Allahabad High Court · 2025

Judgment

1. Heard Sri Raj Kumar Mishra, learned counsel for the petitioner and Sri Raj Kumar Singh, learned counsel for the Union of India.

2. While the petitioner was working as a Junior Warrant Officer in Indian Air Force, and after obtaining a No Objection Certificate dated

15.07.2019, he was making efforts to take up a civil employment after his discharge. The petitioner was appointed in a private organization and he was required to join his duties latest by 20.01.2020.

3. On 23.12.2019, the petitioner submitted an application to the Station Commander requesting for an immediate discharge from service on his selection to a civil post, which he was required to join latest by

20.01.2020.

4. The petitioner was informed that he would be discharged from service w.e.f. 15.02.2020 and therefore, on 01.01.2020, the petitioner wrote another letter to the Station Commander stating that as his future employer was not agreeing to extend the date of joining beyond

31.01.2020, his request for premature discharge from service may be withdrawn, as it will not fulfill his requirement of taking up another employment.

5. It is only after submission of the aforesaid request dated 01.01.2020, that the petitioner’s application dated 23.12.2019 for immediate discharge was accepted by means of an order dated 17.01.2020, wherein it was written that the effective date of his discharge will be

15.02.2020. Through a letter dated 14.02.2020 sent by the Air headquarter, the petitioner was informed that his request for cancellation of the discharge order had not been approved. This letter does not disclose any reason for rejection of the petitioner’s request. Thereafter, the petitioner was discharged from service w.e.f. the aforesaid date.

The petitioner challenged the aforesaid orders by filing O.A. No. 139 of 2020, which was dismissed by the Armed Forces Tribunal by its order dated 28.10.2021, holding that the applicant’s discharge order was issued by the Air Force Record Office on 17.01.2020, while his withdrawal application dated 01.01.2020 was in transit. The Air Force Record Office had fixed the date of discharge as 15.02.2020. The applicant’s request for withdrawal of his discharge application was not accepted by the Air Force Record Office as his discharge order had already been issued on 17.01.2020. Therefore, the Tribunal held that there is no illegality in issuance of the discharge order.

7. The petitioner has challenged the validity of the judgment and order dated 28.10.2021 passed by the Armed Forces Tribunal, Regional Bench, Lucknow in O.A. No. 139 of 2020, as well as the aforesaid discharge order dated 17.01.2020 and the rejection order dated

14.02.2020 also through this Writ Petition.

8. The opposite parties have filed a counter affidavit annexing therewith a copy of the policy dated 28.02.2019 issued by the Air Headquarter for finalization of date of unscheduled discharge from service. Clause 4(c) of this policy provides that in cases of discharge from service, on selection to a civil post with last date of joining not coinciding as per the above plan, discharge is to be granted with immediate effect (subject to completing clearance at unit level).

9. The learned counsel for the petitioner has submitted that even as per the policy issued by the Air Headquarter, as the petitioner’s date of joining the civil post was 20.01.2020, while accepting his request for discharge by means of the order dated 17.01.2020, he ought to have been discharged with immediate effect. However, as the petitioner was not discharged with immediate effect in spite of a clear provision in the policy issued in this regard, the petitioner had submitted a request for revocation of the previous request for premature discharge. This request was rejected merely on the ground that the same was forwarded by the unit to the competent authority after some delay.

10. Rule 10 of the Air Force Rules, 1969 provides as follows:- “10. Discharge not to be delayed- Every person enrolled under the Act shall as soon as he becomes entitled under the conditions of his enrolment to be discharged, be so discharged with all convenient speed: Provided that a person shall not be so entitled to be discharged during period during which the Central Government, by a notification in this behalf suspends the entitlement to discharge in respect either of all the persons enrolled under the Act, or of any class of such persons to which he belongs.”

11. A bare perusal of Rule 10 of the Air Force Rules 1969 coupled with the policy dated 28.02.2019 issued by the Air Head Quarter leaves no room for doubt that it is mandatory for the authorities to deal with the request for discharge with all reasonable expedition. As the petitioner’s last date for appointment in civil employment was

20.01.2020, it was incumbent upon the authorities to discharge him with immediate effect while accepting his request for discharge by means of the order dated 17.01.2020.

