Delhi High Court
Cpl Saurabh Fauzdar vs Union Of India & Ors. on 29 September, 2014
Author: Kailash Gambhir
Bench: Kailash Gambhir, Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: 29th September 2014
+ W.P. (C) No. 5112/2013
CPL SAURABH FAUZDAR
..... Petitioner
Through: Mr. A.K. Trivedi, Advocate
versus
UNION OF INDIA & ORS.
..... Respondent
Through: Mr. Akshay Chandra, Advocate
+ W.P. (C) No.5248/2013
CPL SUNIL SINGH
..... Petitioner
Through: Mr. A.K. Trivedi, Advocate
versus
UNION OF INDIA & OTHERS
..... Respondent
Through: Mr. Rajesh Gogna, Senior
Standing Counsel and Ms.Kimmi
Brara, Advocate for Respondents
+ W.P. (C) No.2803/2014
CPL SACHIN
..... Petitioner
Through: Mr. A.K. Trivedi, Advocate
versus
UNION OF INDIA & ORS.
..... Respondent
Through: Mr. Ankur Chhibber, Advocate
W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 1 of 9
and Mr.Prashant Sivarajan,
Advocate for respondent No. 1 to
3.
+ W.P. (C) No.5639/2014
VINEET KUMAR ... Petitioner
Through: Mr. Zeyaul Haque, Advocate
versus
UNION OF INDIA & ORS.
..... Respondent
Through: Mr. Manish Mohan, CGSC for
UOI with Ms. Puja Sarkar and Ms.
Manisha Rana Singh, Advocates
for Respondents.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% KAILASH GAMBHIR, J. (Oral)
1. By this common order we propose to dispose off all these four writ petitions, as the reliefs claimed by the writ petitioners are covered by various decisions of this Court. These petitioners herein seek issuance of 'No Objection Certificate' and discharge from service, from their parent office upon their selection to the Grade 'A' Gazetted post in para-military forces and for undergoing necessary training that is required to be undertaken upon their selection to the said Grade 'A' post. It is the W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 2 of 9 common case of these petitioners that they had not completed seven years of service in their parent department, as provided in AFO 14/2008 on the date of submission of their applications, whether online or otherwise, to seek appointment to the Grade 'A' post in CAPFs. It is the common case of the petitioners that they have already been selected for their appointment to Grade 'A' post in CAPFs after having qualified all the requisite examinations and other tests and they were also allocated posting in the respective para-military forces. It is also the common case of the petitioners that all of them had completed seven years of service with the Indian Air Force on the date of their appointment to the said Group 'A' post, but could not join the training in the absence of No Objection Certificate and discharge from their service from the Indian Air Force.
2. We now turn to the facts of the four cases before us.
W.P (C) No. 5248 of 2013, titled as Cpl Sunil Singh v. UOI and Ors.
The petitioner was born on 01/08/1987 and was enrolled in the Indian Air Force as an Airman in the trade of AF/fit on 27/12/2005. Pursuant to an advertisement dated 18/06/11 issued by the UPSC for recruitment to the post of Assistant Commandant for Central Police Forces-2011, the petitioner had submitted an online application for selection to the W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 3 of 9 said post, which is a group 'A' Gazetted post and was selected and allocated the C.R.P.F. Although, he had not sought permission from the department at the time of submission of the application to UPSC, for appointment to the aforementioned post, but, upon selection as Assistant Commandant in C.R.P.F, he applied for grant of NOC and discharge from service vide representation dated 15/06/13, but, the record office vide order dated 29/07/13, rejected the petitioner's request on the ground of non-fulfilment of the conditions stipulated in AFO-14/08. The reason for rejection was that the petitioner had not applied through proper channel and that; he had applied for the post before completing 7 years of regular service. The petitioner had completed 5 years and 6 months of service on the date of application for the said exam. And the entire selection procedure for the post of Assistant Commandant lasted from Oct 2011 to Mar 2013, during which period the total service of the petitioner increased from 5 years 9 months to 07 years 3 months. On 18.02.2014 the DG, CRPF issued an offer of appointment to the petitioner for the post of Assistant Commandant and the petitioner had completed 7 years of service on 26.12.12, which is much before the issue of appointment letter.
