Pawan Kumar vs Union of India and Others

Anil Kumar, J.—The learned counsel for the petitioner has drawn our attention to his application dated 15.06.2011 seeking discharge from the Air Force. By that letter, he has stated that due to his colour blindness, he would be deprived of the opportunity for a commission in the Air Force since he is unfit to sit in the GDOC examination, and hence his request for discharge may be considered sympathetically. In passing, he had also informed the authorities that he has been selected for the post of probationary officer in Bank of India. We notice that his application was also recommended for acceptance "on sympathetic grounds" by the petitioner''s Section Commander. This was, however, turned down by the superior authorities on the ground that he is "not eligible for discharge from service as per policy". His request was, therefore, rejected. We notice that the petitioner''s Section Commander has considered his application in the proper perspective pointing out that although the petitioner is not eligible for discharge in terms of AFO 14/08; the petitioner is, in fact, seeking discharge, "on the ground that he is colour blind and his future prospects in Air Force as an officer cannot be envisaged". In other words, he is seeking discharge on compassionate grounds because of the unavailability of the opportunity to serve the Air Force as an officer. Consequently, the Section Commander forwarded the application with his recommendation that the same be considered on sympathetic grounds.

Our attention has been drawn to the Air Force Order No. 16 dated 19.09.2008 which envisages discharge from the service in exceptional cases on compassionate and other grounds before the expiry of their regular engagement. This policy, inter alia, contains clause 2(f) which states as follows:

(f) Other valid personal reasons deserving sympathetic consideration.

We have also noticed that at the time when the petitioner was initially offered recruitment as an Airman, he was never informed that whilst he is fit to be appointed as such, he would be ineligible to seek appointment as a commissioned officer by sitting in the GDOC examination because, unlike most others who are being offered similar recruitment, he suffers from colour blindness and has been placed in medical category A4G1(CPIV). In other words, it cannot be said that he accepted his initial appointment with the full knowledge that the opportunity to seek commissioned service as an officer in the Air Force would never be available to him in contrast to others who were similarly appointed.

Counsel for the respondent, on instructions, states that, in fact, the case of the petitioner was never considered under AFO 16 dated 19.09.2008 and the respondents have merely considered the petitioner''s request in terms of AFO 14/08 which deals with seeking discharge on the ground that they have been offered civilian employment.

We are satisfied that the respondents have missed the point altogether. What an applicant does after he is discharged is of no concern to the Air Force. Merely because he has mentioned his future course and prospects, which he thinks are available to him, while seeking discharge from the Air Force on sympathetic or compassionate grounds, could not have been taken to mean that he is seeking discharge in terms of AFO 14/08. In fact, his case deserves consideration under AFO 16 dated 19.09.2008.

What was in the mind of a petitioner when he sought recruitment as an Airman, who is otherwise found fit, was obviously that the entire gamut of rights and opportunities normally available to every Airman, would also be available to him. This included the chance of selection as a commissioned officer and he had no way of knowing at that time that, in his case in particular, this would not be available to him. Had he known it at that time, it was always open to him to refuse the offer of recruitment. In any case, since the petitioner was not made aware of his medical category at the time of his recruitment, as also the curtailment of his future prospects within the Air Force for that reason, his consent for recruitment cannot be taken to be an informed consent.

Under the circumstances, the respondents are directed to consider the request of the petitioner for discharge under AFO 16 dated 19.09.2008, particularly under clause 2(f) thereof, keeping in mind the above observation of this Court. The grounds raised by counsel for the petitioner in his writ petition as also in his application dated 15.06.2011 may also be taken into consideration. Needful be done within four weeks and the orders passed after due consideration be intimated to the counsel for the petitioner before the next date of hearing.

List on 16th May, 2012.

Interim order to continue.

Dasti.