03 September 2004
Supreme Court
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M.S. BRAR Vs UNION OF INDIA .

Case number: C.A. No.-001207-001207 / 2003
Diary number: 15366 / 2002
Advocates: Vs B. V. BALARAM DAS


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CASE NO.: Appeal (civil)  1207 of 2003

PETITIONER: AVM M.S. Brar, AVSM, VM                          

RESPONDENT: Union of India &  Ors.                                   

DATE OF JUDGMENT: 03/09/2004

BENCH: K.G. Balakrishnan & B.N. Srikrishna  

JUDGMENT: J U D G M E N T WITH

CIVIL APPEAL NO. 1208 OF 2003

Union of India & Anr.                                   ..      Appellants

                                               Vs.

AVM  M.S. Brar, AVSM, VM                                ..      Respondent

K.G. BALAKRISHNAN, J.

       Both these appeals arise out of a common judgment passed  on  11.7.2002  by the  Delhi High Court  in C.W.P. No. 2600 of 2002.   Stated in brief,  the facts of the case are thus.

       The appellant in Civil Appeal No. 1207 of 2003  was  commissioned in the  Indian Air Force in 1964 and he was promoted to the rank of Air Vice Marshal in  1997.   The retiring age of the officers of the rank of Air Vice Marshal was 56  years extendable upto  57 years.   Later, it was raised to 57 years and 58 years  respectively.   According to the appellant,  he had  outstanding flying  performance  and  was    awarded  Vayu Sewa Medal in 1986 and  later  the Ati  Vishisht Sewa Medal in 1992.  He was posted as Air Officer Commanding 2 Air  Deference Control Centre   at Jodhpur in 1997 and continued to  hold this post till  February 1999.   He contended that he performed the  task of shifting the  Headquarters of SWAC from Jodhpur to Ahmedabad, for which he had worked  day and night and gave a dedicated service.    He also   contended that  during  that time,   the   third   respondent   in Civil   Appeal   No. 1207, namely,  the  AOC-in-Chief,  had  some difference of opinion with  the appellant.   In February  2001, the appellant was considered along with six other officers for extension of   service  upto the age of 58 years and that except the appellant, all other officers  considered along with him were granted extension of service upto  the age of 58  years.  Thereupon the  appellant submitted a statutory petition under Section 27  of the Air Force Act against the denial of extension of service upto the age of 58  years.   The appellant suspected that  there must  have been   some adverse   entries in his Confidential Register and he prayed for expunging those remarks.    The appellant also  suspected that the said third respondent must have been  instrumental in making such adverse  entries.   The appellant   submitted a  representation to the Chief of Air Staff  complaining of the denial of extension of  service upto the age of 58 years.   The appellant further suspected that he might  have been denied consideration  for  promotion to the rank of Air  Marshal due to  the denial of service upto the age of  58 years.   The appellant was  informed by  the Chief of Air Staff  by   letter dated  14.5.2001 that he had not been cleared for

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promotion to the rank of  Air Marshal.    Against this denial the appellant  submitted a statutory application under Section 27 of the Air Force Act, 1950.    The appellant  also filed Civil Writ Petition No. 3242 of 2001 against the denial of  extension of  service upto the age of 58 years.   The appellant sought for  quashing  of the order dated 2.3.2001 denying grant of extension of service to  the appellant.   In June, 2001, the appellant filed another writ petition  [No. 3807  of 2001] against the denial of promotion to the rank of Air  Marshal.  Though this  writ petition was tagged with Civil Writ Petition No. 3242 of 2001, the earlier writ  petition alone came up for hearing and by judgment dated 7.1.2002 Civil Writ  Petition No. 3242 of 2001 was allowed and the learned Single Judge set aside  the communication dated 2.3.2001 by which the appellant was denied extension  of service upto the age of 58 years and also directed  for reconsideration of the  appellant’s application for extension of service.   In the writ petition, the  respondent Union of India authorities contended that the appellant was   considered  for extension of service in accordance with the guidelines, but the  extension was not approved by the authorities because of the remarks in his  Annual Report for the period from 1.12.1997 to 30.9.1998 and also on the basis  of the Appraisal Reports for the preceding five years.   The respondent in the writ  petition  also contended that the remarks were negative and  not adverse and,  therefore,  these were not communicated to the appellant.    These pleas were  not  accepted  by the learned Single Judge and  ultimately  the Writ  Petition No.  3242 of  2001 was allowed with the following direction :

"For the foregoing reasons, the writ petition is allowed; the  impugned communication is set aside and the rule is made  absolute.   The respondents are directed to communicate the  remarks in question to the petitioner in terms of paragraph 33 of the  AFO-50 and take a fresh  decision on the question of grant of  extension in the age of the petitioner.  The said exercise shall be  completed as  expeditiously as practicable but not later than eight  weeks from the date of this order.   There will, however, be no order  as to costs."

       As the order denying extension of service to the appellant was set aside,  the appellant made a request  to permit him to join duty, but the respondent  authorities did not permit him to attend the duty.   The appellant moved a civil  contempt petition  praying for  contempt action against the respondent authorities  for disobeying the order of the court.   The respondent authorities later filed a  Letters Patent Appeal [No. 95 of 2002]  against the order and judgment dated  7.1.2002  passed by the  Single Judge.  According to the appellant the  respondent authorities deliberately got adjournments in  L.P.A. and the request of  the appellant to  rejoin duty was rejected.   The Division Bench was informed that  the respondent authorities had already communicated the  adverse remarks to  the appellant as directed by the learned Single Judge.  The appellant then filed a  fresh writ petition [No. 2600 of 2002] challenging  the order dated 1.3.2002  wherein he prayed for a writ  of mandamus to quash the communication dated  1.3.2002 and also prayed  for directions to the respondent authorities that the  remarks  of  I.O. for the period 1.12.1997 to 30.9.1998 (ACR) should be  communicated  to him to provide him an opportunity of representation after  complying with the order and judgment dated 7.1.2002 passed by the learned  Single Judge.   By the impugned judgment, the Division Bench held that the  appellant had been deprived of his  valuable rights and he had not been given a  reasonable opportunity of hearing.   However, the Division Bench observed that  at this stage there could not be any direction to  extend the service of the  appellant and in the interests of justice  the Division Bench imposed heavy cost  on the respondent authorities  which was quantified at Rs.50,000/-.  This  judgment of the Division Bench, insofar as  the costs are concerned  is    challenged  by the appellant-Union of India   in Civil   Appeal No.  1208 of  2003.

       We heard  Shri K.S. Bhati, learned counsel for the appellant and also the  Addl. Solicitor General, Shri Raju  Ramachandran.   On behalf of the Union of  India, it was urged that  the appellant  did not have  the requisite  grading.  As per  the guidelines, during the last  preceding five years, not only the appellant should

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have secured at least 3 gradings of 7, but also  no grading below 6.   The  appellant’s gradings  from 1983 to 1988 are as follows :  

       - 1983          .. 7         - 1984          .. 7.4         - 1985          .. 7.5         - 1986          .. 7         - 1987          .. 5.3         - 1988          .. 7

       It is pointed out that  the appellant had been awarded below 6 grading for  the year 1987 and therefore  there could not have  been any extension of service  in his case.     However, the appellant contended that the grading for  the year  1987 is 5.3 in view of the adverse remarks for the year 1986 which were  subsequently expunged by the High Court.

       The appellant seriously contended that the remarks made against him  were not communicated to him  and as  they were not communicated the  authorities should not have acted upon the basis of those adverse remarks.   The  learned  Single Judge in his judgment dated 7.1.2002 held that the remarks were  adverse in nature and were required to be communicated to the appellant and   by that judgment, the respondent authorities were directed to communicate the  remarks in question and to  take a fresh decision on that question  after affording  the appellant a reasonable opportunity of being heard.   Ultimately, the  Appraisal  Report dated 21.2.2002 was communicated to the appellant.    The  Appraisal  Report is as follows :

"\005 However, his professional knowledge and application are not  commensurate with his seniority and appointment.   He depends on  his subordinates to the efficiency and effectiveness of his   department.   His conceptual ability and analytical skills are below  the expectations to make any contribution.  He could at best take  up moderate workload of routine nature\005 but  has limitations in  being able to motivate  his subordinates to any high degree.    Lacking sufficient depth and confidence, he hesitates at times in  directing briefings or chairing discussions\005 He is overweight and  paunchy.   This personality in ’senior’ air rank would  not be  inspiring.   His potential to head a senior management  post is  extremely limited."

       This was communicated to the appellant and he received it on 21.2.2002.    He was asked to  submit  his representation  by 25.2.2002.

       The Addl. Solicitor General appearing on behalf of  the  Union of India  contended that the  appellant did not seek any further time  to submit  his  representation.   The Division Bench was of the view  that the appellant  was not  given   sufficient opportunity  of hearing and the conduct of the  Union of India  authorities was not appreciable.    Nevertheless, the Division Bench ultimately  held that by the decision in C.W.P. 3242/99, the question of extension  of service   to the appellant  upto the age of 58 years has attained finality.   However, the  High Court directed payment of  costs of Rs.50,000/-  to be paid by the   Union of  India authorities as  the appellant had not been given reasonable opportunity of  hearing.

       We are of the view that  it was not justified in the circumstances of the  case to order payment of costs.   The appellant could not establish that there was  any mala fides on the part of the  Union of India authorities.   Therefore, the  direction to  pay costs was not warranted.  In the circumstances of the case, we  set aside the direction to pay Rs.50,000/- as costs.   As  the  other writ petition  filed by the appellant seeking promotion to the post of  Air  Marshal is pending  consideration by  the High Court,   we direct that the same may be considered  and disposed of  expeditiously.

       Both the appeals shall stand disposed of accordingly.   There will be no

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order as to costs.