Om Prakash Rai & Ors vs Union Of India And Ors.
2010 Latest Caselaw 4761 Del

6
*IN THE HIGH COURT OF DELHI AT NEW DELHI

      +      W.P.(C)No.6071/2010 & CM No.11969/2010


                               Date of Decision : 8th October, 2010
%


      OM PRAKASH RAI & ORS                  ..... Petitioner
                   Through : Col. S.R. Kalkal, Adv.

                      versus

      UNION OF INDIA AND ORS.          ..... Respondents
                     Through : Ms. Barkha Babbar, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                NO

3.      Whether the judgment should be                        NO
        reported in the Digest?

GITA MITTAL, J. (Oral)

W.P.(C)No.6071/2010 & CM No.11969/2010

1. By way of this writ petition, the petitioner has assailed the

order dated 12th August, 2010 passed by the respondents

withdrawing the petitioners from the Orientation Course

conducted at College of Military Engineering, Pune on the

ground that they were found using unfair means in the

examination.

2. The facts giving rise to the instant petition are within a

narrow and undisputed compass.

3. A diploma course in Civil Engineering of two years is

conducted by College of Military Engineering, Kirkee, Pune

which is affiliated to the Indira Gandhi National Open University

(„IGNOU‟ hereafter) at Delhi. This diploma course is confined to

personnel of the engineering regiment.

4. On the 7th of March, 2008, a Board of Officers has

scrutinized applications for detailment of candidates for

conducting a pre-diploma course of April, 2008 which was to be

conducted at the Headquarters of the Bombay Engineering

Group and Centre, Kirkee, Pune. The petitioners were selected

for pursing the pre-diploma course which was to commence

with effect from 9th April, 2008. An entrance examination was

also conducted by IGNOU and between 5th and 6th June, 2008.

Screening Board for final selection of the candidates for this

course was conducted which submitted its report on the 12th of

June, 2008 to the Engineer-in Fhief branch. The selected list of

candidates was released on 18th June, 2008 and the course

commenced with effect from July, 2008 at the training centre.

The respondents have pointed out that the petitioners were

selected for Diploma in Civil Engineering on self-finance basis.

5. It has been pointed out that the examination for the first

semester of the Diploma in Civil Engineering was conducted

from 1st to 31st December, 2008. The petitioner‟s were found

using unfair means in the examination on 11th December,

2008, by the Presiding Officer who reported the matter to the

Superintendent of Training at the Headquarters of the Bombay

Engineering Group and Centre, Kirkee, Pune.

6. In this background, disciplinary action in terms of the

Special Army Order 8/S/77 was commenced against the

petitioners. The summary trial proceedings have been placed

on record before us.

7. Our attention has been drawn to the applicable

instructions so far as candidates who are found using unfair

means are concerned. The respondents have placed relevant

extract of the Standing Special Army Order 8/S/77 which

admittedly binds the consideration. Para 16 of these

instructions is relevant which provides that a student found

using unfair means in the examination held by the training

establishment would be withdrawn from the course and

disciplinary proceedings will be instituted against him by the

training establishment.

8. The respondents have pointed out that a lenient view was

taken so far as the petitioners were concerned so far as their

service report was concerned. Pursuant to summary trials

conducted against the petitioners on the 30th of January, 2009,

the Commanding Officer of the Training Battalion awarded only

the punishment of Severe Reprimand i.e. a red ink entry in the

service book of the petitioners for the offence committed by

them under Section 63 of the Army Act, 1950.

9. The respondents have also drawn our attention to further

instructions issued by the Army Headquarters bearing

No.28409/Dip Course/E(Trg) dated 22nd June, 2005 which

provides as follows:-

"2. The matter of disciplinary action to be taken against Diploma Course candidates who are caught using unfair means during Diploma course exams etc. has been under consideration at this HQ. After examining the issue, it has been decided that:-

(a) Disciplinary action against candidates caught using unfair means during Diploma Course exams such as cheating, copying etc. shall be taken by the Trg Center in terms of Para 16 of SAO 8/S/77.

