SUBHASH CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, serving at the rank of Corporal with the Indian Air Force (IAF), upon being denied discharge from service, vide speaking order dated 26th December, 2019, to join as Assistant Professor (College Cadre) (Mathematics) with Department of Education, State of Haryana, has filed this petition (i) impugning the speaking order dated 26th December, 2019; (ii) impugning as arbitrary and unreasonable, Clause 6 of the Air Force Order (AFO) dated 8th December, 2017 bearing No.33/2017; and, (iii) seeking a writ of mandamus directing the respondents no.1 to 3 to issue discharge from service to the petitioner for joining the post of Assistant Professor (College Cadre) in the subject of Mathematics in Haryana.

(2.) The petition came up first before this Court on 17th January, 2020, when notice thereof was ordered to be issued. The petitioner, besides impleading the Union of India (UOI), Chief of Air Staff and Air Officer Commanding, had also impleaded Haryana Public Service Commission (HPSC) as respondent no.4 and the Principal Secretary, Department of Higher Education, Haryana as respondent no.5. On 12th February, 2020, the counsel for HPSC stated that HPSC had no role to play vis- -vis the relief sought by the petitioner and in that view of the matter, HPSC was directed to be deleted from the array of respondents. The petitioner has filed amended memo of parties wherein the Principal Secretary, Department of Higher Education, Haryana continues to be a party, though none appears on its behalf. The respondents no.1 to 3 have filed a counter affidavit and to which a rejoinder has been filed by the petitioner. The counsels have been heard.

(3.) It is the case of the petitioner, that (i) the petitioner, after completing 10+2 education, applied for the post of Aircraftsman with the IAF and on being successful, was enrolled as Airman on 27th December, 2006; (ii) on 1st August, 2011, the petitioner was promoted to the rank of Corporal; (iii) the respondents encourage career progression for all Airmen and AFO No.14/2008 was introduced, providing for permission to Airmen to apply for civil posts / services under Central / State Government and Public Sector Undertakings in Group "A" or equivalent posts on completion of seven years of service with the IAF; (iv) thereafter AFO No.4/2012 dated 31st May, 2012 was issued, which laid down the eligibility and procedure with respect to Airmen, for grant of permission to apply for civil posts / services under the Central / State Government / Public Sector Undertaking as well as grant of NOC; as per the policy contained therein, any Airman who had completed seven years of regular service, was eligible to apply to any Group "A" post in Central / State Government / Public Sector Undertaking and made Airmen eligible for seeking discharge on being selected to the said post; (v) in supersession of earlier AFOs in force, AFO No.33/2017 was introduced, drastically changing the scenario for Airmen seeking better career opportunities; vide the said AFO No.33/2017, additional conditions on the eligibility criteria for applying in a civil post under the State and Central Government were introduced; (vi) on 25th September, 2017, Central University of Karnataka called for eligible candidates to apply for appointment inter alia to the post of Assistant Professor and the petitioner applied for permission to apply in response to the said advertisement and which permission was granted to the petitioner vide order dated 24th October, 2017; (vii) on 8th March, 2019, HPSC issued an advertisement for recruitment of Assistant Professors (College Cadre) in Higher Education Department, Haryana; the petitioner, on 14th March, 2019 sought offline permission to apply for the aforesaid civil post; however the respondents neither accepted nor denied the same; (viii) since the last date for applying for the said post was 15th April, 2019, the petitioner, being eligible, applied therefor on 1st April, 2019 and was issued an admit card; (ix) the petitioner, on 16th April, 2019 applied for post facto permission to apply for the aforesaid civil post but which was denied for the reason that the petitioner's skill grade is "B" and as per AFO No.33/2017 the petitioner was thus not eligible for applying for the aforesaid civil post; (x) the petitioner, on 24th April, 2019 applied for skill upgradation exam which was to take place in August, 2019; (xi) the petitioner, in the meanwhile, appeared in the preliminary examination held by the HPSC and successfully qualified the same and became eligible to appear in the main examination; the petitioner appeared in the main examination and was declared pass and was called for interview on 28th June, 2019; (xii) the petitioner, on 25th June, 2019 after receiving the call for the interview, applied for issuance of NOC but received no response thereto and thus, even without any NOC, sat for the interview scheduled by HPSC on 28th June, 2019; (xiii) the petitioner submitted application dated 19th September, 2019 seeking discharge from service but again no response was received thereto; (xiv) the petitioner filed W.P.(C) No.7204/2019 praying for quashing or setting aside of Clause 6 of AFO No.33/2017 as being arbitrary and unreasonable and for issuance of a writ of mandamus directing the respondents to grant post facto permission to the petitioner to appear for the interview for recruitment to the post aforesaid; (xv) during the pendency of W.P.(C) No.7204/2019, the respondents issued the impugned speaking order dated 26th December, 2019 rejecting the application dated 19th September, 2019 of the petitioner seeking discharge from service on the ground of the same being violative of AFO No.33/2017; (xvi) W.P.(C) No.7204/2019 was disposed of vide order dated 7th January, 2020 with liberty to the petitioner to challenge the speaking order dated 26th December, 2019; (xvii) in the interregnum, the petitioner has given a skill upgradation examination for upgradation of his skill level from "B" to "A" and in the result of the said examination, the petitioner has scored 119 marks i.e. one mark short of the cut off marks required for skill level "A", which was 120 marks; (xviii) the respondents have deliberately scored the petitioner with less marks, to extract vengeance against the petitioner as the petitioner had dragged the respondents to Court; and, (xix) vide letter dated 16th September, 2019 of the Department of Higher Education, Chandigarh, the petitioner has been granted six months extension from 10th July, 2019 to 9th January, 2020 for joining as Assistant Professor (College Cadre) (Mathematics).