Nilesh Pathak vs Union Of India & Ors.

"12.

In our considered opinion, the respondents are under misconception that the protection of UHQ Quota in enrolment can be availed only in the case of one son as they mentioned one of the grounds to declare the enrolment of the applicant in the Army as fraudulent in the show cause notice for the reason that as per the policy, more than one son can avail the benefit of UHQ quota, however, the benefit of bonus marks i.e.20 could be availed only by one son and the second son cannot claim such bonus marks-7-as is apparent from the policy dated 26.06.2013 Annexure A-2. As per this document, the second son of an ex-serviceman can also obtain UHQ Quota Rally on the basis of Relationship Certificate of his brother since he is son of an ex-serviceman, hence entitled to physical relaxation based on Relationship Certificate of his father. However, the second son is not entitled to any bonus marks because such benefit can be availed only by one son. Therefore, there is no bar on availing UHQ Quota by the second son and the only bar is that bonus marks will not be given to second son. If it is so, the very basis for issuance of show cause notice to the applicant will go. The stand of the respondents that father of the applicant has concealed the benefit of UHQ Quota already availed by his elder son in the Sponsorship Certificate issued at the time of enrolment of the applicant in the Army, hence the enrolment of the applicant is fraudulent is far fetched."

"The subsequent Bench of equal strength as the previous Bench adjudicating a lis, is bound to follow the decision of the previous Bench of coordinate strength in relation to the ratio decidendi and principle laid down in an adjudication;

However, merely where the subsequent Bench of the Armed Forces Tribunal holds a different view on the basis of the law applicable to a given case and seeks to interpret the provisions of law differently, it is not open to the subsequent Bench to adjudicate differently and judicial discipline and judicial propriety demand that the matter in such circumstances is| placed before, Hon’ble the Chairperson of the Armed Forces Tribunal to refer the matter to a Larger Bench for adjudication of the issue."

"9.

A bare perusal of the above would show that the second child is also entitled for the sponsorship certificate so as to get some physical relaxation but, the bonus marks are not to be given to the second child. This means that the sponsorship certificate can be given qua the second child but the second child is not to be given the bonus marks. Hence, terming that the sponsorship certificate given by the father of respondent No.2 is incorrect, 0sfather of respondent No.2 was given sponsorship certificate qua his first son as well, cannot be accepted."

"The grievance of the petitioner is that in the year 2015 he had participated in a rally for recruitment which is meant for recruitment under Unit Headquarters quota.

2.

Lt. Col. Sreekanth S has explained that there are two sources of recruitment, one is open rally and another is called Unit Headquarters rally. It is submitted that Unit Headquarters rally is a welfare measure for the wards of the regiment. Then, it is explained that 10% of the total allotment for the recruitment of the said year is allotted under the head of Unit Headquarters rally. It is submitted that this Unit Headquarters rally is to be conducted in such a manner that only ward of a serving or ex-servicemen will be entitled to recruitment. Attention is drawn to the policy dated 09.10.2007 enclosed as Annexure RP-5 in which in paragraph 2 it is mentioned as under:-

"2.

Vide letter under reference only one son/one real brother/one son-in-law/one legally adopted son have been brought under various Priorities for consideration of recruitment under Unit Headquarters Quota."

3.

In paragraph 3, it is mentioned that "3. Based on the above, only one son of SOS/SOEX/SOWW/SOW will be eligible for award of Bonus Marks for recruitment."

4.

Petitioner's contention is that he was not allotted any bonus marks as can be seen from Annexure P-8, wherein his name is mentioned at S.No.14 and no bonus marks were allotted to him.

5.

It is pointed that as per policy dated 16.04.2013, contained in Annexure RP-6, some clarifications have been given which reads as under:-

"1.

A point was raised during Annual Rtg Conf 2013 that all sons of serving /ex-servicemen/ war widows/widows should be issued relationship cert as physical relaxation is applicable to all sons vide this HQ letter No. 62518/Rtg B (A) dt 21 Jan 2013.

2.

The policy on issue of relationship cart issued vide this HQ MP 8 of R) letter No. A/20182/MP B (I of R) (a) dt. 09 Sep 2010 did not restrict issue of relationship cart to only one son. The content was misinterpreted by Certain Record Offices.

3.

It is hereby ruled that relationship cert will be issued to all sons of serving /ex-servicemen/ war windows irrespective of being first son or not. Candidates will be screened bases on this relation ship cert and physical relaxation will be given at the time of rtg rallies.

4.

In case the Record offices have data available, with regards to relationship cert issued earlier to any, the same may be mentioned at Para 5 of Relationship cert otherwise Para 5 can be left blank.

5.

Bonus mks (which is applicable to only one son) at the time of preparation of merit list will be awarded cert and the based on verification of relationship endorsement by respective Record Office that the facility is being used by only one son.

6.

In case of sons of ex-servicemen / war windows / widows, who find it difficult to obtain relationship cert before the screening during Rtg Rallies, photocopy of discharge book duty aaosted by the village Sarpanch or Zila Sainik Board will be considered valid docu proving relationship. However, they would be allowed to appear in CEE only once they produce relationship cert issued from concerned Record Offices.

