Delhi High Court
Charan Singh Bhanvariya vs Uoi And Ors on 28 July, 2010
Author: Gita Mittal
17
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.3257/2010
Date of Decision : 28th July, 2010
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CHARAN SINGH BHANVARIYA ..... Petitioner
Through : Mr. Arvind Nayar, Adv.
versus
UOI AND ORS ..... Respondents
Through : Ms. Barkha Babbar, Adv.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
GITA MITTAL, J. (Oral)
1. The petitioner has assailed the refusal of the respondents
to grant the requisite "No Objection Certificate" to him to
enable him to accept and comply with the formalities towards
his appointment to the post of Assistant Commandant in the
CRPF respondent No.5 before us.
2. The petitioner was appointed as Aircraftsman (AC) with
the Indian Air Force in the trade of IAF(S) on 16th December,
2002 and is stated to have signed for 20 years initial
engagement with the Indian Air Force. Upon remustering to
Environment Safety Support Assistant (ESSA hereafter) trade
with effect from 12th July, 2006, the petitioner was posted with
the 23rd Wing of the Air Force.
3. At this stage, the petitioner is stated to have made an
application dated 2nd September, 2009 seeking immediate
discharge from his service on compassionate grounds. This
application was considered and rejected on 28th April, 2010 by
the competent authority who found the same without merit.
4. Mr. Arvind Nayar, learned counsel for the respondents has
pointed out that the Indian Air Force has issued certain
guidelines and instructions titled as "Giving Instructions for
Airmen Trainee (Ab- Initio)" para 8 whereof reads as follows:-
"8. During your training, stress will be
given to English language and by the time
you pass out you will be well versed with
written and spoken English. If you have the
requisites qualification, you can apply for the
class-I Government Job. After training, you
may join any correspondence/part time
course and obtain batter qualification. Well-
equipped library facilities exist at all the Air
Force Stations. Eligible candidates are given
guidance for commissioning (Pilot) in the Air
Force. Selected candidates from the
Institute/AF Station will not be required to
appear in UPSE written examination held for
the same. However, they will have to appear
for $58. Interview for final selection between
the age of 37-42 years, an airman of the
rank of Sgt or above can apply for Branch
Commissioning, Honorary commission is
given one year before their retirement to
these airmen who have done very well in
their career."
5. The submission is that, it is evident that the respondents
themselves anticipated the normal desire of any person for a
career progression and progress. On 9th May, 2003,
respondents have issued Air Force order being AFO 05/2003
which is captioned as "Permission to Airmen/NCs(E) to Apply
for Civil post/services under Central/State Governments/public
sector undertakings". The instructions thereunder states that
Airmen/NCs(E) who have completed seven years of their
engagement including the training period would be permitted
to apply for Civil post/services under Central/State
Governments and public sector undertakings.
6. This office order also provides the procedure which was to
be followed in making such applications. This office order was
followed by another order being AFO 14/2008 issued on 19th
September, 2008. This has also enabled such personnel who
had completed seven years of service from the date of
enrollment to apply for Civil post under the Central/State
Governments/public sector undertakings. However, it is
noteworthy that the office orders specifically indicated para
military forces as being included under the Central/State
Governments and public sector undertakings to which the said
Airman could apply for appointment. Categorization of posts,
corresponding to length of service as well as eligibility of the
Airman to so apply was also restricted under this office order.
The office order also makes a reference to the authority of the
Air Force to consider the application from the aspect of
criticality of manpower where the Airman was engaged.
7. The petitioner places reliance on the exception provided
in Clause 2 of this office order which specifically prescribed that
the condition of criticality would not be applicable to the
applicants of category 1A and III in whose cases the
applications would be forwarded despite criticality in their
trades. We may note that category 1A provides that Group A
was equivalent posts which carry a maximum of pay scale not
less than Rs.13,500/-, as revised from time to time would fall in
the permissible category of the Civil Posts to which an Airman
having seven years of service with the Indian Air Force would
be eligible to apply.
