Gunjan & Others vs Union Of India & Others
2000 Latest Caselaw 142 Del

ORDER

A.K. Sikri, J.

1. By this judgment I propose to dispose of five writ petitions which were heard together as they involved same question of law to be decided on substantially the same set of facts. All the petitioners in these writ petitions are aspirants for selection to Batch No. 102 of National defense Academy (N.D.A).

2. The respondents UPSC issued advertisement inviting applications for entry into course No. 102 of National defense Examination. For this purpose, all these petitioners appeared in the examination and were successful. Thereafter call letters were sent to them for appearing in the intelligence test, SSB test and medical fitness test for final selection to the aforementioned course. In the Employment News of dated 3-9 July, 1999, results of the entrance examination were published. Declaring these results, number of vacancies as intimated by the Government was 337(214) of the Army, 30 in the Navy, 73 in the Air Force and 20 in the Executive Branch of Naval Academy. The names of the petitioners in the said list appeared in the following manner :-

1. Shri Gunjan

2. Shri Anand Kumar

3. Shri Kaustubh Tyagi

4. Shri Abhinav Sharma

5. Shri Abhishekh Rai

6. Shri K. Sobins

7. Shri Tarun Kumar Agarwal

3. This list contained the names of 462 candidates and accordingly the names of all the petitioners were found in the said list. However, ultimately the petitioners were not given admission to the aforesaid course. This prompted the petitioner to file these writ petitions.

4. Before discussing the controversy involved in these writ petitions it would be appropriate to notice some of the paras of the advertisement issued for holding the examination as well as those which appeared while declaring the results as these would have bearing on the ultimate out come of these writ petitions.

5. The advertisement was issued for admission to 102nd course to the Army, Navy and Air Force Wings of NDA. Candidates were required to specify in the application form, the services for which they wished to be considered in the order of their preference. A candidates could indicate as many preferences as he wished to opt so that having regard to his rank in the order of merit due consideration could be given to his preferences when making appointments.

6. As per para 8 of this advertisement, the selection of candidates for service other than their first choice was to be made provided vacancy still existing after filling those vacancies from other candidates who had opted with particular service as their first choice. The effect of this was that in case a candidate is not able to get admission as per his choice, he was to be accommodated as per his next choice only after the candidates who had opted for that next choice as their first choice are admitted to the course and vacancies still exist. However, a corrigendum dated 2nd January, 1999 was issued revising the aforesaid provision the existing as well as revise provision was stated in the said corrigendum notice dated 2nd January, 1999 and the same reads as under :-

Existing provision

"......... The final selection for admission to the Army, Navy, Air Force and Naval Academy will be made in order of merit for the concerned Service upto the number of vacancies available subject to medical fitness and suitability in all other respects. The selection or candidates, for the service other than their first choice, will be made provided the vacancies still exist after filling these vacancies from the candidates who have opted that particular service as their first choice."

Revised provision

"....... The final selection for admission to the Army and Naval Wings of the National defense Academy will be made in order of merit upto the number of vacancies available from the order of merit list for the Army and Naval Wings and for the Air Force Wing from the order of merit list for the Air Force and the Executive Branch of Naval Academy up to the number of vacancies available from the order of merit list for the Naval Academy subject to medical fitness and suitability in all other respects. The candidates who are common to all the three merit lists will be considered for selection from all the three lists with reference to their order of preferences and in the event of their final selection from one list names will be cancelled from the other lists."

7. As per the revised provision the candidates who are common to all three merit lists were to be considered for selection from all the three lists. Thus, a candidate who was not able to get admission to the course of his first choice, could get admission in the course of his second choice while maintaining his position in the merit list which were common to all three merit lists.

8. As pointed by me above, none of the petitioner has been able to get admission into the aforesaid course although their names were mentioned in the list of successful candidates. In the counter affidavit filed by the respondents it is mentioned that the total number of vacancies which were ultimately filled were 245. This was done as per directions of DGMT who had stated that the intake of 102nd NDA course should be restricted to this number. It is further stated that the successful candidates, in the order of their merits, were called for admission to the aforesaid course and since 59 candidates could not qualify the medical standards, the merit list could go only upto 304 (245+59) and once 245 students were admitted, the admission was stopped. It is further stated that all the petitioners were lower in the merit list i.e. their ranks were lower than 304 and, therefore, they could not get admission to the course.

