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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 Civil Appeal  Nos 4605 - 4606  of  2019 (D No 27372/2015)

Amit Kumar Roy ..Appellant  

VERSUS

Union of India & Ors ..Respondents  

With

Civil Appeal  No  4607  of  2019 (D No 27196/2015)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

Civil Appeal Nos 4605-4606 of 2019 (D No 27372/2015):

1 These appeals arise from a decision of the Armed Forces Tribunal1  dated

11 April 2012 together with its order dated 25 May 2012, declining to review the

initial decision.   

1 AFT

REPORTABLE

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2 The appellant was enrolled on 12 January 2004 as an Airman in the Indian

Air Force2. His regular engagement was to come to an end on 11 January, 2024.

An advertisement was issued by the Bank of India on 7 August  2010 inviting

applications for filling up 2,000 posts of Probationary Officers. While posted at the

Three Base Repair  Depot,  the appellant  responded to  the advertisement  and

applied for the post of General Banking Officer in the pay scale of Rs 14,500-

25,700 in August 2010.  The appellant did so without completing the mandatory

period of service of seven years.  Moreover, he did not obtain the prior permission

of his unit authorities.  This was (according to the Air Force authorities) in breach

of  the  provisions  of  Air  Force  Order  14/2008  which  was  then  in  force.   The

appellant applied for the issuance of a No Objection Certificate3 and a Discharge

on 30 May 2011.  By then he had appeared at the written test held by the Bank

on  16  March  2011  and  for  an  interview  at  which  he  was  declared  to  be

successful.   His  application for  an NOC and discharge was forwarded to  the

competent  authority  at  Air  Headquarters  by  the  Headquarters  Maintenance

Command on 4 July 2011.  On 28 July 2011, the appellant received an order of

appointment as a Probationary Officer with the Bank.  On 16 August 2011, he

moved the AFT4 at its Regional Bench in Chandigarh seeking directions for the

grant of an NOC and for discharge from the IAF to join a civil post with the Bank

of India.   On 18 August 2011, the AFT issued an interim direction to the IAF

authorities to provisionally issue an NOC and to discharge the appellant so as to

enable him to take up the new assignment before 24 August 2011.  This was

subject to the condition that in the event of his OA being dismissed, the appellant

2 IAF 3 NOC 4 OA 1182/2011

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would  have to  give  up his  appointment  and join  the IAF within  a  reasonable

period of  time failing which he would be liable to action as a deserter absent

without  leave.   On 2 September 2011 after  the rejection of  an application for

review filed by the Air Force authorities before the AFT and faced with a contempt

petition, Air Headquarters issued a provisional NOC to the appellant permitting

him to take up the appointment in a civil post of a General Banking Officer (JMG

Scale-I) with the Bank of India.  A discharge order was issued on 20 September

2011  on  a  provisional  basis  on  the  conditions  stipulated  by  the  AFT.    The

appellant joined Bank of India on 24 September 2011.   

3 A Civil Appeal5 was filed by the Union of India in this Court to assail the

interim order of the AFT.  On 12 March 2012 this Court directed the Air Force

authorities to dispose of the application submitted by the appellant on 30 May

2011 for an NOC and discharge. The application was rejected on 26 March 2012.

The order of rejection, in so far as is material, is extracted below:

“(a) You had applied for the civil post directly without obtaining prior permission of your Commanding Officer that too before completion of mandatory period of seven years of service in the IAF in violation of AFO 14/2008.

(b) Both the above acts amount to indiscipline.

(c)  The  pay  scale  of  the  civil  post  applied  by  you  is  Rs 14,500-25,700 which is not equivalent to Group –“A” as per Air HQ/S 40726/PA(RC) dated 22 May 2009 read with AFO 14/2008.  As per referred letter dated 22 May 2009 the post is equivalent  to  Group  –“C”  Govt  Post  for  which  an  airman belonging to a trade not having critical manning is eligible to apply  only  on  completion  of  15  years  of  service.   On completion of 18 years of service, one can apply for any post, irrespective of critical manning in respective trade, provided he had rendered unwillingness/denied extension of service.

