JUDGMENT
1. By this petition, the petitioner has sought relief for mandamus commanding the respondents to promote the petitioner to the rank of Wing Commander (Time Scale) w.e.f. 31st July 1984 and give him all financial benefits with effect from that date and further the respondents be directed to consider the petitioner's application dated 14th March 1986 and give the petitioner voluntary retirement with effect from 30th June 1987. The petitioner has also sought relief in the nature of writ of certiorari for quashing the order dated 14th May 1986 contained in Annexure-13 of the writ petition and further the relief in the nature of mandamus is sought for not to give effect to the aforementioned impugned letter dated 14th May 1986.
2. The reliefs sought in the writ petition is grounded on the facts that the petitioner was selected for commission in technical branch in the Indian Air Force in June 1963 but at that time the petitioner was completing his research in Solid State Physics and, therefore, the petitioner joined Air Force Technical Branch with effect from 6th January 1964 as Pilot Officer in Technical Branch of the Ground Duty Officer. The petitioner was, however given a permanent commission with retrospective effect from 12th June 1963. The petitioner was subsequently found suitable for promotion to the rank of Flying Officer and was promoted with effect from 12th June 1965. Thereafter with effect from 12th June 1969 the petitioner had been promoted to the rank of Flight Lieutenant. It is also stated that the petitioner's promotion to the next higher rank of a Squadran Leader became due on 12th June 1976 but one of the requirement for that promotion was to pass the qualifying examination. The petitioner on account of involvement in civil case it was also the result of his performance of an official duty, could pass the aforesaid qualifying examination on 20th August 1978 and it was with effect from the said date that petitioner was promoted to the rank of Squadran Leader. According to the petitioner, the relevant rule for promotion from rank of Squadran Leader to the rank of Wing Commander (Time Scale) is contained in para 7 of AFI 15 of 1971(Annexure 1 of the writ petition). However, the respondent No. 1 by a circular letter dated 28th March 1985 amended the promotion rules, whereby the period of reckonable commissioned service of 24 years was reduced to 21 years. Para 5 of the aforesaid circular provided that the amendment contained in said letter to the relevant rules will be given effect to from 31st July 1984. A relevant extract of the aforesaid AFI 15 of 1971 rules and circular dated 28th March 1985 are on record as Annexures 1 and 2 of the writ petition. In para 6 and 7 of the writ petition it is further stated that statutory reckonable service for promotion has been defined in para 133 of Indian Air Force Regulations 1964, hereinafter referred to as 'the Regulation'. According to the petitioner since the he had been given permanent commission with effect from 12th June 1963 and this was also the date of his seniority for promotion, therefore, the petitioner competed 21 years of reckonable service on 12th June 1984 but since the amended regulations were given effect to from 31st July 1984, hence the petitioner became entitled for promotion to the rank of Wing Commander (Time Scale) with effect from 31st July 1984. In para 8 of the writ petition it is stated that the medical category of petitioner is A 465 which is much higher category to Ap Bp., which is the same as APGP as per AFO 219 of 1977. As regards the suitability the petitioner can only state that he has not been communicated any adverse entry and prior to this, his promotion had never been withheld, hence the petitioner fulfils all the requirements for promotion in the time scale of Wing Commander. It is also stated that certain promotions of Squadran Leaders to the rank of Wing Commander had been approved by the Air Headquarters vide its Signal circular No. PO/254 Aug/02 a circular dated 2nd August 1985 in which the petitioner's name was not there even though some of his juniors had been promoted. The petitioner immediately made oral representation to the Air Officer Commanding, Air Force Station, Agra who was the immediate Superior of the petitioner and sought his advice for making written representation. On this, the Officer Commanding asked the petitioner not to send any written representation. He on his own got signal sent to the Central Air Commanding, Bamrauli Allahabad in August 1985 with information to the Air Headquarter. Thereupon a reply from Central Air Commanding was received stating therein that the Central Air Commanding on 20th August 1985 had sent a signal No. PO615 to the Air Headquarter requiring the position of promotion of petitioner. However, thereafter no information whatsoever has been received regarding the promotion of petitioner from Air Headquarter.
