{"id":178973,"date":"2002-07-25T00:00:00","date_gmt":"2002-07-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sh-omveer-singh-panwar-vs-union-of-india-uoi-and-ors-on-25-july-2002"},"modified":"2018-01-20T04:15:53","modified_gmt":"2018-01-19T22:45:53","slug":"sh-omveer-singh-panwar-vs-union-of-india-uoi-and-ors-on-25-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sh-omveer-singh-panwar-vs-union-of-india-uoi-and-ors-on-25-july-2002","title":{"rendered":"Sh. Omveer Singh Panwar vs Union Of India (Uoi) And Ors. on 25 July, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Sh. Omveer Singh Panwar vs Union Of India (Uoi) And Ors. on 25 July, 2002<\/div>\n
Author: A Sikri<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
A.K. Sikri, J.<\/p>\n
1. The petitioner is aggrieved by the action of
\nthe respondents in denying him the appointment to the
\npost of ‘Soldier Clerk’ in the Army which petitioner
\ndescribes as illegal, arbitrary and discriminatory. It
\nis so because according to him, after having undergone
\nthe selection process, he was declared successful
\ntherein. He has, therefore, filed the present writ
\npetition, inter alia, praying that the letter dated
\n23rd March, 2001 vide which he was denied the
\nappointment be quashed and mandamus be issued to the
\nrespondents to issue him an appointment letter for the
\npost of ‘Soldier Clerk’ forthwith and he be sent for
\ntraining for incorporating him in the permanent cadre
\ncorps in the strength of the Indian Army.\n<\/p>\n
2. The facts, as disclosed by the petitioner in
\nthe writ petition claiming the aforesaid relied, make
\nthe following reading:\n<\/p>\n
3. The petitioner on 8th November, 2000 visited
\nthe office of the respondent No. 3 and came to know that
\na rally selection for 153 posts of general duty,
\nnursing clerks and soldier clerks is about to take
\nplace on 13th November, 2000 for Delhi, Gurgaon and
\nFaridabad zone. The eligibility conditions prescribed
\nby the office of the respondent No. 3 were that the
\ncandidate should be high school level. The petitioner
\ngot his name entered in the rally register at the
\noffice of the respondent No. 3. He was asked to report
\non 13th November, 2000 in the selection grounds for the
\naforesaid tests. The petitioner had opted for the post
\nof Soldier Clerk.\n<\/p>\n
4. The number of vacancies for the aforesaid post
\nwere 24. It is also stated in the petition that
\naccording to the practice followed at the selection
\ngrounds on 13th November, 2000, the petitioner was
\nasked to line up Along with the other candidates with
\nhis original documents regarding his education for the
\npurpose of verifying the original documents. This
\nverification is undertaken before a candidate is made
\nto appear in the written test to short list the
\ncandidates who fulfill the eligibility criteria. The
\ndocuments of the petitioner were verified by the
\ncompetent authority at his turn and he was found
\neligible for undergoing the aforesaid tests. The
\noriginal Date of Birth Certificate of the petitioner
\nwas marked with the seal of I.R.O., meaning thereby
\nthat the petitioner was eligible to be sent for the
\nsaid tests. Thereafter, the short listed candidates
\nwere made to undergo physical test, which included 1600
\nmeter race, pit jumping, crossing of beams etc. The
\npetitioner duly qualified in the physical test. The
\ndocuments of the petitioner were once again verified
\naccording to the practice prevalent in the Selection
\nBoard. As he was declared successful in the physical
\ntest, he was asked to appear for the medical
\nexamination conducted on 14th November, 2000. He
\ncleared that as well. Thereafter, he appeared for
\nwritten examination Along with short listed candidates
\non 26th November, 2000. The result of the written
\nexamination was declared on 11th December, 2000 wherein
\n24 candidates were declared successful out of 153 short
\nlisted candidates. The petitioner’s name was also
\nfound placed in the said list. He was accordingly
\nasked to come on 17th December, 2000 with the original
\neducational qualification documents. After seeing and
\nverifying the original documents, the competent officer
\nasked the petitioner to deposit the photocopies of the
\ndocuments with the office of the respondent No. 3 for
\nthe purpose of getting them verified from the
\nBoard\/University which had issued the certificates and
\nthe petitioner was asked to report on 22nd December,
\n2000 for checking the position of the verification of
\ndocuments. The practice which is followed by the
\nRecruitment Board is that as soon as the report from
\nthe concerned Board\/University is received by the
\noffice of the respondent No. 3 and the documents are
\nfound genuine, the candidate is issued traveling
\nwarrants to report to the appointed training centre.\n<\/p>\n
5. Thereafter, the petitioner made personal
\nvisits to the office of the respondent No. 3 after 3-4
\ndays periodically to verify as to whether his
\nverification had been done. The verification report on
\nthe documents of the petitioner was received by the
\noffice of the respondent No. 3 in the third week of
\nJanuary, 2001. The petitioner was informed on 25th
\nJanuary, 2001 that the report regarding verification of
\nhis documents had been received and he was once again
\ndirected to undergo the medical examination for the
\npurpose of sending him to the training centre. He was
\ncleared in the medical examination once again whereupon
\nhe was asked to report on 29th January, 2001 at 8 AM in
\nthe office of the respondent No. 3 Along with his bag and
\nbaggage for collecting travel documents\/railway
\nwarrants for going to Ahmednagar, Maharashtra. The
\npetitioner reached the office of the respondent No. 3 at
\n8 AM on 29th January, 2001 for this purpose. His
\ntraining papers, rahdari certificate and railway
\nwarrants were prepared along with other candidates.
\nHowever, at about 5 PM on that date he was informed
\nthat he could not be recruited in the Army as Soldier
\nClerk since he was not eligible for the aforesaid post.
\nNo reasons were assigned.\n<\/p>\n
6. The petitioner further states in the writ
\npetition that he thereafter made number of personal
\nvisits to the office of the respondent No. 3 and sought
\nto know the reason why he was not sent for training.
\nNO satisfactory reply was given and rather he was
\nthreatened of dire consequences. He thereafter even
\nsent letter dated 21st March, 2001 wherein he demanded
\nthe reason for not sending him to the training centre
\ndespite his having been selected in accordance with
\nprocedure and practice.\n<\/p>\n
7. In reply the petitioner received letter dated
\n23rd March, 2001 whereby for the first time he was
\ncommunicated that he was not eligible for the post of
\nSoldier Clerk as he had cleared his Mathematic subject
\nin 10th Class examination with the help of three grace
\nmarks. He was also asked to collect his original
\ncertificates from the office of the respondent No. 3.\n<\/p>\n
8. The petitioner tried to meet the senior
\nofficials and asked for judicial enquiry and further
\nrequested that he be sent to training centre for
\nundergoing training. However, all his attempts went in
\nvain and in these circumstances, he filed the instant
\nwrit petition on 9th July, 2001.\n<\/p>\n
9. At this stage, we may reproduce the relevant
\ntext of letter dated 23rd March, 2001 as per which the
\npetitioner was informed that he was not eligible for
\nthe post of Soldier Clerk. Para 2 of this letter reads
\nas under:\n<\/p>\n
“Regarding your aforesaid letter, we have
\nalready intimated to you that you are not
\neligible for the post of ‘soldier clerk’
\nbecause you have passed Mathematics
\nexamination in 10th class with a grace
\nmark. For the post of ‘soldier clerk’ a
\ncandidate should have passed Mathematics
\nand English examination without grace
\nmarks. Therefore, your candidature has
\nbeen cancelled.”\n<\/p>\n
10. The reason given by the respondents in
\ntreating the petitioner as ineligible for the post is
\nthat he had passed mathematics examination of 10th
\nclass with grace marks. It in this reason which is
\nchallenged by the petitioner in this writ petition and
\nhis submission is that he cannot be rendered ineligible
\non the aforesaid ground.\n<\/p>\n
11. Starting point, while drawing the aforesaid
\ncontroversy, would be the advertisement which was
\nissued for recruitment to the post of Soldier Clerk.
\nThe English translation of this advertisement
\nprescribes for educational qualifications as matric
\npass with English and Math subjects. There is no
\ndispute about the fact that the petitioner possesses
\nthe matriculation certificate and he had studied at
\nmatriculation level, both English and March subjects.
