Holding

A member of the Indian Air Force does not have an unqualified constitutional right to leave service at will; the statutory provisions of the Air Force Act and AFO 14/2008 lawfully govern discharge and NOC issuance.

Summary

Amit Kumar Roy, an Air Force airman, applied for a bank probationary officer post without completing the mandatory seven years of service or obtaining prior permission under Air Force Order (AFO) 14/2008. He obtained a provisional No Objection Certificate (NOC) and discharge from the Armed Forces Tribunal, joined the bank, but later the Air Force cancelled the NOC and discharge, leading to his termination from the bank. The appellant argued that Article 19(1)(g) of the Constitution gave him an unqualified right to leave service, while the respondents contended that the Air Force Act, rules, and AFO 14/2008 lawfully restrict such a right. The Supreme Court held that members of the Air Force do not have an absolute right to depart service at will and that the statutory framework, including considerations of critical trades and service exigencies, prevails. The Court directed the issuance of a final NOC and discharge within three months, conditioned on the appellant depositing Rs 3 lakhs with the Union of India, and disposed of the appeals.

Issues considered

The extent to which Article 19(1)(g) of the Constitution applies to members of the Indian Air Force seeking civilian employment.
Whether the Air Force Act, 1950 and Air Force Order 14/2008 validly restrict the right to leave service during the period of engagement.
Whether the appellant is entitled to a final NOC and discharge despite earlier cancellation by the Air Force.
The applicability of equitable jurisdiction under Article 142 in directing a discharge.

Legislation cited

Air Force Act, 1950s. 13, s. 14, s. 15, s. 22
Constitution of Indias. Article 19(1)(g), s. Article 33

Subjects

Article 19(1)(g)Air Force ActAFO 14/2008No Objection CertificateDischarge from armed forcesCritical tradeEquitable jurisdictionArticle 142Civil serviceFundamental rightsMilitary personnel

Judgment

[2019] 9 S.C.R. 885 885

AMIT KUMAR ROY A
v.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 4605-4606 of 2019)
JULY 03, 2019 B
[DR. DHANANJAYA Y. CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Service Law:
Right to depart from service – Of person enrolled as a member C
of Air Force – Held: A person who has been enrolled as a member
of Air Force does not have an unqualified right u/Art. 19(1)(g) of
the Constitution to depart from service at his/her own will during
the term of engagement – The interest of service are of paramount
importance – A balance needs to be drawn between the interest of
D
service and requests of enrolled persons to take civilian employment
– Such balance is reflected in Air Force Orders – In the present
case there was failure on part of the appellant to comply with his
obligations in terms of his engagement as an enrolled member of
the force and also in relation to the requirements which were to be
fulfilled under the terms of Air Force Order viz. AFO 14/2008 – E
However, in the facts of the case no purpose will be served in
directing reinstatement of the appellant – Interest of justice would
be met by directing issue of NOC and discharge order subject to the
appellant depositing with Union of India a sum of Rs. 3 lakhs –
Constitution of India – Art. 19(1)(g) – Air force Order 14/2008.
F
The appellant, who was enrolled as an Airman in the Air
force, applied for and appeared in written test and interview for
appointment to a civil post in a Bank. This was done without
completing the mandatory period of service of seven years and
without obtaining prior permission from the competent
authorities. Thereafter he applied for an NOC from competent G
authorities of the Air Force. In the meantime he received order
of appointment from the Bank. The appellant, then moved Air
Force Tribunal seeking direction for grant of NOC and for
discharge from Air Force to join the civil post. The Tribunal by
H
885
886 SUPREME COURT REPORTS [2019] 9 S.C.R.

A interim order directed to authorities to issue provisional NOC
and to discharge the appellant. Appellant joined the Bank after
receiving provisional NOC and provisional discharge order.
Subsequently the application seeking grant of NOC was dismissed
by the authorities. Ultimately the application filed before the
Tribunal was also dismissed as infructuous. The authorities
B
further also cancelled the provisional NOC and provisional
discharge. Consequently in absence of NOC and discharge, the
services of the appellant in the Bank were terminated. Hence
the present appeals challenging the orders of the Tribunal.
Disposing of the appeals, the Court
C
HELD: 1. The Air Force Act 1950 imposes restrictions on
the fundamental rights of the members of the Indian Air Force
with a view to ensure ‘proper discharge of duties and the
maintenance of discipline among them’. [Para 9] [895-B-C]

D 2. AFO 14/2008 held the field at the material time and
governs the facts of the present case. Under the terms of the
AFO, a requirement of completing seven years of service from
the date of enrolment has been mandated for permission to be
granted to apply for a civil post under the Central or State
Governments or Public Sector Undertakings, including
E paramilitary forces. AFO 14/2008 stipulates that a Category I
individual with a length of service of seven years may apply for
civilian employment in a Group A or equivalent post carrying the
stipulated pay scale as revised from time to time. Applications
have to be forwarded to the prospective employer by the units,
F after verification of eligibility including the criticality of manpower.
Where the Airman belongs to a critical trade, the application shall
be rejected at the unit level. Where online applications have been
invited the station or, as the case may be, unit commanders are
required to ensure fulfilment of the conditions of eligibility
specified in paragraph 1 to 3. Permission is required from the
G station/unit commanders to submit an on-line application for a
civil post. NOCs (other than those in Category III) are to be
issued by Air HQs on a case to case basis having regard to the
exigencies of service. [Para 13] [902-F-H; 903-A-B]

H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 887

3. In the present case, the appellant in breach of the A
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
B
member of the force and in relation to the requirements which
were to be fulfilled under the terms of AFO 14/2008.
[Para 14] [903-C-D]
4. It cannot be said that the appellant had an unqualified
right under Article 19(1)(g) of the Constitution to leave the service
of the Air Force. The provisions of the Air Force Act, those C
contained in the rules and the terms of engagement of the
appellant belie such an assertion. AFO 14/2008 emphasises
aspects such as the criticality of the trade and the exigencies of
service. They need to be verified and assessed before permission
is granted. A person who has been enrolled as a member of the D
Air Force does not have an unqualified right to depart from service
at his or her will during the term of engagement. Such a
construction, as urged on behalf of the appellant, will seriously
impinge upon manning levels and operational preparedness of
the armed forces. With the rapid advancement of technology,
particularly in its application to military operations, there has been E
a reconfiguration of the human and technological requirements
of a fighting force. The interests of the service are of paramount
importance. 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. This balance is F
reflected in the provisions contained in the Air Force orders, in
this case AFO 14/2008. A person enrolled cannot assert a general
right to act in breach or defiance of those orders. [Para 15]
[903-D-H]
5. The appellant moved the Air Force Tribunal after G
submitting the application on 30 May 2011. He had an interim
order of the AFT dated 18 August 2011 in his favour for
provisional discharge and for an NOC. This was implemented
on 20 September 2011, following which the appellant was struck
off the strength of the IAF with effect from 21 September 2011
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888 SUPREME COURT REPORTS [2019] 9 S.C.R.

A and joined the Bank of India on 24 September 2011. This order
of the Tribunal was not disturbed in the civil appeal filed by the
Union of India, but this Court by an order dated 12 March 2012,
directed the Air Force authorities to dispose of the application
submitted by the appellant on 30 May 2011. After the application
was rejected, an interim order enured to the benefit of the
B
appellant. In this backdrop nearly eight years have elapsed since
the appellant left service. No purpose will be served in directing
the reinduction of the appellant into the IAF save and except to
subject him to disciplinary action. Having regard to the facts and
circumstances, the ends of justice would be met by directing that
C a final NOC and discharge be issued to the appellant no later
than within a period of three months of the receipt of a copy of
this order, subject to the appellant depositing with the Union of
India a sum quantified at Rs. 3 lakhs. [Para 16] [904-A-F]
Union of India v Major General Shri Kant Sharma
D (2015) 2 SCC 519 ; Corporal Gaurav Badhwar v.
Union of India (2015) SCC Online Del
7275 – referred to.
Case Law Reference
(2015) 2 SCC 519 referred to Para 4
E
(2015) SCC Online Del 7275 referred to Para 6

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.4605-
4606 of 2019
F
From the Judgment and Orders dated 11.04.2012 and 25.05.2012
of the Armed Forces Tribunal, Chandigarh Bench, Chandigarh in O.A.
No. 1182 of 2011 and in M.A. No. 667 of 2012 and R.A. No. 22 of 2012
in O.A. No.1182 of 2011 respectively
With
G
Civil Appeal No. 4607 of 2019.
Gopal Sankaranarayanan, Sr. Adv., Ms. Pooja Dhar,
Ms. Aishwarya Kane, Ms. Gayatri Verma, Advs. for the Appellant.

