CWP No.22222 of 2010 -1- In the High Court of Punjab and Haryana High Court, Chandigarh Date of decision: 01.06.2011 Sudershan Lamba Vs. Govt. of India and another Present: Mr. RK Malik, Senior Advocate, with Mr.Surender Lamba, Advocate,for the petitioner. Mr.SS Joshi, Advocate,for the respondents. PERMOD KOHLI, J. The petitioner is a Law Graduate having passed B.A./LL.B. (Hons) from the Panjab University, Chandigarh. He got enrolled with the Bar Council of Punjab and Haryana at, Chandigarh on 09.09.2009. He was also enrolled with the Bar Association of Punjab and Haryana High Court, Chandigarh. Respondent No.2 issued an advertisement for recruitment for the Short Service Commission in the Indian Army for Judge Advocate General Department (hereinafter referred to as the JAG Department). Seven vacancies were advertised for male and six for female. Educational qualifications prescribed were minimum 55% aggregate marks in LL.B. Degree (three years professional after graduation or five years after 10+2 examination). The candidates should be registered with the Bar Council of India/State. The method of selection was also prescribed in Clause 10 of the advertisement. The advertisement also contained the medical standard, CWP No.22222 of 2010 -2- apart from physical standards. The petitioner who was interested to join the Army in JAG department, applied in response to the aforesaid advertisement. He was required to appear before the Selection Board at Allabahad. The petitioner appeared before the Selection Board at Allahabad. He was selected and placed at serial No.12 of the merit list notified on 05.10.2010 (Annexure P-2). He was temporarily rejected on the basis of being over-weight and eye vision. He filed an Appeal before the Medical Board at Western Command Hospital, Chandi Mandir at Panchkula. He was declared fit by the Appeal Medical Board, Chandi Mandir (Panchkula). He was communicated about his selection at serial No.12 in the order of merit. Amongst the 12 selected candidates, three candidates, namely, Sudipta De Sarkar, Yogesh Kumar Saini and Karan Singla at serial Nos.6,7, and 10 respectively, were declared medically unfit. Thus, the candidates upto the serial No.10 were called for training at OTA, Chennai. The candidate who was selected at serial No.1 in order of merit, namely, Harpreet Singh has left the Course and at his place, the next candidate in order of merit, namely, Vishal Sharma, was called for training in the last week of October, 2010. After joining the course, Vishal Sharma also left the course leaving only six candidates who underwent the training against seven advertised vacancies. The petitioner being next in order of merit, approached the respondents personally and also made representation. It is stated that he was informed that next candidate in order of seniority shall be called for training. The petitioner being the next candidate in the merit, again represented for calling him for the training on the basis of his merit vide his representation Annexure P-3, but he was not called. It is under these circumstances that the petitioner has filed the CWP No.22222 of 2010 -3- present writ petition seeking a direction to the respondents to call him for current training course or in the next training session. It is stated that the training course is held twice in a year in the months of May and October. The petitioner has also mentioned that in the year 2009 only three posts for Short Service Commission of Man (NT) Course for JAG Department were advertised and nine candidates were called for training and admitted to the course. On that basis also, the petitioner is seeking a direction for his admission to the course. In the written statement filed by the respondents, all the facts pleaded in the writ petition have been admitted. It is admitted position that the petitioner was selected amongst first 12 candidates as against seven advertised vacancies and only six candidates have joined the course. It is also admitted that one vacancy is still available. It is also not in dispute that the petitioner is next in the order of merit and five out of the selectees, three selectees have been found medically unfit and two had left the course. Since the reply did not contain any averment regarding the joining of nine candidates against three advertised vacancies in the earlier selection made in the year 2009, the respondents were directed to file an affidavit in this regard vide order dated 18.03.2011. Additional affidavit has been filed. The respondents have admitted that against three advertised vacancies, nine candidates were selected and appointed in the year 2009. The only justification given is that keeping in view the administrative exigencies as also the substantial deficiencies existed, six more candidates were admitted to the course, even though only three vacancies were advertised. As regard the non admission of the petitioner to the course is CWP No.22222 of 2010 -4- concerned, the only ground raised in the reply is that it is a 49 weeks course and the duration of the course is significant for training. Late admission upto three weeks is allowed in view of the instructions dated 11.09.1996 (Annexure R-1) issued by the Directorate General of Military Training, General Staff Branch, Army Headquarters, New Delhi. From the instructions aforesaid, it appears that the late induction of the cadets is allowed in case of OTA three weeks. During the course of hearing, the petitioner even offered to join the next training course with further undertaking that he will not claim any salary till he is inducted in the training in the next batch. This fact is duly recorded in the zimini order dated 18.03.2011. The respondents were directed to seek instructions in this regard. No such instructions have been imparted. Mr. SS Joshi, learned Counsel, who is appearing on behalf of the respondents, was unable to make any comment on this offer of the petitioner. I have heard the learned counsel for the parties at length. The petitioner is a selected candidate. He has been selected on the basis of the Appeal Medical Board and was found fit for the post in question. Admittedly, he falls within the advertised vacancies. There does not seem to be any reason for not considering the petitioner for admission to the training course when he has also offered not to claim any right or emoluments. Annexure R-1, government instructions of 1996 issued by the Army Headquarters have been pressed into service to deny the admission to the petitioner despite his selection. As a matter of fact, the respondents are not adopting any uniform policy in this regard. In the year 2009, as against three advertised vacancies, nine candidates were admitted even when six CWP No.22222 of 2010 -5- more vacancies were not advertised. However, in the present case, despite the fact that the petitioner is a selected candidate and is within the advertised vacancies, he has been denied admission to the course and consequential appointment merely on the ground that the last selected candidate had left the course after three weeks of the commencement of the course and, thus, the petitioner could not be admitted. It is settled law that a selected candidate has no indefeasible right of appointment, however, the authorities should have valid reasons for denying the appointment after selection and must act bonafidely. In the present case, action of the respondents does not seem to be bonafide and reasonable. If the present course has already commenced, the petitioner could be conveniently detailed for the next training course. However, denying the right despite selection without any cogent reason, is an arbitrary action and is not justified. In the case of Asha Kaul (Mrs.) and another vs. State of Jammu and Kashmir and others, (1993) 2, Supreme Court Cases, 573, while considering the earlier judgments of the Hon'ble Supreme Court, it was observed as under:- “8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chandra Marwaha ; Mani Subrat Jain v. State of Haryana; State of Kerala v A Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise CWP No.22222 of 2010 -6- cannot be reduced to a farce. Having sent a requisition/request to the commission to select a particular number of candidates for a particular category, -in pursuance of which the commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government - the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification today. ............................................” “10. Looked at from the above standpoint, it appears that the Government's action in not approving the rest of the seven names in the select list is unsustainable but there are certain circumstances which induce us not to interfere in this matter.” In Asha Kaul's case (supra), however, Hon'ble the Supreme Court has declined to grant the relief in view of the lapse of the period of operation of the list. In the present case, the petitioner approached this Court immediately and it is not the case of the respondents that the list has expired under any rule. CWP No.22222 of 2010 -7- In view of the above, this petition is allowed. The respondents are directed to admit the petitioner in the next training course/session for the purpose of his appointment. 01.06.2011 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES