Delhi High Court
Sonu vs Union Of India And Ors. on 5 August, 2020
Equivalent citations: AIRONLINE 2020 DEL 1118
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th August, 2020
+ W.P.(C) No.3311/2020
SONU .... PETITIONER
Through: Mr. Ankur Chhibber, Mr. Anshuman
Mehrotra & Mr. Harsh Dhankar,
Advs.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. Vinod Diwakar, CGSC with Mr.
Vishal Kumar Singh, Adv. for R-1 to 3.
Mr. Anil Grover, Senior Additional
Advocate General for the state of
Haryana along with Ms. Noopur
Singhal & Mr. Mishal Vij, Advs. for
R-4&5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, a Corporal in the respondents no.1 to 3 Indian Air
Force (IAF), having been denied No Objection Certificate (NOC) as well as
discharge from service of the respondents no.1 to 3 IAF, for joining the post
of Assistant Professor (College Cadre) in the subject of Economics in the
Department of Higher Education of the Government of Haryana, on the
ground of the petitioner not having skill grade 'A', has filed this petition
seeking mandamus, directing the respondents no.1 to 3 IAF to issue NOC as
W.P.(C) No.3311/2020 Page 1 of 15
well as discharge from service to the petitioner for joining the post of
Assistant Professor (College Cadre) in the subject of Economics in Haryana.
2. It is the case of the petitioner, that (i) the petitioner, after completing
his 10+2 applied for the post of Aircraftsman with the respondents no.1 to 3
IAF and on being successful, was on 29th December, 2010 enrolled as an
Aircraftsman; (ii) the petitioner was promoted to the rank of Corporal on 3rd
January, 2016; (iii) the petitioner, with the approval of the respondents no.1
to 3 IAF, completed his post graduation in Economics while serving the IAF;
(iv) the respondents no.1 to 3 IAF encourages career progression for all
airmen, while in service of IAF; (v) Air Force Order (AFO) No.14/2008 in
vogue at the relevant time provided for permission to airmen to apply for
civil posts / services under the Central / State Government and Public Sector
Undertakings (PSU) in Group 'A' or equivalent posts, on completion of
seven years of service with the respondents no.1 to 3 IAF; (vi) another AFO
No.04/2012 dated 31st May, 2012 laid down the eligibility and procedure
with respect to Airmen/ Non-Combatant Employees [NCs(E)], for grant of
permission to apply for civil post/service under the Central / State
Government / PSUs and Government of India Undertaking / Corporation as
well as for grant of NOC; (vii) the respondents no.1 to 3 IAF issued AFO
No.33/2017, nullifying all earlier AFOs including AFO No.14/2008 and
AFO No.04/2012 aforesaid, on the procedure of discharge; the said AFO
No.33/2017 drastically changed the scenario for airmen seeking better career
opportunities and imposed additional conditions on the eligibility criteria for
applying in civil post under the State / Central Government; (viii) Clause 6
of AFO No.33/2017 provides as under:
W.P.(C) No.3311/2020 Page 2 of 15
"Eligibility Criteria
6. Airmen/NCs(E) of the IAF are eligible to apply for civil posts/services with
prior permission from the Competent Air Force Authority. Airmen/NCs(E)
including those on deputation shall be eligible for seeking permission to apply for
the following category of posts:
Category Description of Post Eligibility Competent Format of
Criteria Authority NOC
Category-I Group A/I and (a) Airmen with AOC, Appendix A
Group B/II minimum Skill AFRO
Gazetted posts Grade A and
through UPSC and seven years of
State Public service.
Service (b) NCs(E)
Commission only. irrespective of
(Recruitment length of service.
advertisement
must clearly
mention the Group
of the Post)
Category-II Any civil post in Airmen who are AOC/Stn Appendix B
Govt/PSU/Private left with one year Cdr /CO*
Sector of residual
service prior to
expiry of their
initial Regular
Engagement
(RE)/Extended
RE Provided
they have
submitted
unwillingness/
denied further
extension of
service.
* CO in the AFO refers to CO of an independent Unit.";
(ix) with the introduction of AFO No.33/2017, the respondents no.1 to 3 IAF
have imposed additional conditions including skill level 'A', for applying in
W.P.(C) No.3311/2020 Page 3 of 15
civil post and which conditions have made it difficult for the airmen to seek
discharge from service from the respondents no.1 to 3 IAF; (x) the additional
conditions imposed vide AFO No.33/2017 destroy the career prospects of
airmen; (xi) while under the earlier AFOs the only condition to seek
discharge from IAF was to serve for a minimum period, under the AFO
No.33/2017, an additional condition like the minimum skill grade 'A; along
with minimum seven years of service is also required; (xii) on 8th March,
2019, the respondent no.4 Haryana Public Service Commission (HSPC)
issued an advertisement inviting applications from eligible candidates for
recruitment to 524 posts of Assistant Professor (College Cadre) in Higher
Education Department, Haryana; (xiii) the petitioner applied online for
permission of the respondents no.1 to 3 IAF, to so apply but could not
proceed due to the fact that the petitioner was possessing skill level 'B', and
the petitioner therefore on 20th March, 2019 sought offline permission from
the respondents no.1 to 3 IAF, to apply for the civil post of Assistant
Professor (College Cadre); (xiv) the respondents no.1 to 3 IAF neither
accepted nor denied the same; (xv) the petitioner, so as not to lose out the
lifetime opportunity, still applied for permission and appeared for the
recruitment examination scheduled on 4th October, 2019; (xvi) the petitioner
cleared the written examination for the post aforesaid of Assistant Professor
(College Cadre) and was issued a call letter for interview; (xvii) the
petitioner cleared all the stages of the examination and in the result declared
on 15th January, 2020, was declared pass; (xviii) the petitioner, on 24th
January, 2020 applied to the respondents no.1 to 3 IAF, for issuance of NOC,
but no response was received thereto; (xix) the petitioner then learnt that
vide order dated 22nd March, 2019 on the application of the petitioner for
W.P.(C) No.3311/2020 Page 4 of 15
permission to appear in the examination, the permission had been denied to
the petitioner for the reason of having skill grade 'B'; (xx) respondent no.4
HPSC and respondent no.5 Department of Higher Education, Government of
Haryana issued offer of appointment letter dated 29th January, 2020 to the
petitioner for the post of Assistant Professor (College Cadre) in the pay scale
of Rs.57,700 - 1,82,400/-; (xxi) the petitioner, vide letter dated 29th January
2020 to respondent no.4 HPSC and respondent no.5 Department of Higher
Education, Government of Haryana sought extension to join the post he was
selected for; (xxii) the respondent no.4 HPSC and respondent no.5
Department of Higher Education, Government of Haryana issued a letter
dated 13th February, 2020 to the petitioner, of appointment to the post of
Assistant Professor (College Cadre); (xxiii) the petitioner, on 14th February,
2020 again applied to respondents no.1 to 3 IAF for discharge from service
but no response had been received till the filing of this petition; (xxiv)
however the respondent no.4 HPSC and respondent no.5 Department of
Higher Education, Government of Haryana vide letter dated 16th March,
2020 granted three months extension from 29th January, 2020 to 28th April,
2020 to the petitioner for joining as Assistant Professor (College Cadre),
latest by 29th April, 2020 and informed the petitioner that else his selection
will be cancelled; (xxv) though the petitioner applied for further extension
but no response was received thereto; and, (xxvi) this Court vide judgment
dated 11th March, 2020 in W.P.(C) No.634/2020 titled Subhash Chand Vs.
Union of India has held the condition of having skill grade 'A', in Clause 6
of AFO No.33/2017 to be not having any relation to the objective thereof of
granting NOC to airmen for civil posts and to be arbitrary and unreasonable
and struck down the same to the said extent and issued mandamus to the
W.P.(C) No.3311/2020 Page 5 of 15
respondents IAF to grant NOC to the petitioner therein viz. Subhash Chand,
who was similarly placed as the petitioner.
3. The petitioner however still, besides the reliefs aforesaid in the
petition, has also impugned Clause 6 of AFO No.33/2017 and sought
quashing thereof.
4. The petition came up first before this Court on 1st June, 2020, when it
was enquired from the counsel for the respondents no.1 to 3 IAF appearing
on advance notice, why the petitioner should not be granted the same relief
as granted in Subhash Chand supra.
5. The counsel for the respondents no.1 to 3 IAF contended that the
discharge application filed by the petitioner was deficient and after the
petitioner had made up the deficiency, has reached the deciding authorities
only on 27th May, 2020 and was under consideration; it was argued that the
petition was premature. It was also informed that respondents no.1 to 3 IAF
were preferring Special Leave Petition (SLP) against the judgment in
Subhash Chand supra.
6. In the aforesaid state of affairs, notice of the writ petition was issued,
only to respondents no.1 to 3 IAF and respondents no.1 to 3 IAF directed to
take a decision on the discharge application of the petitioner within one week
thereof and to communicate the same to the petitioner on or before 12th June,
2020. The counsel for the petitioner during the hearing on 1st June, 2020 also
stated that the petitioner had taken skill enhancement test to improve his skill
to grade 'A' and the provisional result of the said test had been declared.
The respondents no.1 to 3 IAF were accordingly, vide order dated 1st June,
W.P.(C) No.3311/2020 Page 6 of 15
2020 also directed to disclose whether the skill grade of the petitioner stood
enhanced to 'A' and the writ petition posted next on 17th June, 2020.
7. On 17th June, 2020, the counsel for the respondents no.1 to 3 IAF
stated that the skill grade of the petitioner stood enhanced to 'A' but the
petitioner had been denied permission because of the petitioner having not
approached through proper channel and having concealed facts and having
manipulated his date of birth. With direction to file counter affidavit by 19th
June, 2020, the matter was adjourned to 23rd June, 2020.
8. On 23rd June, 2020, though the counsel for the petitioner was heard on
merits of the petition and the counsel for the respondents no.1 to 3 IAF was
also heard substantially but agreeing with the counsel for the respondents
no.1 to 3 IAF that this Court should await the outcome of the SLP filed
against the judgment of this Court in Subhash Chand supra, it was deemed
appropriate to adjourn the matter. However while so adjourning, we
enquired from the counsels, whether the petitioner, in the interregnum would
miss out the opportunity of employment which had already been offered to
him. The counsel for the petitioner stated that the time for joining had been
extended till 30th June, 2020. In the circumstances, notice of the petition was
also ordered to be issued to the respondent no.5 Department of Higher
Education, Government of Haryana, to explore whether the date of joining of
the petitioner could be deferred
9. On the next date of hearing i.e. 26th June, 2020, the Additional
Advocate General of the State of Haryana appeared in response to the notice
issued and stated that the last date for the petitioner to join was 29th April,
2020 and on the petitioner not joining by then, the offer of appointment
W.P.(C) No.3311/2020 Page 7 of 15
made to the petitioner stood automatically lapsed. It was also informed that
the panel constituted to make the appointments had a life of six months only
and the panel also had since dissolved. On yet further enquiry, it was
informed that there was no waiting list and thus the question of anybody else
being appointed to the post offered to the petitioner, did not arise. Per
contra, the counsel for the petitioner stated that he had been telephonically
informed that owing to the prevalent Covid-19 and resultant suspension of
academic session, a lot of candidates had not joined and the time of joining
stood extended till 30th June, 2020, as he had informed on the earlier date.
10. The counsel for the respondents no.1 to 3 IAF, on 26th June, 2020
again sought adjournment stating that SLP preferred against the judgment in
Subhash Chand supra was soon to be listed. The hearing was accordingly
adjourned to 28th July, 2020.
11. On 28th July, 2020, a copy of the order dated 10th July, 2020 of
Supreme Court in SLP(C) No.8061/2020 preferred by the respondents no.1
to 3 IAF against Subhash Chand supra was placed before us; vide the said
order, though notice of SLP(C) No.8061/2020 had been issued but no interim
relief restraining Subhash Chand from leaving the IAF granted. The counsel
for the petitioner on 28th July, 2020 also stated that though the respondents
no.1 to 3 IAF had represented before the Supreme Court that there were a
number of other cases pending before the High Courts and in which the same
relief as granted to Subhash Chand supra would follow, but no order was
made by the Supreme Court.
W.P.(C) No.3311/2020 Page 8 of 15
12. We thus, on 28th July, 2020 proceeded to hear the counsel for the
respondents no.1 to 3 IAF on, why the same relief as granted to Subhash
Chand, should not follow in this petition also. After he had so concluded his
arguments, we asked the Senior Additional Advocate General for the State of
Haryana, whether the State of Haryana was still willing to take the petitioner,
if discharged on that date from IAF. The Senior Additional Advocate
General for State of Haryana reiterated that the offer of appointment made to
the petitioner had lapsed. We thus proceeded to ask the counsel for the
petitioner, whether the petitioner was willing to be discharged
notwithstanding the said stand of the State of Haryana. On request of the
counsel for the petitioner for adjournment, to take instructions, the matter
was posted to today.
13. Today, the counsel for the petitioner states that (i) the petitioner had
telephonically contacted the concerned officials of the State of Haryana on
30th July, 2020 and was assured that even if he is discharged now, he will be
absorbed; (ii) this is a lifetime opportunity for the petitioner, to make a
quantum jump, from being a airmen / Corporal in the respondents no.1 to 3
IAF, to join a Class 'A' service of the State of Haryana and the petitioner, on
the verbal assurance given to him that he will be absorbed, is willing and still
seeks a discharge, even if ultimately he is not appointed as Assistant
Professor (College Cadre) in the respondent no.5 Department of Higher
Education, Government of Haryana; and, (iii) Subhash Chand, petitioner in
W.P.(C) No.634/2020, had appeared in the same examination conducted by
respondent no.4 HPSC and has joined respondent no.5 Department of Higher
Education, Government of Haryana on 15th July, 2020 and the petitioner is
confident that he will also be permitted to join.
W.P.(C) No.3311/2020 Page 9 of 15
14. The Senior Additional Advocate General of State of Haryana though
confirms the telephonic conversation of the officials of the respondent no.5
Department of Higher Education, Government of Haryana with the petitioner
but states that his instructions remain the same as disclosed on the previous
date of hearing.
15. We have thus heard the counsel for the petitioner in response to the
arguments of the counsel for the respondents no.1 to 3 IAF on 28th July,
2020. It was the contention of the counsel for the respondents no.1 to 3 IAF
on 28th July, 2020, that the petitioner is not entitled to the relief as granted to
Subhash Chand supra, because (i) the petitioner has fabricated the document
at page 122 of the paper book and is thus not entitled to any discretionary
equitable relief and his petition is liable to be dismissed; (ii) while Subhash
Chand supra had applied for online permission and which was not processed
owing to online process not entertaining applications for discharge without
the requisite qualifying criteria of skill grade 'A', the petitioner, without
even applying and merely to take advantage of the judgment in Subhash
Chand supra, had fabricated the document at page 122 of the paper book, to
show that the petitioner had attempted online permission, when in fact the
petitioner had not; and, (iii) had the petitioner attempted to seek permission
as claimed, there would have been a date at the top of page 122 of the paper
book.
16. The counsel for the petitioner, in response, has today (a) drawn our
attention to paragraph 12 of the writ petition and paragraph 13 of the counter
affidavit filed by the respondents no.1 to 3 IAF (which though was not on
record but copy of which has been e-mailed to us) to show that the
W.P.(C) No.3311/2020 Page 10 of 15
respondents no.1 to 3 IAF have admitted that the petitioner submitted an
application dated 20th March, 2019 seeking permission for applying for the
post aforesaid; (b) on enquiry has informed that the last date for applying for
the post aforesaid advertised by respondent no.4 HPSC, was 15th April, 2019
and thus the application dated 20th March, 2019 of the petitioner was within
time; (c) that though the petitioner on 20th March, 2019 attempted to apply to
respondents no.1 to 3 IAF for permission to apply for the post advertised by
respondent no.4 HPSC but since the software of the respondents no.1 to 3
IAF is not designed to process the application for permission of those not
having skill grade 'A', the petitioner failed; (d) that it is not in dispute that
NOC sought by the petitioner has been declined only for the reason of the
petitioner at the relevant time not possessing skill grade 'A' though has since
achieved the same; and, (e) that there is thus no reason for petitioner being
not granted the same relief as granted to Subhash Chand supra.
17. The counsel for the respondents no.1 to 3 IAF has in rejoinder
contended that the falsity of the document at page 122 of the paper book is
evident from the fact that the petitioner therein has filled up the length of his
service as on the date of applying, of "9 years 21 days" but which length the
petitioner completed only on 19th January, 2020 and thus the document at
page 122 of the paper book is not relating to any alleged online permission
attempted on 20th March, 2019
18. On enquiry it is informed that the petitioner enhanced his skill grade to
'A', in January, 2020.
