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2007 DIGILAW 1192 (DEL)

SB/Sub/Mt SURESH PAL v. UOI

2007-05-31

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) COMMON questions of law arise for consideration in these writ petitions which shall stand disposed of by this common order. The question precisely is whether the denial of extension of two years in service to the petitioners is legally valid especially when the said denial is based on what is known as "red ink Entries" made in the service records of the petitioners and whether the norms stipulated by the Army Headquarters making the said "red Ink Entries" relevant for purposes of extension of service are irrational or arbitrary. The controversy arises in the following circumstances : ( 2 ) THE petitioners were at the relevant time Junior Commissioned Officers serving as Naib Subedars, Subedars and Subedar Majors in the Indian Army hereinafter referred to as persons below officers rank or PBORs. In terms of regulation 163 of the Regulations for the Army, 1987, a Naib Subedar retires upon completing 26 years of pensionable service or attaining the age of 50 years, whichever is earlier. Subedars similarly retire upon completion of 28 years of service or 50 years of age, whichever is earlier. In the case of subedar Majors, the retirement falls due upon completion of 32 years of pensionable service, 4 years tenure or 52 years of age, whichever is earlier. ( 3 ) AS a sequel to the recommendations made by the Fifth Pay Commission, which included enhancement of the retirement age of the civil servants by two years, the Ministry of Defence, Government of India formulated and published a policy on 3rd September, 1998 prescribing revised terms of service/tenure and age limits for retirement for JCOs and NCOs serving in the Armed Forces. The policy declaration made in terms of the Circular dated 3rd September, 1998 issued by the Ministry made the service of PBORs extendable by a period of 2 years after screening of the candidates. Regulation 163 of Regulations for the army, 1987 stood modified to that extent. The policy circular also envisaged issue of administrative instructions by the Chief of the Army Staff, which came in the form of a circular dated 21st September, 1998 issued by the Army headquarters, stipulating the procedure and prescribing the criterion for screening of PBORs for the grant of extension. The screening had to be held on unit/regiment/corps/records Office basis. The policy circular also envisaged issue of administrative instructions by the Chief of the Army Staff, which came in the form of a circular dated 21st September, 1998 issued by the Army headquarters, stipulating the procedure and prescribing the criterion for screening of PBORs for the grant of extension. The screening had to be held on unit/regiment/corps/records Office basis. The procedure and criterion for the same was set out in the appendix to the circular. Para 4 of the Circular is in this regard relevant and reads: "4. Screening : All PBOR will be screened for extension by two years by the screening Board to be held on Unit/regiment/corps/records Office basis, as applicable to assess their suitability for extension. The procedure and criteria for screening is laid down in Appx "a" to this letter. " ( 4 ) A reading of the appendix to the circular would further show that not only was the willingness of the individual essential for the grant of extension but his physical/medical fitness and ACR/character Rolls were equally important while granting or refusing extension to him. Similarly, discipline was a major consideration in the matter of grant or refusal of extension. An individual, in order to be eligible for the grant of an extension in service, should not have more than three red ink entries during his entire service and not more than one red ink entry in the last five years. In the case of extension in the rank of subedar Majors, there should have been no red ink entry or recordable censure in the rank of JCO. Individuals convicted or awarded Red Ink Entries for an offence mentioned in the annexure to the appendix on the date of screening are declared ineligible for extension hence liable to be discharged in accordance with the existing Rules on the subject. The petitioners have been denied extension of two years on account of their failure to satisfy the norms stipulated for the purpose. In some cases, extensions were initially granted ignoring the red ink entries and the ineligibility of the candidates which were subsequently withdrawn by the authorities after issuing notices to the affected candidates. ( 5 ) THE respondents have opposed the petitions and tried to justify not only the norms formulated for the grant of extension but also the denial/withdrawal of extension wherever the same had already been granted. ( 5 ) THE respondents have opposed the petitions and tried to justify not only the norms formulated for the grant of extension but also the denial/withdrawal of extension wherever the same had already been granted. According to them, the extension of service granted in derogation of the procedure or the criterion prescribed for the same could not operate to create any vested right in the petitioners to serve for the extended period. The error could be corrected at any stage after issuing a show cause notice to the persons likely to be affected by the same and considering their objections, if any. ( 6 ) THAT a mistake committed by an administrative authority in passing an administrative order can be rectified in conformity with the principles of natural justice is a fairly well settled principle of law. Reference may in that regard be made to the decision of the Supreme Court in Union of India and ors. V. Bikash Kuanar (2006) 8 SCC 192 in which their lordships summed up the legal position on the subject in the following words : "it is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance with the