AMIT KUMAR ROY versus UNION OF INDIA & ORS. on 3 July 2019

AMIT KUMAR ROY

v.

UNION OF INDIA & ORS.

(Civil Appeal Nos. 4605-4606 of 2019)

JULY 03, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Service Law:

Right to depart from service – Of person enrolled as a memberof Air Force – Held: A person who has been enrolled as a memberof Air Force does not have an unqualified right u/Art. 19(1)(g) ofthe Constitution to depart from service at his/her own will duringthe term of engagement – The interest of service are of paramountimportance – A balance needs to be drawn between the interest ofservice and requests of enrolled persons to take civilian employment – Such balance is reflected in Air Force Orders – In the presentcase there was failure on part of the appellant to comply with hisobligations in terms of his engagement as an enrolled member ofthe force and also in relation to the requirements which were to befulfilled under the terms of Air Force Order viz. AFO 14/2008 –However, in the facts of the case no purpose will be served indirecting reinstatement of the appellant – Interest of justice wouldbe met by directing issue of NOC and discharge order subject to theappellant depositing with Union of India a sum of Rs. 3 lakhs –Constitution of India – Art. 19(1)(g) – Air force Order 14/2008.

The appellant, who was enrolled as an Airman in the Airforce, applied for and appeared in written test and interview forappointment to a civil post in a Bank. This was done withoutcompleting the mandatory period of service of seven years andwithout obtaining prior permission from the competentauthorities. Thereafter he applied for an NOC from competentauthorities of the Air Force. In the meantime he received orderof appointment from the Bank. The appellant, then moved AirForce Tribunal seeking direction for grant of NOC and fordischarge from Air Force to join the civil post. The Tribunal by

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Ainterim order directed to authorities to issue provisional NOCand to discharge the appellant. Appellant joined the Bank afterreceiving provisional NOC and provisional discharge order.Subsequently the application seeking grant of NOC was dismissedby the authorities. Ultimately the application filed before theTribunal was also dismissed as infructuous. The authoritiesBfurther also cancelled the provisional NOC and provisionaldischarge. Consequently in absence of NOC and discharge, theservices of the appellant in the Bank were terminated. Hencethe present appeals challenging the orders of the Tribunal.

Disposing of the appeals, the CourtC

HELD: 1. The Air Force Act 1950 imposes restrictions onthe fundamental rights of the members of the Indian Air Forcewith a view to ensure ‘proper discharge of duties and themaintenance of discipline among them’. [Para 9] [895-B-C]

D2. AFO 14/2008 held the field at the material time andgoverns the facts of the present case. Under the terms of theAFO, a requirement of completing seven years of service fromthe date of enrolment has been mandated for permission to begranted to apply for a civil post under the Central or StateGovernments or Public Sector Undertakings, includingEparamilitary forces. AFO 14/2008 stipulates that a Category Iindividual with a length of service of seven years may apply forcivilian employment in a Group A or equivalent post carrying thestipulated pay scale as revised from time to time. Applicationshave to be forwarded to the prospective employer by the units,Fafter verification of eligibility including the criticality of manpower.Where the Airman belongs to a critical trade, the application shallbe rejected at the unit level. Where online applications have beeninvited the station or, as the case may be, unit commanders arerequired to ensure fulfilment of the conditions of eligibilityspecified in paragraph 1 to 3. Permission is required from theGstation/unit commanders to submit an on-line application for acivil post. NOCs (other than those in Category III) are to beissued by Air HQs on a case to case basis having regard to theexigencies of service. [Para 13] [902-F-H; 903-A-B]

3. In the present case, the appellant in breach of theprovisions contained in AFO 14/2008 applied for the post of aProbationary Officer with the Bank of India, participated in thewritten test and appeared at the interview without intimation orapproval. There was, therefore, a failure of the appellant to complywith his obligations both in terms of his engagement as an enrolledmember of the force and in relation to the requirements whichwere to be fulfilled under the terms of AFO 14/2008.[Para 14] [903-C-D]

