Cpl Manoranjan Kumar vs Union Of India & Ors
2017 Latest Caselaw 6501 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 494/2017

                                     Reserved on: 10th October, 2017
                             Date of decision : 16th _November, 2017

     CPL MANORANJAN KUMAR                 .....Petitioner
                  Through Mr. Ankur Chhibber, Advs.


                         Versus


      UNION OF INDIA & ORS                        ..... Respondents
                    Through           Ms. Monika Arora, CGSC with
                                      Mr.Harsh Ahuja, Adv. for UOI.
                                      Mr. Buddy A. Ranganadhan,
                                      Adv. for R-5.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA

      NAVIN CHAWLA, J.

The petitioner, who is working as an Airman in Weapon Fitter

Trade in the Indian Air Force (hereinafter referred as IAF), complains

that the IAF has arbitrarily rejected his application for grant of No

Objection Certificate (hereinafter referred as NOC) to his discharge

from service to take employment in Kolkata Port Trust/ Haldia Dock

WP(C) 494/2017 Page 1 Complex as Assistant Manager (Class- 1 Officer). He therefore, seeks

a direction to the IAF to issue NOC.

2. The petitioner was enrolled in the IAF as an Airman in Weapon

Fitter Trade on 28.09.2004. He was granted 05 weeks sick leave from

03.12.2015 to 06.01.2016 after open globe injury operation at Military

Hospital, Ambala. During his sick leave, the petitioner applied for the

post of Assistant Manager (Class- 1 Officer) in Kolkata Port

Trust/Haldia Dock Complex. The petitioner, however, had not taken

prior permission from the competent authority in the IAF before

making this application. After completing the period of his sick leave,

the petitioner reported to the unit on 23.01.2016.

3. The petitioner thereafter, received letter for interview on

03.06.2016 from the Kolkata Port Trust and filed an application with

the Air Officer Commanding for grant of NOC on 14.06.2016.

4. The Competent Authority of the Air Force Record Office,

however, rejected grant of NOC vide letter dated 08.07.2016. The

relevant portion of the letter is quoted below:

"2. The a/n airman had applied for the post without obtaining prior permission from the Competent Authority while he was on sick leave from 03 Dec, 2015 to 06 Jan, 2016.

Subsequently, he also appeared in the written test without

WP(C) 494/2017 Page 2 NOC, violating the existing provisions of AFO 04/12. As per para 6 of said AFO "No airman/NC(E) of the IAF is eligible to apply for civil posts/services under Central/State Govts including PSUs, Govt. of India Undertakings/Corporations and jobs in private sector without prior permission from the Competent Air Force Authority". Para 11 clearly spells that "Request for NOC will be rejected in cases wherein the individual has not obtained prior permission of his AOC/Stn Cdr while applying for the post". Hence the instant case is clear violation of AFO 04/12 by the applicant and subject application could have been rejected at Station itself. Para 13(d) also stipulates that "In no case, ex-post facto sanction for online-registration is to be accorded".

3. In view of the above the subject application is returned unactioned. It is requested that the units under your AOR may suitably be instructed to follow the AFOs/instructions in letter and spirit."

5. The above decision was informed to the petitioner vide

communication dated 27.07.2016.

6. The petitioner, however, was issued an appointment letter dated

21.12.2016 by the Kolkata Port Trust for the post of Assistant

Manager. The petitioner, therefore, again filed an application dated

03.01.2017 seeking discharge from service on compassionate ground.

However, the same was not recommended by his parent unit/authority.

7. The petitioner has filed the present petition praying for issuance

of Writ of Mandamus directing the competent authority in the IAF to

WP(C) 494/2017 Page 3 grant No Objection Certificate to discharge him from service so as to

enable him to join Kolkota Port Trust.

8. This Court, vide its order dated 20.01.2017, while issuing notice

of the petition to the respondent, also ordered that steps, if any, taken

shall abide by the result of the writ petition.

9. The petitioner has placed reliance on the judgment dated

21.10.2009 of this Court in the case of CPL N.K. Jakhar v. UOI &

Ors, WP(C) 9088/2008 to contend that making of an application

through proper channel is a matter of procedure and therefore cannot

be treated as mandatory. He has further contended that IAF has itself

issued Air Force Order No.04/2012 dated 31.05.2012 wherein it has

recognized the need to grant career enhancement opportunity for

airmen. He has further placed reliance on the judgment of this Court

dated 16.12.2008, in the case of Pradeep Kumar v. UOI &

Ors.,WP(C) 8760/2008. As far as the reason for not seeking prior

permission while applying to the Kolkata Port Trust, learned counsel

for the petitioner submits that as the petitioner was on sick leave at his

home town, he could not send his application through to his unit due

WP(C) 494/2017 Page 4 to short time and this was the last opportunity for the petitioner to

apply for the said post.

