Sgt. Sachin Kumar Pravin v. AndWP(C)No.7153/07

IN THE HIGH COURT OF DELHI AT NEW DELHI A 6272/2007. •WP(C) Nos. 6003/2007. 4799/2007. 7153/2007. 7303/2007. .540/2008 and 578/2008. .244/2008: 6273/2007. 8811/2007: 9612/2007. 6274/2007.. 8814/2007. 9650/2007. 7000/2007. 9022/2007, 4798/2007. 7015/2007. 431/2008, IN THE MATTER OF : Sgt. Sachin Kumar Pravin Cpl.Arjun Kumar Mauiya Sgt. Sanjay Biswas 'Cpl S.K.Srivastava Ashish Srivastava • Cpl Pardeep Kumar Sgt, N.S.Yadav Cpl.-Muluk Raj Singh Cpl. Sanjay Kumar Sgt. K.B.Singh Cpl. Raj Kumar Corporal Satveer Singh Cpl. Sanjay Kumar Coiporal R.S.Yadav Coiporal A Mandal Coiporal UPV Pratheepan Corporal Krishna KSR Corporal Kamal Kumar Sgt. Jai Singh Thru: DATE'OF HEARING: 30.01.2008 ly .03.2008 DATE OF DECISION Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner . Petitioner Peititioner Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner Petitioner WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. WP(C) No. 6272/2007, , 4798/2007 , 4799/2007 , 6003/2007 ,6273/2007 9022/2007 . in WP(C) Nos.244/2008, Mr.Baijlt Singh for the petitioner jvir.A.K.Trivedi for the petitioner Ms.Rekha.Palli with Ms.Punam Singh for the petitioner 6272-6274/2007. in WP(C) No.9612/2007. in WP(C) No.9650/2007, 7000/2007., 7015/2007 and 7303/2007. Ivir.Manzoor Ali.Khan with Mr.D.K.Garg in WP(C) Nos. in WP(C)Nos. 7153/2007, 8811/2007, 8814/2Q07, 9022/2007, 540/08 and jvirs.Prasanthi Prasad for the petitioner 4798-4799/2007. WP[C)No.6272 of 2.007 Mr.RajenderPrasad for the petitioner in WP(C) No.6003/2007. jviajorK. Ramesh for ttie petitioner in WP{C)No.578/08. " . And WP(C)No..431/2008. 1^ Union of India & Ors. Chiefof Air Staff& Ors - Versus - • • Respondents.- Respondentsin WP(C)No.8811/07, WP(C)No.8814/07,WP(C)No.9022/07, WP(C)No.431/08,WP(C)No.540/08 AndWP(C)No.7153/07 Thru: Ms.Sonia IMatiiur for tine respondent 9612/2007, 4799/2007, 6003/2007,244/08, in 244/2008, 431/08 and . . 6272-6274/2007. ^ • . respondent Mr.Sewa Rann witl^ Ivir.R.K.Baciiclian Mr.Jitendra Kr.Singli for respondent No. 5 in WP(C) No. 7015/2007. forthe in WP(C) Nos. 9022/2007,540/08, 578/08. IVjr.Rajeeve ivjehra with Ms.Rachitta Priyahka for the 7015/2007, in WP(C) Nos.7000/2007, 8811/2007 and 8814/2007.., for respondent No.6 in WP(C) No.4798/2007 and for respondent No.4 in 7153/2007, 7303/2007, jvlr.S. Bhowmicl< for counsel respondent jvis.Saroj Bidawal for respondent WP(C) No.4799/2007., in WP(C)No.9650/07 CORAM:- THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR.JUSTICE J.M.MALIK

1. WhetherReporters of Local papers may.be allowed to see the Judgment? '2. To be referred to the Reporter or not? V 3. Whetherthe judgmentshould be reportedin the Digest? , . WP[C]No.6272of2007 ' A.K.SIKRI,J. . • ; ^ - The petitioners in all these writ petitions are Airmen with the Indian Air Force - either working in the capacity of Sergeant or Corporal. They have filed these petitions seeking identical relief. After some years of service in the Air Force they want to be relieved from Air Force service on the ground that they have -been appointed for civil post in different organizations which are Central Government/State Government or Public Sector Undertakings (PSUs). Their plea ' is that on their appointment to' civil post the Central Government/State Government/ PSUs they are entitled to 'No Objection Certificate'(NOC) to enable them to join the said civil post for which they are selected. They.had made requests for issuance of NOC, but the respondents have turned down all such. In these circumstances,the reliefprayed for is to quash the rejectionorders and direct the respondentsto issue NOC for civil post for which they have been selected. In view of the commonality of the factual position operating in all these cases which are governed by identicalRules and Regulations,we had heard these petitionstogether. Writ Petition(Civil)No.6272 of 2007 was treated as lead case. Therefore,fOr the sake of convenience,we may start our discussionwhile takingnote of the facts of this writ petition. . , WP[C]No.6272 of2007 n v The petitionerin this case is servingas aimian in the IndianAir F'orce. . •, He was enrolled as a Radio Fitter on 26.10.1993 and was subsequently promoted to the rank of Coiporaland thereafter Sergeant. On 22.9.2006,the petitionerapplied for the post of Section Officer(Audit) which is a civil post under the Government of India. Selection for this post is conductedthrough Staff Selection Commission (SSC). The petitioner submitted his application to the SSC throtigh the present employer, namely, Indian Air Force. His applicationwas duly forwarded by his •Unit to the SSC on 22.9.2006.The petitioner appeared in the written examination . and successfully cleared the same. Thereafter, he was to appear in the interview -v. which was scheduled for. 14.6.2007. He applied for NOC to appear in the said ' interview on 8.-6.2007. His superior authorities forwarded his application to the Competent Authority in the Air Force for giving NOC. On 14.6.2007 the petitioner,appeared in the interview by which time NOC had not been issued." Later, vide order dated 28.6.2007 the Competent Authority rejected his request and did not issue the NOC. Since the petitioner had appeared in the interview held on

