1. Introduction
In NAKHAT SINGH v. UNION OF INDIA, the Supreme Court of India considered whether an Airman of the Indian Air Force, who had applied for and secured selection to a civil post without proving prior permission from the competent Air Force authority, could later compel grant of a No Objection Certificate and discharge from service.
The appellant, a Corporal in the Indian Air Force, applied for the post of Assistant Professor in Hindi pursuant to an advertisement issued by the Rajasthan Public Service Commission. After clearing the written examination and being selected, he sought a No Objection Certificate and discharge from the Air Force. The Air Force authority did not recommend his request on the ground that he had not complied with Air Force Order No.33/2017, which required prior permission before applying for a civil post.
The Armed Forces Tribunal and the Delhi High Court rejected his challenge. The Supreme Court affirmed those decisions and dismissed the civil appeal.
2. Summary of the Judgment
The Supreme Court held that the appellant was not entitled to a No Objection Certificate or discharge from the Indian Air Force because he failed to prove that he had obtained prior permission before applying for the civil post, as required by AFO No.33/2017.
The Court rejected the appellant’s argument that the requirements under the AFO were merely procedural or directory. It held that the AFO served an important institutional purpose: maintaining manning levels and operational preparedness of the Air Force while balancing the personal career aspirations of Airmen.
The Court emphasized that permission to apply for a civil post and subsequent grant of NOC are not vested rights. They are privileges governed by the conditions prescribed in AFO No.33/2017. Since Clause 19 specifically provides that a request for NOC may be rejected if prior permission was not obtained, compliance with the prior permission requirement is mandatory.
Consequently, the appeal was dismissed, with parties left to bear their own costs.
3. Analysis
A. Precedents Cited
The judgment refers to Subhash Chand v. Union Of India and others, a decision of the Delhi High Court in which the requirement under AFO No.33/2017 that an Airman must possess Skill Grade “A” was held to be ultra vires. In the present case, the appellant possessed Skill Grade “C”. The Armed Forces Tribunal accepted that, in view of Subhash Chand v. Union Of India and others, Skill Grade “C” could not by itself be a valid ground to deny NOC.
However, this precedent did not assist the appellant because the decisive issue was not his skill grade but his failure to obtain prior permission before applying for the civil post. Thus, the Supreme Court treated Subhash Chand v. Union Of India and others as relevant only to the limited extent that Skill Grade “A” could not be insisted upon, but it did not dilute the mandatory requirement of prior permission.
The appellant relied on CPL N.K. Jakhar v. Union of India and others to support his argument that procedural requirements should not defeat a substantive career opportunity. The Supreme Court, however, found the cases cited by the appellant to be distinguishable on facts.
The judgment does not set out the detailed facts or ratio of CPL N.K. Jakhar v. Union of India and others. Therefore, the Supreme Court’s treatment of this precedent was limited: it declined to apply it because the present case involved a clear failure to satisfy a mandatory condition under AFO No.33/2017.
The appellant also cited Sonu v. Union Of India and others. Like CPL N.K. Jakhar v. Union of India and others, it was relied upon to argue for a more liberal approach to procedural compliance. The Supreme Court rejected reliance on this decision as well, holding that the authorities cited by the appellant were factually distinguishable.
The Court’s approach shows that earlier relief granted in different factual situations cannot override the specific consequences prescribed in AFO No.33/2017 where prior permission is not obtained.
The most significant precedent relied upon by the Supreme Court was Amit Kumar Roy v. Union Of India and others. In that case, an Airman had applied for a civil post without completing the mandatory period of service and without obtaining prior permission under Air Force Order No.14/2008. The Supreme Court held that a member of the Air Force does not have an unqualified right to leave service at will.
The Court in Amit Kumar Roy v. Union Of India and others emphasized that operational preparedness, manning levels, trade criticality, and service exigencies are central considerations in the armed forces. It rejected the argument that Article 19(1)(g) of the Constitution gives an Airman an absolute right to leave military service for civil employment.
