Case: Mohammed Zubair Corporal No. 781467-G Vs. Union of India &amp; Others

Civil Appeal No. 8644 ofAppellant was enrolled as an Airman in the Indian Air Force on 19 December 2001. After enrolment he was sent for training and was assigned the trade of Workshop Fitter (B). On 1 September 2004 he was posted to 3 Base Repair Depot at Chandigarh. On 10 January 2005, the Appellant submitted an application seeking permission to keep a beard on religious grounds, since he is a Muslim. The Air Officer Commanding rejected the application on 1 February 2005 and the Appellant was informed on 9 February 2005 of the rejection, which was on the ground of the Air Headquarters Policy dated 24 February 2003. On 22 March 2005 the Appellant submitted another application to the Air Officer Commanding seeking reconsideration of the earlier decision. He was granted an interview with him on 10 June 2005, when he was informed of the necessity to maintain uniformity amongst Air Force personnel because of which his request had been rejected. The Air Officer Commanding, however, addressed a communication dated 23 June 2005 to the Headquarters Maintenance Command seeking a clarification on the legal issues raised by the Appellant. In the meantime on 20 June 2005 the Appellant proceeded on annual leave. When he returned on 1 August 2005, he was found to sport a beard. On 1 August 2005 he was informed by Wing Commander that contrary to Air Force Regulations, he was found to have a beard while in service uniform. The Appellant was instructed to shave off his beard and to report at 0700 hrs on 2 August 2005, failing which it was stated that "severe disciplinary action" would be initiated against him. The Appellant declined to shave off his beard. Since in the meantime a clarification had been sought from HQ -MC, he was permitted to grow a beard on a provisional basis until his earlier application was finalised. By a communication dated 26 August 2005 HQ-MC Nagpur, informed 3 BRD, AF that under the current policy of the Air Force (Area HQ/C 23406/24/PS) dated 24 February 2003 and 9 July 2003 an Airman was not permitted to have a beard on religious grounds. On receipt of this letter, the Appellant was directed to shave off his beard and informed that the provisional permission granted to him on 3 August 2005 was withdrawn.2. On 17 September 2005 the Appellant filed a writ petition before the Punjab & Haryana High Court in which by an interim order dated 20 September 2005 a Single Judge stayed the operation of the Air Force order dated 5 September 2005. The Air force authorities moved the High Court for vacating the interim stay but the application was dismissed on 9 February 2006. A Special Leave Petition was filed before this Court which was disposed of on 28 September 2007 with a request to the High Court to dispose of the petition expeditiously. By an order of the High Court dated 14 July 2008 the writ petition was dismissed. A Letters Patent Appeal was dismissed by the High Court on 31 July 2008. In the meantime, a notice to show cause was issued to the Appellant calling upon him to explain as to why he should not be discharged from service. In reply to the notice, the Appellant asserted his right to retain a beard. The Appellant was eventually discharged from service under Rule 15(2)(g)(ii) of the Air Force Rules 1969 on 1 September 1997.3. In the writ proceedings before the High Court, which were instituted on 17 September 2005 the Appellant sought the following reliefswrit of Certiorari or any other appropriate writ, order or direction for quashing of Annexure P-5 vide which the petitioner, a Muslim has been directed to shave his beard by 20.092005, the same (Annexure P-5) being illegal, without any sanction of law and in contravention of Regulation 425(b) of the Regulations of the Indian Air Force and policy letters dated 08.05.1980 and 10.08.1982 (Annexures P-1 and P-2);With a further prayer that the operation of the impugned order (Annexure P-5) may kindly be stayed till the disposal of this writ petition since Air Force Regulations and policies explicitly confer upon Muslims a right to sport beard and provide for no discretion to the respondents to take away this right under anychallenge was to the direction issued to the Appellant to shave off his beard on 20 September 2005 on the ground that it was contrary to Regulation 425(b) of the Regulations governing the Indian Air Force and to the policy letters of 8 May 1980 and 10 August 1982. Even prior to the institution of the writ petition, the Appellant had been discharged from service. Strictly speaking a mere challenge to the direction by which he was called upon to shave off his beard would not subserve the cause of the Appellant once he stood discharged from service. Be that as it may, the Division Bench of the High Court by its judgment and order dated 31 July 2008 came to the conclusion that the purpose of Regulation 425(b) is to ensure that the identity of a person is not altered during the course of service so as to render recognition possible. The Division Bench affirmed the judgment of the learned Single Judge to the effect that maintaining a beard was not an integral part of the religion professed by the Appellant. In the view of the High Court, the matter pertained to the Armed Forces where a certain degree of discipline had to be maintained and the rules and regulations broadly accommodate "the basic interest of various religions in a secular manner".4. The policy governing the growth of hair, including facial hair, in the Air Force has been enunciated in paragraph 425 of the Armed Force Regulations, 1964. Regulation 425 provides as followsGrowth of Hair etc. by Air Force Personnel.