Bharat Kumar vs Union Of India And Others
2016 Latest Caselaw 3593 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

      REVIEW PET. NO.158/2014 & CM No. 4472/2014 in
+                   W.P.(C) 4566/2012
                          Date of decision : 13th May, 2016

       BHARAT KUMAR                           ..... Petitioner
                  Through:               Mr.H.S. Tiwari, Adv.
                          versus
       UNION OF INDIA AND OTHERS ..... Respondents
                     Through: Mr. Ankur Chhibber and Mr.
                              Manu Padalia, Advs.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA

                      JUDGMENT (ORAL)

GITA MITTAL, J.

CM No.4472/2014 Heard.

For the reasons stated, the delay of 95 days in filing the review petition is condoned.

The application is disposed of.

REVIEW PET. NO.158/2014

1. We have heard learned counsel for the parties. The respondents have filed the present petition seeking review of our order dated 3rd December, 2013 whereby we had allowed the writ petition of the petitioner challenging the declaration of his medical

unfitness for joining the National Defence Academy in the 128 th course for all three services by the Medical Board as well as the Review Medical Board on account of hypertension. While allowing the prayer in the petition, we had inter alia directed as follows :

"(i) The respondents shall issue a formal joining instructions to the petitioner within a period of two weeks from today in order to enable him to commence training w.e.f. 2nd January, 2014.

(ii) The petitioner shall be entitled to notional Seniority and shall be placed immediately above the person/batch mate who was lower in merit in the selection process for 128 NDA Course.

(iii) It shall be open to the respondents to take such steps as necessary or possible which may include extra training hours; utilization of weekends and vacations' etc and any other measure so that the petitioner completes his training expeditiously and ultimately reaches the position of his batchmates, in case, it is possible to accommodate the petitioner's training in the above circumstances."

2. It is undisputed that the petitioner was issued formal joining instructions and he actually joined his training at the NDA. However, on account of passage of time, the petitioner could join only the 131st course.

3. The review petitioner has submitted that the training course entitles a candidate to a Bachelor decree in the Jawahar Lal University. Inasmuch as the petitioner did not commence his training with the 128th course, in case a direction for granting the petitioner the benefit of seniority is maintained, it would not be

possible for the petitioner to complete the three year academic course required to be completed for securing the mandatory graduation degree. Additionally, the review petitioner has detailed the deficiency which would result in the petitioner's training if the direction to give him benefit of seniority is maintained as against the other candidates who have participated in the full training as part of the 128th course. The details in this regard have been set out in para 14B of the review petition which for reasons of expediency are set out hereunder :

       "14. xxx                  xxx          xxx

       B.      Training

       (i)    Training at National Defence Academy is

scientifically designed so as to ensure that Cadets acquired Body Strength, Basic Military Bearing and Etiquettes and Military Skills in a gradual systematic manner and pass out from Academy as a Scholar Warrior.

(ii) The structured Training at NDA includes Physical Training, Drill, Equestrian Training, Academics, Service Training and Joint Training. The Syllabi is prepared in such a manner that the level of difficulty and hardship of Training is increased progressively so as to ensure that the Cadet is able to cope up with the pressure easily and be able to attain requisite physical and academic standard and acquire mental and moral qualities which are crucial for his progressive and continued development as an officer of the Armed Forces.

(iii) Allowing Cadet Bharat Kumar to transit with 128th Course will not be a viable option as he has already missed 18 months of vital training. It will be very difficult for the individual to match up with the overall standards of Cadets of 128th Course which will

be very intimidating for the individual and will adversely affect his morale.

(iv) Details of essential period 'missed' by Cadet Bharat Kumar over 18 months are enumerated below :

       Subject          I Term        II Term   III Term      Total
       PT/Swimming 70                    72         72         214
       Drill            42               40         40         122

       Joint Training   42               64*        32         138

       * Incl. 24 periods of Camp Greenhorn.

(v) Various physical training standards to be achieved in various terms are attached as Appx 'B'."

4. The petitioner does not dispute the above requirements set out by the respondents. No reply even has been filed to the review petition. As set out in para 14 of the review petition, it is therefore, obvious that the petitioner would not either be able to complete the academic course or acquire the technical proficiency which has been acquired by other candidates who have undergone or are undergoing the 128th course, in case the direction at Sr.No.2 of para 3 in the order dated 3rd December, 2013 was maintained. The petitioner admittedly, has joined the 131st course.

5. These aspects were not brought to our notice while we had passed the order dated 3rd December, 2013 resulting in the error in issuing the directions as Sr. No.2.

6. In view of the above, the review petition is allowed and it is directed that the petitioner shall be entitled to due seniority for the 131st NDA course which he has joined and shall be given seniority

as per the merit secured by him as per the rules of evaluation of the respondent.

This review petition is allowed in the above terms.

GITA MITTAL, J

DEEPA SHARMA, J MAY 13, 2016 aj