5 Civil Appeal D No 38467/2012

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(d)  You belonged to Air  Frame Fitter trade which is having critical manning.

(e) At the time of applying for the said post, your trade was having critical manning, also you had not completed 15 or 18 years of service which is mandatory for applying for Group –“C” Govt posts and equivalent posts in PSUs.”

On 9 April 2012, when his OA came up before the AFT the Air Force authorities

had already passed an order rejecting his application.  Hence on 11 April 2012

the OA was dismissed as having become infructuous, though with the observation

that the “interim order dated 18 August 2011 will have its force”.  The appellant’s

review  application  was  dismissed  on  25  May  2012.   On  2  June  2012,  the

appellant filed writ proceedings6 before the High Court of Punjab and  Haryana.

He was protected by an interim order dated 15 June 2012, against being treated

as a deserter.  On 22 June 2012 Air Headquarters cancelled the provisional NOC

dated 2 September 2011 and the provisional discharge issued in compliance with

the order of the AFT dated 11 April 2012 noting that an order of reinstatement in

the service of the IAF was issued on 18 June 2012, to take effect from 16 July

2012.  The appellant was called upon to join duties at his last unit, Three Base

Repair Depot, failing which it was stated that he would be liable to disciplinary

action.   

4 Since  the  appellant  had  not  received  a  clean  discharge  certificate,  his

services were terminated by Bank of India on 30 April  2014.  Challenging his

termination, the appellant moved writ proceedings7 in which by an order dated 17

September 2014, the termination was stayed.  In view of the decision of this Court

6 CWP 11861/2012 7 CWP 19402/2014

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in Union of India v Major General Shri Kant Sharma8, the High Court held that

it  had no jurisdiction to entertain the writ  petition filed by the appellant  under

Article 226 and while leaving it open to him to pursue an alternate remedy before

the AFT.  

5 The appellant now seeks to challenge the decision of the AFT rendered on

11 April 2012 together with its order dated 25 May 2012 declining to review its

decision.   The  AFT came to  the  conclusion  that  the  OA had  been  rendered

infructuous since in  the meantime,  in  pursuance of the orders of  this  Court  a

speaking order had been passed by the Air Force authorities on 26 March 2012

rejecting  the  application  for  an  NOC.  In  the  review  order,  the  AFT declined

permission to the appellant to amend the OA.

6 Mr Gopal Sankaranarayanan, learned senior counsel appearing on behalf

of the appellant submitted that:

(i) The appellant has a fundamental right under Article 19(1)(g) to choose his

place of employment.  The provisions of Article 19(1)(g)  in their application to the

members of the Air Force are not any different from their application to any other

branch of government;

(ii) There  was  sufficient  compliance  by  the  appellant  with  the  provisions

contained in paragraph 17 of AFO 14/2008;

(iii) On the purported non-parity of pay scales:

(a) The Air Force Order dated 23 July 2015 indicates that pay scales for

Assistant  Managers  in  Scale  I  of  public  sector  banks  have  been

8 (2015) 2 SCC 519

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revised  to  meet  with  the  equivalence  criteria  vis-à-vis  Group  A

government  posts  and  that  approval  has  been  accorded  to  the

procedure  for  the  discharge  of  Airmen  selected  for  nationalised

banks; (b) The appointment order dated 15 April  2013 issued to the appellant

indicates a basic pay of Rs 14,500 – 25,700; (c) Pay scales of banks are revised every four to five years as against

central pay scales which are revised once in ten years; and (d) Consequently  the  pay  scales  in  the  banking  industry  are  well  in

excess of those offered in the IAF;

(iv) As regards the issue of the ‘criticality of trade’:

(a) The appellant was appointed  to a post equivalent to a Group A post

and was entitled to a waiver of the condition; (b) The order passed by the Air Force authorities on 22 July 2013 did not

mention criticality of trade as the reason for denying permission; (c) In Corporal Gaurav Badhwar v Union of India9, the Delhi High Court

has held: “..assessment of criticality in a trade would ordinarily be within the domain of the employer, but where it is pleaded that due to  dying  nature  of  the  work  due  to  modernization  in  the equipment of the employer, some category of employees are being rendered without work and are being adjusted in other activities, and for which we highlight the evasive denial by the respondents to the pleas of Cpl Gaurav Badhwar in para 16 of  the writ  petition that  25% to 30% Instrument  Fitters  are being  made  to  work  in  the  Bar,  Canteen  and  other establishments where they perform duties wholly unrelated to their skills of Instrument Fitters, it would be a case requiring it to  be held that  the employer  has failed to  make good the defence of there being criticality in the trade.”   

