WP(C)No.6272 of 2007 Page 1 Reportable IN THE HIGH COURT OF DELHI AT NEW DELHI WP(C) Nos. 6272/2007, 244/2008, 9612/2007, 9650/2007, 4798/2007, 4799/2007, 6003/2007, 6273/2007, 6274/2007, 7000/2007, 7015/2007, 7153/2007, 7303/2007, 8811/2007, 8814/2007, 9022/2007, 431/2008, 540/2008 and 578/2008. DATE OF HEARING: 30.01.2008 DATE OF DECISION : 14.03.2008 IN THE MATTER OF : Sgt. Sachin Kumar Pravin ....... Petitioner in WP(C) No. 6272/2007 Cpl.Arjun Kumar Maurya ....... Petitioner in WP(C) No. 244/2008 Sgt. Sanjay Biswas ....... Petitioner in WP(C) No. 9612/2007 Cpl S.K.Srivastava ....... Petitioner in WP(C) No. 9650/2007 Ashish Srivastava ....... Petitioner in WP(C) No. 4798/2007 Cpl Pardeep Kumar ....... Petitioner in WP(C) No. 4799/2007 Sgt. N.S.Yadav ....... Petitioner in WP(C) No. 6003/2007 Cpl. Muluk Raj Singh ....... Petitioner in WP(C) No. 6273/2007 Cpl. Sanjay Kumar ....... Petitioner in WP(C) No. 6274/2007 Sgt. K.B.Singh ....... Petitioner in WP(C) No. 7000/2007 Cpl. Raj Kumar ....... Petitioner in WP(C) No. 7015/2007 Corporal Satveer Singh ....... Petitioner in WP(C) No. 7153/2007 Cpl. Sanjay Kumar ....... Petitioner in WP(C) No. 7303/2007 Corporal R.S.Yadav ....... Petitioner in WP(C) No. 8811/2007 Corporal A Mandal ....... Petitioner in WP(C) No. 8814/2007 Corporal UPV Pratheepan ....... Petitioner in WP(C) No. 9022/2007 Corporal Krishna KSR ....... Petitioner in WP(C) No. 431/2008 Corporal Kamal Kumar ....... Petitioner in WP(C) No. 540/2008 Sgt. Jai Singh ....... Petitioner in WP(C) No. 578/2008 Thru: Ms.Rekha Palli with Ms.Punam Singh for the petitioner in WP(C) Nos.244/2008, 6272-6274/2007. Mr.Baljit Singh for the petitioner in WP(C) No.9612/2007. Mr.A.K.Trivedi for the petitioner in WP(C) No.9650/2007, 7000/2007, 7015/2007 and 7303/2007. Mr.Manzoor Ali Khan with Mr.D.K.Garg in WP(C) Nos. 4798-4799/2007. Mrs.Prasanthi Prasad for the petitioner in WP(C)Nos. WP(C)No.6272 of 2007 Page 2 7153/2007, 8811/2007, 8814/2007, 9022/2007, 540/08 and And WP(C)No.431/2008. Mr.Rajender Prasad for the petitioner in WP(C) No.6003/2007. Major K. Ramesh for the petitioner in WP(C)No.578/08. - Versus – Union of India & Ors. ....... Respondents. Chief of Air Staff & Ors …… Respondents in 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 And WP(C)No.7153/07 Thru: Ms.Sonia Mathur for the respondent in 244/2008, 9612/2007, 4799/2007, 6003/2007,244/08, 431/08 and 6272-6274/2007. Mr.Jitendra Kr.Singh for respondent No. 5 in WP(C) No. 7015/2007. Mr.Sewa Ram with Mr.R.K.Bachchan for the respondent in WP(C) Nos. 9022/2007,540/08, 578/08. Mr.Rajeeve Mehra with Ms.Rachitta Priyanka for the respondent in WP(C) Nos.7000/2007, 7015/2007, 7153/2007, 7303/2007, 8811/2007 and 8814/2007. Mr.S. Bhowmick for counsel for respondent No.6 in WP(C) No.4798/2007 and for respondent No.4 in WP(C) No.4799/2007. Ms.Saroj Bidawal for respondent in WP(C)No.9650/07 CORAM :- THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR.JUSTICE J.M.MALIK 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? WP(C)No.6272 of 2007 Page 3 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 in 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 relief prayed for is to quash the rejection orders and direct the respondents to 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 identical Rules and Regulations, we had heard these petitions together. Writ Petition (Civil) No.6272 of 2007 was treated as lead case. Therefore, for the sake of convenience, we may start our discussion while taking note of the facts of this writ petition. WP(C)No.6272 of 2007 Page 4 The petitioner in this case is serving as airman in the Indian Air Force. He was enrolled as a Radio Fitter on 26.10.1993 and was subsequently promoted to the rank of Corporal and thereafter Sergeant. On 22.9.2006, the petitioner applied for the post of Section Officer (Audit) which is a civil post under the Government of India. Selection for this post is conducted through Staff Selection Commission (SSC). The petitioner submitted his application to the SSC through the present employer, namely, Indian Air Force. His application was 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 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 Section Officer (Audit). However, he is not able to join the post for want of NOC. In these circumstances, he has approached this Court with the following prayers: A. “Issue a writ of mandamus or other appropriate order/direction directing Respondents to issue a „No Objection Certificate (NOC)‟ for Civil post i.e. Section Officer (Audit) in WP(C)No.6272 of 2007 Page 5 Staff Selection Commission and for quashing the decision of Respondent No.3 declining to grant NOC to the Petitioner for the Civil Post of Section Officer (Audit). B. Issue a writ of certiorari quashing the decision of the Respondent No.3 declining to grant NOC to the Petitioner for the post of Section Officer (audit). C. Pass any other appropriate order/direction which this Hon‟ble Court deems fit and proper”. Under what circumstances such an NOC can be granted or rejected would be appreciated better when we glance through the relevant provisions on 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 petitioner herein, had given service bond as per which they had agreed to serve the Air Force for a period of 20 years. Normally, therefore, these petitioners are required to complete their tenure of 20 years with the Indian Air Force. However, the respondent Indian Air Force has framed a Policy as per which NOC can be given after rendering 7 years of service by an airman in case he gets selected in a civil post under Central Government/State Government/PSUs subject to fulfillment of certain conditions mentioned in the Policy. The Policy in question is dated 9.5.2003 which has been amended from time to time. WP(C)No.6272 of 2007 Page 6 