Sgt K.B. Singh v. UOI & Ors

IN THE HIGH COURT OF DE^.HI AT NEW DELHI 4799/2007. 6003/2007. 6273/2007. 627472007. 7000/2007. 7015/2007. 7153/2007. 7303/2007. 8811/2007. 8814/2007. u 9022/2007. 431/2008, IN THE MATTER OF : Sgt. Sachin Kumar Pravin ^_^pl.ArjunKumarMaurya 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 Corporal R.S.Yadav Corporal A Mandal Corporal UPV Pratheepan '>! Coiporal Krishna KSR fr,orporalKamal Kumar ^ . Sgt. Jai Singh DATE OF HEARING: 30.01.2008 D^TE OFDECISION:

14.03.2008 Petitionerin Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in , Petitioner in . petitioner in Petitioner in Petitionerin Petitionerin Petitionerin Petitioner in Petitioner in Petitionerin Petitioner in Petitionerin Petitionerin Petitionerin 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 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 578/2008 Thru: Ms.Rekha Palli with lyjs.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/^007,7015/2007and 7303/2007. l^/|r.ManzoorAli Khap with Mr.D.K.Gargin WP(C) Nos. 4798-4799/2007. Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Mrs.Prasanthi Prasad for the petitioner in WP(C)Nos. 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. Rameshfor tjie petitionerin WP(C)No.578/08. - Versus - Union of India & Ors. Respondents. ChiefofAir Staff& Ors ^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 Y Thru: Ms.Sonia Mathur for the respondent in 244/2008, 9612/2007, 4799/2007, 6003/2007,244/08, 431/08 and 6272-6274/2007. i^r.Jitendra Kr.Singh fpr respondent No. 5 in WP(C) No. 7015/2007. Mr.Sewa Rpm with Mr.R.K.Bachchanfor the respondent in WP(C) Nos. 9022/2007,540/08, 578/08. Mr.Rajeeve iviehrayvith Ivis.RachittaPriyanka for the respondent in \AifP(C) Nos.7000/2007, 7015/2007, 7153/2007,7303/^007,8811/2007and 8814/2007. Ivir.S. BhowmiGl<f^r counselfor respondentNo.6 in WP(C) No.4798/2007 and for respondent No.4 in WP(C) No.4799/2007. Ms.Saroj Bidawai 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

¶1Whether Reporters of Local papers may be allowed to see the Judgment?

¶2To be referred to the Reporter or not?

¶3Whetherthejudgmentshouldbe reportedipthe Digest? \\

A.K. SIKRI, J. For orders see W.P.(C) No.6272 of 2007 entitled Sgt. Sachin Kumar Pravin Vs. Union of India & Others. (A.k. SIKRI) JUDGE March 14,2008. (J.M.MALIK) skk JUDGE f ( ] / 2— INTHE HIGH COURTOFDEl^HIAT NEW DELHI WP(a Nos. 6272/2007. 244/2008, 9612(2007, l^.^unnnT 4799/2007. 6003/2007. 6273/2007, 6274/2007, 7000/2007, 7015/2007 '•—^— ^^^ om VI onoo/onn"7 A'^i/'PnOR 7153/2007. 7303/2007. 8811/2007, 8814/2007, 9022/2007, 431/2008, 540/2008 and 578/2008. TN THE MATTER OF : Sgt. SachinKumarPravin CpLArjunKumar Maurya Sgt: Sanjay Biswas Cpl S.K.Srivastava .Ashish Srivastava •i^'Cpl Pardeep Kumar "Sgt. N.S.Yadav Cpl. Muluk Raj Singh Cpl. Sanjay Kumar ' Sgt. K.B^Singh Cpl. Raj Kumar CorporalSatveer Singh Cpl. Sanjay Kumar CorporalR.S.Yadav Corporal A Mandal • Corporal UPV Pratheepan CorporalKrishna KSR Corporal Kamal Kumar Sgt. Jai Singh DATE OF HEARING: 30.01.2008 DATE OF DECISION:

