{"id":244829,"date":"2002-10-03T00:00:00","date_gmt":"2002-10-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-s-pathania-vs-union-of-india-uoi-and-ors-on-3-october-2002"},"modified":"2015-05-08T15:01:20","modified_gmt":"2015-05-08T09:31:20","slug":"h-s-pathania-vs-union-of-india-uoi-and-ors-on-3-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-s-pathania-vs-union-of-india-uoi-and-ors-on-3-october-2002","title":{"rendered":"H.S. Pathania vs Union Of India (Uoi) And Ors. on 3 October, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
H.S. Pathania vs Union Of India (Uoi) And Ors. on 3 October, 2002<\/div>\n
Author: Khan<\/div>\n
Bench: B Khan, J Kapoor<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Khan, J.<\/p>\n
 1. Petitioner, a Tima Scale Wing Commander in the
\nAir Force is wanting to wriggle out of his premature
\nretirement tangle, though of his own making. He was
\nsought to be removed first but was instead prematurely
\nretired which he is hotly contesting now.\n<\/p>\n
 2. Petitioner joined Air Force in 1973 and rose
\nthrough ranks to the rank of Wing Commander (TS). He,
\nhowever, failed to cross Efficiency Bar for 1993, 1994
\nand 1995 under respondents’ EB Policy GOI letter dated
\n16.3.1988. He was given show cause notice on this and
\ninformed of his proposed removal from service for having
\nfailed to cross the Efficiency Bar three times under the
\npolicy. He replied to the show-cause notice which was
\nfound unsatisfactory. But his removal from service was,
\nat this stage, put on hold and he was advised and
\ncounselled to seek voluntary retirement to ward off his
\nremoval from service to save him from after effects of
\nsuch removal like loss of pensionary benefits and
\nprospects of civil employment etc. He allegedly
\nfollowed this and applied for premature retirement which
\nwas eventually granted.\n<\/p>\n
 3. Petitioner has turned round now and has filed
\nthis petition challenging the action on several grounds.
\nBesides asking for quashment of the show cause notice
\ndated 8.7.1996 and his premature retirement, he also
\nprays fro striking down of Air Headquarter letter dated
\n23.10.1991 which according to him had changed the
\ncriteria for assessing his ACRs and AFO 2\/90 both of
\nwhich he believes had superseded GOI letter dated
\n16.3.1988.\n<\/p>\n
 4. Petitioner’s case makes an interesting reading.
\nHe firstly asserts that there was no requirement of
\ncrossing of Efficiency Bar in existence on 8.7.1996,
\n(date of show cause notice) under the amended Rules. He
\nthen pleads that respondents had, under mistaken belief
\nof existence of such a requirement, taken illegal
\nproceedings against him leading to his premature
\nretirement from service. According to him their whole
\naction was based on GOI policy letter dated 16.3.1988
\nwhich had ceased to operate on 1.1.1996 with
\nimplementation of Fifth Pay Commission recommendations.\n<\/p>\n
 5. Petitioner alternatively contends that even if
\nefficiency bar was presumed to be in existence, he was
\nall set and qualified to cross it on the basis of laid
\ndown criteria in GOI letter dated 16.3.1988 which
\namongst other things provided for taking into account
\nsatisfactory reports in ACR\/ICRs from 12 years of his
\nservice which he possessed. He complains that R-2 (Air
\nChief) had later changed this criteria by Air
\nHeadquarter letters dated 22.11.1988 and 23.10.1991 and
\nAFO 2\/90 increasing the figurative marks of
\n‘Satisfactory’ (3-4) to 5-6 for ‘average’, which ran
\ncounter to terms of GOI policy letter dated 16.3.1988
\nand was incompetent. He contends that these AHQ letters
\ncould not supersede government instructions and since
\nScreening Boards had assessed him on the basis of these,
\ntheir assessment was lacking in basis and vitiated.