3. The petitioner was feeling suffocated and out of utter disgust the petitioner on 7th October 1985 gave an application to the Air Officer Commanding seeking premature retirement with effect from 1st October 1986. The aforesaid application of the petitioner was recommended to Air Headquarter by Central Air Commanding by its letter dated 10th December 1985. It is further stated that the relevant regulation regarding voluntary premature retirement in Air Force is contained in para 216 of Air Force Regulation 1964, a true copy of which is on record as Annexure-6. On this subject the Air Headquarter on 11th May 1983 issued a policy letter which is also relevant for the purpose of this case and a copy of which is on record as Annexure-7. The petitioner, as per regulations, had submitted his application for voluntary retirement more than 9 months before the date given for the retirement on the request. The petitioner being entitled to 6 months period of leave preparatory to retirement and prior to that one and half month being required for clearance from the Unit and for clearance by the Medical Board. The decision on application of petitioner dated 7th October 1985 should have been communicated to him latest by middle of the February 1986 which was not done. In this event, the petitioner became entitled to change the request regarding the date of his voluntary retirement and petitioner further bonafidely started believing that the Government was perhaps thinking of redressing the grievance of the petitioner, rather than allowing him to voluntarily retire. Hence the petitioner on 14th March 1986 addressed a letter for changing the date of his retirement and on 1st May 1986 sent a reminder in continuation thereof. Thereupon the petitioner addressed a letter for redress of his grievance on 14th May 1986, whereby the petitioner claimed his promotion to the rank of Wing Commander (Time Scale) with effect from 31st July 1984. The petitioner on his letter for Redress of Grievances gave two reminders on 30th May 1986 and 4th July 1986 respectively. By a letter dated 14th May 1986 which was communicated to the petitioner on 27th May 1986 the petitioner was allowed to voluntary retirement with effect from 1.10.1986 (1st October, 1986) after getting clearance from the Unit within 15 days. A true copy of the said letter is on record as Annexure-13 to the writ petition. Having received the letter dated 14th May 1986 in the after non of 27th May 1986 the petitioner on 29th May 1986 addressed a letter to Air Officer Commanding, Air Force Station, Agra that he has started clearance from the Unit subject to his right to change the date of his retirement. Naturally the petitioner being a member of the disciplined force obeyed the orders of the Officer Commanding but at the same time, in his letter made it clear that he had not given up his claim of changing the date of retirement. The petitioner had further made it clear that he had been retired without deciding his Redress of Grievance letter which was mandatory. A true copy of the letter is on record as Annexure-14 to the writ petition. The petitioner thereafter on 14th June 1986 put up a formal Redress of Grievance letter regarding the changing of his date of voluntary retirement, a true copy of the said letter is on record as Annexure-15. The petitioner's aforementioned Redress of Grievance letter has not yet been disposed of and the petitioner had been put on leave preparatory to retirement with effect from 7th July 1986. As a result of putting the petitioner on leave preparatory to retirement with effect from 7th July 1986 the petitioner will be retired on 6th January 1987 and will have even to vacate the official accommodation. The Air Headquarters did not communicate to the petitioner the acceptance of his request for retirement with effect from 1st October 1986. The petitioner changed his entire schedule and he has not even made arrangements for an alternative residential accommodation and his plans for re-settlement and rehabilitation have also been disturbed. Thereafter the petitioner has been pursuing the Department for redress of his grievance as contained in his letter dated 14th June 1986 as also the previous redress of grievance letter dated 14th May 1986 but without any success, hence this petition.
