JUDGMENT
Khan, J.
1. Petitioner, a Tima Scale Wing Commander in the
Air Force is wanting to wriggle out of his premature
retirement tangle, though of his own making. He was
sought to be removed first but was instead prematurely
retired which he is hotly contesting now.
2. Petitioner joined Air Force in 1973 and rose
through ranks to the rank of Wing Commander (TS). He,
however, failed to cross Efficiency Bar for 1993, 1994
and 1995 under respondents’ EB Policy GOI letter dated
16.3.1988. He was given show cause notice on this and
informed of his proposed removal from service for having
failed to cross the Efficiency Bar three times under the
policy. He replied to the show-cause notice which was
found unsatisfactory. But his removal from service was,
at this stage, put on hold and he was advised and
counselled to seek voluntary retirement to ward off his
removal from service to save him from after effects of
such removal like loss of pensionary benefits and
prospects of civil employment etc. He allegedly
followed this and applied for premature retirement which
was eventually granted.
3. Petitioner has turned round now and has filed
this petition challenging the action on several grounds.
Besides asking for quashment of the show cause notice
dated 8.7.1996 and his premature retirement, he also
prays fro striking down of Air Headquarter letter dated
23.10.1991 which according to him had changed the
criteria for assessing his ACRs and AFO 2/90 both of
which he believes had superseded GOI letter dated
16.3.1988.
4. Petitioner’s case makes an interesting reading.
He firstly asserts that there was no requirement of
crossing of Efficiency Bar in existence on 8.7.1996,
(date of show cause notice) under the amended Rules. He
then pleads that respondents had, under mistaken belief
of existence of such a requirement, taken illegal
proceedings against him leading to his premature
retirement from service. According to him their whole
action was based on GOI policy letter dated 16.3.1988
which had ceased to operate on 1.1.1996 with
implementation of Fifth Pay Commission recommendations.
5. Petitioner alternatively contends that even if
efficiency bar was presumed to be in existence, he was
all set and qualified to cross it on the basis of laid
down criteria in GOI letter dated 16.3.1988 which
amongst other things provided for taking into account
satisfactory reports in ACR/ICRs from 12 years of his
service which he possessed. He complains that R-2 (Air
Chief) had later changed this criteria by Air
Headquarter letters dated 22.11.1988 and 23.10.1991 and
AFO 2/90 increasing the figurative marks of
‘Satisfactory’ (3-4) to 5-6 for ‘average’, which ran
counter to terms of GOI policy letter dated 16.3.1988
and was incompetent. He contends that these AHQ letters
could not supersede government instructions and since
Screening Boards had assessed him on the basis of these,
their assessment was lacking in basis and vitiated.
More so because when respondents had promoted him to the
rank of Wing Commander (T.S.) on 1.7.1993 itself, it was
illogical that they should have held him disqualified to
cross the Efficiency bar in this year also when such
promotion involved higher requirement of merit.
6. Petitioner’s last grievance is that he was made
to sign on the dotted line while applying for premature
retirement. He alleges that his application was
procured under threat and coercion and thus could not be
treated voluntarily. It was a dictated ‘voluntary
resignation’ and he procured it under the threat of
removal from service. All this, according to him, would
show that respondents had resorted to malafide exercise
of power to see him out of service.
7. Respondents have filed a detailed counter
subscribed by Air Vice Marshall T.M. Asthana explaining
that petitioner was considered by Annual Screening
Efficiency Bar Boards in 1993, 1994 and 1995 but was
found unfit to cross the efficiency bar in all three
successive considerations. He was, therefore, liable to
be removed from service on grounds of inefficiency under
the EB Policy enunciated in GOI letter dated 16.3.1988.
