17.07.2015 This is an OA, under Section 14 of the Armed Forces Tribunal Act, 2007, calling in question the rejection of petitioners claim for extension of service by two years on the ground that he has already exercised option by expressing his unwillingness.
2. Background facts, not in dispute, may be summed up as under:- (a) Petitioner was enrolled in the Indian Army on 30.09.1983. He was promoted to the rank of Subedar Major on 01.12.2012. Under the current terms of service, he is due for retirement on 30.09.2015. (b) By way of letter dated 29.06.2013 (Annex.A-2), OIC Records, the respondent No.4 here, sought willingness/unwillingness for grant of two years' extension of service from Subedar Majors having two years of Army OA 64/2015 Service remaining. In response, vide letter dated 13.07.2013 (Annex.A-3), the petitioners willingness was forwarded by the respondent No.5 as his Commanding Officer. However, the certificate dated 12.07.2013 enclosed therewith (Annex.-5) clearly indicated his unwillingness. (c) On 04.02.2014, the respondent No.4 issued Warning Order (Annex.A-4) to ASC Personnel due for retirement/discharge in 2015 and the petitioners name figured in the corresponding Nominal Roll. (d) Acting upon the petitioners representation, the respondent No.5, vide letter dated 22.02.2014 (Annex.A-
6), not only clarified that the unwillingness certificate was inadvertently signed by him but also forwarded a fresh willingness certificate for having the extension of service by two years. (e) On 25.02.2014, the respondent No.5 forwarded a Statement of Case (Annex.A-9) to HQ 10 Corps (ST) for grant of extension of service along with letter of request (Annex.A-8) for an early action. Thereupon, by way of letter dated 13.03.2014 addressed to the HQ South West Command (Annex.A-10), Brig ASC, 10 Corps while agreeing with the Commanding Officer, also recommended the petitioners case for extension of two OA 64/2015 years service. In turn, MG ASC, HQ South Western Command, along with his own recommendation, vide letter dated 31.03.2014 (Annex.A-11), also transmitted the petitioners case for extension of service to the respondent No.4. (f) Highlighting the instruction, as contained in letter dated 06.05.2003 (Annex.R-3), that willingness/unwillingness once exercised cannot be changed, the respondent No.4 vide letter dated 08.03.2014 (Annex.A-12) returned the willingness certificate (Annex.A-7) un-actioned in view of the facts that screening based on petitioners unwillingness had already been carried out by the Board of Officers on 07.11.2013 and also that the corresponding Part II Order (Annex.A-13) had already been published on 28.11.2013. (g) However, the respondent No.5, vide letter dated 20.05.2014 (Annex.A-14) addressed to the respondent No.3 viz. the Director General of Supplies and Transport, again recommended extension of petitioners service by two years, this time in terms of Para 7(a)(ii) of IHQ of MoD (Army) letter No.B-33098/Ag/PS2(c) dated 2 Mar 2012, as an exceptional case, despite the fact that on an earlier occasion, his unwillingness had been forwarded due to inadvertence. In response, by way of letter dated OA 64/2015 02.07.2014 (Annex.A-15), the respondent No.3 asked for fresh willingness. It was forwarded to the respondent No.3 in the form of certificate dated 03.07.2014 (Annex.A- 17) duly counter-signed by the respondent No.5. (h) Ultimately, the petitioner was informed vide letter dated 22.08.2014 (Annex.A-1) that his case for extension of service had been rejected by the competent authority. Meanwhile, on 10.07.2014, vide letter dated 10.07.2014 the discharge order (Annex.R-8) was also issued with a direction to report to Depot Coy ASC Centre South on 01.09.2015 for carrying out the drill in view of his proposed discharge on 30.09.2015.
3. The respondents have tried to justify and support the rejection of petitioners claim for extension of service primarily for the reasons assigned by the respondent No.3 viz. Directorate General of Supplies and Transport in his order dated 22.08.2014. For a ready reference, the same may be reproduced here:- (a) There is no deficiency in the trade of JCO seeking change of option for willingness. (b) ASC Records has not recommended the grant of extension. (c) Case does not meet terms as given out in AG/PS-2 letter No.B/33098/AG/PS-2(C) dated 06.05.2013 (Annex.R-3). OA 64/2015
4. In pursuance of the policy decision taken by the Govt. of India, in 1998, to grant extension of service by two years to Personnel Below Officer Rank (PBOR), revised procedure and criteria for screening have been laid down in Appendix A to the letter dated 20.09.2010 (Annexure R-4), issued by the AGs Branch of Army HQs. However, the same have been brought into effect from 01.04.2011. Clause 2(a) thereof reads-
2 Criteria The following guiding principles will be adhered to while considering the grant of two years extension in age/service. (a) Willingness of the individual. An individual will be deemed to be willing for two years extension in age/service unless he submits his unwillingness certificate two years before his retirement date, duly countersigned by OC unit.
5. The following attending circumstances manifestly suggest the inference that the petitioner was willing right from the beginning for extension of service by two years:-
(i) He has represented immediately after receipt of the Warning Order dated 04.02.2013 (Annex.A-4).
(ii) Not only the Commanding Officer but also the superior officers in the chain of command have recommended for the extension. OA 64/2015
(iii) He has also not opted for any re-settlement course for which unwillingness for grant of extension of service is a pre-requisite.
6. In the light of these facts and circumstances of the case, we are of the opinion that petitioner is entitled to be reconsidered for extension of service subject to fulfillment of the laid down criteria.
7. The OA is, accordingly, allowed in part. The order dated 22.08.2014 rejecting the respondent No.5s proposal for grant of two years extension of service to the petitioner is hereby set aside. The respondents are hereby directed to re-scrutinize the petitioners case for grant of extension of service in accordance with the guidelines laid down in the letter dated 20.09.2010 (Annex.R-4) treating him as willing for the purpose. The entire exercise of re-screening be completed at the earliest and in any case before 20.08.2015. There shall be no order as to costs. (R.C. MISHRA) MEMBER (J) (S.K. SINGH) MEMBER(A) Chanana/17.07.2015