14.6.2007, he was considered by the SSC and has been selected for the post of . SectionOfficer(Audit). However,he is not able to join the post for want of NOC. 'v • . • . • In these circumstances,he has approachedthis Court with the followingprayers; A. a writ appropriate "Issue order/direction directing.Respondents to issue a 'No Objection i.e. Section Officer (Audit) in • . Certificate (NOG)' for Civil post of mandamus WPCC]No.6272of2007 - • p^gg 4 staff Selection Commission Respondent No.3 declining to grant NOC to the Petitioner the Civil Post of Section Officer and for quashing the decision.of (Audit). B. a writ Issue Respondent No.3 declining to grant NOC to the Petitioner .the post of Section Officer (audit). the - decision quashing certiorari. C. Pass any other appropriate qrder/direction which this Hon'ble Court deems fit and proper". . Under what circumstances such an NOC can be granted br rejected would be appreciatedbetter when we glance through the relevant provisionson the subject. Thus we proceed to take note of the extant Rules: At the time of entry into Indian Air Force service, such persons like the petitionerherein, had given sei-vicebond as per which they had agreed to serve the Air Force for a period of 20 years. Normally,therefore,these petitionersare requiredto completetheir tenure of20 years with the Indian Air Force. However, the respondentIndian Air Force has framed a Policy as per which NOC can be given after rendering7 years of service by an airman in case he gets selectedin a civilpost under CentralGovernment/StateGovemment/PSUssubjectto fulfillment of certain conditions-mentioned in the Policy. The Policy in question is dated r-'

9.5.2003which has been amendedfrom time to time. _ WP[C)No.6272 of2007 Pages

2. O POLICY DATED 9.5.2003. ' ; As per Policy dated 9.5.2003, Airmen/NCs (E) who have completed 07 years of their engagement including training period are pemiitted to apply for - civil posts under Central Government/State Government/PSUs. Procedure under which such applications are to be processed, is also stated in the said Policy to which we shall advert to soon after taking note of certain other factors contained in the Policy. Para-6 of this Policy states that NOC has to be issued by the Air Headquarters (Directorate of Personnel and Administration) in the prescribed format "on case to case basis, subjectto service exigenciesand after the approval., by ACAS (PA &C)". Thus, each case is to be.consideredon its own merit in order to see whetherNOC is to be issued in a particularcase or not. While bestowingits consideration,the guidingprinciplebefore the CompetentAuthoritywould b6 "the service exigencies". Para-6 further mentions that issuance of NOC is a privilege and cannot be claimed as a matter of right within the engagementperiod of 20 • years, as is clear from its reading: »./. "6. NOC will be issued by Air Headquarters (Directorate of Personnel & Administration),as per format given at Appendix to this AFO on case by case basis, subjectto service exigenciesand after approval by Issuance of NOC is a privilege and ACAS (PA & C). cannot be claimed as a matter of right within the - engagement period of 20 years. Request for issue of WP[C)No.6272of2007 through employer ' respective Once the NOC is issued, NOC is to be made when an Airman/NC (E) fulfills all eligibility conditions and his application is forwarded to Command Headquarters. is to be attached either as a part of the application for the post or presented at the time of interview, as per the requirement of the employer. No provisional or conditional NOC will be issued by the Station/Unit." The procedure, to which we now advert to, is specified in the said Policy as under: The applicationsof those eligibleairmen etc (i.e. who have completed J 07 years of their engagement)desirousof applyingcivil post is to be forwardedto their respectiveCommand Headquartersthrough Station/UnitCommanders. The Command Headquarterhas to vet these applicationsand on satisfyingthat the concernedcandidatefulfils the eligibilityconditions,the CommandHeadquarteris to forwardthe applicationto the concernedDepartment/employer. As mentioned above, these applications have to be for those civil posts which are under Central Govermnent/StateGovernment/PSUs. Certain . categonesof Airmen/NCsare not entitledto apply, as mentionedin para-4 of the \ Policy. However,we can avoid details of these persons as admittedlynone of the petitioners are covered by such cases, as 'mentioned in para-4. Once this '. WP(C]No:6272 of 2007 • applicationis forwarded to the Command Headquarter,the concerned• Airman is allowed to appear in the written test for the post for which he has applied. The Policy further states that as arid when he qualifies for the interview, the Air ^ . Headquarterhas to approach directly by the Station for issue of NOC which is to be obtained from Air Headquarter (Directorateof Persomiel and Administration) before attending the interview, .irrespective of the fact whether NOC has been asked for by the prospectiveDepartmentor not. It is further mentionedthat NOC will not be issued once the interview is over or the offer letter has been received. The Policy also stipulates that those Airmen etc. who are selected for civil posts after completion of 07 years of service should apply for discharge and accept the appointment only after discharge is approved by the .Competent Authority at Air Headquarters. POLICY DATED 21.3.2007. There was an amendment in the Policy and revised Policy was introducedvide' Circulardated 21.3.2007. In this Pohcy, it is, inter alia, noted that there was bulge' at the Sergeantlevel which was affectingthe airmen cadre and its detrimental effect on the cadre on the whole was a well Icnown fact. It further notes that even with the recentincreasein the establishmentsanctionedstrengthby the GovermTientwhich is to be actually added in phases the strength of Sergeant g WP[C)No.6272of2007 ^ ^ would still remain considerablyabove the establishment. This bulge has come about due to two main factors noted in this policy: (a) policy regarding extensions "A liberal, welfare-oriented beyond the term of Regular Engagement (RE) of 20 years, which awards extensions based on the employment needs emphasis the individual has the requirements beyond ensuring that category attributes , disciplinary benchmarks. regarding individual medical • (b) Promotion to the rank of Sgt at 13.5 years of service,- regardless of est vacancies". The Policy thereafter,•in para-3, takes note of measures which are being taken to reduce this suiplus which had assumed significant proportions. Apart from taking proactive measures so as to achieve noticeable result with meaningful time frame as mentioned in para-3, paras 4 and 5 of the said, policy deal with "No Objection Certificates for Civil Employment and Discharge". We reproduce these paras in entirety: The present Sgt-level