\nNormally, when a person has successfully passed his
\nmatriculation whether he passed with grace marks or
\nnot, may not be a relevant factor. Grant of grace
\nmarks by a particular Board from where a student passes
\nthe said examination would be governed as per the rules
\nof the said Board and if rules\/regulations permit so,
\ngrace marks would be given and ultimately the student
\nwould be treated as having passed the matriculation
\nexamination.\n<\/p>\n
12. Still this aspect was specifically adverted to
\nby the respondents authorities and a clarification was
\nissued way back in the year 1996. By circular letter
\ndated 19th January, 1996 issued on behalf of Adjutant
\nGeneral, it was stated as under:\n<\/p>\n
“The issue of accepting candidates who
\npossess minimum laid down educational
\nstandards but failed in the special
\nsubjects has been re-examined and decided
\nthat with immediate effect it would be
\nmandatory for a candidate seeking
\nenrolment in Army to have the requisite
\nlaid down educational standards along
\nwith also having passed in the special
\nsubjects laid down for specific
\ntrade\/cat\/ Any candidate although has
\npassed the laid down educational
\nstandards but failed in the special
\nsubject will not be considered eligible
\nfor enrolment in that category\/trade in
\nArmy.”\n<\/p>\n
13. Thus, in the aforesaid letter, what was stated
\nthat it was incumbent upon the candidate to have passed
\nthe special subjects as well as which included
\nMathematics. Whether it was necessary to pass this
\nsubject with grace marks was the subject matter of
\ncontroversy thereafter on which the recruiting office
\nof the Army sought further clarifications. This aspect
\nwas clarified by the same branch vide letter dated 13th
\nJune, 1996 clarifying that candidates who had passed
\ntheir matriculation examination with grace marks were
\neligible for enrolment provided that they had requisite
\nsubjects in their matriculation as laid down in SAO
\n4\/S\/71. These subjects, as noted above, are English
\nand Mathematics.\n<\/p>\n
14. When the petitioner applied for the aforesaid
\npost in response to the advertisement in question and
\nproduced the certificates regarding his educational
\nqualifications etc. as well, the respondents, prima
\nfacie, felt satisfied with the educational
\nqualifications of the petitioner and he was allowed to
\nundergo the selection process. He passed the physical
\ntest, medical examination, written examination and
\nagain physical test, in that order and was successful.
\nThe respondent No. 3 at that relevant time was in
\npossession of aforesaid clarification dated 13th June,
\n1996 as per which passing a particular subject even
\nwit grace marks would make a candidate eligible for
\nenrolment. The petitioner had passed the Mathematics
\nafter getting 3 grace marks. The respondents, in these
\ncircumstances, could act on the aforesaid clarification
\ndated 13th June, 1996 and send the petitioner for
\ntraining. However, inspite of a clear mandate given in
\nletters dated 19th January and 13th June, 1996 the
\nAdjutant General’s branch was asked to give the
\nfollowing clarification:\n<\/p>\n
“A candidate for enrolment into Sol Clk
\nCat is required to have passed Matric
\nwith English and Maths. Vide your letter
\nNo. A\/62531\/Rtg 5(OR(A) dt. 19 Jan 96 the
\ncandidate should have passed in both
\nthese subjects i.e. English and Maths to
\nbe eligible for enrolment. However, a
\ndoubt has arisen as to whether a
\ncandidate who has passed since these
\nsubjects with grace marks are eligible
\nfor such enrolment in terms of your
\nletter No. 62531\/Rtg 5 (OR(A) dt 13 Jan 96
\nphotocopies of above letters are enclosed
\nfor ready ref.\n<\/p>\n
An early clarification is requested.”\n<\/p>\n
15. Vide reply dated 26th May, 2000 the respondent
\nNo. 3 was informed that the clarification dated 13th
\nJune, 1996 still holds good. Para 2 of this letter
\nstates:\n<\/p>\n
“It is intimated that this HQ letter
\nNo. 62531\/Rtg 5 (OR(A) dated 13 Jun 96
\nstill holds good. As such a candidate
\nwho has passed matric with mandatory
\nsubjects specified for the category
\neither with grace marks or otherwise, is
\neligible for enrolment.”\n<\/p>\n
16. This should have satisfied the respondent
\nNo. 3. Still, for the reasons best known to him, the
\nrespondent No. 3 continued to correspond with Adjutant
\nGeneral’s branch and further exchange of letters
\nfollowed. In one of its letters dated 6th February,
\n2001 specific query in the following manner was raised
\nand an answer was elicited from the Adjutant General’s
\nbranch:\n<\/p>\n
“A case has now come up for enrolment
\ninto Clk Cat, wherein a candidate has
\nproduced a matric pass certificate with
\nthe subjects English, Maths, Science etc.
