Full Text
Date ofdecision January,2019
SGTPRADEEP KUMAR RAI
Through:
Petitioners Mr V.K. Garg. Senior Advocate with
Mr Virender Kadian and Ms Noopur Dubey.Advocates.
Through:
Respondents Mr Mahendra Bhardwaj and Mr Amit Dogra,Advocatesfor UOI/R-1 to 4.
SGT KAUSHAL KISHORE NAG
Through:
Petitioner Mr V.K. Garg. Senior Advocate with
Mr Mahendra Bhardwaj and Mr Arnit Dogra,Advocatesfor UOI/R-1 to 4.
SGT AMAR KANT
Petitioner
Through: Mr V.K. Garg. Senior Advocate with
■»
Through: Mr Mahendra Bhardwaj andMr Amit Dogra, Advocates for UOI/R-1 to 4.
JUDGMENT
1. Allowed, subject to all just exceptions. W.P.(C) 567/2019 & CM 2561/2019 W.P.rC) 571/2019 & CM 2572/2019 W.P.(C) 585/2019 «& CM 2611/2019
2. These are three petitions seeking more or less the same relief and in. similar circumstances. They are, therefore, being disposed of by a common, judgment.
3. The facts in W.P.(C) No.567/2019 (Sgt. Pradeep Kumar Rai v Union of India and Others), as narrated in the petition, are that the Petitioner was enrolled in the Indian Air Force ('lAF') on 16^*^ March, 2003 and allotted with the trade ofPMF(E) andpresently held on the posted strength ofMCC, Air Force Station, Basant Nagar,, New Delhi with effect from 10^*^ November, 2014.
4. The Petitioner is stated to have applied for the 56'^ to, 59^*^ Common Cornbined Competitive Examination 2014 issuedby Bihar Public Service Commission ('BPSC') for selection to various Group 'B' posts carrying a fV.P.(C) Nos. 567, 571and585 of2019 D J grade pay ofRs.5400/- as he was eligible'for the same and had completed more than 7years ofservice.
5. According to the Petitioner, he applied for permission through the Unit Channel ofthe lAF in October, 2014 which was received by the 'Orderly, room', According to the Petitioner, the permission for forwarding the application could not be obtained due to shortage of time as he was preparingfor movementjfrom Leh(J&K)High Altitude AreatoDelhion Posting and the closing date for the post was approaching nearer. According to him,there was no facility of photocopy and the application was,therefore,retained inthe orderlyroom itself.
6. The Petitioner passed the preliminary and main examination and was called for interview on 8* May,2018.In the final result declared,he was shown selected for the post ofMunicipal Executive Officer i.e. a Group-B gazetted post,equivalentto grade pay4600/-.
7. ThePetitioner appliedtothelAF on 4'*'October,2018for dischargefrom service on having been selected for a civil post in the Office of the Municipal Executive Officer. The application for discharge was forwarded to lAF,Headquarters at New Delhi on 18^^ October, 2018. However,this th application was rejected by the Respondents by an order dated 8 January, 2019 stating therein that the Petitioner had failed to take prior permission from his AOC/Station Commander for sitting for the examinations and further that"the starting pay scale is Rs.44,900in level7which is less than therevised payscale criteriaofpayscale ofRs56,100/-inlevel 10. fV.P.(C)Nos.567,571and585of2019 3of[7] M
8. The examplesofSgtUmeshKumarand SgtSatyendraKumarSingh,who th as similarly placed personnel, had been discharged by orders dated 26 December 2018 after having applied for posts on the same advertisement issued by the BPSC have been cited. It is submitted that the case ofthe present Petitioner is no different and,therefore, he should also be granted the same relief.
9. The facts in W.P.(C) No.571/2019 are more or less similar. Here the ^ - PetitionerjoinedthelAF on28*September,2004intheEngineeringFitter Trade and ispresently posted withtheDirectorate ofEngineering(GIF)with effect from 9* November,2015.In this case, however,when the Petitioner made an application for permission to sit for the aforementioned exam,"it wasreturned without action stating the reason thatthe posts advertised were Group 'A' and 'B' having common pay scale and different to Central Government scale of pay", i.e. Group 'A' and 'B' payscales in the State Government would be different to those under the Central Government. Therefore,this Petitioner was firlly aware ofthe refusal ofpermission to sit for the aforementioned exam. Nevertheless, the Petitioner appeared in the O ■ preliminary and main exams as well as the interview. By the final list declared on 18* August 2018, he selected for the post of Sub Election Officer in the State of Bihar carrying a pay scale in level-9 (53,100 - 1,67,800) equivalentto grade pay ofRs.5400/-.