This precedent strongly influenced the present judgment. The Supreme Court applied the same principle: an enrolled member of the Air Force is bound by service rules and Air Force Orders, and cannot create a fait accompli by applying for and securing a civil post first, then seeking waiver of mandatory service conditions later.
B. Legal Reasoning
The Court’s reasoning turned on the purpose and structure of AFO No.33/2017. The AFO was framed because premature discharge of Airmen before completion of their regular engagement affects manning levels and operational preparedness. It therefore seeks to balance two competing interests:
- the personal aspiration of Airmen to pursue better civil career opportunities; and
- the institutional need of the Indian Air Force to maintain discipline, manpower, and readiness.
The Court noted that AFO No.33/2017 does not prohibit Airmen from applying for civil employment. Instead, it regulates the process. It requires permission at two stages:
- prior permission before applying for a civil post; and
- subsequent NOC after selection or after receiving an interview call, depending on the recruitment process.
The appellant argued that these were only procedural requirements and could be waived. The Court rejected that submission for two main reasons.
First, Clause 19 of the AFO provides a consequence for non-compliance: a request for NOC may be rejected where prior permission was not obtained. The Court applied the settled principle that where a provision prescribes a consequence for failure to comply with a requirement, that requirement is ordinarily mandatory.
Second, Clause 20 clarifies that permission to apply for a civil post and grant of NOC are privileges, not rights. This meant that the appellant could not demand NOC merely because he had been selected by the Rajasthan Public Service Commission.
The Court also relied on the concurrent factual findings of the Armed Forces Tribunal and the High Court. Both had found that the appellant failed to prove submission of an online application dated 25.11.2020 or an offline application dated 27.11.2020 seeking prior permission. His later request dated 03.10.2022 also did not refer to the alleged offline application. Since no documentary proof was produced, the Supreme Court declined to interfere with these findings.
C. Impact of the Judgment
This judgment has important consequences for Air Force personnel and for service jurisprudence concerning disciplined forces.
-
Strict compliance with AFO No.33/2017: Airmen seeking civil employment must obtain prior permission before applying. Selection to a civil post will not cure non-compliance.
-
No right to NOC: The judgment reinforces that NOC and discharge for civil employment are privileges subject to service requirements, not enforceable rights.
-
Operational preparedness prevails: Courts will give significant weight to the armed forces’ need to maintain discipline, manning levels, and operational readiness.
-
Evidence matters: Personnel must preserve proof of online or offline permission applications. Mere assertion that permission was sought will not suffice.
-
Limited effect of invalidating Skill Grade “A”: Even though the Skill Grade “A” requirement was held ultra vires in Subhash Chand v. Union Of India and others, other valid requirements of AFO No.33/2017 remain enforceable.
4. Complex Concepts Simplified
No Objection Certificate
A No Objection Certificate is an official permission from the employer indicating that it has no objection to the employee joining another post. In the Air Force context, it is not automatic and depends on compliance with Air Force Orders and service exigencies.
Air Force Order
An Air Force Order is an internal regulatory instruction governing service matters within the Air Force. AFO No.33/2017 regulates how Airmen may seek permission to apply for civil posts and obtain discharge.
Mandatory vs. Directory Requirement
A mandatory requirement must be strictly followed. A directory requirement is more flexible. The Supreme Court held that prior permission under AFO No.33/2017 is mandatory because the AFO prescribes consequences for non-compliance.
Fait Accompli
A fait accompli means a completed situation that one party presents to another as unavoidable. The Court held that an Airman cannot apply for and secure a civil post first, and then ask the Air Force to waive the prior permission requirement.
Ultra Vires
A rule is ultra vires when it is beyond the authority of the body that made it or otherwise legally invalid. The Skill Grade “A” requirement under AFO No.33/2017 had been held ultra vires, but that did not invalidate the rest of the AFO.