The Non-Consideration Of Reasoning Before Dismissing/Discharging Services Of Persons In The Indian Army Is Bad In Law: SC

                    It is quite interesting to know that the Supreme Court in a recent, remarkable, robust and righteous judgment titled No.2809759H Ex-Recruit Babanna Machched vs Union of India & Ors in Civil Appeal Nos. 644-645 of 2017 and cited in Neutral Citation No.: 2024:INSC:95 that was pronounced as recently as on February 9, 2024 in the exercise of its civil appellate jurisdiction has deemed the discharge/dismissal from service of persons enrolled under the Indian Army as “bad in law” without the consideration of their explanation. It must be mentioned that the dispute centered primarily around the recruitment category of the appellants within the Unit Headquarters Quota (UHQ) system where the Court underscored the UHQ guidelines that priority was given to certain categories of personnel, inclusive of sons, grandsons of servicemen and ex-servicemen, brothers and other near relatives of those killed in service, wards who were fully dependent upon servicemen or ex-servicemen, sportsmen of merit and such other persons for whom there was a special recruitment. The appellants were enrolled and recruited by the Maratha Light Infantry Regimental Centre under the UHQ and had served for three years until they were issued a show case notice alleging that they had obtained enrollment in the Army through fake sports person certificates or false relationship certificates.          

                               At the very outset, this learned, laudable, landmark and latest judgment authored by Hon’ble Mr Justice Pankaj Mithal for a Bench of the Apex Court comprising of Hon’ble Ms Justice Bela M Trivedi and himself sets the ball in motion by first and foremost putting forth in para 1 that, “Learned counsel for the parties were heard.”

                                   To put things in perspective, the Bench envisages in para 2 that, “Instructions were issued from time to time with regard to enrollment into Army under the Unit Headquarters Quota (UHQ). The instructions as revised upto the year 1978, provided that Regiments/Corps have sanction to enroll 15 per cent of the total yearly demand released by the Additional Directorate of Recruiting to Zonal Recruiting Offices. This percentage was increased to 25 during the year 1981-82 and in March, 1983 this quota was further increased to 50 per cent. Since the Regiments/Corps could not fill up such large number of vacancies, to facilitate the enrollment, priority was provided to certain categories of personnel which included sons and grandsons of servicemen and ex-servicemen; brothers and other near relatives of those killed in battle or died in service; wards who were fully dependent upon servicemen or ex-servicemen; sportsmen of merit, and those for whom there was a special recruitment, e.g., Ladakh Scouts, Cavalry, Gorkha, Para, President Body Guard Regiments etc. It was further provided that Unit Headquarters Quota Enrollment shall give priority to the above categories and in case vacancies for recruitment remain available with Regimental Centre, personnel from open category based on merit may be taken.”

                                                        As it turned out, the Bench then enunciates in para 3 that, “In the light of the above instructions for recruitment under the Unit Headquarters, a news item was published for the purposes of recruitment inviting applications under the Unit Headquarters Quota. It appears that a large number of candidates including the appellants applied. The appellants were selected and were enrolled in the Army by the Maratha Light Infantry Regimental Centre (‘MLIRC’). After they had put in nearly three years of service, a show cause notice was issued to several of them alleging that they had obtained enrollment in the Army either on the basis of the fake sports person certificate or on the basis of false relationship certificate. On consideration of the reply of those persons, the services of about 52 of them were terminated. However, after some litigation, candidates belonging to the category of sportsmen of merit, were all reinstated. In regard to the fake relationship certificate, services of about 20 persons including the appellants were terminated out of which 4 persons are before this Court.”

                                                                     Truth be told, the Bench points out in para 4 that, “The case of all the four appellants is identical and is based upon similar facts and as such the appeals of all four of them were taken up together for consideration and are being disposed of by this common judgment.”

