Major Alok Shukla vs Union Of India & Others
2010 Latest Caselaw 4209 Del

                       *IN THE HIGH COURT OF DELHI

          +       W.P.(C) No.274/2009 & CM No.533/2009

                                 Reserved on : 25th August, 2010

                        Date of decision : 13th September, 2010

          MAJOR ALOK SHUKLA                            ..... Petitioner
                           Through Mr. S.S. Pandey, Adv.


                            versus


        UNION OF INDIA & OTHERS                        ..... Respondent

Through Mr. Sanjeev Sachdeva, Adv.

CORAM:

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

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J

1. The petitioner's grievance in the present writ petition is that

despite possessing a valid university degree; clearing the

prescribed examination and fulfilling the eligibility conditions for the

inter arms/service transfer from the Corps of artillery to the Judge

Advocate General department with the Indian Army, his application

for the same has wrongly not been considered. In support of his

submissions, the petitioner places reliance on the judgment of this

court dated 16th August, 2007 in W.P.(C) No. 17025/2006 entitled

Lt. Col. Mukul Dev vs. UOI & Ors. also an ex officer of the Corps of

W.P.(C) No. 274/2009 page 1 of 33 artillery who is similarly placed and had taken the same exam for

inter arms/service transfer in 2005 as the petitioner.

2. The factual narration leading to the present case is not

disputed. The petitioner completed his undergraduate course in

1992 from the Kanpur university and then joined the three year

Bachelor of Laws (`LL.B.' hereafter) degree course with the DAV

college, Kanpur, which was affiliated to the Chhatraprati Shahu Ji

Maharaj University, Kanpur. The petitioner successfully completed

the LL.B. Part I course in 1998.

3. While pursuing the second year of the course, the petitioner

was selected and required to proceed in June, 1999 to the Officers

Training Institute, Chennai for basic military training. The petitioner

has contended that though he had undertaken the classes for the

second year course, he could not undertake the examination for the

reason that he was required to join his training with the Army at

Chennai.

4. On successful completion of the training on the 4th of March,

2000, the petitioner got his commission in the Indian Army in the

regiment of artillery, a fighting wing. The petitioner is stated to

have been graded A in his Young Officers Course in the School of

Artillery as well.

5. It is noteworthy, that in the second year, the petitioner had

sought migration of his candidature for the LL.B. course to the

Brahmanand College, Kanpur. This college was also affiliated to the

Chhatrapati Shahu Ji Maharaj University, Kanpur.

W.P.(C) No. 274/2009 page 2 of 33

6. In 2001, the petitioner successfully took the LL.B. second year

examination which he is stated to have passed in the first division

as per the mark sheet dated 26th June, 2001 placed before us.

7. It has been submitted before us, that on account of the

ongoing Operation Parakram in 2002, the petitioner was not

granted any leave for completing his LL.B. course. However, he

successfully took the LL.B. third year examination in the year 2003

and as per the mark sheet dated 17th June, 2003, passed the same

in the first division as well.

8. On a successful completion of the LLB course in first division,

the petitioner was awarded the degree of Bachelor of Laws by the

Chhatrapati Shahu Ji Maharaj University, Kanpur.

9. The petitioner applied for attachment with the Judge Advocate

General's department (referred to as the JAG Department hereafter)

as he had a verve to be concerned and involved with the

performance of judicial functions in the Indian Army. As he

possessed a LL.B. degree, on 19th July, 2004 he was formally

attached to the JAG's department in the Headquarters Western

Command.

10. The criteria for such transfer are laid down in the relevant

para 82 of the Defence Service Regulation (hereinafter referred to

as "Regulation" for brevity), which include a departmental exam.

With the above aspiration, on 3rd October, 2005, the petitioner

cleared the prescribed JAG's departmental examination for an inter

arms/service transfer to the JAG department. As the petitioner met

W.P.(C) No. 274/2009 page 3 of 33 all the criterion laid down in paras 82 of the Regulation, he made an

application dated 10th August, 2006 to the respondent seeking a

permanent transfer to the JAG department. This application was

followed by reminders, by way of demi-official letters addressed to

the authorities in the Army, in August, 2007; 27th January, 2008; 3rd

August, 2008, 23rd September, 2008 and as late as on 9th

December, 2008.

11. These communications did not result in any favourable

consideration.

12. The petitioner was advised, and is stated to have

consequently submitted a formal application on 23rd September,

2008 for the permanent transfer to the JAG's department.

13. This application was also not considered. Instead, the

respondents passed an order dated 20th of December, 2008

transferring the petitioner back to his artillery regiment, compelling

him to file the present writ petition seeking quashing of the order of

transfer dated 20th December, 2008 and a direction to the

respondents to permanently transfer the petitioner to the JAG

department, relying on para 82 of the Regulations for the Army and

the judgment dated 16th August, 2007 in W.P.(C) No. 17025/2006.

14. Pursuant to an order dated 5th February, 2010, this writ

petition was transferred to the Armed Forces Tribunal for

adjudication in view of the Armed Forces Tribunal Act, 2007.