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 permitted 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, subject to service exigencies and after the approval by ACAS (PA &C)”. Thus, each case is to be considered on its own merit in order to see whether NOC is to be issued in a particular case or not. While bestowing its consideration, the guiding principle before the Competent Authority would be “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 engagement period 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, 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 WP(C)No.6272 of 2007 Page 7 NOC is to be made when an Airman/NC (E) fulfills all eligibility conditions and his application is forwarded to the employer through respective Command Headquarters. Once the NOC is issued, it 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 applications of those eligible airmen etc (i.e. who have completed 07 years of their engagement) desirous of applying civil post is to be forwarded to their respective Command Headquarters through Station/Unit Commanders. The Command Headquarter has to vet these applications and on satisfying that the concerned candidate fulfils the eligibility conditions, the Command Headquarter is to forward the application to the concerned Department/employer. As mentioned above, these applications have to be for those civil posts which are under Central Government/State Government/PSUs. Certain categories of Airmen/NCs are not entitled to apply, as mentioned in para-4 of the Policy. However, we can avoid details of these persons as admittedly none of the petitioners are covered by such cases, as mentioned in para-4. Once this WP(C)No.6272 of 2007 Page 8 application is 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 and when he qualifies for the interview, the Air Headquarter has to approach directly by the Station for issue of NOC which is to be obtained from Air Headquarter (Directorate of Personnel and Administration) before attending the interview, irrespective of the fact whether NOC has been asked for by the prospective Department or not. It is further mentioned that 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 introduced vide Circular dated 21.3.2007. In this Policy, it is, inter alia, noted that there was `bulge’ at the Sergeant level which was affecting the airmen cadre and its detrimental effect on the cadre on the whole was a well known fact. It further notes that even with the recent increase in the establishment sanctioned strength by the Government which is to be actually added in phases the strength of Sergeant WP(C)No.6272 of 2007 Page 9 would still remain considerably above the establishment. This bulge has come about due to two main factors noted in this policy: (a) “A liberal, welfare-oriented policy regarding extensions beyond the term of Regular Engagement (RE) of 20 years, which awards extensions based on the employment needs of the individual with scant emphasis on cadre requirements beyond ensuring that the individual has the basis attributes regarding medical category and disciplinary benchmarks. (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 surplus 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: 3. The present Sgt-level bulge is of significant proportions, and would need firm, proactive measures so as to achieve noticeable results within meaningful time frames. The following measures are being taken for implementation:- (a) Trade and rank-wise (above Sgt level) cadre requirements would be drawn and continuously updated. This would form the basic benchmark for the ideal cadre for the AF, on which cadre management strategy would be based. (b) The airmen would indicate their willingness or otherwise for extension beyond RE two year prior to RE expiry i.e. on completion of 18th year of service starting from PBOR who are completing WP(C)No.6272 of 2007 Page 10 18 years in Sep 07 and whose RE expiry is Sep 2009. To help the PBOR to decide on willingness or otherwise for extension of term of engagement, a rough estimate of vacancies (rank wise and trade wise) likely to arise in the next three years would also be published every year. (c) A BOO would be convened at AFRO twice a year to identify shortfalls in each rank trade wise. Vacancies to be filled by extensions would then be worked out on actual requirements, taking into consideration any recently approved additional vacancies and also the manpower allotted to newly formed units from within the existing strength. The BOO would consider airmen who have completed 18 years of service and are willing for extension. The extension panel would be published indicating the list of airmen considered by the BOO. The bi-annual BOO would have a member each from the Adm Branch, D Trg and DMP. The critical requirements to hold HR in a particular trade, in a fleet or for any specialized training imparted would be provided by Dte of MP/Specialist Dte for consideration of the Board of Officers. The applications for extension would be arranged into a trade-wise and rank-wise merit list, and the available vacancies allotted as per merit. (d) Extensions would be awarded in a controlled and 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 fitness would be published. The cases of airmen recommended for extension by BOO but not meeting the medical standards would be considered by a condonation board. 4. “Presently airmen are granted „No Objection 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 even a Gp D post. This results in some PBOR WP(C)No.6272 of 2007 Page 11 considering the Air Force as only a stepping stone for another career. Even though the number of such individuals may not be alarming, the image of the IAF should also be considered. While an individual could be permitted to seek release in case he was offered a job which ensured better prospects/career enhancement, allowing him to leave for low paid jobs like LDC/Primary school teacher etc. would be retrograde step, especially after spending a considerable amount of money on his training; thus this does not seem advisable, though this is the present situation. 