Dilip Kumar v. Union of India and Ors.

1. Aggrieved by an order dated 17th January, 2019, passed by the Air Headquarters, declining his request for issuance of a No Objection Certificate („NOC‟) and discharge, the Petitioner, who is a Sergeant in the Indian Air Force („IAF‟), has filed this petition.

2. The facts relevant to the present petition are that the Petitioner joined the IAF on 28th June, 2005 as Airman and is at present, serving as a Sergeant. In 2014, an advertisement was issued by the Bihar State Public Service Commission („BPSC‟) for filling up Administrative Police and Finance Posts. By a letter dated 15th October, 2014, the Petitioner sought permission from the Competent Authority to apply. That permission was granted to him 2019:DHC:4549-DB by the Air Officer Commanding („AOC‟) on 16th October, 2014. The Petitioner appeared for the preliminary examination and thereafter, for the main examination conducted by the BSPC. The Petitioner got an intimation to appear for an interview on 13th April, 2018 at Patna. According to the Petitioner, he did not seek any permission at that stage as he was under the bonafide belief that he had already obtained the NOC at the time of applying and that in terms of the policy spelt out in the Air Force Order-4 („AFO-4‟) of 2012, the NOC could be obtained even at the stage of submission of documents. In the final result that was declared by the BSPC on 18th August, 2018, the Petitioner was selected for the post of Sub Election Officer („SEO‟).

3. On 31st August, 2018, the Petitioner filed an application seeking discharge along with the requisite documents. The Petitioner states that the concerned authority wrongly relied upon the amended Air Force Order („AFO‟)-33 of 2017, whereas it is AFO-4 of 2012 which should apply. This application was returned on 27th September, 2019 with the observation that the NOC was not found attached with the application. A representation was again made by the Petitioner on 31st October, 2018, followed by another one on 3rd November, 2018, requesting for issuance of the NOC. It is stated that the AOC-49 Wing, AF on 18th December, 2018 recommended the Petitioner‟s case for issuance of NOC. Subsequently, when an appointment letter was issued on 8th January, 2019, this too was forwarded to AFRO through a proper channel for grant of discharge on 15th January, 2019.

4. On 17th January, 2019, the impugned order was passed, rejecting the Petitioner‟s request for issuance of NOC and for discharge. Inter alia, it was stated therein that the Petitioner had not applied for NOC before appearing for the interview on 13th April, 2018. Secondly, the application was liable to be rejected outright, since a false statement had been made for obtaining the same. In the final result published on 18th August, 2018, the Petitioner had been selected for a Group-B post of Bihar State Government, whereas AFO- 4 of 2012 stipulated that the Airmen are permitted to apply only for a Group-A post. Further, („AFO‟)-33/2017 was not applicable, as in terms thereof, Airman with minimum skill grade „A‟ and 7 years of service only were eligible to apply for Group-A and Group-B Gazetted posts through UPSC and BPSC, whereas the Petitioner possessed skill level „C‟ and had not made any effort to improve his skill level.

5. On 16th April, 2019, the following order was passed by this Court: “2. Notice. Learned counsel for Respondent No.1 accepts notice. Reply be filed within three weeks. Rejoinder thereto, if any, be filed before the next date.

3. Learned counsel for the Petitioner points out that an identically placed SGT Pawan Kumar has been granted NOC to join the post which carries a maximum pay scale of not less than Rs39,1001-. According to the Petitioner, the post for which he seeks NOC also carries the same maximum pay scale not less than Rs. 39,1001-.

4. Learned counsel for Respondent seeks time for instructions.”

6. Subsequently, CM 38995/2019 was filed by the Petitioner, since the Respondent No.5 State of Bihar issued a letter dated 7th August, 2019 to the Petitioner stating that if he did not report for duty on 9th October, 2019, his appointment would be cancelled. Notice was issued in this application on 30th August, 2019, and the writ petition along with the application was listed for hearing today. In the meanwhile, the Respondents have filed a detailed counter affidavit, to which a rejoinder has also been filed by the Petitioner.

7. This Court has heard the submissions of Ms Nanda Devi Deka, learned counsel for the Petitioner and Ms Bharati Raju, learned CGSC for the Respondents.

