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 Forces Tribunal1 dated
11 April 2012 together with its order dated 25 May 2012, declining to review the
SignatureinitialNot Verified decision.
1 AFT
2 The appellant was enrolled on 12 January 2004 as an Airman in the Indian
Air Force2. His regular engagement was to come to an end on 11 January, 2024.
An advertisement was issued by the Bank of India on 7 August 2010 inviting
applications for filling up 2,000 posts of Probationary Officers. While posted at the
Three Base Repair Depot, the appellant responded to the advertisement and
applied for the post of General Banking Officer in the pay scale of Rs 14,500-
25,700 in August 2010. The appellant did so without completing the mandatory
period of service of seven years. Moreover, he did not obtain the prior permission
of his unit authorities. This was (according to the Air Force authorities) in breach
of the provisions of Air Force Order 14/2008 which was then in force. The
appellant applied for the issuance of a No Objection Certificate3 and a Discharge
on 30 May 2011. By then he had appeared at the written test held by the Bank
on 16 March 2011 and for an interview at which he was declared to be
successful. His application for an NOC and discharge was forwarded to the
competent authority at Air Headquarters by the Headquarters Maintenance
Command on 4 July 2011. On 28 July 2011, the appellant received an order of
appointment as a Probationary Officer with the Bank. On 16 August 2011, he
moved the AFT4 at its Regional Bench in Chandigarh seeking directions for the
grant of an NOC and for discharge from the IAF to join a civil post with the Bank
of India. On 18 August 2011, the AFT issued an interim direction to the IAF
authorities to provisionally issue an NOC and to discharge the appellant so as to
enable him to take up the new assignment before 24 August 2011. This was
subject to the condition that in the event of his OA being dismissed, the appellant
would have to give up his appointment and join the IAF within a reasonable
period of time failing which he would be liable to action as a deserter absent
without leave. On 2 September 2011 after the rejection of an application for
review filed by the Air Force authorities before the AFT and faced with a contempt
petition, Air Headquarters issued a provisional NOC to the appellant permitting
him to take up the appointment in a civil post of a General Banking Officer (JMG
Scale-I) with the Bank of India. A discharge order was issued on 20 September
2011 on a provisional basis on the conditions stipulated by the AFT. The
appellant joined Bank of India on 24 September 2011.
3 A Civil Appeal5 was filed by the Union of India in this Court to assail the
interim order of the AFT. On 12 March 2012 this Court directed the Air Force
authorities to dispose of the application submitted by the appellant on 30 May
2011 for an NOC and discharge. The application was rejected on 26 March 2012.
The order of rejection, in so far as is material, is extracted below:
“(a) You had applied for the civil post directly without obtaining
prior permission of your Commanding Officer that too before
completion of mandatory period of seven years of service in
the IAF in violation of AFO 14/2008.
(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/S 40726/PA(RC) dated 22 May 2009 read with AFO
14/2008. As per referred letter dated 22 May 2009 the post is
equivalent to Group –“C” Govt Post for which an airman
belonging to a trade not having critical manning is eligible to
apply only on completion of 15 years of service. On
completion of 18 years of service, one can apply for any post,
irrespective of critical manning in respective trade, provided
he had rendered unwillingness/denied extension of service.
5 Civil Appeal D No 38467/2012
(d) You belonged to Air Frame Fitter trade which is having
critical manning.
(e) At the time of applying for the said post, your trade was
having critical manning, also you had not completed 15 or 18
years of service which is mandatory for applying for Group
–“C” Govt posts and equivalent posts in PSUs.”
On 9 April 2012, when his OA came up before the AFT the Air Force authorities
had already passed an order rejecting his application. Hence on 11 April 2012
the OA was dismissed as having become infructuous, though with the observation
that the “interim order dated 18 August 2011 will have its force”. The appellant’s
review application was dismissed on 25 May 2012. On 2 June 2012, the
appellant filed writ proceedings6 before the High Court of Punjab and Haryana.
He was protected by an interim order dated 15 June 2012, against being treated
as a deserter. On 22 June 2012 Air Headquarters cancelled the provisional NOC
dated 2 September 2011 and the provisional discharge issued in compliance with
the order of the AFT dated 11 April 2012 noting that an order of reinstatement in
the service of the IAF was issued on 18 June 2012, to take effect from 16 July
2012. The appellant was called upon to join duties at his last unit, Three Base
Repair Depot, failing which it was stated that he would be liable to disciplinary
action.
4 Since the appellant had not received a clean discharge certificate, his
services were terminated by Bank of India on 30 April 2014. Challenging his
termination, the appellant moved writ proceedings7 in which by an order dated 17
September 2014, the termination was stayed. In view of the decision of this Court
6 CWP 11861/2012 7 CWP 19402/2014
in Union of India v Major General Shri Kant Sharma8, the High Court held that
it had no jurisdiction to entertain the writ petition filed by the appellant under
Article 226 and while leaving it open to him to pursue an alternate remedy before
the AFT.
5 The appellant now seeks to challenge the decision of the AFT rendered on
11 April 2012 together with its order dated 25 May 2012 declining to review its
decision. The AFT came to the conclusion that the OA had been rendered
infructuous since in the meantime, in pursuance of the orders of this Court a
speaking order had been passed by the Air Force authorities on 26 March 2012
rejecting the application for an NOC. In the review order, the AFT declined
permission to the appellant to amend the OA.
6 Mr Gopal Sankaranarayanan, learned senior counsel appearing on behalf
of the appellant submitted that:
(i) The appellant has a fundamental right under Article 19(1)(g) to choose his
place of employment. The provisions of Article 19(1)(g) in their application to the
members of the Air Force are not any different from their application to any other
branch of government;
(ii) There was sufficient compliance by the appellant with the provisions
contained in paragraph 17 of AFO 14/2008;
(iii) On the purported non-parity of pay scales:
(a) The Air Force Order dated 23 July 2015 indicates that pay scales for
Assistant Managers in Scale I of public sector banks have been
8 (2015) 2 SCC 519
revised to meet with the equivalence criteria vis-à-vis Group A
government posts and that approval has been accorded to the
procedure for the discharge of Airmen selected for nationalised
banks;
(b) The appointment order dated 15 April 2013 issued to the appellant
indicates a basic pay of Rs 14,500 – 25,700;
(c) Pay scales of banks are revised every four to five years as against
central pay scales which are revised once in ten years; and
(d) Consequently the pay scales in the banking industry are well in
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 Group A post
and was entitled to a waiver of the condition;
(b) The order passed by the Air Force authorities on 22 July 2013 did not
mention criticality of trade as the reason for denying permission;
(c) In Corporal Gaurav Badhwar v Union of India9, the Delhi High Court
has held:
“..assessment of criticality in a trade would ordinarily be within
the domain of the employer, but where it is pleaded that due
to dying nature of the work due to modernization in the
equipment of the employer, some category of employees are
being rendered without work and are being adjusted in other
activities, and for which we highlight the evasive denial by the
respondents to the pleas of Cpl Gaurav Badhwar in para 16
of the writ petition that 25% to 30% Instrument Fitters are
being made to work in the Bar, Canteen and other
establishments where they perform duties wholly unrelated to
their skills of Instrument Fitters, it would be a case requiring it
to be held that the employer has failed to make good the
defence of there being criticality in the trade.”
(iv) As on February 2019, over five years have elapsed since the appellant
commenced employment with the bank. The career advancement policy
9 (2015) SCC Online Del 7275
necessitates a liberal approach. The omission of the appellant to apply through
proper channels was only a procedural irregularity and not an illegality. The
appellant applied for discharge on 17 April 2013, which was followed by a fresh
application on 13 July 2013. The failure to seek prior permission, it has been
urged is an irregularity and does not cause prejudice to the IAF. The equitable
intervention of this Court has been sought for the grant of a ‘clean’ NOC and
discharge certificate which would enable him to continue to serve the bank in
which he is employed.
7 On the other hand, Mr R Balasubramanian, learned senior counsel
appearing on behalf of the Union of India and the Air Force authorities submitted
that:
(i) The appellant has proceeded on a misconceived assumption that though
he is a member of the Air Force, he is entitled to leave employment at his will in
view of the fundamental right guaranteed by Article 19(1)(g). The submission
ignores the specific provisions of Article 33 of the Constitution;
(ii) There is a fallacy in the submission that a person enrolled in the armed
forces of the Union (in this case the IAF) is entitled to leave service at will. A
person who is enrolled is governed by the discipline of the force. Sections 13,14
and 15 of the Air Force Act 1950 would make it abundantly clearly that there is a
statutory obligation to serve during the period of engagement, a breach of which
would invite disciplinary action;
(iii) These statutory provisions are complemented by the Air Force Rules, more
particularly, Rules 7 and 9 which have been framed under the provisions of
Section 189 of the Act;
(iv) Air Force Order 14/2008 which held the field at the material time regulated
the terms on which persons enrolled in the IAF may apply for civilian employment;
and
(v) In interpreting the provisions of law, it would be necessary for this Court to
have regard to :
The need to maintain manning levels;
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.
In this backdrop, it was urged that there is no general or vested right to leave
service during the period of engagement and any application has to be
considered on a case to case basis. Mr Balasubramanian submitted that the
appellant who was enrolled in the IAF breached his statutory obligation and left
service without prior permission, rendering him 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
the rights conferred by this Part shall, in their application to,—
(a) the members of the Armed Forces; or (b) the members of
the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation
established by the State for purposes of intelligence or
counter intelligence; or (d) person employed in, or in
connection with, the telecommunication systems set up for
the purposes of any Force, bureau or organisation referred to
in clauses (a) to (c), be restricted or abrogated so as to
ensure the proper discharge of their duties and the
maintenance of discipline among them.”
The Air Force Act 1950 has been enacted by Parliament legislating under Articles
245(1) and 246(1) of the Constitution. The specific legislative entry in the VIIth
Schedule is Entry 2 of the Union list which reads thus:
“Naval, military and Air Forces; any other armed forces of the
Union.”
The Air Force Act 1950 imposes restrictions on the fundamental rights of the
members of the IAF with a view to ensure ‘proper discharge of duties and the
maintenance of discipline among them’. Section 13 stipulates the procedure
which is to be followed before the enrolling officer, where any person desires to
be enrolled. Section 13 provides as follows:
“13. Procedure before enrolling officer.—Upon the
appearance before the prescribed enrolling officer of any
person desirous of being enrolled, the enrolling officer shall
read and explain to him, or cause to be read and explained to
him, in his presence, the conditions of the service for which
he is to be enrolled; and shall put to him the questions set
forth in the prescribed form of enrolment, and shall, after
having cautioned him that if he makes a false answer to any
such question he will be liable to punishment under this Act,
record or cause to be recorded his answer to each such
question.”
Section 14 provides for the mode of enrolment:
“14. Mode of enrolment.—If, after complying with the
provisions of section 13, the enrolling officer is satisfied that
the person desirous of being enrolled fully understands the
questions put to him and consents to the conditions of
service, and if such officer perceives no impediment, he shall
sign and shall also cause such person to sign the enrolment
paper, and such person shall thereupon be deemed to be
enrolled.”
Section 15 deals with the validity of enrolment:
“15. Validity of enrolment.—Every person who has for the
space of three months been in receipt of pay as a person
enrolled under this Act and been borne on the rolls of any unit
shall be deemed to have been duly enrolled, and shall not be
entitled to claim his discharge on the ground of any
irregularity or illegality in his enrolment or on any other ground
whatsoever; and if any person, in receipt of such pay and
borne on the rolls as aforesaid, claims his discharge before
the expiry of three months from his enrolment, no such
irregularity or illegality or other ground shall, until he is
discharged in pursuance of his claim, affect his position as an
enrolled person under this Act or invalidate any proceedings,
act or thing taken or done prior to his discharge.”
Before enrolment, the enrolling officer has to make the person who desires to be
enrolled cognizant of the conditions of service. Section 14 mandates that before
signing on the enrolment, the individual has to consent to the conditions of his
service. A person who has for a period of three months been in receipt of pay as a
person enrolled under the Act and has been borne on the rolls of any unit is
deemed to have been duly enrolled. On being attested under Section 1610, the
individual subscribes to an oath or affirmation to bear allegiance to the
Constitution, to serve in the Air Force and to obey all commands of an officer set
over him, even to the peril of his life11. Tenure in the Air Force is subject to the
10 16. 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 to this 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 for duty, or has completed the prescribed period of probation, an oath or affirmation shall be administered to him in the prescribed form by his commanding officer in front of his unit 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 promise that the person
pleasure of the President12. A person subject to the Air Force Act 1950 may be
retired, released or discharged from service “by such authority and in such
manner as may be prescribed”.13
10 Section 189 empowers the Central government to make rules for the
purpose of carrying into effect the provisions of the Act. Rule 7 provides thus:
“7 Enrolling officers and form of enrolment.—
(1) The following officers shall be enrolment officers for the
purposes 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 is
prescribed 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
in one of the following form or in such other forms to the same
purport as the attesting officer ascertains to be in accordance
with the religion of the person to be attested or otherwise
binding on his conscience. Form of Oath I ..................do
swear in the name of God that I will bear true faith and
allegiance to the Constitution of India as by law established
and that I will as in duty bound honestly and faithfully serve in
the Air Force of the Union of India, and go wherever ordered
by air, land or sea, and that I will observe and obey all
commands of the President of the Union of India and the
to be attested will bear true allegiance to the Constitution of India as by law established, and that he will serve in the Air Force and go wherever he is ordered by land, sea or air, and that he will obey all commands of any officer set over him, even to the peril of his life. (3) The fact of an enrolled person having taken the oath or affirmation directed by this section to be taken shall be entered on his enrolment paper and authenticated by the signature of the officer administering the oath or affirmation.
12 18. Tenure of service under the Act.—Every person subject to this Act shall hold office during the pleasure of the President.
13 22. 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 be prescribed.
commands of any officer set over me even to the peril of my
life. Form of Affirmation I ..................do solemnly affirm that I
will bear true faith and allegiance to the Constitution of India
as by law established and that I will as in duty bound,
honestly and faithfully serve in the Air Force of the Union of
India and go wherever ordered by air, land or sea, and that I
will observe and obey all commands of the President of the
Union of India and the commands of any officer set over me
even to the peril of my life.
(2) The oath or affirmation prescribed in this rule shall,
whenever practicable be administered by the commanding
officer of the person to be attested or in the presence of such
commanding officer by a person empowered by him to
administer it in the manner described in section 17. If it is not
so administered, it may be administered by a magistrate, a
recruiting officer or an assistant recruiting officer.”
Rule 13 stipulates that:
“13 Release.—A person subject to the Act may be released
from the Air Force in accordance with these rules, or in
accordance with any orders or instructions made in that
behalf by or under the authority of the Central Government.”
11 The statutory form of enrolment as a combatant is in Form AI of the First
Schedule. Part II of Form AI incorporates an obligation to serve 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 a stipulated period of twenty years. Rule 14
provides for the authorities who are empowered to authorise a discharge. There
is a table which deals with persons enrolled under the Act who have, as the case
may be, 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 below shall be the authority competent
in respect of persons subject to the Act specified in column 1 thereof for the causes
specified in column 2 and in the manner specified in column 4, to discharge such
persons from the service.
(2) Any power conferred by this rule on any of the aforesaid authorities may also be
exercised by any other authority superior to it.
Class Cause of Competent Special
discharge authority to instructions
authorize Persons (a) At his own Commanding To be carried enrolled request on Officer out in under the Act transfer to accordance who have the pension with the attested. establishment conditions of
enrolment
(b) On Commanding To be carried
fulfilling the Officer out in
conditions of accordance
his enrolment with the
conditions of
enrolment
(c) Having Commanding To be carried
been found Officer out only on
medically the
unfit for recommendati
further ons of an
service. Invaliding
Board
(d) On ……
transfer to
the pension
establishment
or on
with gratuity
otherwise
than at his
own request
or under item
(c).
(e) Having Air Officer I/c An Airman
been found Administratio reported as
inefficient in n inefficient will,
his rank or as far as
trade and vacancies
being allow be
unwilling to permitted to
accept remuster and /
reduction or or accept
remustering reduction in
any rank and
trade for
which he is
reported as
suitable. If no
such vacancy
exists or if he
declines to
accept such
remustering or
reduction he
will be
discharged
under this
item
(f) At his own Director of ……..
request Personnel
before (Airmen)
fulfilling the
conditions of
his enrolment
(g) His
services no
longer
required :-
(i) Due to Director of ……..
reduction in Personnel
establishment (Airmen)
or to
reorganizatio
(ii) Unsuitable Air Officer I/c ………
for retention Administratio
in the Air n
Force
(h) All other Do
classes of Persons (i) At his own (i) Air or other The enrolled request officer i/c of competent under the Act before Command authority who have not fulfilling the mentioned in been attested conditions of the preceding
the enrolment column will
exercise this
power only
when he 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
(ii)Director or
Personnel
(Airmen) in
case of units
directly under
Air Head-
quarters
(j) Unlikely to Commanding Applicable to
make in Officer airmen under
efficient going training
Airman for airmen
(k) All other Commanding
classes of Officer
12 Now it is in this background that it would be necessary to advert 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 service
from the date of enrolment, are permitted to apply for civil
posts under Central/State Government and public Sector
Undertaking including Para-Military Forces. Non-Govt.
Organization (NGOs) Trusts, even if funded by the Govt. shall
not be covered in the permission category of civil posts. The
categories of posts, corresponding length of service and
eligibility are to be determined as given below:
Category Length of Permissible
Service Categories of Civil
posts
(a) I 7 Yrs (A) Group ‘A’ or
equivalent posts
(maximum of the pay
scale not less than Rs
13,500, as revised
from time to time.
Clause 1 stipulates a requirement of the completion of seven years service to
apply for civilian employment. It also defines the permissible categories of civilian
posts for which armed forces personnel may apply.
Clause 2 stipulates that:
“All applications for above categories of posts will be directly
forwarded to the prospective employers by the units after
verifying the 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 the applicants of category 1A and III
above, in whose case the applications will be forwarded
despite criticality in their trades. The criticality of trades will
be updated by Air HQ twice a year, in June and December
and would be intimated to the Stns./Unit through their
respective Command HQs. Unit directly under Air HQ would
be intimated the criticality of the trades by Air HQ. Airman who
are on deputation to ARC are also eligible to apply for civil
posts as per Para 1 above and their applications to be
processed through PHS C/O AFCAO, where unit copy of
service documents of ARC deputationists are held.
Forwarding of applications shall not be construed as
acceptance to grant NOC, which shall be issued as per the
procedure laid down in subsequent paras of this AFO.”
Under clause 2, the units will verify the criticality of manpower before forwarding
the applications.
Clause 5 lays down guidelines which must be followed where online applications
have been invited by government departments or, as the case may be, by public
sector undertakings. Here again, the individual has to seek permission from the
station/unit commanders before applying on-line. Clause 5 is in the following
terms:
“Forwarding of On-line Applications. Several prospective
employers in Govt Departments/PSUs invite applications for
civil employment through their web sites on the internet.
Station/Unit Commanders are to ensure that the applicant
meets the eligibility conditions enumerated in preceding
Paras 1-3. The following guidelines are to be followed for ‘on-
line’ registration of applications for civil posts :-
(a) Individual to seek permission from his respective
Station/Unit Commanders to apply for any civil post ‘on-line’
alongwith duly filled application and advertisement
downloaded from the website.
(b) An undertaking is to be furnished by the individual, stating
that information furnished by him to the Stn/Unit authorities
will be submitted to the employer ‘on-line’ and no classified
information will be communicated.
(c) Before granting permission, the unit administration is to
examine the contents of the application keeping security
consideration in mind.”
Under clause 6, NOCs (other than those under Category III) will be issued by Air
HQs on a case to case basis subject to the exigencies of 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 III
will be issued two ears before completion of their engagement
by their respective AOC/Stn Cdr/CO as per the format placed
at Appendix ‘E’ while all other NOCs will be issued by Air
HQs (Dte of PA) on case to case basis, subject to the
exigencies of service and with the overriding condition
being the overall cadre requirement in a particular
rank/trade as per format given at Appendix ‘C’.”