H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 889

R. Balasubramanian, Sr. Adv., Sachin Sharma, Nachiketa Joshi, A
Arvind Kumar Sharma, Mukesh Kumar Maroria, Jagat Arora, Rajat
Arora, Anuvrat Sharma, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
B
Civil Appeal Nos 4605-4606 of 2019 (D No 27372/2015):
1. These appeals arise from a decision of the Armed Forces
Tribunal1 dated 11 April 2012 together with its order dated 25 May
2012, declining to review the initial decision.
2. The appellant was enrolled on 12 January 2004 as an Airman in C
the Indian Air Force2. 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 D
General Banking Officer in the pay scale of Rs 14,500-25,700 in August
2010. The appellant did so 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 E
Certificate3 and a Discharge on 30 May 2011. 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 F
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. On 18 August 2011, the AFT issued an interim direction
to the IAF authorities to provisionally issue an NOC and to discharge G
the appellant so as to enable him to take up the new assignment before
24 August 2011. This was subject to the condition that in the event of his
1
AFT
2
IAF
3
NOC
4
OA 1182/2011 H
890 SUPREME COURT REPORTS [2019] 9 S.C.R.

A OA being dismissed, the appellant would have to give up his appointment
and join the IAF within a reasonable period of time failing which he
would be liable to action as a deserter absent without leave. On 2
September 2011 after the rejection of an application for review filed by
the Air Force authorities before the AFT and faced with a contempt
petition, Air Headquarters issued a provisional NOC to the appellant
B
permitting him to take up the appointment in a civil post of a General
Banking Officer (JMG Scale-I) with the Bank of India. A discharge
order was issued on 20 September 2011 on a provisional basis on the
conditions stipulated by the AFT. The appellant joined Bank of India on
24 September 2011.
C 3. A Civil Appeal5 was filed by the Union of India in this Court to
assail the interim order of the AFT. On 12 March 2012 this Court directed
the Air Force authorities to dispose of the application submitted by the
appellant on 30 May 2011 for an NOC and discharge. The application
was rejected on 26 March 2012. The order of rejection, in so far as is
D material, is extracted below:
“(a) You had applied for the civil post directly without obtaining
prior permission of your Commanding Officer that too before
completion of mandatory period of seven years of service in the
IAF in violation of AFO 14/2008.
E (b) Both the above acts amount to indiscipline.
(c) The pay scale of the civil post applied by you is Rs 14,500-
25,700 which is not equivalent to Group –”A” as per Air HQ/S
40726/PA(RC) dated 22 May 2009 read with AFO 14/2008. As
per referred letter dated 22 May 2009 the post is equivalent to
F Group –”C” Govt Post for which an airman belonging to a trade
not having critical manning is eligible to apply only on completion
of 15 years of service. On completion of 18 years of service, one
can apply for any post, irrespective of critical manning in respective
trade, provided he had rendered unwillingness/denied extension
G of service.
(d) You belonged to Air Frame Fitter trade which is having critical
manning.

5
Civil Appeal D No 38467/2012

H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 891
[DR DHANANJAYA Y. CHANDRACHUD, J.]

(e) At the time of applying for the said post, your trade was having A
critical manning, also you had not completed 15 or 18 years of
service which is mandatory for applying for Group – ”C” Govt
posts and equivalent posts in PSUs.”
On 9 April 2012, when his OA came up before the AFT the Air
Force authorities had already passed an order rejecting his application. B
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 appellant’s review application
was dismissed on 25 May 2012. On 2 June 2012, the appellant filed writ
proceedings6 before the High Court of Punjab and Haryana. He was
protected by an interim order dated 15 June 2012, against being treated C
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 D
to join duties at his last unit, Three Base Repair Depot, failing which it
was stated that he would be liable to disciplinary action.
4. 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 proceedings7
E
in which by an order dated 17 September 2014, the termination was
stayed. In view of the decision of this Court in Union of India v Major
General Shri Kant Sharma 8, 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. F
5. 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 G
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.
6
CWP 11861/2012
7
CWP 19402/2014
8
(2015) 2 SCC 519 H
892 SUPREME COURT REPORTS [2019] 9 S.C.R.

A 6. Mr Gopal Sankaranarayanan, learned senior counsel appearing
on behalf of the appellant submitted that:
(i) 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
B from their application to any other branch of government;
(ii) There was sufficient compliance by the appellant with the
provisions contained in paragraph 17 of AFO 14/2008;
(iii) On the purported non-parity of pay scales:

C (a) The Air Force Order dated 23 July 2015 indicates that pay
scales for Assistant Managers in Scale I of public sector banks
have been revised to meet with the equivalence criteria
vis-à-vis Group A government posts and that approval has
been accorded to the procedure for the discharge of Airmen
selected for nationalised banks;
D
(b) The appointment order dated 15 April 2013 issued to the
appellant indicates a basic pay of Rs 14,500 – 25,700;
(c) Pay scales of banks are revised every four to five years as
against central pay scales which are revised once in ten years;
and
E
(d) Consequently the pay scales in the banking industry are well
in excess of those offered in the IAF;
(iv) As regards the issue of the ‘criticality of trade’:
(a) The appellant was appointed to a post equivalent to a Group
F A post and was entitled to a waiver of the condition;
(b) The order passed by the Air Force authorities on 22 July 2013
did not mention criticality of trade as the reason for denying
permission;

G (c) In Corporal Gaurav Badhwar v Union of India9, the Delhi
High Court has held:
“..assessment of criticality in a trade would ordinarily be within
the domain of the employer, but where it is pleaded that due

9
(2015) SCC Online Del 7275
H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 893
[DR DHANANJAYA Y. CHANDRACHUD, J.]

to dying nature of the work due to modernization in the A
equipment of the employer, some category of employees are
being rendered without work and are being adjusted in other
activities, and for which we highlight the evasive denial by
the respondents to the pleas of Cpl Gaurav Badhwar in para
16 of the writ petition that 25% to 30% Instrument Fitters are
B
being made to work in the Bar, Canteen and other
establishments where they perform duties wholly unrelated
to their skills of Instrument Fitters, it would be a case
requiring it to be held that the employer has failed to make
good the defence of there being criticality in the trade.”
(iv) As on February 2019, over five years have elapsed since the C
appellant commenced employment with the bank. The career
advancement policy necessitates a liberal approach. The omission of
the appellant to apply through proper channels was only a procedural
irregularity and not an illegality. The appellant applied for discharge on
17 April 2013, which was followed by a fresh application on 13 July D
2013. The failure to seek prior permission, it has been urged is an
irregularity and does not cause prejudice to the IAF. The equitable
intervention of this Court has been sought for the grant of a ‘clean’
NOC and discharge certificate which would enable him to continue to
serve the bank in which he is employed.
E
7. On the other hand, Mr R Balasubramanian, learned senior
counsel appearing on behalf of the Union of India and the Air Force
authorities submitted that:
(i) The appellant has proceeded on a misconceived assumption
that though he is a member of the Air Force, he is entitled to leave F
employment at his will in view of the fundamental right guaranteed by
Article 19(1)(g). The submission ignores the specific provisions of Article
33 of the Constitution;
(ii) There is a fallacy in the submission that a person enrolled in
the armed forces of the Union (in this case the IAF) is entitled to leave G
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 clear that there is a statutory obligation to serve during the
period of engagement, a breach of which would invite disciplinary action;

H
894 SUPREME COURT REPORTS [2019] 9 S.C.R.

A (iii) These statutory provisions are complemented by the Air Force
Rules, more particularly, Rules 7 and 9 which have been framed under
the provisions of Section 189 of the Act;
(iv) Air Force Order 14/2008 which held the field at the material
time regulated the terms on which persons enrolled in the IAF may
B apply for civilian employment; and
(v) In interpreting the provisions of law, it would be necessary for
this Court to have regard to :
· The need to maintain manning levels;

C · The requirement of operational preparedness;
· Training costs incurred in incorporating technological
advancements;
· Interests of the IAF; and
· Importance of training of a particular trade or category.
D
In this backdrop, it was urged that there is no general or vested
right to leave service during the period of engagement and any application
has to be considered on a case to case basis. Mr Balasubramanian
submitted that the appellant who was enrolled in the IAF breached his
statutory obligation and left service without prior permission, rendering
E him liable for disciplinary action.
8. The rival submissions will be considered.
9. Article 33 of the Constitution provides as follows:
“33. Parliament may, by law, determine to what extent any of the
F rights conferred by this Part shall, in their application to,— (a) the
members of the Armed Forces; or (b) the members of the Forces
charged with the maintenance of public order; or (c) persons
employed in any bureau or other organisation established by the
State for purposes of intelligence or counter intelligence; or (d)
G person employed in, or in connection with, the telecommunication
systems set up for the purposes of any Force, bureau or
organisation referred to in clauses (a) to (c), be restricted or
abrogated so as to ensure the proper discharge of their duties and
the maintenance of discipline among them.”

H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 895
[DR DHANANJAYA Y. CHANDRACHUD, J.]