\nas specified for the Clk category.\n<\/p>\n
However, on scrutiny of his mark sheet it
\nis observed that the indl had obtained 30
\nmarks in Maths (pass marks being 33) and
\ndeclared pass with grace marks (photocopy
\nencl.). It does not mention that
\nindividual has failed in the Math
\nsubject.\n<\/p>\n
In view of the above please clarify
\nwhether he said candidate is eligible
\nfor enrolment or not to avoid any legal
\ncomplication at a later stage.”\n<\/p>\n
17. This time, curiously, the Adjutant General’s
\nbranch took a turn around and stated that the
\npetitioner was eligible only for the post of Soldier
\nGD\/Soldier Tradesmen. Vide his reply dated 6th
\nFebruary, 2001 it appears that this matter was
\nthereafter taken up at Headquarter level and ultimately
\nthe Adjutant General’s branch on the basis of
\nclarification given by the Headquarter, issued circular
\ndated 8th June, 2001 stating that earlier dated 13th
\nJune, 1996 should be treated as cancelled. This two
\nline letter reads as under:\n<\/p>\n
“Ref this HQ letter of even number dated
\n09 Aug 2000.\n<\/p>\n
Considering the clarification given vide
\nthis HQ letter quoted above, this HQ
\nletter No. 62531\/Rtg 5 (OR)(A) dt 13 Jun
\n96 may please be treated as cancelled.”\n<\/p>\n
18. the admitted position which emerges, form the
\naforementioned sequence of events, can be summarised in the
\nfollowing manner:\n<\/p>\n
The initial stand of the respondents as per
\nletter dated 19th January, 1996 was that a candidate
\nhaving passed the matriculation examination should pass
\nin the special subjects. In this letter, it was
\nnowhere stated as to whether that these special
\nsubjects must be cleared without the aid of grace
\nmarks. Thereafter, vide letter dated 13th June, 1996
\nit was amply clarified that a candidate who passed the
\nrequisite subject even with grace marks would be
\neligible for enrolment. In view thereof, there was no
\nneed to ask for any clarification when the candidature
\nof the petitioner was considered for the post of
\nSoldier Clerk. In fact initially no such clarification
\nwas even sought and the petitioner went through the
\nentire selection process and was declared successful.
\nOnly when the time for the petitioner to send him for
\nthe training came, that the respondent No. 3 started
\nseeking clarification. Even initial clarification was
\nthat the petitioner is eligible. Thereafter, for the
\nreasons best known to the respondents, came out with
\nthe plea that the petitioner would not be eligible.
\nInterestingly, this change of mind was not the
\n“clarification” of the position contained in letters
\ndated 19th January and 13th June, 1996. In fact the
\nrespondents knew too well the implication of letter
\ndated 13th June, 1996. It is for this reason that vide
\nletter dated 8th June, 2001 the Headquarter has
\nwithdrawn its earlier letter dated 13th June, 1996.
\nThus, the decision is taken now to the effect that the
\nessential that the essential subjects should be passed
\nwithout the grace marks. However, when the petitioner
\napplied and was selected for the post of Soldier clerk,
\nthe decision of the respondents which held the field
\nwas contained in its circular letter dated 13th June,
\n1996 as per which a candidate having passed the
\nmatriculation examination with grace marks also was
\neligible for enrolment. If this decision is now
\nwithdrawn on 8th June, 2001 and the effect of that is
\nthat the respondents would treat only those candidates
\nwho passed the requisite subjects without grace marks,
\nsuch a decision cannot be applied retrospectively in
\nthe case of the petitioner who would be governed by the
\nearlier decision dated 13th June, 1996. The
\npetitioner, therefore, could not be denied appointment
\nto the post of the Soldier Clerk.\n<\/p>\n
19. The law on this subject is well settled and
\nthe issue is no more res integra. It is tritle law that
\neven a statute or statutory rule is prospective unless
\nit is expressly or by necessary implication given the
\nretrospective effect. In so far administrative
\ndecision is concerned, which is the case here, it
\ncannot be retrospective, more so, when it acts to the
\nprejudice of a person in whose favor a right has
\nalready accrued. This principle stands settled in
\ncatena of decisions rendered by the Supreme Court.
