Delhi High Court
Nb Ris Ravinder Kumar Singh vs Union Of India And Ors. on 25 April, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14.03.2013
Pronounced on: 25.04.2013
+ W.P.(C) 6311/2012
NB RIS RAVINDER KUMAR SINGH ..... Petitioner
Through : Sh. S.S. Pandey, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Sh. Saqib, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S. RAVINDRA BHAT
%
1. The petitioner is aggrieved by various orders of the respondents
by which, even though he ranked first in the merit in the recruitment
process for the civilian post of Godown Overseer at the Equine
Breeding Stud (EBS), Babugarh, the third respondent, Director
General Remount Veterinary Services, denied appointment to him. He
is also aggrieved by the cancellation of the „No Objection Certificate‟
(NOC) issued by the first two respondents on the one hand and his
premature discharge from the army without processing his case for
appointment to the said post of Godown Overseer (hereafter "the
civilian post").
2. The admitted facts are that the petitioner joined the Remount
Veterinary Corps of the Indian Army, which is part of the Army and
W.P.(C) 6311/2012 Page 1
thus under the control of the first two respondents, on 10.11.1986; he
served there for more than 24 years. The third respondent published a
notice calling for application to the civilian post at EBS Babugarh,
sometime in March-April 2011. The petitioner applied for the post. As
a serving military personnel, he had to obtain an NOC from the Indian
Army. His application for this purpose was granted and NOC was
issued on 21.04.2011. His application for the post was accepted and
he was called to participate in the recruitment process. He appeared in
the written test on 20.07.2011; he was called for interview on
27.07.2011. Before the declaration of results, apparently on
28.07.2011, the six-member Selection Board, which considered the
various applications, drew a final merit list of candidates in terms of
which the petitioner secured the maximum marks, i.e. 82.70. This is
clear from the files produced in the present case by the third
respondent during the course of the proceedings. At the time of
consideration and preparation of the merit list, the NOC issued to the
petitioner was followed and was taken into consideration.
Significantly and for no apparent reason, on the same date (i.e. on
28.07.2011), an order was issued withdrawing/cancelling the NOC
issued to the petitioner on 21.04.2011. The results for the recruitment
process of Godown Overseer were not declared for quite some time.
When the petitioner became aware of the cancellation of the NOC -
which was essential for his discharge from the army, and a
precondition for his joining the third respondent - he addressed
representations seeking its restoration. The petitioner‟s representation
in this regard, dated 18.08.2011, pertinently stated that:
W.P.(C) 6311/2012 Page 2
"2. I, the above named NCO applied for the post of
Godown Overseer at EBS Babugarh have appeared in
the examination for the same at EBS Babugarh from 27
to 29 Jul 2011.
3. I hereby give an undertaking that if selected for
the post of Godown Overseer at EBS, Babugarh, I will
put up my papers for premature discharge from the
service forthwith. My promotion for the rank of Nb/Ris is
due during the month of Nov 2011. If selected for the
post of Godown Overseer I will forgo my promotion as
well."
3. The respondents, by a communication dated 08.09.2011,
withdrew the cancellation order - dated 28.07.2011 and restored the
NOC issued to the petitioner. In the meanwhile, the petitioner was
promoted to the rank of Nb./ Ris, with effect from 01.11.2011. In the
circumstances, on 11.06.2012, the respondents again issued an order
cancelling the NOC granted to the petitioner, stating that since there
was an alteration of circumstances, and the Petitioner‟s tenure stood
extended in the service by two years, the NOC and discharge were no
longer permissible. In the communication dated 11.06.2012, the
respondents stated that the petitioner had willingly accepted the
promotion and consequently the NOC had to be withdrawn. The inter
se communications between the respondents issued on 11.06.2012,
inter alia, stated as follows:
"3. The NCO was issued with NOC in terms of ibid
AO but as he was promoted to the rank of Nb/Ris wef 01
Nov 2011 and willingly opted for two yrs extn of service,
the JCO will now due for discharge in the rank wef 30
Nov 2014. The ibid NOC, therefore, is no longer valid
due to change in terms of conditions consequent to his
W.P.(C) 6311/2012 Page 3
promotion and is hereby cancelled.