4. It cannot be said that the appellant had an unqualifiedright under Article 19(1)(g) of the Constitution to leave the serviceof the Air Force. The provisions of the Air Force Act, thosecontained in the rules and the terms of engagement of theappellant belie such an assertion. AFO 14/2008 emphasisesaspects such as the criticality of the trade and the exigencies ofservice. They need to be verified and assessed before permissionis granted. A person who has been enrolled as a member of theAir Force does not have an unqualified right to depart from serviceat his or her will during the term of engagement. Such aconstruction, as urged on behalf of the appellant, will seriouslyimpinge upon manning levels and operational preparedness ofthe armed forces. With the rapid advancement of technology,particularly in its application to military operations, there has beena reconfiguration of the human and technological requirementsof a fighting force. The interests of the service are of paramountimportance. A balance has been sought to be drawn between theinterests of the service with situations involving requests bypersons enrolled to take civilian employment. This balance isreflected in the provisions contained in the Air Force orders, inthis case AFO 14/2008. A person enrolled cannot assert a generalright to act in breach or defiance of those orders. [Para 15][903-D-H]

5. The appellant moved the Air Force Tribunal aftersubmitting the application on 30 May 2011. He had an interimorder of the AFT dated 18 August 2011 in his favour forprovisional discharge and for an NOC. This was implementedon 20 September 2011, following which the appellant was struckoff the strength of the IAF with effect from 21 September 2011

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Aand joined the Bank of India on 24 September 2011. This orderof the Tribunal was not disturbed in the civil appeal filed by theUnion of India, but this Court by an order dated 12 March 2012,directed the Air Force authorities to dispose of the applicationsubmitted by the appellant on 30 May 2011. After the applicationwas rejected, an interim order enured to the benefit of theBappellant. In this backdrop nearly eight years have elapsed sincethe appellant left service. No purpose will be served in directingthe reinduction of the appellant into the IAF save and except tosubject him to disciplinary action. Having regard to the facts andcircumstances, the ends of justice would be met by directing thatCa final NOC and discharge be issued to the appellant no laterthan within a period of three months of the receipt of a copy ofthis order, subject to the appellant depositing with the Union ofIndia a sum quantified at Rs. 3 lakhs. [Para 16] [904-A-F]

Union of India v Major General Shri Kant SharmaD(2015) 2 SCC 519 ;Corporal Gaurav Badhwar v.Union of India(2015) SCC Online Del7275 – referred to.

Case Law Reference

(2015) 2 SCC 519 referred toPara 4E(2015) SCC Online Del 7275 referred toPara 6

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.4605-4606 of 2019F

From the Judgment and Orders dated 11.04.2012 and 25.05.2012of the Armed Forces Tribunal, Chandigarh Bench, Chandigarh in O.A.No. 1182 of 2011 and in M.A. No. 667 of 2012 and R.A. No. 22 of 2012in O.A. No.1182 of 2011 respectively With G

Civil Appeal No. 4607 of 2019.

Gopal Sankaranarayanan, Sr. Adv., Ms. Pooja Dhar,Ms. Aishwarya Kane, Ms. Gayatri Verma, Advs. for the Appellant.

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R. Balasubramanian, Sr. Adv., Sachin Sharma, Nachiketa Joshi,Arvind Kumar Sharma, Mukesh Kumar Maroria, Jagat Arora, RajatArora, Anuvrat Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

Civil Appeal Nos 4605-4606 of 2019 (D No 27372/2015):

1. These appeals arise from a decision of the Armed ForcesTribunal[1] dated 11 April 2012 together with its order dated 25 May2012, declining to review the initial decision.

2. The appellant was enrolled on 12 January 2004 as an Airman inthe Indian Air Force[2]. His regular engagement was to come to an endon 11 January, 2024. An advertisement was issued by the Bank of Indiaon 7 August 2010 inviting applications for filling up 2,000 posts ofProbationary Officers. While posted at the Three Base Repair Depot,the appellant responded to the advertisement and applied for the post ofGeneral Banking Officer in the pay scale of Rs 14,500-25,700 in August2010. The appellant did so without completing the mandatory period ofservice of seven years. Moreover, he did not obtain the prior permissionof his unit authorities. This was (according to the Air Force authorities)in breach of the provisions of Air Force Order 14/2008 which was thenin force. The appellant applied for the issuance of a No ObjectionCertificate[3] and a Discharge on 30 May 2011. By then he had appearedat the written test held by the Bank on 16 March 2011 and for an interviewat which he was declared to be successful. His application for an NOCand discharge was forwarded to the competent authority at AirHeadquarters by the Headquarters Maintenance Command on 4 July2011. On 28 July 2011, the appellant received an order of appointmentas a Probationary Officer with the Bank. On 16 August 2011, he movedthe AFT[4] at its Regional Bench in Chandigarh seeking directions for thegrant of an NOC and for discharge from the IAF to join a civil post withthe Bank of India. On 18 August 2011, the AFT issued an interim directionto the IAF authorities to provisionally issue an NOC and to dischargethe appellant so as to enable him to take up the new assignment before24 August 2011. This was subject to the condition that in the event of his 1 AFT2 IAF3 NOC4OA 1182/2011