10. Contesting the submission of the petitioner, the respondent

relying on the same AFO No.04/2012 submits that seeking permission

from the Competent Air Force Authority prior to applying for the post

is a mandatory condition. The respondent has also placed reliance on

the judgment of this Court dated 14.10.2015 passed in WP(C)

8108/2015, Deepak Yadav v. UOI & Ors. wherein a similar plea of

mistake in not making a prior application for seeking approval was

rejected. The respondent further relies upon the judgment of the

Supreme Court in UOI & Ors. v. R.P. Yadav, (2005) 5 SCC 325,

where the Supreme Court held that grant of such NOC cannot be

claimed as a matter of right.

11. We have considered the rival submissions of the parties. At the

outset, we may note that we are not impressed by the explanation

given by the petitioner for not seeking prior approval and routing his

application through proper channel while applying to the post of

Assistant Manager in Kolkata Port Trust. If the petitioner could make

an application to the Kolkata Port Trust directly and even appear in the

WP(C) 494/2017 Page 5 examination, there is absolutely no justification for him not having

routed his application through proper channel on applying for prior

permission to the competent authority in the IAF before making such

application.

12. Equally, the judgment of CPL N.K.Jakhar (supra) would not

be applicable to the facts of the present case as it was given in the

context of Air Force Order No.4/2007. Air Force Order No.4/2012,

which is applicable to the present case, in paragraph 11 of the order

clearly provides that request for NOC will be rejected in cases where

the individual has not obtained prior permission of his AOC/Stn. Cdr

while applying for the post. Paragraph 19 of the said order further

clarifies that permission to apply to civil posts as well as grant of NOC

are privileges and hence cannot be claimed as a matter of right.

13. At the same time, as noted above, this Court in the case of

Deepak Yadav(supra), has observed that the Court has to be mindful

of the fact that in many cases, young boys, due to family constraint

and large scale of unemployment, enroll with IAF. Declining of

application for grant of NOC might lead to dampening of their career

advancement prospects. In the present case also, the petitioner had

WP(C) 494/2017 Page 6 joined IAF after clearing 10+2 examination. While in service, he did

his Graduation in Arts, completed his MA in History and MBA in HR.

The respondent had earlier given NOC for interviews to the petitioner

on two different occasions for the post of Traffic Officer (SH.& CH.)

in Kolkata Port Trust. The petitioner was further granted NOC by the

respondent for interview for the post of Assistant Traffic Manager,

GR-1 in Kandla Port Trust.

14. As noted above, in the present case, NOC has been rejected

only because the petitioner had failed to follow the procedure of

applying for prior permission. No other reason or ground is given. We

do not feel that the petitioner should be denied an opportunity for

career enhancement merely because of this fault.

15. In view of the above discussion and in light of the peculiar facts

and circumstances of the case, we direct the Competent Authority in

the Indian Air Force to grant No Objection Certificate in favour of the

petitioner to be discharged from service to take up appointment to the

post of Assistant Manager with Kolkata Port Trust.

16. This order and direction should not be construed as acceptance

of conduct of the petitioner who did not obtain the NOC. Officers and

WP(C) 494/2017 Page 7 members of IAF must abide and comply with the Rules, more so

because they belong to a disciplined Force. Possibly, we would have

rejected the prayer made by the petitioner even in the present writ

petition but for his accepting the said lapse and apologizing for the

same. We would observe that this decision should not be construed as

ratio that such directions could be issued where there is lapse and

failure to apply for NOC. To bring the controversy to an end and to

ensure that such litigation does not arise in future, the respondents

may be well advised to issue a fresh circular or a notification stating

that in case any Airman applies for a civilian post he must seek prior

permission or NOC from the competent authority and in no

circumstances an ex post facto sanction or claim would be granted.

17. The petition is disposed of in the above terms with no order as

to costs.

                                             NAVIN CHAWLA, J



                                             SANJIV KHANNA, J

NOVEMBER, 16, 2017/vp




WP(C) 494/2017                                                   Page 8