3. proportions, so as to achieve noticeable time frames. for implementation:- significant and would need firm, proactive measures results within meaningful The following measures are being taken • (a) Trade (above rank-wise, requirements would be drawn and continuously This would form the basic benchmark updated. the AF, •on which cadre management strategy, would be based. the ideal' cadre for level)' Sgt (b) The airmen would indicate otherwise for extension beyond RE two year prior year of to RE expiry i.e. on completion , service starting from PBOR who are completing their willingness WP[C)No.6272of2007 • , Pagg g otherwise 18 years in Sep .07 and whose RE expiry is Sep 2009. To help the PBOR to. decide on willingness or' engagement, wise and trade wise) three years would also be published every year. (rank likely to arise in the next a rough estimate of vacancies extension formed allotted shortfalls completed In . each' from within any recently and also the manpower The BOO would consider 18 years (c) A BOO would be convened at AFRO twice a year to trade wise. identify to be filled by extensions would then Vacancies taking into requirements, be worked put on actual additional approved consideration vacancies existing airmen who strength. and are The extension panel would willing for extension. airmen published considered by the BOO. The bi-annual BOO would have a member each from the Adm Branch, D Trg and DMP.• The critical to hold HR in a particular training MP/Specialist Dte for consideration Officers. The applications arranged list, and the available vacancies merit. by Dte of of the' Board of for extension would be and rank-wise merit allotted as'per imparted would be provided in a fleet or for any .specialized into a trade-wise requirements of service indicating trade, I (d). Extensions vyould be awarded in a controlled selective manner, where merit would be the key factor (compassionate cases would continue to be dealt with by this HQ). A trade-wise list of airmen who would be granted extension subject to their medical The cases of fitness would be'published. airmen recommended for extension by BOO'but •not meeting considered by a condonation board. standards would the medical "Presently airmen are granted ..'No Objection 4. Certificate' for applying for Civil Posts and subsequently permitted to seek discharge after seven years of service in case they get employment in Central Govt/State Govt/PSUs. The job could be for any Gp A, B, C and PBOR This a Gp D post. in some results WP(C]No.6272 of2007 career.- considering another Even though , individuals may not be alarming, the Air Force as only a stepping stone for the number of. such the image of the lAF could be- should also be considered. While an .individual permitted to seek release in case he was offered a job enhancement, better prospects/career allowing him to leave for low paid jobs like LDC/Primary school especially amount of money on' his after spending a considerable training; though this is the present situation. teacher etc. would be retrograde.step, thus this does not seem advisable, ensured . '

5. only. overall at that However, 18 years In view of the above, rank/trade. to cadre requirements for civil posts condition in . a particular of' service it has now been decided that airmen shall be allowed to apply for appointment to Civil Central Govt/State Govt/PSU posts carrying higher pay scales such a restriction will not be to those PBOR who have completed 15 years applicable time. subject of service, NOC for applying failing in the above categories would continue to be issued by Air HQ with the- overriding requirement Station/Unit l\10C to PHOR who have administration completed submitted to extend their service or have not been- unwillingness cleared for grant of extension. NOC to PBOR unwillingor not cleared for extension may be granted by the Station/Unit administration for employment by any including the' private sector. Airmen granted agency, such NOCs will be allowedto seek discharge in case they Govt enterprises/PSUs/PrivateSector as the case may b e. undergone, ' specialist PBOR training/course/deputation abroad would be allowed discharge after completion of their obligatory period, if any . employment • having and have selected Para 6 of the Policy deals with "Pre ReleaseCourses'. WP[C}No;6272 of2007 ^ Paras 7 and 8 under the caption 'Conclusion' are also relevant for our • ' • I purposes and, therefore, it would be in the fitness of things to extract these paras as well: : •

7. "A holistic view of cadre management has been tal<en by granting controlled and selective extension of service to airmen based on the overall cadre requirement as well as a more relaxed policy regarding the welfare aspect relating compassionate grounds and those seeking alternate careers in civil life. All airmen who are denied extension would be given preference for PRC courses so as to better prepare them for civil life, as well as permitting the issues of NOCs for any job including the Private Sector. discharges allqwing on'

8. This policy on extension and discharge of airmen based from Sep 09- on cadre requirement will come into effect and necessary relevant HRPs requested to disseminate under your Command". amendments would be incorporated Your HQs course. the same to all Stations/Units in due > • The petitionersemphasizedthat there is an acceptanceof the fact that there is a bulge' at Sergeantlevel. It is even affectingthe Airmen Cadre and is detiimentalto the cadre. In such circumstancesthe.respondentshave to be liberal in gianting discha,rge to those airmen who applied for the same and fulfill the conditions laid down in the Policy. It is also sought to argue that many other officers similarlysituated are issued similarNOC wiiose names are giveii in die petitions. WP[C]No.6272 of2007 • AIR FORCE ORDER DATED 1.6.2007 This was followed by Air Force Order No.4 of 2007 issued by Air ChiefMarshal on 1.6.2007giving in detail the guidelineswhich are to be followed while considering applicationsfor discharge. Para-1 thereof stipulates that the i concernedapplicantwould be permittedto apply "for civil post under Central/State Governments in Group A and B (Gazetted) and equivalent posts in PSUs" •w' including Para-Military Forces. Thus as per this the civil post to which such airmen apply should be in Group-A or Group-B (Gazetted) or equivalent post in PSUs. 'This restriction is not, however, applicable to those airmen who have completed 15 years of service. Thus it applies to those officers.who have rendered more than 7 years of sei-vice but less than 15 years of service. All these officers are in this category who have not completed 15 years of service. Para-8 of the Circular dated 1.6.2007 further mentions that NOC is to be obtainedfrom Air Headquarters(Directorateof Personneland Administration) in respect of airmen and respectiveCommand Headquarterin respect of NCS(E). It also stipulatesthat NOC shallnot be issued if the applicationfor the post has not WP[C]Nb.6272of2007 . ' contained in Policy dated 9.5.2003 which would be applicable. More so, when new Policy dated 1.6.2007 is not made retrospective.

2. Once permission is given to apply for the post, NOC should not normally be refused. It was argued that such permission is given after satisfying that a particular applicant fulfilled all the conditions and also was entitled to apply for the job and exigencies of service demanded giving him discharge on being selected. On^the strength of such permission to apply for the post, when the applicant appears in the written test, qualify the -same and thereafter qualify the interview as well and get selected, at that stage he cannot be told that NOC would ndt be issued.

