Delhi High Court

Sgt. Deepak Kumar vs Union Of India & Ors. on 17 July, 2009

Author: S.L.Bhayana

              HIGH COURT OF DELHI AT NEW DELHI

                         W.P(C) 9035 of 2008

                         Judgment reserved on: 04.03.09

                         Judgment delivered on: 17.07.09



Sgt. Deepak Kumar                                       ......Petitioner

                         Through:    Mr. Narender Kaushik, Adv. and
                         Mr. Pankaj Kaushik, Adv.

                         Versus

Union of India & others                             ...... Respondents

                         Through: Mr. Vikas Chopra with Wg. Cdr
                         Ajit Kakkar and Sgt. P.K. Sattapathy.

CORAM:
HON'BLE MR. JUSTICE B.N. CHATURVEDI
HON'BLE MR. JUSTICE S.L. BHAYANA


1.     Whether reporters of local paper may be allowed to see
       the judgment?                                 Yes
2.     To be referred to the reporter or not?        Yes
3.     Whether the judgment should be referred in the Digest? Yes


S. L. BHAYANA, J.

The present petition has been filed by the petitioner under

Article 226 of the Constitution of India. The petitioner has

approached this court for the following reliefs:-

1. Issue a writ in the nature of certiorari quashing the order of

the Respondents declining grant of NOC to the Petitioner for

the post of driver in the DTC dated 27th Aug 2008, and

against the rejection order dated 10th Nov 2008.

2. Issue a writ in the nature of mandamus directing the

respondents to discharge the petitioner from service with

immediate effect with due terminal benefits as per law;

3. Pass any other appropriate writ, order or direction as deem

just and proper in the circumstances of the case.

2. The prefatory facts building up the factual edifice would be

essential. The petitioner is serving as an Airman in the Air Force. He

was enrolled as an Airman in the trade of MTD (Driver) on 13th

October 1992 and was subsequently promoted to the rank of

Corporal in 1997 and thereafter Sergeant in May 2006. The

petitioner has been an outstanding sportsman throughout and has

won several medals and appreciations during his employment.

3. The respondent on 1st June 2007 issued AFO 4 of 2007 which

granted the permission to airman who had rendered seven years of

service to appear and join civil services of all categories. In January

2008, the petitioner applied for the post of Driver in the DTC. The

petitioner cleared the required written test and skill test conducted

by the Delhi Subordinate Services Selection Board (hereinafter to

be referred as DSSSB). Thereafter, in view of the positive result, the

petitioner applied for NOC which was forwarded by his superior

authorities to the Competent Authority in the Air Force for giving

NOC. However, vide order dated 27th August 2008 the Competent

Authority rejected his application for the NOC. Again the petitioner

applied for reconsideration of NOC to the competent authorities by

letter dated 6th October 2008, which was again rejected vide letter

dated 10th November 2008. The petitioner also requested the

appropriate authority for screening of posting till March 2010 on

extreme compassionate grounds. The petitioner was offered

appointment as driver by DTC and had been directed by the DTC to

appear for medical test on 26th December 2008. By interim order

dated 19th Dec 2008 this court directed the respondents to permit

the petitioner to undergo medical test. In the meantime, the

petitioner has been transferred and Respondent No. 3 issued

posting order RDD/191 dated 9/01/2009 directing the petitioner to

report the Air Force station at Tanjapur on 16th March 2009.

4. Under what circumstances NOC can be granted or rejected

can be appreciated better by going through the relevant Rules on

the issue. Thus we proceed to take note of the extant Rules:

(A) On 1st June 2007, Indian Air force came up with an order

AFO 04/2007(AnnexxureP-1), As per aforementioned order

Airmen who have completed seven years of their engagement

including training period, are permitted to apply for civil posts

under Central Govt. / State Govt. in Group A or B (gazette) and

equivalent posts in the PSUs including the paramilitary forces.

However such a restriction is not applicable to those airmen

and NCs (E) who have completed fifteen years of services.

They are permitted to apply for civil posts under Central Govt.

/ State Govt. / PSUs including paramilitary forces, irrespective

of groups and pay scales of civil posts.

(B) As per Section 9 of the AFO 4/2007 NOC will be issued by

the Air Headquarters (DTE of PA) in respect of Airmen on

"case to case" basis, subject to exigencies of service and with

the overriding condition being the overall cadre requirements

in a particular rank/trade. Further, it says that issuance of NOC

cannot be claimed as a matter of right within the engagement

period of 20 years.