12. Clause 4 of the Policy dated 28.02.2019 issued by Air Head Quarter provides as follows: - "4. Discharge of airmen on selection to civil posts and on supersession ground has increased many fold. In light of this, issuing discharge order with specific date of discharge in such cases has been deliberated and the following course of action is to be adopted:- (a) DoD is to be fixed as 15th day of the following month for all unscheduled discharge cases approved from 01 to 15th of the month. (b) DoD is to be fixed as last day of the following month for all unscheduled discharge cases approved from 16th to last day of the -month. (c) In cases of discharge from service, on selection to a civil post with last date of joining not coinciding as per the above plan, DoD is to be granted with immediate effect (subject to completing clearance at unit level)."

13. As per the aforesaid policy, in case the petitioner’s request for early discharge was being accepted, it ought to have been accepted with immediate effect so that the mandate of the policy would have been complied with and the petitioner would be able to join the civil employment. In case his request for immediate discharge was not accepted, then he should not have been discharged at all as it would be unreasonable to accept the request for discharge to enable the petitioner to join another employment in a manner in which the right to get the other employment is taken away and at the same time, the current employment of the petitioner also goes away.

14. As the authorities had failed to adhere to the aforesaid provisions contained in Rule 10 of the Air Force Rules as well as the policy issued on 28.02.2019, the petitioner was deprived of the civil employment that was offered to him. In these circumstances, he had made a request for withdrawal of his earlier request.

15. The reason for rejection of withdrawal of previous request for premature discharge is that the same had not been processed by the unit expeditiously. No fault has been attributed to the petitioner for the delay in forwarding the request for premature discharge.

16. When the petitioner is not said to be at fault for the delay in processing of the request, he cannot be made to suffer for a fault which lies on someone else.

17. In these circumstances, we are of the considered view that the order dated 17.01.2020 accepting the petitioner’s request for premature discharge with effect from a future date, i.e. 15.02.2020, is not sustainable in law and the same is liable to be set aside. The order dated 14.02.2020 rejecting the petitioner’s application for withdrawal of his earlier request for discharge is also not sustainable in law for the reasons recorded above.

18. The Tribunal has decided the original application without taking into account the aforesaid aspect of the matter, which vitiates the order of the Tribunal.

19. Accordingly, the judgment and order dated 28.10.2021 passed by the Armed Forces Tribunal in O.A. No. 139 of 2020, the impugned discharge order dated 17.01.2020 passed by opposite party no. 3 and the impugned order dated 14.02.2020 passed by the opposite party no. 2 are set aside.

20. Accordingly, the writ petition is allowed. Consequently, the petitioner shall be treated to have continued in service till the date of his scheduled discharge i.e. 31.07.2021. (Subhash Vidyarthi J.) (A. R. Masoodi J.) Order Date: 17.02.2025 Pradeep/- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

The petitioner challenged the aforesaid orders by filing O.A. No. 139 of 2020, which was dismissed by the Armed Forces Tribunal by its order dated 28.10.2021, holding that the applicant’s discharge order was issued by the Air Force Record Office on 17.01.2020, while his withdrawal application dated 01.01.2020 was in transit. The Air Force Record Office had fixed the date of discharge as 15.02.2020. The applicant’s request for withdrawal of his discharge application was not accepted by the Air Force Record Office as his discharge order had already been issued on 17.01.2020. Therefore, the Tribunal held that there is no illegality in issuance of the discharge order.

7. The petitioner has challenged the validity of the judgment and order dated 28.10.2021 passed by the Armed Forces Tribunal, Regional Bench, Lucknow in O.A. No. 139 of 2020, as well as the aforesaid discharge order dated 17.01.2020 and the rejection order dated

14.02.2020 also through this Writ Petition.

8. The opposite parties have filed a counter affidavit annexing therewith a copy of the policy dated 28.02.2019 issued by the Air Headquarter for finalization of date of unscheduled discharge from service. Clause 4(c) of this policy provides that in cases of discharge from service, on selection to a civil post with last date of joining not coinciding as per the above plan, discharge is to be granted with immediate effect (subject to completing clearance at unit level).