3. The purpose of the policy was to reduce the 'bulge' at sergeant level. It was for this reason that permissionwas given to seek discharge only when the candidate gets selected in civil post under the Government so that •his services are utilized by another agency of the Government or under the control of the Governmenti.e. PSUs. Therefore,such a Policy should be • liberally construed.

4. The main reason for giving discharge after 07 years of service was that at this period of time the concernedairmen would be eligibleto apply for civil WP(;gNo.6272 of 2007 post which opportunitymay not be availablefor. 20 years of service as such airmen would face age Bar. ' '

5. The action of the. respondents amounted hostile discriminationand thus violative of Article 14 and 16 of the Constitution of India inasmuch as other similarly situated persons were granted NOCs and were allowed to be discharged, whereas in the case of the petitioners NOCs were denied.

6. The decision of the respondents in rejecting the request of the petitioners was irrational as there ,was- no such exigencies which compelled the • respondents to retain the petitioners for service more so when they were surplus in their strength. The petitioners referred to the judgment in the case of State of Mysore. and Ann Vs. R.K.Kasi (1985) 2 SCC 110. , Whereas all other counsel adopted the aforesaid submissions, counsel appearing in WP(C)No.9612/2007 made additional submission to, the effect that order of rejection in the case of his. petitioner was non-speaking. Likewise counsel for the petitioner appearing in WP(C)Nos.6273 and 6274 of 2007 submitted that in these cases request was rejected on the- ground that the post to which those petitionersapplied was not Group-B post which was factually incorrect. It was WP(C]No.6272of2007 . • •Page 16 submitted that Group-B post (Gazetted) was in the pay scale of Rs.6500-200-

10500. However,the petitionersin these cases had applied for the post of Section Officer (Audit) which is a Group 'B' post in the pay scale of Rs.6500-200-10500 in the PSU where they are selected. Though the pay scale at the relevant time was lesser but there was revision in the pay scale w.e.f. 7.8.2007 and'revised scale was more than the scale applicable to Group-B post (Gazetted). . The respondents have refuted the aforesaid submissions of •, petitioners by filing separate counter-affidavits in these writ petitions. Since we had- taken •note of facts appearing in WP(C)No.6272/200.7, the legal submissions which are made by the respondents in the c.ounter-affidavit filed to this writ petition can safely be reproduced as generally i.e. the defence of the respondents in. all these cases. . ' ' It is stated by the respondents that at the time of enrolment at Indian Air Force, these petitionershad voluntarilysigned EnrolmentForm to serve the Indian Air Force for a period of 20 years. Therefore,normallysuch officersare bound to sei-veIndianAir Force for regularengagementperiod. Likewisewhen applyingfor the civil post these petitionershad signedthe undertakingofthe followingnature: "read and understood the contents of AFO 5/2003 and Air HQ letter No.Air HQ/40726/26/PA (RC) dated 15 Mar. 05.- Para 6 of the said AFO 05/2003 clearly states that ,WP[C}Nd.6272of2007 ___ issuance of NOC is subject and is a privilege and can not be claimed as matter of right within the engagement period of 20 years." to service exigencies It is farther contended that there is a shortage of manpower based on tlie existing strength as compared to the authorized strength in the trade of the • petitioners(Radio Fitter). Furtherit is also denied that there is a stagnationin the Air Force as all Air Warriors are considered for promotion to the rank of Sergeant on clearingpromotionexamination,medical fitness etc. iiTespectiveof merit after completionof 13 years 6 months of service and to the rank of JWO after 17 years . of sei-vice, on.the basis of merit. Therefore, the question of 'bulge' at Sergeant level was not material insofar as petitioners were concerned. These were the - considerationswhich prevailed with the respondents in examining each case for issuance of NOG and it was decided to reject the reqqest in the cases of the petitioners. • . - • ;, It was also submitted that reliance on Policy dated 1.6.2007 was of no consequence as it would come into effect in September, 2009 Counsel for the respondent also explained that most of these petitioners had applied for those civil posts which were not Grade A or B (Gazetted) post in the Central/State Governments or equivalent in PSUs. It was submitted that though initially such applications for issuance of NOC were dealt with liberally, over a period of time it WP(;C]No.6272 of20G7 , . ' . A was found that there was surge m such applicationsand if all these applicationsare allowed, it is going to create deficiencyin the strength; The trade of Radio Fitter was critical trade and even as per the Policy, the request was to be allowed keepingin view the 'exigenciesofservice'. The learnedcounsel appearingfor the respondentsubmittedthat instructionswere applied uniformallyand there was no • discrimination.' Cases cited by the petitioners where the NOC was issued were sought away by givingjustificationbecause of which such NOCs were issued. At the time of hearing records in these cases were producedfor perusal of the Court to / show the reasons because of which such requests were rejected. •sy - ' ' . We have consideredthe respectivesubmissionsand have also perused the records. For sake of convenience, we may give details of each case stating the grounds'for rejecting the requests of the petitioners: SI.No. CWP No. 4798 1- Particulars Airmen 776836 Cpl A. Srivastava AF Fit 2, 4799 776372 Cpl Pradeep Kumar Details of the Case 07 • of EmpSoyer- Technician Pos4-Aircraft Indian Airlines Date Considered-13Jun Intimation to Unit-14Jun 07 Grounds deficiency/criticality Service also not Gazetted or its equivalent Post-Aircraft Indian Airlines Date of Consideration-13 Technician trade,. less than 15 years and Post rejectSon-Manpower Employer- Jun 07 WP(C]No.6272 of2007 AF.Fit 6003 740331 Sgt IMS Yadav ADSO 6272 748058 Sgt SK Praveen Rdo Fit 5 6273 780770 Cpl Sanjay Kumar MTD 6273 769497 Cpl MR- Singh Eng, Fit 7 743268-B Cpl Amritakar Mandal Rad Fit 3> Service rejection-Manpower trade, Intimation to Unit-14 Jun 07 Grounds rejection-Manpower trade, deficiency/criticality Service less than 15 years and Post also not Gazetted or its equivalent Post-Primary School Teacher Employer-Rajasthan Public Commission Date of Cohsideration-07 May 07 Intimation to Unit-08 May 07 Grounds rejection-Manpower deficiency/criticality in his trade, Class 'O Post Post-Section Officer (Audit) Employer-Staff Selection Commission. Date of Considerall:ion-26 Jun 07 Intimation to Unit-28Jun 07 Grounds deficiency/criticality Service less than ,15 years and Non-- Gazetted post Post-Section Officer (Audit) Employer-Staff Selection Commission Date considered-08 May 07 Sntimation to Onit-ll May 07 rejection-Manpower Grounds deficiency/criticality -in trade. Service less than 15 years and Non- Gazetted post Post-Assistant Employer-Staff Selection Commission Date considered-04 May 07 Intimation to Unit-10 May 07 Grounds rejection-Manpower trade. deficiency/criticality in Service less than 15 years and'Non- Gazetted post Post-Section Engineer Employer-Indian Railway Date considered-16 Oct 07 Intimation to Unit-18 Oct 07 rejection-Facing Grounds manpower shortage in Rad Fit Trades, Service rendered by him is less than WP[qNo.6272 of2007 Page 20' 8 6274 785964 Cpl Raj PIVIF(M) Kumar. 7000 751051 Sgt KB Singh MFd) 10 7153 770668 Cpl Satveer Singh Clk GD 11 7303 763486 Cpl Sanjay Kumar Inst Fit 12 749140-R Cpl RS Yadav • Rdo Fit • ' • • . (C&W) Engineer (Rs.6500- Engineer-ll trade, and not rejection-Manpower rejection-Manpower 15 years and Post applied for is not Group 'A' post Post-Junior (Rs.5000-8000) Employer-Indian Railways Date considered-01 Aug 07' intimation to Unit-02 Aug 07 Grounds deficiency/criticality trade, Service less than 15 years and Non- Gazetted post Post-Section, 10500) Employer-Indian Railways Date of Consideration-23 Aug 07 Letter of Intimation to Unit-27 Aug 07 ' Grounds deficiency/criticality than 15 years Service equivalent of Group 'A' post. Post-Assistant Employer-Staff Selection Commission Date of Consideratlon-30 Apr 07 Letter of Intimation to Unit-04 May 07 Grounds deficiency/criticality Service Gazetted Post Post-Section Engineer Employer-Indian Railways Date of Consideration-13 Letter of Intimation to Unit-17 Sep 07 Grounds deficiency/criticality Service equivalent of Group 'A' post; Post-Section Engineer Employer-Indian Railways Date of Consideration-18 Letter of Intimation to Unit-19 Sep 07 trade. less than 15 years and Non- trade, than 15 years and not rejection-Manpower in 'his rejection-Manpower Set 07 Set 07 " WP[C]No.6272 of2007

