JUDGMENT
Vijender Jain, J.
1. The petitioner was recruited to the post of Sgt. as an Education Instructor in Group II in 1995. On 8.1.1998, the petitioner applied for discharge from service on compassionate ground as per the policy of the respondent dated 25.1.1995. It is the case of the petitioner that discharge application of the petitioner was dismissed by his adjutant Sqn. Ldr. P. Karam Chandran without any reason and same was not forwarded to the concerned high authorities. Even the interview which was sought by the petitioner with the station commander was not granted to him. Mr. Kaushik, learned counsel for the petitioner has contended that in a retaliatory measure to
the interview application to the station commander, a show cause notice dated 24.2.1998 was issued to the petitioner.
2. On 9.3.1998, the petitioner gave reply to the show cause notice giving his unwillingness to get himself attested on account of family problems. The petitioner was issued with the dismissal order dated 25.6.1998. The petitioner has contended that the respondent cannot deny discharge as the same was sought by the petitioner in terms of the policy of the respondent. It has been contended by Mr. Kaushik that the petitioner was claiming the right within the framework of Regulation 64 and policy of the respondent. He has further contended that filing of the statutory complaint application for interview with station commander was as per Section 26 of the Air Force Act, 1950 and the respondent cannot take retaliatory action by dismissing the petitioner. He has further contended that the petitioner’s dismissal from the service amounts to punishment.
3. On the other hand, Dr. Ranjana Kaul, learned counsel for the respondents has vehemently contended that the petitioner has never applied for discharge from service on compassionate ground. The petitioner was dismissed from service for refusing to be attested in Indian Air Force. She has contended that dismissal of the petitioner is in accordance with the Air Force Policy laid down in AFO 227/77. It will be pertinent to reproduce para 4 of AFO 227/77:
4. On receipt of verification roll from Air Headquarters (PM’s Section), Officer Commanding, Air Force Record Office will, in fit cases, issue authority for attestation to the Commanding Officers of the units to which the airmen are posted. On receipt of such authority, the Commanding Officer, or in his presence an officer authorised by him, shall administer oath/affirmation to the airmen, in the presence of other personnel of the unit, or such of them as may be present. But where such airmen are ab-initio trainees, the attestation shall be done after they have successfully completed their training in the GTS.
4. Refusal to take oath/affirmation or to be attested is dealt with under the aforesaid AFO in para 9, the same is to the following effect:
Refusal to Take Oath/Affirmation or to be attested
9. Refusal to take oath/affirmation or to be attested, indicates lack of allegiance to the Constitution. Personnel who so refuse are liable to be released or removed/dismissed from the service. The cases of such personnel are to be reported to Air Headquarters (DPO/DPA as the case may be) through normal channels.
5. It has also been denied that the application of the petitioner was not forwarded to the authorities for disposal. It has been further contended that adjutant was not petitioner’s Station Commander. Therefore, there was no question of his handing over the application to the station commander and the petitioner himself has not claimed that the application was submitted to the Station Commander. It has also been denied that no interview was sought by the petitioner with the station commander. It has also been contended that the petitioner could have met the station
commander even if the adjutant has refused to forward his application for interview with the station commander.
6. Dr. Kaul has contended that as a matter of fact, the petitioner was required to be attested on account of the letter written by the authorities of the respondent dated 11.7.1997 and 22.12.1997. The petitioner was informed time and again to get himself attested. The petitioner finally submitted his unwillingness to get attested on 27.1.1998. She has contended that the action of dismissal was taken under Section 20 Sub-section (3) of the Air Force Act, 1950. She has further contended that before serving show cause notice on the petitioner, the station commander interviewed the petitioner on 23.1.1998 and told the petitioner consequences for refusing to be attested. The petitioner gave reply to the show cause notice on 9.3.1998 in which he again refused to be attested. The reply was considered appropriately and ultimately the petitioner was dismissed under Section 20(3) of the Air Force Act. She has further contended that on 25.6.1998 the order of dismissal of three more airmen who have refused to get themselves attested, is filed, the same is Annexure R-16 with the paper-book. It has also been refuted by the respondent that the persons whose names have been given in paragraph 12 of the petitioner were discharged from service although they were not attested. It has been contended by the respondent that on the contrary all the persons whose names have been given in the petitioner were attested and thereafter some of them were discharged on compassionate ground.
7. Mr. Kaushik, learned counsel for the petitioner has contended that Air Force Order 227/77 prescribed only procedure for attestation. In the alternative he has contended that Chief of the Air Staff cannot override the statutory provision of Air Force Act, 1950. Mr. Kaushik has placed reliance on Rule 15 of the Air Force Rules, 1969 and has contended that the authorities empowered to authorise discharge in case of persons enrolled under the Act who have not been attested is the commanding officer in terms of Table appearing in Rule 15 pursuant to paragraph (k). The learned counsel for the petitioner, therefore, has contended that in terms of Section 16, the persons who have to be attested under the Air Force Act they have to be dealt with under Rule 15 and have to be discharged simpliciter. The dismissal of the petitioner from the service is in violation of Rule 15 read with Section 16 of the Air Force Act. It has been further contended by learned counsel for the petitioner that as per the Manual of Air Force Law Volume II, paragraph 5.2 in cases of discharge under Clause (g), (h), (j) and (k) of the Table below the Rules it would be advisable to give the effected person an opportunity to show cause against the proposed order of discharge. Learned counsel has contended that even in the case of discharge, an opportunity to show cause was to be granted to the petitioner, however, no such opportunity was granted to the petitioner when the order of dismissal was made against the petitioner. He has further contended that as per the Air Force Manual Paragraph 7, airman who has not been attested can be discharged by his commanding officer under Clause (k) of the Table below the rules. Mr. Kaushik has contended that the Statutes i.e. Air Force Act, 1950, Section 20 provides for dismissal, removal or reduction by Chief of Air Staff and other officers. Sub-section (3) of Section 20 is as follows:
20.(3) An officer having power not less than an air officer-in-charge of a command or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a warrant officer.