Accordingly, a notice dated 8.7.1996 was served on him
under Rule 17(1) of Air Force Rules 1969 requiring him
to show cause against his removal from service on
account of his inefficiency. He filed his reply which
was considered but found unsatisfactory. His case was
thereafter processed for removal from service under
Section 19 of the Air Force Act. But it was given a
second look on the request of Eastern Air Command
recommending counselling and advice to petitioner to
seek voluntary retirement from service to save him from
losing his terminal benefits and any stigma attached to
such removal. He favorably responded to this and
showed his willingness to seek voluntary retirement,
though after implementation of Fifth Pay Commission
report which was not acceptable. He was again
counselled and he ultimately applied for premature
retirement which was accepted. it is submitted that
requirement of crossing of efficiency bar was very much
in existence pursuant to GOI letter dated 16.3.1988
during the relevant assessment years of 1993 to 1995 and
that Fifth Pay Commission recommendations, which had
come into force on 1.1.1996 replacing integrated pay
scales by rank based pay scales, had nothing to do with
it. It is also denied that Army Headquarter letters
dated 22.11.1988 and 23.10.1991 or for that matter AFO
2/90 had superseded any Government instruction, least of
all EB Policy contained in GOI letter dated 16.3.1988.
These were on the contrary issued to supplement the
policy letter dated 16.3.1988 and that AFO 2/90 dealt
with appraisal reports of IAF Officers and not with the
EB Policy. It is also explained tat criteria for
crossing the efficiency bar was different from that of
placement in the rank of Wing Commander (TS). The
quantitative requirement of AR grading for crossing the
efficiency bar was never 3 or 4 and was 5 for both
minimum average and also in the mandatory qualities, as
provided in EB Policy letter dated 23.10.1991. It was
altogether different for placement in rank of Wing
Commander (TS) where the officer had to possess a
minimum report status of 4 for the last three years and
a minimum aggregate total of 13 for the last three
years. It is also denied that petitioner was forced to
apply for his premature retirement or tat it was
procured from him under any threat or coercion. He was
shown indulgence instead to save him from the adverse
consequences of removal from service which would have
deprived him of his pensionary benefits and cast stigma
on him disabling him from even seeking private
employment etc.
8. L/C for petitioner Mr. Manhas laboured hard to
canvass that petitioner was wronged through and through
and was first sought to be removed from service on the
mistaken belief of existence of requirement of crossing
the efficiency bar and then held disqualified to cross
it even though he was eligible and would have qualified,
if assessed on the basis of criteria prescribed n GOI
latter dated 16.3.1988 which only required a
satisfactory report in his ACRs from 12 years of his
service. He submitted that respondents assessment was
based on the changed criteria provided in Air HQ letters
dated 22.11.1988 and 23.10.1991 and which was
incompetent because both these and AFO 2/90 contravened
the term of the Govt. policy letter and could not be
relied upon to assess petitioner for crossing of
efficiency bar. He cited several Supreme Court
judgment to show that petitioner’s was a ‘dictated
voluntary resignation’ and that respondents had
proceeded against him under the mistaken belief of
existence of a Rule. He referred to Supreme Court
judgments in S.R. Venkataraman v. UOI ,
Sukhdev Singh v. Bhagat Ram , Central
Inland Water Transport Corporation v. Brojo Nath AIR
1986 SC 157 in support.
9. Mr. Jayant Bhushan, L/C for respondents, on the
other hand, pointed out that Fifth Pay Commission may
have removed the efficiency bar requirement but it had
not so removed petitioner’s liability to cross the
efficiency bar which was existing and was in force
pursuant to EB Policy letter dated 16.3.1988 for the
relevant years of 1993 to 1995. He also refuted that
the Air Headquarter letters or for that matter AFO 2/90
had contravened or superseded any Government instruction
of GOI Policy letter dated 16.3.1988. He referred to
Section 19 of the Act and Rule 17 to show that it was
for the Air Chief to satisfy himself about the
efficiency of an officer and of his fitness to be
retained in service and he alone was competent to lay
standard for this. Moreover, petitioner was not found
up to the mark by the Screening Boards three times which
was conveyed to him and in case he ever believed that he
possessed the requisite merit to cross the efficiency
bar, he ought to have challenged the assessment of these
Boards to contest his proposed removal from service. He
was at pains to show that petitioner had opted for
voluntary retirement on his own volition and that his
case on the efficiency bar aspect in this petition was
irrelevant as respondents had not acted upon his failure
to cross efficiency bar, which would otherwise have
entailed his removal from service but had only granted
him premature retirement.