W.P.(C) No.3311/2020 Page 11 of 15
19. We have considered, whether the petitioner is not entitled to the same
relief as Subhash Chand supra, for the reasons argued by the counsel for the
respondents no.1 to 3 IAF but are not able to find any force therein, because
(i) the respondents no.1 to 3 IAF admits the petitioner having made a
physical application for applying for the post of Assistant Professor (College
Cadre) in the respondent no.5 Department of Higher Education, Government
of Haryana on 20th March, 2019; and, (ii) the respondents no.1 to 3 IAF
admits that the application for online permission for so applying is not
processed unless the applicant possess skill grade 'A'; it is thus irrelevant
whether the petitioner attempted online permission on 20th March, 2019 or
not, inasmuch as even if the petitioner had attempted so, the same would not
have fructified and reached the respondents no.1 to 3 IAF and would have
been aborted. Else, the bona fides of the petitioner are established from the
petitioner making a physical application and wherefrom the respondents no.1
to 3 IAF were aware of the intent of the petitioner.
20. We have however considered, whether mandamus as issued in the case
of Subhash Chand supra to the respondents IAF, to discharge the petitioner
should follow when the petitioner as of today, as per the statement of Senior
Additional Advocate General of State of Haryana has no offer to join a group
'A' post in the State of Haryana. The policy of the respondents no.1 to 3
IAF permits such discharge only to join a group 'A' post, inter alia in a State
Government.
W.P.(C) No.3311/2020 Page 12 of 15
21. In this connection, the Senior Additional Advocate General of the State
of Haryana, on enquiry, how Subhash Chand supra was permitted to join on
15th July, 2020, states that Subhash Chand was permitted to join in terms of
the judgment dated 11th March, 2020 supra of this Court. However in the
said judgment, a mandamus only to the respondents IAF was issued, to
discharge Subhash Chand from service, though it was observed "........for
joining the post of Assistant Professor (College Cadre) (Mathematics) in the
respondent no.4 State of Haryana.". No mandamus to the State of Haryana
was issued.
22. Else, it is not in dispute that the petitioner otherwise fulfills the
conditions of AFO No.33/2017 and no other reason of service exigency or
otherwise has been given for denying permission to the petitioner, save on
the ground of the petitioner not possessing skill grade 'A' at the relevant
time.
23. We have already, in Subhash Chand supra referred to Part-IV titled
'Directive Principles of State Policy' of the Constitution of India, provisions
whereof per Article 37 though are not enforceable but principles laid down
wherein are nevertheless fundamental in the governance of the country and
the State obliged to follow those in making laws. It was further held that it is
the duty of the IAF as State to enable a citizen to upgrade himself from a
group 'C' to a group 'A' post, to be able to have much more dignity and
pride in his vocation, than as a driver, even if of a Specially Operated
Vehicle (SOV) in the IAF. It was observed, that the society in general
bestows more respect to an Assistant Professor (College Cadre), than to a
driver, even if of a SOV in the IAF. IAF, in the said judgment was reminded
W.P.(C) No.3311/2020 Page 13 of 15
(a) of the duty of its airmen / Corporals, as citizens, under Article 51A(j) of
the Constitution, to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels of
endeavor and achievement; and, (b) of Article 51A(k), imposing a duty on a
parent or guardian to provide opportunities for education to his child or ward
between the ages of six to fourteen years. It was held that it was the duty of
the State in its role as parens patriae, to not come in the way of airmen
enhancing their social if not financial status.
24. The same thought process applies with equal force here. The country
needs as many teachers at all levels, as airmen / Corporals in its IAF. Once
IAF itself has designed a policy, enabling its airmen / Corporals to seek
discharge after seven years of service and have not stated that the services of
the petitioner are required for any service exigency, though it is generally
argued that a large number of airmen are leaving under the said policy, and
once the condition of having skill grade 'A' for such discharge and for the
reason whereof the petitioner has been denied discharge, has been struck
down, we see no reason to deny the petitioner the same relief as Subhash
Chand supra has already availed of.
25. We thus have no hesitation in holding, the petitioner entitled to the
same relief as granted by us to Subhash Chand supra. The petition thus
succeeds and is allowed.
W.P.(C) No.3311/2020 Page 14 of 15
26. A writ of mandamus is issued to the respondents no.1 to 3 IAF, to
forthwith discharge the petitioner from service, for joining the post of
Assistant Professor (College Cadre) (Economics) in the respondents no.4
HPSC and respondent no.5 Department of Higher Education, Government of
Haryana.
27. The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. AUGUST 05, 2020 'gsr'..
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