principle of natural justice. It is only in a case where the mistake is apparent on the face of the record, a rectification thereof thereof is permissible without giving any hearing to the aggrieved party. " ( 7 ) REFERENCE may also be made by us to the decision of the Supreme Court in Mohd. Sartaj and Anr. v. State of UP and Ors. (2006) 2 SCC 315 . That was a case where appointments of the appellants were cancelled on the ground that they did not possess the requisite qualification for the same. The cancellation orders were questioned inter alia on the ground that the same were in violation of the principles of natural justice. The Supreme Court however repelled the contention and observed that the case at hand fell within the exception in S. L. Kapoor's case [s. L. Kapoor v. Jagmohan and Ors. (1980) 4 SCC 379 . In view of the lack of PTC qualification, the appellants, observed the Court, could not have been appointed nor could their appointments be continued. The Supreme Court however repelled the contention and observed that the case at hand fell within the exception in S. L. Kapoor's case [s. L. Kapoor v. Jagmohan and Ors. (1980) 4 SCC 379 . In view of the lack of PTC qualification, the appellants, observed the Court, could not have been appointed nor could their appointments be continued. They did not therefore have any right to hold the post nor was any hearing required to be given to them before termination of their services. ( 8 ) THERE is, in the light of the above authoritative pronouncement, no merit in the contention that the mistake in the grant of extension had created any vested right in favour of the petitioners or was beyond correction. The only essential requirement for making a correction was the grant of an opportunity to the persons likely to be affected by the same. Although according to the decision of the Supreme Court in Mohd. Sartaj case (supra), an opportunity to show cause against the termination was not necessary in cases where the persons were appointed without proper qualifications, even assuming that such an opportunity was essential as part and parcel of the principles of natural justice, the same had been complied with in the present batch of cases. Each one of the persons whose extended tenure was cut short was admittedly given an opportunity to file his objections to the termination of the extension. It is also not the case of the petitioners that the extension granted in their favour was not in breach of the norms stipulated for the same. It is not their case that such of the petitioners as had been granted extension did not have any red ink entries in their records rendering them ineligible for the grant of extension. That being the position, the respondents could have corrected the mistake and discharged the petitioners from service. As a matter of fact, doing so would have been necessary to ensure that the norms prescribed by the respondents were applied uniformly to all the candidates and that there was no heart burning on account of different individuals getting different treatment under the very same scheme. To the same effect is a recent decision rendered by us in NG Santosh Kumar v. UOI and Ors. WP (C) 1233/2007 disposed of on 27th february, 2007. To the same effect is a recent decision rendered by us in NG Santosh Kumar v. UOI and Ors. WP (C) 1233/2007 disposed of on 27th february, 2007. That was also a case where the petitioner had been granted extension of service by two years which was subsequently recalled and the petitioner discharged on the ground that he was not eligible for such extension on account of the presence of red ink entries in his record that rendered him ineligible. The challenge to the discharge order was repelled by this court in the following words : "that the petitioner was convicted for an offence punishable under Section 41 (1) of the Army Act and sentenced to undergo 10 days detention on that account is not disputed before us. Such being the position, the petitioner was clearly ineligible for the grant of extension. Just because that part had been overlooked by the screening board at the appropriate stage and an order for grant of extension issued, did not mean that the error could not be corrected after affording to the petitioner an opportunity of showing cause against the same. The petitioner was given a show cause notice and an opportunity to submit a reply before the decision to discharge him was taken. There was in that view no violation of Principle of Natural Justice in the process of taking a final decision regarding his continuance in service. Suffice it to say that in the absence of any challenge to the procedure and the criterion for screening as stipulated by the Army Headquarter pursuant to the Government of India policy and the admitted facts as emerging on record, the petitioner was ineligible for the extension which was erroneously granted in his favour. The discharge of the petitioner from service w. e. f. 28. 02. 2007 would therefore not violate any of his fundamental or statutory rights to warrant interference by this court. " ( 9 ) IT was next argued by Ms. Jyoti Singh that the norms stipulated by the army Headquarters for the grant of extension in service were themselves irrelevant and irrational inasmuch as the same made an entry recorded in the distant past the basis for denying to the candidate extension in service which ought to be the rule denial being only an exception. Jyoti Singh that the norms stipulated by the army Headquarters for the grant of extension in service were themselves irrelevant and irrational inasmuch as the same made an entry recorded in the distant past the basis for denying to the candidate extension in service which ought to be the rule denial being only an exception. ( 10 ) THE legal position regarding the power of State to prescribe the qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled for such promotion is well settled. Courts cannot command the Government to prescribe a particular method of recruitment or eligibility criteria or avenues of promotion. Subject to the broad protection available to a citizen against arbitrariness and denial of equal opportunity guaranteed under articles 14 and 16 of the Constitution, all matters touching the qualifications and conditions of service, fall in the realm of policy making which is within the exclusive domain and discretion of the State. The decision of the Supreme Court in P. U. Joshi and Ors. v. Accountant General, Allahabad and ors. (2003) 2 SCC 632 authoritatively settles that position, the following passage from which is apposite : ". . . . Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and later or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. " ( 11 ) WE may also refer to the decision of the Supreme Court in State Bank of Bikaner and Jaipur and Ors. v. Jag Mohan Lal 1989 Supp. " ( 11 ) WE may also refer to the decision of the Supreme Court in State Bank of Bikaner and Jaipur and Ors. v. Jag Mohan Lal 1989 Supp. (1) SCC 221 in which their lordships were considering a regulation providing for extension of service of a bank employee. The Court held that the sole purpose of giving extension was to promote the interest of the bank and not to confer any benefit on the retiring officers, though incidentally the extension may benefit such officers. The regulation, observed the Court, left the grant of extension to the discretion of the bank which is otherwise available to every employer. To the same effect is the decision of the Supreme Court in D. C. Aggarwal v. State Bank of India and Anr. (2006) 5 SCC 153 and Union of India v. J. N. Sinha (1970) 2 SCC 458 . In the later decision, the Supreme Court had declared that Government was not obliged to retain services of every public servant and that retention depends upon their efficiency and the exigencies of public service. Certain amount of dead wood, observed their lordships, has to be chopped off in every organization in public interest. The following passage is, in this regard, apposite: "there is no denying the fact that in all organizations and more so in government organisations, there is good deal of dead wood. It is in public interest to chop off the same. " ( 12 ) REFERENCE may also be made to the recent decision of the Supreme Court in Reliance Airport Developers v. Airport Authority of India and Ors. JT 2006 10 scc 424. Their lordships have, while dealing with the scope of interference by the Court of an administrative decision, observed that exercise of such discretion could be interfered with only if the same was an outrageous defiance of logic or of accepted moral standards or perverse that no sensible person who had applied his mind to the question to be decided could have arrived at such a decision. In cases where administration had more than one choices open to it and adopts one of them, the Court could not substitute its choice for that of the administration. In cases where administration had more than one choices open to it and adopts one of them, the Court could not substitute its choice for that of the administration. ( 13 ) THE norms stipulated by the Army Headquarters deal with different facets of the process of evaluation prescribe the inputs for such evaluation and fit standards for the same. Apart from the willingness of the individual, the norms also prescribe the standards of physical fitness of the candidates which the candidates must satisfy. More importantly, the norms make the acrs/character Rolls and discipline a weighty consideration for the grant or denial of extension. Para 2 (d) of the procedure and criterion for screening of pbors may at this stage be extracted : " (d) ACRs/character Rolls Criteria (i) NKs and Havs : No report in the last five years (or it should be less than five if the individual has not earned five reports till the screening due to late promotion) should be less than 'average'. (ii) Nb Ris/nb Sub/risaldar/subear : At least three of the last five years reports, irrespective of rank, should be 'high Average'. The remaining two reports should not be less than 'average'. (iii) Ris Maj/sub Maj : None of the last five reports in the rank of JCO should be less than 'high Average'. (iv) Sepoy/l Nk/ts LNK/ts NK : No ACR criteria is applicable to them. " ( 14 ) A reading of the above would show that for Naiks, Havildars, Naib subedars, Subedars and Subedar Majors, different standards are prescribed for the grant of extension as also the period during which those standards ought to have been maintained in the past. In the case of Naiks and Havildars, gradings should not be less than 'average' during the past five years. In the case of naib Subedars and Subedars, at least three of the last five years reports should be 'high average' and the remaining two reports should not be less than 'average'. In the case of Subedar Majors, which is a higher rank, none of the last five reports in the rank of JCO should be less than 'high average'. ( 15 ) ON the discipline front also, there are different requirements making candidates ineligible for grant of extension if the individual concerned has more red ink entries in his record than what stipulated in the norms. ( 15 ) ON the discipline front also, there are different requirements making candidates ineligible for grant of extension if the individual concerned has more red ink entries in his record than what stipulated in the norms. Para 2 (e) of the appendix reads: (e) Discipline : The individual should meet the discipline criteria as given below: (i) An individual should not have more than three red ink entries (including recordable censure in the case of a Nb Sub) during the entire service and not more than one red ink entry in the last five years. However, for extension in the rank of Sub Maj there should be no red ink entry including recordable censure in the rank of JCO. " ( 16 ) SUFFICE it to say that