9. I have heard the arguments which were advanced by Mr. D.K. Rustagi, Mr. K.K. Rai, Mr. Shakti Chand Sharma and Mr. Anurag Kumar Aggarwal on behalf of the petitioners and Ms. Rekha Palli, Ms. Jyoti Singh and Mr. Sachin Datta on behalf of the respondents.

10. Mr. D.K. Rustagi learned counsel for petitioners who appeared in CW No. 5213/99 and 6793/99 mainly argued that once a candidate appeared in the examination and was declared successful after written examination and intelligence test, SSB test and medical fitness test etc. and his name appeared in the list of successful candidates, he could not be denied admission. He submitted that right of such successful candidate to get admission into the course accrued on the basis of promise held by the respondents themselves. He relied upon the following lines occurring in the brochure issued by the respondents.

"Every year, thousands of youngsters apply for NDA. Only a handful get through.

You can take the NDA entrance exam right after class XI. Clear the written exam Sail through a 4-day SSB interview. Take your medical. And you are in NDA. Three years in NDA and you will be a different person altogether."

11. It was his submission that there was a clear promise held out to the candidates that they would be admitted to the course the moment they pass the examination. According to him respondents were bound by their promise and respondent could not back out on such a promise. The only exception was if the promise was against statute. Precise number of seats were not declared in the advertisement at all and respondents were restricting the admission to particular number of candidates. According to him once number of seats were declared in the merit list, the respondent could not reduce these seats and as per their promise they were bound to give admission to the students equivalent to the aforesaid number of seats. It was further submitted that respondents had not given any justification for reduction of these seats.

12. Mr. K.K. Rai learned counsel appearing in CW No. 6350/99 submitted that as far as petitioner in this writ petition is concerned, he could not be ignored for admission and was entitled for admission on the basis on his rank itself even if the number of seats are reduced. The rank of his petitioner namely Shri Abhishek Rai was 348. He submitted that his first choice was Army. When the list of candidates who were to be given admission in Army was published first, following three names were not there in the list.

Roll No. Name Position in merit order

1. 65389 Abhinav Upadhyay 43

2. 30234 Abhishek Kumar 93

3. 57704 Saransh Nigam 290

It was, according to him, for the reason that the first choice of these three candidates was Air Force. When these candidates did not get admission to Air Force, their names were included for admission to Army course which according to him was not permissible in view of Para 8 of the advertisement which has already been reproduced above. He submitted that the corrigendum issued subsequently modifying this para and changing criteria was not legally valid and, therefore, admission could have been given only on the basis of unamended provision as per which it was incumbent upon the respondents to accommodate the petitioner first and only if the seats were still left out that the aforesaid three persons could be accommodated. His submission was that after the selection process was set into the motion by issuing advertisement in March, 1998 and even when the test was held in September, 1998, criteria for admission to this course could not be changed thereafter by issuing corrigendum in January, 1999. In support of his submission he relied upon the judgments of Supreme Court in the case of P. Mahendran and others Vs. State of Karnataka and others and District Collector & Chairman, Vizianagaram Social Welfare Residential School Society. Vizianagaram and Another Vs. M. Tripura Sundari Devi .

13. Mr. Shakti Chand Sharma counsel for the petitioner in CW No. 4305/99 mainly adopted arguments as advanced by Mr. D.K. Rustagi and submitted that since there were 337 vacancies notified as notify while declaring the results and the name of this petitioner appeared at Sl. No. 312, his client was entitled to get admission. It was submitted that after the publication of this merit list vacancies could not be reduced. It was further submitted that the explanation given by the respondents for reducing the vacancies was totally untenable inasmuch as the respondents knew fully well the position of vacancies at the time of declaration of the results. Even if at the time when the advertisement was issued or the process for selection started, definite vacancies were not known and was stated by way of approximation. According to him there could not have been any excuse in not knowing the definite position as on the date of declaration of the results. Therefore, if the vacancies as intimated by the Government was 337 even as on that date i.e in July, 1999, while declaring the results, the respondents were bound to give admission to 337 students.

