High Court · 2012

At the first instance, he came to learn that his application had not been received by the Air Headquarters whereupon the unit authorities sent a signal to the Headquarters drawing its attention thereto with a request to expe dite the process. As nothing effective was forthcoming, the petitioner submitted successive applications before various authorities. He also submitted an applic ation under the Right to Information Ac, 2005 for furnishing him with a copy, am ongst others, of the NOC dated 12.2.2009 issued to him earlier for appearing in the interview. He sought information as well of the status of his application d ated 24.8.2010 for the NOC. The respondent authorities, however, did furnish to him copies inter alia of the communication dated 12.2.2009 and vis-à-vis his app lication dated 24.8.2010 for the NOC, he was informed that the same was being tr ansferred to the Central Public Information Officer at Air Headquarters as the i ssue lay within his jurisdiction to respond. 5A. According to the petitioner, his frantic efforts thereafter to o btain the NOC did not yield any result and he, as a matter of fact, was even ref used audience by the respondent No.2 inspite of his insistent requests therefor. Eventually vide Air Headquarters Letter No. Air HQ/40726/4/1/PA (RC) dated 3.12 .2010 addressed to the Station HQs 511 SU AF, it was intimated that the petition er’s request for the NOC had not been acceded to on the ground of ’service exige ncy’. This decision was communicated to the petitioner by the Station Adjutant 5 11 SU AF vide his letter No. 511 SU/231/9/2/P3 dated 14.12.2010, whereafter, he approached the learned Tribunal.

6. As aforementioned, by the impugned judgment and order dated 4.1. 2011 the learned Tribunal negated the petitioner’s challenge observing inter ali a that he had no legal or fundamental right to switch his job at his will and pl easure and that the respondents had a right to decide whether NOC could be issue d or not even in cases where a person is permitted to appear in written test and viva voce to join some other service. That the petitioner had no right to seek a NOC to join another service was underlined.

7. The respondents in their affidavit-in-opposition while admitting the subsistence of the AFO at the relevant point of time, asserted that the per mission to apply for civil posts to the Airmen/ NC(E) classified under Category- I and II was obviously subject to the criticality of their trades. While contend ing that the application of the petitioner had been wrongly forwarded by his uni t despite criticality of his trade as EA, the respondents averred that his reque st for the NOC was not acceded to on the ground of service exigency as his trade of EA was still in a critical state. That the petitioner’s request for the NOC, in the facts and circumstances of the case, more particularly, in terms of his undertaking as per Appendix-B to the AFO was not tenable was mentioned. Referrin g to Para 6 of the AFO, it was emphasized that the NOC for the applicants under Category-I and II was to be issued by the Air Headquarters on case to case basis subject to exigencies of service and with the overriding condition of overall c adre requirement in a particular rank/ trade.

8. According to the respondents, the service exigency i.e. critical ity of a trade keeps on changing from time to time and as there was a considerab le time lag between the initial forwarding of the petitioner’s application and t he stage of consideration of his request for the NOC, the respondents could not be said to have been estopped from declining to issue the NOC. This is more so a s the service exigency at the stage of consideration of his request for grant of NOC by the Air Headquarters could not be anticipated at the stage of initial fo rwarding of his application to the civil employer by the unit, though wrongly. T hat the forwarding of an application of Airmen/ NCs(E) does not signify commitme nt by the respondents to issue NOC was indicated. In his affidavit-in-reply the petitioner has sought to refute th 9. e plea of criticality of his trade. According to him, there is surplus strength in his trade of EA so much so that in view of the resultant stagnation thereat, there is no promotional prospect for him even to the rank of Junior Warrant Offi cer for the next 15 years, not to speak of his promotion to higher ranks in cour se of his service tenure.