\nMore so because when respondents had promoted him to the
\nrank of Wing Commander (T.S.) on 1.7.1993 itself, it was
\nillogical that they should have held him disqualified to
\ncross the Efficiency bar in this year also when such
\npromotion involved higher requirement of merit.\n<\/p>\n
 6. Petitioner’s last grievance is that he was made
\nto sign on the dotted line while applying for premature
\nretirement. He alleges that his application was
\nprocured under threat and coercion and thus could not be
\ntreated voluntarily. It was a dictated ‘voluntary
\nresignation’ and he procured it under the threat of
\nremoval from service. All this, according to him, would
\nshow that respondents had resorted to malafide exercise
\nof power to see him out of service.\n<\/p>\n
 7. Respondents have filed a detailed counter
\nsubscribed by Air Vice Marshall T.M. Asthana explaining
\nthat petitioner was considered by Annual Screening
\nEfficiency Bar Boards in 1993, 1994 and 1995 but was
\nfound unfit to cross the efficiency bar in all three
\nsuccessive considerations. He was, therefore, liable to
\nbe removed from service on grounds of inefficiency under
\nthe EB Policy enunciated in GOI letter dated 16.3.1988.
\nAccordingly, a notice dated 8.7.1996 was served on him
\nunder Rule 17(1) of Air Force Rules 1969 requiring him
\nto show cause against his removal from service on
\naccount of his inefficiency. He filed his reply which
\nwas considered but found unsatisfactory. His case was
\nthereafter processed for removal from service under
\nSection 19 of the Air Force Act. But it was given a
\nsecond look on the request of Eastern Air Command
\nrecommending counselling and advice to petitioner to
\nseek voluntary retirement from service to save him from
\nlosing his terminal benefits and any stigma attached to
\nsuch removal. He favorably responded to this and
\nshowed his willingness to seek voluntary retirement,
\nthough after implementation of Fifth Pay Commission
\nreport which was not acceptable. He was again
\ncounselled and he ultimately applied for premature
\nretirement which was accepted. it is submitted that
\nrequirement of crossing of efficiency bar was very much
\nin existence pursuant to GOI letter dated 16.3.1988
\nduring the relevant assessment years of 1993 to 1995 and
\nthat Fifth Pay Commission recommendations, which had
\ncome into force on 1.1.1996 replacing integrated pay
\nscales by rank based pay scales, had nothing to do with
\nit. It is also denied that Army Headquarter letters
\ndated 22.11.1988 and 23.10.1991 or for that matter AFO
\n2\/90 had superseded any Government instruction, least of
\nall EB Policy contained in GOI letter dated 16.3.1988.
\nThese were on the contrary issued to supplement the
\npolicy letter dated 16.3.1988 and that AFO 2\/90 dealt
\nwith appraisal reports of IAF Officers and not with the
\nEB Policy. It is also explained tat criteria for
\ncrossing the efficiency bar was different from that of
\nplacement in the rank of Wing Commander (TS). The
\nquantitative requirement of AR grading for crossing the
\nefficiency bar was never 3 or 4 and was 5 for both
\nminimum average and also in the mandatory qualities, as
\nprovided in EB Policy letter dated 23.10.1991. It was
\naltogether different for placement in rank of Wing
\nCommander (TS) where the officer had to possess a
\nminimum report status of 4 for the last three years and
\na minimum aggregate total of 13 for the last three
\nyears. It is also denied that petitioner was forced to
\napply for his premature retirement or tat it was
\nprocured from him under any threat or coercion. He was
\nshown indulgence instead to save him from the adverse
\nconsequences of removal from service which would have
\ndeprived him of his pensionary benefits and cast stigma
\non him disabling him from even seeking private
\nemployment etc. <\/p>\n
 8. L\/C for petitioner Mr. Manhas laboured hard to
\ncanvass that petitioner was wronged through and through
\nand was first sought to be removed from service on the
\nmistaken belief of existence of requirement of crossing
\nthe efficiency bar and then held disqualified to cross
\nit even though he was eligible and would have qualified,
\nif assessed on the basis of criteria prescribed n GOI
\nlatter dated 16.3.1988 which only required a
\nsatisfactory report in his ACRs from 12 years of his
\nservice. He submitted that respondents assessment was
\nbased on the changed criteria provided in Air HQ letters
\ndated 22.11.1988 and 23.10.1991 and which was
\nincompetent because both these and AFO 2\/90 contravened
\nthe term of the Govt. policy letter and could not be
\nrelied upon to assess petitioner for crossing of
\nefficiency bar. He cited several Supreme Court
\njudgment to show that petitioner’s was a ‘dictated
\nvoluntary resignation’ and that respondents had
\nproceeded against him under the mistaken belief of
\nexistence of a Rule. He referred to Supreme Court
\njudgments in  S.R. Venkataraman v. UOI ,
\n Sukhdev Singh v. Bhagat Ram ,  Central
\nInland Water Transport Corporation v. Brojo Nath AIR<\/a>
\n1986 SC 157 in support.\n<\/p>\n
  9. Mr. Jayant Bhushan, L\/C for respondents, on the
\nother hand, pointed out that Fifth Pay Commission may
\nhave removed the efficiency bar requirement but it had
\nnot so removed petitioner’s liability to cross the
\nefficiency bar which was existing and was in force
\npursuant to EB Policy letter dated 16.3.1988 for the
\nrelevant years of 1993 to 1995. He also refuted that
\nthe Air Headquarter letters or for that matter AFO 2\/90
\nhad contravened or superseded any Government instruction
\nof GOI Policy letter dated 16.3.1988. He referred to
\nSection 19 of the Act and Rule 17 to show that it was
\nfor the Air Chief to satisfy himself about the
\nefficiency of an officer and of his fitness to be
\nretained in service and he alone was competent to lay
\nstandard for this. Moreover, petitioner was not found
\nup to the mark by the Screening Boards three times which
\nwas conveyed to him and in case he ever believed that he
\npossessed the requisite merit to cross the efficiency
\nbar, he ought to have challenged the assessment of these
\nBoards to contest his proposed removal from service. He
\nwas at pains to show that petitioner had opted for
\nvoluntary retirement on his own volition and that his
\ncase on the efficiency bar aspect in this petition was
\nirrelevant as respondents had not acted upon his failure
\nto cross efficiency bar, which would otherwise have
\nentailed his removal from service but had only granted
\nhim premature retirement.\n<\/p>\n
 10. It all boils down to whether existence of
\nrequirement of efficiency bar was to be determined in
\nrelation to the relevant assessment years of 1993 to
\n1995 or to the date of show cause notice on 8.7.1996 and
\nif this requirement was presumed to be in existence,
\nwhether petitioner could be said to have made the grade
\nat the cost of assessment made by Screening Boards and
\nwhether Air Headquarter letters and AFO 2\/90 could be
\nstruck down for contravening any terms of GOI Policy
\nletter dated 16.3.1988 and lastly whether petitioner’s
\npremature release was tainted by any threat, force,
\ncoercion to render it involuntary.\n<\/p>\n
 11. Petitioner’s case appears misdirected all
\nthrough. According to him, since requirement of
\nefficiency bar was done away with on the implementation
\nof Fifth Pay Commission from 1.1.1996, he could not be
\ncharged of having failed to cross the bar three times on
\nthe date of show cause notice (8.7.1996) proposing his
\nremoval from service.\n<\/p>\n
 12. The fallacy of the contention is apparent on
\nthe face of it. In fact, it is petitioner who is
\nmistakenly believing that existence of requirement of
\nthe efficiency bar was to be determine don the date of
\nshow cause notice of 8.7.1996 and not at the relevant
\ntime when he was assessed for 1993, 1994 and 1995. He
\nconveniently overlooks in the process that he was to be
\nassessed for crossing of the efficiency bar in 1993-95
\nwhen efficiency bar policy contained in GOI letter dated
\n16.3.1988 was very much in force. Therefore, even if
\nrequirement of efficiency bar was non-existent on the
\ndate of the implementation of Fifth Pay Commission
\nreport, it would not operate retrospectively for
\nassessment years of 1993-95 to exempt petitioner from
\ncrossing the efficiency bar. The date of show cause
\nnotice had no bearing or relevance in the matter. This
\nnotice only informed him about the proposed action and
\nnothing more and had nothing to do with the existence or
\notherwise of the efficiency bar on the date. The boot