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AOA being dismissed, the appellant would have to give up his appointmentand join the IAF within a reasonable period of time failing which hewould be liable to action as a deserter absent without leave. On 2September 2011 after the rejection of an application for review filed bythe Air Force authorities before the AFT and faced with a contemptpetition, Air Headquarters issued a provisional NOC to the appellantBpermitting him to take up the appointment in a civil post of a GeneralBanking Officer (JMG Scale-I) with the Bank of India. A dischargeorder was issued on 20 September 2011 on a provisional basis on theconditions stipulated by the AFT. The appellant joined Bank of India on24 September 2011.C[[5]]

3. A Civil Appeal[[5]] was filed by the Union of India in this Court toassail the interim order of the AFT. On 12 March 2012 this Court directedthe Air Force authorities to dispose of the application submitted by theappellant on 30 May 2011 for an NOC and discharge. The applicationwas rejected on 26 March 2012. The order of rejection, in so far as is Dmaterial, is extracted below:

“(a) You had applied for the civil post directly without obtainingprior permission of your Commanding Officer that too beforecompletion of mandatory period of seven years of service in theIAF in violation of AFO 14/2008.

E(b) Both the above acts amount to indiscipline.

(c) The pay scale of the civil post applied by you is Rs 14,500-25,700 which is not equivalent to Group –”A” as per Air HQ/S40726/PA(RC) dated 22 May 2009 read with AFO 14/2008. Asper referred letter dated 22 May 2009 the post is equivalent toFGroup –”C” Govt Post for which an airman belonging to a tradenot having critical manning is eligible to apply only on completionof 15 years of service. On completion of 18 years of service, onecan apply for any post, irrespective of critical manning in respectivetrade, provided he had rendered unwillingness/denied extensionof service.G

(d) You belonged to Air Frame Fitter trade which is having criticalmanning.

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(e) At the time of applying for the said post, your trade was havingcritical manning, also you had not completed 15 or 18 years ofservice which is mandatory for applying for Group – ”C” Govtposts and equivalent posts in PSUs.”

On 9 April 2012, when his OA came up before the AFT the AirForce authorities had already passed an order rejecting his application.Hence on 11 April 2012 the OA was dismissed as having becomeinfructuous, though with the observation that the “interim order dated18 August 2011 will have its force”. The appellant’s review applicationwas dismissed on 25 May 2012. On 2 June 2012, the appellant filed writproceedings[6] before the High Court of Punjab and Haryana. He wasprotected by an interim order dated 15 June 2012, against being treatedas a deserter. On 22 June 2012 Air Headquarters cancelled the provisionalNOC dated 2 September 2011 and the provisional discharge issued incompliance with the order of the AFT dated 11 April 2012 noting that anorder of reinstatement in the service of the IAF was issued on 18 June2012, to take effect from 16 July 2012. The appellant was called uponto join duties at his last unit, Three Base Repair Depot, failing which itwas stated that he would be liable to disciplinary action.

4. Since the appellant had not received a clean dischargecertificate, his services were terminated by Bank of India on 30 April2014. Challenging his termination, the appellant moved writ proceedings[7]in which by an order dated 17 September 2014, the termination wasstayed. In view of the decision of this Court in Union of India v MajorGeneral Shri Kant Sharma[8], the High Court held that it had nojurisdiction to entertain the writ petition filed by the appellant under Article226 and while leaving it open to him to pursue an alternate remedy beforethe AFT.

5. The appellant now seeks to challenge the decision of the AFTrendered on 11 April 2012 together with its order dated 25 May 2012declining to review its decision. The AFT came to the conclusion thatthe OA had been rendered infructuous since in the meantime, inpursuance of the orders of this Court a speaking order had been passedby the Air Force authorities on 26 March 2012 rejecting the applicationfor an NOC. In the review order, the AFT declined permission to theappellant to amend the OA.

6CWP 11861/20127CWP 19402/20148(2015) 2 SCC 519

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A6. Mr Gopal Sankaranarayanan, learned senior counsel appearingon behalf of the appellant submitted that:

(i) The appellant has a fundamental right under Article 19(1)(g) tochoose his place of employment. The provisions of Article 19(1)(g) intheir application to the members of the Air Force are not any differentBfrom their application to any other branch of government;

(ii) There was sufficient compliance by the appellant with theprovisions contained in paragraph 17 of AFO 14/2008;

(iii) On the purported non-parity of pay scales:

C(a) The Air Force Order dated 23 July 2015 indicates that payscales for Assistant Managers in Scale I of public sector bankshave been revised to meet with the equivalence criteriavis-à-vis Group A government posts and that approval hasbeen accorded to the procedure for the discharge of Airmenselected for nationalised banks; D

(b) The appointment order dated 15 April 2013 issued to theappellant indicates a basic pay of Rs 14,500 – 25,700;

(c) Pay scales of banks are revised every four to five years asagainst central pay scales which are revised once in ten years;andE

(d) Consequently the pay scales in the banking industry are wellin excess of those offered in the IAF;

(iv) As regards the issue of the ‘criticality of trade’:

(a) The appellant was appointed to a post equivalent to a GroupFA post and was entitled to a waiver of the condition; (b) The order passed by the Air Force authorities on 22 July 2013did not mention criticality of trade as the reason for denyingpermission; G(c) In Corporal Gaurav Badhwar v Union of India[9], the DelhiHigh Court has held:

“..assessment of criticality in a trade would ordinarily be withinthe domain of the employer, but where it is pleaded that due 9(2015) SCC Online Del 7275H

to dying nature of the work due to modernization in theequipment of the employer, some category of employees arebeing rendered without work and are being adjusted in otheractivities, and for which we highlight the evasive denial bythe respondents to the pleas of Cpl Gaurav Badhwar in para16 of the writ petition that 25% to 30% Instrument Fitters arebeing made to work in the Bar, Canteen and otherestablishments where they perform duties wholly unrelatedto their skills of Instrument Fitters, it would be a caserequiring it to be held that the employer has failed to makegood the defence of there being criticality in the trade.”

(iv) As on February 2019, over five years have elapsed since theappellant commenced employment with the bank. The careeradvancement policy necessitates a liberal approach. The omission ofthe appellant to apply through proper channels was only a proceduralirregularity and not an illegality. The appellant applied for discharge on17 April 2013, which was followed by a fresh application on 13 July2013. The failure to seek prior permission, it has been urged is anirregularity and does not cause prejudice to the IAF. The equitableintervention of this Court has been sought for the grant of a ‘clean’NOC and discharge certificate which would enable him to continue toserve the bank in which he is employed.

7. On the other hand, Mr R Balasubramanian, learned seniorcounsel appearing on behalf of the Union of India and the Air Forceauthorities submitted that:

(i) The appellant has proceeded on a misconceived assumptionthat though he is a member of the Air Force, he is entitled to leaveemployment at his will in view of the fundamental right guaranteed byArticle 19(1)(g). The submission ignores the specific provisions of Article33 of the Constitution;

(ii) There is a fallacy in the submission that a person enrolled inthe armed forces of the Union (in this case the IAF) is entitled to leaveservice at will. A person who is enrolled is governed by the discipline ofthe force. Sections 13,14 and 15 of the Air Force Act 1950 would makeit abundantly clear that there is a statutory obligation to serve during theperiod of engagement, a breach of which would invite disciplinary action; A

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A(iii) These statutory provisions are complemented by the Air ForceRules, more particularly, Rules 7 and 9 which have been framed underthe provisions of Section 189 of the Act;

(iv) Air Force Order 14/2008 which held the field at the materialtime regulated the terms on which persons enrolled in the IAF mayBapply for civilian employment; and

(v) In interpreting the provisions of law, it would be necessary forthis Court to have regard to :

· The need to maintain manning levels;

·C The requirement of operational preparedness; · Training costs incurred in incorporating technological advancements; · Interests of the IAF; and · Importance of training of a particular trade or category.D

In this backdrop, it was urged that there is no general or vestedright to leave service during the period of engagement and any applicationhas to be considered on a case to case basis. Mr Balasubramaniansubmitted that the appellant who was enrolled in the IAF breached hisstatutory obligation and left service without prior permission, renderingEhim liable for disciplinary action.

8. The rival submissions will be considered.

9. Article 33 of the Constitution provides as follows:

“33. Parliament may, by law, determine to what extent any of therights conferred by this Part shall, in their application to,— (a) themembers of the Armed Forces; or (b) the members of the Forcescharged with the maintenance of public order; or (c) personsemployed in any bureau or other organisation established by theState for purposes of intelligence or counter intelligence; or (d)person employed in, or in connection with, the telecommunicationsystems set up for the purposes of any Force, bureau ororganisation referred to in clauses (a) to (c), be restricted orabrogated so as to ensure the proper discharge of their duties andthe maintenance of discipline among them.”

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AMIT KUMAR ROY v. UNION OF INDIA & ORS.[DR DHANANJAYA Y. CHANDRACHUD, J.]

The Air Force Act 1950 has been enacted by Parliament legislatingunder Articles 245(1) and 246(1) of the Constitution. The specificlegislative entry in the VII[th] Schedule is Entry 2 of the Union list whichreads thus:

“Naval, military and Air Forces; any other armed forces of theUnion.”

The Air Force Act 1950 imposes restrictions on the fundamentalrights of the members of the IAF with a view to ensure ‘proper dischargeof duties and the maintenance of discipline among them’. Section 13stipulates the procedure which is to be followed before the enrollingofficer, where any person desires to be enrolled. Section 13 provides asfollows:

“13. Procedure before enrolling officer.—Upon the appearancebefore the prescribed enrolling officer of any person desirous ofbeing enrolled, the enrolling officer shall read and explain to him,or cause to be read and explained to him, in his presence, theconditions of the service for which he is to be enrolled; and shallput to him the questions set forth in the prescribed form ofenrolment, and shall, after having cautioned him that if he makesa false answer to any such question he will be liable to punishmentunder this Act, record or cause to be recorded his answer to eachsuch question.”

Section 14 provides for the mode of enrolment:

Section 14 provides for the mode of enrolment:

“14. Mode of enrolment.—If, after complying with the provisionsof section 13, the enrolling officer is satisfied that the persondesirous of being enrolled fully understands the questions put tohim and consents to the conditions of service, and if such officerperceives no impediment, he shall sign and shall also cause suchperson to sign the enrolment paper, and such person shall thereuponbe deemed to be enrolled.”

Section 15 deals with the validity of enrolment:

“15. Validity of enrolment.—Every person who has for the spaceof three months been in receipt of pay as a person enrolled underthis Act and been borne on the rolls of any unit shall be deemed tohave been duly enrolled, and shall not be entitled to claim his A

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Adischarge on the ground of any irregularity or illegality in hisenrolment or on any other ground whatsoever; and if any person,in receipt of such pay and borne on the rolls as aforesaid, claimshis discharge before the expiry of three months from his enrolment,no such irregularity or illegality or other ground shall, until he isdischarged in pursuance of his claim, affect his position as anBenrolled person under this Act or invalidate any proceedings, actor thing taken or done prior to his discharge.”

Before enrolment, the enrolling officer has to make the personwho desires to be enrolled cognizant of the conditions of service. Section14 mandates that before signing on the enrolment, the individual has toCconsent to the conditions of his service. A person who has for a periodof three months been in receipt of pay as a person enrolled under theAct and has been borne on the rolls of any unit is deemed to have beenduly enrolled. On being attested under Section 16[10], the individualsubscribes to an oath or affirmation to bear allegiance to the Constitution,Dto serve in the Air Force and to obey all commands of an officer setover him, even to the peril of his life[11]. Tenure in the Air Force is subjectto the pleasure of the President[12]. A person subject to the Air Force Act1950 may be retired, released or discharged from service “by suchauthority and in such manner as may be prescribed”.[13]

E1016. Persons to be attested.—The following persons shall be attested, namely: —14 (a) all persons enrolled as combatants; (b) all persons selected to hold a non-commissioned or acting non-commissioned rank; and (c) all other persons subject tothis Act as may be prescribed by the Central Government.

11 17. Mode of attestation.—(1) When a person who is to be attested is reported fit forduty, or has completed the prescribed period of probation, an oath or affirmation shallbe administered to him in the prescribed form by his commanding officer in front of hisFunit or such portion thereof as may be present, or by any other prescribed persons. (2)The form of oath or affirmation prescribed under this section shall contain a promisethat the person to be attested will bear true allegiance to the Constitution of India as bylaw established, and that he will serve in the Air Force and go wherever he is ordered byland, sea or air, and that he will obey all commands of any officer set over him, even tothe peril of his life. (3) The fact of an enrolled person having taken the oath or affirmationdirected by this section to be taken shall be entered on his enrolment paper andGauthenticated by the signature of the officer administering the oath or affirmation.1218. Tenure of service under the Act.—Every person subject to this Act shall holdoffice during the pleasure of the President.

1322. Retirement, release or discharge.—Any person subject to this Act may be retired,released or discharged from the service by such authority and in such manner as may beprescribed.H

10. Section 189 empowers the Central government to make rulesfor the purpose of carrying into effect the provisions of the Act. Rule 7provides thus:

“7 Enrolling officers and form of enrolment.—

(1) The following officers shall be enrolment officers for thepurposes of sections 13 and 14, namely:—

(a) all recruiting officers;

(b) all assistant recruiting officers;

(c) the Officer Commanding a unit of the Air Force.

(2) The Form of enrolment set forth in the First Schedule isprescribed for the purposes of sections 13 and 14.”

Rule 9 is in the following terms:

“9 Oath or affirmation to be taken on attestation.—

(1) The oath or affirmation to be taken on attestation shall be inone of the following form or in such other forms to the samepurport as the attesting officer ascertains to be in accordancewith the religion of the person to be attested or otherwise bindingon his conscience. Form of Oath I ..................do swear in thename of God that I will bear true faith and allegiance to theConstitution of India as by law established and that I will as induty bound honestly and faithfully serve in the Air Force of theUnion of India, and go wherever ordered by air, land or sea, andthat I will observe and obey all commands of the President of theUnion of India and the commands of any officer set over meeven to the peril of my life. Form of Affirmation I ..................dosolemnly affirm that I will bear true faith and allegiance to theConstitution of India as by law established and that I will as induty bound, honestly and faithfully serve in the Air Force of theUnion of India and go wherever ordered by air, land or sea, andthat I will observe and obey all commands of the President of theUnion of India and the commands of any officer set over meeven to the peril of my life.

(2) The oath or affirmation prescribed in this rule shall, wheneverpracticable be administered by the commanding officer of the A

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person to be attested or in the presence of such commandingofficer by a person empowered by him to administer it in themanner described in section 17. If it is not so administered, it maybe administered by a magistrate, a recruiting officer or an assistantrecruiting officer.”

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BRule 13 stipulates that:

“13 Release.—A person subject to the Act may be released fromthe Air Force in accordance with these rules, or in accordancewith any orders or instructions made in that behalf by or under theauthority of the Central Government.”

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11. The statutory form of enrolment as a combatant is in Form AIof the First Schedule. Part II of Form AI incorporates an obligation toserve in the Air Force for a specified period. As we have already noted,on his enrolment in 2004, the engagement of the appellant was for astipulated period of twenty years. Rule 14 provides for the authoritiesDwho are empowered to authorise a discharge. There is a table whichdeals with persons enrolled under the Act who have, as the case maybe, been attested or are not attested. Rule 15 is reproduced below:

“15 Authorities empowered to authorise discharge .—(1)Each of the authorities specified in column 3 of the Table belowEshall be the authority competent in respect of persons subject tothe Act specified in column 1 thereof for the causes specified incolumn 2 and in the manner specified in column 4, to dischargesuch persons from the service.

(2) Any power conferred by this rule on any of the aforesaidauthorities may also be exercised by any other authority superiorto it.

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A(c) Having been Commanding To be carried out found medically Officer only on the unfit for further recommendations of service.an Invaliding Board (d) On transfer to the …… pension establishment or on discharge with Bgratuity otherwise than at his own request or under item (c). (e) Having been Air Officer I/c An Airman reported found inefficient in Administration as inefficient will, as his rank or trade and far as vacancies being unwilling to allow be permitted to Caccept reduction or remuster and / or remustering accept reduction in any rank and trade for which he is reported as suitable. If no such vacancy exists or if he declines to accept Dsuch remustering or reduction he will be discharged under this item(f) At his own Director of …….. request before Personnel (Airmen) fulfilling the conditions of his Eenrolment(g) His services no longer required :- (i) Due to reduction Director of …….. in establishment or Personnel (Airmen) to reorganization (ii) Unsuitable for Air Officer I/c ……… retention in the Air Administration FForce (h) All other classes Do of dischargePersons enrolled (i) At his own (i) Air or other The competent under the Act who request before officer i/c of authority mentioned have not been fulfilling the Command in the preceding attested conditions of the column will exercise enrolment this power only when Ghe is satisfied as to the bona fides of the application and that the total strength of the Air Force will not there by be unduly reduced H

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(ii) Director or Personnel (Airmen) in case of units directly under Air Head-quarters (j) Unlikely to make Commanding Applicable to airmen in efficient Airman Officer under going training Bfor airmen (k) All other classes Commanding of dischargeOfficer

12. Now it is in this background that it would be necessary toCadvert to the provisions of AFO 14/2008. Clause 1, in so far as is material,provides thus:

“Airmen/NCs(E), who have completed seven years of servicefrom the date of enrolment, are permitted to apply for civil postsunder Central/State Government and public Sector UndertakingDincluding Para-Military Forces. Non-Govt. Organization (NGOs)Trusts, even if funded by the Govt. shall not be covered in thepermission category of civil posts. The categories of posts,corresponding length of service and eligibility are to be determinedas given below:

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Clause 1 stipulates a requirement of the completion of seven yearsservice to apply for civilian employment. It also defines the permissiblecategories of civilian posts for which armed forces personnel may apply.G

Clause 2 stipulates that:

“All applications for above categories of posts will be directlyforwarded to the prospective employers by the units after verifyingthe eligibility including criticality of manpower. Application of

Airman belonging to critical trades shall be rejected at unit level.However, the condition of criticality will not be applicable to theapplicants of category 1A and III above, in whose case theapplications will be forwarded despite criticality in their trades.The criticality of trades will be updated by Air HQ twice a year, inJune and December and would be intimated to the Stns./Unitthrough their respective Command HQs. Unit directly under AirHQ would be intimated the criticality of the trades by Air HQ.Airman who are on deputation to ARC are also eligible to applyfor civil posts as per Para 1 above and their applications to beprocessed through PHS C/O AFCAO, where unit copy of servicedocuments of ARC deputationists are held. Forwarding ofapplications shall not be construed as acceptance to grant NOC,which shall be issued as per the procedure laid down in subsequentparas of this AFO.”

Under clause 2, the units will verify the criticality of manpowerbefore forwarding the applications.

Clause 5 lays down guidelines which must be followed whereonline applications have been invited by government departments or, asthe case may be, by public sector undertakings. Here again, the individualhas to seek permission from the station/unit commanders before applyingon-line. Clause 5 is in the following terms:

“Forwarding of On-line Applications. Several prospectiveemployers in Govt Departments/PSUs invite applications for civilemployment through their web sites on the internet. Station/UnitCommanders are to ensure that the applicant meets the eligibilityconditions enumerated in preceding Paras 1-3. The followingguidelines are to be followed for ‘on-line’ registration of applicationsfor civil posts :- (a) Individual to seek permission from his respective Station/UnitCommanders to apply for any civil post ‘on-line’ alongwith dulyfilled application and advertisement downloaded from the website.

(b) An undertaking is to be furnished by the individual, stating thatinformation furnished by him to the Stn/Unit authorities will besubmitted to the employer ‘on-line’ and no classified informationwill be communicated.

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902SUPREME COURT REPORTS

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A(c) Before granting permission, the unit administration is to examinethe contents of the application keeping security consideration inmind.”

Under clause 6, NOCs (other than those under Category III) willbe issued by Air HQs on a case to case basis subject to the exigenciesBof service and the overall cadre requirement in a particular rank or trade.Clause 6 is as follows:

“No Objection Certificate (NOC) for applicants under Cat IIIwill be issued two ears before completion of their engagement bytheir respective AOC/Stn Cdr/CO as per the format placed atAppendix ‘E’ while all other NOCs will be issued by Air HQs(Dte of PA) on case to case basis, subject to the exigenciesof service and with the overriding condition being theoverall cadre requirement in a particular rank/trade as performat given at Appendix ‘C’.” (Emphasis supplied)

C

DClause 7 provides:

“Application for NOC is to be submitted by the individual afterreceiving call letter for the interview/verification of documents orafter the result of written test where selection is based on successin written test only. However, in all cases NOC is to be obtainedEby the individual invariably before submitting application fordischarge on being selected for the civil post.”

Finally, clause 13 stipulates that:

“Permission to apply for civil post is a privilege and hence issuanceof NOC can not be claimed as a matter of right. No provisional orFconditional NOC is to be issued by the Stations/Units.”

13. AFO 14/2008 held the field at the material time and governsthe facts of the present case. Under the terms of the AFO, a requirementof completing seven years of service from the date of enrolment hasbeen mandated for permission to be granted to apply for a civil postGunder the Central or state governments or public sector undertakings,including paramilitary forces. AFO 14/2008 stipulates that a Category Iindividual with a length of service of seven years may apply for civilianemployment in a Group A or equivalent post carrying the stipulated payscale as revised from time to time. Applications have to be forwarded H

to the prospective employer by the units, after verification of eligibilityincluding the criticality of manpower. Where the Airman belongs to acritical trade, the application shall be rejected at the unit level. Whereonline applications have been invited the station or, as the case may be,unit commanders are required to ensure fulfilment of the conditions ofeligibility specified in paragraph 1 to 3. Permission is required from thestation/unit commanders to submit an on-line application for a civil post.NOCs (other than those in Category III) are to be issued by Air HQs ona case to case basis having regard to the exigencies of service.

14. In the present case, the appellant in breach of the provisionscontained in AFO 14/2008 applied for the post of a Probationary Officerwith the Bank of India, participated in the written test and appeared atthe interview without intimation or approval. There was, therefore, afailure of the appellant to comply with his obligations both in terms of hisengagement as an enrolled member of the force and in relation to therequirements which were to be fulfilled under the terms of AFO14/2008.

15. We are unable to accept the submission of MrSankaranarayanan that the appellant had an unqualified right under Article19(1)(g) of the Constitution to leave the service of the Air Force. Theprovisions of the Air Force Act, those contained in the rules and theterms of engagement of the appellant belie such an assertion. AFO 14/2008 emphasises aspects such as the criticality of the trade and theexigencies of service. They need to be verified and assessed beforepermission is granted. A person who has been enrolled as a member ofthe Air Force does not have an unqualified right to depart from serviceat his or her will during the term of engagement. Such a construction, asurged on behalf of the appellant, will seriously impinge upon manninglevels and operational preparedness of the armed forces. With the rapidadvancement of technology, particularly in its application to militaryoperations, there has been a reconfiguration of the human andtechnological requirements of a fighting force. The interests of the serviceare of paramount importance. A balance has been sought to be drawnbetween the interests of the service with situations involving requests bypersons enrolled to take civilian employment. This balance is reflectedin the provisions contained in the Air Force orders, in this case AFO 14/2008. A person enrolled cannot assert a general right to act in breach ordefiance of those orders.

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

A16. In the present case, we are now left with the alternativesubmission invoking the equitable jurisdiction of this Court under Article142 of the Constitution. The appellant moved the AFT after submittingthe application 30 May 2011. He had an interim order of the AFT dated18 August 2011 in his favour for provisional discharge and for an NOC.This was implemented on 20 September 2011, following which theBappellant was struck off the strength of the IAF with effect from 21September 2011 and joined the Bank of India on 24 September 2011.This order of the AFT was not disturbed in the civil appeal filed by theUnion of India, but this Court by an order dated 12 March 2012, directedthe Air Force authorities to dispose of the application submitted by theCappellant on 30 May 2011. After the application was rejected, an interimorder enured to the benefit of the appellant. In this backdrop nearly eightyears have elapsed since the appellant left service. No purpose will beserved in directing the reinduction of the appellant into the IAF save andexcept to subject him to disciplinary action. Having regard to the factsand circumstances which we have noted above, we are of the view thatDthe ends of justice would be met by directing that a final NOC anddischarge be issued to the appellant no later than within a period of threemonths of the receipt of a copy of this order. At the same time, we areof the view that this should not be an unconditional direction. Weaccordingly issue an order in the above terms, subject to the appellantEdepositing with the Union of India a sum quantified at Rs 3 lakhs withintwo months of the receipt of a copy of this judgment. A final NOC anddischarge certificate shall be issued only after the above amount isdeposited and within one month thereafter. The civil appeals are disposedof in the above terms. There shall be no order as to costs.

FCivil Appeal No 4607 of 2019 (D No 27196/2015):

17. No other point has been separately urged in this appeal. Hence,the civil appeal shall stand disposed of in similar terms. There shall be noorder as to costs.

GKalpana K. Tripathy

Appeals disposed of.

H