JUDGMENT
A.K. Sikri, J.
1. The petitioner is aggrieved by the action of
the respondents in denying him the appointment to the
post of ‘Soldier Clerk’ in the Army which petitioner
describes as illegal, arbitrary and discriminatory. It
is so because according to him, after having undergone
the selection process, he was declared successful
therein. He has, therefore, filed the present writ
petition, inter alia, praying that the letter dated
23rd March, 2001 vide which he was denied the
appointment be quashed and mandamus be issued to the
respondents to issue him an appointment letter for the
post of ‘Soldier Clerk’ forthwith and he be sent for
training for incorporating him in the permanent cadre
corps in the strength of the Indian Army.
2. The facts, as disclosed by the petitioner in
the writ petition claiming the aforesaid relied, make
the following reading:
3. The petitioner on 8th November, 2000 visited
the office of the respondent No. 3 and came to know that
a rally selection for 153 posts of general duty,
nursing clerks and soldier clerks is about to take
place on 13th November, 2000 for Delhi, Gurgaon and
Faridabad zone. The eligibility conditions prescribed
by the office of the respondent No. 3 were that the
candidate should be high school level. The petitioner
got his name entered in the rally register at the
office of the respondent No. 3. He was asked to report
on 13th November, 2000 in the selection grounds for the
aforesaid tests. The petitioner had opted for the post
of Soldier Clerk.
4. The number of vacancies for the aforesaid post
were 24. It is also stated in the petition that
according to the practice followed at the selection
grounds on 13th November, 2000, the petitioner was
asked to line up Along with the other candidates with
his original documents regarding his education for the
purpose of verifying the original documents. This
verification is undertaken before a candidate is made
to appear in the written test to short list the
candidates who fulfill the eligibility criteria. The
documents of the petitioner were verified by the
competent authority at his turn and he was found
eligible for undergoing the aforesaid tests. The
original Date of Birth Certificate of the petitioner
was marked with the seal of I.R.O., meaning thereby
that the petitioner was eligible to be sent for the
said tests. Thereafter, the short listed candidates
were made to undergo physical test, which included 1600
meter race, pit jumping, crossing of beams etc. The
petitioner duly qualified in the physical test. The
documents of the petitioner were once again verified
according to the practice prevalent in the Selection
Board. As he was declared successful in the physical
test, he was asked to appear for the medical
examination conducted on 14th November, 2000. He
cleared that as well. Thereafter, he appeared for
written examination Along with short listed candidates
on 26th November, 2000. The result of the written
examination was declared on 11th December, 2000 wherein
24 candidates were declared successful out of 153 short
listed candidates. The petitioner’s name was also
found placed in the said list. He was accordingly
asked to come on 17th December, 2000 with the original
educational qualification documents. After seeing and
verifying the original documents, the competent officer
asked the petitioner to deposit the photocopies of the
documents with the office of the respondent No. 3 for
the purpose of getting them verified from the
Board/University which had issued the certificates and
the petitioner was asked to report on 22nd December,
2000 for checking the position of the verification of
documents. The practice which is followed by the
Recruitment Board is that as soon as the report from
the concerned Board/University is received by the
office of the respondent No. 3 and the documents are
found genuine, the candidate is issued traveling
warrants to report to the appointed training centre.
5. Thereafter, the petitioner made personal
visits to the office of the respondent No. 3 after 3-4
days periodically to verify as to whether his
verification had been done. The verification report on
the documents of the petitioner was received by the
office of the respondent No. 3 in the third week of
January, 2001. The petitioner was informed on 25th
January, 2001 that the report regarding verification of
his documents had been received and he was once again
directed to undergo the medical examination for the
purpose of sending him to the training centre. He was
cleared in the medical examination once again whereupon
he was asked to report on 29th January, 2001 at 8 AM in
the office of the respondent No. 3 Along with his bag and
baggage for collecting travel documents/railway
warrants for going to Ahmednagar, Maharashtra. The
petitioner reached the office of the respondent No. 3 at
8 AM on 29th January, 2001 for this purpose. His
training papers, rahdari certificate and railway
warrants were prepared along with other candidates.