\nWithout referring to all these decisions, purpose would
\nbe served by mentioning the judgment of the Supreme
\nCourt in the case of  P. Mahendran v. State of
\nKarnataka<\/a> reported in JT 1989 (4) SC 459 wherein it was
\nobserved:\n<\/p>\n
“It is well-settled rule of construction
\nthat every statute or statutory rule is
\nprospective unless it is expressly or by
\nnecessary implication made to have
\nretrospective effect.\n<\/p>\n
The court observed that:\n<\/p>\n
“Since the amending Rules were not
\nretrospective, it could not adversely
\naffect the right of those candidates who
\nwere qualified for selection and
\nappointment on the date they applied for
\nthe post, moreover as the process of
\nselection had already commenced when the
\namending Rules came into force, the
\namended Rules could not affect the
\nexisting rights of those candidates who
\nwere being considered for selection as
\nthey possessed the requisite
\nqualifications prescribed by the Rules
\nbefore its amendment.”\n<\/p>\n
20. The aforesaid judgment has also been followed
\nby the Supreme Court in the case of  Gopal Krushna Rath
\nv. MA.A.A. Baig<\/a> (dead) Lrs. and Ors. reported in
\n1998 (7) SLR 515.\n<\/p>\n
21. The facts of this case are more or less
\nsimilar to the instant case which would be clear from
\nthe following observations made in this case:\n<\/p>\n
“5. It is an accepted position that on
\nthe date of advertisement and on the last
\ndate prescribed for the receipt of
\napplications, the qualification
\nprescribed by the University Grants
\nCommission was 10 years’ experience of
\nteaching and\/or research. Therefore, the
\nadvertisement also prescribed the same
\nqualification. The appellant possessed
\nthat qualification. Even on the date
\nwhen the Syndicate prepared an assessment
\nchart, the position was the same. It was
\nonly thereafter, on 19.9.1991, that the
\nnew qualification regarding 10 years’
\nteaching experience at the postgraduate
\nlevel came into effect.\n<\/p>\n
6. When the selection process has
\nactually commenced and the last date for
\ninviting applications is over, any
\nsubsequent change in the requirements
\nregarding qualifications by the
\nUniversity Grants Commission will not
\naffect the process of selection which has
\nalready commenced…”\n<\/p>\n
22. This writ petition, therefore, succeeds. The
\nimpugned decision of the respondents treating the
\npetitioner as ineligible by its decision contained in
\nletter dated 23rd March, 2001 is hereby quashed. Rule
\nis made absolute. Direction is issued to the
\nrespondents to treat the petitioner as duly selected
\nfor the post of Soldier Clerk and send him forthwith
\nfor training for incorporating him in the permanent
\ncadre corps strength of Indian Army. Although the
\npetitioner shall not be entitled to any salary and
\nallowances etc. for the intervening period, his
\nseniority should be fixed taking into consideration his
\nposition in the merit list in the batch in which he was
\nselected by properly placing him in the aforesaid batch
\nand treating him as appointed with effect from the date
\nother candidates who were successful in the aforesaid
\nselection, in which the petitioner participated, were
\nappointed. The said period shall be counted for
\nseniority, notional fixation of pay and all other
\npurposes except that the petitioner shall not be
\nentitled to actual arrears of any for this period.\n<\/p>\n
23. The petitioner shall also be entitled to cost
\nquantified at Rs. 5,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Sh. Omveer Singh Panwar vs Union Of India (Uoi) And Ors. on 25 July, 2002 Author: A Sikri Bench: S Sinha, A Sikri 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-178973","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSh. 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