KRISHNA KANT YADAV  Vs UNION OF INDIA AND ORS

W.P.(C) 8002/2020 Page 1 of 14

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 12 th January, 2021.

+ W.P.(C) 8002/2020 & CM No.26058/2020 (for interim d irections)

KRISHNA KANT YADAV ….. Petitioners
Through: Mr. Ankur Chhibber, Ms. Nandadevi
Deka and Mr. Anshuman, Advs.

Versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Alok Singh, Adv. For R-1 to 3.
Mr. Anil Mittal, Adv. for R-4&5.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MS. JUSTICE ASHA MENON

[VIA VIDEO CONFERENCING]

RAJIV SAHAI ENDLAW, J.

1. The petitioner, an Airman in the respondents No. 1 to 3 Indian Air
Force (IAF), has filed this petition seeking mandam us, directing the
respondents IAF to grant ‘No Objection Certificate’ (NOC) / Discharge
Certificate to the petitioner, thereby allowing the petitioner to join the post
for which he has been selected in the recruitment p rocess held by respondent
No.4 Uttar Pradesh Public Service Commission (UPPSC ) i.e. the post of
Assistant Labour Commissioner in the respondent No. 5 Government of
State of Uttar Pradesh (UP).
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2. The writ petition came up first before this Cour t on 15 th October,
2020, when notice thereof was ordered to be issued and the respondents
No.4&5 UPPSC and the Government of State of UP rest rained from
revoking / cancelling the offer of appointment made to the petitioner, on the
ground of non-submission by the petitioner of the N OC of the respondents
IAF, with which the petitioner was then and is pres ently employed.
3. On 21 st October, 2020 and thereafter on 25 th November, 2020, this
petition was taken up along with W.P.(C) No.5759/20 19 and orders reserved
in both the petitions. Finding the factual context of this writ petition to be
different from that of W.P.(C) No.5759/2019, it was not deemed appropriate
to pronounce orders in the two petitions by a commo n judgment and vide
judgment reported as CPL Mukesh Singh Rajpoot Vs. Union of India &
Ors. 2020 SCC OnLine Del 1599, W.P.(C) No.5759/2019 has been
dismissed.
4. It is the case of the petitioner, (i) that the p etitioner, after completing
his education till 10+2 stage, applied for the post of Airman with the
respondents IAF and on being successful, was enroll ed as an Airman, on 1 st
October, 2008 and underwent basic training and ther eafter trade training of
Accounts Assistant; (ii) that on 27 th April, 2012, the petitioner was promoted
to the rank of Corporal; (iii) that the respondents IAF encourages career
progression for all Airmen, while in service of res pondents IAF, by making
provision therefor in various orders; (iv) that whi le the petitioner was in
service, Air Force Order (AFO) No.14/2008 was in vo gue, which provided
for permission to Airmen to apply for civil posts/s ervices under Central /
State Government and Public Sector Undertakings (PS Us) in Group ‘A’ or
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equivalent posts, on completion of 7 years of servi ce with the respondents
IAF; (v) that vide another AFO No.4/2012 dated 31 st May, 2012, eligibility
and procedure for grant of permission to apply for civil posts/services under
Central / State Government / PSUs and Government of India Undertakings /
Corporations, as well as for grant of NOC were prov ided; (vi) that as per the
said Policy, any Airman who had completed 7 years o f regular service, was
eligible to apply for any Group ‘A’ post in Central /State Government/PSUs
and Government of India Undertakings/Corporations, having the pay scale
of Rs.15600-39100/- with Grade Pay of Rs.5400/- in Pay Band-III, was
eligible for seeking discharge, on being selected t o the said post; (vii) that
the respondent UPPSC issued an advertisement dated 11 th January, 2016
inviting applications for recruitment to various po sts carrying pay scale of
Rs.9300-34800/- with Grade Pay of Rs.4200/- to Rs.1 5600-39100/- with
Grade Pay of Rs.5400/-; (viii) that the petitioner being eligible to apply in
pursuance to the aforesaid advertisement, sought pe rmission of the
respondents IAF to apply for the posts advertised b y the respondent UPPSC
and recruitment whereto was through Combined State Upper Subordinate
Examination-2016; (ix) that the respondents IAF, on 1 st February, 2016
granted such permission to the petitioner in accord ance with AFO
No.4/2012; (x) that the petitioner participated in the recruitment process and
the respondents IAF also issued NOC dated 12 th December, 2018 for the
petitioner to appear at the interview stage of the said recruitment process;
(xi) however the petitioner was not selected; (xii) that the respondents IAF
thereafter issued AFO No.33/2017, in supersession o f AFO No.14/2008 and
AFO No.4/2012, qua the procedure for discharge; (xi ii) that AFO
No.33/2017 drastically changed the procedure for Ai rmen to seek better
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career opportunities, by imposing additional condit ions on the eligibility
criteria for applying for a civil post under Centra l/State Government; (xiv)
that under AFO No.33/2017, Airmen with minimum Skil l Grade ‘A’ and 7
years of service, are entitled to Group A/I and Gro up B/II gazetted posts
through Union Public Service Commission (UPSC) and State Public Service
Commission only; (xv) that the imposition of additi onal conditions,
particularly the condition of possessing Skill Grad e ‘A’ along with minimum
7 years of service, in AFO No.33/2017, is arbitrary ; (xvi) that on 6 th July,
2018, respondent UPPSC issued an advertisement invi ting applications for
recruitment to various posts through Combined State /Upper Subordinate
Services Examination carrying pay scale of Rs.9300- 34800/- with Grade
Pay of Rs.4600/- to pay scale of Rs.15600-39100/- w ith Grade Pay of
Rs.5400/-; (xvii) that the petitioner, on 12 th July, 2018 applied online for
permission to apply for the aforesaid posts adverti sed by the respondent
UPPSC; however since the petitioner did not possess Skill Grade ‘A’ and
was having Skill Grade ‘B’, online application was not accepted, compelling
the petitioner to, on 13 th July, 2018, apply offline for permission to apply for
the civil post of Assistant Professor pursuant to t he aforesaid advertisement
dated 6 th July, 2018; (xviii) however the respondents IAF re fused to accept
the offline application also; (xix) that the petiti oner, with a view of not
losing this once-in-a-lifetime opportunity, applied for the post of Assistant
Professor ( sic ) in the State of UP and appeared in the preliminar y
examination and after succeeding therein appeared i n the main examination
and cleared the same also; (xx) that in the interre gnum, the petitioner, in an
attempt to upgrade his skill level, even took a ski ll upgradation examination
of the respondents IAF but scored 118 marks i.e. 2 marks short of the cut off
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required for Skill Grade ‘A’; (xxi) that the petiti oner, in January to June,
2020, yet again took the skill upgradation examinat ion of the respondents
IAF and at the time of filing of the petition, resu lt thereof was awaited;
(xxii) that the petitioner, on being called for int erview on 16 th July, 2020 by
the respondent UPPSC, intimated the respondents IAF of the same and yet
again applied to the respondents IAF for sitting in the interview to be held
by the respondent UPPSC; (xxiii) that the responden t UPPSC made the
petitioner sign an undertaking stating that the pet itioner will obtain and
submit the NOC of the respondents IAF, within 30 da ys of the date of the
interview; (xxiv) that the respondent UPPSC, in the result of the recruitment
process announced on 11 th September, 2020, declared the petitioner
provisionally selected for the post of Assistant La bour Commissioner; (xxv)
that the petitioner, on 15 th September, 2020, yet again applied to the
respondents IAF for issuance of a NOC / Discharge C ertificate, so as to join
the post for which the petitioner has been selected ; (xxvi) that though the
Section Commander of the respondents IAF recommende d favourable
consideration of the application but no response wa s received thereto; and,
(xxvii) that the petitioner, so as to save the job for which he has been
selected, has applied to the respondent UPPSC and t he respondent State of
UP for extension of time for submitting the NOC.
5. The petitioner, in the petition itself has relie d on (a) order/judgment
dated 21 st October, 2009 of this Court in W.P.(C) No.9088/200 8 titled CPL
N.K. Jhakar Vs. Union of India , holding that not applying through proper
channel cannot be a ground for denying NOC/Discharg e Certificate; (b)
Charan Singh Bhanvariya Vs. Union of India 2010 SCC OnLine Del 2508
(DB), judgment dated 30 th May, 2016 in W.P.(C) No.1465/2016 titled
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Rajeev Ranjan Vs. Union of India , judgment dated 28 th July, 2016 in
W.P.(C) No.5145/2016 titled CPL Ranjeet Kumar Vs. Union of India
(SLP(CC) No.22476/2016 preferred whereagainst was d ismissed on 2 nd
December, 2016), CPL Manoranjan Kumar Vs. Union of India 2017 SCC
OnLine Del 11865 (DB) and several others, wherein N.K. Jhakar was
followed by this Court and mandamus issued to the I AF to issue NOC; (c)
judgment dated 25 th March, 2019 of this Court in W.P.(C) No.6300/2018
titled Prakash Katiyar Vs. Union of India & Ors. , where judgment dated
21 st January, 2019 in W.P.(C) No.567/2019 titled Sergeant Pradeep Kumar
Rai Vs. Union of India was distinguished by holding that the NOC had been
denied to the petitioner therein because he had bee n selected for a Group ‘B’
and not a Group ‘A’ post; (d) Subhash Chand Vs. Union of India