The Air Force Act 1950 has been enacted by Parliament legislating A
under Articles 245(1) and 246(1) of the Constitution. The specific
legislative entry in the VIIth Schedule is Entry 2 of the Union list which
reads thus:
“Naval, military and Air Forces; any other armed forces of the
Union.” B
The Air Force Act 1950 imposes restrictions on the fundamental
rights of the members of the IAF with a view to ensure ‘proper discharge
of duties and the maintenance of discipline among them’. Section 13
stipulates the procedure which is to be followed before the enrolling
officer, where any person desires to be enrolled. Section 13 provides as C
follows:
“13. Procedure before enrolling officer.—Upon the appearance
before the prescribed enrolling officer of any person desirous of
being enrolled, the enrolling officer shall read and explain to him,
or cause to be read and explained to him, in his presence, the D
conditions of the service for which he is to be enrolled; and shall
put to him the questions set forth in the prescribed form of
enrolment, and shall, after having cautioned him that if he makes
a false answer to any such question he will be liable to punishment
under this Act, record or cause to be recorded his answer to each
such question.” E

Section 14 provides for the mode of enrolment:
“14. Mode of enrolment.—If, after complying with the provisions
of section 13, the enrolling officer is satisfied that the person
desirous of being enrolled fully understands the questions put to F
him and consents to the conditions of service, and if such officer
perceives no impediment, he shall sign and shall also cause such
person to sign the enrolment paper, and such person shall thereupon
be deemed to be enrolled.”
Section 15 deals with the validity of enrolment:
G
“15. Validity of enrolment.—Every person who has for the space
of three months been in receipt of pay as a person enrolled under
this Act and been borne on the rolls of any unit shall be deemed to
have been duly enrolled, and shall not be entitled to claim his
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896 SUPREME COURT REPORTS [2019] 9 S.C.R.

A discharge on the ground of any irregularity or illegality in his
enrolment or on any other ground whatsoever; and if any person,
in receipt of such pay and borne on the rolls as aforesaid, claims
his discharge before the expiry of three months from his enrolment,
no such irregularity or illegality or other ground shall, until he is
discharged in pursuance of his claim, affect his position as an
B
enrolled person under this Act or invalidate any proceedings, act
or thing taken or done prior to his discharge.”
Before enrolment, the enrolling officer has to make the person
who desires to be enrolled cognizant of the conditions of service. Section
14 mandates that before signing on the enrolment, the individual has to
C consent to the conditions of his service. A person who has for a period
of three months been in receipt of pay as a person enrolled under the
Act and has been borne on the rolls of any unit is deemed to have been
duly enrolled. On being attested under Section 1610, the individual
subscribes to an oath or affirmation to bear allegiance to the Constitution,
D to serve in the Air Force and to obey all commands of an officer set
over him, even to the peril of his life11. Tenure in the Air Force is subject
to the pleasure of the President12. A person subject to the Air Force Act
1950 may be retired, released or discharged from service “by such
authority and in such manner as may be prescribed”.13
10
E 16. Persons to be attested.—The following persons shall be attested, namely: —
14 (a) all persons enrolled as combatants; (b) all persons selected to hold a non-
commissioned or acting non-commissioned rank; and (c) all other persons subject to
this Act as may be prescribed by the Central Government.
11
17. Mode of attestation.—(1) When a person who is to be attested is reported fit for
duty, or has completed the prescribed period of probation, an oath or affirmation shall
be administered to him in the prescribed form by his commanding officer in front of his
F unit or such portion thereof as may be present, or by any other prescribed persons. (2)
The form of oath or affirmation prescribed under this section shall contain a promise
that the person to be attested will bear true allegiance to the Constitution of India as by
law established, and that he will serve in the Air Force and go wherever he is ordered by
land, sea or air, and that he will obey all commands of any officer set over him, even to
the peril of his life. (3) The fact of an enrolled person having taken the oath or affirmation
directed by this section to be taken shall be entered on his enrolment paper and
G authenticated by the signature of the officer administering the oath or affirmation.
12
18. Tenure of service under the Act.—Every person subject to this Act shall hold
office during the pleasure of the President.
13
22. Retirement, release or discharge.—Any person subject to this Act may be retired,
released or discharged from the service by such authority and in such manner as may be
prescribed.
H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 897
[DR DHANANJAYA Y. CHANDRACHUD, J.]

10. Section 189 empowers the Central government to make rules A
for the purpose of carrying into effect the provisions of the Act. Rule 7
provides thus:
“7 Enrolling officers and form of enrolment.—
(1) The following officers shall be enrolment officers for the
purposes of sections 13 and 14, namely:— B

(a) all recruiting officers;
(b) all assistant recruiting officers;
(c) the Officer Commanding a unit of the Air Force.
C
(2) The Form of enrolment set forth in the First Schedule is
prescribed for the purposes of sections 13 and 14.”
Rule 9 is in the following terms:
“9 Oath or affirmation to be taken on attestation.—
(1) The oath or affirmation to be taken on attestation shall be in D
one of the following form or in such other forms to the same
purport as the attesting officer ascertains to be in accordance
with the religion of the person to be attested or otherwise binding
on his conscience. Form of Oath I ..................do swear in the
name of God that I will bear true faith and allegiance to the E
Constitution of India as by law established and that I will as in
duty bound honestly and faithfully serve in the Air Force of the
Union of India, and go wherever ordered by air, land or sea, and
that I will observe and obey all commands of the President of the
Union of India and the commands of any officer set over me
even to the peril of my life. Form of Affirmation I ..................do F
solemnly affirm that I will bear true faith and allegiance to the
Constitution of India as by law established and that I will as in
duty bound, honestly and faithfully serve in the Air Force of the
Union of India and go wherever ordered by air, land or sea, and
that I will observe and obey all commands of the President of the G
Union of India and the commands of any officer set over me
even to the peril of my life.
(2) The oath or affirmation prescribed in this rule shall, whenever
practicable be administered by the commanding officer of the
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898 SUPREME COURT REPORTS [2019] 9 S.C.R.

A person to be attested or in the presence of such commanding
officer by a person empowered by him to administer it in the
manner described in section 17. If it is not so administered, it may
be administered by a magistrate, a recruiting officer or an assistant
recruiting officer.”
B Rule 13 stipulates that:
“13 Release.—A person subject to the Act may be released from
the Air Force in accordance with these rules, or in accordance
with any orders or instructions made in that behalf by or under the
authority of the Central Government.”
C 11. The statutory form of enrolment as a combatant is in Form AI
of the First Schedule. Part II of Form AI incorporates an obligation to
serve in the Air Force for a specified period. As we have already noted,
on his enrolment in 2004, the engagement of the appellant was for a
stipulated period of twenty years. Rule 14 provides for the authorities
D who are empowered to authorise a discharge. There is a table which
deals with persons enrolled under the Act who have, as the case may
be, been attested or are not attested. Rule 15 is reproduced below:
“15 Authorities empowered to authorise discharge .—(1)
Each of the authorities specified in column 3 of the Table below
E shall be the authority competent in respect of persons subject to
the Act specified in column 1 thereof for the causes specified in
column 2 and in the manner specified in column 4, to discharge
such persons from the service.
(2) Any power conferred by this rule on any of the aforesaid
F authorities may also be exercised by any other authority superior
to it.

Class Cause of discharge Competent authority Special instructions
to authorize
discharge
Persons enrolled (a) At his own Commanding To be carried out in
under the Act who request on transfer Officer accordance with the
G have attested. to the pension conditions of
establishment enrolment
(b) On fulfilling the Commanding To be carried out in
conditions of his Officer accordance with the
enrolment conditions of
enrolment

H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 899
[DR DHANANJAYA Y. CHANDRACHUD, J.]

A
(c) Having been Commanding To be carried out
found medically Officer only on the
unfit for further recommendations of
service. an Invaliding Board
(d) On transfer to the ……
pension
establishment or on
discharge with B
gratuity otherwise
than at his own
request or under
item (c).
(e) Having been Air Officer I/c An Airman reported
found inefficient in Administration as inefficient will, as
his rank or trade and far as vacancies
being unwilling to allow be permitted to C
accept reduction or remuster and / or
remustering accept reduction in
any rank and trade
for which he is
reported as suitable.
If no such vacancy
exists or if he
declines to accept D
such remustering or
reduction he will be
discharged under this
item
(f) At his own Director of ……..
request before Personnel (Airmen)
fulfilling the
conditions of his E
enrolment
(g) His services no
longer required :-
(i) Due to reduction Director of ……..
in establishment or Personnel (Airmen)
to reorganization
(ii) Unsuitable for Air Officer I/c ………
retention in the Air Administration F
Force
(h) All other classes Do
of discharge
Persons enrolled (i) At his own (i) Air or other The competent
under the Act who request before officer i/c of authority mentioned
have not been fulfilling the Command in the preceding
attested conditions of the column will exercise
enrolment this power only when G
he is satisfied as to
the bona fides of the
application and that
the total strength of
the Air Force will not
there by be unduly
reduced
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900 SUPREME COURT REPORTS [2019] 9 S.C.R.