(iv) As on February 2019, over five years have elapsed since the appellant

commenced  employment  with  the  bank.   The  career  advancement  policy

9 (2015) SCC Online Del 7275

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necessitates a liberal approach.  The omission of the appellant to apply through

proper  channels  was only  a  procedural  irregularity  and not  an illegality.   The

appellant applied for  discharge on 17 April 2013, which was followed by a fresh

application on 13 July 2013.  The failure to seek prior permission, it has been

urged is an irregularity and does not cause prejudice to the IAF.  The equitable

intervention of this Court has been sought for the grant of a ‘clean’ NOC and

discharge certificate which would enable him to continue to serve the bank in

which he is employed.   

7 On  the  other  hand,  Mr  R  Balasubramanian,  learned  senior  counsel

appearing on behalf of the Union of India and the Air Force authorities submitted

that:

(i) The appellant has proceeded on a misconceived assumption that though

he is a member of the Air Force, he is entitled to leave employment at his will in

view of  the fundamental  right  guaranteed  by Article  19(1)(g).  The submission

ignores the specific provisions of Article 33 of the Constitution;

(ii) There is a fallacy in the submission that a person enrolled in the armed

forces of the Union (in this case the IAF) is entitled to leave service at will.  A

person who is enrolled is governed by the discipline of the force. Sections 13,14

and 15 of the Air Force Act 1950 would make it abundantly clearly that there is a

statutory obligation to serve during the period of engagement, a breach of which

would invite disciplinary action;

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(iii) These statutory provisions are complemented by the Air Force Rules, more

particularly,  Rules  7  and  9  which  have  been framed  under  the  provisions  of

Section 189 of the Act;

(iv) Air Force Order 14/2008 which held the field at the material time regulated

the terms on which persons enrolled in the IAF may apply for civilian employment;

and

(v) In interpreting the provisions of law, it would be necessary for this Court to

have regard to :

 The need to maintain manning levels;  The requirement of operational preparedness;  Training costs incurred in incorporating technological advancements;  Interests of the IAF; and  Importance of training of a particular trade or category.

In this backdrop, it was urged that there is no general or vested right to leave

service  during  the  period  of  engagement  and  any  application  has  to  be

considered on a case to case basis.   Mr Balasubramanian submitted that the

appellant who was enrolled in the IAF breached his statutory obligation and left

service without prior permission, rendering him liable for disciplinary action.

8 The rival submissions will be considered.

9 Article 33 of the Constitution provides as follows:

“33. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,— (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c)  persons  employed in  any  bureau or  other  organisation established  by  the  State  for  purposes  of  intelligence  or

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counter  intelligence;  or  (d)  person  employed  in,  or  in connection with,  the telecommunication systems set  up for the purposes of any Force, bureau or organisation referred to in  clauses  (a)  to  (c),  be  restricted  or  abrogated  so  as  to ensure  the  proper  discharge  of  their  duties  and  the maintenance of discipline among them.”

The Air Force Act 1950 has been enacted by Parliament legislating under Articles

245(1) and 246(1) of the Constitution.  The specific legislative entry in the VII th

Schedule is Entry 2 of the Union list which reads thus:

“Naval, military and Air Forces; any other armed forces of the Union.”