8. At the outset, it requires to be recorded that, learned counsel for the Petitioner sought to place reliance only on AFO-4 of 2012 and not on AFO- 33 of 2017. Therefore, the issue boils down to the legality of the impugned order dated 17th January, 2019, in light of AFO-4 of 2012.

9. The further admitted position is that under paragraph 6 of AFO-4 of 2012, Airman/ NCs (E), who have completed 7 years of service, are eligible for seeking permission for applying for “Group-A posts in Central / State Government and equivalent posts in PSUs and Government of India undertakings/ corporations”. In other words, the Petitioner in the present case, could have only applied for an NOC for a Group-A post and not a Group-B post in the State of Bihar. The Petitioner on 15th October, 2014, applied for the NOC in terms of AFO-4 of 2012. A copy of the application form has been enclosed. While seeking approval of the Air Commodore, in the Performa, the Petitioner stated “I have the honour to request that I may please be permitted to apply (offline) for Group 'A' post under Bihar Public Service Commission (BPSC), Bihar Govt”.

10. He also submitted a typed proforma, in which again with the column which stated „category of post applied for‟, he stated „Group-A (State Government)‟. In this proforma, the Petitioner also had to type in the pay scale of the post that he was applying for, and he indicated that as Rs.15600- 39100 with grade pay of Rs.5400. Along with the application, he gave following certificate of undertaking, which reads as under: “It is certified-that I am not under obligation to serve; for any specific period due to re-mustering courses, deputation/posting within India/abroad, promotion under Grade-Ill. My date of enrolment is 28 JUN-05; date of present RE expiry 27-JUN 25 and date of discharge 30-JUN-25 in case my statement is found to be incorrect at any stage, I render myself liable for disciplinary action or any other action, as the competent authority deems appropriate, in addition to cancellation of permission to apply for civil post.”

11. A similar certificate was contained in Appendix-D to the application form, there was a separate certificate of undertaking, which reads as under: “I, 909989-A CPL DILIP KUMAR PMF (ELEC) am aware of the provision of AFO 04/12 and will seek NOC/Discharge only on selection to Group 'A' post carrying maximum of pay scale not less than 39,l00/-(as revised from time to time).”

12. It is plain from the above undertakings that at the time of applying for the NOC, the Petitioner clearly held out that he was applying for a Group-A post, carrying a maximum pay scale of less than Rs.39100. By the time the Petitioner qualified in the written examination, AFO-4 of 2012 was superseded by the AFO-34 of 2017. However, that is not relevant for the present petition since the Petitioner has maintained that the case should be decided on the basis of AFO-4 of 2012, which was applicable at the time he applied for the NOC. This is also the case of the Respondents.

13. The fact of the matter is that while at the time of applying for the post, the Petitioner did seek prior permission. Even at the time when he was called for the interview/ verification of documents, he did not seek NOC. AFO-4 of 2012 states in paragraph 11 as under: “11. Application for grant of NOC for Gp 'A Govt. and equivalent posts under category-1 is to be submitted by the individual through proper channel after receiving call letter for appearing in the interview/verification of documents or after the result of written test where selection is based on success in written test only. Request for NOC will be rejected in cases wherein the individual has not obtained prior permission of his AOC/Stn Cdr while applying for the post. Requests for grant of NOC will also be rejected in cases wherein the AOC/Stn Cdr has erroneously granted the said permission which is either based on the undertaking given by the individual as per Appendix 'C of this AFO or in contravention to the express provisions of the AFO. In case, it is found at a later stage that individual was prima-facie not eligible for the said post, however obtained permission of Stn Cdr/AOC by rendering erroneous/false undertaking, it would render him liable for disciplinary/administrative action as per laid down procedure. In case permission has erroneously been granted for whatever reasons, the error will be rectified by writing to the prospective employer for cancellation of candidature of the concerned airman. In this regard, airmen would also render undertaking as per Appendix 'D' to the AFO at the time of submitting his application. Case for discharge from service on the grounds of selection to the civil post is liable to be rejected outrightly in cases wherein the individual has not obtained the requisite NOC or made false statements to obtain the same.”