\nis, therefore, on the other leg. The efficiency bar was
\nvery much in existence on the date petitioner was
\nassessed and it was for him to qualify to cross it in
\naccordance with the prescribed minimum criteria at the
\nrelevant time. Since he had failed according to the
\nassessment of the Screening Boards, that was the end of
\nthe matter and he was to suffer its consequences under
\nthe policy.\n<\/p>\n
 13. Petitioner’s alternative contention that he was
\notherwise set to cross the efficiency bar but for the
\nchange in the prescribed criteria which according to him
\nwas invalid is as much fallacious as the first one. He
\nbelieves that if he was assessed as per the first
\nminimum criteria laid down in GOI policy letter dated
\n16.3.1988 which required him to possess the satisfactory
\nreports only after 12 years of service, he would have
\nmade it. He also claims that since respondents had
\nchanged the minimum performance criteria by the two Air
\nHeadquarter letters contravening the terms of the
\nGovernment policy letter dated 16.3.1988, the action was
\ninvalid and his assessment vitiated.\n<\/p>\n
 14. The FB policy contained in letter dated
\n16.3.1988 provided for crossing of the efficiency bar by
\nthe officers who would reach the stage of Rs. 4200\/- in
\nthe integrated scale. It also stipulated that their
\nprofessional competence would be assessed on the basis
\nof ‘Satisfactory’ reports in the ACRs\/ICRs\/ARs on record
\nfrom 12th year of their service and those who failed to
\nquality on first consideration would be given two
\nreviews and informed of the result after every screening
\nand if any officer failed to qualify three such
\nconsiderations, his service would be liable to be
\nterminated on grounds of inefficiency. This policy
\nletter was followed by two Air Headquarter letters dated
\n22.11.1988 and 23.10.1991 and AFO 2\/90. The first
\nletter provided that minimum performance criteria in
\ncrossing the efficiency bar would be the same as for
\ngetting promotion to the rank of Wing Commander i.e.
\nminimum overall average of 5.5 and minimum of 5.0 in
\nmandatory qualities which were specified. The other
\nletter prescribed the minimum performance criteria of
\n5.0 for both, minimum overall average in ARs under
\nconsiderations from 12th year of service and also in
\nmandatory qualities.\n<\/p>\n
 15. There is no dispute that petitioner was
\nassessed under the minimum performance criteria laid
\ndown by Air Headquarter letter dated 23.10.1991 which
\nprescribed minimum 5.0 for both minimum overall average
\nand mandatory qualities and which was in force at the
\nrelevant time and that he had failed to qualify under
\nthis as per assessment of the screening boards. He was
\ninformed of the outcome vide communications dated
\n25.11.1993, 2.8.1994 and 6.12.1995. It is surprising
\nthat he should have accepted it as a fait accompli all
\nthese years and should have now thought of ranking it up.\n<\/p>\n
 16. Even otherwise also, we find nothing wrong in
\nthis because both Air Headquarter letters dated
\n22.11.1988 and 23.10.1991 seem to have been issued under
\nthe Government EB Policy letter dated 16.3.1988 to
\nsupplement it and not to contravene it. These letters
\nonly prescribed the guidelines and the minimum
\nperformance standard at the relevant time, which could
\nnot be expected to remain static in a war-machine like
\nAir Force which demanded high degree of efficiency and
\nproficiency from is personnel. The first criteria of
\nsatisfactory, measured by whatever numerical strength
\nlaid down way back in 1988 could not, therefore, hold
\ngood for all times to come. Nor could petitioner lay
\nany claim on this in disregard of the subsequent up to
\ndate fixed standards. In any case, it was prerogative
\nof the Chief of the Air Staff to set standards of
\nefficiency in the force under Rule 17 of Air Force Rules
\nand to decide whether an officer was unfit to be
\nretained in the force on account of his inefficiency or
\nnot. It all fell within his domain and not of this
\ncourt which is loathe to interfere in the thickets of
\nexperts unless the action was shown to be irrational or
\nincapable of performance or violative of any law or
\nrules which was not the case here. Petitioner had also
\nno say in the matter because his obligation was to
\nsatisfy the prescribed minimum standards if he wanted to
