HAVILDAR CLERK HANS RAJ SHARMA ETC.versusUNION OF INDIA AND ORS.

          HAVILDAR CLERK HANS RAJ SHARMA ETC.                                 A
                           v.
                UNION OF INPIA AND ORS.

                         SEPTEMBER 9, 1994
                                                                              B
              [R.M. SARAI AND DR. A.S. ANAND, JJ.]

     Service Law :

      Anned Forced Medical Services-Selection and appointment-Per-
manent Commission-Anny Instructions-Alteration of selection proce-            C
dure-Applicability to earlier year's quota-Held not applicable-Directions
issued to allow pennanent commission to the two selectees of 1986 quota but
were not given pennanent Commission due to change in procedure.

       The appellants who are serving as Havildar Clerks in the Army D
Medical Corps applied for grant of Permanent Commission. They ap-
peared before the Service Selection Board which found them suitable to be
appointed and placed them 4th and 5th in the merit list. The recommen-
dation was forwarded to the Director General, Armed Forces Medical
Services (DGAFMS) for 'final selection' upto the required number. Sub-
sequently, the DGAFMS issued a letter by which the eligibility was strictly E
based on merit depending on the performance of the candidates before the
Board, and the number of chances would be restricted to six only. By a
subsequent letter the eligibility of the candidates was further made subject
to their performance before the Board followed by selection interview by
the Board as constituted by DGAFMS. In pursuance. of the amended F
eligibility criteria the appellants along with others were required to under-
go personality test in which candidates who were lower in order of merit
were selected. Against this the appellants approached the High Court but
were not successful. Hence this appeal.

      The appellants contended that in vi~ of the vigorous selection held G
by the Board the expression 'final selection' in the Army Instructions
should be read and understood as issuing of the appointment Jetter upto ·
the required number; and that the power of 'final selection' is given to the
Director General because the vacancies are not notified and the knowledge
of the required number is always within his knowledge.                       H
                                    339
    340                   SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

A          The respondents contended that the language used in the Army
    Instructions leave no scope for argument that the selection made by the
    Board was final; and that competency and efficiency being the hall mark
    of the army selection, not only physical test, but also personality test which
    makes a person suitable for the job of Permanent Commission, was
    necessary.
B
          Allowing the appeal, this· Court

          HELD : 1. Since the Department till 1987 adopted the practice of
                                                                                     ...
    appointing candidates in order of merit on the recommendation made by
    the Board, and the procedure was altered from May 1987 which .did not
C   apply to 1986 quota the respondents were not justified is not following the
    recommendation in the case of appellants and denying them Permanent
    Commission to which they were entitled by virtue of their selection. [344-G]

          2. Since ·admittedly at least till 1987 the practice by the Department
D was that the candidates who are recommended by the Board were not
    subjected to any interview and were appointed straightway by the Director
    General in accordance with the merit as determined by the Board, it is not
    necessary to decide the question of law raised on behalf of the appellants
    that the Army 'instructions issued in 1976 contemplated only one selection
E   or that the Army Instruction 69/76 amended from 1987 would apply to
    future selections only. [344-E-F]

          3. The respondents are directed to allow ~ermanent Commission in
    Army Medical Corps (Non~Technical) to the appellants from the date it
    was granted to other candidates selected for 1986 quota. The appellants
    shall be entitled notionally to all consequential benefits including promo-
F
    tion and seniority, except the payment of back wages. It is, however, made
    clear that while determining seniority of the appellants the seniority or
    promotion given to any selected candidate who is already working on a
    promotional post shall not be disturbed. [344-H; 345-A-B]

G         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2563 of
    1988 etc.

         From the Judgment and Order dated 20.1.88 of the Delhi High Court
    in C.W. No. 3467 of 1987.

H         Govind Mukhoty, N.N. Gupta, Randhir Jafu and S.K. Bhatacharya
                         H.R SHARMA v. U.0.1                           341

for the Appellants.                                                          A
      N.N. Goswami and Ms. Indra Sahni for the Respondents.

