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2012 DIGILAW 1037 (GAU)

Corporal Abraralam v. Union of India

2012-08-31

AMITAVA ROY, S.R.SEN

body2012
JUDGMENT Amitava Roy, J. 1. The petitioner, a member of the Indian Air Force (for short, hereinafter referred to as 'the IAF') and allotted the trade of 'Equipment Assistant' (for short, hereinafter referred to as 'EA') seeks the intervention of this Court in the exercise of its writ jurisdiction to supercede the order dated 4.1.2011 rendered by the Armed Forces Tribunal, Regional Bench, Guwahati (for short, hereinafter referred to as 'the Tribunal') rejecting his plea of arbitrary denial of a No Objection Certificate (for short, 'NOC') to join a civil post in violation of his constitutional rights. A writ of mandamus has also been sought for issuance of the said NOC. We have heard Dr. G. Lal, learned counsel for the petitioner and Mr. C. Baruah, learned Central Govt. counsel for the respondents. 2. The pleaded version of the petitioner is that he had been enrolled with the IAF in the above capacity on 14.12.2000. By dint of his relentless resolve for better academic accomplishments he pursued and obtained his post graduation degree in English as a private candidate while diligently performing his official duties and responsibilities simultaneously. While he was serving in his unit, he came to learn about the Advertisement No. 1/09 published by the 'Uttar Pradesh Madhyamik Shiksha Seva Chayan Board' (for short, hereinafter referred to as 'the Board') inviting candidature for the post of Pravakta (Lecturer) P.G.T. under it. At the relevant point of time, the Chief of the Air Staff in the interest of the welfare of the serving Airman/Non-Combatant Enrolled [for short, NC(E)] personnel of the AIF as well as to facilitate their better prospects for elevation to higher posts in the civil services of the State as well as the Central Government, had been pleased to pass Air Force Orders, the latest thereof being Air Force Order No. 14/08 dated 19.9.2008 permitting the Airmen/NC(E) to apply for civil posts/services under the Central/State Governments and Public Sector Undertakings. 3. According to the petitioner, being a Corporal in the IAF, a rank in Group-C post, he viewed better prospects in the post advertised and, therefore, applied for it through proper channel and his application was duly forwarded to the Board by his Station Adjutant vide his forwarding letter No. 511 SU/231/9/2/P3 dated 12.2.2009 in accordance with the AFO No. 14/08 (for short, hereinafter referred to as 'the AFO') without any reservation or restrictive stipulation. According to the petitioner, he was thereafter called for the written test in which he appeared and passed. He was, thereafter, called for the interview scheduled to be held on 9.9.2010 in the office of the Board for the post involved. It was then that he on 24.8.2010 applied through proper channel for issuance of 'NOC' which was duly approved by his Station Commander and was forwarded by his Unit Adjutant vide his letter No. 511 SU/23/9/2/P3 dated 31.8.2010 to the Directorate of Personnel Airmen, Air HQs, Vayu Bhawan, New Delhi. The petitioner has averred that pending his application for the NOC he was, however, allowed to appear in the interview and he did so. Subsequent thereto, he on 14.10.2010 having found his name in the panel of selected candidates on the official website of the Board, enquired about the status of his application dated 24.8.2010 for issuance of the NOC from the concerned authorities. 4. 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 expedite the process. As nothing effective was forthcoming, the petitioner submitted successive applications before various authorities. He also submitted an application under the Right to Information Ac, 2005 for furnishing him with a copy, amongst 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 dated 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-a-vis his application dated 24.8.2010 for the NOC, he was informed that the same was being transferred to the Central Public Information Officer at Air Headquarters as the issue lay within his jurisdiction to respond. 5A. According to the petitioner, his frantic efforts thereafter to obtain the NOC did not yield any result and he, as a matter of fact, was even refused audience by the respondent No. 2 inspite of his insistent requests therefore. 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 petitioner's request for the NOC had not been acceded to on the ground of 'service exigency'. 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 petitioner's request for the NOC had not been acceded to on the ground of 'service exigency'. This decision was communicated to the petitioner by the Station Adjutant 511 SU AF vide his letter No. 511 SU/231/9/2/P3 dated 14.12.2010, where after, he approached the learned Tribunal. 5. As aforementioned, by the impugned judgment and order dated 4.1.2011 the learned Tribunal negated the petitioner's challenge observing inter alia that he had no legal or fundamental right to switch his job at his will and pleasure and that the respondents had a right to decide whether NOC could be issued 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. 6. The respondents in their affidavit-in-opposition while admitting the subsistence of the AFO at the relevant point of time, asserted that the permission 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 contending that the application of the petitioner had been wrongly forwarded by his unit despite criticality of his trade as EA, the respondents averred that his request 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. Referring 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 cadre requirement in a particular rank/trade. 7. Referring 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 cadre requirement in a particular rank/trade. 7. According to the respondents, the service exigency i.e. criticality of a trade keeps on changing from time to time and as there was a considerable time lag between the initial forwarding of the petitioner's application and the 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 as 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 forwarding of his application to the civil employer by the unit, though wrongly. That the forwarding of an application of Airmen/NCs(E) does not signify commitment by the respondents to issue NOC was indicated. 8. In his affidavit-in-reply the petitioner has sought to refute the 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 Officer for the next 15 years, not to speak of his promotion to higher ranks in course of his service tenure. 9. Dr. Lal while generally abiding by the pleaded assertions of the petitioner has sought to emphasise 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 process in connection therewith, is wholly arbitrary, unfair and unreasonable and being unconstitutional, is liable to be adjudged as such. As the petitioner's application 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 'service exigency' at the penultimate stage is frivolous and is liable to be rejected, he urged. As the petitioner's application 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 'service exigency' at the penultimate stage is frivolous and is liable to be rejected, he urged. The learned counsel insisted that vis-a-vis the petitioner's trade there 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 writ petitions including W.P.(C) 722/2010 (Sgt. Gedela Yuganthar vs. Union of India & Ors.), since disposed of on 2.2.2010, was cited to reinforce the above. 