8. We may at this stage also refer to the amended Air Force
order being AFO 16/2008 dated 19th September, 2008 which
further provides a list of compassionate and other grounds for
discharge from service by an Airman which has also been
placed before us.
On 1st July, 2007, the petitioner was also promoted to the
post of Corporal in the Indian Air Force.
9. The petitioner is stated to have applied for taking the
examination conducted by the Central Police Organization for
the post of Assistant Commandant (Central Para Military
Forces) Examination, 2007. He is stated to have successfully
undertaken the said examination.
10. Pursuant to the examination taken by the petitioner in
June, 2007, the petitioner submitted an application on 2nd
September, 2009 seeking discharge from service with the
Indian Air Force on extreme compassionate grounds. This
application was rejected by the respondents on the ground of
"manning constraints in the trades". In the meantime, Central
Reserve Police Force -respondent No.5 informed the Indian Air
Force of the selection of the petitioner by communication dated
8th October, 2009. The respondent No.5 addressed further
letters dated 8th December, 2008, 17th June, 2009 and 31st July,
2009 to the Air Force Authorities requesting verification roll of
character and antecedents along with police verification report
verified during the year 2003. The Air Force was also
requested to intimate whether the petitioner was free from
vigilance angle and no departmental/criminal proceedings are
pending/ contemplated against him. This rejection was followed
with a notice to show cause dated 28th October, 2009 issued to
the petitioner informing him that in terms of AFO 05/2003
revised vide AFO 04/2007 and AFO 14/2008, the Airmen who
have completed seven years of service from the date of their
enrollment are permitted to apply for civil posts under
Central/State Governments and public sector undertaking
including Para-Military Forces and are required to forward their
application through their parent unit to prospective employer
after verifying the eligibility criteria. The respondents called
upon the petitioner to show cause as to why action should not
be taken against him for violating the provisions of the said
AFO read in conjunction with Para 561 (d) and 596 of the
Regulation for the Air Force 1964 (Revised) Edition.
11. In response to a letter of the Air Force dated 24 th
November, 2009, the CRPF had informed that the
undertaking/no objection certificate from the employer which
was required by it in terms of Rule 11 of the Rules for
Recruitment of AC(GD) through CPF(AC) Examination-2007
which was conducted by UPSC and notified on 5 th May, 2007
was not available in respect of the petitioner in its records.
12. We may note that despite these objections and the
information from the Air Force, the respondent No.5 has given
a no objection to the candidature of the petitioner. It has issued
an offer of appointment to the post of Assistant Commandant
(Company Commander/Quarter Master) by a letter dated 2nd
April, 2010 calling upon the petitioner to join the said post by
15th May, 2010. The petitioner has been required to furnish a
discharge certificate under the prescribed format from its
employer at the time of his joining.
13. Upon receipt of this offer of appointment, the petitioner
made a request dated 21st April, 2010 to his Station
Commander requesting the Air Force for no objection
certificate to enable him to join before the date intimated by
the CRPF. We may note that on the date of this communication
the petitioner had completed seven years, four months and five
days of service with effect from his date of appointment. It has
therefore been contended that the petitioner had requisite
service which entitles him to issuance of no objection
certificate.
14. The petitioner submitted a reply on 4th November, 2009
contending that the Air Force orders relied upon by the
respondents were not known to him and that they were not
even part of the training which had been advanced to the
petitioner. So far as overlooking the aspect of compliance of
the said office orders is concerned, the petitioner had set up a
plea of complete ignorance. It was again submitted that even
in the application which he had made to the UPSC, the
petitioner had set out complete details about his employer and
service manifesting the petitioner's honesty.
15. On consideration of reply submitted by the petitioner to
the notice to show cause, the respondents were of the view
that blame attached to the petitioner and that he had violated
the provisions of AFO 05/2003 as revised by the AFO 04/2007
and AFO 14/2008 as well as the aforenoticed regulations.