      The following Order of the Court was delivered :

      The question that arises for consideration in these two appeals is     B
whether Army Instruction Nos. 69-73 _issued on 11th September, 1976 for
Permanent Commission in the Army Medical Corps (Non-Technical) con-
template selections one by the Service Selection Board (for short 'the
Board') and another by the Director General, Armed Forces Medical
Services (DGAFMS) and in any case whether the Department was justified
in denying the Permanent Commission to the appellants for 1986 quota as      C
the practice prevalent in the Department till 1987 was to appoint can-
didates on basis of the list prepared by the Board in order of merit.

       The appellants who were enrolled in the Army as an Other Rank and
were serving on the date of selection in the rank of Havildar Clerk, Army D
Medical Corps, applied for grant of Permanent commission in the Army
Medical Corps for the quota of 1986. They having been found to be eligible
for the grant of the Commission as provided in the Army Instruction Nos.
69-73 of 1976 appeared before the Board which, after vigrous test held for
days, found them suitable to be appointed and placed them in the merit
list at 4th and 5th position. The recommendation of the Board was for- E
warded to DGAFMS for, 'final selection' upto the required number. In
May 1986, the DGAFMS had issued a letter wherein the eligibility for the
grant of Permanent Commission was to be strictly based on merit of the
candidates depending on their performance before the Board. It further ·.
provided that henceforth number of chances for grant of commission were F
to be restricted to six only. The letter, therefore, except for this restriction
did not envisage any change in the method of selection. Even the interview
for personality test was to be held by the Board. This proce.dure underwent
further change and by letter dated 5th May 1987 the eligibility of the
candidates was further made subject to their' performance in the Board
'followed by selection interview by the board as constituted by DGAFMS G
if the candidates are otherwise eligible as per AI 69/76 as amended'. It
appears in pursuance of this amended eligibility criteria the appellants
along with others were required to undergo personality test in which the
candidates who were lower in order of merit were selected. Against this
selection appellants approached the High Court, but their writ petitions H
    342                                    .
                            SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R:

A were dismissed as their selection was in accordance with the Army Instruc-
    tions issued in 1976.                                ·

         The relevant portion of the Army Instructions on which there has
    been divergence and which have been subject matter of argument in this
    Court is extracted below :
B
             "Eligible candidates will appear before the Services selection
             Board convened by the Adjutant General's Branch. The Services
             Selection Board will ·grade candidates according to their suitability
             and forward the completed application forms including their
             recommendations and gradiqg to DGAFMS for final selection
c            upto the required number".

         The claim of the appellants is that in view of the vigorous selection
   which is held by the Board, the expression 'final selection' in the Instruc-
   tions should be read and understood as issuing of the appointment letter
D upto the required number. The learned counsel urged that this power has
   been given under the Instructions to the Director General because the
 · vacancies are not notified and the knowledge of the required number is
   always within the knowledge of the Director General. On the other hand,
   the learned counsel appearing for the Union of India urged that the
   language used in the Instructions left no scope for argument that the
E selection made by the Board was final. The learned counsel urged that
   since competency and efficiency is the hallmark of the army selection,
   therefore, it is not only physical test which makes a person suitable for the
   job of Permanent Commission, but he is also required to undergo per-
   sonality test. It is not necessary to express any opinion on this question as
F the appellants had further specifically claimed in the Special Leave Petition
   that the Department has never deviated from the selection made by the
   Board and at no point of time the candidates recommended for appoint-
   ment were ever subjected to .a personality test by the Director General.
   Since the reply of the Union of India was not satisfactory on this aspect,
G this Court after hearing learned counsel for the parties passed the following
   Order on 7th October, 1993:

             "The main rather the only conµoversy in this appeal is whether for
             grant of permanent commission in Army Medical Corps (Non-
             Technical) an eligible candidate was to undergo two selections,
H            one, by the Service Selection Board and another by the Director
                          H.R. SHARMA v. U.0.1.                         343

          General, Armed Forces, Medical Services (DGAFMS) in 1987. A
          The instructions issued in 1976 are not very clear. In one of the
          appeals it is claimed that the department resorted to second and
          final selection by D.G.A.F.M.S. for the first time in 1987. The reply
          to this averment by the Union is vague. In fact it is stated that it
          did not need any comment. In our opinion this requires clarifica- B
          tion. We, therefore, permit the Union of India to file a supplemen-
          tary counter-affidavit within six weeks from today explaining the
          practice which was prevalent in the Department from 1976 to 1987
          and whether after the recommendations were made by the Service
          Selection Board, any further interview was held for final selection
          by D.G.A.F.M.S. or not. Details of selections shall also be fur- C
          nished. The affidavit shall further explain if prior to 1987 there was
          divergence in selections made by the Board and D.G.A.F.M.S., to
          what extent.