4. More so, on perusal of individual‟s undertaking at
the time of his application for NOC it is seen that he had
given undertaking that in case of his selection to the post
of godown overseer at EBS, Babugarh, he will put up his
papers for premature discharge. Since he was promoted
before getting selected and no intimation of his selection
or otherwise is available as on date, the conditions
proposed by the application are now null and void."
4. The petitioner approached this Court by filing W.P.(C)
4325/2012, aggrieved by the withdrawal of his NOC. The writ
petition was dismissed on 23.07.2012; the Court was disinclined to
interfere on the basis of its opinion that the promotion, to which the
petitioner acquiesced, altered the circumstances and that in view of
the existing policy, since the tenure stood extended, he could not
claim the NOC and discharge from the army as a matter of right. The
petitioner thereafter appears to have sought recourse to the Right to
Information Act (RTI) with three applications. In response to all
these, especially the letter dated 13.08.2012, it was stated that the
result for the selection process in respect of the post of Godown
Overseer has not yet been finalized. On 19.08.2012, the petitioner
represented to the respondents, stating that in terms of AO 78/79, he
could seek discharge in the event of selection to civil job and that this
aspect had not been considered earlier. He also outlined the
circumstances which compelled him to seek premature retirement.
The relevant portions of his representation dated 19.08.2012 are
extracted as follows:
W.P.(C) 6311/2012 Page 4
"3. Considering all the circumstances explained above
I had taken "No Objection Certificate" to apply for a
civil job as Godown Overseer in EBS, Babugarh, which
would have brought some stability and would have
facilitate to look after my family problems. However, the
same was subsequently withdrawn on the ground that I
had given my willingness to continue in service after my
promotion to the rank of Nb. Ris.
4. In terms of para 4 of AO 78/79, I am entitled to
seek discharge in the event of selection in a civil job.
Hence, the case may be taken up to ascertain whether I
was within the merit list for said post and in event of my
name figuring in the merit list, I may be permitted to seek
premature retirement before the expiry of my terms of
engagement or service limit as I am in my last year of
prescribed service limit.
5. I hope that you will be kind enough to consider my
request favourably and sympathetically and allow me to
premature discharge from service.
6. For this act of kindness my family and I will be
ever grateful to you, sir."
5. Close on the heels of his representation, the petitioner moved
an application, C.M. No.11714/2012, in the disposed of writ petition,
W.P.(C) 4325/2012, seeking modification of the previous order to the
extent that the dismissal of the writ petition should not come in the
way of the respondents considering his representations. This
application was disposed of and the modification sought was granted
by the order dated 13.09.2012, in the following terms:
"2. As per pleadings in C.M. No. 11714/2012, with
reference to Army Order 78/1979, it is brought to our
notice that independent of the cause pleaded in the writ
W.P.(C) 6311/2012 Page 5
petition, another right is available to the petitioner to
seek discharge through an alternative route which would
be akin to a distinct cause of action. It is prayed that it
may be clarified that the order dated July 23, 2012
dismissing the writ petition would not come in the way of
the petitioner seeking discharge as per the Army Order
78/1979.
3. We dispose of the application observing that since
the right pleaded in the writ petition was rested not on
Army Order 78/1979 and thus this Court did not have an
occasion to consider the right of the petitioner with
respect to the Army Order in question, if the petitioner
were to make a representation to the respondents with
reference to Army Order 78/1979 seeking a right to be
discharged the same would be considered and decided by
the competent authority.
4. Needful would be done within three days of
receipt of the representation."
6. After the disposal of the application, the petitioner addressed a
representation to the army authorities for grant of premature
retirement to enable him to take appointment in the civil post of
Godown Overseer, on 14.09.2012. He also applied to the third
respondent on 19.09.2012, requesting that an offer of appointment
may be issued to enable him to join the post since, admittedly, he
stood first in the merit list. Acting in terms of the request, the
respondents issued a letter dated 21.09.2012 approving the
petitioner‟s discharge on compassionate grounds; the representation to
the army authorities had mentioned that the petitioner applied for the
civilian post having regard to his family circumstances and invalidity
of his mother who was suffering from certain illnesses. It also
W.P.(C) 6311/2012 Page 6
disclosed that the previous sequence of events which led to the
issuance of NOC, its cancellation, non-declaration of result and his
being promoted, the writ petition filed before this Court, its dismissal
and later clarification by order dated 13.09.2012. On 21.09.2012, the
petitioner‟s application for premature discharge was approved and the
discharge order was issued. It is in these circumstances that he
approached the Court seeking the reliefs claimed.
