A person enrolled in Air Force can’t depart from service at his or her will during the term of engagement: SC

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.

RULING

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]

One comment

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    This is the true nature of democratic setup of a country. Here, judiciary with the Supreme court judges at the top are deciding the cases whose no one close is jawan(non officer rank) in armed forces. Policies which are talked about in this case are made up by those who are serving in armed forces as an officer, having no touch and empathy for the desires and dreams of a jawan. These policy makers are concerned about the outflow of the jawans but nobody wants to go deep into the root cause of the problem.

    There are few questions which I just want to ask to these policy makers:-

    1. Why do you think that if you allow a jawan to join another job which he wants to shift to, will hamper this organisation where the strength is more than 15 lakh? Where there is a que of lakhs and crores young unemployed youth is always ready to replace him?

    2. Don’t you think that every person joining armed forces, especially jawans who are mostly coming from the lower or lower medium strata, are joining forces as a job for them to earn their livelihood?

    3. Don’t you think that every person who is joining a job may have any of the two opinions in his mind after joining;
    (1) He likes the job and he can continue in it for the time he is enrolled for and for which he has signed on an undertaking at the time of joining,
    (2) He doesn’t like the job and want to quit it as he is not able to give his full to this but he is forced to continue in the job for next twenty years (term of engagement in air force for an airmen) just because he has signed a piece of undertaking that too prior to joining the job. How can a person is expected to decide to give his next twenty years of life at a place which he has not experienced for a single day. Signing an undertaking for twenty years before knowing it what it exactly is, what type of job it is, will he be able to perform in it, will it suit him, will he be able to adjust here in this job.

    4. Don’t you think that a person who is not even of 18 years of age, the age which has been denied casting vote for the reason of incapacity to decide right and wrong, is not able to decide correctly that he would be able to continue this job for next twenty years or not. That too, without having any experience of job in armed forces, most of them haven’t even entered the boundary of secured stations of armed forces to even see what happens inside.

    5. Don’t you think that he should be given at least a single occasion to decide after joining and looking into this organisation, whether he wants to continue or quit whether unconditionally or after fulfilling some conditions like repaying the amount spent on training or clothes and other items or anything which the organisation thinks to recover from that jawan.

    6. Don’t you think that a person who is forced to continue in this organisation would be harmful for the others in one or other way, like talking negative about organisation, causing morale down of his colleagues etc.

    7. If a person who has not applied for any job outside, or has not got any better paying job outside, applies for discharge just because he is not able to continue in this organisation because he is being forced to continue, do you have any policy other than punishing him by suppressing him to continue for twenty years or punishing him through court martial.

    Some questions here are to those who are deciding these cases:-

    1. Where is the article 21 in life of person of a person who in search of a job unfortunately joined an airmen in the air force and then not allowed to quit for next twenty years even if he is hellbent to not to continue. what about his rights? Shall he count joining air forces biggest mistake of his life?

    2. Don’t you think that first enticing a person who is a child as per law to join armed forces then not letting him go if doesn’t like it, is a trap of its kind?

    3. Why don’t the air force provide any window to quit once somebody fallen to its prey?

    4. Air force provide to go out only when somebody got selected for higher posts in civil considering upliftment of his life. Is joining a government service at higher post is the only upliftment of that person?

    5. Who has the right to decide what is upliftment of an airmen? He himself or everyone but not him?

    The real picture:

    As per the air force law, age of joining of this organisation begins from less than eighteen, i.e. from the childhood of a person. When he comes to join, first thing that is done is taking sign of the person on the terms and conditions which says that he will serve for not less than twenty years. Nobody warns him at that time, nor he himself think much in the ecstasy of joining a government job, that, the door is almost closed for next twenty years of your life, whether he was going to like this job or not. When the person enters any organisation, its a natural phenomenon that he will either like it or dislike it. Some may like it to a level that they are ready to continue it till the age of superannuation, other may dislike it to the level that he is ready to sacrifice the job and salary and ready to quit at any cost. What happens with the later one is he then virtually forced to continue the job because nobody gives him relief. Their is no window for him to go out. What the airforce has policy is, first he has to continue for atleast seven years, then he can go out only if he is selected for group A or B post, that too only through UPSC or State PSC, that too when he is skill A in his work in the Air force. To the explanation, skill A is the top grade. No permission even to apply for job if he is skill B,C,D or E. So this is a window provided which is virtually closed always.

    My suggestions:

    1. There can be some probation period, may be one year, after which the person must be given option whether to continue it or not. If he doesn’t want to continue, apply some charges on him as training cost and let him go away.
    2. If a person who has opted to continue after probation period at a later time want to go out, then ask for a notice period at least one year or more so that another can be recruited and fill his place. Apply proportionate cost of training if service is less than seven years.
    3. In the critical trades, notice period of two years can be asked so that another can fill up the upcoming vacancy efficiently.
    4. It is very much possible for every human being to dislike something, so don’t close all the doors. Keep a window open, may be on paying an amount, so that somebody should not be stifled here.
    5. For this nation where lakhs of people are in que to join a government job, someone else will come at his place and serve but nobody can replace the life to person who is forcibly continuing in this service. Nobody and nothing can compensate every day passed in this virtual imprison to the person who doesn’t want to continue.
    6. Court should have decided on this matter whether human rights take some stand when we talk about nationalism. And if court says that nationalism should be given preference then every citizen belongs to this nation must serve compulsorily, after all its their nation too. Why only those poor or lower middle class children should suffer who could not afford higher education and had to look for a job just after their school.

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