However, at about 5 PM on that date he was informed
that he could not be recruited in the Army as Soldier
Clerk since he was not eligible for the aforesaid post.
No reasons were assigned.
6. The petitioner further states in the writ
petition that he thereafter made number of personal
visits to the office of the respondent No. 3 and sought
to know the reason why he was not sent for training.
NO satisfactory reply was given and rather he was
threatened of dire consequences. He thereafter even
sent letter dated 21st March, 2001 wherein he demanded
the reason for not sending him to the training centre
despite his having been selected in accordance with
procedure and practice.
7. In reply the petitioner received letter dated
23rd March, 2001 whereby for the first time he was
communicated that he was not eligible for the post of
Soldier Clerk as he had cleared his Mathematic subject
in 10th Class examination with the help of three grace
marks. He was also asked to collect his original
certificates from the office of the respondent No. 3.
8. The petitioner tried to meet the senior
officials and asked for judicial enquiry and further
requested that he be sent to training centre for
undergoing training. However, all his attempts went in
vain and in these circumstances, he filed the instant
writ petition on 9th July, 2001.
9. At this stage, we may reproduce the relevant
text of letter dated 23rd March, 2001 as per which the
petitioner was informed that he was not eligible for
the post of Soldier Clerk. Para 2 of this letter reads
as under:
“Regarding your aforesaid letter, we have
already intimated to you that you are not
eligible for the post of ‘soldier clerk’
because you have passed Mathematics
examination in 10th class with a grace
mark. For the post of ‘soldier clerk’ a
candidate should have passed Mathematics
and English examination without grace
marks. Therefore, your candidature has
been cancelled.”
10. The reason given by the respondents in
treating the petitioner as ineligible for the post is
that he had passed mathematics examination of 10th
class with grace marks. It in this reason which is
challenged by the petitioner in this writ petition and
his submission is that he cannot be rendered ineligible
on the aforesaid ground.
11. Starting point, while drawing the aforesaid
controversy, would be the advertisement which was
issued for recruitment to the post of Soldier Clerk.
The English translation of this advertisement
prescribes for educational qualifications as matric
pass with English and Math subjects. There is no
dispute about the fact that the petitioner possesses
the matriculation certificate and he had studied at
matriculation level, both English and March subjects.
Normally, when a person has successfully passed his
matriculation whether he passed with grace marks or
not, may not be a relevant factor. Grant of grace
marks by a particular Board from where a student passes
the said examination would be governed as per the rules
of the said Board and if rules/regulations permit so,
grace marks would be given and ultimately the student
would be treated as having passed the matriculation
examination.
12. Still this aspect was specifically adverted to
by the respondents authorities and a clarification was
issued way back in the year 1996. By circular letter
dated 19th January, 1996 issued on behalf of Adjutant
General, it was stated as under:
“The issue of accepting candidates who
possess minimum laid down educational
standards but failed in the special
subjects has been re-examined and decided
that with immediate effect it would be
mandatory for a candidate seeking
enrolment in Army to have the requisite
laid down educational standards along
with also having passed in the special
subjects laid down for specific
trade/cat/ Any candidate although has
passed the laid down educational
standards but failed in the special
subject will not be considered eligible
for enrolment in that category/trade in
Army.”
13. Thus, in the aforesaid letter, what was stated
that it was incumbent upon the candidate to have passed
the special subjects as well as which included
Mathematics. Whether it was necessary to pass this
subject with grace marks was the subject matter of
controversy thereafter on which the recruiting office
of the Army sought further clarifications. This aspect
was clarified by the same branch vide letter dated 13th
June, 1996 clarifying that candidates who had passed
their matriculation examination with grace marks were
eligible for enrolment provided that they had requisite
subjects in their matriculation as laid down in SAO
4/S/71. These subjects, as noted above, are English
and Mathematics.
14. When the petitioner applied for the aforesaid
post in response to the advertisement in question and
produced the certificates regarding his educational
qualifications etc. as well, the respondents, prima
facie, felt satisfied with the educational
qualifications of the petitioner and he was allowed to
undergo the selection process. He passed the physical
test, medical examination, written examination and
again physical test, in that order and was successful.