7. During the pendency of these proceedings, the petitioner moved
an application for impleadment of one Sh. Sanjay Kumar as sixth
respondent since, according to his knowledge, the said individual had
been issued with an appointment letter. The application (C.M.
17433/2012) was allowed on 17.10.2012. In the accompanying
application, C.M. No. 16865/2012, the Court had directed that the
appointment of the third party would be subject to the final outcome
of these proceedings.
8. It is argued on behalf of the petitioner that the action of the
respondents cumulatively is indefensible and mala fide. Learned
counsel submitted that no reason was given at any stage why the NOC
issued on 21.04.2011 was cancelled on the day the results of the
selection process were finalized, i.e. 28.07.2011. On that date, the
selection board had assessed the petitioner to be the most meritorious
candidate. As on that date, the NOC was valid. The NOC was,
however, cancelled and till date, the respondents have not furnished
any reason. It is submitted that even subsequently, on 08.09.2011, the
NOC was restored, which meant that the respondents were duty-
bound to process the appointment and issue the letter to him.
W.P.(C) 6311/2012 Page 7
Obviously, on account of complicity and mala fides of some of the
officers of the respondents, who wished that the petitioner‟s
candidature be kept out of the way and someone close to them was in
fact appointed, the entire set of circumstances was manipulated. It was
argued that when on 01.11.2011, the petitioner accepted his
promotion, he was completely in the dark that he stood first in the
merit list. Learned counsel highlighted that the representation of
18.08.2011 had categorically stated that in the event of a promotion,
the petitioner would be willing to forego it if a premature discharge
were granted to enable him to join the appointment in the civil post.
9. Learned counsel submitted that the later restoration of the NOC
and its subsequent cancellation on 11.06.2012, were again without
any justifiable reason. It was submitted that the application for
NOC/discharge made subsequently on 19.08.2012 also recited the
very same facts, i.e. family circumstances and the petitioner‟s desire
to get the appointment to the civilian post. These found favour and the
premature discharge was sanctioned on 21.09.2012. Yet, the third
respondent, for reasons which cannot but be termed as mala fide,
obdurately stuck to its position that the cancellation and subsequent
restoration of NOC and his premature discharge was of no avail.
Learned counsel submitted that whether the petitioner was promoted
or not, the fact remained that he was not aware; nor was there any
effort on the part of the respondents to make him aware; that he was
entitled to be considered and appointed on account of his ranking in
the merit list. In these circumstances, the fact that he accepted the
promotion on 01.11.2011 cannot be a bar for his insisting that he
W.P.(C) 6311/2012 Page 8
ought to be appointed to the civilian post. It was submitted that this is
apparent from the letter dated 18.08.2011 where he stated clearly that
he would forego his promotion if the NOC and discharge were given.
Consequently, the NOC was issued on 08.09.2011. The action of the
first two respondents in cancelling it on 11.06.2012 and that of the
other respondents in rejecting the petitioner‟s candidature, are
arbitrary and illegal.
10. Learned counsel submitted that the reasons cited by the army
authorities, i.e. the provisions of Army Order 814/1973, are without
justification and baseless. Learned counsel relied upon a subsequent
order, i.e. Army Order 78/1979, especially para 5 which prescribed
the service for retirement/discharge for the purpose of taking-up
public employment. It was submitted that in the case of the petitioner,
it was 24 years‟ service which he had in fact completed. Furthermore,
argued the petitioner, without prejudice to this submission, the
respondents could not bind him to the fact that promotion was given
with effect from 01.11.2011. Relying upon the queries under the RTI
Act made in July-August 2012, learned counsel submitted that as of
November 2011, there was no final word that the results had been
finalized to enable the petitioner to make an informed choice. In these
circumstances, no principle of estoppel or waiver could apply to bind
him to the extended tenure. Even otherwise, the respondents‟
acceptance of the premature retirement application completely altered
the circumstances. The third respondent was under a duty to consider
that the subsequent developments perfectly entitled the petitioner to
appointment to the post for which he was selected. It was argued that
W.P.(C) 6311/2012 Page 9
the collective action of the respondents has resulted in a piquant
situation where the petitioner has fallen between two stools, i.e.