W.P (C) No. 5112 of 2013, titled as Cpl. Saurabh Fauzdar v. UOI The petitioner was born on 26/06/1987 and was enrolled in the Indian Air Force as an Airman in the trade of AF/fit on 27/09/2005. Pursuant to an advertisement issued by the UPSC for recruitment to the post of Assistant Commandant for Central Police Forces-2011, the petitioner had submitted an application for selection to the said post, which is a group 'A' Gazetted post. On 11/07/11 the petitioner submitted an application seeking permission for W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 4 of 9 appearing in the Assistant Commandant Exam-2011. And on 9/10/11 petitioner appeared in the written examination and was declared successful. On 28/5/12, order was passed by the DG, CISF stating that the petitioner has qualified the written examination and is found to be eligible for the PET and medical examination, and on account of his clearing these exams he was selected for the post. Upon selection as Assistant Commandant in the B.S.F, the petitioner applied for the grant of NOC; which was not considered on the ground that he has not completed the term of 7 years as per the AFO-14/08. Finding no remedy, the petitioner submitted an application dated 03/07/13 seeking discharge from Air Force, but the same was returned by the record office vide order dated 15/7/13 on the ground that he was not eligible to apply for the said post before the completion of 7 years of service. The petitioner had completed 6 years and 1 month of service on the date of the said exam. On 26.11.13 the DG, BSF issued an offer of appointment to the petitioner for the post of Assistant Commandant and the petitioner had completed 7 years of service on 26.09.12, which is much before the date of issuance of the appointment letter.
W.P (C) No. 2803 of 2014, titled as Cpl. Sachin v. UOI The petitioner was born on 02/07/1990 and was enrolled in the Indian Air Force as an Airman in the trade of Ops Asstt on 27/06/2007. Pursuant to an advertisement issued by the UPSC for recruitment to the post of Assistant Commandant for Central Armed Police Forces-2012, the petitioner had submitted an application for selection to the said post, which is a group 'A' Gazetted post. The petitioner appeared for the exam on 11/11/12 and the result was declared in April 2013. The Dg, ITBP, issued an order dated W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 5 of 9 05/12/13 stating that the petitioner has been selected for the post of AC/GD through CAPF (AC) Exam- 2012 and that he has been allocated ITBP but his candidature has been kept conditional subject to verification of his BA degree. The petitioner had submitted his original BA degree. The petitioner was issued a show cause notice dated 22/01/14 by AOC No. 2 Wing, AF for not taking permission from the competent authority before appearing for the exam and that he had also not completed 7 years of service at the time of applying to the said post. He submitted his reply dated 27/01/14 to the show cause notice, stating that he wasn't aware of the provisions of the AFO-04/12 and thought of applying for NOC at the completion of 7 years. The ITBP issued a letter dated 07/03/14 asking the petitioner to approach his Station Commander regarding the issue of vigilance clearance and NOC. On 25/03/14 he had submitted an application for the grant of NOC from Indian Air Force and discharge from service, but, his request was not acceded to by the Air Force. The petitioner had completed 7 years of service on 26.06.14, but his appointment letter was not issued by the ITBP because of the said non-grant of NOC by the Air Force.
W.P (C) No. 5639/2014, titled as Cpl Vineet Kumar v. UOI The petitioner was enrolled in the Indian Air Force as an Airman/ NC's (E) on 27.09.06. The petitioner was appointed with the team of BHTC after completing his training for ESSA trade on 26.04.07. On 31.05.12 the respondent issued Air Force order no. 04/12, this clarifies about the eligibility conditions for an Airman NC's (E) to apply for group 'A' Civil Posts. The UPSC had issued an advertisement dated 25.07.12 for the joint entrance examination of CPF. On 26.08.12 the petitioner applied for the said exam. In August W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 6 of 9 2013 he was selected in the CPF on the said post of Asst. Commandant. On 08.11.2013 the petitioner was allocated CISF and on 14.07.14 the CISF issued an offer cum appointment letter to him, asking him to report at Hyderabad on 30.08.14 for the training. Thereafter, an application was submitted by the petitioner for discharge and NOC for joining the CISF, but the same was rejected on the ground of non completion of 7 years of service. The petitioner was recruited in the Indian Air Force as an Airman on 27.09.06 and he had completed his mandatory seven years of service on 26.09.13 as per the applicable discharge policy AFO 04/12 and it was only after completing 7 years of service did he make an application for discharge.
3. During the course of hearing of these petitions, the Government counsel representing the respondents have not disputed the fact that the subject matter of these writ petitions is squarely covered by the various judgments of this Court, namely; Pradeep Kumar v. Union of India & anr. being W.P (C) No. 8760/2008, CPL N.K Jakhar v. Union of India & Ors. being W.P (C) No. 9088/2008, Praveen Kumar v. Union of India & Ors. being W.P (C) 13420/2009, Charan Singh Bhanvariya v. Union of India & Ors. being W.P (C) 3257/2010, Md. Shahbaz Alam vs. Union of India & Ors. being W.P (C) 7353/2011 and Sandeep Kumar vs. Union of India and Ors. being W.P (C) 4864/2012 and in the light of the said decisions, the petitioners are also entitled to the benefit of the said decisions. The only argument raised by the learned standing counsel for W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 7 of 9 the respondents is that the Union of India has already preferred a Special Leave Petition being S.L.P. (C) No.3144/2013 challenging the order passed by the Division Bench of this Court in Sandeep Kumar (supra), which has been tagged with S.L.P. (C) No. 22753/2011 titled as Bikram Singh v. Union of India involving the same controversy are also pending. He also submitted that in the said cases, the respondent had issued a conditional discharge order so as to enable those petitioners to join the para-military forces. However, the learned counsel fairly apprised the Court that the impugned orders have not been stayed by the Hon'ble Supreme Court.
4. This Bench also had an occasion to come across a similar case being W.P. (C) No. 554/2004, titled as Cpl B S Siddha v. Union of India and Ors. decided on 18.09.2014 and concurring with the view earlier taken by the Division Benches of this Court in the cases referred above, the petitioner therein was held entitled to the same reliefs. Although, at the time of hearing of the said writ petition of Cpl. B.S. Siddha, the Court was not apprised about the filing of any SLP by the Union of India, yet we cannot lose sight of the fact that the respondents, before filing the Special Leave Petition in the case of Sandeep Kumar, had issued a W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 8 of 9 conditional discharge letter to enable the said Sandeep Kumar to join the Central Industrial Security Forces.
5. In the light of the above discussion and concurring with the view taken by this Court in the cases referred to above and case of the petitioners being identical in all respects, all the four petitions are allowed. We, accordingly, issue a writ of mandamus directing respondent Nos. 1 to 4 to issue a 'No Objection Certificate' as well as a Discharge Certificate so as to relieve the petitioners from their services as Airmen, within a period of four weeks from the date of this order. This Court also directs respondent No. 4 to admit the petitioners for basic training in their respective para-military forces from the next batch. However, we make it clear that this late joining of the petitioners will not affect their seniority, which shall be reckoned as per merit alongwith their batch mates, selected for the post of Assistant Commandant Group 'A'.
6. With aforesaid directions the present writ petitions are disposed off.
KAILASH GAMBHIR, J NAJMI WAZIRI, J SEPTEMBER 29, 2014/pkb W.P. (C) No. 5112/2013, 5248/2013, 2803/2014 & 5639/2014 Page 9 of 9