The Air  Force Act 1950 imposes restrictions on the fundamental  rights of  the

members of the IAF with a view to ensure ‘proper discharge of duties and the

maintenance of  discipline among them’.   Section 13 stipulates the procedure

which is to be followed before the enrolling officer, where any person desires to

be enrolled.  Section 13 provides as follows:  

“13.  Procedure  before  enrolling  officer.—Upon  the appearance  before  the  prescribed  enrolling  officer  of  any person desirous of being enrolled, the enrolling officer shall read and explain to him, or cause to be read and explained to him, in his presence, the conditions of the service for which he is to be enrolled; and shall put to him the questions set forth  in  the  prescribed  form  of  enrolment,  and  shall,  after having cautioned him that if he makes a false answer to any such question he will be liable to punishment under this Act, record  or  cause  to  be  recorded  his  answer  to  each  such question.”

Section 14 provides for the mode of enrolment:

“14.  Mode  of  enrolment.—If,  after  complying  with  the provisions of section 13, the enrolling officer is satisfied that the person desirous of being enrolled fully understands the

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questions  put  to  him  and  consents  to  the  conditions  of service, and if such officer perceives no impediment, he shall sign and shall also cause such person to sign the enrolment paper,  and such person shall  thereupon be deemed to  be enrolled.”

Section 15 deals with the validity of enrolment:

“15.  Validity  of  enrolment.—Every  person  who  has  for  the space of  three months been in receipt  of  pay as a person enrolled under this Act and been borne on the rolls of any unit shall be deemed to have been duly enrolled, and shall not be entitled  to  claim  his  discharge  on  the  ground  of  any irregularity or illegality in his enrolment or on any other ground whatsoever;  and if  any person,  in  receipt  of  such pay and borne on the rolls as aforesaid, claims his discharge before the  expiry  of  three  months  from  his  enrolment,  no  such irregularity  or  illegality  or  other  ground  shall,  until  he  is discharged in pursuance of his claim, affect his position as an enrolled person under this Act or invalidate any proceedings, act or thing taken or done prior to his discharge.”

Before enrolment, the enrolling officer has to make the person who desires to be

enrolled cognizant of the conditions of service.  Section 14 mandates that before

signing on the enrolment, the individual has to consent to the conditions of his

service. A person who has for a period of three months been in receipt of pay as a

person enrolled under the Act and has been borne on the rolls of  any unit  is

deemed to have been duly enrolled. On being attested under Section 1610, the

individual  subscribes  to  an  oath  or  affirmation  to  bear  allegiance  to  the

Constitution, to serve in the Air Force and to obey all commands of an officer set

over him, even to the peril of his life11. Tenure in the Air Force is subject to the

10 16. Persons to be attested.—The following persons shall be attested, namely:— 14 (a) all persons enrolled as combatants; (b) all persons selected to hold a non-commissioned or acting non-commissioned rank; and (c) all  other persons subject to this Act as may be prescribed by the Central Government.

11 17. Mode of attestation.—(1) When a person who is to be attested is reported fit for duty, or has completed the prescribed period of probation, an oath or affirmation shall be administered to him in the prescribed form by his commanding officer in front of his unit or such portion thereof as may be present, or by any other prescribed persons. (2) The form of oath or affirmation prescribed under this section shall contain a promise that the person

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pleasure of the President12.  A person subject to the Air Force Act 1950 may be

retired,  released  or  discharged  from  service  “by  such  authority  and  in  such

manner as may be prescribed”.13

10 Section  189  empowers  the  Central  government  to  make  rules  for  the

purpose of carrying into effect the provisions of the Act. Rule 7 provides thus:

“7 Enrolling officers and form of enrolment.—

(1) The following officers shall be enrolment officers for the  purposes of sections 13 and 14, namely:—

(a) all recruiting officers;

(b) all assistant recruiting officers;

(c) the Officer Commanding a unit of the Air Force.

(2) The Form of enrolment set forth in the First Schedule is  prescribed for the purposes of sections 13 and 14.”