MANU/DE/0794/2020 (DB) where the condition in AFO N o.33/2017 of
having Skill Grade ‘A’ was held to be arbitrary, un reasonable and was struck
down by a bench comprising one of us (Justice Rajiv Sahai Endlaw) and in
SLP(C) No.8061/2020 preferred whereagainst, on 10 th July, 2020 though
notice had been issued but no interim stay granted; and, (e) other judgments
of this bench where Subhash Chand supra was followed.
6. It is not deemed necessary to record herein the grounds urged by the
petitioner in support of his claim in the petition, since the matter has been
threshed out by one of us (Justice Rajiv Sahai Endl aw) in Subhash Chand
supra and by us in other judgments following Subhash Chand supra.
7. The respondents IAF, in their counter affidavit have pleaded (i) that
the jurisdiction of this Court to entertain the pet ition is barred by Section 14
of the Armed Forces Tribunal Act, 2007; (ii) that t he petitioner, even
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otherwise, has statutory remedy under Section 26 of the Air Force Act,
1950, for redressal of his grievance; (iii) that th e petitioner was enrolled in
the respondents IAF for an initial term of 20 years and had signed an
undertaking to serve for 20 years and/or till disch arge; (iv) that discharge of
Airmen prior to completion of their regular engagem ent is bound to affect
the manning level in the respective trades of the r espondents IAF and has an
adverse impact on the operational preparedness of t he respondents IAF; (v)
that considering the functionality of the responden ts IAF, it requires well
trained and experienced manpower and each Airman is trained for specific
role and his continuance in the service is essentia l not only to make good the
expenditure incurred on him by the nation on his tr aining but also to man all
the required posts at all levels, to achieve desire d operational preparedness
at all times; (vi) that Airmen are inducted in the respondents IAF with basic
educational qualification criteria of 10+2/Intermed iate or equivalent and are
subjected to training spanning 1 to 2 years, before they are deployed
independently on operational duties and the respond ents IAF invests heavily
on its workforce, to mould the Airmen to meet its o perational needs; (vii)
that administrative policies are framed from time t o time for the purposes of
carrying into effect the provisions of the Air Forc e Act; (viii) that in order to
regulate pre-mature discharge of Airmen and at the same time balance some
of their personal aspirations for better career pro gression in the civil life, Air
Force Orders are issued from time to time; (ix) tha t earlier, vide AFO
No.18/2001, Airmen were permitted to apply for civi l posts under Central /
State Government and equivalent jobs in PSUs, after completion of 15 years
of service; vide AFO No.5/2003, it was decided to g rant permission to
Airmen for civil posts, even after completion of 7 years of service; (x) that
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vide AFO No.4/2007, Airmen with 7 years of service were additionally
permitted to apply for paramilitary forces; (xi) th at vide AFO No.14/2008,
Airmen with 7 years of service were permitted to ap ply for civil posts under
Central / State Governments and equivalent posts in PSUs only; (xii) that
pursuant to implementation of Sixth Pay Commission and induction of grade
based pay structure, AFO No.14/2008 was superseded by AFO No.4/2012,
whereunder Airmen with 7 years of service were enti tled to apply for posts
in Central / State Governments and equivalent posts in PSUs and
Government of India Undertakings/Corporations; (xii i) that after
implementation of the report of the Seventh Central Pay Commission which
introduces pay matrix system and abolished grade sy stem, AFO No.33/2017
was issued; (xiv) that Skill Grade criteria has not only been made eligibility
criteria for applying in civil service but since 20 15, has also been
incorporated in Annual Report/Annual Confidential R eport; the Skill Grade
criteria was introduced, considering the casual app roach of Airmen towards
upgrading skill level; skill level of an Airman is a direct measure of his
professional capability to undertake tasks in his a rea of deployment and
Airman Promotion Examinations are conducted in this regard; that Airman
of Skill Grade ‘A’ are considered for selection as Ultra Skilled in Trade and
Development; (xv) it was observed that Airmen, thou gh capable of clearing
civil services exams conducted by UPSC / State Publ ic Service Commission
/ PSUs / GATE, NTA (UGC) and other national level e xaminations, but
were not upgrading their skill as Airmen, to achiev e perfection in their trade
work, where they have been trained intensively and had served—they were
not taking any interest to upgrade their skill leve l and rather concentrating