However, for the reason that the matter related to postings and

transfer which was beyond the jurisdiction of the tribunal, the

W.P.(C) No. 274/2009 page 4 of 33 Tribunal passed an order on 15th April, 2010 that it had no

jurisdiction in the matter and the case was re-transferred for

adjudication before us.

Accordingly, parties have been heard.

15. The petitioner has also set up a plea of individous

discrimination, contending that out of the four officers (including

the petitioner) who qualified in the same JAG's Departmental

Examination for the Inter Arm/Service Transfer to the JAG

department, three officers namely Lt. Col. Mukul Dev, Major A.K.

Pawar, Major J.G. Manhas, have been granted permanent transfer to

the JAG department whereas this has been wrongly denied to him

even though these officers are similarly placed.

16. The petitioner has explained that Lt. Col. A.K. Pawar was

physically posted at Mathura from October, 2000 to March, 2003,

whereas he had obtained a law degree on 1 st April, 2004 requiring

66% attendance.

17. In the counter affidavit which has been filed, the respondents

have given the dates on which these officers obtained their LL.B.

degrees without dealing with the petitioner's contention premised

on their objection in respect of the petitioner pertaining to the

percentage of attendance in the law course leading to award of the

law degree.

18. The respondents have premised their opposition to the writ

petition on the sole ground that the petitioner failed to give a

W.P.(C) No. 274/2009 page 5 of 33 certificate certifying that he had regularly attended all classes of

the Bachelor of Laws Course prior to award of the degree and that

he had the minimum attendance as prescribed by the rules for the

LL.B. degree course and thereafter his application could not be

considered. It has been contended by Mr. Sanjeev Sachdeva,

learned counsel for the respondents, that unless and until the same

is established and ascertained, the application of the petitioner for

regular appointment with the JAG department is not permissible. In

this behalf, reference has been made in the counter affidavit to the

Bar Council of India Rules framed under the Advocates Act, 1961.

The further submission is that in terms of the provisions of para

82(f) of the Regulations for the Army, 1987, the service rendered in

the Judge Advocate General's department is deemed to be a judicial

service and shall reckon as such for all purposes. The respondents

contend that the petitioner does not meet the criteria laid down by

the Bar Council of India to be enrolled as an advocate and

consequently cannot be transferred to the JAG department, which

service is deemed to be a judicial service.

19. So far as the rule position is concerned, our attention is drawn

to the following criterion in the para 82 of the Defence Service

Regulations for the permanent transfer to the JAG department, laid

down by the respondents, which has been captioned as `Inter

Arms/Service Transfer' and reads as follows :-

"82. Transfer to the Judge Advocate General's Department.--(a) Eligibility.--Permanent commissioned officers of all Arms and Services of

W.P.(C) No. 274/2009 page 6 of 33 the rank of Major and below, who hold a Bachelor's degree in law from a recognised university are eligible for transfer to the Judge Advocate General's Department. Special List and Non-Technical Army Medical Corps commissioned officers whose employability is restricted are not eligible.

(b) Attachment and posting.--(i) Eligible officers may apply through proper channel to the Judge Advocate General, Army Headquarters, to be attached to the office of Deputy Judge Advocate General at Command Headquarters for a period not exceeding 6 months in the first instance. No such application will be withheld by any intermediate authority and volunteers found suitable for attachment in all respects shall be made available by the Directorates of Arms and Services concerned.

xxx xxx xxx

(c) Judge Advocate General's Departmental Examination.-- (i) Judge Advocate General's Departmental examination will be held twice a year provided adequate number of candidates apply to take the examination.

xxx xxx xxx

(d) Transfer to the Department.--(i) Candidates qualifying in the Departmental examination will be transferred to the Judge Advocate General's Department if recommended by the Judge Advocate General.

xxx xxx xxx

(f) General.- (i) Service rendered in the Judge Advocate General's Department shall be deemed to be judicial service and shall reckon as such for all purposes.

(ii) The age of retirement for officers of the Judge Advocate General's Department will be as laid down in Army Rule 16-A."

(Underlining by us)

20. Having given our considered thought to the submissions made

by both parties, before we deal with the objection of the

respondents premised on the attendance of the petitioner in the

W.P.(C) No. 274/2009 page 7 of 33 law course, we may notice a few more essential facts. We find that

it is admitted before us that the petitioner has satisfactorily

rendered service of more than four years and ten months from July,

2004 to February, 2009 with the JAG department without any kind

of objection. The petitioner's claim that he possessed requisite

qualifications in the nature of the LLB degree which resulted in the

acceptance of his request for attachment with the JAG department,

is also not denied in the counter affidavit which has been filed.

21. During this attachment with the Judge Advocate General's

department, the respondents also do not deny that the petitioner

was regularly giving legal advice on issues which were brought

before him. In addition, the petitioner has claimed that he was

assigned the role of Judge Advocate, in accordance with the Army

Act, 1950, in more than seven court martials, apart from duties

assigned to regular incumbents in the JAG department. The

petitioner has claimed that he was the Judge Advocate even in a

court martial of a full colonel, on grave charges of murder allegedly

committed by him under Section 302 of the Indian Penal Code.