9. The learned counsel for the petitioner has submitted that even as per the policy issued by the Air Headquarter, as the petitioner’s date of joining the civil post was 20.01.2020, while accepting his request for discharge by means of the order dated 17.01.2020, he ought to have been discharged with immediate effect. However, as the petitioner was not discharged with immediate effect in spite of a clear provision in the policy issued in this regard, the petitioner had submitted a request for revocation of the previous request for premature discharge. This request was rejected merely on the ground that the same was forwarded by the unit to the competent authority after some delay.

10. Rule 10 of the Air Force Rules, 1969 provides as follows:- “10. Discharge not to be delayed- Every person enrolled under the Act shall as soon as he becomes entitled under the conditions of his enrolment to be discharged, be so discharged with all convenient speed: Provided that a person shall not be so entitled to be discharged during period during which the Central Government, by a notification in this behalf suspends the entitlement to discharge in respect either of all the persons enrolled under the Act, or of any class of such persons to which he belongs.”

11. A bare perusal of Rule 10 of the Air Force Rules 1969 coupled with the policy dated 28.02.2019 issued by the Air Head Quarter leaves no room for doubt that it is mandatory for the authorities to deal with the request for discharge with all reasonable expedition. As the petitioner’s last date for appointment in civil employment was

20.01.2020, it was incumbent upon the authorities to discharge him with immediate effect while accepting his request for discharge by means of the order dated 17.01.2020.

12. Clause 4 of the Policy dated 28.02.2019 issued by Air Head Quarter provides as follows: - "4. Discharge of airmen on selection to civil posts and on supersession ground has increased many fold. In light of this, issuing discharge order with specific date of discharge in such cases has been deliberated and the following course of action is to be adopted:- (a) DoD is to be fixed as 15th day of the following month for all unscheduled discharge cases approved from 01 to 15th of the month. (b) DoD is to be fixed as last day of the following month for all unscheduled discharge cases approved from 16th to last day of the -month. (c) In cases of discharge from service, on selection to a civil post with last date of joining not coinciding as per the above plan, DoD is to be granted with immediate effect (subject to completing clearance at unit level)."

13. As per the aforesaid policy, in case the petitioner’s request for early discharge was being accepted, it ought to have been accepted with immediate effect so that the mandate of the policy would have been complied with and the petitioner would be able to join the civil employment. In case his request for immediate discharge was not accepted, then he should not have been discharged at all as it would be unreasonable to accept the request for discharge to enable the petitioner to join another employment in a manner in which the right to get the other employment is taken away and at the same time, the current employment of the petitioner also goes away.

14. As the authorities had failed to adhere to the aforesaid provisions contained in Rule 10 of the Air Force Rules as well as the policy issued on 28.02.2019, the petitioner was deprived of the civil employment that was offered to him. In these circumstances, he had made a request for withdrawal of his earlier request.

15. The reason for rejection of withdrawal of previous request for premature discharge is that the same had not been processed by the unit expeditiously. No fault has been attributed to the petitioner for the delay in forwarding the request for premature discharge.

16. When the petitioner is not said to be at fault for the delay in processing of the request, he cannot be made to suffer for a fault which lies on someone else.

17. In these circumstances, we are of the considered view that the order dated 17.01.2020 accepting the petitioner’s request for premature discharge with effect from a future date, i.e. 15.02.2020, is not sustainable in law and the same is liable to be set aside. The order dated 14.02.2020 rejecting the petitioner’s application for withdrawal of his earlier request for discharge is also not sustainable in law for the reasons recorded above.

18. The Tribunal has decided the original application without taking into account the aforesaid aspect of the matter, which vitiates the order of the Tribunal.

19. Accordingly, the judgment and order dated 28.10.2021 passed by the Armed Forces Tribunal in O.A. No. 139 of 2020, the impugned discharge order dated 17.01.2020 passed by opposite party no. 3 and the impugned order dated 14.02.2020 passed by the opposite party no. 2 are set aside.

20. Accordingly, the writ petition is allowed. Consequently, the petitioner shall be treated to have continued in service till the date of his scheduled discharge i.e. 31.07.2021. (Subhash Vidyarthi J.) (A. R. Masoodi J.) Order Date: 17.02.2025 Pradeep/- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench