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.

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 25th February 2020 

Case: Amit Kumar Roy v. Union of India (Civil Appeal no. 4605 – 4606 of 2019)

Facts of the case:

1. The appellant was enrolled on 12 January 2004 as an Airman in the Indian Air Force. 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.
2. The appellant applied for the post 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 Certificate 3 and a Discharge on 30 May 2011.
3. 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.
4. On 18 August 2011, the AFT issued an interim direction to the IAF authorities to provisionally issue an NOC and discharge appellant so as to enable him to take up new assignment before 24 August 2011. 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 appellants review application was dismissed on 25 May 2012. On 2 June 2012, the appellant filed writ proceedings 6 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.
5. 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 proceedings 7 in which by an order dated 17 September 2014, the termination was stayed. 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.
6. 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.

Judgment:

1. Mr. Gopal Sankaranarayanan, learned senior counsel appearing on behalf of the appellant submitted that, 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.
2. Mr. R. Balasubramanian, learned senior counsel appearing on behalf of the Union of India and the Air Force authorities submitted that, 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).
3. He further submitted that, there is a myth 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.

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. Therefore, the Supreme Court has come to a conclusion that, the appellant is responsible for depositing Rs. 3 Lakh to Union of India within two months’ period and final NOC and discharge certificate shall be issued only after the amount is deposited.