These facts are also not disputed.

22. Our attention has also been drawn to several

recommendations on the petitioner's application for the Inter

Arm/Service Transfer from Artillery to the JAG department. In this

behalf, Brig. A.K. Srivastava, the concerned Deputy JAG, HQ

Western Command on 10th August, 2006 recommended the

petitioner's application for such transfer. This senior JAG officer

W.P.(C) No. 274/2009 page 8 of 33 additionally issued a recommendation certifying that the petitioner

was serving in the JAG department for the last two years and

performing all duties including court martial duties diligently and

efficiently.

The second application submitted by the petitioner on 23rd

September, 2008 was again recommended by the then officiating

Deputy JAG. This application bears a strong recommendation by

Major General R.K. Kalra, MG IC, Adam, HQ Western Command on

25th September, 2008 who wrote that the petitioner's case is

deserving for the Inter Arms Services Transfer to JAG department

and that he was "a hard working officer who is sharp, legally well

versed, forth right and balanced in his legal advice and produces

completed staff work". The Major General Kalra further stated that

the petitioner was "an asset to the organisation". Therefore, so far

as the specific performance of the petitioner in the JAG branch is

concerned, the respondents have not laid any objections. On the

contrary, the same has been appreciated and his permanent

transfer has been recommended at the highest level.

23. It is also important to note that in the several communications

noticed hereinabove, the petitioner has expressed his inability to

give a certificate about the attendance and contended that his case

was similar to that of Lt. Col.Mukul Dev meritting a similar

consideration. The respondents did not even acknowledge these

applications and communications from the petitioner, let alone deal

with the contentions mentioned therein. The same remain pending

W.P.(C) No. 274/2009 page 9 of 33 with the respondents.

24. Another factor pointed out by Sh. S.S. Pandey, learned counsel

for the petitioner deserves to be noted. It appears that during the

pendency of the petitioner's request for permanent absorption, by

an order passed on 28th August, 2007, he was again posted to his

artillery regiment. The petitioner's representation dated August,

2007 against the same was accepted by the respondents who

issued a signal dated 21st September, 2007 directing that the

petitioner's posting from the JAG department would be held in

abeyance till further orders. Learned counsel would suggest that

this action also underscores the valuable contribution being made

by the petitioner to this department and its working.

25. Coming now to the main ground for denial of the transfer to

the petitioner, perusal of the above para 82 of the Regulation would

show that three essential conditions have been laid down for an

inter arm/service transfer to JAG department of the Indian Army.

Firstly, the officer must be a permanently commissioned officer of

the army. Secondly, he must be of the rank of a major and below;

and thirdly, he must hold a bachelor's degree in law from a

recognised university. Nothing further is prescribed under these

regulations.

26. Yet another important aspect is the distinction in the eligibility

conditions prescribed by the respondents for direct recruitment for

grant of Short Service Commission for the JAG department and the

prescription contained in para 82 of the Defence Service

W.P.(C) No. 274/2009 page 10 of 33 Regulations dealing with the issue of Inter Arm/Service Transfer to

it. So far as the eligibility criterion for appointment on Short Service

Commission in the army for the JAG department are concerned, the

respondents have placed before us, a copy of an advertisement

issued in this behalf for "the Short Service Commission (NT) course

- October, 2006 For Law Graduates". The relevant portion thereof

reads as follows :-

"The Indian Army is looking for the best and the brightest LAW GRADUATES men amongst you.

Applications are invited from male Law Graduate candidates for grant of Short Service Commission in the Indian Army for Judge Advocate General Deptt.

1. Vacancies:

2. Conditions of Eligibility:-

(a) Nationality: must be an Indian.

(b) Age Limit: 21 to 27 years (Born not earlier than 02 Oct 79 and not later than 01 Oct 85)

(c) Educational Qualification: Minimum 55% aggregate marks in LLB Degree (three year professional after graduation or five years after 10+2 examination. The candidates should meet the eligibility criteria for enrolment as an advocate."

(Emphasis supplied)

27. The above advertisement shows that a law graduate seeking

commissioning into the JAG Department directly must meet the

eligibility criteria for enrollment as an advocate. On the other

hand, para 82 of the Regulation does not mandate that the

candidate is required to meet the eligibility criteria for enrollment

as an advocate, as in the case of a direct recruit seeking

W.P.(C) No. 274/2009 page 11 of 33 commission to the JAG Department. The respondents have

therefore, knowingly and carefully prescripted different eligibility

conditions for the two category appointments. This distinction

cannot be obliterated by the respondents by reading a stipulation

into the regulation which is not specifically provided.

28. Shri Pandey, learned counsel for the petitioner has pointed out

that this distinction assumes importance for the fact that officers

who are in the rank of major and below would have joined the army

at young ages as cadets after school or have directly joined the

short service commission at OTA, Chennai or directly joined the

Indian Military Academy after their graduation. It is not possible for

such candidates to have completed their LLB degrees before joining

the army. Learned counsel has contended that the respondents

normally permit study leave for a period of only two years. It is

evident, therefore, that in order to regularly attend classes for the

period of three years in order to obtain the LLB degree would be

next to impossible for an in-service candidate. The submission is

that for this reason, the respondents are satisfied if the candidate

has successfully cleared the examinations and is possessed of a

valid LL.B. degree from a recognized university in terms of the

aforesaid para 82 of the Regulations, in order to be eligible for an

Inter Arms/Service Transfer. Shri Pandey explains that on the other

hand, the respondents insist on the candidate meeting the

eligibility criteria for enrollment as an advocate and thus an

attendance criteria as per the applicable rules if a law graduate

W.P.(C) No. 274/2009 page 12 of 33 directly seeks short service commission (NT) into the Indian Army.

29. We may also notice from a reading of para 82 of the

Regulations that under clause (b) of para 82 of the regulation,

attachment and posting to the JAG department is also of only

'eligible officers'. Such eligibility is prescribed in clause (a) of para

82 of the Regulations. It is evident, therefore, that in order to be

attached with the JAG department, a candidate is required to

possess a LL.B. degree from a recognised university. It is because

the petitioner on 19th July, 2004 and others like him, including Lt.

Col. Mukul Dev, fulfilled this requirement that they were attached to

the JAG department.

30. Clause (c) of para 82 provides the manner in which the Judge

Advocate General's departmental examination would be conducted

while clause (d) of para 82 of the Regulations stipulates that upon

qualifying in the departmental examination, the candidate would be

transferred to the JAG's department if so recommended by the JAG.

31. The above narration would show that the petitioner admittedly

possessed a bachelor's degree in law from a recognised university.

His applications stood recommended by the concerned Judge

Advocate General. Before us, the respondents also accept that the

petitioner fulfills all eligibility criterion under para 82 of the

Regulations as it stands. He was permitted to take the inter arm

service transfer examination obviously.

32. In this factual background, the sole issue which arises for

consideration before us in this petition is whether the respondents

W.P.(C) No. 274/2009 page 13 of 33 can introduce an additional eligibility qualification and criterion

which is not prescribed under the rules.

33. It is well settled that the respondents are bound by the

eligibility criteria which was notified at the time of inviting

applications for the Judge Advocate General Departmental Inter

Arm/Service Transfer Examination pursuant to which the petitioner

applied and undertook the examination. It is not open for the

respondents either to vary the eligibility criteria in any manner or to

change the manner of selection after its commencement.

34. In this regard, reference can usefully be made to the

pronouncement of the Supreme Court dated 1st February, 2010 in

WP(C) No.66/2008 Ramesh Kumar Vs. High Court of Delhi &

Anr. In this case, it was held that selection is to be made giving

strict adherence to the statutory provisions and if such power i.e.

"inherent jurisdiction" is claimed, it has to be explicit and cannot be

read by necessary implication for the obvious reason that such

deviation from the rules is likely to cause irreparable and

irreversible harm. In so concluding, the court placed reliance on

earlier judgments in MANU/SC/0409/1980 : AIR 1981 SC 561

B.S. Yadav and Ors. v. State of Haryana and Ors.;

MANU/SC/0395/1983 : AIR 1984 SC 541 P.K. Ramachandra

Iyer and Ors. v. Union of India and Ors.; and

MANU/SC/0050/1985 : AIR 1985 SC 1351 Umesh Chandra

Shukla v. Union of India and Ors. wherein it had been held that

there was no "inherent jurisdiction" of the Selection

W.P.(C) No. 274/2009 page 14 of 33 Committee/Authority to lay down such norms for selection in

addition to the procedure prescribed by the Rules.

35. In AIR 2008 SC 1470 : MANU/SC/0925/2008 K Manjusree

v. State of Andhra Pradesh and Anr. it was held that selection

criteria has to be adopted and declared at the time of

commencement of the recruitment process.

We may observe that the restriction on the jurisdiction to lay

down additional eligibility conditions would be even more stringent

than the procedural requirements which are to be followed by the

selecting body. Therefore, having commenced with the process of

selection based on prescribed eligibility conditions, it is certainly

not open to the respondents to add additional requirements after

having invited applications and the petitioner having successfully

participated in the examination for the same.

36. In the light of this legal position, the respondents cannot insist

that the petitioner has to give an attendance certificate before

granting his application when there is no such requirement under

the applicable rules. The respondent's action in rejecting the

petitioner's application for permanent transfer to the JAG

department is liable to be struck down on this short ground alone.