willingness of the person to serve, his physical fitness, his professional grading and a high level of discipline have been together made the basis for screening the candidates for the grant of extension to him. The norms, it is evident, lay emphasis on all these criteria none of which can be said to be irrelevant, irrational or far fetched. Not only should the individual seeking extension be willing to work, he must be in good physical condition to do so. He should be meritorious and he should have had a clean record from the point of view of discipline. It is also evident from a reading of the norms regarding discipline that the requirement of clean service record is comparatively higher for the post of Subedar Majors than other lower ranks. Just because the red ink entries suffered by the petitioners on account of acts of indiscipline referable to offences enumerated in the appendix to the order were incurred in the early stages of his military service would not by itself be sufficient to declare that denial of extension based on those entries would be unfair, discriminatory or irrational. The power to prescribe standards for grant of extension is vested in the respondents. It is true that standards could be easy and achievable for majority of the people but simply, because the same are stiff and result in screening a large number of candidates out of service would not render the same discriminatory or offensive to Articles 14 and 16 of the Constitution. It is true that standards could be easy and achievable for majority of the people but simply, because the same are stiff and result in screening a large number of candidates out of service would not render the same discriminatory or offensive to Articles 14 and 16 of the Constitution. So long as the standards contribute in some measure or the other to the ultimate object of selecting the best candidates for grant of extension, the respondents would be within their rights to enforce the same. The respondents have uniformly applied these standards while granting or refusing extension to a large number of candidates. According to them, if the standards were to be relaxed at this stage, the same would have a cascading effect upon the lower ranks inasmuch as the return of those who have already been weeded out of the service would result in reversion of an equal number of incumbents from the ranks of Subedars, Naib Subedars, Dafadar/havildar and naiks. We do not think that we would be justified in creating a situation where the working of the entire scheme gets jeopardized resulting in avoidable confusion and uncertainty which the Army can ill afford among its ranks. ( 17 ) IT was lastly contended by counsel appearing for the petitioners that the sudden denial of extension to the petitioners was contrary to the Army instructions that prescribe administrative procedures to be followed before a person is discharged from the Army. These procedures were, according to the learned counsel, essential for ensuring that the retiring PBORs get their pensions on time and are suitably rehabilitated immediately after their discharge. The discharge orders cases were according to the learned counsel in breach of the said procedures thereby causing hardships to the petitioners not only in terms of delay in the payment of their pensions but also denial of opportunities for rehabilitation. Reference in this regard was made to certain administrative instructions issued by the Army Headquarters from time to time stipulating certain steps that are preparatory to the retirement/discharge of pbors to avoid hardship to them which is implicit in the non-payment of pension or denial of opportunities for post retirement rehabilitation. Reference in this regard was made to certain administrative instructions issued by the Army Headquarters from time to time stipulating certain steps that are preparatory to the retirement/discharge of pbors to avoid hardship to them which is implicit in the non-payment of pension or denial of opportunities for post retirement rehabilitation. We need not go into the details of the said procedures for in our opinion a failure to abide by the same does not affect the validity of the denial of extension to the petitioners or their discharge from service. The question in our opinion is not whether the petitioner suffered any hardship on account of the delayed payment of pension or lack of organizational assistance for their rehabilitation. The question is whether the denial of extension to the petitioners on account of their failure to fulfill the norms stipulated for such extension suffers from any illegality or perversity. If the answer to that question is in the negative, the denial and the discharge from service would be valid, no matter the endeavour of the Army to help the retiring PBORs in getting pension or rehabilitation benefits, did not either fructify or remain ineffective for any administrative failure. What is to be remembered is that the instructions issued by the Army for processing of the cases of those who are due for discharge are all administrative in character and do not create any enforceable legal right. These administrative measures are in essence beneficial steps taken by the Army to reduce hardships but the same fall short of creating an enforceable right or rendering illegal the order of discharge only because administrative procedures were not strictly followed. It is not the case of anyone of the petitioners that they have not been paid their pension dues nor has anyone of them sought any direction against the respondents for grant of any rehabilitation benefit. There is no gainsaying that if any such claim is made by anyone of the petitioners at any stage, the same could be suitably examined by the authorities and if necessary even by this court in appropriate proceedings. In the result, these writ petitions fail and are hereby dismissed but in the circumstances without any order as to costs.