Rule 9 is in the following terms:  

“9 Oath or affirmation to be taken on attestation.—

(1) The oath or affirmation to be taken on attestation shall be in one of the following form or in such other forms to the same purport as the attesting officer ascertains to be in accordance with  the religion of  the  person to  be attested  or  otherwise binding  on  his  conscience.  Form  of  Oath  I  ..................do swear  in  the  name  of  God  that  I  will  bear  true  faith  and allegiance to the Constitution of India as by law established and that I will as in duty bound honestly and faithfully serve in the Air Force of the Union of India, and go wherever ordered by  air,  land  or  sea,  and  that  I  will  observe  and  obey  all commands of  the  President  of  the  Union  of  India  and the

to be attested will bear true allegiance to the Constitution of India as by law established, and that he will serve in the Air Force and go wherever he is ordered by land, sea or air, and that he will obey all commands of any officer set over him, even to the peril of his life. (3) The fact of an enrolled person having taken the oath or affirmation directed by this section to be taken shall be entered on his enrolment paper and authenticated by the signature of the officer administering the oath or affirmation.  

12 18. Tenure of service under the Act.—Every person subject to this Act shall hold office during the pleasure of the President.

13 22. Retirement, release or discharge.—Any person subject to this Act may be retired, released or discharged  from the service by such authority and in such manner as may be prescribed.

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Class Cause of  discharge

Competent  authority to  authorize  discharge

Special  instructions

Persons  enrolled  under the Act  who have  attested.

(a) At his own request on  transfer to  the pension  establishment

Commanding  Officer

To be carried  out in  accordance  with the  conditions of  enrolment

(b) On  fulfilling the  conditions of  his enrolment

Commanding  Officer

To be carried  out in  accordance  with the  conditions of  enrolment

(c) Having  been found  medically  unfit for  further  service.

Commanding  Officer

To be carried  out only on  the  recommendati ons of an  Invaliding  Board

(d) On  transfer to  the pension  establishment or on  discharge  with gratuity  otherwise  than at his  own request  or under item  (c).

……

(e) Having  been found  inefficient in  his rank or  trade and  being  unwilling to  accept  reduction or  remustering

Air Officer I/c  Administratio n

An Airman  reported as  inefficient will, as far as  vacancies  allow be  permitted to  remuster and / or accept  reduction in  any rank and  trade for  which he is  reported as  suitable. If no  such vacancy  exists or if he  declines to  accept such

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remustering or reduction he  will be  discharged  under this  item

(f) At his own  request  before  fulfilling the  conditions of  his enrolment

Director of  Personnel  (Airmen)

……..

(g) His  services no  longer  required :- (i) Due to  reduction in  establishment or to  reorganizatio n

Director of  Personnel  (Airmen)

……..

(ii) Unsuitable for retention  in the Air  Force

Air Officer I/c  Administratio n

………

(h) All other  classes of  discharge

Do

Persons  enrolled  under the Act  who have not  been attested

(i) At his own  request  before  fulfilling the  conditions of  the enrolment

(i) Air or other officer i/c of  Command

The  competent  authority  mentioned in  the preceding  column will  exercise this  power only  when he is  satisfied as to  the bona fides of the  application  and that the  total strength  of the Air  Force will not  there by be  unduly  reduced

(ii)Director or  Personnel  (Airmen) in  case of units  directly under

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Air Head- quarters

(j) Unlikely to  make in  efficient  Airman

Commanding  Officer

Applicable to  airmen under  going training  for airmen

(k) All other  classes of  discharge

Commanding  Officer

12 Now it is in this background that it  would be necessary to advert to the

provisions of AFO 14/2008.  Clause 1, in so far as is material, provides thus:

“Airmen/NCs(E), who have completed seven years of service from the date of  enrolment,  are permitted to apply  for  civil posts  under  Central/State  Government  and  public  Sector Undertaking  including  Para-Military  Forces.   Non-Govt. Organization (NGOs) Trusts, even if funded by the Govt. shall not be covered in the permission category of civil posts.  The categories  of  posts,  corresponding  length  of  service  and eligibility are to be determined as given below:

Category Length  of Service

Permissible Categories  of  Civil posts

(a) I 7 Yrs (A) Group  ‘A’  or equivalent  posts (maximum of  the  pay scale not less than Rs 13,500,  as  revised from time to time.

Clause 1 stipulates a requirement of the completion of seven years service to

apply for civilian employment. It also defines the permissible categories of civilian

posts for which armed forces personnel may apply.