37. We may now refer to the primary contention of the petitioner.

It is contended that the petitioner is entitled to permanent transfer

in view of the principles laid down by the Division Bench of this

court in its judgment dated 16th August, 2007 rendered in

W.P.(C) No. 17025/2006 entitled Lt. Col. Mukul Dev vs. UOI &

W.P.(C) No. 274/2009 page 15 of 33 Ors. In this case, this petitioner was in possession of a bachelor's

degree in Law as noted above and had obtained a transfer to the

JAG department in March, 2003. Just as Major Alok Shukla

(petitioner herein), he had been also commissioned in the Indian

Army and again, as the petitioner, he also belonged to the regiment

of artillery. He based his claim for permanent transfer to the JAG

department on this degree as well as the fact that he had

conducted several court martials etc as part of his posting in the

JAG department. He had obtained his bachelor of Law degree from

Chaudhary Charan Singh University in the examination held in 1996

and was also attached with the JAG Department. Lt. Col. Mukul Dev

had also qualified the JAG department's exam for the inter

arm/service transfer with the petitioner and sought permanent

transfer to the JAG Department. Lt. Col. Dev had candidly admitted

that he had not fulfilled the essential criteria for attendance, that is

2/3rd of the total number of lectures delivered in the law course as

set down for membership to the Bar Council of India.

38. The respondents' contested his claim in the writ petition on

the objection that Lt. Col. Dev could not establish as to how and

when he attained the minimum attendance as prescribed by the

rules for the LL.B. degree course and therefore, he was not entitled

to the permanent transfer. It was the respondents' case that Lt.

Col. Mukul Dev had been awarded the LL.B. Degree by the

Chaudhary Charan Singh University, Meerut, U.P., whereas he was

posted in Faridkot (Punjab), Dinjan (Assam) and NC Hills Assam

W.P.(C) No. 274/2009 page 16 of 33 during the period of 1993 to 1996. Lt. Col. Dev had also premised

his claim for permanent transfer to the JAG Department on para 82

of the Defence Service Regulations noted hereinabove.

39. In this case, the Division Bench had occasion to hear learned

counsel for the Bar Council of India as well, who had brought out

the distinction between professional (academic) and other LL.B.

degrees. In para 5 of the pronouncement, the court had noted as

follows :-

"5. ...........We had the advantage of hearing Mr.Sachdeva, learned counsel for the Bar Council of India, who had brought out the distinction between professional and other (academic) LLB Degrees. It appears that certain Universities offer a Degree after pursuing only a two year course. Attendance requirements vary from one University to another but so far as the Bar Councils are concerned, unless a University prescribes a minimum attendance of 2/3rd of the lectures delivered, and insists on student's compliance with this requirement, a person would not be granted a licence by the Bar Council to practice the profession of law as an Advocate. Mr.Sachdev had clarified that apart from this stringent stipulation, the Bar Council is not concerned with the award of the LLB Degree to any student."

40. It is evident from the above that so far as the conferrment of a

licence to practice as an advocate by the Bar Council is concerned,

in addition to the possession of the Bachelor of Laws' degree, the

attendance requirement in the course would not only be relevant

but is compulsory. The court had accordingly observed in para 6 of

the judgment that the concerns of eligibility for practice as an

advocate were not topical or relevant to answer the issue raised by

Lt. Col. Dev, since the prayer of the petitioner was not his

W.P.(C) No. 274/2009 page 17 of 33 enrollment as an advocate or the bestowal of a licence by a bar

council and that Lt. Col. Dev was only seeking the relief of his

permanent transfer to the JAG Branch.

41. On a consideration of para 82 of the Regulations, this court

had unequivocally declared the legal position in Lt. Col. Mukul Dev's

case in the following terms :-

"8. Having considered the rival cases we are of the opinion that the Respondents are not justified in insisting that the petitioner "should meet the eligibility criteria for enrollment as an Advocate". This requirement can legitimately be insisted upon at the threshold, but if it has to be applied at any stage thereafter paragraph 82 of the Regulation would have to be amended. The Regulation would have to stipulate that in addition to having attended a three year Professional LLB Course, (which the petitioner has successfully undergone as evidenced by his Degree) every officer in the JAG Branch could also be additionally eligible for enrollment as an Advocate. We may observe, en passant, that the natural consequence of such a Regulation may be that only such officers who are eligible to be enrolled as Advocates can be transferred to the JAG Branch. Thereupon the initial transfer of the Petitioner into the JAG Branch would be irregular and illegal. The ramifications of such an interpretation would be highly deleterious to the interests of the Indian Army as persons such as the Petitioner have played pivotal roles and responsibilities in sundry Court Martials. Be that as it may, we are of the unequivocal view that the Regulation, as it presently stands, does not envisage that only those officers can be considered for service in the JAG Branch who are eligible for enrollment as Advocates."

(Underlining by us)

42. An effort has been made by Mr. Sanjeev Sachdeva, learned

counsel who appears for the respondents before us, to draw a

distinction between Lt. Col. Mukul Dev's case and that of the

present petitioner. This distinction is premised solely on a

W.P.(C) No. 274/2009 page 18 of 33 Presidential sanction which had been obtained in Lt. Col. Dev's