(a) Except as in sub para (b), the hair of the head will be kept neatly cut and trimmed. The hair of airman under detention/sentence will be cut no shorter than is customary/ throughout the service except on medical advice and except where on an application made by the airman he has been permitted to keep long hair. Face will be clean shaven. Whiskers and moustaches, if worn will be moderate length.(b) Personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard. However, such hair and/ or beards will be kept clean, properly dressed and will not be removed except on medical grounds or on application duly(a) of Regulation 425 mandates firstly, that Air Force personnel must keep their hair neatly cut and trimmed. Secondly, facial hair has to be shaved and every airman must have a clean shaven face. Thirdly, whiskers and moustaches though permitted have to be of a moderate length. The rest of the clause deals with Airmen under detention or sentence with which the present case is not concerned. Clause (b) of Regulation 425, however, stipulates that an airman will be permitted to grow hair or to retain a beard where the religion professed by him prohibits the cutting of hair or shaving of facial hair. In that case, the hair and/or beard must be kept clean and properly dressed and cannot be removed except on medical grounds or on an application which is duly approved. The touchstone for being allowed to grow ones hair or to retain a beard is where there is a religious command which prohibits either the hair being cut or a beard being shaved.

Reasoning:
11. We see no reason to take a view of the matter at variance with the judgment under appeal. The Appellant has been unable to establish that his case falls within the ambit of Regulation 425(b). In the circumstances, the Commanding Officer was acting within his jurisdiction in the interest of maintaining discipline of the Air Force. The Appellant having been enrolled as a member of the Air Force was necessarily required to abide by the discipline of the Force. Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.The policy letters which have been issued by the Air Headquarters from time to time do not override the provisions of Regulation 425(b) which have a statutory character. The policy circulars are only clarificatory or supplementary in nature. The policy letter of 8 May 1980 did initially permit an airman professing Islam to sport a beard of a prescribed length. This was revisited by the Air Headquarters on 10 August 1982 and a distinction was made between the cases of Muslim personnel who had already sported a beard at the time of joining service (in whose case no permission was required) and cases where personnel desire to sport a beard after joining service (in which case a formal application informing the Commanding Officer was required to be submitted). On 6 October 1999 the Air Headquarters while reiterating this distinction made it clear that if an airman seeks to grow a beard after joining service he would require the approval of the Commanding Officer who would ascertain the reasons for his decision, advice the individual to maintain the beard in a neat, trim and tidy manner and that once permitted he would not be allowed to shave off his beard. Evidently, these provisions have been introduced having due regard to the security concerns inherent in maintaining identity in the Armed Forces. Maintenance of identity is a crucial element in the safety and security of the Forces, particularly in the context of the threat of infiltration. The policy was again revisited on 24 February 2003. This time a limited protection was granted for those who had a beard prior to 1 January 2002 at the time of enrolment but the policy also stated that no person would after joining service be allowed to maintain a beard. This position was clarified on 9 June 2003 by stating that personnel whose religion demands sporting a beard, would be allowed to do so provided they were granted permission prior to the date of the letter or had grown a beard at the time of joining Air Force. So long as the provisions of Regulation 425 (which have a statutory effect) are not breached, a mere policy can be revisited and modulated in the interest of the Force. The policy documents are only clarificatory in nature. Policies can be duly modified to subserve the best interest of the Force, which is inextricably intertwined with the need to protect the nation against grave threats of destabilisation and disorder. The discipline of this Force is paramount.