10. It all boils down to whether existence of
requirement of efficiency bar was to be determined in
relation to the relevant assessment years of 1993 to
1995 or to the date of show cause notice on 8.7.1996 and
if this requirement was presumed to be in existence,
whether petitioner could be said to have made the grade
at the cost of assessment made by Screening Boards and
whether Air Headquarter letters and AFO 2/90 could be
struck down for contravening any terms of GOI Policy
letter dated 16.3.1988 and lastly whether petitioner’s
premature release was tainted by any threat, force,
coercion to render it involuntary.
11. Petitioner’s case appears misdirected all
through. According to him, since requirement of
efficiency bar was done away with on the implementation
of Fifth Pay Commission from 1.1.1996, he could not be
charged of having failed to cross the bar three times on
the date of show cause notice (8.7.1996) proposing his
removal from service.
12. The fallacy of the contention is apparent on
the face of it. In fact, it is petitioner who is
mistakenly believing that existence of requirement of
the efficiency bar was to be determine don the date of
show cause notice of 8.7.1996 and not at the relevant
time when he was assessed for 1993, 1994 and 1995. He
conveniently overlooks in the process that he was to be
assessed for crossing of the efficiency bar in 1993-95
when efficiency bar policy contained in GOI letter dated
16.3.1988 was very much in force. Therefore, even if
requirement of efficiency bar was non-existent on the
date of the implementation of Fifth Pay Commission
report, it would not operate retrospectively for
assessment years of 1993-95 to exempt petitioner from
crossing the efficiency bar. The date of show cause
notice had no bearing or relevance in the matter. This
notice only informed him about the proposed action and
nothing more and had nothing to do with the existence or
otherwise of the efficiency bar on the date. The boot
is, therefore, on the other leg. The efficiency bar was
very much in existence on the date petitioner was
assessed and it was for him to qualify to cross it in
accordance with the prescribed minimum criteria at the
relevant time. Since he had failed according to the
assessment of the Screening Boards, that was the end of
the matter and he was to suffer its consequences under
the policy.
13. Petitioner’s alternative contention that he was
otherwise set to cross the efficiency bar but for the
change in the prescribed criteria which according to him
was invalid is as much fallacious as the first one. He
believes that if he was assessed as per the first
minimum criteria laid down in GOI policy letter dated
16.3.1988 which required him to possess the satisfactory
reports only after 12 years of service, he would have
made it. He also claims that since respondents had
changed the minimum performance criteria by the two Air
Headquarter letters contravening the terms of the
Government policy letter dated 16.3.1988, the action was
invalid and his assessment vitiated.
14. The FB policy contained in letter dated
16.3.1988 provided for crossing of the efficiency bar by
the officers who would reach the stage of Rs. 4200/- in
the integrated scale. It also stipulated that their
professional competence would be assessed on the basis
of ‘Satisfactory’ reports in the ACRs/ICRs/ARs on record
from 12th year of their service and those who failed to
quality on first consideration would be given two
reviews and informed of the result after every screening
and if any officer failed to qualify three such
considerations, his service would be liable to be
terminated on grounds of inefficiency. This policy
letter was followed by two Air Headquarter letters dated
22.11.1988 and 23.10.1991 and AFO 2/90. The first
letter provided that minimum performance criteria in
crossing the efficiency bar would be the same as for
getting promotion to the rank of Wing Commander i.e.
minimum overall average of 5.5 and minimum of 5.0 in
mandatory qualities which were specified. The other
letter prescribed the minimum performance criteria of
5.0 for both, minimum overall average in ARs under
considerations from 12th year of service and also in
mandatory qualities.
15. There is no dispute that petitioner was
assessed under the minimum performance criteria laid
down by Air Headquarter letter dated 23.10.1991 which
prescribed minimum 5.0 for both minimum overall average
and mandatory qualities and which was in force at the
relevant time and that he had failed to qualify under
this as per assessment of the screening boards. He was
informed of the outcome vide communications dated
25.11.1993, 2.8.1994 and 6.12.1995. It is surprising
that he should have accepted it as a fait accompli all
these years and should have now thought of ranking it up.