The respondent No. 3 at that relevant time was in
possession of aforesaid clarification dated 13th June,
1996 as per which passing a particular subject even
wit grace marks would make a candidate eligible for
enrolment. The petitioner had passed the Mathematics
after getting 3 grace marks. The respondents, in these
circumstances, could act on the aforesaid clarification
dated 13th June, 1996 and send the petitioner for
training. However, inspite of a clear mandate given in
letters dated 19th January and 13th June, 1996 the
Adjutant General’s branch was asked to give the
following clarification:
“A candidate for enrolment into Sol Clk
Cat is required to have passed Matric
with English and Maths. Vide your letter
No. A/62531/Rtg 5(OR(A) dt. 19 Jan 96 the
candidate should have passed in both
these subjects i.e. English and Maths to
be eligible for enrolment. However, a
doubt has arisen as to whether a
candidate who has passed since these
subjects with grace marks are eligible
for such enrolment in terms of your
letter No. 62531/Rtg 5 (OR(A) dt 13 Jan 96
photocopies of above letters are enclosed
for ready ref.
An early clarification is requested.”
15. Vide reply dated 26th May, 2000 the respondent
No. 3 was informed that the clarification dated 13th
June, 1996 still holds good. Para 2 of this letter
states:
“It is intimated that this HQ letter
No. 62531/Rtg 5 (OR(A) dated 13 Jun 96
still holds good. As such a candidate
who has passed matric with mandatory
subjects specified for the category
either with grace marks or otherwise, is
eligible for enrolment.”
16. This should have satisfied the respondent
No. 3. Still, for the reasons best known to him, the
respondent No. 3 continued to correspond with Adjutant
General’s branch and further exchange of letters
followed. In one of its letters dated 6th February,
2001 specific query in the following manner was raised
and an answer was elicited from the Adjutant General’s
branch:
“A case has now come up for enrolment
into Clk Cat, wherein a candidate has
produced a matric pass certificate with
the subjects English, Maths, Science etc.
as specified for the Clk category.
However, on scrutiny of his mark sheet it
is observed that the indl had obtained 30
marks in Maths (pass marks being 33) and
declared pass with grace marks (photocopy
encl.). It does not mention that
individual has failed in the Math
subject.
In view of the above please clarify
whether he said candidate is eligible
for enrolment or not to avoid any legal
complication at a later stage.”
17. This time, curiously, the Adjutant General’s
branch took a turn around and stated that the
petitioner was eligible only for the post of Soldier
GD/Soldier Tradesmen. Vide his reply dated 6th
February, 2001 it appears that this matter was
thereafter taken up at Headquarter level and ultimately
the Adjutant General’s branch on the basis of
clarification given by the Headquarter, issued circular
dated 8th June, 2001 stating that earlier dated 13th
June, 1996 should be treated as cancelled. This two
line letter reads as under:
“Ref this HQ letter of even number dated
09 Aug 2000.
Considering the clarification given vide
this HQ letter quoted above, this HQ
letter No. 62531/Rtg 5 (OR)(A) dt 13 Jun
96 may please be treated as cancelled.”
18. the admitted position which emerges, form the
aforementioned sequence of events, can be summarised in the
following manner:
The initial stand of the respondents as per
letter dated 19th January, 1996 was that a candidate
having passed the matriculation examination should pass
in the special subjects. In this letter, it was
nowhere stated as to whether that these special
subjects must be cleared without the aid of grace
marks. Thereafter, vide letter dated 13th June, 1996
it was amply clarified that a candidate who passed the
requisite subject even with grace marks would be
eligible for enrolment. In view thereof, there was no
need to ask for any clarification when the candidature
of the petitioner was considered for the post of
Soldier Clerk. In fact initially no such clarification
was even sought and the petitioner went through the
entire selection process and was declared successful.
Only when the time for the petitioner to send him for
the training came, that the respondent No. 3 started
seeking clarification. Even initial clarification was
that the petitioner is eligible. Thereafter, for the
reasons best known to the respondents, came out with
the plea that the petitioner would not be eligible.
