ORDER
1. The petitioner joined Indian Air Force on 31st August, 1973. His initial engagement was for a period of 15 years,
then the period was extended upto 20 years. The persons who had been engaged on 15 years term were given an option to serve 15 years or 20 years. The petitioner exercised the option and was continued for 20 years on the basis of his initial engagement. This period, however, ended on31st August, 1993. The extension beyond the initial period of appointment is governed by Air Force Order 12/S4S amended from time to time. The Airmen can continue upto the age of superannuation provided they are granted extensions in accordance with Air force order referred to above. After the expiry of period of 20 years of initial appointment an extension can be granted for a period of 6 years and after expiry of the extended period of 6 years it can be further extended for a period of 3 years at time. There is no restriction on number of extensions and it can be granted from time to time till the Airman reaches the age of superannuation. Therefore, the petitioner after completing his 20 years of service, applied for extension with effect from 1-9-1993, the first extension is supposed to be of six years and he was given extension of 6 years. According to the petitioner he was entitled for another extension as he had not reached the age of superannuation nor would he reach the age of superannuation till 31st August, 2002. He applied for fresh extension of 3 years. The second respondent had intimated to all the Air force units that the concerned persons who are willing to continue in service should have their willingness in the prescribed proforma before 18 months of the completion of the engagement, if the willingness is not communicated 18 months prior to the completion of the term it would be construed that the person concerned is not interested in continuing for another extended period. The petitioner had to complete his period of extension on 31st August, 1999. According to him he submitted an application for extension of his service on 10th January, 1998. The third respondent directed him to undergo medical examination and obtain
medical fitness certificate. The medical officer examined him on 21st January, 1998 and according to the petitioner he was found fit. Thereafter, the Section Commander recommended his case for grant of extension of service. The last date for receipt of application for extension was 28-2-1998. The petitioner had applied to the third respondent on 10-1-1998, but the application was not forwarded to the 2nd respondent. Since the second respondent did not receive the application well within time, he got an impression that the petitioner was not willing for further extension of service. Therefore, an order was passed on 5-8-1998 directing retirement of the petitioner with effect from 31st August, 1999. On these facts, the petitioner challenged the order dated 5-8-1998 mainly on the ground that it was not his fault that his application had not been forwarded to the concerned authority within the stipulated period of time.
2. Counter has been filed. In the counter it has been admitted that there was delay in submitting the application to the concerned respondent. But, the reasons given in the counter affidavit for the delay are that the petitioner had arrived at the present station on posting on 11th September, 1997, his previous medical records had not been received, those records are taken into consideration while framing an opinion on the health status of the person concerned, but to avoid any hardship to the petitioner he was referred to the Doctor who examined him on 15th January, 1998. Before the Doctor the petitioner contended that earlier he had the medical category of ‘AYE’ but subsequently the records of the petitioner were received and it was revealed that he was not in the category of ‘AYE’ but in the category of ‘CEE’. According to the respondents the petitioner had given a wrong statement before the Medical officer and obtained the medical category certificate as ‘AYE’, therefore it was necessary to ascertain the petitioner’s true medical category and it
was decided that he should be examined afresh. But, during the period when he was to be examined he went on leave on the ground of his wife’s sickness from 21st February, 1998 to 21st March, 1998. Since he was not available there was delay in forwarding the application. It is denied that the application was not forwarded. It is submitted that the application was forwarded on 13th July, 1998 after medical clearance. It is further stated that the extension was refused to the petitioner on the ground that he could not make the grade for the purpose of grant of extension. It is submitted that, for the purpose of grant of extension, annual assessment in confidential reports of previous five years are taken into consideration and those Airmen who secure an average of 72.5% or above marks are eligible for extension. The marks secured by the petitioner from the year 1994 to 1998 have been given. For the year 1996 his marks were not available and he had been given marks which are average of other four years. The total marks for a particular year are 132. The petitioner secured 366 marks for five years. The marks required for getting the extension was 479. Even if the petitioner was given 132 out of 132 for the year 1996 even then his total marks would not be 479. Therefore, according to the respondents, since the petitioner could not make the grade he was not granted extension.