10. Dr. Lal while generally abiding by the pleaded assertions of the petitioner has sought to empasise assiduously that the denial of NOC to him by the respondents after having favourably processed his application for the civil post involved and allowing him to successfully participate in the selection proc ess in connection therewith, is wholly arbitrary, unfair and unreasonable and be ing unconstitutional, is liable to be adjudged as such. As the petitioner’s appl ication for civil post had been forwarded by the competent authority of his unit being fully aware of the stipulations contained in the AFO, the ground of ’serv ice exigency’ at the penultimate stage is frivolous and is liable to be rejected , he urged. The learned counsel insisted that vis-à-vis the petitioner’s trade t here is no service exigency or criticality thereof so as to justifiably withhold the NOC and, thus, a writ of mandamus ought to be issued to the respondents to redress his grievances. The decision of the Delhi High Court in a series of wri t petitions including WP(C) 722/2010 (Sgt. Gedela Yuganthar -vs- Union of India & Ors.), since disposed of on 2.2.2010, was cited to reinforce the above. Mr Baruah while questioning the maintainability of the instant p 11. roceeding before this Court has urged that a plain reading of the AFO with parti cular reference to Para-2, 6 and 13 thereof would unambiguously demonstrate the inanity of the petitioner’s grievances. While contending that the petitioner is bound by the undertaking as in Appendix-B to the AFO, the subsisting criticality of his trade did not permit issuance of the NOC and, thus, no interference with the impugned decision is warranted. Referring to the AFO, the learned Central G ovt. counsel argued that the petitioner’s case falls in Category-I(B) and, thus, in terms of Para-2 thereof in particular, the criticality of manpower vis-à-vis his trade was of decisive significance and mere forwarding of his initial appli cation can by no means be construed to be an assurance by the authorities to gra nt NOC to him to join the civil post. While contending that the petitioner’s app lication having regard to his trade had been wrongly forwarded by his unit, Mr B aruah has urged that having regard to the assessment of the existing criticality of his trade, the decision to decline issuance of NOC on service exigency is un assailable.

12. We have duly considered the rival pleadings and the arguments ad vanced. That the petitioner is governed, for the issue by the AFO is an admitted fact. A plain perusal of the AFO dated 19.9.2008 demonstrates that it contempla tes permission to Airmen/NCs(E) to apply for civil posts/ services under Central / State Governments and Public Sector Undertakings subject to the stipulations a nd/or covenants as contained therein. Three categories of Airmen/NCs(E) have be en contemplated to be permitted to apply for the types of civil posts as corresp ondingly mentioned. Admittedly, the petitioner’s case fits in Category-I(B) the reof. Paragraph-2,6 and 13 of the AFO being of formidable significance, are extr acted hereinbelow: (cid:28)2. All applications for above categories of posts will be directly forwarded to the prospective employers by the units after verifying the eligibility includin g criticality of manpower. Application of airmen belonging to critical trades sh all be rejected at unit level. However, the condition of criticality will not be applicable to the applicants of Category IA and III above, in whose case the ap plications will be forwarded despite criticality in their trades. The criticalit y of trades will be updated by Air HQ twice a year, in June and December and wou ld be intimated to Stns/ Units through their respective Command HQs. Units direc tly under Air HQ would be intimated the criticality of the trades by Air HQ. Air men who are on deputation to ARC are also eligible to apply for civil posts as p er Para 1 above and their applications to be processed through PHS C/O AFCAO, wh ere 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 pert he procedure laid down in subsequent paras of this AFO. & & & & & & & & & & & & & & & & & & & & & & & & 6. No Objection Certificate (NOC) for applicants under Cat III will be issued tw o years before completion of their engagement by their respective AOC/ Stn Cdr/ CO as per the format placed at Appendix ’E’ while all other NOCs will be issued by Air Hqs (Dte of PA) on case to case basis, subject to the exigencies of servi ce and with the overriding condition being the overall cadre requirement in a pa rticular rank/ trade as per format give at Appendix ’C’. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. 13. Permission to apply for civil post is a privilege and hence issuance of NOC cannot be claimed as a matter of right. No provisional or conditional NOC is to be issued by the Stations/ Units. (cid:29).

13. It would be obvious from the quotes that applications for catego ries of posts mentioned in Paragraph I of the AFO are to be directly forwarded t o the prospective employers by the units after verifying the eligibility includi ng criticality of manpower. While it is provided that the applications of Airmen belonging to critical trades would be rejected at the unit level, the condition of criticality would not be applicable to the applicants of Category IA and III for whom the applications would be forwarded despite criticality in their trade s. It further transpires that the criticality of trades will be updated by Air H eadquarters twice a year in June and December and would be intimated to Stations / Units through their respective Command Headquarters. That forwarding of applic ations should not be construed as acceptance to grant NOC which would be issued as per the procedure laid down in the AFO has been emphasised. As a corollary, i t is obvious in particular from Para 2 of the AFO that vis-à-vis the petitioner the factor of criticality in his trade at all relevant times was of decisive sig nificance and that mere forwarding of his application did not signify acceptance thereof to grant NOC dehors the procedure laid down by the AFO or the stipulati ons contained therein. Para 6 further corroborates that the NOCs for the categor ies other than Category III are to be issued by the Air Headquarters (Dte of PA) on case to case basis subject to the exigencies of service and with the overrid ing condition of overall cadre requirement in a particular rank/ trade. That per mission to apply for civil posts is a privilege and issuance of NOC cannot be c laimed as a matter of right has been made more than obvious in Para 13 of the AF O.