Clause 2 stipulates that:

“All applications for above categories of posts will be directly forwarded  to  the  prospective  employers  by  the  units  after verifying  the  eligibility  including  criticality  of  manpower. Application  of  Airman  belonging  to  critical  trades  shall  be

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rejected at unit level.  However, the condition of criticality will not  be  applicable  to  the  applicants  of  category  1A and  III above,  in  whose  case  the  applications  will  be  forwarded despite criticality in their trades.  The criticality of trades will be updated by Air HQ twice a year, in June and December and  would  be  intimated  to  the  Stns./Unit  through  their respective Command HQs. Unit directly under Air HQ would be intimated the criticality of the trades by Air HQ. Airman who are on deputation to ARC are also eligible to apply for civil posts  as  per  Para  1  above  and  their  applications  to  be processed  through  PHS  C/O  AFCAO,  where  unit  copy  of service  documents  of  ARC  deputationists  are  held. Forwarding  of  applications  shall  not  be  construed  as acceptance to grant NOC, which shall be issued as per the procedure laid down in subsequent paras of this AFO.”

Under clause 2, the units will verify the criticality of manpower before forwarding

the applications.

Clause 5 lays down guidelines which must be followed where online applications

have been invited by government departments or, as the case may be, by public

sector undertakings. Here again, the individual has to seek permission from the

station/unit  commanders before applying on-line.   Clause 5 is in the following

terms:

“Forwarding  of  On-line  Applications.  Several  prospective employers in Govt Departments/PSUs invite applications for civil  employment  through  their  web  sites  on  the  internet. Station/Unit  Commanders  are  to  ensure  that  the  applicant meets  the  eligibility  conditions  enumerated  in  preceding Paras 1-3. The following guidelines are to be followed for ‘on- line’ registration of applications for civil posts :- (a)  Individual  to  seek  permission  from  his  respective Station/Unit Commanders to apply for any civil post ‘on-line’ alongwith  duly  filled  application  and  advertisement downloaded from the website. (b) An undertaking is to be furnished by the individual, stating that information furnished by him to the Stn/Unit authorities will be submitted to the employer ‘on-line’ and no classified information will be communicated. (c) Before granting permission,  the unit  administration is to examine  the  contents  of  the  application  keeping  security consideration in mind.”

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Under clause 6, NOCs (other than those under Category III) will be issued by Air

HQs on a case to case basis subject to the exigencies of service and the overall

cadre requirement in a particular rank or trade. Clause 6 is as follows:

“No Objection Certificate (NOC) for applicants under Cat III will be issued two ears before completion of their engagement by their respective AOC/Stn Cdr/CO as per the format placed at Appendix ‘E’ while  all other NOCs will be issued by Air HQs (Dte of  PA) on case to case basis,  subject  to the exigencies of service and with the overriding condition being  the  overall  cadre  requirement  in  a  particular rank/trade as  per  format  given  at  Appendix  ‘C’.” (Emphasis supplied)   

Clause 7 provides:

“Application for NOC is to be submitted by the individual after receiving call letter for the interview/verification of documents or after the result of written test where selection is based on success in written test only.  However, in all cases NOC is to be  obtained  by  the  individual  invariably  before  submitting application for discharge on being selected for the civil post.”

Finally, clause 13 stipulates that:

“Permission to apply for  civil  post  is  a privilege and hence issuance of NOC can not be claimed as a matter of right. No provisional  or  conditional  NOC  is  to  be  issued  by  the Stations/Units.”

13 AFO 14/2008 held the field at the material time and governs the facts of the

present case. Under the terms of the AFO, a requirement of completing seven

years of service from the date of enrolment has been mandated for permission to

be granted to apply for a civil  post under the Central or state governments or

public sector undertakings, including paramilitary forces.  AFO 14/2008 stipulates

that a Category I individual with a length of service of seven years may apply for

civilian employment in a Group A or equivalent post carrying the stipulated pay

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scale as revised from time to time.  Applications have to be forwarded to the

prospective  employer  by  the  units,  after  verification  of  eligibility  including  the

criticality  of  manpower.   Where  the  Airman  belongs  to  a  critical  trade,  the

application shall  be rejected at  the unit  level.  Where online applications have

been invited the station or, as the case may be, unit commanders are required to

ensure fulfilment  of  the conditions  of  eligibility  specified  in  paragraph 1  to  3.