14. Mr. Anurag Kumar Aggarwal learned counsel who appeared for the petitioner in CW No. 6411/99 submitted that the list published by the respondents, successful candidates in the Employment News 3-9 July, 1999 was not in accordance with the procedure which was prescribed in the advertisement. It was submitted that as per the advertisement five lists were to be prepared namely that of Army, Navy, Air Force, Naval Academy and one by the list for Army and Navel. However ultimately only three lists were published namely that of Army, Navy and Air Force. It was further submitted that the list should have been final, in the order of priority and publication of the impugned list of successful candidate was in fact was not a final list and, therefore, no list in the eyes of law. Apart from this argument, other arguments advanced by him were the same as advanced by other counsel and already noted above.

15. Aforesaid arguments of the counsel for the petitioners would reveal the following questions arise for consideration :-

1. Whether there is any promise held out to the candidates, by the respondents, that once the candidate is successful in the examination and his name appears in the merit list, he is to be admitted to NDA course?

2. Whether it was permissible for respondents to reduce the seats from 337 to 245 for admission to 102nd Batch of NDA?

3. Whether the respondents could issue the corrigendum dated 2nd January, 1999 thereby changing the provision contained in Clause 8 of the advertisement?

4. Whether publication of three lists in the manner done in the Employment News 3-9 July, 1999 is in order or contrary to the advertisement dated March, 1998 and consequently invalid?

16. Before proceeding to deal with the aforesaid questions I may mention here that the issue relating to admission to 101st NDA course was also subject matter of litigation and number of writ petitions were filed. These writ petitions were disposed of by learned Single Judge vide his judgment and order dated 26th May, 1999 holding that reduction in the number of vacancies for 101st course was not proper and he had given direction that such of the candidates of the 101st course who had been denied admission because of induction of 141 candidates be granted admission and adjusted in the 102nd course, since 101 course had already commenced from January, 1999 and 102nd course was to commence only in June, 1999. Union of India had preferred letters Patent Appeals against the aforesaid judgment and these appeals were decided by the Division Bench by judgment dated 25th August, 1999. Some of the controversy which are raised in these petitions were the subject matter of the aforesaid petition also and stand decided by the Division Bench in the aforesaid judgment. Therefore, it would be useful to refer to the decision which was given by the Division Bench, as the said judgment which binds me conclusively covers some of the aspects relieving me of the task to decide those issues again. Let me first reproduce some of the portions of the aforesaid judgement :-

XXX. The petitioners are young men who had hoped to get inducted to the 101st Course of the National defense Academy at Khadakwasla (hereinafter referred to as the NDA). They were denied admission even though they had qualified. On enquiries made by them, they were given to understand that the denial of admission was because a large number of candidates who had qualified for the 100th Course but could not get admission) were inducted to the 101st Course with the result that the number of vacancies avail-

able for the 101st Course got reduced, to the detriment of the petitioners.

XXX. Under the circumstances, the petitioners were expecting to receive their joining instructions but unfortunately they did not receive such instructions. According to them they made enquiries and were told that only 232 candidates were being inducted to the 101st Course of the NDA. They were also told that about 140 candidates from the 100th Course were being accommodated in the 101st Course and that is why there were not enough vacancies to accommodate the petitioners.

XXX. Believing these representations to be correct, the petitioners filed writ petitions which were heard by a learned Single Judge of this court. In the writ petitions, it was prayed, inter alia, that the induction of 140 candidates of the 100th course against the vacancies existing in the 101st course be made strictly in accordance with merit as indicated in the advertisement published by the UPSC, thereby enabling the petitioners to obtain admission.

XXX. The learned Single Judge decided the writ petitions and in his judgment and order dated 26th May, 1999 held that the reduction in the number of vacancies for the 101st Course to only 232 was occasioned by the absorption of 141 candidates from the 100th Course. The learned Single Judge directed that such of the candidates of the 101st Course, who had been denied admission because of the induction of 141 candidates, be granted admission and adjusted in the 102nd Course since the 101st Course had already commenced from January, 1999 and the 102nd Course was to commence only in June, 1999.

XXX. With regard to the wide variation between the advertised number of 365 vacancies and the final figure of 232 available vacancies, learned counsel for the appellants submitted that the advertisement only gave an approximate number of vacancies and the same could be reduced. She submitted that even though the gap was large, there were no mala fides on the part of the appellants. According to her, the number of cadets passing out in December, 1998 (from the 95th Course) was 232 and, therefore, only 232 candidates could be accommodated. No satisfactory explanation was forthcoming as to why 365 vacancies were advertised if a lesser number of cadets were expected to pass out. What was trotted out as an explanation was that since the selection process begins about 15-16 months in advance, it is not possible to make an accurate assessment of the number of vacancies.

XXX. Having heard learned counsel at length, we are of the view that the learned counsel for the appellants may be right in contending that because of a change of policy some injustice was caused to the 141 candidates left out of the 100th Course. However, we do not give any finding in this regard because none of these 141 candidates is a party to these proceedings. Moreover, learned counsel for the petitioner's graciously stated that they have nothing against these 141 candidates and it is not their desire to dislodge any of them.

XXX. In the weekly Employment News of 26th December, 1998, it was indicated by the UPSC that there were 337 vacancies in the 101st Course. This course was to start barely ten days later. If the number of vacancies was less than 232, the appellants would have ensured that such a misleading advertisement is not brought out in the Employment News. Moreover, since the course was to start quite soon, it is unthinkable that the appellants were unaware whether the actual number of vacancies was 232 or 337, or of the actual number of cadets of the 95th Course who had passed out in December, 1998.

XXX. In this context, it may be noted that the appellant have stated in paragraph 2(g) of the counter affidavit filed in Civil Writ Petition No. 271 of 1999, that the 141 candidates were adjusted against the vacancies of the 101st Course. If the affidavit is true, then it is quite clear that the 141 candidates were inducted against the vacancies of the 101st Course to the detriment of the petitioners and others similarly placed. If that is not the position, then the affidavit is clearly false.

XXX. We are pained to observe that on the basis of the counter affidavit filed by the appellants and various letter available on the record, it is quite clear that the number of vacancies for the 101st Course was more than 232 and that possibly there were 337 vacancies as stated by the UPSC as late as on 26th December, 1998. It is a matter of deep regret that the appellants have tried to mislead not only the petitioners but also this court, and in the process affected the career prospects of at least some of the petitioners. We are also deeply anguished by the fact that despite our asking, the appellants have not produced the files which show that the induction of 141 candidates did not affect the overall induction of candidates to the 101st Course.

XXX. We reject the submission made by learned counsel for the petitioners that 232 cadets were passing out only from the Army stream of the NDA, as is sought to be conveyed by the letter dated 9th February, 1999 sent on behalf of the Adjutant General. The statement made in this letter appears to be (not surprisingly) incorrect inasmuch as at no point of time have the appellants conceded that more than 214 vacancies exist for the Army stream in the NDA. Even in the Employment News of 26th December, 1998, the number of vacancies for the Army is given as 214 and not 232. The contents of the letter dated 9th February, 1999 are clearly erroneous.

XXX. A contention was raised by the petitioners that they had a legitimate expectation of being inducted into the NDA. The law on this subject is quite clear. The appellants can reduce the number of vacancies. (see for example UPSC Vs. Gaurav Dwivedi & Ors. ). Since that is permissible, a successful candidate cannot always claim to have a legitimate expectation that he will be given admission even though the number of vacancies have been reduced. Even otherwise, on the facts of these cases and for reasons given hereafter, the petitioners cannot assert an indefeasible right to induction in the 101st Course.