neither has he been appointed to the civilian post (which was the
primary reason for his seeking discharge), nor has his employment in
the Army continued. The reason for his seeking discharge was in
order to secure civil appointment. The discharge has been granted and
at the same time, civil appointment has been denied even though he is
first in the order of merit.
11. All the respondents have filed a common affidavit through Lt.
Col. Saumya Brata Panja. It is urged on their behalf that the Petitioner
was not entitled to the NOC issued on 21st April 2011 since he was
not in the last year of service before getting discharge from service.
As a result, that „No Objection Certificate‟ was cancelled by letter
dated 28th July 2011. The respondents also submit that the petitioner
had furnished an undertaking that if he were selected for the post of
Godown Overseer at Equine Breeding Stud, Babugarh, he will put up
his papers for premature discharge forthwith. The petitioner had
further stated that he is due for promotion to the rank of Naib Risaldar
during the month of November 2011 and if he is selected for Godown
Overseer at Equine Breeding Stud, Babugarh, he will forego his
promotion to the rank of Naib Risaldar as well. It was stated that
based upon that undertaking and declaration (of the petitioner), the
validity of the No Objection Certificate was restored and the decision
communicated to Equine Breeding Stud, Babugarh by Signal No. Q-
3166 dated 08th September 2011. In this background of circumstances,
the Petitioner‟s promotion order to the rank of Naib Risaldar w.e.f.
W.P.(C) 6311/2012 Page 10
01st Nov. 2011 was issued by Signal No. Q-3116 dated 30th Oct. 2011.
12. The respondents contended that according to the assumption
certificate forwarded on 03rd November 2011, the petitioner assumed
the rank of Naib Risaldar on 01st November 2011. It was submitted
that upon his assuming the rank of Naib Risaldar, the terms and
conditions of service applicable to the petitioner underwent a change
in terms of Para 163 of Regulations for the Army Revised Edition
(1987). This meant that the petitioner had opted for extension of his
service by two years willingly through the assumption certificate. On
promotion to the rank of Naib Risaldar and consequent to the change
in terms and conditions of service, the validity of „No Objection
Certificate‟ which was restored, automatically stood cancelled mainly
due to change of terms and conditions applicable to the rank of Naib
Risaldar to which the petitioner was promoted. Consequently, the
respondents contended that the cancellation of the NOC by order of
11th Jun 2012 was justified and valid.
13. The respondents do not deny that the petitioner filed a writ
petition before this court, which was initially dismissed, and that
subsequently he sought and was granted modification of that order, to
enable him to represent on the basis of an Army Order of 1979. It is
urged that the Board of Officers which was later convened on 14th
August 2012 to look into the merit of the case and assess the
eligibility of the petitioner afresh found the petitioner ineligible due to
the altered circumstances. It was, however, not denied that premature
discharge was granted to the petitioner by order of 21st September
2012, pursuant to the later order of the Court.
W.P.(C) 6311/2012 Page 11
14. The respondents argued that on 09th October 2012 a Board of
Officers for selection to the post of Godown Overseer at Equine
Breeding Stud, Babugarh, found the petitioner herein ineligible for
consideration due to cancellation of the „No-Objection Certificate‟ by
the fourth respondent by letter dated 28th July 2011 during the
recruitment process. As a result, the petitioner was not found eligible.
It was further argued that during the same time when selection
process was being carried out, the petitioner was promoted to Junior
Commissioned Officer rank on 01st November 2011 and since he
willingly opted for the post, which entailed two years extension of
service, the „No Objection Certificate‟, was no longer valid due to
such change in terms of conditions and was thus cancelled. It is
contended that in these circumstances, the offer of appointment was
made to the sixth respondent, Sanjay Kumar S/o Shri Radhe Shyam
Sharma.