Consequently the respondents had issued a warning dated 8th
January, 2010 to the petitioner to be more careful while
applying for civil posts under Central/State Government and
Public Sector Undertakings including Para-Military Forces.
16. It is petitioner's contention before the Indian Air Force as
well as in the present proceedings that having issued a
warning, respondents cannot punish him more than once for
the same offence and deprive him of the no objection
certificate to enable him to join service with the respondent
No.5.
17. Aggrieved by the failure of the respondents to take
action on his request for no objection certificate, the petitioner
sought information under the Right to Information Act, 2005
with regard to any pending disciplinary/administrative action
against him. The respondent's response dated 16th March,
2010 has been placed on record which manifests that no
disciplinary or administrative action is pending against the
petitioner. In this background, in apprehension of the deadline
which the petitioner was required to meet, the present writ
petition has been filed by the petitioner seeking issuance of a
writ of mandamus to the respondents to discharge him
immediately from service in view of the offer of appointment to
the higher post of Assistant Commandant issued by respondent
No.5 dated 2nd April, 2010.
18. The respondents have vehemently opposed the writ
petition primarily on the ground that the petitioner has violated
the provisions of AFO 05/2003 as revised by the AFO 04/2007
and AFO 14/2008 as well as aforenoticed regulations. It is
contended that the petitioner ought to have made an
application for appointment to a civil post in terms of the said
office order only after completion of seven years of service on
16th December, 2009. Instead, the petitioner having applied in
June, 2007, had not completed seven years of service as
prescribed under Para -1 of the AFO 14/2008. It has further
been contended that the petitioner has violated Rule 11 of the
Rules for Recruitment of AC(GD) through CPF(AC) Examination-
2007 conducted by the UPSC which have been notified by the
Government of India in the extraordinary gazette on 5th May,
2007. The respondents also submit that the petitioner cannot
be discharged as intimated to him in the letter dated 28th April,
2010 on account of manning constraints in his trade. The writ
petition is opposed on the ground that the respondents have
correctly exercised the discretion vested in them under the Air
Force orders and the applicable regulations and that the
petitioner has no right to issuance of a no objection certificate
and grant of discharge under the applicable office orders.
19. We have given our considered thought to the rival
contentions aforenoticed. The issues which have been raised
before us are not arising for the first time. We find that these
very questions with regard to discharge from the Air Force on
the ground of appointment to civil posts have been raised on
several occasions prior hitherto.
20. Before we deal with the judicial precedents which have
been placed before us, it is essential to note the relevant
provisions of AFO 14/2008 issued on 19th September, 2008
which enables an Airman/NCs (E) who has completed seven
years of service from the date of enrollment to apply for the
Civil post/services under Central/State Governments/public
sector undertakings including para-military forces. The
categories of posts for which such an Airman having seven
years of service is permitted to apply, are Group A or
equivalent posts which carry a maximum pay scale not less
than Rs.13,500/- as revised from time to time and having been
labeled as Category IA in the Office Order. Para 2 of this order
deserves to be considered in extenso and reads as follows:-
"2. All applications for above
categories of posts wil be directly forwarded
to the prospective employers by the units
after verifying the eligibility including
criticality of manpower. Application of
airmen belonging to critical trades shall be
rejected at unit level. However, the
condition of criticality will not be applicable
to the applicants of Category IA & 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 Stns/Units through
their respective Command HQs. Units
directly under Air HQ would be intimated the
criticality of the trades by Air HQ. Airmen
who are on deputation to ARC are also
eligible to apply for civil posts as per Para1
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."
21. The petitioner is covered under the Category IA and his
request has to be considered accordingly.