\nbe in service. He could not complain of any harshness
\nor rigour of these standards and yet ask for his
\nretention in service.\n<\/p>\n
 17. This apart, petitioner’s outory on the issue of
\nexistence or crossing of efficiency bar becomes
\nirrelevant after his premature retirement instead of
\nremoval from service. His plea on this would have
\nmerited consideration if he was removed from service on
\ngrounds of inefficiency because of his failure to cross
\nthe efficiency bar three times under the policy. But
\nthat was not to be, because respondents had not taken
\nthe efficiency bar issue to its logical conclusion and
\nhad instead prematurely retired petitioner on his
\napplication. Therefore, all the remained to be seen
\nwas whether his premature retirement could be held
\ninvalid on some ground. His case in this regard is that
\nhe was forced to seek his premature retirement under
\nthreat, coercion and force and that it amounted to
\ndictated voluntary retirement’, which was liable to be
\nquashed.\n<\/p>\n
 18. We have examined the record but were unable to
\ngather any element of threat, force, coercion or undue
\ninfluence forcing petitioner to apply for his premature
\nretirement. The record shows that while his case for
\nremoval was in process, SOA, HQ, Eastern Air Command had
\nrecommended by letter dated 5.2.1997 to Director
\n(Personnel) that he be counselled and advised to seek
\nvoluntary retirement to save him from the fall out of
\nhis removal from service. He was counselled and advised
\naccordingly and he reacted to this by his letter dated
\n17.2.1997 expressing his willingness to seek voluntary
\nretirement, though after the implementation of Fifth Pay
\nCommission report which was not acceptable to the
\nrespondents. He was thereafter again counselled and
\nasked either to opt for seeking premature retirement or
\nto face the removal proceedings. He took the first
\noption which ultimately led to his premature retirement.
\nIt becomes difficult in this scenario to hold that he
\nwas prematurely retied forcibly through threat or
\ncoercion or that it was dictated to him. In fact, the
\noption of premature retirement was given for his sake
\nand for his benefit. Or else he would have faced
\nremoval from service with all its adverse consequences.
\nThat is why he appears to have seized upon this and
\nhaving enjoyed its benefits turned round to question it.
\nAll this does not lead us to the view that petitioner’s
\npremature retirement was surrounded or tainted by any
\nthreat or coercion or that it was a ‘dictated voluntary
\nretirement’ in any sense of this expression.\n<\/p>\n
 19. L\/C for petitioner has cited several Supreme
\nCourt judgments before us to suggest that petitioner’s
\npremature retirement was a ‘dictated voluntary
\nretirement’ procured under threat and coercion and was
\nliable to be set aside. We have gone through these
\njudgments only to find these distinguishable and
\nirrelevant to the points in issue in the present case.\n<\/p>\n
 20. We accordingly hold that the efficiency bar
\npolicy contained in Government of India letter dated
\n16.3.1988 was very much in existence of India letter dated
\n16.3.1988 was very much in existence and in force at the
\ntime petitioner was assessed for crossing the efficiency
\nbar in 1993-1995 and that show cause notice dated
\n8.7.1996 was not relevant for ascertaining its
\nexistence. We also hold that petitioner was required to
\nqualify in accordance with the minimum prescribed
\ncriteria in force at the relevant time and that
\nprovision of such criteria in subsequent Air Headquarter
\nletters was not in contravention or supersession of the
\nGovernment Policy\/instructions contained in policy
\nletter dated 16.3.1988. Nor was petitioner’s premature
\nretirement surrounded or tainted by any threat,
\ncoercion, force or undue influence or result of any
\nexercise of any malafide power.\n<\/p>\n
 21. This petition accordingly fails and is
\ndismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court H.S. Pathania vs Union Of India (Uoi) And Ors. on 3 October, 2002 Author: Khan Bench: B Khan, J Kapoor 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-244829","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nH.S. 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