10. Mr. Baruah while questioning the maintainability of the instant proceeding before this Court has urged that a plain reading of the AFO with particular 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 Govt. 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-a-vis his trade was of decisive significance and mere forwarding of his initial application can by no means be construed to be an assurance by the authorities to grant NOC to him to join the civil post. While contending that the petitioner's application having regard to his trade had been wrongly forwarded by his unit, Mr. Baruah 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 unassailable. 11. We have duly considered the rival pleadings and the arguments advanced. 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 contemplates permission to Airmen/NCs(E) to apply for civil posts/services under Central/State Governments and Public Sector Undertakings subject to the stipulations and/or covenants as contained therein. 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 contemplates permission to Airmen/NCs(E) to apply for civil posts/services under Central/State Governments and Public Sector Undertakings subject to the stipulations and/or covenants as contained therein. Three categories of Airmen/NCs(E) have been contemplated to be permitted to apply for the types of civil posts as correspondingly mentioned. Admittedly, the petitioner's case fits in Category-I(B) thereof. Paragraph-2, 6 and 13 of the AFO being of formidable significance, are extracted here-in-below: "2. All applications for above categories of posts will 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 and 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 Para 1 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 pert he procedure laid down in subsequent paras of this AFO. ................................. 6. No Objection Certificate (NOC) for applicants under Cat III will be issued two 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 service and with the overriding condition being the overall cadre requirement in a particular 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.". 12. ............................... ............................... 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.". 12. It would be obvious from the quotes that applications for categories of posts mentioned in Paragraph I of the AFO are to be directly forwarded to the prospective employers by the units after verifying the eligibility including 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 trades. It further transpires that the criticality of trades will be updated by Air Headquarters twice a year in June and December and would be intimated to Stations/Units through their respective Command Headquarters. That forwarding of applications 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, it is obvious in particular from Para 2 of the AFO that vis-a-vis the petitioner the factor of criticality in his trade at all relevant times was of decisive significance 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 stipulations contained therein. Para 6 further corroborates that the NOCs for the categories 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 overriding condition of overall cadre requirement in a particular rank/trade. That permission to apply for civil posts is a privilege and issuance of NOC cannot be claimed as a matter of right has been made more than obvious in Para 13 of the AFO. 13. Appendix-B to the AFO which is a Certificate of Undertaking admittedly signed by the petitioner reads as hereunder:- "CERTIFICATE OF UNDERTAKING 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 for non-compliance and I shall be responsible for denial of NOC in case of non-compliance with AFO........../08. Ignorance of the rules and procedures on my part shall not be an excuse for non-compliance and I shall be responsible for denial of NOC in case of non-compliance with AFO........../08. I have also understood that grant of NOC will be subject to exigencies of service. Signature Name Rank Service No. Stn/Unit Date: COUNTERSIGNED BY CO/Stn Adjt/Unit Adjt Date: This undertaking as well binds the applicant concerned (here the petitioner) thereby being conscious of the fact that grant of NOC would be subject to exigencies of service." 14. On a cumulative consideration of the above, there is no escape from 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 join the civil post if he was not spareable from the IAF in view of the subsisting 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 persuasion. 15. The decision of the Delhi High Court is founded on contextual facts distinguishable from those as obtained herein. Therein though the petitioners 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 following their selection therefore as meanwhile a new policy disqualifying them to apply had been framed replacing the earlier one. It was in this factual background 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 the 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 petitioner so as to enable them to join the new services. 16. In the case in hand, the AFO has held the field throughout the different stages involved herein and the respondent authorities have declined to issue the NOC in conformity with the extracts as engrafted therein. 16. In the case in hand, the AFO has held the field throughout the different 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. 17. Viewed in the above perspective, in the attendant factual premise, 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. The records, the particulars whereof are not disclosed for the sake of confidentiality, 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 embodying the criteria for assessing the criticality of trade for issuance of NOC. Judged 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 critical 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 admittedly governed by the AFO dated 19.9.2008, no other view is permissible. Having regard to the materials on record and in absence of any judicially evolved parameter to substitute the view taken by the respondent authorities on the basis thereof, 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 overwhelming revelations from the records neuter the ground of service exigency pleaded by the respondents. 18. The plea of stagnation in his post does not in the face of the overwhelming revelations from the records neuter the ground of service exigency pleaded by the respondents. 18. The strategic aspects of criticality of trade and exigencies of service being determinants lodged within the exclusive domain of evaluation by the respondent authorities who are the best judge of the situation, it would be wholly inexpedient to supplant the same in absence of regnant materials to the contrary to justify that step. No mala fide or collateral consideration seems to have influenced the impugned decision of the respondents. The petitioner having applied for the civil post pursuant to the liberty granted by the AFO dated 19.9.2008, 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 Tribunal. We, however, wish to make it clear that the plea against maintainability of the instant writ petition has not been addressed by us and the present adjudication on merits does not connote rejection thereof on merits. 19. The petition is, thus, dismissed. 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 the arguments Mr. Baruah has apprised this Court that necessary steps have been initiated against the erring officers, we consider it appropriate to direct them (respondents) to lay with this Court within a month here from a detailed report of the action taken in this regard for our perusal and initiatives as permissible in law. No costs. Petition dismissed.