22. On 12th May, 2010 when the writ petition was listed
before this Court, this Court directed the respondents to
consider the case of the petitioner in the light of the afore
noticed prior judgments of the Court (which stand annexed as
Annexure P-12 to the writ petition), more specifically referring
to para 18 of the decision in WP(C)No.9088/2008. At the same
time, this Court directed that the date of joining of the
petitioner with respondent No.5 would stand extended and the
vacancy of the petitioner would not be filled up. This interim
order has been continued and subsists even on date.
23. In the meantime, in compliance with the directions made,
the respondents have stated that they have considered the
matter and have passed a speaking order dated 3rd June, 2010
which is before us. Perusal thereof shows that the respondents
have once again rejected the request of the petitioner holding
that he had improperly applied for said civil post in
contravention of para 1 AFO 14/2008 before completing the
seven years of Air Force service without seeking due
permission from the competent authority and that he had also
failed to apply for the grant of a no objection certificate before
receipt of the call letter for interview/verification of documents
from CRPF. The respondents have further submitted that the
request for discharge from the Air Force on being selected to
the post of Assistant Commandant in the CRPF was rejected by
the competent authority in view of the criticality of manning
constraints in the trade of the petitioner.
24. The petitioner has assailed the consideration of rejection
by the respondents in the rejoinder which has been placed
before us.
25. Right at the outset, we may first of all deal with the
rejection of the petitioner on the ground of criticality in the
trade of the petitioner is concerned. It is evident from a bare
reading of the office order which applies to the case at hand,
that so far as the issue of criticality of manning constraints in
the trade is concerned, the respondents have prescribed that
such conditions would not be applicable to the applicants who
fall in the category 1A and III. The respondents have
specifically prescribed that in such case, the application would
be forwarded despite criticality in their trade. As noticed
above, category 1A relates to movement by an Airmen who are
Non Commissioned Officers (NCOs) in the Indian Air Force to
Group A or equivalent posts in the prescribed services including
the para-military forces. In the instant case, we are concerned
with appointment of the petitioner, who is a corporal to the
post of Assistant Commandant in the CRPF which is clearly a
Group A post in the para-military forces. Therefore, so far as
criticality of manning constraints in the trade of petitioner is
concerned, by virtue of the stipulation in AFO 14/2008, the
same could not come in the way of his request for discharge
from service.
26. The orders of the respondents rejecting the petitioner's
request on such grounds failed to take into consideration the
specific exception made in para 2 of AFO 14/2008 dated 19 th
September, 2008 so far as perceptible and visible shift in the
career progression of the Airman is concerned. The respondent
have themselves given emphasis and importance to the natural
and normal desire for improving the career prospects of an
Airman who is only a non commissioned officer with the Indian
Air Force and is seeking appointment to Grade A or equivalent
post with the para-military force. The respondents have
completely failed to consider the fact that the petitioner who
was working as Corporal with the Air Force had been selected
to the post of Assistant Commandant in CRPF which is a
Group A post. We can take judicial notice to the remoteness of
the possibility of immediate appointment of the petitioner to
the officer grade in the Indian Air Force. In any case, we cannot
lose sight of the exception provided by the respondents
themselves in their office orders.
27. It has now become necessary to consider the further
objection of the respondents for a favourable consideration of
the petitioner's request for discharge from service. The same
are premised on the ground that the petitioner had made the
application prior to completion of seven year of service from
the date of his enrollment. It is an admitted position before us
that on the date when the petitioner sought discharge, he had
completed more than seven years of service after his
enrollment with the Indian Air Force. So far as the failure of the
petitioner to comply with the procedure of not having made the
application at the correct stage is concerned, the respondents
noticed the same and have already issued a warning to him.
28. We also find that this very issue is not res integra and has
been adjudicated upon by not one, but three judicial
pronouncements of this court. Mr. Arvind Nayar, learned
counsel for the petitioner has placed before us the judgment
dated 16th December, 2008 passed in WP(C) No.8760/2008
titled Pradeep Kumar Vs. Union of India and the Ors.
wherein on this issue the Court has held as follows:-
"We heard learned counsel for the
parties. In our considered view, there can be
no doubt that the policy of release of Airmen
after completion of 7 years of service is with
the object of furthering career prospects. It
is not as if for every post such permission
can be granted. A special importance is
attached to Group A (Class I) posts because
those provide for a jump in the stature and
career prospects of a person. A mandatory
period of 7 years service is still required.
