Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ has held that
“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.”
The Court was hearing the case where an Airman in the Indian Air Force had applied for the post of General Banking Officer without completing the mandatory period of service of seven years and without obtaining the prior permission of his unit authorities. According to the Air Force authorities, his was in breach of the provisions of Air Force Order 14/2008 which was then in force. Since the appellant had not received a clean discharge certificate, his services were terminated by Bank of India on 30 April 2014.
It was argued before the Court that the appellant has a fundamental right under Article 19(1)(g) to choose his place of employment. The provisions of Article 19(1)(g) in their application to the members of the Air Force are not any different from their application to any other branch of government.
The Court, however, rejected the said contention and held that such a construction will seriously impinge upon manning levels and operational preparedness of the armed forces.
“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 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.”
SCHEME OF AIR FORCE ACT
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 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 16, the individual subscribes to an oath or affirmation to bear allegiance to the Constitution, to serve in the Air Force and to obey all commands of an officer set over him, even to the peril of his life.
- Tenure in the Air Force is subject to the pleasure of the President. 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”.
SCHEME OF AFO 14/2008
- 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 paramilitary forces.
- 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, 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.
- Permission is required from the 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.
Considering the abovementioned schemes, the Court held that the appellant was in breach of the provisions contained in AFO 14/2008 as he had applied for the post of a Probationary Officer with the Bank of India, participated in the written test and appeared at the interview without intimation or approval. There was, therefore, a failure of the appellant to comply with his obligations both in terms of his engagement as an enrolled member of the force and in relation to the requirements which were to be fulfilled under the terms of AFO 14/2008.
[Amit Kumar Roy v. Union of India, 2019 SCC OnLine SC 823, decided on 03.07.2019]