8. Mr. Kaushik has contended that in view of the statutory provisions made under the Act as well as the Rules made thereunder the respondents cannot invoke the aid of AFO 227/77. It has been contended by Mr. Kaushik that the respondents are permitted to act within the framework of Act, Rules, Regulations and Manual of Air Force law and anything inconsistent with the statutory provisions cannot be invoked by the respondent. He has contended that AFO 227/77 is merely statutory instructions and cannot cover the field hitherto covered by the statutory provisions.
9. Air Force orders are described under Regulation 917 which are as follows :
917. Air Force Orders. Air Force Orders will be issued by the Chief of the Air Staff on matters of an administrative nature affecting the air force formations and units as a whole.
10. Learned counsel for the petitioner has contended that Air Force Orders cannot replace Rule 15 of the Air Force Act which provides for discharge in the event of non-attestation. The contention of the petitioner was that neither Air Force Orders nor Air Force Instructions can substitute Rule 15 of the Air Force Rules. Paragraph 915 of the Regulations defines Air Force Instructions. The same is to the following effect:
915. Air Force Instructions. All Government of India sanctions of a general nature or those which affect an appreciable number of units, individuals or classes of individuals will be published as air force instructions. All decisions of this kind will be published in a self contained and compact form clarifying their meaning without necessitating any reference to other books or documents.
11. In Subhash Chandra Basu v. Union of India and Ors. 1994 LAB.I.C.1203, a Single Judge of the Calcutta High Court had occasion to deal with the interpretation of Rule 15 of Air Force Rules.
12. This is not to say that there cannot be cases when before attestation a person is found inefficient during his period of training or probation. But such a situation has been taken care of by the rule making authorities under Rule 15(2) (j) of the said rules which permits the concerned authority to discharge a person enrolled under the Act but not yet attested and still undergoing training on the ground “unlikely to make an efficient airmen”. In fact such provision has been made specifically for Airmen undergoing training for Airmen. In that view of the matter said Clause ‘K’ although may be treated as a residuary clause, the same obviously would cover such cases of discharge not specifically provided for or contemplated under the other provisions of the said rules and cannot include discharge on the ground of unsuitability for retention in the service in case of persons who have been enrolled but not have yet been attested and are still undergoing training for the reasons stated hereinabove.
13. The authority cited by the learned counsel for the respondent Squadron Lead of Giri Narayana Raju v. Officer Commanding 48 Squadron and Ors. is also of no help to the counsel for the respondent. Validity of order was upheld by the Allahabad High Court in view of the fact that there was no provision in the Air Force Act, 1950 or in the Regulations framed thereunder authorising the passing of an order of wearing crash helmets when riding motor cycles, scooters etc. Therefore, the Court held that as there was no provisions in the Act or rules made thereunder, Regulations made thereunder authorising the passing of such an order will not make it invalid.
14. What has been contended before me by the respondent is that pursuant to Air Force Order (AFO) 227/77 in terms of para 9 on the refusal to take oath or to be attested, petition is liable to be released/dismissed from the service.
15. There is force in the argument of learned counsel for the petitioner that in view of the specific provisions of Rule 15 framed under the Air Force Act, 1950 said Rule postulates discharge of such persons, the AFO 227/77 will not come into play as rule being statutory in nature.
16. All persons are to be attested under Section 16 of the Air Force Act. The mode of attestation has been provided under Section 17 of the Act. Rules 8 & 9 of the Air Force Rules, 1969 provides the persons to be attested and form of oath. In view of the specific provisions under Rule 15 stated under the Table, the petitioner was to be discharged under the provisions of Rule 15, Clause (k) of the Table and any administrative instructions as contained in AFO 227/77 was inconsistent with the Rule 15. Rule 15 has provided the mode and method of discharge with relation to persons enrolled under the Act and those who have not been attested. There is no doubt that in the matter of dealing with the service conditions of the persons appointed under the Act and not attested the method and manner of their discharge has been given under Rule 15. Therefore, there is some substance in the arguments advanced by learned counsel for the petitioner. Provision has been made in Rule 15 as to how those persons who have not been attested has to be dealt with. When the field is occupied by statutory rules any instructions or orders contrary to the statutory rules will not hold the field. Though considerable arguments were advanced by the learned counsel for the respondent with regard to purport and meaning of Regulation 917 of the Air Force Regulations, but I have no hesitation in holding that when the field is covered by the rules, the regulations will not help the case of the respondent. Even in the show cause notice at page 21 of the paper-book, the action taken by the respondent on account of unwillingness of the petitioner to get attested in terms of para 9 of AFO 227/77 cannot be justified.
17. In view of the discussion above, I hold that the impugned order of dismissal dated 25.6.1998 in terms of AFO 227/77 is inconsistent with the provision of Rule 15 of the Air Force Rules, 1969 and the same is quashed. Petition is allowed. No order as to costs.