The object of providing application to be
submitted after 7 years is to ensure that a
person has put in this mandatory period of
service before discharge.
In the facts of the present case, the
application of the petitioner was made
undoubtedly before completion of 7 years of
service, but was forwarded by the unit in its
wisdom or the lack of it. A problem would
have arisen if the release of the petitioner in
pursuance to the selection would have
resulted in the petitioner not completing 7
years of service. This is not so in the present
case as the petitioner completes 7 years of
service on 18.12.2008 while the last date of
joint with the BSF is 20.12.2008. Thus,
release of the petitioner from service would
be after 7 years of service. We do feel that
the respondents cannot get away from their
responsibility by merely claiming it as a
mistake, especially when the very object of
the policy is satisfied, i.e. a minimum 7 years
of service in the Air Force. We also cannot
lose sight of the fact that the petitioner is
being recruited as an Assistant Commandant
in the BSF, a para-military organization. This
is a movement from the Air Force to the BSF
where the petitioner will be an officer in
Group A service as against the post of an
Airman in the Air Force. This would even
satisfy the test of an compassionate ground
laid down in the policy as enunciated in the
AFO 16/2008. If the three reasons for
rejection of the application of the petitioner
are examined, it is found that though the
petitioner had volunteered to serve for a
period of 20 years in the Air Force, the policy
of the Air Force itself allows exit after 7 years
and the conditions of the policy are satisfied
by the petitioner. This discharge to be issued
by the Air Force would be after the petitioner
completes 7 years of service and would not
violate any policy of the Air Force. This is
also the reason why the second ground of
rejection is unsustainable."
29. This judgment of the Division Bench was relied upon
when identical issues arose in WP(C)No.9088/2008 titled CPL.
N.K. Jakhar vs. Union of India and Others (page 54).
Placing reliance on the aforenoticed judgment, this court by a
detailed judgment dated 21st October, 2009 rejected the very
contentions which have been before us to oppose the writ
petition. The Court has reiterated the above principles laid
down so far as the issue of completion of seven years of
service prior to making of an application for discharge is
concerned. The court also considered the question as to the
failure of the petitioner to apply through proper channel. On
these issues, the court observed as follow:-
"18. That the petitioner did not apply
through proper channel relates to a
procedure of the law and not the substance
of the law. Unless otherwise mandate by the
language of a procedural law which leaves
no scope to interpret a rule governing a
procedure as mandatory, every attempt has
to be made to read a rule relating to
procedure as being directory and not
mandatory.
19. A co-ordinate Division Bench of
this Court has already held that the policy in
question is a salutary policy and is a
beneficial policy and hence must be
construed liberally.
20. We allow the petitioner and issue
a mandamus to the Air Force Authorities
directing the authorities to issue a discharge
certificate to the petitioner with a week from
today."
30. These very questions were again tested before this Court
in WP(C)No.13420/2009 titled Praveen Kumar vs. Union of
India & Others. In this detailed judgment pronounced on 30th
November, 2009, the court held as follow:-
"17. Deciding WP(C)No.8760/2008, a
Bench comprising Sanjay Kishan Kaul, J. and
Mool Chand Garg, J. held that the
requirement of the order in question which
prescribes a mandatory service of 7 years
means 7 years of service before being
entitled to be relieved and not 7 years
service when application is made for a
civilian appointment.
18. Same is the ratio of law laid down
in the decision penned by this Bench
disposing of WP(C)No.9088/2008."