      Be it noted, the Bench notes in para 15 that, “The respondents have relied upon a newspaper clipping which was neither part of the record before the Tribunal or of these appeals but was passed over to this Court for the purposes of its perusal. The newspaper clipping dated 27.9.2009 as appearing in Deccan Herald as shown to this Court during the course of hearing is not part of the record. The respondents made no efforts to bring it on record at any stage, not even before this Court except for placing it across the Bar for our perusal. In such a scenario, it is not at all appropriate for this Court to consider and rely upon it. Nonetheless, a plain reading of it would reveal that it is not an advertisement inviting applications for enrollment/recruitment under the Unit Headquarters Quota. It is simply a news item published in the newspaper informing that such an exercise for enrollment/recruitment under the Unit Headquarters Quota is going to take place without specifically stating that general category candidates who do not have any relationship with servicemen/ex-servicemen are prohibited or barred from applying. On the contrary, the guidelines/instructions for recruitments under the enrollment/recruitment in Paragraph 7 clearly mentions about open category recruitment. It reads thus:

“7. Open Category: In case of Additional vacancies for recruitment available with Regimental Centre open category of personnel based on merit may be taken provided they meet the ___________.””

                               Do note, the Bench notes in para 16 that, “A simple reading of the above Paragraph 7 clearly belies the stand taken by the defence that the above enrollment/recruitment was only meant for the relatives of the servicemen/ex-servicemen and was not open for the general category.”

                 It cannot be glossed over that the Bench points out in para 19 that, “In the above discharge certificate or the order of the Commandant, there is no whisper that any inquiry was conducted to ascertain or find out as to whether the appellants had actually produced relationship certificates for the purposes of enrollment/recruitment in the Army. No finding has been recorded by the respondents that the appellants had as of fact, produced such certificates or that their explanation claiming that no such certificates were furnished by them is completely false. In effect, the authorities have not dealt with the above explanations/claims of the appellants.”

                                      Quite significantly, the Bench propounds in para 23 that, “In the case at hand, it was not the case of the respondents ever that the vacancies on which the appellants have been enrolled/recruited were only supposed to be filled up by the relatives of the servicemen/ex-servicemen and not by a general category person or that the posts advertised were only for the alleged reserved category. They never even took any defence based upon the newspaper clipping as referred to earlier. This is a subsequent improvement in their defence which as discussed earlier do not stand established. It is nothing but supplementing the reasoning of discharge/dismissal which is not contained in the order impugned. It is thus not permissible in law in view of Mohinder Singh Gill (supra).”

                   Most significantly, the Bench mandates in para 24 holding that, “In the end, we sum up our conclusions as under: –

(i) The recruitment under the Headquarter Quota was not confined to the priority/reserved class rather it was open for general category also to a limited extent;

(ii) There is no material on record to establish that the appellants had produced any relationship certificate to obtain enrollment; and

(iii) The discharge/dismissal of the appellants from service is vitiated for non-consideration of their specific case that they have actually not produced any relationship certificate for selection/recruitment as they never applied in the reserved category.”

                                                 As a corollary, the Bench then propounds in para 27 that, “In view of what have been said above and the legal position, as referred, the discharge/dismissal order of the appellants is certainly invalid for want of non-consideration of the plea taken by the appellants. Accordingly, we have no option but to set aside the impugned orders of discharge/dismissal dated 9.5.2013 and the judgment(s) and order(s) dated 06.03.2014 and 18.11.2015 passed by the Armed Forces Tribunal. The appellants shall be reinstated with all consequential benefits.”

             Finally, the Bench concludes by holding in para 28 that, “The appeals are allowed as aforesaid with no order as to costs.”

            All told, we thus see that the Apex Court has made it indubitably clear that the non-consideration of reasoning before dismissing/discharging services of persons in the Army is “bad in law”. The appellants thus very rightly get reinstated by this notable judgment as they were discharged/dismissed from the service of persons under the Indian Army without the consideration of their explanation and the appeals are allowed. No denying it!

Sanjeev Sirohi

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