14.03.2008 Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in , Petitioner iri Petitioner in Petitioner in • Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in 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).Nb. 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 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 578/2008 Thro: Ms.Rekha Palli with Ivis.Punam Singh for the petitioner in WP(C) Nos.244/2008, 6272-6274/2007. Mr.BaljjtSingh for the petitioner in WP{C) No.9612/2007. Mr.A.K.Trivedifor the petitioner in WP(C) No.9650/2007, 7000/^007, 7015/2007 and 7303/2007. Mr.Manzoor Ali Khap with Mr.D.K.Garg in WP(C) Nos. 4798-4799/2007. . Mrs.Prasanthi Prasad for the petitioner in WP(C)Nos. 7153/2007, 8811/2007, 8814/2007, 9022/2007, 540/08 and And WP(C)No.431/2008. Mr.RajenderPrasadfor tine petitionerin WP(C) No.6003/2007. Major K. Rqimeshfor tfie petitionerin WP(C)No.578/08. r Versus -UnionofIndia&Ors. ^ Respondents. ChiefofAir Staff&Ors ...... RespondentsinWP(C)No.8811/07, WP(G)No.8814/07,WP(C)No.9022/07, WP(C)No.431/08,WP(C)No.540/08 AndWP(C)No.7153/07 Thru: ivis.Sonia i^lathur for the respondent in 244/2008, 9612/2007, 4799/2007, 6003/2007,244/08, 431/08 and 6272-6274/2007. Mr.Jitendra Kr.Singhfpr respondent No. 5 in WP(C) No. ' . 7015/2007. ivir.Sewa Ram with Mr.R.K.Bachchan for the respondent in WP(C) Nos. 9022/2007,540/08, 578/08. ' Mr.RajeeveMehra.yvithIvis.RachittaPriyankafor the respondent in \A/P{C) Nos.7000/2007, 7015/2007, 7153/2007, 7303/^007, 8811/2007 and 8814/2007. jvir.S. Bhowmicl<f^r counselfor respondentNo.6 in WP(C) No.4798/2007 and for respondent No.4 in WP(C) No.4799/2007. . Ms.Saroj Bidawalfor respondent in WP(C)No.9650/07 CORAM THE HON'BLE MR. JUSTICE A.K.SIKRI THE HON'BLE MR.JUSTICE J.M.MALIK-

¶1WhetherReportersof Localpapersmaybe allowedto seethe Judgment?

¶2To be referred to the Reporter or not?

¶3Whetherthejudgmentshouldbe reportedipi the Digest? A.K. SIKRI, J. •. V-For orders see W.P.(C.)No.6272.of 2007 entitledSpt. Sachin Kumar Prf^vin Vs. Union of India & Others. . (A.: [C. SIKRI) March 14,2008. skk •-W" •V. JUDGE (J.M.MALIK) •judge IN THE HIGH COURT OF DELHI AT NEW DELHI A •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. 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 DATE OF DECISION 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. Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in . Petitioner in Peititioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in Petitioner in ly .03.2008 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 578/2008 Ms.Rekha.Palli with Ms.Punam Singh for the petitioner in WP(C) Nos.244/2008, 6272-6274/2007. Mr.Baijlt Singh for the petitioner in WP(C) No.9612/2007. jvir.A.K.Trivedi for the petitioner 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. 4798-4799/2007. jvirs.Prasanthi Prasad for the petitioner in WP(C)Nos. 7153/2007, 8811/2007, 8814/2Q07, 9022/2007, 540/08 and WP[C)No.6272 of 2.007 Page 1 And WP(C)No..431/2008. Mr.RajenderPrasadfor the petitionerin WP(C) No.6003/2007. " . jviajorK. Rameshfor ttie petitioner in WP{C)No.578/08. - Versus - Union of India & Ors. • • Respondents.- ChiefofAirStaff& Ors 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 in 244/2008, 9612/2007, 4799/2007, 6003/2007,244/08, 431/08 and . . 6272-6274/2007. Mr.Jitendra Kr.Singli for respondent No. 5 in WP(C) No. . 7015/2007. Mr.Sewa Rann witl^ Ivir.R.K.Baciiclian forthe ^ • respondent in WP(C) Nos. 9022/2007,540/08, 578/08. IVjr.Rajeeve ivjehra with Ms.Rachitta Priyahka for the respondent in WP(C) Nos.7000/2007, 7015/2007, 7153/2007, 7303/2007, 8811/2007 and 8814/2007.., jvlr.S. Bhowmicl< for counsel for respondent No.6 in WP(C) No.4798/2007 and for respondent No.4 in WP(C) No.4799/2007., jvis.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

¶1WhetherReporters of Local papers may.be allowedto see the Judgment? '2. To be referred to the Reporter or not? V

¶3Whetherthejudgmentshouldbe reportedin the Digest? , . WP[C]No.6272of2007 ' Page 2 1^ 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 iit 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 reliefprayedfor is to quash the rejectionordersand direct the respondentsto issueNOC for civilpostfor whichthey have been selected. In view of the commonalityof the factual position operating in all these cases which are governedby identicalRules and Regulations,we had heard these petitionstogether. WritPetition(Civil)No.6272of 2007 was treatedas lead case. Therefore,fOr the sake of convenience,we may start our discussionwhile takingnote ofthe facts ofthis writpetition. . , WP[C]No.6272 of2007 n v Page 3 The petitionerin this case is servingas aimianinthe 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 SectionOfficer(Audit)which is a civil post under the Government of India. Selectionfor this post is conductedthrough Staff SelectionCommission

(SSC). The petitioner submitted his applicationto 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 petitionerappearedin 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 consideredby the SSC and has been selected for the post of . SectionOfficer(Audit). However,he is not able to jointhepost for want of NOC. 'v • . • . • In thesecircumstances,he has approachedthis Courtwith the followingprayers; A. "Issue a writ of mandamus or other appropriate order/direction directing.Respondents to issue a 'No Objection • . Certificate (NOG)' for Civil post i.e. Section Officer (Audit) in WPCC]No.6272of2007 - • p^gg4 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 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 glancethroughthe relevantprovisionson 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 givensei-vicebond as per which they had agreedto serve the Air Force for a period of20 years. Normally,therefore,these petitionersare requiredto completetheirtenureof20 years with the IndianAir Force. However, the respondentIndian Air Force has framed a Policy as per which NOC can be given afterrendering7years of serviceby an airman in case he gets selectedin a civilpostunderCentralGovernment/StateGovemment/PSUssubjectto fulfillment of certain conditions-mentioned in the Policy. The Policy in question is dated r-' _

9.5.2003whichhas been amendedfrom time to time. WP[C)No.6272 of2007 Pages

¶2O 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 serviceexigenciesand 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 issuedin aparticularcase or not. Whilebestowingits consideration,the guidingprinciplebeforethe CompetentAuthoritywould b6 "the serviceexigencies". Para-6 further mentionsthat issuanceof NOC is aprivilege and cannot be claimed as a matter of right within the engagementperiod of 20 • years, as is clearfrom 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 serviceexigenciesand after approvalby ACAS (PA &C). Issuance of NOC is a privilegeand cannot be claimed as a matter of right within the - engagementperiod of 20 years. Request for issue of WP[C)No.6272of2007 Page 6 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 applicationsof those eligibleairmenetc (i.e. who have completed J 07 years oftheir engagement)desirousof applyingcivil post is to be forwardedto their respectiveCommand Headquartersthrough Station/UnitCommanders. The Command Headquarterhas to vet these applicationsand on satisfyingthat the concernedcandidatefulfilsthe eligibilityconditions,the CommandHeadquarteris to forwardthe applicationto the concernedDepartment/employer. As mentioned above, these applicationshave to be for those civil posts which are under Central Govermnent/StateGovernment/PSUs. Certain \ . categonesof Airmen/NCsare not entitledto apply, as mentionedin para-4ofthe Policy. However,we can avoid detailsofthese personsas admittedlynone ofthe petitioners are covered by such cases, as 'mentioned in para-4. Once this '. WP(C]No:6272 of 2007 Page 7 •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 approachdirectlyby the Stationfor 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, interalia, noted that there was bulge' at the Sergeantlevel which was affectingthe airmen cadre and its detrimentaleffect on the cadre on the whole was a well Icnown fact. It further notesthat even with the recentincreasein the establishmentsanctionedstrengthby the GovermTientwhich is to be actuallyadded in phases the strengthofSergeant WP[C)No.6272of2007 ^ ^ g would still remain considerablyabove 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 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:

¶3The 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 year of , service starting from PBOR who are completing WP[C)No.6272of2007• , Paggg 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 put 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 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. I

(d). Extensions vyould 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 applyingfor 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 of2007 Page 10 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 lAF 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. . '

¶5In 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 l\10C to PHOR who have completed years of' service and have submitted unwillingness to extend their service or have not been-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 agency, including the' private sector. Airmen granted such NOCs will be allowedto seek discharge in case they are selected for employment in Govt enterprises/PSUs/PrivateSector as the case may b e. PBOR • having undergone, ' specialist training/course/deputation abroad would be allowed discharge after completion of their obligatoryperiod, if any . Para 6 ofthe Policydeals with"PreReleaseCourses'. WP[C}No;6272 of2007 ^ Page 11 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 to allqwing 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.

¶8This 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 petitionersemphasizedthat there is an acceptanceof the fact that there is a bulge' at Sergeantlevel. It is even affectingthe AirmenCadre 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 conditionslaid down in the Policy. It is also sought to argue that many other officerssimilarlysituatedare issued similarNOC wiiose names are giveii in die petitions. WP[C]No.6272 of2007 Page 12 • AIR FORCE ORDER DATED 1.6.2007 This was followed by Air Force Order No.4 of 2007 issued by Air ChiefMarshalon 1.6.2007giving in detailthe guidelineswhich are to be followed while consideringapplicationsfor discharge. Para-1 thereofstipulates that the i concernedapplicantwouldbe permittedto apply"forcivilpostunderCentral/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 equivalentpost 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 respectof airmen and respectiveCommandHeadquarterin respectof NCS(E). It also stipulatesthatNOC shallnot be issuedifthe applicationfor the post has not WP[C]Nb.6272of2007 . ' Page 13 contained in Policy dated 9.5.2003 which would be applicable. More so, when new Policy dated 1.6.2007 is not made retrospective.

¶2Oncepermission is given to apply for the post, NOC should not normallybe refused. It was argued that such permission is given after satisfying that a particular applicant fulfilled all the conditionsand 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.

¶3The purpose of the policy was to reduce the 'bulge' at sergeant level. It was for this reason that permissionwas given to seek dischargeonly 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.

¶4The main reason for giving dischargeafter 07 years of service was that at this periodoftime the concernedairmenwould be eligibleto apply for civil WP(;gNo.6272 of 2007 Page 15 post which opportunitymay not be availablefor.20 years of serviceas such airmen would face age Bar. ' '

¶5The 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 petitionersNOCs were denied.

¶6The 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. petitionerwas non-speaking. Likewisecounsel for the petitioner appearing in WP(C)Nos.6273and 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 appliedfor 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.6272/200.7, 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 voluntarilysignedEnrolmentForm to serve the Indian Air Force for a periodof 20 years. Therefore,normallysuch officersare bound to sei-veIndianAir Forcefor regularengagementperiod. Likewisewhen applyingfor the civilpostthesepetitionershad 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 to service exigencies and is a privilege and can not be claimed as matter of right within the engagement period of 20 years." 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(RadioFitter). Furtherit is also deniedthat 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 prevailedwith the respondentsin examiningeach 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 , . ' . Page 18 A was foundthattherewas 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 learnedcounselappearingfor the respondentsubmittedthat instructionswere applieduniformallyand there was no • discrimination.' Cases cited by the petitionerswhere the NOC was issued were soughtaway by givingjustificationbecauseof which such NOCs were issued. At the time of hearingrecordsin these cases were producedfor perusal of the Courtto / 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. Particulars of Airmen Details of the Case 1-4798 776836 Cpl A. Srivastava AF Fit Pos4-Aircraft Technician EmpSoyer-Indian Airlines Date Considered-13Jun Intimation to Unit-14Jun Grounds • of rejectSon-Manpower deficiency/criticality in his trade,. Service less than 15 years and Post also not Gazetted or its equivalent 2, 4799 776372 Cpl Pradeep Kumar Post-Aircraft Technician Employer-Indian Airlines Date of Consideration-13 Jun 07 WP(C]No.6272 of2007 Page 19 6003 6272 6273 6273 WP[qNo.6272 of2007 AF.Fit 740331 Sgt IMS Yadav ADSO 748058 Sgt SK Praveen Rdo Fit 780770 Cpl Sanjay Kumar MTD 769497 Cpl MR-Singh Eng, Fit 743268-B Cpl Amritakar Mandal Rad Fit 3> Intimation to Unit-14 Jun 07 Grounds of rejection-Manpower deficiency/criticality in his trade, Service less than 15 years and Post also not Gazetted or its equivalent Post-Primary School Teacher Employer-Rajasthan Public Service Commission Date of Cohsideration-07 May 07 Intimation to Unit-08 May 07 Grounds of 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 Grounds of rejection-Manpower deficiency/criticality in his trade, 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 Grounds of rejection-Manpower deficiency/criticality -in his 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 of rejection-Manpower deficiency/criticality in his trade. 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 Grounds of rejection-Facing manpower shortage in Rad Fit Trades, Service rendered by him is less than Page20' 6274 7000 7153 7303 WP[C]No.6272 of2007 785964 Cpl Raj Kumar. PIVIF(M) 751051 Sgt KB Singh MFd) 770668 Cpl Satveer Singh Clk GD 763486 Cpl Sanjay Kumar Inst Fit 749140-R Cpl RS Yadav Rdo Fit • 15 years and Post applied for is not Group 'A' post Post-Assistant Employer-Staff Selection Commission Date of Consideratlon-30 Apr 07 Letter of Intimation to Unit-04 May Grounds of rejection-Manpower deficiency/criticality in 'his trade. Service less than 15 years and Non-Gazetted Post " Post-Junior Engineer-ll (C&W) (Rs.5000-8000) Employer-Indian Railways Date considered-01 Aug 07' intimation to Unit-02 Aug 07 Grounds of rejection-Manpower deficiency/criticality in his trade, Service less than 15 years and Non-Gazetted post Post-Section, Engineer (Rs.6500-10500) Employer-Indian Railways Date of Consideration-23 Aug 07 Letter of Intimation to Unit-27 Aug ' ' • • . • Grounds of rejection-Manpower deficiency/criticality in his trade, Service less than 15 years and not equivalent of Group 'A' post. Post-Section Engineer Employer-Indian Railways Date of Consideration-13 Set 07 Letter of Intimation to Unit-17 Sep Grounds of rejection-Manpower deficiency/criticality in his trade, Service less than 15 years and not equivalent of Group 'A' post; Post-Section Engineer Employer-Indian Railways Date of Consideration-18 Set 07 Letter of Intimation to Unit-19 Sep Page 21 \ • V.-