XXX. On the question of relief to be granted to the petitioners, we find that our hands are tied. While we have concluded that the induction of 141 candidates from the 100th Course has reduced the number of vacancies for the 101st Course, we are unable to pass any order directing the appellants to induct the petitioners and others similarly placed to the 101st Course or the 102nd Course. The reason for this is that first of all, there is no challenge to the induction of the 141 candidates; a such they cannot be adversely affected; and secondly, if the petitioners are inducted into the 102nd Course, as directed by the learned Single Judge, it will mean that some candidates of the 102nd Course will have to be left out. They will then have to be inducted in the 103rd Course. This will start some sort of a chain reaction where candidates of the 101st Course are adjusted in the 102nd Course and candidates of the 102nd Course are adjusted in the 103rd Course and so on. This will create complications in the matter of seniority and also logistical problems such as availability of living rooms for the cadets, instructional facilities and other infrastructural problems.

17. A perusal of the aforesaid judgment and particularly the parts quoted above would show that the reason for reducing number of vacancies for 101st Course from 337 to 232 was occasioned by the absorption of 141 candidates from the 100th Course. This was because of change in policy for granting admissions and the Division Bench has adversely commented upon the wisdom of the respondents in changing such a policy. There are also adverse comments against the respondents and the manner in which the case was dealt with and falsely projected before the court. Be as it may, legal propositions which are laid down by the Division Bench in the aforesaid judgment can be summarised :-

1. The respondents can reduce the number of vacancies and since that is permissible a successful candidate cannot always sement itself so that there is no necessity for issuing corrigendum after the examination take place, to avoid unnecessary litigation. Moreover, at the time when the final results are declared and the merit list is prepared respondents should undertake the exercise of ascertaining the actual number of seats which are to be filled for particular course so that this number is indicated in the list rather than reducing the number of seats later on, after reflecting the same in the merit list. Alternatively, it would be better to give the approximate number while declaring the results with stipulation that such a number can be changed. These are some of the points which come in my mind as a examination etc. No doubt, the lines appearing in brochure give some hopes to the aspirants that they would secure admission to NDA Course once they clear Entrance/Written Examination. However, the same would always be subject to the number of seats available with the respondents. This fact is clarified in the advertisement itself stating that success in the examination confers no right of admission to the Academy. Relevant position reads as under :-

"Success in the examination confers no right of admission to the Academy. A candidate must satisfy the appointing authority that he is a suitable in all respects for admission to the Academy."

Accordingly this question is answered in the negative and against the petitioners.

2. This aspect is also covered by the judgment of Division Bench in the aforesaid LPA categorically holding that it is permissible for the respondents to reduce the number of vacancies. To the same effect is the judgment of Supreme Court in the case of Union Public Commission Vs. Gaurav Dwivedi and Others . It is further explained in the counter affidavit filed in CW No. 6350/99 that in take of candidates to 102nd NDA Course was limited to 245 as per DGMT/MT-6 direction. Letter dated 29th April, 1999 received in this connection is also enclosed with the counter affidavit. It is also explained that 245 candidates were taken for the Army, Navy and Air Force and 28 vacancies for Naval Academy. If the respondents decide to take 245 candidates in a particular Court keeping in view the resources available, then such a decision of the respondents, actuated by administrative exigencies, cannot be dubbed as arbitrary. It is a common case of the parties that NDA Course is one of the most prestigious course and high standards of imparting the course/training are to be maintained by the respondents. Candidates are inducting into this course at young age and aspirations from such recruits, after they complete their training, are very high. Those graduating from NDA Course are hoped to be the cream of the discipline to which they are inducted namely Air Force, Navy, Army, Naval Academy as the case may be. Therefore, if respondents authorities who have to impart the training to such recruits, decide in their wisdom, to restrict the admission to particular number, after taking into account the left over inductees of the past course and/or the resources available, this court cannot interfere with such wisdom of the respondents authorities and direct the respondents to admit more candidates then the number which according to respondents is proper and reasonable. This question is also, therefore, answered against the petitioners.