             The learned counsel for Union of India shall further produce     D
          the records for perusal by this Court on the next date.

    ...      List as part-heard immediately after six weeks" .

The Union, however, did not file any affidavit and, therefore, when the
appeal was listed and heard on next date, the Court passed the following      E
Order:

          "On 7th October, 1993 an order was passed by this Court ditecting
          the learned counsel for Union of India to file a supplementary
          country-affidavit and to produce the record. Six weeks' time was
          granted for this purpose. Today when the case was taken up the F
          learned counsel for Union of India Shri Goswami stated that he
          came to know of the order only today. He did not want to explain
          nor put up any excuse for non-filing of the affidavit. But he made
          a request that as a last chance three weeks' time may be allowed
          to him to comply with the order of the Court. Although the conduct G
          of Union of India cannot be commended but considering the
          importance of the matter the request is accepted and three weeks'
          time is allowed as a last chance. It is made clear that in case the
          affidavit is not filed or the record is not produced the Court may
          be left with no_ option except to draw an adverse inference against
          the respondent."                                                    H
    344                   SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.

A In pursuance of these Orders, the supplementary counter-affidavit has
    been filed by the Union of India. The two paragraphs which are relevant
    are extracted below :

             "The Hon'ble Court may kindly appreciate that the rules are
             framed in the service keeping in view the service requirements and
B            they can be changed in the interest of the service by the competent
             authority as the when required. In this particular case too, the new
             system of final selection interview was introduced by the DGAFMS
             to have a better selection procedure under the powers vested in
             him. Above all commission cases are examined by the Ministry of
c            Defence in their all proximity of governing rules and regulations
             and finally cleared, after obtaining the approval of Raksha Rajya
             Mantri.

                As already explained above prior to 1987 when interviews for
             1986 years quota was held the candidates were being commissioned
D            from amongst the list forwarded by the SSB strictly on the basis
             of merit and no further interviews were held. Since the final
             selection was being made on the basis of SSB grading and \O final
             selection boards was being held there was no question of any
             divergence whatsoever on the final selection."
E The supplementary counter-affidavit filed by the Union supports the claims
  of the appellants that at least till 1987 the practice followed by the Depart-
  ment was that the candidates who were recommended by the Board were
  not subjected to any interview and were appointed straightaway by the
  Director General in accordance with the merit as determined by the Board.
F In view of thi~ affidavit, it does not appear necessary to decide the question
  of law raised on behalf of the appellants that the Army Instructions issued
  in 1976 contemplated only one selection or that the Army Instruction 69-76
  amended from 1987 would apply to future selections only. Since the
  Department till 1987 adopted the practice of appointing candidates in
G order of merit on the recommendation made by the Board,· and the
  procedure ~as altered from May 1987 which did not apply to 1986 quota
  the respondents were not justified in not following the recommendation in
  the case of appellants and denying them Permanent Commission to which
  they were entitled by virtue of their selection.

H         In the result, these appeals succeed and are allowed. The respon-
                         H.R. SHARMA v. U.0.1.                         345

dents are directed to allow Permanent Commission in the Army Medical          A
Corps (Non-Technical) to the appellants from the date it was granted to
other candidates selected for 1986 quota. The appellants shall be entitJed
notionally to all consequential benefits including promotion and seniority,
except the payment of back wages. It is, however, made clear that while
determining seniority of the appellants the seniority or promotion given to   B
any selected candidate who is already working on a promotional post shall
not be disturbed. Parties shall bear their own costs.

G.N.                                                      Appeal allowed.