1.3 •WPCC]No.6272 of 2007, 790223 Cpl UPV Pratheepan Rdo Fit of Wing 755369 Sgt Sanjay Biswas |VIF(|VI) 764699 Cpl SK Srivastava PMF(E) •, 791348 Cpl A.K. Maurya Rdo Fit Grounds of rejection-Facing 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 Grounds of rejection-Facing 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 School Selection Commission Date of Considerat5on-25 May'07 Letter of intimation to Unit-28 May Grounds of rejection-Shortage of manpower in MF(M) trade, Service rendered is more than 15 years but post applied for is not a Group 'B' (Gazetted) or equivalent post. Post-Section Engineer Employer-UP Electricity Board Date of Consideration-23 Aug 07 Letter of Intimation to Unit-27 Aug _ Grounds of rejection-Shortage of manpower in PMF(E) trade, Service rendered-is less than 15 years and post applied for is not a Group 'A' or equivalent post Post - sub Inspector in CBI Employer - SSC (NR) Date of Consideration - 13 Sep 07 Intimation to unit - 17 Sep 07 Ground of rejection - Shortage of manpower in Radio Fitter trade, Service rendered is less than 15 years and post applied is not a Group 'A' or Page 22 111129 Cpl Kamal Kumar AF Fit 775076 Cpl KSR Krishna AF Fit rN Jin-equivalent post Post - Tax Assistant Employer-SSC Date of Consideration - 30 Apr 07 Intimation to unit - 04 iviay 07 Ground of rejection - Shortage oF manpower in AF Fit trade, Servic(5 rendered is less than 15 years and 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 in AF Fit trade, Servicf? rendered is less than 15 year5ian(J post applied is .not a Group 'A' or equivalent post " 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 Page 23 i 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 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 thetime of issuanceof NOC therewas 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, merelybecausethey 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 forwardthe same to the respectiveCommandHeadquarter. Once 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 clearfrom Para-5 of the Policy,relevant • portion whereof reads as under:

¶5"As and when Airmen/NCs

(E) qualify for the , interview, Air HQ is to be approached directly by the , Station/Unit for, issues of 'No Objection Certificate'. NOC is to be obtained,from Air Headquarters (Dte of PA) before attending the interview, irrespective of the fact whether the NOC has been asked for by the prospective department/enhployer or not. NOC will not be issued once the interview is over or offer letter has. been received. While approaching Air Headquarters for issue of NOC, Station/Unit will invariably forward the • • following documents :

(a) Written request from the Airman/NC(E) asking for issue of NOC. . ' • . • •(b) A copy of interview call letter with specific date, and venue of interview, duly attested by a commissioned officer.