Interestingly, this change of mind was not the
“clarification” of the position contained in letters
dated 19th January and 13th June, 1996. In fact the
respondents knew too well the implication of letter
dated 13th June, 1996. It is for this reason that vide
letter dated 8th June, 2001 the Headquarter has
withdrawn its earlier letter dated 13th June, 1996.
Thus, the decision is taken now to the effect that the
essential that the essential subjects should be passed
without the grace marks. However, when the petitioner
applied and was selected for the post of Soldier clerk,
the decision of the respondents which held the field
was contained in its circular letter dated 13th June,
1996 as per which a candidate having passed the
matriculation examination with grace marks also was
eligible for enrolment. If this decision is now
withdrawn on 8th June, 2001 and the effect of that is
that the respondents would treat only those candidates
who passed the requisite subjects without grace marks,
such a decision cannot be applied retrospectively in
the case of the petitioner who would be governed by the
earlier decision dated 13th June, 1996. The
petitioner, therefore, could not be denied appointment
to the post of the Soldier Clerk.
19. The law on this subject is well settled and
the issue is no more res integra. It is tritle law that
even a statute or statutory rule is prospective unless
it is expressly or by necessary implication given the
retrospective effect. In so far administrative
decision is concerned, which is the case here, it
cannot be retrospective, more so, when it acts to the
prejudice of a person in whose favor a right has
already accrued. This principle stands settled in
catena of decisions rendered by the Supreme Court.
Without referring to all these decisions, purpose would
be served by mentioning the judgment of the Supreme
Court in the case of P. Mahendran v. State of
Karnataka reported in JT 1989 (4) SC 459 wherein it was
observed:
“It is well-settled rule of construction
that every statute or statutory rule is
prospective unless it is expressly or by
necessary implication made to have
retrospective effect.
The court observed that:
“Since the amending Rules were not
retrospective, it could not adversely
affect the right of those candidates who
were qualified for selection and
appointment on the date they applied for
the post, moreover as the process of
selection had already commenced when the
amending Rules came into force, the
amended Rules could not affect the
existing rights of those candidates who
were being considered for selection as
they possessed the requisite
qualifications prescribed by the Rules
before its amendment.”
20. The aforesaid judgment has also been followed
by the Supreme Court in the case of Gopal Krushna Rath
v. MA.A.A. Baig (dead) Lrs. and Ors. reported in
1998 (7) SLR 515.
21. The facts of this case are more or less
similar to the instant case which would be clear from
the following observations made in this case:
“5. It is an accepted position that on
the date of advertisement and on the last
date prescribed for the receipt of
applications, the qualification
prescribed by the University Grants
Commission was 10 years’ experience of
teaching and/or research. Therefore, the
advertisement also prescribed the same
qualification. The appellant possessed
that qualification. Even on the date
when the Syndicate prepared an assessment
chart, the position was the same. It was
only thereafter, on 19.9.1991, that the
new qualification regarding 10 years’
teaching experience at the postgraduate
level came into effect.
6. When the selection process has
actually commenced and the last date for
inviting applications is over, any
subsequent change in the requirements
regarding qualifications by the
University Grants Commission will not
affect the process of selection which has
already commenced…”
22. This writ petition, therefore, succeeds. The
impugned decision of the respondents treating the
petitioner as ineligible by its decision contained in
letter dated 23rd March, 2001 is hereby quashed. Rule
is made absolute. Direction is issued to the
respondents to treat the petitioner as duly selected
for the post of Soldier Clerk and send him forthwith
for training for incorporating him in the permanent
cadre corps strength of Indian Army. Although the
petitioner shall not be entitled to any salary and
allowances etc. for the intervening period, his
seniority should be fixed taking into consideration his
position in the merit list in the batch in which he was
selected by properly placing him in the aforesaid batch
and treating him as appointed with effect from the date
other candidates who were successful in the aforesaid
selection, in which the petitioner participated, were
appointed. The said period shall be counted for
seniority, notional fixation of pay and all other
purposes except that the petitioner shall not be
entitled to actual arrears of any for this period.
23. The petitioner shall also be entitled to cost
quantified at Rs. 5,000/-.