4. We have heard Learned Counsel for the parties and have also gone through the records of the writ petition.
5. Having gone through it, there appears two questions for consideration of this Court viz; (i) as to whether the petitioner was entitled for promotion to the rank of Wing Commander (Time Scale) w.e.f. 31st July 1984, and (ii) as to whether the petitioner was entitled to get premature voluntary retirement w.e.f. 30th June 1987 along with all financial benefits instead of w.e.f. 1st October, 1986 as earlier sought by him?
6. So far as first question is concerned, the stand taken by the respondents as disclosed in counter affidavit particularly averred in paragraphs 7 and 10 are extracted as under:
7. That in reply to the contents of paragraph 8 of the writ petition, it is submitted that the petitioner became eligible for consideration of promotion for time scale Wing Commander w.e.f. 31st July 1984 and his case was considered along with other eligible officers. After due consideration the petitioner was, however, not found fit for promotion as he did not fulfil the performance criteria laid down for assessing the suitability of an officer for substantive promotion to the rank of Wing Commander. The performance criteria which has all along been applied uniformally, is elucidated vide Air Headquarters letter No. Air HQ/C98801/1/PO5 dated 16th October 1986. The Air Headquarter had made certain criteria for promotion and as it is an confidential document, therefore, the answering respondents are not in a position to file the same. However, it is made clear that if this Hon'ble Court thinks proper, the said confidential document can be shown at the time of hearing of the aforesaid petition. It is, however, important to mention here that though the performance criteria has been elucidated in Air Headquarter letter mentioned above, the said criteria is adopted for screening the cases for promotion of the officers since 1984. The criteria has been in vogue earlier but as a result of queries received from different units, it was felt necessary for clarification of the position and also to lay down a procedure for guidance of the Reporting Officers in such type of cases. It is also important to mention here that it can be seen that minimum status of '4' does not mean that absence of any adverse report or remark in the Appraisal Report automatically entitles an officer for promotion. However, for example, an officer with grading '3' to '3.9' will not be eligible for Time Scale Promotion although this grading does not mean that adverse report or remark. The grading of '3' and '4' are considered to be satisfactory.
10. That in reply to the contents of paragraph 11 of the writ petition, it is submitted that case for non-promotion to the Time Scale rank of Wing Commander was received at Air Headquarters and was examined in detail. Since the petitioner did not fulfil the performance criteria for promotion, he was not granted the said promotion and intimation to this effect was conveyed by the Air Headquarters vide their letter No. Air HQ/ 22029/2/PO2 (A) dated 5th September 1986, a copy of which is enclosed herewith and marked as Annexure-I to this affidavit.
From the perusal of the stand taken in the counter affidavit, it is clear that the case of promotion of the petitioner in the rank of time scale Wing Commander was considered and examined by the authorities and it was found that the petitioner did not fulfil the performance criteria laid down for promotion, as such he could not be granted said promotion. It has been made further clear in paragraph 7 of the counter affidavit that the performance criteria which has all along been applied uniformally to all candidates, is elucidated vide Air Headquarters letter dated 16th October 1986. The said criteria was adopted for screening the cases for promotion of the officers since 1984. The criteria has been in vogue since earlier but as a result of queries received from different units, it was felt necessary for clarification of the position and also to lay down a procedure for guidance of the Reporting Officers in such type of cases, as such letter dated 16th October 1986 has been issued. It is not that a new rule has been made for promotion in the year 1986 and has been applied with retrospective effect i.e. since 1984. In other words, according to the respondents the said criteria for screening of the cases for promotion of eligible officers was already in vogue, since 1984 and was uniformally applied to all candidates including the petitioner. On such screening the petitioner was not found fit for promotion, therefore, he was denied for promotion. It is also stated in paragraph 7 of the counter affidavit that minimum status of '4' does not mean that absence of any adverse report or remark in the Appraisal Report automatically entitles an officer for promotion. For example, an officer with grading '3' to '3.9' will not be eligible for Time Scale Promotion although this grading does not mean that the adverse report or remark. The grading '3' and '4' are considered to be satisfactory. Learned Counsel for the petitioner could not point out any illegality in uniform application of said criteria for screening the officers for promotion on the post in question showing any discriminatory treatment with the petitioner. Therefore, in view of the aforesaid discussion and in the wake of aforesaid statements of fact and law made in paragraph 7 and 10 of the counter affidavit, we are of the considered opinion that denial of promotion to the petitioner in the rank of Wing Commander (Time Scale) w.e.f. 31st July 1984 cannot be faulted with, so as to call for any interference by this Court in writ jurisdiction.