The Court also observed that the petitioner having
completed seven years of service in the Indian Air Force on the
date of consideration of the writ petition, was entitled to
issuance of the requisite certificate/letter to enable him to join
the service as Assistant Commandant in the CRPF. A
mandamus was issued to this effect. It was further directed by
the Court that in case the Air Force failed to issue the
necessary certificate/letter, the decision of the court would be
treated as sufficient authorization in favour of the petitioner for
being relieved from the service of the Indian Air Force.
31. Ms. Barkha Babbar, learned counsel for the respondents
has placed strong reliance on a decision of this court dated 14th
March, 2008 in a bunch of writ petitions including
WP(C)No.6272/2007 titled Sgt. Sachin Kumar Pravin vs
Union of India and Others. In this case, the court had
reiterated the legal position that grant of no objection
certificate and discharge certificate was in the nature of
privilege and not a right. This legal position is well settled and
is not disputed before us. However, we find that the issues
which have been raised in the present writ petition did not
arise for consideration before the court in the judgment dated
14th March, 2008. The court was not concerned with the
appointment to Group A posts and the posts to which
appointments were being sought were not covered under the
exceptions prescribed by the respondents in para 2 of AFO
14/2008 as aforenoticed. The questions raised in the present
case did not arise in the Sgt. Scahin Kumar Vs. Union of
India & Ors. In this background, the reasoning and the
adjudication of this court in the decision dated 14th March, 2008
would not apply to the facts of the instant case.
32. We may also notice that the judgment dated 14th March,
2008 was assailed by way of Special Leave to Appeal (Civil)
No.9222/2008 before the Supreme Court of India. The matter
came up for hearing on 4th December, 2009 with statement
was made by the learned Additional Solicitor General appearing
for the Union of India that without treating the matter as
precedent, the Government was prepared to issue a no
objection certificate to the petitioners. Even though issuance
of no objection certificate cannot be treated as precedent,
however, it is apparent that despite the contentions with
regard to criticality of the manpower in the trades concerned,
the respondents had opted to issue no objection certificates to
the several petitioners.
33. We may also observe at this stage that so far as criticality
of the manpower in the trade is concerned, other than a bald
assertion to this effect nothing more has been placed before
us. This was not the position before the Bench which had
passed the judgment on 14th March, 2008. We find that in the
several aforesaid decisions, this court has held the
requirements of the policy as being directory and not
mandatory. This position has not been assailed by the
respondents before the Supreme Court of India and the
adjudication by the court in the aforenoticed three judgments
would bind consideration of the same issues which have been
raised in the present case.
34. It has also been contended by Mr. Arvind Nayar, the
learned counsel for the petitioner that so far as the trade of the
petitioner is concerned, the respondents have approved pre-
mature discharge to other Airmen who are similarly situated as
the petitioner. There is no dispute to this submission.
35. For all these reasons, in our view, the petitioner is entitled
to the same relief as has been granted to the petitioners in the
WP(C) Nos.8760/2008, 9088/2008 and 13420/2009 and which
have been noticed hereinabove.
36. In view of the above, we direct as follows:-
(i) The competent authority of the Indian Air Force shall
issue requisite certificate/letter sought by the
petitioner within a period of two weeks so that he is
able to join the service with the CRPF.
(ii) The respondent No.5 shall permit the petitioner to
join as Assistant Commandant with it having regard
to the interim order dated 12th May, 2010 passed by
this Court.
(iii) The interim order made on 12th May, 2010 shall
remain extended till the period of four weeks within
which period, the petitioner would report to
respondent No.5 for joining in accordance with
prescribed procedure
(iv) If for some reason, the necessary certificate/letter is
not issued to the petitioner, we direct that the
present decision would be treated as sufficient
authorization in favour of the petitioner for being
relieved from service by the Indian Air Force and in
such eventuality, we direct respondent No.5 to
accept the joining report submitted by the petitioner
pursuant to the present order. The formalities, if
any, shall follow later.
This writ petition is allowed in the above terms.
DASTI.
GITA MITTAL, J
J.R. MIDHA, J
JULY 28, 2010
mk
