Service Law:
Right to depart from service – Of person enrolled as a member of Air Force – Held: A person who has been enrolled as a member of Air Force does not have an unqualified right u/Art. 19(1)(g) of the Constitution to depart from service at his/her own will during the term of engagement – The interest of service are of paramount importance – A balance needs to be drawn between the interest of service and requests of enrolled persons to take civilian employment – Such balance is reflected in Air Force Orders – In the present case there was failure on part of the appellant to comply with his obligations in terms of his engagement as an enrolled member of the force and also in relation to the requirements which were to be fulfilled under the terms of Air Force Order viz. AFO 14/2008 – However, in the facts of the case no purpose will be served in directing reinstatement of the appellant – Interest of justice would be met by directing issue of NOC and discharge order subject to the appellant 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 Air force, applied for and appeared in written test and interview for appointment to a civil post in a Bank. This was done without completing the mandatory period of service of seven years and without obtaining prior permission from the competent authorities. Thereafter he applied for an NOC from competent authorities of the Air Force. In the meantime he received order of appointment from the Bank. The appellant, then moved Air Force Tribunal seeking direction for grant of NOC and for discharge from Air Force to join the civil post. The Tribunal by interim order directed to authorities to issue provisional NOC and to discharge the appellant. Appellant joined the Bank after receiving provisional NOC and provisional discharge order. Subsequently the application seeking grant of NOC was dismissed by the authorities. Ultimately the application filed before the Tribunal was also dismissed as infructuous. The authorities further also cancelled the provisional NOC and provisional discharge. Consequently in absence of NOC and discharge, the services of the appellant in the Bank were terminated. Hence the present appeals challenging the orders of the Tribunal. Disposing of the appeals, the Court
HELD: 1. The Air Force Act 1950 imposes restrictions on the fundamental rights of the members of the Indian Air Force with a view to ensure ‘proper discharge of duties and the maintenance of discipline among them’. [Para 9] [895-B-C]
2. 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. [Para 13] [902-F-H; 903-A-B]
3. 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. [Para 14] [903-C-D]
4. It cannot be said 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. [Para 15] [903-D-H]
5. The appellant moved the Air Force Tribunal after submitting the application on 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 Tribunal 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, 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, subject to the appellant depositing with the Union of India a sum quantified at Rs. 3 lakhs. [Para 16] [904-A-F] Union of India v Major General Shri Kant Sharma (2015) 2 SCC 519 ; Corporal Gaurav Badhwar v. Union of India (2015) SCC Online Del
7275 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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