7. So far as another relief sought for by the petitioner in the writ petition is concerned, it would be appropriate to extract the stand taken by the respondents in para 11,12,13,16,17,19,20,21,22 and 23 of the counter affidavit as under:
11. That in reply to the contents of paragraph 12 of the writ petition, it is submitted that an application for pre-mature retirement by the petitioner on the ground of supersession dated 7th October 1985 alongwith various other certificates, as required in such cases, was received by the Air Headquarters with the rank of request that the petitioner was not promoted in Time Scale as Wing Commander, he wants to retire from service w.e.f. 1st October 1986. The petitioner has also sent a certificate with an undertaking that he will not withdraw his application for pre-mature retirement or will not make a request for change of date of the premature retirement, alongwith the application dated 7th October 1985. A true copy of the undertaking given by the petitioner is filed herewith and marked as Annexure II to this affidavit.
12. That the contents of paragraph 13 of the writ petition are denied and in reply it is submitted that it is nowhere written in the Regulation that the date given by an applicant for premature retirement would be accepted by the Competent Authority. The applicant is required to give prospective date for the purpose of progressing the request. This date is kept in view while processing his application at various levels and if the same cannot be adhered to, the applicant is given a future date of retirement from service.
13. That the allegations made in paragraph 14 of the writ petition are emphatically denied and in reply thereof, it is submitted that the petitioner has requested for premature retirement from 1st October 1986 and orders from the Air Headquarter for his release were issued on 14th May 1986 giving him all non-effective benefits. If the officer was keen to retire on 1st October 1986, he could have done so by restricting his leave pending retirement to the period which was available to the petitioner. However, the petitioner had opted to avail the full leave pending retirement/admissible i.e.6 months to him and opted to retire on 7th January 1987. The contention of the petitioner that he had a right to change the date of retirement, is not admitted as in the Defence Service the resignation or voluntary retirement, is not a right available to any personnel of the Armed forces. Similar point was raised before the Hon'ble Delhi High Court and Hon'ble Judges of Delhi High Court has come to conclusion that in civil matters under requisite service having been completed by an officer, he has a right to resign or to seek voluntary retirement, there is no need for accepting the resignation or prayer for retirement. The Court has further held that this is not the position in the Armed Forces. In the Armed Forces retirement is not taken as a right under Defence Services Regulation 215. The judgement mentioned above, if necessary, may be placed before the Hon'ble Court at the time of hearing of the writ petition. A photostat copy of accepting the Leave Pending Retirement, which has been filed by the petitioner to avail the LPR from 7th July 1986 to 6th January 1987 is being filed herewith and marked as Annexure-III to this affidavit.
16. That in reply to the contents of paragraph 17 of the writ petition, it is submitted that the petitioner had applied for Leave Pending Retirement from 7th July 1986 to 6th January 1987 including 10 days Service Leave upto 18th July 1986 which was approved by the Competent Authority at Air Headquarters. This leave was voluntarily asked for by the petitioner, duly signed by him, and the dates were given by him. This clearly shows that the petitioner has accepted the retirement date voluntarily.
17. That in reply to the contents of paragraph 18 of the writ petition, it is submitted that the application was received by Air Headquarters on 8th August 1986 well after the petitioner had proceeded on Leave Pending Retirement. In this connection Headquarter Central Air Command letter No. CAC/2819/8267/22 dated 23rd July 1986 was issued. Since the petitioner had voluntarily proceeded on Leave Pending Retirement prior to receipt of this application, no action was taken on the application. In para 3 of the said application, the petitioner has categorically stated that he was proceeding on six months Leave Pending Retirement and that the responsibility for not acceding to his request for change of date of retirement would rest with the Air Force Administration.