case. We may notice that so far as Lt. Col. Dev was concerned,

unlike the petitioner, he had faced a disqualification even in terms

of para 82 of the Regulations. The regulation clearly stipulates that

only officers of the rank of Major or below were eligible for the

permanent transfers. This officer was of the rank of Lieutenant

Colonel. The respondents were satisfied that this officer satisfied

the other eligibility conditions and in acceptance and admission

thereof, the respondents had moved the President of India for a

waiver of only the rank stipulation in para 82 of the Regulations so

far as the permanent transfer of Lt. Col. Dev to the JAG Department

was concerned. This waiver was sought by a reference dated 20th

July, 2006 submitted by the Military Secretariat which has been

placed before us. The reference records that Lt. Col. Mukul Dev

was "a law graduate who was serving in the Judge Advocate since

9th September, 2002". The Military Secretariat had endorsed his

eligibility premised on the bachelor's degree in law from a

recognised university held by him and also on the fact that he had

qualified in the Judge Advocate General's departmental

examination. The reason for this reference was set out in para 5(b)

in the following terms:-

5(b). It is revealed from the Ibid case that the officer has already undergone the procedural formalities. However, this case is held up since the officer is a Lt. Col. Post AVSC and there is a requirement of a dispensation to be obtained from the Ministry of Defence."

W.P.(C) No. 274/2009 page 19 of 33

43. In para 5(c), the Deputy Military Secretary - 14 had

specifically stated that the "officer's case merits consideration

since he is adequately qualified, has passed departmental

examination and is eligible for the inter arm/service transfer subject

to a disposition granted to him as a one time measure. This

proposal is legally sustainable and in the organisational interest

especially when the Judge Advocate General's department is

deficient of officers (16 officers) as on date".

The reference endorses the fact that the reference and case of

Lt. Col. Dev had the approval of the Military Secretary.

44. Interestingly, on this recommendation, the Under Secretary to

the Government of India by a communication dated 27th

September, 2006 conveyed the Presidential decision and grant of

the waiver. The relevant portion of the letter dated 27th

September, 2006 is reproduced hereinbelow:-

"I am directed to say that the President is pleased to decide that notwithstanding anything contained in Para 82 of the Regulations for the Army, the Inter Arm Transfer of IC-4629N Lt. Col Mukul Dev is sanctioned as a one time measure from Artillery to the JAG's Department provided the officer is in possession of Bachelor's Degree in Law from any recognized University. "

45. Lt. Col. Dev was constrained to file the above writ petition for

the reason that the respondents failed to process his application for

transfer despite the presidential sanction. It is evident from the

above narration that the Presidential sanction did not relate to the

stipulation with regard to a valid LL.B. degree or eligibility of

W.P.(C) No. 274/2009 page 20 of 33 enrollment as an advocate and consequently the distinction sought

to be drawn by the learned counsel for the respondents in the

present case is unjustified.

46. We have noticed hereinabove the reference made by the

Military Secretariat of the respondents so far as Lt. Col. Dev's case

is concerned not only accepted but endorsed and recommended his

eligibility premised on the law degree obtained by him from the

recognised university. The only waiver which had been sought and

which was the subject matter of the presidential sanction was to

the extent that he was holding a higher rank than was permissible

under para 82 of the Regulations. In this background, the

distinction sought to be drawn between this judicial precedent and

the present case is wholly misplaced and untenable.

47. We are informed by learned counsel for the respondents that

no challenge was laid to the judgment of the Division Bench in Lt.

Col. Dev's case and the same has attained finality. The inter

service transfer of Lt. Col. Mukul Dev has been effected.

48. So far as the facts of Lt. Col. Mukul Dev are concerned, we find

that the judgment dated 16th August, 2007 in W.P.(C) No.

17025/2006 records that he had candidly admitted that he did not

have the prescribed attendance and thus had not fulfilled the

essential attendance criteria of 2/3rd of total number of lectures

delivered, as set down by the Bar Council of India.

From the above, it would appear that the respondents have

not insisted on any requirement of an attendance percentage

W.P.(C) No. 274/2009 page 21 of 33 before granting of permanent transfer to the JAG department to

other officers, as is being done in the case of the petitioner.

49. The above discussion would show that the criteria insisted

upon by the respondents before us is not prescripted in the

applicable rule/regulation. The respondents have also accepted the

eligibility of an army personnel possessed of the rank of a major or

below possessing a valid bachelor of law degree from a recognised

university as sufficient for the inter arm/service transfer to the JAG

department till 2007, when they set up the plea of attendance

requirement for the first time in the case of Lt. Col. Mukul Dev

(supra). Such stipulation by the respondents was unequivocally

rejected by the court and the decision of this court was accepted

and stands duly implemented by the respondents.

50. A plea of individuous discrimination would not create any right

in a person to seek the same treatment, unless the discrimination

was based on treatment accorded to the other person was in

accordance with law. Before us, it is not complained by the

respondents that the petitioner was differentially placed as these

other officers or that the petitioner was not eligible under the

applicable para 82 of the Regulations under which their inter

arm/service transfer has been effected. There is, therefore,

substance in the contention of the petitioner that he has been

arbitrarily and legally discriminated against.

51. We may notice that in the counter affidavit placed in the

present writ petition, the respondents have raised the very

W.P.(C) No. 274/2009 page 22 of 33 objections which were raised in Lt. Col. Dev's writ petition and stood

categorically rejected by the court in the judgment dated 16th

August, 2007. In fact, the only additional pleas which have been

taken herein are also those which have been specifically rejected in

paras 4 to para 8 of the judgment in Lt. Col. Mukul Dev's case

(supra). To say the least, such stand is not only unreasonable but

unfortunate and valuable judicial time has been caused to be

expended on a settled issue.

52. Mr. Sanjeev Sachdeva, learned counsel for the respondents

has urged that the petitioner does not have any vested right to the

permanent transfer and that the respondents have the absolute

discretion not to appoint him even if he may meet the criterion

prescribed under para 82 of the Regulations.

53. Article 14 of the Constitution of India enshrines the concept of

equality as a fundamental right. Article 16 embodies the

fundamental guarantee that there shall be an equality of

opportunity for all citizens in matters relating to employment or

appointment to any office under the State. The Supreme Court in

E.P. Royappa vs. State of Tamilnadu & Anr. and also in

Maneka Gandhi case (1978) 2 SCR 621 reiterated that the basic

principle which informs Articles 14 & 16 is equality and inhibition

against discrimination. Bhagwati, J, in the majority judgment

reported at AIR 1974 SC 555 E.P. Royappa Vs. State of Tamil

Nadu & Anr. in paras 85 & 86 observed that any attempt to

truncate the all embracing scope and meaning of these equalising

W.P.(C) No. 274/2009 page 23 of 33 principles cannot be countenanced. So far as the arbitrariness in

exercise of discretion is concerned, the same would guide

consideration of the respondents' stand in the present case and

deserve to be considered in extenso. The relevant portion of paras

85 & 86 of this pronouncement deserves to be considered in

extenso and read as follows:-

"85. ..............In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on equivalent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and

16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16. ..................................

86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14

W.P.(C) No. 274/2009 page 24 of 33 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Article 311 but not to Articles 14 and

16. ............."

These salutary principles would guide consideration of the

legality and validity of the action of the respondents in non-

consideration of his inter arm/service transfer and the reason

therefore in the instant case.

54. The action of the respondents has to be free of arbitrariness

even in matters relating to employment. In this regard, the

observations of the Supreme Court reported in AIR 1979 SC 1628

Ramana Dayaram Shetty Vs. International Airport Authority

of India & Ors. are topical and instructive and deserves to be

considered in extenso and the same reads as follows:-

"10. xxx It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viteralli v. Seton 359 U.S. 535 : 3 L.Ed. 1012 where the learned Judge said:

An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.

W.P.(C) No. 274/2009 page 25 of 33 This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab MANU/SC/0363/1974 : (1975)ILLJ228SC and in subsequent decision given in Sukhdev v.

Bhagatram MANU/SC/0667/1975 : (1975)ILLJ399SC Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540-41 in Prof. Wades Administrative Law 4th edition. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. xxx xxx xxx

xxx It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes not difference whether the exercise of the power involves affection of some right or denial of some privilege.

xxx xxx xxx

12. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala MANU/KE/0020/1969 : AIR1969Ker81 that : "The Government is not and should not be as free as an individual in selecting the recepients for its largess.

Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal". The same point

W.P.(C) No. 274/2009 page 26 of 33 was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengali MANU/SC/0061/1974 : [1975]2SCR674 where the question was whether black-listing of a person without giving him an opportunity to be heard was bad? xxx xxx xxx

xxx But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."

55. In the judgment reported at (2009) 15 SC 620 : JT 2009

W.P.(C) No. 274/2009 page 27 of 33 (11) SC 472 Chairman cum Managing Director, Coal India

Limited & Anr. Vs. Mukul Kumar Choudhari & Ors., the court

while considering the issue of proportionality of the punishment

imposed by an administrative body, commented on arbitrariness in

the exercise of discretionary power. This court placed reliance on

Halsbury's Laws of England (4th Edn.), Vol. 1(1) pp. 144-45, para 78,

wherein it was stated that the court would quash exercise of

discretionary powers in which there is no reasonable relationship

between the objective sought to be achieved and the means used

to that end. The observations of the Apex Court on this aspect in

para 21 deserve to be considered in extenso and read as follows:-

"21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no "pick and choose", selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a "sledgehammer to crack a nut". As has been said many a time; "where paring knife suffices, battle axe is precluded"."

56. Thus, in view of the above noted pronouncements, the stand

of the respondents of having absolutely untramelled power and

discretion is completely misdirected and legally untenable.

Arbitrary exercise of discretion is not only liable to be corrected in

exercise of extraordinary jurisdiction under Article 226 of the

Constitution of India but cannot be countenanced under any

circumstance.

W.P.(C) No. 274/2009 page 28 of 33

57. Our attention has also been drawn to the recommendation

dated 31st July, 2006 by Major General Nilender Kumar, the Judge

Advocate General with regard to the reference to the President

seeking dispensation as a special case with regards to Lt. Col.