15. The respondents argued that there is nothing arbitrary or
unreasonable in their action in cancelling the no objection certificate.
It was submitted that even though the petitioner had initially stated
that he was willing to forgo promotion, in order to secure appointment
to the civilian post, he actually opted for the higher post. Resultantly,
there was a change in his retirement age; he became ineligible to be
considered for appointment in terms of the existing instructions -
which stated that only those with a years‟ service left before their due
date of retirement/release could be furnished with no objection
certificate. The cancellation of the no objection certificate meant that
his candidature to the civilian post had to be rejected. It was argued
W.P.(C) 6311/2012 Page 12
lastly that the Army authorities cannot now be blamed or held to have
acted unreasonably because of their subsequent acceptance of the
petitioner‟s application for premature release, on 21-9-2012. It was
submitted that no relief should be granted to the petitioner.
16. At the heart of the controversy, as may be seen from the above
discussion, is whether the Petitioner‟s claim to the post was, at any
stage, meritless and whether his subsequent promotion in November
2011 disqualified him to apply and consequently be considered for the
civilian post of Godown overseer.
17. The undisputed facts are that when the petitioner applied for the
civilian post, he was eligible to do so. The respondents gave a no-
objection certificate, presumably on the understanding that by the
time the process of recruitment ended and if the petitioner were
offered appointment, he would be left with less than one years‟
service. That understanding or interpretation is reasonable and fair,
because insistence that even on the date of application the incumbent
should have less than one years‟ service is arbitrary, as it is well
known that the process of selection for appointments, particularly
public appointments, spans over several months, and in cases, even a
couple of years. Therefore, the issuance of the no objection certificate
to enable the petitioner to apply to the post, in April, 2011 was
reasonable, and in consonance with the rule. What followed thereafter
is curious. On the day the interview marks were compiled, i.e. 28th
July, 2011, and the petitioner was declared to be the first or the most
meritorious candidate by the selection board (comprising of over five
officers of the Army), the respondents chose to withdraw the no
W.P.(C) 6311/2012 Page 13
objection certificate issued in April, 2011. The petitioner was in a
quandary. Significantly, the results of the selection process were not
announced that day - they were not announced even a year later - till
August 2012. Since this cancellation jeopardized his candidature, the
petitioner represented to the authorities, who restored the no objection
certificate, on 08-09-2011. At this stage, the status quo was restored.
There was, therefore, no question of the petitioner being considered
ineligible. If one keeps in mind the background that the results of the
selection process had not been declared (and no reason has been given
for this delay, in the affidavits filed in court), the petitioner‟s offer to
forgo his promotion, in order to secure the civilian employment, made
in his letter of 18th August, 2011, becomes significant. When he was
offered promotion, the petitioner was completely in the dark about the
fact that he stood first in the merit list, in the selection, and his
appointment was a certainty. Undoubtedly, he reported for his posting
in the promotional post. Yet, the fact remained that he was not given
the due opportunity which he had sought, of forgoing it, because the
respondents deliberately did not declare the results. The rest of the
facts followed an uncanny pre-arranged sequence. Even up to June,
2012, the selection results were not declared; on 11 th June, 2012, the
petitioner‟s no objection certificate was cancelled; his candidature
was cancelled. His request for forgoing promotion, and need for
discharge, with the civilian post as a way out, was demonstrated by
his application for discharge, which was found genuine and accepted
with alacrity, on 21st September, 2012 by the Army. He stood released
from the Force, only to be subsequently informed that his candidature
W.P.(C) 6311/2012 Page 14
could not be restored because he was no longer eligible, as his No
Objection Certificate had been cancelled on 11th June, 2012.
18. Army Order 78 of 1979, which has been heavily relied on by
the respondents to justify their action in saying that the petitioner was
ineligible, reads inter alia, as follows:
"ADJUTANT GENERAL'S BRANCH
O-78/79 Application for Civil Appointments-JCOs/OR
Category of JCOs/OR Eligible to Apply for Civil Appointments
1. JCOs/OR serving on regular engagement can, if they so
desire, apply for civil appointments in Govt.
undertakings/organisations and public or private sector under
the following circumstances:-
(a) Within one year of the date of retirement which includes
the period of leave pending retirement.