19. That in reply to the contents of paragraph 20 of the writ petition it is submitted that the provision of the existing rules that an officer is required to vacate his official accommodation on completion of his Leave Pending Retirement was know to the petitioner at the time he elected to proceed on leave pending retirement. The petitioner had voluntarily proceeded on Leave Pending Retirement for six months from 7th July 1986 to 6th January 1987 and hence had sufficient time at his disposal to arrange alternate accommodation.
20. That in reply to the contents of paragraph 21 of the writ petition, it is submitted that the petitioner was informed of the disposal of his premature retirement much before 1st October 1986 by a letter dated 14th May 1986. The petitioner had sufficient time to plan his re-settlement as he had applied and was granted six months leave pending retirement w.e.f. 7th July 1986.
21. That in reply to the contents of paragraph 22 of the writ petition, it is submitted that the petitioner has no grievance to be redressed. He had sought premature retirement and the same was granted to him. Since he did not qualify for the time scale promotion to the rank of Wing Commander, as per the laid down criteria and was not promoted, no service wrong has been done to him and hence there was no cause of redressal of grievance.
22. That in reply to the contents of paragraph 23 of the writ petition, it is submitted that as the petitioner himself has opted for voluntary retirement from service, as he had a grievance that he has not been promoted as Wing Commander (Time Scale) and an undertaking to the effect that he will not withdrawn his option for premature retirement, as such now the petitioner is not entitled to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
23. That in reply to the contents of paragraph 24 and grounds mentioned in the writ petition, it is submitted that the officer was duly considered for promotion but was not found fit for the same as he did not fulfil the performance criteria. The petitioner himself stated in his application dated 14th June 1986 that he was retiring from service and had sought Leave Pending Retirement Voluntarily. The dates for voluntary retirement have also been selected by the petitioner according to his own convenience. After the petitioner had proceeded on Leave Pending Retirement specifying a suitable date, there was no cause for change of effective date of retirement, as was requested by him earlier. The petitioner could have retired on the date as requested by him in his application for retirement i.e. 1st October 1986 by adjusting his leave pending retirement to that extent. It was because the petitioner wanted to avail every day of his leave pending retirement that he could not be relieved on the date, he had originally proposed to be retired. The petitioner has no such right or authority to decide that he will retire only on a date suitable to him. The very fact that the petitioner was given every non-effective benefit available to a retired officer, clearly shows that there was no malafide on the part of the service in the case of petitioner's retirement. The existing rules do not permit an officer to return on duty once he proceeds on Leave Pending Retirement as promotions and postings are authorised against such vacancies. It is further submitted that the petitioner has completely failed to make out any case for interference by this Hon'ble Court under Article 226 of the Constitution and the writ petition is liable to be dismissed.
8. From a bare perusal of the averments made in aforesaid paragraphs of the counter affidavit, it is clear that while acting upon the initial proposal for premature voluntary retirement w.e.f. 1st October 1986 inasmuch as the undertaking given by the petitioner contained in Annexure CA-II of the counter affidavit, the aforesaid application was processed at various level prior to the decision taken by the competent authority. Thereupon the competent authority has taken the decision to retire the petitioner from the date earlier sought by him without permitting him to change and has to be effective from 30th June, 1987. In given facts and circumstances of the case, we are of the considered opinion that the action taken by the respondents/authorities retiring the petitioner voluntarily vide letter dated 14th May, 1986 w.e.f. 1st October, 1986, as contained in Annexure-13 of the writ petition, is fully justified and cannot be faulted with. We are not inclined to take different view in the matter than that of taken by the respondents.
9. In view of aforesaid discussions, in our considered opinion, the writ petition is devoid of merits and liable to be dismissed. Hence the same is hereby dismissed.