A (ii)Director or
Personnel (Airmen)
in case of units
directly under Air
Head-quarters
(j) Unlikely to make Commanding Applicable to airmen
in efficient Airman Officer under going training
B for airmen
(k) All other classes Commanding
of discharge Officer

12. Now it is in this background that it would be necessary to
C advert to the provisions of AFO 14/2008. Clause 1, in so far as is material,
provides thus:
“Airmen/NCs(E), who have completed seven years of service
from the date of enrolment, are permitted to apply for civil posts
under Central/State Government and public Sector Undertaking
D including Para-Military Forces. Non-Govt. Organization (NGOs)
Trusts, even if funded by the Govt. shall not be covered in the
permission category of civil posts. The categories of posts,
corresponding length of service and eligibility are to be determined
as given below:
E Category Length of Permissible
Service Categories of Civil
posts
(a) I 7 Yrs (A) Group ‘A’
or equivalent posts
(maximum of the pay
scale not less than Rs
F 13,500, as revised
from time to time.

Clause 1 stipulates a requirement of the completion of seven years
service to apply for civilian employment. It also defines the permissible
categories of civilian posts for which armed forces personnel may apply.
G
Clause 2 stipulates that:
“All applications for above categories of posts will be directly
forwarded to the prospective employers by the units after verifying
the eligibility including criticality of manpower. Application of
H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 901
[DR DHANANJAYA Y. CHANDRACHUD, J.]

Airman belonging to critical trades shall be rejected at unit level. A
However, the condition of criticality will not be applicable to the
applicants of category 1A and III above, in whose case the
applications will be forwarded despite criticality in their trades.
The criticality of trades will be updated by Air HQ twice a year, in
June and December and would be intimated to the Stns./Unit
B
through their respective Command HQs. Unit directly under Air
HQ would be intimated the criticality of the trades by Air HQ.
Airman who are on deputation to ARC are also eligible to apply
for civil posts as per Para 1 above and their applications to be
processed through PHS C/O AFCAO, where unit copy of service
documents of ARC deputationists are held. Forwarding of C
applications shall not be construed as acceptance to grant NOC,
which shall be issued as per the procedure laid down in subsequent
paras of this AFO.”
Under clause 2, the units will verify the criticality of manpower
before forwarding the applications. D
Clause 5 lays down guidelines which must be followed where
online applications have been invited by government departments or, as
the case may be, by public sector undertakings. Here again, the individual
has to seek permission from the station/unit commanders before applying
on-line. Clause 5 is in the following terms: E
“Forwarding of On-line Applications. Several prospective
employers in Govt Departments/PSUs invite applications for civil
employment through their web sites on the internet. Station/Unit
Commanders are to ensure that the applicant meets the eligibility
conditions enumerated in preceding Paras 1-3. The following F
guidelines are to be followed for ‘on-line’ registration of applications
for civil posts :-
(a) Individual to seek permission from his respective Station/Unit
Commanders to apply for any civil post ‘on-line’ alongwith duly
filled application and advertisement downloaded from the website. G
(b) An undertaking is to be furnished by the individual, stating that
information furnished by him to the Stn/Unit authorities will be
submitted to the employer ‘on-line’ and no classified information
will be communicated.
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902 SUPREME COURT REPORTS [2019] 9 S.C.R.

A (c) Before granting permission, the unit administration is to examine
the contents of the application keeping security consideration in
mind.”
Under clause 6, NOCs (other than those under Category III) will
be issued by Air HQs on a case to case basis subject to the exigencies
B of service and the overall cadre requirement in a particular rank or trade.
Clause 6 is as follows:
“No Objection Certificate (NOC) for applicants under Cat III
will be issued two ears before completion of their engagement by
their respective AOC/Stn Cdr/CO as per the format placed at
C Appendix ‘E’ while all other NOCs will be issued by Air HQs
(Dte of PA) on case to case basis, subject to the exigencies
of service and with the overriding condition being the
overall cadre requirement in a particular rank/trade as per
format given at Appendix ‘C’.” (Emphasis supplied)