1.3 14 15 16 \ • V.- 790223 Cpl UPV Pratheepan Rdo Wing Fit 1 755369 Sgt Sanjay Biswas |VIF(|VI) 764699 Cpl SK Srivastava PMF(E) •, 791348 Cpl A.K. Maurya Rdo Fit School Selection rejection-Facing rejection-Facing Grounds manpower shortage in Rad Fit Trades.- Service rendered by him is less than 15 years , and Post applied for is not Group 'A' post. Post-Section Engineer Employer-Indian Railways 'pate of Considleration-17 Jul 07 Letter of Intimation to Unit-26 Jul 07 Grounds manpower shortage in Rad Fit Trades, Service rendered by him is less than 15 'years and Post applied for is. not Group 'A', post. Post-Assistant.Teacher Employer-WB Commission Date of Considerat5on-25 May'07 Letter of intimation to Unit-28 May 07 Grounds manpower Service rendered is more than 15 years but is not a Group 'B' post applied for (Gazetted) or equivalent post. Post-Section Engineer Employer-UP Electricity Board Date of Consideration-23 Aug 07 Letter of Intimation to Unit-27 Aug 07 Grounds trade, Service manpower rendered- than 15 years and post applied for is not a Group 'A' or equivalent post Post - sub Inspector Employer - SSC (NR) Date of Consideration - 13 Sep 07 Intimation to unit - 17 Sep 07 Ground of rejection - Shortage of manpower trade, Service rendered is less than 15 years and post applied is not a Group 'A' or in MF(M) in PMF(E) rejection-Shortage rejection-Shortage in Radio trade, in CBI Fitter _ •WPCC]No.6272 of 2007, 17 18 111129 Cpl Kamal Kumar AF Fit 775076 Cpl KSR Krishna AF Fit rN Jin- is less than 15 years equivalent post Post - Tax Assistant Employer-SSC Date of Consideration - 30 Apr 07 Intimation to unit - 04 iviay 07 oF Ground of rejection - Shortage trade, Servic(5 in AF Fit manpower rendered post applied is not a Group 'A' o equivalent post Post-Junior Engineer Employer - Indian Railways Date of Consideration - 14 Sep 07 Intimation to unit - 17 Sep 07 Ground of rejection - Shortage of manpower trade, Servicf? rendered post applied is .not a Group 'A' or equivalent post than 15 year5ian(J in AF Fit is less " It is clear from the above that in most of the cases the grounds for rejection are:- A. Manpower,deficiency/criticality in the trade to which the petitioner, belongs. . • • B;- Service less than 15 years. C. Civil post for which the petitioner applied is also not gazetted or its equivalent. WP[C3ND.6272 of2007 We may point out that as per record produced though as on 13.4.20 there was a surplus of manpower of this particular trade by 175 persons inasmuch as, against the sanctioned strength of 1723 there was 1907 officials in place. However, in August,2007 when the applications for NOC of the petitioners were considered and rejected, there was a deficiency of 117 officers. . The first question that falls for determination is as to which date would be material for considering, the request for issuance of NOC. Would it be the date^ f • r i when the' concerned officer applied for civil post and his application was forwarded through proper channel or would be a date when the NOC is to be issued. It is not in dispute that if latter date is to be considered as material date, at the time of issuanceof NOC there was deficiencyof officers. In order to determine the relevancy of date, we refer to certain provisionsin the Policy dated 9.5.2003. The relevantaspects of this Policy have already been highlighted above. As noticed above, those Airmen who have completed07 years oftheir engagementincludingtrainingperiod are "permitted" to apply for civil post under Central/StateGovernments.and PSUs. However, merely becausethey are permittedto apply does not mean that they automatically get the NQC as well. When they apply for such a post, the Adjutant has to recommendand forward the same to the respectiveCommandHeadquarter. Once 34 WP(C]No.6272of2007 ^ ^ ^ the application is recommended by him and ^forwarded to the Command Headquarter, such an apphcant is allowed to appear in the written test and/or interviewfor the post. Whetherhe is to be given NOC or not is not consideredat that time. Such a consideration is to be made by Air Headquarter at a time when the applicantqualifiesfor interview. It is clear from Para-5 of the Policy,relevant • portion whereof reads as under : , , for, "As (E) qualify and when Airmen/NCs 'No Objection Certificate'. directly by the