16. Even otherwise also, we find nothing wrong in
this because both Air Headquarter letters dated
22.11.1988 and 23.10.1991 seem to have been issued under
the Government EB Policy letter dated 16.3.1988 to
supplement it and not to contravene it. These letters
only prescribed the guidelines and the minimum
performance standard at the relevant time, which could
not be expected to remain static in a war-machine like
Air Force which demanded high degree of efficiency and
proficiency from is personnel. The first criteria of
satisfactory, measured by whatever numerical strength
laid down way back in 1988 could not, therefore, hold
good for all times to come. Nor could petitioner lay
any claim on this in disregard of the subsequent up to
date fixed standards. In any case, it was prerogative
of the Chief of the Air Staff to set standards of
efficiency in the force under Rule 17 of Air Force Rules
and to decide whether an officer was unfit to be
retained in the force on account of his inefficiency or
not. It all fell within his domain and not of this
court which is loathe to interfere in the thickets of
experts unless the action was shown to be irrational or
incapable of performance or violative of any law or
rules which was not the case here. Petitioner had also
no say in the matter because his obligation was to
satisfy the prescribed minimum standards if he wanted to
be in service. He could not complain of any harshness
or rigour of these standards and yet ask for his
retention in service.
17. This apart, petitioner’s outory on the issue of
existence or crossing of efficiency bar becomes
irrelevant after his premature retirement instead of
removal from service. His plea on this would have
merited consideration if he was removed from service on
grounds of inefficiency because of his failure to cross
the efficiency bar three times under the policy. But
that was not to be, because respondents had not taken
the efficiency bar issue to its logical conclusion and
had instead prematurely retired petitioner on his
application. Therefore, all the remained to be seen
was whether his premature retirement could be held
invalid on some ground. His case in this regard is that
he was forced to seek his premature retirement under
threat, coercion and force and that it amounted to
dictated voluntary retirement’, which was liable to be
quashed.
18. We have examined the record but were unable to
gather any element of threat, force, coercion or undue
influence forcing petitioner to apply for his premature
retirement. The record shows that while his case for
removal was in process, SOA, HQ, Eastern Air Command had
recommended by letter dated 5.2.1997 to Director
(Personnel) that he be counselled and advised to seek
voluntary retirement to save him from the fall out of
his removal from service. He was counselled and advised
accordingly and he reacted to this by his letter dated
17.2.1997 expressing his willingness to seek voluntary
retirement, though after the implementation of Fifth Pay
Commission report which was not acceptable to the
respondents. He was thereafter again counselled and
asked either to opt for seeking premature retirement or
to face the removal proceedings. He took the first
option which ultimately led to his premature retirement.
It becomes difficult in this scenario to hold that he
was prematurely retied forcibly through threat or
coercion or that it was dictated to him. In fact, the
option of premature retirement was given for his sake
and for his benefit. Or else he would have faced
removal from service with all its adverse consequences.
That is why he appears to have seized upon this and
having enjoyed its benefits turned round to question it.
All this does not lead us to the view that petitioner’s
premature retirement was surrounded or tainted by any
threat or coercion or that it was a ‘dictated voluntary
retirement’ in any sense of this expression.
19. L/C for petitioner has cited several Supreme
Court judgments before us to suggest that petitioner’s
premature retirement was a ‘dictated voluntary
retirement’ procured under threat and coercion and was
liable to be set aside. We have gone through these
judgments only to find these distinguishable and
irrelevant to the points in issue in the present case.
20. We accordingly hold that the efficiency bar
policy contained in Government of India letter dated
16.3.1988 was very much in existence of India letter dated
16.3.1988 was very much in existence and in force at the
time petitioner was assessed for crossing the efficiency
bar in 1993-1995 and that show cause notice dated
8.7.1996 was not relevant for ascertaining its
existence. We also hold that petitioner was required to
qualify in accordance with the minimum prescribed
criteria in force at the relevant time and that
provision of such criteria in subsequent Air Headquarter
letters was not in contravention or supersession of the
Government Policy/instructions contained in policy
letter dated 16.3.1988. Nor was petitioner’s premature
retirement surrounded or tainted by any threat,
coercion, force or undue influence or result of any
exercise of any malafide power.
21. This petition accordingly fails and is
dismissed.