(b) When placed in such a permanent low medical category
as is unacceptable for further retention; within one year of
completion of specified service. Those who have already
completed the specified service, from the date of announcement
of medical board proceedings to them.
(c) When placed in such a permanent low medical category
which prevents detailing a person on promotion cadre/ course
or debars him from further promotion in the Army, subject to
the exigencies of service.
Procedure for Submission of Applications
2. The applications to the prospective employers will be
routed through respective Os IC Records, duly recommended
W.P.(C) 6311/2012 Page 15
by OsC Units.
3. The applications for personnel will be forwarded to the
civil authorities, provided the manpower situation in that
Regt/Corps is satisfactory. A reference to this Headquarters for
the purpose is not necessary. Where it is intended to retain a
JCO/or under Rule 10, he will be accordingly informed by the
concerned OIC Records. „No objection certificate‟, where
applicable, will be duly completed by OsIC Records.
4. Personnel who are selected for civil appointments before
the expiry of their full terms of engagement or service limit,
may, if they so desire, be allowed to proceed on
discharge/retirement in order to enable them to join their new
appointments during the last year of their colour service or
retiring/prescribed service limits. The reasons for discharge to
be entered in the discharge Certificate in such cases will be:
"At his own request having been permitted to take up civil
appointment."
Service Limits
5. The service limits for retirement/discharge for the above
purpose will be as under:-
On Pre 25 Terms of On Post 25 Jan Terms of
Jan 65 Engagement 65 Engagement
Under SA 9/S/65 Under SAI 9/S/65
but who did not XXXX modified vide
opt for revised Govt. of India letter
terms and No.
conditions of A/110099/Policy/A
service vide G/PS
Govt. of India 2(c)/2085/S/D/AG
letter No. dated 16 Dec 76
A/10099/Policy/ and have opted new
AG/PS terms and
2(c)/2085/S/D/A conditions of
W.P.(C) 6311/2012 Page 16
G dated 16 Dec service under SAI
76 and SAI 1/S/76.
1/S/76.
(a) Ris/Sub 32 years of On completion On completion of
Maj service or of 32 years 32 years service or
on service or 50 attaining the age of
completion years of age or 4 52 years or 4 years
of 5 years years tenure, tenure, whichever is
tenure in the whichever is earlier.
rank, earlier.
whichever is
earlier.
(b) Ris/Sub 28 years On completion On completion of
of 28 years 28 years service or
service or 50 attaining age of 50
years of age years.
whichever is
earlier
(c)Nb 24 years On completion On completion of
Ris/Sub of 24 years of 24 years of service
service or 50 for those found
years of age unsuitable for
whichever is retention and 26
earlier. years of service for
those found suitable
for retention or 50
years of age
whichever is
earlier.
(d) Dfv/Hav 21 years or On completion On completion of
period of of 22 years of 22 years of service
terms of service. for those found
engagement unsuitable for
retention and 24
years of service for
those found suitable
for retention.
(e) L Div/Nk 20 years or On completion On completion of
W.P.(C) 6311/2012 Page 17
period of of 20 years of 20 years of service
terms of service. for those found
engagement unsuitable for
retention and 22
years for those
found suitable for
retention or 47
years of age
whichever is
earlier.
(f) Total period On completion 15 years of service
Sowar/Sepoy of colour of colour service or attainment of 40
service for for which years of age in
which engaged. respect of personnel
enrolled. belonging to trades
as given in
Annexure „A‟ and
18 years of service
or 46 years of age
in respect of
personnel
belonging to trades
as given in
Annexure „B‟ to SAI
1/S/76.
These limits are equally applicable to the category of clerks also.
AO 814/73 is hereby cancelled."