5. interview, Air HQ is to be approached Station/Unit issues (Dte of NOC is to be obtained,from Air Headquarters of the PA) before attending the interview, the NOC has been asked for by the fact whether or not. NOC will not prospective department/enhployer be issued once the interview is over or offer letter has. been received. While approaching Air Headquarters forward the issue of NOC, Station/Unit will following documents irrespective invariably : • • (a) Written request of NOC. . •(b) A copy of ' • . interview call from the Airman/NC(E) asking for issue • letter with specific date, and duly attested by a commissioned venue of interview, officer. (c) Advertisement in original or Xerox copy duly attested by the employer had officer vide which' a commissioned sought submission of applications. . to the effect progress/contemplated there is no disciplinary concerned against (d) A'certificate Airman/NC(E). (e) A certificate, the effect undertaking given by him... from Station/.UNIT Commander/Adjutant the concerned Airman/NC(E) RE due obligation to serve beyond is not to an (f) A Xerox copy of Command Headquarters covering vide which the application of received letter WP(C]No.6272of2007 , the Airman/NG(E) was employer/department". forwarded, to the concerned Along with the application for issuance,of NOC requisite documents as mentioned therein are also to be given. It is at that stage that the Air Headquarters would consider whether NOC would be granted or not, which is manifest •para-6 of the Policy as, well: , , • "6. NOC will be issued by Air Headquarters (Directorate of Personnel & Administration) as per format given at Appendix to this AFO on case by case basis, subject to service exigencies and after approval by ACAS (PA & C). Issuance of NOC is a privilege and cannot be claimed as a matter of right within the engagement period of 20 years. Request for issue of NOC is to be made when an Aimian/NC (E) fulfills all' eligibility conditions and his application is forwarded to respective Command Headquarters. Once the NOC is issued, to be it-is attachedeither as a part of the applicationfor the post or , presentedat the time of interview,as per the requirement of the employer. No provisional or conditional NOC will be issued by the Station/Unit." employer through •• , rhe respondentshave explainedthe rationalein consideringsuch NOC at alater stage. It is explainedthat unlessthe applicantqualifiesfor interview,it is not even necessaryto consideras to whetherhe woiild be needing NOC or not as WP[C]No.6272 of2007 • . \ • no NOC would be required by a candidate who has failed to qualify-for civij/post. Moreover the question of discharge would come at a stage and at point of time such an applicant gets selected for civil post. It is ,clear from the above, that the > relevant date of issuance of NOC is when such NOC is applied after selection. The material date would be August,2007, and not April,2006, by which date the respondents were facing, deficiency in this critical trade. With such a reason for rejection, which is relevant consideration, we cannot act as an Appellate Authority and decide as to whether the decision of the respondents is correct or not.- 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 is irrational or there is procedural impropriety or it is' perverse or contrary to some law, the Court cannot interfere with such a decision. We have already noted in para-6 of the Policy reproducedabove that issuance of such an NOC is a privilege and riot a right conferred upon these Ailmen within engagementperiod of 20 years. The respondentsare within their iight to examine each request on case to case basis keeping in view the service - exigencies. •We may mention that during the course of arguments in respect of petitioners in • WP(C) Nos.. 8811/2007, 8814/2007, 9022/2007, 431/2008, WPCgNo;6272 of2007

