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2018 DIGILAW 994 (JK)

Sub. Man Singh v. Union of India

2018-12-18

DHIRAJ SINGH THAKUR, SINDHU SHARMA

body2018
JUDGMENT : 1. The present petition has been preferred against the order dated 30.11.2018 passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu. The grievance of the petitioner is that the Tribunal had failed to pass any order on the interim application, in which a prayer was made with regard to staying the order of discharge of the petitioner from service as Subedar. It is stated that the petitioner is scheduled to retire on 31.12.2018 from the service as Subedar. 2. Learned counsel for the petitioner stated that the Tribunal proceeded to simply fix the next date of hearing on 25.01.2019, ignoring the fact that the petitioner is to retire on 31.12.2018 and by doing so, not only was the interim application not considered, but the affect would be to render the petition before the Tribunal infructuous and the ultimate decision academic. 3. The genesis of the problem lies in the right, which the petitioner seeks to enforce to two years’ extension in terms of the policy as framed vide communication dated 20.09.2010 and further amended vide communication dated 11.12.2017. According to the policy, all ranks other than officers would be entitled to get extension of two years, subject, of course, to the satisfaction of various criteria fixed in that regard, including medical, disciplinary and the performance criteria. However, any person, who is unwilling for such extension has to submit an unwillingness certificate, based upon which he is made retire on the due date without such an extension. 4. The petitioner claims to have been promoted as a Subedar on 01.02.2018 and as such is to retire on 31.12.2018. An unwillingness certificate is alleged to have been got signed by him in February, 2018, which, according to the learned counsel for the petitioner is stated to have been obtained by practicing deceit. It appears that the petitioner subsequently approached the authorities in September, 2018 for treating his unwillingness certificate as null and void and treating him as willing to avail the extended period of service. 5. The case set-up by the petitioner is that the authorities have failed to take any action on his request. This fact, however, is not denied by Mr. Danish Butt, CGSC appearing on behalf of the Union of India, who states that his application submitted in September, 2018 has still not been considered on its own merits finally. 6. 5. The case set-up by the petitioner is that the authorities have failed to take any action on his request. This fact, however, is not denied by Mr. Danish Butt, CGSC appearing on behalf of the Union of India, who states that his application submitted in September, 2018 has still not been considered on its own merits finally. 6. It was in those circumstances that the petitioner had approached the Armed Forces Tribunal seeking a direction to the respondents to constitute a Screening Board for screening the petitioner for grant of extension by two years’ and in the alternate to stay the order of discharge due on 31.12.2018. 7. Learned counsel for the petitioner urged that the petitioner is a highly decorated soldier, who had also played a very important role as a part of the NSG Commando Team for clearing the terrorists, who had attacked the Taj Hotel, Mumbai, for which he was given due credit and commendation certificate, which certifies his contribution in the said operation. It is stated that even thereafter, the petitioner has been given awards by none else than the Chief of the Army Staff and the Eastern Army Commander for his distinguished contribution in the field. 8. Learned counsel for the petitioner further urged that failure on the part of the Tribunal to pass any order amounts to the failure of the Tribunal to exercise its jurisdiction. It is stated that the petitioner is left with no other remedy except to approach this court by way of the present writ petition. It is also stated that the remedy of appeal before the Hon’ble Apex Court does not become available to the petitioner against an interlocutory order and since the order impugned in the present petition carries no decision, the same would not be appealable before the Apex Court and thus there would be no bar for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. There is merit in what is stated by the learned counsel for the petitioner. 9. Clearly, no orders have been passed in the interim application filed by the petitioner before the Tribunal. The petitioner is also scheduled to be retired on 31.12.2018. There is merit in what is stated by the learned counsel for the petitioner. 9. Clearly, no orders have been passed in the interim application filed by the petitioner before the Tribunal. The petitioner is also scheduled to be retired on 31.12.2018. Admittedly, no order has even been passed on the application of the petitioner for considering him as willing to serve for the extended period of two years’ and for treating the unwillingness certificate as null and void. 10. Learned counsel for the respondents fairly concedes that the Union of India has not filed any objections before the Tribunal even till date. He however submits that the request of the petitioner cannot be accepted in view of the fact that the request made in September, 2018 for grant of extension of two years was not made within time prescribed in terms of the policy and, therefore, the petitioner was not entitled to any benefit, as prayed. However, whether the time-fixed is mandatory or not is a subject matter of debate and the same would be a subject-matter of consideration by the Tribunal on merits, which we are not inclined to go into at this stage lest it may affect the case before the Tribunal. 11. Be that as it may, pending consideration of the issue by the Army authorities and pending consideration of the issue by the Tribunal on the interim application, we deem it appropriate to stay the discharge of the petitioner from service, which is otherwise scheduled on 31.12.2018. Accordingly, discharge of the petitioner is stayed. It is made clear that the respondents shall be at liberty to file their objections to the petition pending before the Tribunal at the earliest and the pendency of the present petition would not be a bar for the Tribunal to proceed in the matter. 12. List again on 12.02.2019.