(C) Para 11 of the AFP 4/2007 makes it clear that an airman

selected for the civil post and whose application for NOC has

been processed through proper channel are to accept the

appointment only after discharge is approved by the

competent authority at Air headquarters/ Command

Headquarters as applicable.

5. The submissions made by the learned counsel for the

petitioner can be summarized as following:

(i). The denial of discharge is illegal and unconstitutional

when the petitioner has applied for the Driver post through

proper channel as per AFO 04/2007 dated 1st June 2007.

(ii). Denial to petitioner amounts to discrimination and is hit

by Article 16 of the constitution of India in as much as other

similarly placed and identically situated Airmen were given

NOC or discharge, hence rejection order should be quashed.

iii. The petitioner's application was forwarded as per AFO

4/2007 issued by the Chief of Air Staff after he applied for the

same for joining as driver in DTC. The denial of discharge

amounts to promissory estoppel against the respondents

iv. Denial without speaking order or reason in vague

manner after first clearance is violation of Article 14 of the

Constitution of India.

v. The AFO was made with a view to provide rehabilitation

and resettlement for the airmen to meet their hardships. The

family of petitioner along with old parents needs services of

petitioner at home as there is no one to look after them.

vi. The petitioner has completed 16 ½ years of service

meaning thereby left with only 3 ½ years of service inclusive

of 4 months of leave encashment in addition to pre release

training if allowed to the petitioner. In all, the petitioner is

hardly left with 2 ½ years of actual service which also

includes two months of annual leave each year.

vii. The petitioner i.e. the airmen are always permitted to

apply and get discharged on compassionate grounds of

looking after old ailing parents who are dependent on them

or to meet the matrimonial disputes if any or to manage the

high value property or to change the service for prosperity in

the inter-se services.

6. The respondents have refuted all the aforesaid submissions

of the petitioner. It is submitted by the respondents that the

petitioner was enrolled in the Air Force for a period of 20 years. The

petitioner had applied for the civil post in January 2008 which was

forwarded to the secretary DSSSB, Delhi by his unit vide letter

No.54 ASP/1321/P3. The application was considered at appropriate

level at the Air Force headquarter and was not approved on the

ground of service exigency as per para 9 of the AFO 4/2007. It is

clearly stipulated in para 9 of the said AFO that NOC is to be issued

on case to case basis with the overriding condition being the

overall cadre requirement in a particular rank/trade. The rationale

behind laying down such condition was criticality in some trades

and ranks. Thus, it was decided in July 2007 that NOC were only to

be issued to overcome the criticality in the services/ rank and

shortage of manpower in air Force. In the said view of criticality, a

new AFO 14/2008 was issued on 19th September 2008. As per para

2 of the said AFO all the applications for civil post are to be

forwarded to the prospective employer by the unit after verifying

the eligibility including criticality of manpower application of

Airman belonging to critical trade ought to be rejected at the unit

level only. The Air HQ updates the criticality of trade twice a year,

in June and December and is intimated to the units through

command HQs. The petitioner's application for reconsideration for

issue of NOC was rejected on the ground of service exigency. The

respondents have also maintained that with the promulgation of

AFO 14/2008, AFO 4/2007 has ceased to exist. And thus,

petitioner's application for reconsideration of NOC was considered

under AFO14/2008. The respondents have contended that mere

forwarding of application does not accrue the right of issuance of

NOC and also that the petitioner was well aware at the time of

applying for the civil post that despite forwarding of his application

by his unit, NOC can still be denied by the Air Headquarter as

service exigencies keep changing from time to time. The criticality

of the trade is updated by the AIR HQ twice a year i.e. in the month

of June and December. There is considerable gap between initial

forwarding of the application to civil employer somewhere in

Janauary and consideration of issue by through Air Headquarter.

Thus the service exigency cannot be anticipated at the stage of

initial consideration. The respondent has contended that petitioner

has willfully ignored para 9 of the AFO 4/2007 and dwells upon at

length other provisions which are relevant for initial forwarding of

the application and not for grant of NOC and thus has been trying

to misrepresent the policy.

7. As per respondents appraisal to this court NOCs are issued as

a welfare measure with the objective of career enhancement of the

Airmen's settlement subsequent to expiry of engagement period. In

the petitioner's case there was no such enhancement in

career/status of Airmen as the civil post in question is a non-

gazetted post.

8. The petitioner's application for screening of posting was not

approved after due consideration at Air Force record office as one

year beyond the normal posting tenure would result in over stay in

metro and the grounds forwarded by the petitioner were held to be

common in nature. As per the tenure policy, tenure at metro cities

is 4-5 years. The petitioner has been posted to Gurgaon from 22nd

March 2004 and is completing his 5 years of stay in Gurgaon and

thus he has been posted according to the policy to Tanjapur.

