Subedar Harbir Singh v. Union of India & Ors

1. The petitioner seeks a direction that he should be granted two years' extension of service after the completion of his 28 years of service. It is not in dispute that petitioner's 28 years of service with the Army is pensionable. In terms of the Indian Army Policy dated 20.09.2010, an army personnel is eligible and can be considered for extension/continuation of service for a further period of two years, after he attains his age of superannuation. In the present case, concededly the petitioner will be completing 28 years of service on 30.11.2015. The relevant criteria, which according to the petitioner has been arbitrarily applied, is para 2(e)(i). The said para reads as follows:- W.P.(C) No.5454/2015 Page I 2015:DHC:11521-DB "2(e)(i): An individual should not have more than two red ink entries (including recordable censure in the case ofan Nb Sub/Sub) during the entire service and not more than one red ink entry in the lastfive years. However, for extension in the rank of Sub Maj there should be no red ink entry including recordable censure in the rank ofJCO. "

2. It has been contended that the petitioner had been awarded three red ink entries. The red ink entries had been set out in a tabular form as follows: Place Date of Offence Rank Offence Punishment awarded Peace 4/19/1993 HAV Violation of good order and,discipline Severe reprimand 1 Peace 8/30/2002 HAV Loses any neglect any such Govt. property Severe reprimand Peace 12/09/2011 SUB Without cause overstaying leave granteddp him. Severe reprimand

3. Ms Archana Ramesh, learned counsel for,the.petitioner, submitted that the second red ink entry, i.e., loss of property,.pertains to an incident which occurred at the relevant time in 2002 at New Delhi Railway Station when the petitioner lost his identity card. The petitioner reported the.^cident promptly to local police, after which a Court of Inquiry was conducted. Highlighting that the Court of Inquiry concluded that the petitioner was not at fault, learned counsel for the petitioner submitted that the Army authorities imposed a severe reprimand which resulted in the red ink entry. It is submitted that the petitioner had no occasion to challenge this order W.P.(C) No.5454/2015 Page 2 because at the relevant time the question of extension of service did not arise.

4. Learned counsel relied upon the opinion of the Court of Inquiry which concluded as follows:- "1. The court is ofthe opinion that No 6928765Y Hav (SKT) Harbir Singh is not entirely responsible for the loss of his identity Card. The individual has followed the instructions on the safe custody ofhis Identity Card.

2. The circumstances were beyond the individual's control and hence the courtfeels that individual is not to be blamed. " V 5. Learned counsel also submitted that the insistence by the Army on rigid adherence to the Guidelines of 2010 would result in a miscarriage of justice because the incident was essentially trivial and the severe reprimand recorded. was excessive. This has resulted in the loss of right to be considered for extension for a further period of two years service. Learned counsel for the petitioner submitted that the petitioner was—subsequent to the said severe reprimand recorded in 2002—promoted as Naib Subedarand later as Subedar in 2009. In these circumstances, it is submitted that the interest of justice requires that his case be properly considered. Learned counsel relied upon a previous Division Bench ruling of this Court in Ex Sepoy Sube Singh vs. Union ofIndia reported in 140(2007) DLT26 to say that drastic penalties can adversely affect legitimate rights of service personnel.

6. This Court has considered the submissions. It is not in dispute that the petitioner was inflicted with penalties which resulted in three red ink entries. The policy which the petitioner relies upon to seek extension is explicit in its W.P.(C) No.5454/2015 Page 3 terms that ifanypersonnel is awarded with more than two red ink entries, he IS ineligible for consideration for extension of service. Again, it is not in dispute that the petitioner never questioned the severe reprimand inflicted upon him subsequent to the Court of Inquiry's conclusion. No doubt, the Court ofInquiry stated that the petitioner could not be entirely blamed for losing the identity card, nevertheless, the concerned authorities, especially the Disciplinary Authorities, were withinthe rights to considerthe totality of the circumstances and given that the loss of identity card has serious| consequences as it is likely to be misused by thifd-parties. Furthermore, this Court cannot overlook the fact that the petitioner is now:waking up after 13 years, seeking redressal against the.red infcuntries and the'order underlying It, I.e., severe reprimand which was imppsed in 2002^Jiacffthe petitioner desired that he should be considered at thorappropriate stage fbi extension of service, not only would he have approached this Court questioning the red ink entry and the severe reprimand imposed in 2002, he would have even desisted from conducting himselfin amanner as to attract the red ink entry which was imposed in 2012. In any eyent,'that.penalty has not been^ challenged. "

7. The reliance placed upon Ex Sepoy Sube Singh's case (supra), in the opinion ofthe Court, is misguided for the reason that the Court had fecasion to deal with an order discharging the Anny personnel who was arecipient of more than four red inlc entries. The Anny authorities' contention was that in teims of their policies, such personnel had to be weeded out by an appropriate termination/discharge order. The Court, after considering the circumstances which led to the absenteeism/unauthorized leave (persistent illness ofthe said petitioner's wife), also concluded that the policy in that Page 4 •W case never mandated discharge, but rather that the number of red ink entries were a relevant, though not conclusive consideration. Further, the order discharging the petitioner in that case was also a result of the finding of the Court that there was a non-application of mind by the competent authority, i.e., non-consideration of the material facts which necessitated the red-ink entries.

8. What the petitioner herein seeks to agitate and complain of is denial of his right to extension of service. This Court is of the opinion that there is no such vested right. What exists is only a right to be considered in accordance with the guidelines prescribed. No right of the petitioner has been infringed, after all, the petitioner completed his pensionable ser\dce and is entitled to all terminal and attendant benefits.

9. The essence of discretion would be entirely eliminated or destroyed if the Court is to hold that a right to extension of service precedes such consideration. All that the respondents have done is to adhere to the guidelines applicable and rightfully so. No fault can be found in that regard. The writ petition is without merit and is consequently dismissed.

AUGUST 26, 2015

S. RAVINDRA BHAT

(JUDGE) ^ >• ' deeSpa sharma (JUDGE)