Permission is  required from the station/unit  commanders to submit  an on-line

application for a civil post.  NOCs (other than those in Category III) are to be

issued by Air HQs on a case to case basis having regard to the exigencies of

service.  

14 In the present case, the appellant in breach of the provisions contained in

AFO 14/2008 applied for the post of a Probationary Officer with the Bank of India,

participated in the written test and appeared at the interview without intimation or

approval.  There  was,  therefore,  a  failure  of  the  appellant  to  comply  with  his

obligations both in terms of his engagement as an enrolled member of the force

and in relation to the requirements which were to be fulfilled under the terms of

AFO 14/2008.  

15 We are unable to accept the submission of Mr Sankaranarayanan that the

appellant  had an unqualified right  under Article  19(1)(g)  of  the Constitution to

leave the service of the Air Force.  The provisions of the Air Force Act, those

contained in the rules and the terms of engagement of the appellant belie such an

assertion.   AFO 14/2008 emphasises aspects such as the criticality of the trade

and the exigencies of  service. They need to be verified and assessed before

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permission is granted.  A person who has been enrolled as a member of the Air

Force does not have an unqualified right to depart from service at his or her will

during the term of engagement.  Such a construction, as urged on behalf of the

appellant,  will  seriously  impinge  upon  manning  levels  and  operational

preparedness of the armed forces.  With the rapid advancement of technology,

particularly  in  its  application  to  military  operations,  there  has  been  a

reconfiguration of the human and technological requirements of a fighting force.

The interests of the service are of  paramount importance.  A balance has been

sought to be drawn between the interests of the service with situations involving

requests  by  persons  enrolled  to  take  civilian  employment.   This  balance  is

reflected in the provisions contained in the Air Force orders, in this case AFO

14/2008.  A person enrolled cannot assert  a general  right to act in breach or

defiance of those orders.

16 In  the  present  case,  we  are  now  left  with  the  alternative  submission

invoking  the   equitable  jurisdiction  of  this  Court   under  Article  142  of  the

Constitution.  The appellant moved the AFT after submitting the application 30

May 2011.  He had an interim order of the AFT dated 18 August 2011 in his

favour for provisional discharge and for an NOC.  This was implemented on 20

September 2011, following which the appellant was struck off the strength of the

IAF with  effect  from 21 September  2011 and joined the Bank of  India on 24

September 2011.  This order of the AFT was not disturbed in the civil appeal filed

by the Union of India, but this Court by an order dated 12 March 2012, directed

the Air Force authorities to dispose of the application submitted by the appellant

on 30 May 2011. After the application was rejected, an interim order enured to the

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benefit of the appellant. In this backdrop nearly eight years have elapsed since

the appellant left service. No purpose will be served in directing the reinduction of

the appellant into the IAF save and except to subject him to disciplinary action.

Having regard to the facts and circumstances which we have noted above, we

are of the view that the ends of justice would be met by directing that a final NOC

and discharge be issued to the appellant no later than within a period of three

months of the receipt of a copy of this order.  At the same time, we are of the view

that this should not be an unconditional direction. We accordingly issue an order

in the above terms, subject to the appellant depositing with the Union of India a

sum quantified at Rs 3 lakhs within two months of the receipt of a copy of this

judgment.  A final  NOC and discharge certificate shall  be issued only after the

above amount is deposited and within one month thereafter. The civil appeals are

disposed of in the above terms.  There shall be no order as to costs.

Civil Appeal No 4607  of 2019 (D No 27196/2015):

17 No other point has been separately urged in this appeal.  Hence, the civil

appeal shall stand disposed of in similar terms. There shall be no order as to

costs.

.....................................................J               [Dr Dhananjaya Y Chandrachud]

.....................................................J       [Hemant Gupta]

New Delhi; July 03, 2019