(Emphasis supplied)
Clause 7 provides:
“Application for NOC is to be submitted by the individual after
receiving call letter for the interview/verification of documents
or after the result of written test where selection is based on
success in written test only. However, in all cases NOC is to
be obtained by the individual invariably before submitting
application for discharge on being selected for the civil post.”
Finally, clause 13 stipulates that:
“Permission to apply for civil post is a privilege and hence
issuance of NOC can not be claimed as a matter of right. No
provisional or conditional NOC is to be issued by the
Stations/Units.”
13 AFO 14/2008 held the field at the material time and governs the facts of the
present case. Under the terms of the AFO, a requirement of completing seven
years of service from the date of enrolment has been mandated for permission to
be granted to apply for a civil post under the Central or state governments or
public sector undertakings, including paramilitary forces. AFO 14/2008 stipulates
that a Category I individual with a length of service of seven years may apply for
civilian employment in a Group A or equivalent post carrying the stipulated pay
scale as revised from time to time. Applications have to be forwarded to the
prospective employer by the units, after verification of eligibility including the
criticality of manpower. Where the Airman belongs to a critical trade, the
application shall be rejected at the unit level. Where online applications have
been invited the station or, as the case may be, unit commanders are required to
ensure fulfilment of the conditions of eligibility specified in paragraph 1 to 3.
Permission is required from the station/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 on a case to case basis having regard to the exigencies of
service.
14 In the present case, the appellant in breach of the provisions contained in
AFO 14/2008 applied for the post of a Probationary Officer with the Bank of India,
participated in the written test and appeared at the interview without intimation or
approval. There was, therefore, a failure of the appellant to comply with his
obligations both in terms of his engagement as an enrolled member of the force
and in relation to the requirements which were to be fulfilled under the terms of
AFO 14/2008.
15 We are unable to accept the submission of Mr Sankaranarayanan that the
appellant had an unqualified right under Article 19(1)(g) of the Constitution to
leave the service of the Air Force. The provisions of the Air Force Act, those
contained in the rules and the terms of engagement of the appellant belie such an
assertion. AFO 14/2008 emphasises aspects such as the criticality of the trade
and the exigencies of service. They need to be verified and assessed before
permission is granted. A person who has been enrolled as a member of the Air
Force does not have an unqualified right to depart from service at his or her will
during the term of engagement. Such a construction, as urged on behalf of the
appellant, will seriously impinge upon manning levels and operational
preparedness of the armed forces. With the rapid advancement of technology,
particularly in its application to military operations, there has been a
reconfiguration of the human and technological requirements of a fighting force.
The interests of the service are of paramount importance. A balance has been
sought to be drawn between the interests of the service with situations involving
requests by persons enrolled to take civilian employment. This balance is
reflected in 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 or
defiance of those orders.
16 In the present case, we are now left with the alternative submission
invoking the equitable jurisdiction of this Court under Article 142 of the
Constitution. The appellant moved the AFT after submitting the application 30
May 2011. He had an interim order of the AFT dated 18 August 2011 in his
favour for provisional discharge and for an NOC. This was implemented on 20
September 2011, following which the appellant was struck off the strength of the
IAF with effect from 21 September 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 the Union of India, but this Court by an order dated 12 March 2012, directed
the Air Force authorities to dispose of the application submitted by the appellant
on 30 May 2011. After the application was rejected, an interim order enured to the
benefit of the appellant. In this backdrop nearly eight years have elapsed since
the appellant left service. No purpose will be served in directing the reinduction of
the appellant into the IAF save and except to subject him to disciplinary action.
Having regard to the facts and circumstances which we have noted above, we
are of the view that the ends of justice would be met by directing that a final NOC
and discharge be issued to the appellant no later than within a period of three
months of the receipt of a copy of this order. At the same time, we are of the view
that this should not be an unconditional direction. We accordingly issue an order
in the above terms, subject to the appellant depositing with the Union of India a
sum quantified at Rs 3 lakhs within two months of the receipt of a copy of this
judgment. A final NOC and discharge certificate shall be issued only after the
above amount is deposited and within one month thereafter. The civil appeals are
disposed of in the above terms. There shall be no order as to costs.
Civil 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 no order as to
costs.
[Dr Dhananjaya Y Chandrachud]
[Hemant Gupta]
New Delhi; July 03, 2019