D Clause 7 provides:
“Application for NOC is to be submitted by the individual after
receiving call letter for the interview/verification of documents or
after the result of written test where selection is based on success
in written test only. However, in all cases NOC is to be obtained
E by the individual invariably before submitting application for
discharge on being selected for the civil post.”
Finally, clause 13 stipulates that:
“Permission to apply for civil post is a privilege and hence issuance
of NOC can not be claimed as a matter of right. No provisional or
F conditional NOC is to be issued by the Stations/Units.”
13. AFO 14/2008 held the field at the material time and governs
the facts of the present case. Under the terms of the AFO, a requirement
of completing seven years of service from the date of enrolment has
been mandated for permission to be granted to apply for a civil post
G under the Central or state governments or public sector undertakings,
including paramilitary forces. AFO 14/2008 stipulates that a Category I
individual with a length of service of seven years may apply for civilian
employment in a Group A or equivalent post carrying the stipulated pay
scale as revised from time to time. Applications have to be forwarded
H
AMIT KUMAR ROY v. UNION OF INDIA & ORS. 903
[DR DHANANJAYA Y. CHANDRACHUD, J.]

to the prospective employer by the units, after verification of eligibility A
including the criticality of manpower. Where the Airman belongs to a
critical trade, the application shall be rejected at the unit level. Where
online applications have been invited the station or, as the case may be,
unit commanders are required to ensure fulfilment of the conditions of
eligibility specified in paragraph 1 to 3. Permission is required from the
B
station/unit commanders to submit an on-line application for a civil post.
NOCs (other than those in Category III) are to be issued by Air HQs on
a case to case basis having regard to the exigencies of service.
14. In the present case, 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 C
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 and in relation to the
requirements which were to be fulfilled under the terms of AFO
14/2008. D
15.We are unable to accept the submission of Mr
Sankaranarayanan that the appellant had an unqualified right under Article
19(1)(g) of the Constitution to leave the service of the Air Force. The
provisions of the Air Force Act, those contained in the rules and the
terms of engagement of the appellant belie such an assertion. AFO 14/ E
2008 emphasises aspects such as the criticality of the trade and the
exigencies of service. They need to be verified and assessed before
permission is granted. A person who has been enrolled as a member of
the Air Force does not have an unqualified right to depart from service
at his or her will during the term of engagement. Such a construction, as
urged on behalf of the appellant, will seriously impinge upon manning F
levels and operational preparedness of the armed forces. With the rapid
advancement of technology, particularly in its application to military
operations, there has been a reconfiguration of the human and
technological requirements of a fighting force. The interests of the service
are of paramount importance. A balance has been sought to be drawn G
between the interests of the service with situations involving requests by
persons enrolled to take civilian employment. This balance is reflected
in the provisions contained in the Air Force orders, in this case AFO 14/
2008. A person enrolled cannot assert a general right to act in breach or
defiance of those orders.
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904 SUPREME COURT REPORTS [2019] 9 S.C.R.

A 16. In the present case, we are now left with the alternative
submission invoking the equitable jurisdiction of this Court under Article
142 of the Constitution. The appellant moved the AFT after submitting
the application 30 May 2011. He had an interim order of the AFT dated
18 August 2011 in his favour for provisional discharge and for an NOC.
This was implemented on 20 September 2011, following which the
B
appellant was struck off the strength of the IAF with effect from 21
September 2011 and joined the Bank of India on 24 September 2011.
This order of the AFT was not disturbed in the civil appeal filed by the
Union of India, but this Court by an order dated 12 March 2012, directed
the Air Force authorities to dispose of the application submitted by the
C appellant on 30 May 2011. After the application was rejected, an interim
order enured to the benefit of the appellant. In this backdrop nearly eight
years have elapsed since the appellant left service. No purpose will be
served in directing the reinduction of the appellant into the IAF save and
except to subject him to disciplinary action. Having regard to the facts
and circumstances which we have noted above, we are of the view that
D
the ends of justice would be met by directing that a final NOC and
discharge be issued to the appellant no later than within a period of three
months of the receipt of a copy of this order. At the same time, we are
of the view that this should not be an unconditional direction. We
accordingly issue an order in the above terms, subject to the appellant
E depositing with the Union of India a sum quantified at Rs 3 lakhs within
two months of the receipt of a copy of this judgment. A final NOC and
discharge certificate shall be issued only after the above amount is
deposited and within one month thereafter. The civil appeals are disposed
of in the above terms. There shall be no order as to costs.
F Civil Appeal No 4607 of 2019 (D No 27196/2015):
17. No other point has been separately urged in this appeal. Hence,
the civil appeal shall stand disposed of in similar terms. There shall be no
order as to costs.

G Kalpana K. Tripathy Appeals disposed of.

H