3. The respondents have, by issuing corrigendum dated 2nd January, 1999, changed the provision relating to the preparation of the list for admission of candidates to a particular course. It was argued by Mr. K.K. Rai that it cannot be done after the selection process had been initiated and relied upon the judgments of Supreme Court in the case of P. Mahendran and others Vs. State of Karnataka and others District Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vizianagaram and Another Vs. M. Tripura Sundari Devi . This was countered by Mr. Sachin Datta, learned counsel appearing for the respondents on the grounds that no vested right has accrued in favour of the petitioners and, therefore, it was permissible for the respondents to change the existing criteria by issuing corrigendum. In support of his submissions he referred to the following judgments :-

1. S. Prakash And Another Vs. K.M. Kurian And Others, .

2. Smt. Swaran Late Vs. Union of India and Others, .

3. The State of Haryana Vs. Subhash Chander Marwaha And Others, .

Judgments relied upon by the petitioner have no application. The cases cited by the petitioner related to promotion where the proposition of law laid down by the Apex Court is that after the promotion process sets into motion, the promotion process is to be carried out as per the rules existing at that time and subsequent amendment will not be applicable. These are the cases where, as per existing rules a person who is eligible, may become ineligible after the amendment of the rules and in this context Supreme Court held that vested right of consideration as per rules accrued to a person cannot be taken away by way of amendment. Such principle has no pplication in the instant case which are the cases of admission to NDA Course. The provision which has been changed by corrigendum only related to the manner in which the lists are to be prepared for admission to the different disciplines. By revised provision it is stipulated that candidates who are common to all the three merit lists will be considered for selection from all the three lists with reference to their order of preferences. Thus, by this method a person who is above in the merit list would get the admission in the second choice. If he is unable to get admission to a course of his first choice. It is clear from the position in the instant case itself where three persons who were given admission in Army rank much above the petitioner in CW No. 6350/99. Moreover, as on 2nd January, 1999 when the provision was changed by issuing corrigendum, no results had come and nobody knew the merit position. Therefore, it cannot be said that any vested right had recruit in favour of the petitioner which is sought to be taken away. Ultimately, the persons who have got admission, which is hallenged by the petitioner, are above in the merit order than the petitioner and, therefore, action of the respondents cannot be treated as unfair or arbitrary. This question is also, therefore, decided against the petitioner.

4. No doubt in the advertisement it was stated that five lists would be prepared namely that of Army, Navy, Air Force, Naval Academy and one list for Army and Navy. Ultimately the list circulated are three namely that of Army, Navy and Air Force. In fact, 28 candidates are given admission in the Naval Academy also. Therefore, if ultimately three lists are prepared, the action of the respondents cannot be treated as bad in law. No provision of law or principle of law was shown which could term such action to be illegal. It may only be remarked that the respondent authorities should be careful in drawing such lists and giving admission to the candidates in such a prestigious course. Much has been said about the procedure adopted by the respondents in LPA No 241/99 by the Division Bench in its judgment. By the time that judgment came the Examination for 102nd Course was also over and results were out. It is, therefore, expected that the respondents would learn from the experience in these two cases and put their house in order. The advertisement and brochures which the respondents would issue for entry to subsequent courses of NDA would be carefully worded so that there is no scope of any doubt and the candidates are not given the feeling of false hopes. The proper care should be taken formulating the procedure for admitting the candidates in NDA courses at the time of issue of advertisement itself so that there is no necessity for issuing corrigendum after the examination take place, to avoid unnecessary litigation. Moreover, at the time when the final results are declared and the merit list is prepared respondents should undertake the exercise of ascertaining the actual number of seats which are to be filled for particular course so that this number is indicated in the list rather than reducing the number of seats later on, after reflecting the same in the merit list. Alternatively, it would be better to give the approximate number while declaring the results with stipulation that such a number can be changed. These are some of the points which come in my mind as a result of these cases and, therefore, some suggestions are noted here. Otherwise, I leave it to the respondents to evolve proper procedure as they deem fit with this objective in mind that the litigation as a result of their examination process is avoided.

18. As far as petitioners in these writ petitions are concerned they cannot be given any relief more so when all the petitioners are lower in order of merit then those who are ultimately admitted by the respondents in 102 Batch of NDA. These writ petitions accordingly fail and are dismissed. There shall be no order in cost.

19. Before concluding, I must record my appreciation for the erudition and clarity with which both Mr. Sachin Datta and Ms. Jyoti Singh argued the matter on behalf of the respondents. Their sincere efforts in sailing the respondents through, employing remarkable dexterity and skill is commendable.

Rule stand discharged.

There shall be no order as to costs.