Mukul Dev. This recommendation also made a reference to the

waiver sought in view of the provisions of para 82(a) of the

Regulations for the Army (DSR) which envisaged transfer only in

the rank of Major and below. The Judge Advocate General had

confirmed that the proposal was legally sustainable and in

organisational interest especially where there is acute shortage of

16 officers with the JAG. The petitioner stood attached with the JAG

department since 19th July, 2004. His satisfactory performance of

duties was endorsed and accepted by the Deputy JAG. The

proposal to post the petitioner back to the artillery unit was kept in

abeyance by an order made on 21st September, 2007. Long before

this date, the petitioner (alongwith Lt. Col. Dev) had already

successfully undertaken the JAG departmental examination for the

inter arm/service transfer. His application for permanent transfer

was pending with the respondents. The only reason for

repatriating him to his artillery posting in this background, appears

to have been his pending application for permanent inter

arm/service transfer to the JAG department.

58. Sh. S.S. Pandey, learned counsel for the petitioner has placed

reliance also on the pronouncement of the Apex Court in AIR 1976

SC 376 Sh. Krishnan vs. The Kurukshetra University,

W.P.(C) No. 274/2009 page 29 of 33 Kurukshetra to contend that if the university authorities

acquiesced in the infirmities which the admission form contained

and allowed the candidate to appear in the examination, then by

force of the university statute, the university had no power to

withdraw the candidature of the candidate. Applying this principle,

it is urged that the respondents have no power or authority to go

behind the degree.

59. The respondents do not raise any objection that the petitioner

was not fit to perform the duties of the JAG department or for any

organisational reasons. The petitioner is stated to have regularly

attended two years classes and his shortfall in the third year was by

a short number of classes at the most. It is stated that the

petitioner secured a first division in the course.

60. Be that as it may, in the light of the above discussion and the

principles laid down in Lt. Col. Mukul Dev vs. UOI & Ors.

(supra), the objection of the respondents premised on attendance

in the classes is of no legal consequence and effect.

61. No amendment has been effected by the respondents to para

82 of the Defence Service Regulations. Lt. Col. Mukul Dev

undertook and cleared the same JAG Departmental Service

examination as the petitioner. So far as the eligibility requirement

is concerned, there is not an iota of distinction or difference

between the two cases. The petitioner is entitled to the same

treatment as this officer.

W.P.(C) No. 274/2009 page 30 of 33

62. In these circumstances, we have no hesitation in holding that

the respondents have been unjust and unfair so far as the

petitioner is concerned and their action is legally unsustainable.

63. The admitted position, therefore, is that the petitioner is in

possession of a bachelor degree in law from a recognized university

which is also a professional degree. The respondents have

accepted and admitted that the petitioner satisfies all requirements

under para 82 of the Defence Service Regulations for the Inter

Arms/Service Transfer to the Judge Advocate General branch and

there is no impediment to the same.

64. The petitioner has prayed for setting aside of the signal dated

20th December, 2008 whereby he was posted from the

Headquarters Western Command JAG to the 193 FD Regiment and

was required to report at the new appointment on 19th February,

2009. This posting order stands implemented during the pendency

of the writ petition and as such, the prayer made in respect thereof

is rendered infructuous.

65. In the above fact, however, the petitioner is entitled to a

favourable consideration of his application dated 10th August, 2006

(Annexure P-1) reiterated in the second application dated 23rd

September, 2008 (Annexure P-3) for the Inter Arms/Service Transfer

to the JAG's department without the requirement of any certificate

with regard to the minimum attendance in the bachelor of law

degree course or any other condition not specifically stipulated

under para 82 of the Regulations for the Army (Defence

W.P.(C) No. 274/2009 page 31 of 33 Service Regulation).

66. The principles laid down by the binding judicial precedent in

Lt. Col. Mukul Dev (supra) squarely apply to the instant case and

the petitioner was entitled to a favourable consideration of his

request for the Inter Arms/Service Transfer which has been wrongly

denied to him. In this view of the matter, the present wholly

unnecessary litigation has been generated for the failure of the

respondents on settled legal principles. The respondents are,

therefore, required to bear the costs of the present litigation.

67. In view of the above discussion, we direct as follows :-

(i) The respondents shall pass appropriate orders with regard to

the inter arm service transfer of petitioner to the Judge Advocate

Department as made in the application dated 10th August, 2006

(annexure P-1) reiterated in the application dated 23rd September,

2008 (annexure P-3) without insisting upon certificate of

attendance in the course or any other documentation or

undertaking which is not stipulated in para 82 of the Defence

Service Regulations as applicable when the application was made

within a period of four weeks from today.

(ii) It is clarified that this decision shall not entitle the petitioner

to enrollment as a part or to any other appointment which

prescribes that an incumbent should be eligible for enrollment as

an advocate in order to be considered for appointment in that

employment.

W.P.(C) No. 274/2009 page 32 of 33

(iii) CM No.553/2009 shall stands disposed of in terms of this

decision.

(iv) The petitioner shall be entitled to costs of the present case

which are quantified at Rs.25,000/- to be paid within four weeks

from today.

The writ petition is allowed in the above terms.

Dasti to parties.

                                                 GITA MITTAL, J




                                                 J.R. MIDHA, J
SEPTEMBER 13th, 2010
kr/aa




W.P.(C) No. 274/2009                                       page 33 of 33