5. In view of the above, 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 only. However, such a restriction will not be applicable to those PBOR who have completed 15 years of service, subject to cadre requirements at that time. NOC for applying for civil posts failing in the above categories would continue to be issued by Air HQ with the overriding condition being the overall cadre requirement in a particular rank/trade. Station/Unit administration would issue NOC to PHOR who have completed 18 years of service and have submitted unwillingness to extend their service or have not been cleared for grant of extension. NOC to PBOR unwilling or not cleared for extension may be granted by the Station/Unit administration for employment by any agency, including the private sector. Airmen granted such NOCs will be allowed to seek discharge in case they are selected for employment in Govt enterprises/PSUs/Private Sector as the case may b e. PBOR having undergone specialist training/course/deputation abroad would be allowed discharge after completion of their obligatory period, if any”. Para-6 of the Policy deals with “Pre Release Courses'. WP(C)No.6272 of 2007 Page 12 Paras 7 and 8 under the caption 'Conclusion' are also relevant for our 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 taken 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 to allowing discharges on 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. 8. This policy on extension and discharge of airmen based on cadre requirement will come into effect from Sep 09 and necessary amendments would be incorporated in the relevant HRPs in due course. Your HQs are requested to disseminate the same to all Stations/Units under your Command”. The petitioners emphasized that there is an acceptance of the fact that there is a `bulge’ at Sergeant level. It is even affecting the Airmen Cadre and is detrimental to the cadre. In such circumstances the respondents have to be liberal in granting discharge 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 similarly situated are issued similar NOC whose names are given in the petitions. WP(C)No.6272 of 2007 Page 13 AIR FORCE ORDER DATED 1.6.2007 This was followed by Air Force Order No.4 of 2007 issued by Air Chief Marshal on 1.6.2007 giving in detail the guidelines which are to be followed while considering applications for discharge. Para-1 thereof stipulates that the concerned applicant would be permitted to apply “for civil post under Central/State Governments in Group A and B (Gazetted) and equivalent posts in PSUs” 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 service 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 obtained from Air Headquarters (Directorate of Personnel and Administration) in respect of airmen and respective Command Headquarter in respect of NCS(E). It also stipulates that NOC shall not be issued if the application for the post has not WP(C)No.6272 of 2007 Page 14 been forwarded through proper channel. Application for NOC is to be submitted by the individual after receiving call letter for interview/verification of documents, or in cases involving no interview, where selection is based on success in written test only, such application for NOC is to be submitted after the result of written test. In all cases, NOC is to be obtained before submitting application for discharge on being selected for the post of civil and no deviation is permitted. Para-9 reiterates that NOC would be issued “subject to exigencies of service” and also adds another condition, namely, “with the overriding condition being the overall cadre requirement in a particular rank/trade”. It also reiterates that issuance of NOC cannot be claimed as a matter of right within the engagement period of 20 years and “no provisional or conditional NOC is to be issued to Station/Unit”. At a later stage in this judgment, we have brought about the essential differences between the two Polices. Having noted the provisions of the Polices, we now record the legal submissions made by learned counsel for the petitioners appearing in all these petitions. These can be summarized as under: 1. Since the applications were made by the petitioners for NOC at the time when Policy dated 9.5.2003 was invoked, it is the Policy guidelines WP(C)No.6272 of 2007 Page 15 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 not be issued. 3. The purpose of the policy was to reduce the `bulge’ at sergeant level. It was for this reason that permission was 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 Government i.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 concerned airmen would be eligible to apply for civil WP(C)No.6272 of 2007 Page 16 post which opportunity may not be available for 20 years of service as such airmen would face age bar. 5. The action of the respondents amounted hostile discrimination and 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 Anr. 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 petitioners applied was not Group-B post which was factually incorrect. It was WP(C)No.6272 of 2007 Page 17 submitted that Group-B post (Gazetted) was in the pay scale of Rs.6500-200- 10500. However, the petitioners in 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 the petitioners by filing separate counter-affidavits in these writ petitions. Since we had taken note of the facts appearing in WP(C)No.6272/2007, the legal submissions which are made by the respondents in the counter-affidavit filed to this writ petition can safely be reproduced as generally i.e. the