
relevant instructions and has erroneously held that the procedure adopted by
the authorities was not proper. The learned Single Judge held that the
respondent like other co-examinees was entitled to grace marks. It was further
noted by the learned Single Judge and the Division Bench that the benefit was
not given to the appellant. It was pointed out that there was no malafide
involved. There is no question of any design to deny benefits as observed by
learned Single Judge. In fact, with a view not to jeopardize the career of a
cadet various options were given and, he was given different options at
different point of time taking into account his physical health.
counsel for the respondent submitted that High Court has taken note of
legitimate expectations. The state of mind of a young person with high hopes
for serving the country has been duly considered. There was no inquiry
conducted regarding various allegations and, in fact, after the first instance
of so-called blemish the authorities had condoned the lapses and had closed the
should be judicial restraint while making judicial review in administrative
matters. Where irrelevant aspects have been eschewed from consideration and no
relevant aspect has been ignored and the administrative decisions have nexus
with the facts on record, there is no scope for interference.
duty of the court is
itself to the question of legality;
whether the decision making authority exceeded its powers
error of law
of the rules of natural justice and
decision which no reasonable Tribunal would have reached or
abused its powers.
Administrative action is subject to control by judicial review in the following
llegality: This means the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to it.
instant case the High Court seems to have ignored the relevant aspects and
emphasized on irrelevant issues.
were Review Boards on three occasions at Air Force academy where the relevant
factors regarding the academic performance of the respondent as well as the
disciplinary cases were considered and termination of training was recommended.
The training termination proceedings were forwarded to the Air Headquarters as
well as the Government of India which duly approved the same. That itself shows
that there was no mala-fides involved.
learned Single Judge has clearly erred in holding that the authorities were
showing repugnance to the order of the High Court and there was design to deny
the commissioning to the respondent as he had challenged authorities of the Air
Force. This conclusion is clearly without any supportable material. The power
of punishment is contained in paragraph 3 of order no.46/98 dated 13.3.1998
which deals with disciplinary proceedings of the Cadet. The extent of exercise
of power by various authorities is delineated in these instructions.
Force Order (AFO) No.79/73 issued by the Chief of the Air Force Staff
prescribes the procedure to deal with the Cadets found/assessed unsuitable.
Some of the relevant paras need to be noted.
11, 12 and 15 of the AFO provide that a Cadet can be unsuitable at any of the
grounds namely, Indiscipline, Medically Unfit or Lack of Officer Like Quality.
18(a) further that failure in Final Exams is also a ground for holding the
cadet unsuitable and the training of an unsuitable. Cadet can be suspended or
19 of the AFO provides that before passing an adverse order every time a
Training Review Board consisting of four members shall be constituted and the
TRB will give opportunity to the Cadet, will record statements and will propose
an action to be taken against the Cadet.
22 of the AFO provides that the Training Review Board (TRB) will also examine
the past conduct, reasonable likelihood to achieve required standards and Basic
Officer like qualities before making its recommendations.
Command Air Staff Instructions (in short TCASI) deals with the procedure to be
followed for periodic assessment.
11 of the TCASI Provides that the assessment shall be made on the basis of
marks of the Examination and on the basis of assessing the Officer like
Qualities (OLQ) in the cadet.
cadet is required to pass such and every paper with minimum 50% marks, and any
lesser marks shall be assessed as 'Failed'.
16 provides that failed Cadets shall be treated in accordance with procedure
provided in AFO 79 of 1973 as amended by AFO 24 of 1976 dated 8.5.1976.
clearly evident from above, training of failed cadets can be terminated. The
learned Single Judge referred to the instruction as quoted above. In
instruction AFO 79/73 as amended it is provided inter alia as follows:-
"12 Term "termination of training" means the final elimination
of a trainee from the training which he is undergoing, whether or not he is
thereafter allowed to be trained for the duties of some other branch of
Service." The question of allotment of grace marks is also governed by the
instructions and clearly the respondent was not entitled to grace marks. The
warning letters issued to the respondent show that he had failed to secure the
requisite pass percentage and he was advised guidance and additional coaching.
In the final examinations he had failed in two various subjects. In the
confidential recommendation of the latter Training Review Board dated 29.5.2000
various acts of misconduct were noticed and that is why it was recommended that
his training be terminated. Though the learned counsel for the respondents
submitted that the respondent was not given adequate opportunity to defend him,
from the copies of the proceedings which were filed, we find the plea to be
without substance. Opportunity for cross-examination while making
submissions affirmative statements was given.
Training Review Boards were held to look into the questions of indiscipline and
the failure in academics. This amply proves that adequate opportunity was
granted to the respondent to explain his position. The High Court did not keep
in view the principles governing judicial review and acted on surmises and
conjectures, and quashed the orders passed by the authorities.
judgment of the Division Bench affirming that of the learned Single Judge is
clearly unsustainable and is quashed.
is allowed but in the circumstances without any order as to costs.