for civil job; the skill and perfection of airmen i s required in handling highly
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sophisticated and specialized equipment and aircraf t system; (xvi) that the
skill grade system was evolved to motivate personne l to upgrade their skill
to achieve operational preparedness; (xvii) that th e respondents IAF has
changed its policy for grant of NOC for civil posts as per changing scenario
and in line with the pay structure in Civil Governm ent Sector; (xviii) that the
intent in granting permission to the Airmen possess ing Skill Grade ‘A’ to
apply for the said civil posts, is to give incentiv e to the personnel who
achieve high skill grade by involving themselves in hard work; such
personnel are entitled to get benefit of career enh ancement, rather than the
personnel who only desire career enhancement withou t dedication towards
service; (xix) that during 2015 to 2019, approximat ely 2706 trained Airmen
left service, before initial term of engagement of 20 years and which
resulted in shortage of trained manpower and for wh ich reason AFO
No.33/2017 was brought out; (xx) that the petitione r participated in the
recruitment process of the respondent UPPSC, witho ut permission/NOC of
the respondents IAF; (xxi) that the application of the petitioner for issuance
of NOC was examined in the light of AFO No.33/2017 and the petitioner
was not found eligible for NOC in terms of AFO No.3 3/2017, because the
petitioner had applied for the post, without seekin g permission of the
respondents IAF and without possessing Skill Grade ‘A’; (xxii) that the
Courts, even if not satisfied with the policy, ough t not to make any
modifications thereto and should leave it to the re spondents IAF to take a
call; the Court ought not to substitute its opinion for that of the respondents
IAF; and, (xxiii) that the facts of CPL Mukesh Singh Rajpoot supra are
different as in that case grant of NOC/Discharge Ce rtificate was denied
because of having not applied for civil post under UPSC or any State Public
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Service Commission. Reliance is placed on Amit Kumar Roy Vs. Union of
India (2019) 7 SCC 369.
8. The counsel for the petitioner argued that the c ase of the petitioner is
squarely covered by Subhash Chand supra.
9. The counsel for the respondents IAF drew attenti on to paragraph 6 of
AFO No.33/2017 laying down the condition of possess ion Skill Grade ‘A’
and paragraph 7, laying down that permission to app ly for civil post is a re-
requisite for grant of NOC and which permission is required to be in the
format as per Annexure A to the AFO and argued that since the petitioner
did not fulfill the conditions of the format for ap plying for permission to
apply for civil post and was not eligible to apply and applied without
permission, the petitioner cannot seek mandamus for issuance of NOC /
Discharge Certificate. It was further argued that the petitioner never made /
submitted any application offline and the claim to that effect is false. It was
further argued that issuance of NOC / Discharge Cer tificate is not a matter
of right. Attention is drawn to Clause 20 of AFO N o.33/2017 providing that
“permission to apply for civil post as well as gran t of NOC are privileges
and hence cannot be claimed as a matter of right”.
10. The counsel for the petitioner, in rejoinder re futed that the petitioner
did not submit any application; it was stated that the application was
submitted to the Section Officer of the respondents IAF but who did not
forward the same. Else, it was argued that the asp ect of prior permission has
already been considered in Subhash Chand supra. It was also informed that
the petitioner, since then has upgraded his skill g rade to Grade ‘A’.
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11. Though the factual position in this case is squ arely covered by
Subhash Chand supra but we opted to, hereinabove set out in deta il the
pleas of the respondents IAF, only to demonstrate t hat the denial of NOC /
Discharge Certificate to the petitioner in the pres ent case also is only on the
grounds of, (a) the petitioner having participated in the recruitment process
of the respondent UPPSC, without obtaining permissi on therefor; and, (b)
the petitioner being not entitled to NOC / Discharg e Certificate, for the
reason of not possessing Skill Grade ‘A’. We empha size, that the
respondents IAF, though has filed a detailed counte r affidavit, has still not
pleaded that the respondents IAF needs the petition er or cannot let go of the
petitioner and would have not granted the permissio n / NOC / Discharge
Certificate to the petitioner, even if fulfilled th e requirement, for the reason
of being required / needed by the respondents IAF f or the service of the
