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RAJENDRA SINGH BHAGOR & OTHERS versus CHIEF OF ARMY STAFF & ORS.

High Court of Judicature at Allahabad

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Rajendra Singh Bhagor & Others v. Chief Of Army Staff & Ors. - WRIT - A No. 8876 of 2002 [2003] RD-AH 368 (9 October 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                  Judgment reserved on 8.8.2003

                                                                  Judgment delivered on 9.10.2003

Civil Misc. Writ Petition No. 8876 of 2002

Rajendra Singh Bhagor and others              ...                     Petitioners

                                                                       Versus

Chief of the Army Staff, New Delhi

and others                                                          ...                   Respondents.

                                                       AND

Civil Misc. Writ Petition No. 16576 of 2002

Raj Kumar and others                                        ...                  Petitioner

                                                                      Versus

Chief of the Army Staff, New Delhi

and others.                                                          ...                 Respondents.

HON'BLE SUNIL AMBWANI, J.

Heard Sri Ashok Khare, Senior Advocate, assisted by Sri Vikram D. Chauhan for petitioners and Sri Ajit Kumar Singh as well as Sri Anup Kumar Srivastava, Additional Standing Counsel, Central Government for respondents.

Union of India was impleaded on 8.8.2003 as party-respondent No. 4,  through Secretary, Ministry of Defence, New Delhi in  the writ petition.  A counter affidavit of Major R.K. Lakshman, Adjutant has been filed, and thus no further reply is necessary after impleadment of Union of India.  Additional Standing Counsel has  not made any request  for any further time to file reply.  With the consent of parties, the matter was heard on merits.

The  petitioners have challenged orders by which they were discharged from training as Soldier Clerk (General Duty) and have prayed for a direction to the respondents to allow them to complete training, and to grant them postings within a period to be specified by the Court.  

The facts giving rise to writ petition No. 8876 of 2002 are that petitioners appeared in recruitment  of Soldier Clerk ( General Duty) and

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Soldier Store Keeper Technical, in Sikh Light Infantry Regiment,  initiated in the month of October, 2000.  After a physical test followed by medical examination and a written examination, the petitioners were enrolled  and  sent for training.    Screening / Physical test of petitioners 1,2,3 & 5 was taken in Branch Recruiting Office, Agra in January, 2001.  Petitioner No. 4 was subjected to  these test on 2nd January, 2001, at the Sikh Light Infantry Regimental Centre, Farrukhabad.  After enrolment, all the petitioners were sent to  platoon no. 26 of the Sikh Light Infantry Regimental Centre, Fatehgarh for Basic Military Training(BMT).   As  part of professional training Recruit Clerks have to  pass a proficiency and Aptitude Test (PAT).  It was conducted for recruit clerks of the platoon no. 26 on 9.6.2001 (First chance).   The second chance in this test was given on 23.6.2001, and the third chance was given on 13.7.2001.  All the petitioners failed in the first chance.  In the second chance, petitioners 1,2 & 3 namely,- Rejendra Singh Bhagor, Mahendra Kumar and Din Dayal Sharma Kaushik, were declared to have passed the test, whereas petitioners 4 and 5 failed.  After four weeks of training and coaching all the petitioners were given third chance on 13.7.2001 in which petitioners 4 & 5 again failed.  After 19 weeks of training, the entire platoon no. 26 and 27 were sent for 28 days leave from 23.7.2001 to 19.8.2001.  Their result were, however, was not declared by that time, as most of the recruits had failed in Proficiency and Aptitude Test  even after two extra chances.  During the period of their leave, the policy of conducting Proficiency and Aptitude Test  for recruit clerk namely giving a third chance was reviewed by the Army Headquarter vide their letter No. 20030/ACTS/Infantry-2 dated 13 July, 2001.  On receipt of this letter, the Sikkh Regimental Centre decided on 24.7.2001 to cancel the Proficiency and Aptitude Test ( all the three chances) conducted for recruit clerks during the month  of June and July, 2001.  These tests were accordingly cancelled and instructions were issued by Training Cell Inter Office Note No. 1020/GT dated 24 July 2001 for conducting of first Proficiency and Aptitude Test on arrival of recruits from leave, and to give failure recruits, a  second chance after four weeks.   As per Army Headquarters letter No. 20030/ACTS/Infantry dated 13 July, 2001, Recruits Clerks who do not obtain minimum 40% marks and do not