(c) Advertisement in original or Xerox copy duly attested by a commissioned officer vide which' the employer had sought submission of applications. .

(d) A'certificate to the effect that there is no disciplinary case in progress/contemplated against concerned Airman/NC(E).

(e) A certificate, from Station/.UNIT Commander/Adjutant to the effect that the concerned Airman/NC(E) is not under obligation to serve beyond RE due to an undertaking given by him...

(f) A Xerox copy of the covering letter received from Command Headquarters vide which the application of WP(C]No.6272of2007 , Page 25 the Airman/NG(E) was forwarded, to the concerned employer/department". 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 from •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 the employer through respective Command Headquarters. Once the NOC is issued, it-is to be attachedeitheras 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." •• , rhe respondentshave explainedthe rationalein consideringsuch NOC at alater stage. It is explainedthatunlessthe applicantqualifiesfor interview,it is not even necessaryto consideras to whetherhe woiild be needingNOC or not as WP[C]No.6272 of2007 • . Page 26 \ • no NOC would be required by a candidate who has failed to qualify-for civij/post. Moreoverthe 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 ourjudicial 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 alreadynoted in para-6 of the Policyreproducedabove that issuance of such an NOC is a privilege and riot a right conferred upon these Ailmen within engagementperiod of20 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 Page 27

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: AFO 05/03 Date of issue of AFO is 09-05-03 Minimum service required to apply for the civil post is 07 years Permitted to apply for civil posts under Central/State Govt. and public undertaking. Airmen/NG(E) Those who have given undertaking to serve for a specific period beyond regular engagement owing to courses, deputation/posting within India/abroad are not permitted to apply. Procedure - Application to be forwarded to the Command HQ.,- Thereafter Command HQ will forward the application to the concerned Department/Employer. WP[C]No.6272.of2007 AFO 04/07 - Date of issue of AFO is 01-06-Minimum service required to apply for the civil post is 07 years - Permitted to , apply for civil posts before years "under Central/State Govt. in Group A and B'Gazetted post only. - Above restriction . of Group A and B Gazetted post will not be • applicable to Airmen/NC(E) who have completed 15 yrs. Of service. • - Airmen who have completed yrs of service and are unwilling to serve further or not cleared for extension of engagement are perniitted to apply, for employment in private" sector also and there will be no restriction of any kind. Procedure - Application to be forwarded to the •. respective department/employer by the AOC/Stn . Cdr/CO unit duly vetted. Page 28 - As Airmen/NC(E) qualify for interview, Air HQ is to be approached • directly by the Stn/Unit for issue of NOC. - NOC to be obtained-from Air HQ '(DPA) for attending the interview. Para-6 of AFO - NOC will be issued by Air HQ

(DPA) as per Appendix to AFO on -case by case basis, subject to service exigencies and after ; approval by ACAS(P&C). Issuance of NOC cannot be claimed as a matter of right within engagement period of 20 years. Request for issue of NOC is to be submitted only when an Airman/NC(E) fulfills all the eligibility ' conditions and •application was forwarded to the emplover/departmertt through Command HQ. Once NOC is issued, it is to be attached either as 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 is being issued by the Unit/Stn. - , Application for NOC is to be submitted by the individuals after receiving call letter for the interview. - Stn Cdr/CO will 'forward the application to the Air HQ for issue of NOC. Para-9 of AFO' / -NOC will be.issued by the Air HQ (DPA) in respect of airmen as per format given at Appendix C and in/respect of NC(E) as per Appendix D to this AFO case by case basiS; subject to the exigencies of service and with the overriding condition being the overall cadre requirement in a particular rank/trade. Issuance of NOC cannot -be -claimed as a matter of right within engagement period of 20 years. Request for issue of NOC is to be submitted only when an Airman/NC(E) fulfills all the eligibility conditions and application was forwarded to the employer/department through proper channel. No provisional or conditional NOC is -to be issued by the Stn/Units. 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 slightamendmentwas 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 includingPara-Militaryforces. In the WP[C]No.6272of2007 ^ ~ Page 29 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 to which he applies should be in Group-A and B (Gazetted) or equivalent in 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 eligibleunder 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 submittedand consideredis •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 eithernot applied for Group Aand B(Gazetted)post or had WP[C}No.6272 ofZOO? Page 30 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 grant 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 years was criticality in some trades and even ranks (particularly supervisory ranks). Keeping in view the purpose with which the Policy was - amended, the respondents have also decided that while considering issue of NOCs in future, the following two categories of 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 the civil post in question is' a, Group'A' post in Central/State Govt or its equivalent in pay scale in PSUs. • 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 Page 31 'A' posts are very rare, while stakes'from the point of view of welfare of airmen are very high. /

