*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 1st 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