9. The respondents also rejected the petitioner's application for

discharge from service on compassionate ground which was not

approved due to constraints in his trade.

10. The question for determination is whether the petitioner is

entitled to be discharged from Air Force or not and whether the

grounds for rejection of petitioner's application for NOC are

discriminatory and arbitrary.

11. To support his case learned counsel of the petitioner has

relied upon the decision in the case of Pradeep Kumar Vs Union of

India and Another, (W.P.(C) No.8760/2008), decided on

16.12.2008. The facts and circumstances of that case are however,

different from the present petition. In the referred case, the

petitioner's claim was for an officer level post which was career

advancement for the petitioner. Apart from that, the respondent's

reasons for rejection of petitioner's application for discharge was

held to be "a motivated subsequent thought process...to prevent

petitioner from seeking an exit and an attempt to cover the

mistakes of the concerned officers" by Court. For this reason, the

court had given relief to the petitioner even though the petitioner

had not completed the mandatory 7 year period of service. Thus,

we do not find any support from that case.

12. Another case on which the petitioner had relied upon is that

of Sgt Narender Yadav vs Union of India and Others, W.P.(C)

10147/2006, decided on 06.09.2006. We uphold the contention of

the respondents that in that case, the petitioner had claimed relief

under AFO 5/2003 and also that there was delay in issuing NOC due

to some ambiguity regarding the criteria for processing of

application which were not known to the petitioner.

13. We have observed that the respondents have duly followed

the procedure for forwarding the application of petitioner for NOC

to the Air Force Headquarter as well as the Secretary, DSSSB. We

uphold the contention of the respondents that mere permission to

apply for a civil post does not automatically give the petitioner a

right to get NOC as well. The policy is clear on this point that the

NOC has to be obtained from the Air Force Headquarter upon being

forwarded through proper channel. Para 9 of AFO 4/2007 as well as

para 6 of the AFO 14/2008 in clear words declare that NOC is to be

issued on case to case basis with the overriding condition being the

overall cadre requirement in a particular rank/trade.

14. It is appropriate to take note of para 9 of the AFO 4/2007

which indicates that issuance of such a NOC is not a right conferred

upon the airmen within the engagement of 20 years and the

petitioner is well covered under the engagement period. The

respondents are well within their right to examine each request on

case to case basis keeping in view the service exigencies. At the

time of enrolling with the Indian Air Force, petitioner had given an

undertaking and agreed to serve the Air Force for a period of 20

years. Normally they are required to complete their tenure of 20

years with the Air Force. If at the time of consideration of

petitioner's application for NOC it was found that the trade to which

petitioner belongs (MTD Driver) is critical and there is a shortage of

drivers in this trade. The respondents have the right to reject the

application. Thus, the argument of the petitioner that the order is

arbitrary or discriminatory fails. The respondents have denied the

NOC in terms of para 9 of the AFO 4/2007, which the petitioner has

already acknowledged to know by submitting an undertaking to

that effect. Thus, it cannot be said to be a non-speaking order.

15. The respondents have relied on a case of Sgt. Sachin Kumar

Pravin Vs. Union of India, (WP(C) No.6272/2007), decided on

14.03.2008. In the given case, this court has observed that "In

exercise of our judicial review, we are concerned with the decision

making process and not the merit of the decision unless it is shown

that the decision of the respondents are irrational or there is

procedural impropriety or it is perverse or contrary to some law,

the court cannot interfere with such a decision."

16. In Sgt. Sachin Kumar Pravin's case (supra), this court came

out with the following twin propositions:

"(a) The officer is expected to serve for the period of engagement or reengagement as the case may be and such a measure is required in general interest of the country.

(b) It is necessary to maintain the strength of the force which is determined after careful planning and studying and in such cases the officer has no discretion in matter of release from the force."

17. Apart from the above reasons, in the application for

reconsideration of NOC, the petitioner himself has stated that he is

well aware that nature of task, salary and status with the new

employer (DTC) is in no way better than the Air Force organization.

Thus, objective of the policy of applying for civil posts in certain

cases, which is a welfare measure with objective of career

enhancement, is defeated.

18. The scope of judicial review of administrative decisions is

very limited. The court cannot ordinarily sit in appeal over the

decision of the administrative authorities but can only look into the

manner of reaching the said decision. In the present case we

cannot question the decision taken by the competent authority