14. ttedly signed by the petitioner reads as hereunder:- (cid:28) CERTIFICATE OF UNDERTAKING Appendix-B to the AFO which is a Certificate of Undertaking admi It is certified that I have read and understood the contents of AFO & & &. ./08. Ignorance of the rules and procedures on my part shall not be an excuse fo r non-compliance and I shall be responsible for denial of NOC in case of non-com pliance with AFO & & &./08. I have also understood that grant of NOC will be subje ct to exigencies of service. Signature Name Rank Service No. Stn/ Unit COUNTERSIGNED BY CO/Stn Adjt/ Unit Adjt This undertaking as well binds the applicant concerned (here the petitioner) thereby being conscious of the fact that grant of NOC would be subj ect to exigencies of service.

15. On a cumulative consideration of the above, there is no escape f rom the conclusion that mere forwarding of the application of the petitioner on

12.2.2009 and permission granted to him to participate in the selection process per se did not vest him with any right to claim the NOC so as to enable him to j oin the civil post if he was not spareable from the IAF in view of the subsistin g criticality of his trade and/or supervening exigencies of service. The plea of estoppel, having regard to the tone and tenor of the stipulations contained in the AFO, thus, lacks pursuasion. The decision of the Delhi High Court is founded on contextual fa 16. cts distinguishable from those as obtained herein. Therein though the petitioner s in terms of the relevant policy in vogue had been permitted to participate in a selection process for appointment to civil posts, they were refused the NOC fo llowing their selection therefor as meanwhile a new policy disqualifying them to apply had been framed replacing the earlier one. It was in this factual backgro und that their Lordships of the Delhi High Court observed that the rules of the game had been changed during the currency of the game by altering the policy in force at the time the petitioners were allowed to offer their candidature for th e civil posts. The decision declining issuance of NOC was interfered with and a mandamus was issued to the respondent authorities to issue the same to the petit ioner so as to enable them to join the new services. In the case in hand, the AFO has held the field throughout the d 17. ifferent stages involved herein and the respondent authorities have declined to issue the NOC in conformity with the extracts as engrafted therein. The decision of the Hon’ble Delhi High Court, therefore, in our view, is of no avail to the petitioner.

18. Viewed in the above perspective, in the attendant factual premis e, the tenability of the denial of issuance of the NOC on the ground of service exigency needs to be examined with reference to the official records produced. T he records, the particulars whereof are not disclosed for the sake of confidenti ality, reaffirm that the post of Equipment Assistant is included in the list of critical trades and is, thus, logically subject to the restraint clauses of the AFO dated 19.9.2008. The records do also contain official communications embodyi ng the criteria for assessing the criticality of trade for issuance of NOC. Judg ed on the basis thereof, the relevant statistics pertaining to the establishment strength qua manpower deficiency demonstrate that at all relevant times tracing back to the period during which the petitioner’s application had been processed , the post belonged to a trade which was continuously being adjudged to be criti cal as contemplated by the aforementioned guidelines and the AFO dated 19.9.2008 . In terms of this AFO, therefore, it was an obvious mistake on the part of the concerned respondent authorities to forward his application seeking appointment to a civil post. This mistake, however, to reiterate, does not vest him with any right to insist for the NOC. As the process involving the petitioner is admitte dly governed by the AFO dated 19.9.2008, no other view is permissible. Having re gard to the materials on record and in absence of any judicially evolved paramet er to substitute the view taken by the respondent authorities on the basis there of, this Court in the exercise of its power of judicial review is disinclined to interfere. The plea of stagnation in his post does not in the face of the o verwhelming revelations from the records neuter the ground of service exigency p leaded by the respondents.

19. The strategic aspects of criticality of trade and exigencies of service being determinants lodged within the exclusive domain of evaluation by t he respondent authorities who are the best judge of the situation, it would be w holly inexpedient to supplant the same in absence of regnant materials to the co ntrary to justify that step. No malafide or collateral consideration seems to ha ve influenced the impugned decision of the respondents. The petitioner having ap plied for the civil post pursuant to the liberty granted by the AFO dated 19.9.2 008, he is bound as well by the conditions circumventing the same. We, therefore , find ourselves in general agreement with the view taken by the learned Tribuna l. We, however, wish to make it clear that the plea against maintainability of t he instant writ petition has not been addressed by us and the present adjudicati on on merits does not connote rejection thereof on merits.

20. The petition is, thus, dismissed.

21. The obvious mistake as admitted by the respondent authorities in forwarding the petitioner’s application inspite of the criticality of his trade , in our comprehension, ought to be viewed very seriously. Though in course of t he arguments Mr Baruah has apprised this Court that necessary steps have been in itiated against the erring officers, we consider it appropriate to direct them ( respondents) to lay with this Court within a month herefrom a detailed report of the action taken in this regard for our perusal and initiatives as permissible in law. No costs.