(b) Applicants for NOCs, who have rendered more than years of. service and the civil post in question is Group 'B' (Gazetted) post in •"Central/State Govt. or its equivalent in pay scale (Rs.6500 to 10500) in PSUs. lustification PBOR in the Army and Navy are availing of such concession after only • 14 years' length of 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. "If , The respondents have thus laid down the objective criteria for , ^/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,2007which 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 servicerendered by the-applicantin those cases was more than 15 years or ' • • • they had appliedto the post equivalentto Group-A post. We are, therefore, satisfiedthat no case of discriminationis made out. Therefore,the Supreme Courtjudgmentin case (supra) cited by the petitionerwill have no' WP[qNo.6272 of 2007 Page 32 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 for 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 that such a claim of release was even. incQnsistent with the requirement of strict discipline for Naval service. . The followingobservationof the SupremeCourt in the context are worth a quote:

¶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. In our considered view the • ..answerto,the question has to be in the negative. To vest F . ^ 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 abhorrentto the high standard of discipline- - expected of members of defence services. The consequence, in accepting such contention raised on behalf of the respondentswill lead to disastrousresults touching upon the security of the nation. . It has to be borne in mind • WP(C]No.6272 of2007 Page 33 that hiembers of the defence services including the Navy have the prqud privilege of being entrusted with the task of security of the nation. It is a privilege which comes the way of only selected' persons who have succeeded in entering the service and have maintained high standards of efficiency. It 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 provided in the Regulations. Such provisions, in our 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.

¶25Therefore,it is in the fitness of thingsthat 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 situationif the sailors who have completedthe period of initial engagementand have been granted re-engagementdemand release from the force-and the authoritieshave no discretionin the matter, then the efficiencyand combatpreparednessof the Naval Force affected. Such a situation has to be-ta? that a sailorwho T serviceand herebyearnedtlie•• of pensioncan claim releaseas a matterof right and dnoc '0 ^<:cept his request Htah rnnrt"!?'Considered view, the orrnrh • ^ approach to the case and the error has Vitiatedthe judgment". 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 7.9,2001as per which those who have completed15 yea of engagementwere permittedto apply for civil posts under Central/State Governmentsand equivalentjobs in PSUs, The writ was filed questioning said provisionof 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 requisitecontractsagreeing to serve respondentsfor a period of 20 years. We need to reproducethe following observationsmade by this Court while dismissing the writ petition:

¶16"The respondentin its counteraffidavithas contended . that a decision was taken at the, highest level at Air Headquarters in consultation with the Judge Advocate^ General (Air) that all Airmen who were given initial • , asn« to apply for Civil post by the Air^rceu!^ ' priorto 05-09-01were all issuedwith 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 statedto be 15 year's of se^ice in that view of the matter,evidentlythe petitone had not been discriminatedagainst, P«itioner . •t/ken h^vinTregTrrtoIhetac^^^ ™'4'ly"ratriin'^l^ ' utiSfon's°h"rc!,rta;]^^^^^ Tnd bSnc'h'co Pef^^anent^^oTr^is'^iL^i'^^^^ the engagemerperlod.'"® "i'^in ; ^P[qNo.6272 of2007' . Page 36

18.The terms and conditions of service, 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 for a period of 20 years wherefor he entered into a requisite contract.

19.prom the petitioner's letter dated 03-04-01, it appears that he had only applied for permission to appear 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". This leaves us to consider additional submissions which were Xmade by learned counsel for the petitioners appearing in 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 lndianAir Lines Ltd. of the civil post were revised wef 7.8.2007and 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 Governmentcame into force w.e.f. ^1.1.96 on the implementationof the 5"^ Central Pay Commission, Therefore, "^comparison has to be of the pay scale prevailing as on that date, In a 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 Page 37 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. , . /' I March I'l ,2008. skk WP[C]No.6272 of 2007 (A.K. Sim ) JUDGE • ,< (J.M.MALIK) • JUDGE Page 38