country. Had that been so, then, under Clause 20 o f AFO No.33/2017, it
could have been said that the petitioner is not ent itled to a mandamus
directing the respondents IAF to discharge the peti tioner or to grant NOC to
the petitioner, inasmuch as, there is no right of t he petitioner to demand so,
notwithstanding that the petitioner fulfils all the conditions prescribed to
apply for such permission. Clause 20 of AFO No.33/ 2017 also does not
clearly provide so. Rather, from the language and tenor of AFO
No.33/2017, it appears that any Airman who fulfils the prescribed eligibility
for applying for permission/discharge, is entitled thereto as a matter of right.
Though the counsels for the respondents IAF in this petition as well in
several other petitions entailing similar controver sy have been arguing that it
is not possible for the respondents IAF to grant pe rmission to all who apply
therefor, even if fulfilling the eligibility condit ions, at the cost of depleting
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its own strength but till now we have not come acro ss any case where the
respondents IAF have denied permission in national interest or for the sake
of its own operational preparedness. The denial ev en in this case is for the
same reasons which did not find favour with this Co urt in Subhash Chand
supra and other judgments, where the same was follo wed. Though we have
again heard the counsels at length on the said aspe ct in CPL Mukesh Singh
Rajpoot supra, arguments wherein were heard along with this petition, but
we did not find any reason to change our view.
12. We may notice another interesting aspect. Thoug h the respondents
IAF has pleaded that the condition of possessing Sk ill Grade ‘A’ for seeking
NOC / Discharge Certificate, after 7 years of servi ce, was introduced as an
incentive to Airmen to upgrade their skill and whic h is pleaded to be in the
interest of operational preparedness of the respond ents IAF, but surprisingly,
there is no condition, that an Airman, after upgrad ing his skill grade to Level
‘A’, will serve the respondents IAF for any minimum period during which he
will contribute with Skill Grade ‘A’ to the benefit of the respondents IAF.
Thus, technically it follows that an Airman, the ve ry next day or shortly
after upgrading his skill grade to Grade ‘A’, would be entitled to be
discharged from the respondents IAF, much before hi s initial term of
engagement of 20 years. We could have understood t hat if the incentive
given to upgrade to Skill Grade ‘A’ were to benefit the respondents IAF in
any way. It is also not very clear that the said b enefit of upgradation to Skill
Level ‘A’ of the respondents IAF would be of any us e in the civil
employment, for joining which for career enhancemen t, the Airman is being
discharged. We thus remain of the opinion, as take n in Subhash Chand
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supra regarding arbitrariness of the condition in A FO No.33/2017, of
upgradation to Skill Grade ‘A’.
13. As far as the other reason pleaded for opposing grant of NOC /
Discharge Certificate, of the petitioner having par ticipated in the recruitment
process of the respondent UPPSC without prior permi ssion of the
respondents IAF is concerned, not only have we deal t therewith in Subhash
Chand supra and the need to reiterate is not felt, but w e may add that the
respondents IAF cannot be permitted to impose the c ondition of Skill Grade
‘A’ which has been struck down in Subhash Chand supra by making it
impossible for an Airman to apply for prior permiss ion because of not
having Skill Grade ‘A’ and then contend that the Ai rman is not entitled to
NOC/discharge on the said ground.
14. Resultantly, the petitioner succeeds and the pe tition is allowed.
Mandamus is issued to the respondents IAF to forthw ith, within fifteen days,
grant NOC/Discharge Certificate to the petitioner f or joining employment as
Assistant Labour Commissioner in the respondent No. 5 Government of
State of Uttar Pradesh pursuant to his selection in the recruitment process
undertaken by the respondent No.4 UPPSC. Since dur ing the pendency of
this petition, the respondents No.4&5 UPPSC and Gov ernment of State of
Uttar Pradesh were restrained from revoking / cance lling the offer of
appointment made to the petitioner, on the ground o f non-submission of
NOC of the respondents IAF, it follows that the pet itioner, on submission of
such NOC/Discharge Certificate, would not be denied appointment by the
respondents No.4&5 UPPSC and Government of State of Uttar Pradesh, for
the reason of delay, in submission of NOC/Discharge Certificate.
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15. The petition is disposed of.

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J.
JANUARY 12, 2021
‘bs’

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