10. The subsequent application dated 28* August, 2018 made by the Petitioner with the Respondents seeking discharge was initially returned on 10* September,2018,inter alia, pointing out that certain documents were W.P.(C)Nos.567,571and585of2019 4of[7] not found. The Petitioner is stated to have re-forwarded the requisite documents by aletter dated 18^^ September,2018.A further application was made by the Petitioner on 30^ October, 2018 which was rejected by a speaking order dated 12^^November,2018statingthatthePetitioner had not obtainedthe prior permissionfrom his AOC/Station Commander.
11. In the third petition being W.P.(C)No.585/2019,the facts are that the Petitionerjoined the lAF on 12* January,2004 as Airman and was allotted the trade ofRadar Fitter and was presently held atthe posted strength ofthe BRD C/o AF Station Chakeri,Kanpur witheffectfrom9*May,2016.
12. Itis stated thatin the month ofNovember,2007,the Petitioner had afall as a result of which he fractured his right femur and was placed in a permanentlow medical category'A4G4'.Due to his low medical category, the Petitioner is stated to have lost his promotional avenues and also had very less chances ofextension ofservice beyond the initial engagement of 20 years.
13. ThisPetitioner also applied,pursuantto the advertisementissued by the BPSC for selection to various Group 'B' posts carrying grade pay of th Rs.5,400/-. According to the Petitioner, he applied for permission on 20 September,2014to write the above exam and it was also forwarded by his Section Commander but"it was returned without any action even after the approval ofthe Section Commander". After qualifying in the exam and beingselectedforthepostofDeputySuperintendentofPolice,thePetitioner again applied for discharge on4*October,2018.Byaspeaking order dated 28* December, 2018, the Respondents rejected the application of the W.P.(C)Nos.567,571and585of2019 ^ Petitioner onthe ground thatthePetitionerhad nottaken prior permission of the AOC/Station Commander.
14. This Court has heard the submissions ofMr V.K. Garg,learned Senior Counsel forthe Petitioners and Mr Mahendra Bhardwaj,learned counselfor the Respondents.
15. Mr Garg placed extensive reliance on the earlier decisions ofthis Court dated February,2011 in W.P.(C)No.505/2011 {Brijesh Jaiswalv. Union ofIndia),thQ decision in Cpl.SandeerKumar v. Union ofIndia2012(193) DLT144 as well as the decision dated 11* January,2012 ofthis Court in W.P.(C)No.7353/2011 {Md.ShahbazAlam v. UOI)to urge thatin similar circumstances,this Court had granted reliefto identically placed Petitioners and issued a mandamusto the Respondents to discharge them from the lAF so that they could join the post they had been selected for pursuant to the selection process.
16. Haying carefully perused those decisions, this Court is not persuaded that the cases of the present Petitioners can be treated on par with those.Petitioners. In Brijesh Jaiswal v. Union ofIndia {supra),it was held that the obtaining ofthe NOC was not mandatory and that there were special equitiesinfavourofthosePetitionersthatpersuadedthe Courtto grantthem relief prayed for. In the present case, whilst each of the Petitioners in W.P.(C)Nos.571/2019 and 585/2019 did apply to the lAF for permission, the Petitioner in W.P.(C) No.567/2019, claims that he did make an application, but it never left the orderly room.In the first two cases,the permission was expressly refused whereas in the third case,knowing fully W.P.(C)Nos.567,571and585of2019 6of[7] wellthathe had notbeen granted permission,thatPetitioner wentahead and wrote the exam. The Petitioners in W.P.(C) Nos.571/2019 and 585/2019, wrote the exam despite actually having been refused permission. In the circumstances,the Courtfailsto appreciate how parallels can be drawn with the aforementioned cases cited at the bar. The Court is unable to view the requirement of obtaining prior permission from the lAF for writing a common entrance exam for some other post as directory and not mandatory. Atleastin the presentthree cases,the Petitionersthemselves did understand the requirement as being mandatory. They did apply, and in two of the cases, permission was refused whereas in the third case, admittedly the Petitioner's application did not even leave the orderly room and was therefore not forwarded to the authorities. There was in fact no permission granted.
17. There are no merits in any ofthese petitions and they are dismissed as such.The pending applications are also dismissed.No costs. S.MtfpRALIDHAR,J. SANJEEV NARIILA,J. JANUARY 21,2019 rd W.P.(C)Nos.567,571and585of2019 7of[7]