(b) Prior approval of this HQ be taken before withdrawing a candidate from Dip Course as per para 18 of SAO 8/S/77.

(c) An undertaking be taken from all candidates as per specimen attached, that in case a candidate is found using unfair means during Dip Course, he is liable to be withdrawn from Diploma Course. In the event of withdrawal of a candidate from Dip Course on account of using unfair means in exams/or on medical grounds/or any other disciplinary grounds, he shall not be entitled for refund of Dip Course fee already paid by him. The aforesaid undertaking will given by all existing and future Dip Course candidates."

10. It has been pointed out that the information with regard

to the award of punishment to the petitioners was forwarded to

the Army Headquarters by a communication dated 10th

February, 2009 and prior approval for withdrawal of the

petitioners from the course in accordance with para 2 (b) of the

letter dated 22nd June, 2005 was sought.

11. Vide letter dated 4th March, 2009, approval for withdrawal

of the candidates from the diploma course was also granted by

the Army Headquarters.

12. It appears that the petitioners thereafter submitted

representations in respect of their withdrawal from the course

to the various authorities including Army Wives Welfare

Association and the Defence Ministry. These communications

were forwarded to the concerned authorities. On a re-

consideration of the matter and having regard to the fact that

the petitioner were attending a self-finance course wherein

they had incurred expenses, the respondents took a

benevolent view and reviewed the decision so far as the

withdrawal of the petitioners from the course was concerned.

The wives of the petitioners were informed by letters dated

22nd June, 2009 of the review of the decision to this extent.

13. We find that Section 63 of the Army Act, 1950 under

which the petitioners were charged and convicted deals with

offence of violation of good order and discipline. There is no

challenge to the conviction order/punishment which was

awarded to the petitioners in the summary trial. Despite their

having been found using unfair means the petitioners were

permitted to continue with the diploma course. The

respondents would be awarded appropriate certification by a

university concerned on completion of the diploma course.

14. The respondents have pointed out before us that the

orientation course from which the petitioners have been

withdrawn is intended solely for such candidates who are

detailed to be absorbed in the Military Engineering Services as

Junior Engineers. Ms. Barkha Babbar, learned counsel

appearing for the respondents, has pointed out that the

petitioners stood punished for using unfair means. The duties

which a person serving with the Military Engineering Services

has to perform, entails considerable financial transactions.

In this background, the respondents have taken a

considered view not to depute the petitioners in view of their

conduct for which they stand punished.

15. It is submitted by Col. S.R. Kalkal, learned counsel for the

petitioners, that the petitioners deserve to be permitted to

complete the orientation course for the reason that the same

would enable them to get registered with civil authorities after

their retirement.

16. The respondents have taken a considered view based on

discretion conferred upon them. It is not the petitioner‟s case

that they have any legal right to pursue the orientation course

for which serving military personnel are detailed having regard

to various essential qualities.

17. The prayer for completion of the orientation course is

pressed on a punishment which was awarded to another

person who was found using unfair means in the examination

for the diploma course. It needs no elaboration that a plea of

discrimination can be premised only on a legal right and

entitlement to the claim. The respondents have taken into

consideration the conduct of these persons and awarded

disciplinary punishments based on the nature of their

culpability.

18. So far as the contention that other candidates found

using unfair means in the year 2005 being differentially treated

is also of no assistance to these petitioners. The respondents

have pointed out that a considered view was taken by the

respondents as per the extant policy. On re-consideration of

the matter, the respondents have already exercised discretion

in favour of the petitioners and taken a lenient view in

permitting them to complete the diploma course. The

respondents could have very well stood by their decision for

not permitting the petitioners to complete the course. Even

otherwise the respondents are empowered and justified in

taking a different view in respect of the conduct of persons

found using unfair means.

19. No illegality or procedural infirmity in the order which has

been passed has been urged or pointed out.

20. In view of the above discussion, we find substance in the

explanation given by the respondents in passing the impugned

order and find no merit in the prayer made by the writ

petitioners.

This writ petition and application are accordingly

dismissed.

GITA MITTAL, J

J.R. MIDHA, J OCTOBER 8, 2010 aj