3. After this counter was filed, the petitioner filed another affidavit as a rejoinder to the counter affidavit in which he stated that the fact that the petitioner was in lower medical category was never communicated to him. He submits that, although the petitioner’s application was referred to the concerned authority belatedly but he disputes that it was sent to the 2nd respondent on 13-7-1998. He submits that second respondent had called the third respondent on 21-7-1998 to submit a report as to why there was delay in submitting the application of the petitioner. The third
respondent asked the petitioner to give explanation on 20th August, 1998 but the 2nd respondent had issued an order op 5-8-1998 discharging the petitioner with effect from 31-8-1999. He further stated that he had never been informed of short fall of Annual confidential report at any point of time. Since he was not informed, therefore these ACRs could not be relied upon.
4. Considering all these facts, the question is whether the petitioner’s case was one in which his application for extension was considered, or, it was a case in which because of delay in referring his application to respondent No.2 the respondents presumed that the petitioner was not interested in extension.
5. There has been some confusion with regard to the referring of the application by respondent No.3 to respondent No.2, but, at the same time, it is clear that the case of the petitioner has been considered. It has not been presumed that the petitioner does not want an extension. His request has been declined on the ground that he could not make the grade. The petitioner submits that, since the ACRs were adverse to him and they were never communicated to him, therefore they could not be relied upon for refusing extension to him. The ACRs have not at all been adverse to the petitioner, but the marks secured in the ACRs are being used for considering the desirablility of granting extension. The petitioner got only 366 marks whereas the marks required under the Rule is 479. Whether the petitioner had the medical status which would entitle him for extension, or not, would be only of an academic interest in view of the fact that the petitioner could not make the grade.
6. The regulations which regulate the extension of service of Airmen have been issued by Air Headquaters, Vayubhavan, New Delhi vide proceedings Air HQ/40811/
PA III, dated 6th November, 1995. The relevant regulation is regulation 4(f) which is reproduced:
4.(f) ACR & Assessments : For the purpose of grant of extension, annual assessment and/or his assessment in confidential reports during the last five years will be considered. However, in cases of airmen whose RE expires on or after 1 July, 2000, annual assessments and/or their assessments in confidential reports during the last seven years will be considered. An airman who has secured an average of 60% or above marks in his assessment/confidential reports shall be eligible for grant of First Extension of engagement subject to his fulfilling other conditions as laid down in this policy letter. For the second and subsequent spells of Extension of Engagement, the airmen will have to score the following minimum percentage:
Airmen whose RE expires between 1-6-98 and 30-6-2000 (Average of 5 yrs)
Airmen whose RE expires on or after 1-7-2000 (Average of 7 yrs.)
(a)
Cpl
60%
60%
(b)
Ggt
70%
72.5%
(c)
JWO
72.5%
75%
(d)
WO/MWO
75%
77.5%
7. So, these regulation make it clear that the petitioner had to obtain 72.5%. Since he had tailed to do so, therefore he was not considered for extension.
8. The learned Counsel for the petitioner submits that number of petitions are pending in this Court and stays have been granted therefore this petition be admitted to hearing and stay should be granted. He has also relied on a judgment of this Court in WP No. 18534 of 1996 dated 19-1-1998 which according to him
has already been upheld by the Division Bench in WA No.876 of 1998 dated 20-7-1999. In this case the extension had been refused on the ground that the Intelligence wing of the Air headquaters had opposed such an extension. It was also contended in that case that the petitioner was responsible for leakage of answers to the questions in the Airmen test. In that case the petitioner had not been found guilty by the Court of Inquiry but still it was presumed that he was actively involved in the leakage of answers. The Court found that although the petitioner had been refused an extension on the ground of Air force security the respondents were not able to show to the Court as to what were the circumstances which led to believe the respondents that Air force security would be involved if an extension is granted to the petitioner. No material was also brought before the Court in this connection. Therefore, the Court allowed the writ petition and directed that the competent authority shall consider the matter afresh and pass appropriate orders. In the Division Bench also almost the same order was passed. But, the extension was not granted by the Court. The facts of that case are altogether different from the facts of the present case. There is no stigma attached to the petitioner in the present case, there are no charges levelled against the petitioner, but he is sought to be discharged and extension is refused to him solely on the ground that he could not make the grade in accordance with the norms fixed by the proceedings dated 6th November, 1995.
9. For all these reasons, I do not find any merit in this writ petition which is accordingly dismissed. This Court has granted a Stay yesterday because the petitioner had to retire on 31st August, 1999. He should now be treated to have retired on 31st August, 1999. No costs.