7.

Some Regt centres / Rtg agencies, are insisting on producing copy of pay book as per their internal SOPs. Ass the Pay book sys has been discontinued, the same is not read.

8.

HQ Rtg Zones are requested to disseminate the same to all AROs under their jurisdiction."

6.

Thus, reading this policy it is submitted that the decision to give allotment/relationship certificate to a single ward was changed to issuance of relationship certificate to all the wards and only facility which was denied was grant of bonus marks to the second ward.

7.

Lt. Col. Sreekanth. S. submits that this being a welfare measure relationship certificate is issued for various purposes and it will not automatically mean that petitioner became entitled for recruitment despite that facility being extended to his elder brother as ward of ex-servicemen.

8.

At this stage, it is pointed out that the affidavit which was sought from the petitioner was in terms of paragraph 8 of the order dated 08.11.2023 passed by Hon'ble Division Bench of Armed Forces Tribunal, Regional Bench Jabalpur in M.A. (EA) 152/2019 in O.A. No.41/2017, whereas prior to that Armed Forces Tribunal, Regional Bench Chandigarh at Chandimandir in T.A. No.26 of th 2015 (Arising out of O.A. No.181/2015, decided on 14 day of October, 2022), in paragraph 15 observed that "Even otherwise also, the ground canvassed by the respondents that the second son cannot avail UHQ Quota is far fetched in view of the policy Annexure A-2 which provides that the second son is also entitled to avail UHQ Quota but without any bonus marks."

9.

When the present case is examined in view of said facts, then a clarificatory order at Jabalpur without taking into consideration order passed at Chandigarh by the Bench of a similar strength which has referred to a policy dated 26.06.2013 as Annexure A-2, needs to be reconciled.

10.

With a view to have better appreciation of facts, respondents are directed to file an affidavit that how they will reconcile between the two orders of the same Armed Forces Tribunal at two different Benches and the order on which respondents are referring being later having been passed without taking into consideration the earlier order passed by the Chandigarh Bench, will have precedence or not?

11.

Let the aforesaid affidavit be filed within two weeks. List after two weeks in the week commencing 08.09.2025.

12.

Personal presence of the officer is dispensed with."

"Shri Ishan Soni fairly submits that he has enclosed copy of document No.9, which says that "the subsequent Bench of equal strength as the previous Bench adjudicating a lis, is bound to follow the decision of the previous Bench of coordinate strength in relation to the ratio decidendi and principle laid down in an adjudication;". Thus, it is fairly submitted that decision of Chandigarh Bench of Arms Force Tribunal is binding. It is also submitted that order is under challenge before the Punjab and Haryana High Court. It is fairly submitted that there is no stay from Punjab and Haryana High Court in O.A. No.57/2020 (RB, Jabalpur), which is Full Bench judgment answered by Arms Force Tribunal. In view of the such facts, Shri Ishan Soni fairly admits that they be granted some time to reconsider the case of the petitioner in the light of the decision of Chandigarh Bench dated 14.10.2022 in T.A. No.26/2015 arising out of O.A. No.181/2015. List this case in the week commencing 3rd November, 2025. It is made clear that order dated 08.11.2023 passed by the AFT shall not come in the way of consideration of the case of the petitioner in terms of the decision of the Co-ordinate Bench passed by the AFT at Chandigarh."

"16.

It is seen that the applicant has been subjected to the recruitment process which was being adopted for recruitment of Soldier (Tdn) as per policy dated 09.05.2007. He was placed at No. 3 in the merit list, but was relegated to No. 4, due to placement of a case of instant recruitment on top of the merit list, who should have been granted instant recruitment without any test. There is no policy to the effect that cases of instant enrolment have to be placed at top of the merit list for Soldier (Tdn) category. Thus, the respondents have erred in adopting a process that suffers from legal malice. The applicant had finished at No. 3 position in the merit list and would have been selected, if an arbitrary procedure had not been adopted by the respondents or was given the benefit of being placed at the top of merit list. Policy changes brought in cannot be given due cognizance in this matter for the reasons adverted to, earlier by us. Equity is favouring the applicant who he lost out due to the respondents adopting a flawed process of recruitment.

17.

In the result, the Original Application is liable to be allowed both on grounds of law and equity. It is learnt from the respondents, that the three candidates who had been selected during the course of the recruitment process and whose names figured at serial No.13, 15 and 18 (Annexure 5) of the merit list have already been enrolled and attested as Soldiers. Therefore, it would be in public interest to allow the three affected soldiers, to continue in service, as sufficient public expenditure has been incurred in their training and retention. It would be appropriate to utilize an additional vacancy to enrol the applicant as Soldier (Tdn)in the Army."

"3.

It is also reiterated and highlighted that providing an opportunity to the indl, he will still be bound to submit requisite affidavit and clear the physical and medical test. Since 2022 onwards, with the introduction of Agnipath Scheme, opportunity for recruitment can only be provided under this scheme as an Agniveer GD. Indl is 28 yrs old and currently above the permissible age limit of Agnipath Scheme also. At ‘this belated juncture providing an opportunity to the indl would be detrimental to the org."