Cpl Sanjeet Kumar V. Union of India & Ors.

CW/1105/2008

AI Insights

Cpl Sanjeet Kumar, an Airman in the Indian Air Force, sought a writ of mandamus to compel the issuance of a No Objection Certificate (NOC) to apply for a civil post under the Central Government, which was denied by the Air Force. The denial was based on the service exigency as the petitioner's trade, Radar Fitter, was facing manpower deficiency. The petitioner also challenged the Air Force Order No.5/2003, which governs the issuance of NOCs, arguing that it contradicts the order's intent to provide better career avenues. The respondents defended their decision, citing the ongoing manpower needs in the petitioner's trade. The court dismissed the petition, agreeing with the respondents on both the service exigency and the validity of the Air Force Order.

• Counselvise Citation: [2008] 140 COUNSELVISE.COM (IT) 819693 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 16-04-2008
• Assessment Year: misc
• Other Referred Cases: Union of India v. R.P.Yadav [(2000)5 SCC 325]
• Laws Referred To: Air Force Order No.5/2003
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: KULDEEP MATHUR
• Assessee Lawyers: P S BHATI
• Keywords: No objection certificate; Civil post; Air Force; Service exigency; Radar Fitter

Judgement Text

"1 S.B.CIVIL WRIT PETITION NO.1105/2008 Cpl Sanjeet Kumar versus Union of India & Ors. Date of Order :: 16th April, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Dr. P.S.Bhati, for the petitioner. Mr. Kuldeep Mathur, for the respondents. .... The petitioner, an Airman, on completion of seven years service, claimed for No Objection Certificate to apply for civil post under Central Government. The same was denied, thus, this petition for writ is preferred. The facts noticeable are that as per Air Force Order (hereinafter referred to as “the AFO”) No.5/2003, an Airman, on completion of seven years of engagement, may be permitted to apply for civil post under Central/State Governments and Public Sector undertakings. For getting permission as aforesaid, the Airman desirous to apply for civil posts, may submit an application i.e. required to be considered by the 2 Command Headquarters. The issuance of No Objection Certificate is a privilege and that cannot be claimed as a matter of right within the engagement period of 20 years. The petitioner faced selection proceedings for appointment as Inspector, Income Tax and stood selected, thus, applied for discharge from the Air Force, but that was denied by the respondents, hence this petition for writ is preferred. The denial for discharge is called bad by alleging that there is no service exigency making necessary for retainment of the petitioner with Air Force. A challenge is also given to the AFO No.5/2003 to the extent it prescribes that issuance of the No Objection Certificate is a privilege and that cannot be claimed as a matter of right within the engagement period of 20 years. As per the petitioner, the object of the AFO No.5/2003 is to provide better avenues in service career and, therefore, any restriction imposed for discharge from the force is contrary to the intention of legislating the AFO. Per contra, the stand of the respondents is that the petitioner is in the trade of Radar Fitter and that is facing men power deficiency. No discharge, therefore, is possible, as claimed by the petitioner. Heard counsel for the parties. 3 The question whether the service exigency demands retention of the Airman with Air Force or he may be discharged, is required to be examined and determined by the competent authority of the Air Force. It is not open for the Courts to examine such exigencies in normal course. In the present matter the specific stand of the respondents is that the petitioner is working in Radar Fitter trade and that trade is facing men power deficiency, hence, I do not consider it appropriate to interfere with the discretion of the respondents which appears to be exercised objectively. It is asserted by counsel for the petitioner that the respondents are not utilising services of the petitioner in Radar Fitter but as an untrained apprentice and, therefore, the deficiency in Radar Fitter category cannot be a reason to deny discharge, however, the fact aforesaid is denied by the respondents. Be that as it may, I do not feel it appropriate to examine such a question in extraordinary jurisdiction of this Court. So far as validity of the AFO No.5/2003 is concerned, that suffers from no vice of illegality as the restriction prescribed is quite necessary and reasonable. 4 Hon'ble Supreme Court in Union of India v. R.P.Yadav [(2000)5 SCC 325], while considering similar kind of issue, held as under:- “24.An incidental question that arises is whether the claim made by the respondents to be released from the force as of right is in keeping with the requirements of strict discipline of the naval service. In our considered view the answer to the question has to be in the negative. To vest a right in a member of the Naval Force to walk out from the service at any point of time according to his sweet will is a concept abhorrent to the high standard of discipline expected of members of defence services. The consequence in accepting such contention raised on behalf of the respondents will lead to disastrous results touching upon the security of the nation. It has to be borne in mind that members of the defence services including the Navy have the proud 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 5 provisions, in our considered view, rule out the concept of any right in a sailor to claim as of right release during subsistence of period of engagement or re-engagement as 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-degree expertise and skill for which substantial amounts are spent from the exchequer. 25.Therefore, it is in the fitness of things that 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-afford losing trained sailors from the force. In such a situation if the sailors who have completed the period of initial engagement and have been granted re-engagement demand release from the force and the authorities have no discretion in the matter, then the efficiency and combat preparedness of the Naval Force may be adversely affected. Such a situation has to be avoided.” In defence service the discharge before the compulsory term of engagement is an exception and to exercise such exceptional powers, certain restrictions are necessary. An exception cannot be claimed as a matter of right, therefore, the discretion given to the competent authorities for permitting discharge is just and proper. 6 The petition for writ, for the reasons mentioned above, fails and, therefore, is dismissed. ( GOVIND MATHUR ),J. Kkm/ps. "