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qualify these tests in two chances, were not allowed to continue technical training.  They were either required to be remustered in other trade, or disposed off as per existing instructions on the subject.  Accordingly, on the arrival of the trainees from leave  the training commenced on 20th Aug. 2001. The first Proficiency and Aptitude Test was conducted on 27.8.2001,  second test was conducted after coaching on 27.9.2001 in which ten recruit clerks out of 28, passed.   The  third and final test was conducted on 15.10.2001.  All the petitioners  failed in these tests, and they were discharged from service on 30.11.2001 under Army Rule 13(3) item III (iv) of the Army Rules, 1954 being unlikely to become an efficient soldier.

In writ petition No. 16526 of 2002 the facts are almost identical.  Petitioner no. 1 Raj Kumar failed in all the three chances.  Petitioner No. 2 Praveen Sharma  passed the PAT in second chance by obtaining 40% marks, and petitioner no. 3, Rajesh Kumar passed the  Test in first chance by obtaining 44% marks.  These tests were conducted as per Army Headquarters letter No. 20030/ACTS/INF-2 dated 28.2.2001, which was modified by letter dated 13.7.2001.  The result of June and July were communicated to the Commandant of the Centre.  He found these results  to be very poor and not up to the mark, and took a decision  in accordance with the Army Headquarters letter dated 13.7.2001 in consultation with the training team to cancel the Proficiency and Aptitude Tests and to conduct fresh Proficiency and Aptitude Tests after arrival of the recruits from their leave.  The fresh Proficiency and Aptitude Tests were taken on 27.8,.2001, 27.9.2001 and 15.10.2001.   All the three petitioners failed in al the three chances.  Willingness to remuster was taken from all these recruits.  Those who have their willingness to be remustered were retained in Service and remaining unwilling recruits including the petitioners, were discharged after a show cause notice, as above.

On the aforesaid facts summarized from the pleadings of the parties, Sri Ashok Khare, Senior Counsel for the petitioners submits that petitioners 1,2 & 3 in writ petition No. 8876 of 2002 and petitioner nos. 2 & 3 in other writ petition No. 16526 of 2002 passed Proficiency and Aptitude Test before the policy was revised vide Army Headquarters letter dated 13.7.2001.  There was absolutely no reason to cancel their results

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and to allow them three chances afresh.  According to Sri Khare, the decision taken to conduct fresh Proficiency and Aptitude Tests of recruits/clerks who had passed in their earlier attempts, was  arbitrary and unreasonable.  The policy for conducting  Proficiency and Aptitude Test of recruits/clerks was revised on 28.2.2001 and was modified by Army Headquarters letter dated 13.7.2001.  The modification was only to the effect that the proficiency and aptitude test instead of being conducted alaong with  Basic Military Training was to be conducted after  the Basic Military Training.  Whereas recruits who obtined  40% marks in PAT were considered qualified to continue with technical training, the failures with an  extra coaching for two weeks were to be  tested once again immediately after completion of  Basic Military Training.  Recruits who failed in the first PAT were to be advised to improve their competencies during the leave granted at the end of Basic Military Training.   Extra coaching was required to be organized for them during the leave period, and that they were required to be impressed that failure in second PAT wil be rendered ineligible for technical training. The policy of allowing third and last PAT  was given up in the policy dated 13.7.2001 and that one additional opportunity of second PAT was to be conducted on their return from leave.   The successful candidates were to  be allowed to continue for technical training.   This policy was not applicable to those candidates who had passed PAT in their chances given to them on 9.10.2001, 23.6.2001 and 13.7.2001. There was absolutely no justification to treat them as failure after modification of the policy which came into effect subsequent to their third chance.  The decision taken and communicated by Sri R.P. Singh, Capt. Offg. GSO1 (Trg) dated 24.7.2001  to subject petitioner all over again to fetch them two additional chances after return was  arbitrary and was not in consonance with the modification.  He submits that modified policy by Army letter dated 13.7.2001 did not and could not effect those recruits who had passed PAT before the modification was notified.

