Karoon Sem vs Union Of India And Anr
2014 Latest Caselaw 3115 Del

$~7

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 5237/2012
        KAROON SEM                                           ..... Petitioner
                           Through:      Mr.Sameer Jain, Advocate

                           versus

        UNION OF INDIA AND ANR                               ..... Respondent

                           Through:      Dr. Ashwani Bharadwaj, Advocate

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI
                          ORDER

%                         15.07.2014

KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Article 226 of the Constitution of India,

petitioner is seeking issuance of writ/direction or order directing the

respondents to provide the benefit of letter dated 3.10.2008 and 14.5.2009

to the petitioner and refund the amount paid by the petitioner towards the

cost of training along with interest.

2. Grievance of the petitioner in the present writ petition filed under

Article 226 of the Constitution of India is that he had joined the National

Defence Academy in June 2006 after having cleared the National

Defence Academy examination conducted by the UPSC and had paid an

amount of Rs.5,09,400/- towards the cost of training charges to the

Academy but was not reimbursed the said amount after his candidature

was withdrawn by the NDA on disciplinary grounds as per the settled

criteria.

3. The facts of the case are not in dispute. However to throw light on

the short controversy involved in the present case, it would be pertinent to

mention that the petitioner had joined the National Defence Academy,

Khadakwasla, Pune in June 2006 and started participating in the officers'

pre-commission training after having cleared the NDA examination. On

2nd February 2008 he was withdrawn by the NDA on disciplinary grounds

and thus his name was struck off from the list of selected candidates with

effect from 7th April 2008. The petitioner has however paid an amount of

Rs.5,09,400/- towards the cost of training charges as levied by the

Academy. On 3rd October 2008, respondent No. 1 , Ministry of Defence,

Government of India issued a letter that conveyed about discontinuing the

earlier policy of recovering the cost of training from the cadets who were

also withdrawn by the NDA on disciplinary grounds.

4. In furtherance of the said decision, Ministry of Defence,

Government of India through another communication dated 14th May

2009 waived off the cost of training programme amounting to

Rs.2,44,46,924.46 with regard to 135 cadets who were also withdrawn on

disciplinary grounds from NDA from February 1978 to 03.10.2008.

However, the petitioner herein was not accorded the benefit of the said

policy. As per the petitioner the action of the Government in creating a

sub-classification within a Class is an utter violation of his fundamental

right granted to him under Article 14 of the Constitution of India and the

same is also discriminatory in nature. It is also the case of the petitioner

that two similarly situated persons cannot be treated differently simply

because the petitioner had already deposited the said amount while those

135 cadets did not deposit the cost of the training programme. One of the

cadet Mr. Varun Mishra was also granted the benefit of this policy by the

Division Bench of this court vide order dated 30.11.2009, whereby the

Division Bench allowed the writ petition bearing no. W.P.(C ) 5957 of

2008 and observed that the cadet is not required to pay any amount as

against the cost of his training campaign. Nevertheless, the grumble of

the petitioner is that 12 cadets including the petitioner were arbitrarily

denied the said benefit by the concerned authorities despite having

withdrawn their candidature between the requisite dates. Being aggrieved

of the alleged arbitrary policy, the father of the petitioner even made

multiple representations but in vain.

5. In opposition to the claim of the petitioner, the only ground raised

by the counsel for the Respondent is that the letter dated 14 th May 2008 is

prospective in nature and in the said letter, it was clearly mentioned that

the cases which were already settled will not be reopened. As per the

respondents the case of present petitioner was already over in the year

2008 and therefore, his claim for refund of the said amount could not be

reopened in terms of the letter dated 14th May 2009.

6. We have heard learned counsel for the parties and perused the

record of the case.

7. The stand taken by the respondents appear to the court as totally

irrational and illogical. It is quite amusing to find that the petitioner is

suffering because he had paid the amount of Rs.5,09,400/- towards his

training programme while 135 cadets who never paid the cost of the

training and who were also withdrawn on disciplinary grounds were

placed on better footing by waiving of the cost of their training

programme. The act of the respondent is not only iniquitous but is highly

discriminatory against the petitioner whose only fault was that he had

paid the cost of training. Every decision of the Government should be

uniform, just and fair to the similarly placed persons and to take any

decision favouring one set of candidates and disfavoring the remaining

set of candidates without there being any basis or rationale cannot stand

the test of reasonableness and fairness. Cadets placed on the same footing

cannot be treated in a biased manner. It is the quintessential feature of our

constitution that the law must prevail / operate equally on all persons

under like circumstances. In the present circumstances, we hardly find

any justification coming from the Government to the effect that why the

cases that were already settled would not be reopened.

8. Once the Government had taken a decision to waive of the cost of

training in respect of 135 cadets whose candidature was also withdrawn

on disciplinary grounds then no differentiation could have been made vis-

a-vis those candidates whose candidature was also withdrawn on

disciplinary ground but who had paid the cost of training. There is no

intelligent differentia or rationale in creating such a classification.

Finding the said decision of the Government totally unjust and iniquitous,

the writ petition filed by the petitioner is allowed and consequently, this

court deems it fit to issue a writ of mandamus directing the respondents to

provide the benefit of letter dated 3.10.2008 and 14.5.2009 to the

petitioner and refund the amount paid by the petitioner towards the cost

of training within a period of four weeks from the date of this order.

9. With aforesaid directions, this petition stands disposed of.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J

JULY 15, 2014 pkb