5.40/2008 and 578/2008 it was conceded by the respondents that the post to .which they applied were equivalent to Group-B post. However, in their'cases request is rejected on the ground that service rendered by them was less p. than 15 years. In such cases' arguments revolved on the issue as to which Policy out of the two-Policy dated 9.5.2003 or 1.6.2007 would be applicable. The comparison, of the two Polices would , show the following differences between them: Govt. required AFO 05/03 Date of issue of AFO is 09-05-03 Minimum service apply for the civil post is 07 years Permitted to apply for civil posts under Central/State public undertaking. Airmen/NG(E) Those a undertaking regular specific to courses, engagement deputation/posting within India/abroad are not permitted to apply. beyond period Procedure - Application to be forwarded the Command HQ.,- Thereafter Command HQ will application concerned Department/Employer. forward AFO 04/07 - Date of issue of AFO is 01-06- required is 07 the civil post 07 Minimum service apply for Permitted posts before Central/State Govt. and B'Gazetted post only. to , apply 15 years "under in Group A - - Above restriction . of Group A and B Gazetted post will not be • applicable Airmen/NC(E) who have completed 15 yrs. Of service. further for extension are perniitted employment completed also and there of any • - Airmen who have service to serve 18 unwilling not cleared engagement apply, private" sector will be no restriction kind. Procedure - Application •. department/employer AOC/Stn . Cdr/CO unit vetted. to be forwarded to respective by the WP[C]No.6272.of2007 - ; - As Airmen/NC(E) qualify Air HQ interview, approached • directly for issue of NOC. Stn/Unit NOC to be obtained-from Air HQ '(DPA) for attending the interview. Para-6 of AFO - exigencies -case by case basis, subject NOC will be issued by Air HQ (DPA) as per Appendix to AFO on service approval by ACAS(P&C). Issuance of NOC cannot be claimed as a matter within period of 20 years. engagement for issue of NOC is to be Request submitted Airman/NC(E) eligibility •application through Command HQ. Once NOC is issued, it is to be attached either as part of the application the'post or presented at the •for requirement of the employer. No provisional or conditional NOC is being issued by the Unit/Stn. fulfills ' conditions emplover/departmertt forwarded interview, as per - , Application for NOC is to be individuals receiving by the letter submitted the interview. Stn Cdr/CO will 'forward application issue of NOC. / to the Air HQ for Para-9 of AFO' - rank/trade. requirement to the exigencies -NOC will be.issued by the Air in respect of airmen HQ (DPA) format Appendix C and in/respect of NC(E) as per Appendix D to this AFO case by case basiS; subject service and with the overriding the overall condition a particular -be Issuance -claimed within engagement for issue of 20 years. Request NOC is when an Airman/NC(E) fulfills all the eligibility conditions and application was through provisional -to Stn/Units. No channel. or conditional NOC employer/department proper to be submitted as a matter of of NOC cannot forwarded issued period It i$ because of the reason that as per Policy dated 9.5.2003 •Airmen with 07 years were allowed to be permitted to apply for civil post whereas;in Policy dated 1.6.2007the slight amendment was made insofaras this period is concerned. In the amended Policy, a Clause is added that civil post under Central/State Governments should be in Group. A and B (Gazetted)and equivalentpost in PSUs including Para-Militaryforces. In the WP[C]No.6272of2007 ^ ~ earlier Policy there was no such condition. However, if an Airman has completed 15 years of service then it is not necessary that the civil post which he applies should be in Group-A and B (Gazetted) or equivalent PSUs. In'these cases certain officials applied for civil post which is not Group-B or equivalent. Others who have applied for a post which is Group-B (Gazetted) post or equivalent do- not have 15 years of service. It is in these circumstances question of applicability of a particular Policy has arisen. In . case Policy dated 9.5.2003 is applicable, it is not necessary for them to show that the civil post to which they apply is Group-B (Gazetted) or equivalent as no such nomenclature was mentioned in that Policy and after 07 years of service an airman was entitled to apply for the civil post without any specification about the category of the post. These petitioners would, therefore;be eligible under Policy dated 9.5.2003 but are rendered ineligible as per Policy dated 1.6.2007. , ' As we have taken the view that material'date for consideration of request for NOG is the date when an applicant qualifies,for interview, the Policy which is applicableon that date would govern the field. The date on which the applicationsare consideredfor NOG submitted and considered is •after March,2007 when Policy dated 21.3.2007 had come into force. Therefore,the considerationwiii have to be in accordancewith the Policy on Which date requirementof 15 years had come Into place. Since all these petitionershad either not applied for Group Aand B(Gazetted)post or had WP[C}No.6272 ofZOO? not completed 15 years of service, this reason given for rejection of their , requests would be valid. We may note here that the Policy, was amended and aforesaid provision introduced with specific purpose. The respondents had produced the noting in the file justifying of inclusion of the said clause. It was found that with liberal of NOCs under the, earlier Policy as per which stipulation of 07 years of regular engagement was provided for such Airmen to apply for civil post, attrition rate was high and in the process the erstwhile 'bulge' led into deficiency in some trades. The rationale behind laying down , - condition of 15 years was criticality in some trades and even (particularly supervisory ranks). Keeping in view the purpose with which the Policy was - amended, respondents decided that while considering issue of NOCs in future, the following two categories applicants for NOCs may not be subjected to the aforesaid condition relating to overall cadre requirement or criticality of trade: (a) Applicants for NOCs, whose length of service in lAF . (includingtraining period) is more than 7'years but less than 15 years but in question is' a, Group'A' post in Central/State Govt or its equivalent in • pay scale in PSUs. the civil post justification Even from the point of view of criticality of trade, this is not likely to be prejudicial to the interest of service, because, going by the past exjDerience,the number of airmen selected for Group WP(C]No.6272of2007 'A' posts are very rare, while stakes'from the point of view of welfare of airmen are very high. / "If (b) Applicants years of. service and the civil post 'B' equivalent for NOCs, who have rendered more than 15 in question is Group Govt. in • "Central/State in pay scale (Rs.6500 to 10500) in PSUs. (Gazetted) PBOR in the Army and Navy are availing lustification of such concession service and even in'the lAF pensionable age for airmen IS.15 years only. Moreover a decision was also taken to issue NOCs in few cases on similar grounds. only • 14 years' length , The respondents have thus laid down the objective criteria , ^/considering all these applications and are now issuing NOCs, only after applying these criteria, in cases where this criteria is fulfilled. Insofar as argurnent of discrimination is concerned, we find-from the counter-affidavitthat the cases in which NOCs are given are duly explained in the counter-affidavits. In the first instance it may be pointed out that most of those, cases relate to the period prior to March,2007 which were considered in the light of-Policy dated 9.5.2003. It is also mentioned . that in some cases where the NOC is issued after March,2007, length of service rendered by the-applicantin those cases was more than 15 years or they had applied to the post equivalentto Group-A post. We are, therefore, satisfiedthat no case of discriminationis made out. Therefore,the Supreme case (supra) cited by the petitionerwill have no' Court judgmentin • • • ' WP[qNo.6272 of 2007 application insofar as these cases are concerned. In that matter two officers similarly circumstanced were treated unequally in the .matter .of repatriation and this was treated as violative of Article 14. Such cases of refusal of NO.C have come up for judicial scrutiny on earlier occasion before the Supreme Court, this Court as well as other High Courts. We may now refer to some of these cases. ^ In Union of India and others Vs. R.P.Yadav (2000) 5 SCC 325, the Apex Court was concerned with those Naval Officers who after completing their usual period of commission had given consent re- ^angagement in Navy and wanted to withdraw the said consent before the expiry of re-engagement period. The Supreme Court, per majority held that they had no right to withdraw the consent and demand their release as of right. , It was also observed such a claim of release was even. incQnsistent with the requirement of strict discipline for Naval service. . The following observationof the Supreme Court in the context are worth a quote: F . In our considered view the •