Learned Additional Standing Counsel of Central Government states that all the recruits were under training.   Their technical training had not come to an end, and that even if they passed in the first chances, since the policy was revised by Government Order dated 13.7.2001, the

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decision was taken to subject them to improve by giving them  two chance as per revised policy.  It is submitted that the decision was  taken as almost all recruits had failed and those who passed did not achieve sufficient number of marks. It is submitted that the successful completion of training and passing of test is to be left in the hands of the officers of the training centre and that the court should be slow in interfering in these matters.   Most of the recruits who had passed in the first three chance were border line cases and had obtained marks between 40% to 45%.   The result was very poor and thus the decision was taken to  subject them to PAT all over again by giving them two chance under  the revised policy dated 13.7.2001.  Those who were willing to be remustered in Army and to change their trade/category were permitted to change and to continue with their training.  

On the closure of ACTS Aurangabal technical training of clerks (GD) and NCO clerks courses were being conducted under the arrangement of respective regimental training centres.  The policies erstwhile in vogue in ACTS, was made applicable in regimental centres with certain amendments/modifications to suit the changed  environment.  The Army Headquarters found that the passing marks were set at a ridiculously low level of 15% and no clear instructions were provided to deal with failures.  By increasing the pass marks and confining failures to two more tests a letter dated 28.2..2001 was issued by Director General of Infantry (Inf-2), General Staff Branch, Army Headquarters, New Delhi.  Within a short span of time the matter was again deliberated, during 13th Infantry Centre Commandant's  conference and a general consensus was reached for effecting minor modification to make the test more practicable, and  these modifications as detailed above were notified on 13.7.2001.  It is admitted in the counter affidavit that petitioners 1,2 & 3 in writ petition No. 8876 of 2002, and petitioners 2 and 3 in writ petition No. 16526 of 2002  passed in PAT on securing 40% or more marks.   Whereas the first three writ petitioners in the first writ petition  passed PAT in their second chance on 23.6.2001, petitioners 2 and 3 in second writ petition passed proficiency and aptitude test, in their second and first chance on 23.6.2001 and 9.6.2001 respectively.  They passed  proficiency and aptitude test before modification of the policy on 13.7.2001.  There is no

6

indication in the revised policy that it will be applicable retrospectively or will affect those recruits who had passed the test in their first three chances in pursuance of the policy letter dated 28.2.2001.  The last and third chance in respect of recruit clerks of platoon no,. 26 was given on 13.7.2001, which was  incidentally the date on which policy was notified.  By this date the above referred petitioners had passed the test and were eligible to continue for technical training on their return from leave.  The Basic Military Training is for 19 weeks which commenced from 12.2.2001.  The first proficiency and aptitude test was organized after completion of Basic Military Training on 9.6.2001.  After two weeks they were given second chance on 23.6.2001 in which some of the petitioners passed.  There was no occasion for allowing those who had passed the test in second chance to appear in third chance on 13.7.2001. At the time of their recruitment and initiation of Basic Military Training, petitioners training was regulated by policy letter dated 28.2.2001  and they were  clearly informed that they will be give three chance.  Petitioners 1,2 & 3 in first writ petition and the petitioners 2 and 3 in the second writ petition passed proficiency and aptitude test in the first two chances.  They, therefore, could not have been subjected to revised policy.  

The reasons assigned for cancelling the first three PAT's cannot be sustained.  Although the satisfaction that a trainee has completed a training successfully is that of the Officer Incharge  of the Training Centre, he can not act arbitrarily, against the policy laid down by Army Headquarters.  In order to ensure  equality before law, the training centre was required to adhere the policy  laid down by Army Headquarters.  The standard set for pass mark was increased from 15% to 40%, which was decided to be sufficient to pass the test and to continue with Basic Military/Technical Training.  Once the Army Headquarters laid down this policy and standard, it was not open to officer Incharge  of the training Centre to cancel the test on the ground that most of the candidates heave secured border line marks or little over pass marks. Their results  could not have been cancelled only on the ground that most of the candidates  secured less marks.  The decision is not only arbitrary but also violative of  the policy decision taken by the Army Headquarters.  The revised policy was not applicable to those who had joined training and had passed PAT

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They were also not given any notice or warning, that they will be subjected to PAT all over again.

There is no doubt that the satisfaction of successful completion of training must be left with those who are responsible to impart such training, and that the court has to be slow and should not interfere with a policy decision, taken while the training had not come to close.  The policy decisions have uncanny immunity from judicial scrutiny but they cannot escape the touch stone of Article 14 and 16 of the Constitution of India, and especially when the effect of the decision was that the trainees who had passed PAT, were to be thrown out of employment.  The earlier policy was revised providing for higher percentage of pass marks.  The commandant could have found a particular trainee lacking in the proficiency, but having raised the standard of pass marks from 15% to 40%, he could not have subjected them to tests again and again and then to revised policy.  The object of training of selected recruits was to train them and not to eliminate them, even if they met with the notified raised standards.  In Kailash Chandra Sharma Vs. State of Rajsthan (2002 (6) SCC 562), Supreme Court has laid down the parameters to test the policy decisions, in case of selections in para 11 as follows:

"11.  The first and foremost question that would arise for consideration in this group of appeals is, whether the circular dated 10.6.1998 providing for bonus marks for residents of the district concerned and the rural areas within that district is constitutionally valid, tested on the touchstone of Article 16 read with Article 14 of the Constitution.  It is on this aspect, learned Senior Counsel appearing for the candidates concerned have argued at length  with admirable clarity, making copious reference to several pronouncements of this Court.  There can be little doubt that the impugned circular is the product of the policy decision taken by the State Government.  Even then, as rightly pointed out by the High Court, such decision has to pass the test of Articles, 14 and 16 of the Constitution.  If the policy decision, which in the present case has the undoubted effect of deviating from the normal and salutary rule of selection based on merit is subversive of the doctrine of equality, it cannot sustain.  It should be free from the vice of arbitrariness and conform to the well-settled norms, both positive and negative, underlying Articles, 14 and 16, which together with Article 15 form part of the constitutional code of equality."

For the aforesaid reasons, I find that the respondents acted grossly arbitrary and unreasonably and also invoilation of existing policy

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laid down by Army Headquarters vide its policy letter dated 28.2.2001 in cancelling PAT's held conducted for recruit clerks on 9.10.2001, 23..6.2001 and 13.7.2001.

The writ petition is, accordingly, allowed.  Petitioners 1,2 & 3 namely,- Rajendra Singh Bhagor, Mahendra Kumar, and Deen Dayal Sharma Kaushik in writ petition No. 8876 of 2002 and petitioners 2 and 3 namely,- Praveen Kumar and Rajesh Kumar in writ petition No. 16526 of 2002 shall be declared to have been passed Proficiency and Aptitude Test and shall be allowed to continue in next batch of  training.  In case they are successful they will be allowed to  join as clerk (GD) in accordance with existing policy.  So far as rest of the petitioners are concerned they have failed in all the three chances and subsequent two chances given to them.  The writ petition in so far other petitioners are concerned,  fails and is dismissed.

Dt.9.10.2003

BM/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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