W.P.(C)/1918/2010 of OM PRAKASH Vs UOI AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: 15[th] July, 2011

+ W.P.(C) 1918/2010

OM PRAKASH

..... Petitioner Through: Mr.J.S.Mann and Mr.K.K.Prasad, Advocates.

versus

UOI & ORS

..... Respondents

Through: Mr.Ashish Mohan, Advocate for Mr.Gaurav Liberhan, Advocate for UOI. Mr.Atul Batra and Mr.Nirmal Pandit, Advocates for UOI.

CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SUNIL GAUR

1.Whether the Reporters of local papers may be allowed to see the judgment? to see the judgment?

2.To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J.

1. The petitioner challenges the judgment and order dated 19.1.2010 dismissing OA No.24/2009 filed before the Armed Forces Tribunal.

2. Relevant facts to be noted are that vide para 12 of Air Force Order No.12/S/48, as amended from time to time, initial term of engagement for Airman is 20 years. Vide Air Force Order dated

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13.8.1999, vide para 2, it is stipulated that the initial term of engagement may be extended till 26 years, but the same shall be at the discretion of such officer to whom the power is delegated.

3. Vide para 4(b) of the said Air Force Order it is stipulated that the option to extend the engagement, and the converse, unwillingness for service to be extended must reach the concerned officer at least 18 months prior to the expiry of the term of the regular engagement. It is also stipulated therein that option once exercised would be treated as final except under very exceptional and extreme compassionate grounds could be withdrawn.

4. Suffice would it be to state that extension in service is not matter of right, but is matter of discretion of the department and secondly, option once exercised cannot be withdrawn save and except under exceptional circumstances.

5. The petitioner exercised an option not to continue in service and later on sought to resile from the same which has been denied.

6. The petitioner has not been permitted to withdraw his option not to seek extension of service on twin reasoning; firstly that no extreme or compassionate ground was made out by the petitioner entitling him to withdraw the option, and second, which we find more relevant with reference to the record that the Commanding Officer wrote, while recommending rejection of petitioner’s request to change his option, that the petitioner has been unable to perform his trade to the satisfaction of the superior officers due to his physical condition.

7. From the medical record of the petitioner, which he himself has filed, it would be apparent that although the petitioner has

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been found to be otherwise physically fit, it has been opined by the doctor concerned that the petitioner suffers from arthritis which hampers the movement of his joints.

8. Impugned decision passed by the Tribunal would reveal that aforesaid reasoning has been adopted by the Tribunal and since we have independently looked into the issue and have reached the same conclusion as has been reached by the Tribunal, we see no reason to interfere with the impugned decision dated 19.1.2010.

9. We highlight that even if any one of the two reasons, given by the department are accepted, the petition would fail. The second reason of the department being petitioner’s work being found not up to the mark, is good reason not to grant extension in service; we highlight that extension in service is not matter of right but is matter of discretion of the Competent Authority.

10. The writ petition is dismissed.

11. No costs.

PRADEEP NANDRAJOG, J.

JULY 15, 2011 dk

SUNIL GAUR, J.

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