24. "An incidental question that arises is whether the claim made by the respondents to be release from the force as of right is in keeping with the requirements of strict discipline of the naval service. ..answerto,the question has to be in the negative. To vest ^ right in a member of the Naval Force to walk out frorn the service at any point of time according,to his sweet will is a concept abhorrent to the high standard of discipline- - The defence expected consequence, in accepting such contention raised on behalf of the respondentswill lead to disastrous results touching upon the security of the nation. . It has to be borne in mind of members services. , ' • WP(C]No.6272 of2007 It that hiembers of the defence services including the Navy have the prqud privilege of being entrusted with the task It is a privilege which comes the of security of the nation. way of only selected' persons who have succeeded entering the service and have maintained high standards of efficiency. is also clear from the provisions in the Regulations like Regulations 217 and 218 that persons- who in the opinion of the prescribed authority, are not found permanently fit for any form of naval service may be terminated and discharged from the service. The position is clear that a sailor is entitled to seek discharge from service at the end of the period for which he has been engaged and even this right is subject to the exceptions in our provided in the Regulations. considered .view, rule out the concept of any right in a sailor to claini as of right release during subsistence of period of engagement of, re-engagementas the case may be. Such a measure is required in the larger interest of the country. A sailor during the 15 or 20 years of initial engagement which includes the period of training attains a high-decree expertise, and skill for which substantial amounts are spent from the exchequer. Such provisions,

25. Therefore,it is in the fitness of things that the strength of the Naval Force to be maintained is to be determined after careful planning and study. In a situation of emergency the country may ill-affordlosing trained sailors rom the force. In such .a situation if the sailors who have completedthe period of initial engagementand have been granted re-engagementdemand release from the force- and the authoritieshave no discretion in the matter, then the efficiencyand combat preparednessof the Naval Force affected. Such a situation has to be- that a sailorwho T of pension can claim release as a matter of right and '0 ^<:cept his request view, the approach to the case and the Htah rnnrt"!?'Considered orrnrh • error has Vitiatedthe judgment". service and hereby earned tlie•• ta? ^ WP(qNo.6272 of2007 •Page 34 The twin propositions which can be culled from the reading of the aforesaid paras are: A. The officer is expected to serve for the period' of engagement, or re-engagement as the case may be and such a measure is required in the 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 the matter of release from the force. \ ' ' ' • . Both these aspects apply-in equal force as far as these cases are concerned. Rather, the Policies specifically stipulate that issuance of NOC is not a right of the applicants but only a privijege and give discretion to the , respondents to consider each case on its-own' merit having regard to the exigencies of service.- If at the time of consideration of the petitioners' applications it was found that the trade to which petitioners belong is critical and their strehgth is dwindling, the respondents had a right to reject these applications. ^ This Court ; in the CWP.No.l370 of 2002 entitled Sqt. Sarkar i.C • • • , . Vs. Union of India and Ors. Decided on 18.5.2002 deajt with the cases of Air Force Officers. The Court was dealing with Air Force Order bearing WP[C)No.6272of2007 , Page 35' No.AFO 18 dated 7.9,2001 as per which those who have completed15 yea of engagementwere permitted to apply for civil posts under Central/State Governments and equivalentjobs in PSUs, The writ was filed questioning said provision of the order which banned applicationsto civil posts for initial period of 15 years of service. Repellingthe challengeand upholdingthe said AFO, it was held that there was no right of persons to leave service after some time for better job, inasmuch as the petitipners had entered into requisitecontracts agreeing to serve respondentsfor a period of 20 years. We need to reproduce the following observationsmade by this Court while dismissing the writ petition: (Air)

16. "The respondentin its counteraffidavit has contended . that a decision was taken at the, highest level at Air Headquarters in consultation with the Judge Advocate^ General that all Airmen who were given initial • , asn« to apply for Civil post by the Air^rceu!^ ' prior to 05-09-01were all issued with NOCs to join the civil Of^mr-^ and when they applied, but from' 07-09-01,grant of NOC would btgoyernedby AFO 18 of 2001 inasmuchas therebythe eligibilityconditionIs stated to be 15 year's of se^ice in that view of the matter, evidentlythe petitone P«itioner had not been discriminatedagainst, •t/ken h^vinTregTrrtoIhetac^^^ ™'4'ly"ratriin'^l^ utiSfon's°h"rc!,rta;]^^^^^ Pef^^anent^^oTr^is'^iL^i'^^^^ Tnd bSnc'h'co "i'^in ; the engagemerperlod.'"® . ' ^P[qNo.6272 of2007' . Page 36 of service,

18.The terms and conditions particularly with regard to the right of a person to leave services after some time for a better job cannot be claimed as a matter of right keeping in view the fact that the petitioner agreed to serve the respondent entered into a requisite contract. of 20 years wherefor a period letter dated 03-04-01, it appears 19.prom the petitioner's that he had only applied for permission in the Civil Examinatifon for Class I post conducted by the Board. Only the said application was forwarded. There is nothing on record to show that the petitioner had in fact applied for grant of NOC from the Competent Authority". to appear This leaves to consider additional submissions which were Xmade learned counsel petitioners appearing WP(C)Nos.4798/2007and 4799/2007. It was stated that the pay scales of Rs,3620-5850to which petitioners applie.dfor the post of AircraftTechnicians• ' ' ' • jn lndian Air Lines Ltd. of the civil post were revised wef 7.8.2007 and as per the revised pay they were equivalentto Group-B post in the pay scales of Rs.6555-10375. However, we cannot take into considerationthis, revision. It has been rightly pointed out by the learned counsel for the respondents, the pay scales of Group-B post in the Government came into force w.e.f. ^1.1.96 on the implementationof the 5"^ Central Pay Commission, Therefore, In a "^comparison has to be of the pay scale prevailing as on that date, particularPSU if the pay scale are revised to 1.8.2007, similar revision has become due in respect of Governmentpay scales as well., Once they are WP(C]No.6272 of2007 revised, most lil<ely tliat come into force w.e.f. 1.1.2006. Therefore, we hoi that the petitioners in these two cases had not applied for a post which is equivalent to Grade B post. For all these reasons, we do not find any merit in these petitions, which are, accordingly dismissed. JMd costs. March I'l ,2008. , . /' I (A.K. Sim ) JUDGE • ,< (J.M.MALIK) • JUDGE WP[C]No.6272 of 2007