19. As a plain reading of the above circular would reveal, it deals
with the eligibility of certain category of army personnel wishing to
seek discharge from the Force, and seek civilian employment. In this
context, there is a twin criteria: one, the personnel applying should do
so "Within one year of the date of retirement which includes the
period of leave pending retirement" [Para 1 (a)]. The second one,
W.P.(C) 6311/2012 Page 18
relevant for the present purpose, is Para 5, which sets the service
periods, after which personnel holding various ranks can apply for
such release. There is no dispute that the petitioner fulfilled the
criteria. As discussed previously, Para 1 (a) - quoted above- has to be
construed reasonably, especially in the context of public employment,
where the selection process could take several months, if not years.
To insist that the candidate wait for one year or less before retirement,
even though the appointment itself might mature at a time when the
incumbent is left with less than a year to retire, under these
circumstances, would defeat the purpose of enabling the individual
the chance of securing a civilian or public appointment of his choice.
That the respondents construed this condition reasonably and in the
manner indicated by the court, is evident from the first no objection
certificate issued to the petitioner in April, 2011, which was later
restored on 08-09-2011. The Army has no explanation why the
certificate was cancelled on the very day the results for the post were
compiled by the third respondent. It is also significant that though the
post advertised in this case is a civilian post, the employer is the Army
itself. The lack of any explanation on this aspect, as well as the lack of
explanation why the results were not declared even a year later- in
September 2012, when the petitioner sought replies to his queries
under RTI in this regard, is extremely significant. Though the Court
cannot return a finding of mala fides on the part of any particular
officer, it is self-evident that this delay and the series of events helped
some other candidate or candidates. In any case, there is no
explanation at all on these two aspects - which renders the
W.P.(C) 6311/2012 Page 19
cancellation of the certificate, the delay in announcing the results, and
cancellation of the petitioner‟s candidature itself arbitrary.
20. This Court also finds meritless the respondents‟ contention that
once the petitioner willingly accepted the promotion it amounted to a
waiver of his candidature for the civil post under consideration.
Waiver means abandonment of a right. For there to be a valid waiver,
it is essential that there be an "intentional and voluntary
relinquishment of a known right or such conduct as warrants the
inference of the relinquishment of such right". There can be no waiver
unless the person purportedly waiving is aware about his right (which
is being waived) and with full knowledge of such right, he
intentionally abandons it. (Ref.: Provash Chandra Dalui and Anr. v.
Biswanath Banerjee and Anr., AIR 1989 SC 1834; Motilal Padampat
Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors., AIR 1979 SC
621). Here in this case, the results of the selection process for the civil
post, in which the petitioner ranked first, were not announced until
August 2012. Thus, he cannot be said to have had any knowledge
about his entitlement (upon standing first in the selection process) to
the civil post. Consequently, his acceptance of the promotion cannot
amount to waiver of his claim to the civilian post, to which he had
been selected, but not appointed. Moreover, the lack of knowledge on
part of the petitioner was due to the non-declaration of the results. He
cannot be the sufferer due to this. Furthermore, the entire sequence of
facts has resulted in a Kafkaesque situation whereby the petitioner is
without employment, even after being promoted (an event which
resulted in the impugned cancellation of his candidature) and at the
W.P.(C) 6311/2012 Page 20
same time not being appointed to the civilian post, despite being the
most meritorious. This is clearly a result of the untenable and arbitrary
interpretation placed by the respondents on AO 78/1979 and their
assumption that he waived his right to be considered for the civilian
post because he accepted the promotional post in November 2011.
21. Sh. Sanjay Kumar, the sixth respondent, was impleaded by
application (C.M. 17433/2012) on 17.10.2012. In C.M. No.
16865/2012, the Court had directed that his appointment would be
subject to the final outcome of these proceedings. Having regard to
the overall conspectus of circumstances, the court is of opinion that
his appointment could have been sustained only upon rejection of the
petitioner‟s candidature, which has been held illegal by this Court. In
the circumstances, the writ petition is entitled to succeed. The
respondents are directed to process the petitioner‟s candidature for
appointment to the civilian post of Godown Overseer at the Equine
Breeding Stud (EBS), Babugarh, and issue the appointment letter
within six weeks. The writ petition is allowed in the above terms. No
costs.
S. RAVINDRA BHAT
(JUDGE)
SUDERSHAN KUMAR MISRA
(JUDGE)
APRIL 25, 2013
W.P.(C) 6311/2012 Page 21
