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Judgment
The main challenge in both these cases is to the new policy for selection of Indian Army Officers for Post Graduate Training (M. Tech Courses) at
IisT/IISc/DIAT/BARC dated 06.12.2018. The issue being common, we are disposing of these matters by this common order.
However, since the facts are slightly different, these have been mentioned wherever relevant.
Aggrieved by the order of the third respondent (Director General Military Training/MT-10) dated 03.01.2020 declaring their candidature 'ineligible'
for appearing in Centralised Selection Exam (CSE)2020 for selection for M. Tech Courses in 2020-2022, the applicants, officers in the rank of
Lieutenant Colonel/Major from the Corps of Engineers, have invoked the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal
Act, 2007 (hereinafter referred to as the Act), praying for the following reliefs:
(a) Quash the letters dated 06.12.2018 and 10.12.2019, which set out a new policy for ""Selection of Indian Army Officers for Post Graduate Training
(M. Tech) at IIsT/ IISc/DIAT/BARC"" and issue fresh policy in this regard;
(b) Quash the list of eligible/ineligible candidates for appearing in CSE-2020 issued vide impugned letter dated 03.01.2020 as well as the results of the
said exam; and
(c) Direct the respondents to allot additional chances for entrance exam for M. Tech Courses in 2021-2023 (and also in 2022-24 in case of the second
applicant), with all attendant benefits to the applicants.
The facts of the case, in brief, are that vide letter dated 06.12.2018, the third respondent issued a new policy for selection of Army officers for
attending M. Tech courses at civilian technological institutes, incorporating certain changes to the existing policy at that time viz. policy letter dated
11.12.2003 as modified by letter dated 19.08.2013. The earlier policy allowed officers to qualify for both DSSC/ DSTSC and M. Tech courses within
specified age limits, which was subsequently modified to the effect that an officer could qualify for either of these courses, but not both. As per this
earlier policy, once an officer had availed up to three unsuccessful chances for DSSC/DSTSC entrance exam, there was no bar on the number of
chances for M. Tech course that an officer of the Technical Arms could avail, provided he met the specified criteria, including age limit of 35/37
years, based on the type of entry. In the case of the applicants herein, at the time when the new policy was issued on 06.12.2018, they had already
availed of two/three chances for the DSSC/DSTSC exam and further, in July 2018, they had applied for appearing in the entrance exam (CSE-2019)
for the 2019-2021 course, in which they appeared in January 2019 but were not successful. At the time of applying for the CSE-2019 entrance exam,
they were aware that, in keeping with the extant rules (Policy of 2003 and 2013), they could appear for the exam again, i.e. for the 2020-2022 course
for the first applicant and for both 2020-2022 and 2021-23 courses in case of the second applicant (Maj Ravindra Singh Mahla). As per the applicants'
claim of their understanding of the new policy of December 2018, its provisions, in keeping with related provisions contained in the old policy,
protected their 'vested rights' thereto as well as those of other similarly situated officers, viz, officers commissioned prior to 2013, wherein, at
Appendix H of the new policy letter, it is provided that all previous attempts for M. Tech course by such officers would be counted as 'null and void'
and thus they could avail of up to a maximum of three fresh chances for M. Tech selection, provided they met the Qualitative Requirements (QR)
listed at Appendix A, more so with regard to age of the officer not being more than 35 years as on 01 July of the year in which the course is to
commence. However, in 2019, after the applicants submitted their applications for appearing in CSE-2020 and the same were forwarded, after vetting
by their Line Directorate (E in C's Branch), to the third respondent (DGMT/ MT-10), the impugned letter dated 03.01.2020 was issued rejecting their
candidature by declaring them ineligible due to ""02 x attempts DSSC/ DSTSC availed and 01 x attempt M. Tech availed"" in respect of the first
applicant (Lt Col V.B. Pandey) and ""03 x attempts DSSC/ DSTSC availed and 01 x attempt M Tech availed"" in case of the second applicant. Hence
these 0.As. Arguments by Counsel for the Applicants:
Mr. Sinha, learned counsel for the applicants, submitted that for the sake of convenience, he would refer to the facts in 0.A No. 430 of 2020 being
the lead case.
At the outset, learned counsel for the applicant submitted that, contrary to the stand taken by the respondents, the 0.A is maintainable under Section
14 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as 'the Act') just as the Tribunal in the past had admitted a number of cases
challenging policies/ policy changes issued by the respondents. In this regard, he relied on the following decisions:
(i) Maj. Gen. V.K Singh V. Union of India and others (0.A No. 1023 of 2018 decided by the Principal Bench of this Tribunal on 17.09.2018); and
(ii) Lt Col. P. K. Choudhary v. Union of India and others (0.A No. 430 of 2012 decided by the Principal Bench of this Tribunal on 02.03.2015).
In the case of Ma] Gen V.K. Singh (supra), while considering the objections of the respondents on the issue of 'maintainability', this Tribunal had
observed, after analysing the observations of the Honible Supreme Court in the matter of L. Chandra Kumar v. Union of India and others (1997) 3
SCC 261, as under:
Following the ratio of the above judgment, it clearly emerges that (I) the Armed Forces Tribunal is well within its jurisdiction to deal with the
issue of policies initiated by the Union of India for service personnel; and (10 it further substantiates that not doing so would result in
splitting up the proceedings, which may cause unavoidable delay. The aforesaid proposition is squarely applicable to the facts of the
present case, therefore, we overrule the preliminary objection raised by Ms. Babbar on this count and hold that the instant 0.A is
maintainable.
On merits, learned counsel for the applicant submitted that the first applicant (in 0.A No. 430 of 2020) was commissioned in the Corps of Engineers
on 09.12.2006 and appeared for the DSSC/ DSTSC exam in September 2016 and September 2017 but did not qualify, whereas the second applicant
(in O.A. 570 of 2020) appeared for the DSSC/ DSTSC exams in September 2017, September 2018 and September 2019 but could not qualify.
Thereafter, in keeping with the policy dated 11.12.2003, which allowed for availing as many entrance exam chances as possible for M. Tech course,
provided the candidates met the QR, the applicants, in July 2018, applied for the exam for 2019 M. Tech course and appeared for the same in January
2019, in which they were not successful. This exam was originally scheduled for December 2018 but was later re-scheduled for January 2019.
Therefore, in all fairness to the applicants, the date of the exam should be deemed to have preceded the issue of the new policy letter of 06.12.2018. It
is their case that the process for this examination commenced much before the new policy was introduced on 06.12.2018 and it was understood by all
concerned that the examination is to be held as per the policy in vogue, when the process was initiated. Nonetheless, the applicants believed that their
'vested right' of being covered by the old policy was protected by a related provision in the new policy, wherein it is provided at Appendix-H as under:
'Appendk H (Refers to Para 26 of Policy of 06,12.2018) AMPLIFICATION NOTES
1, The applicability of the QR is amplified as follows:
(a) Officers Commissioned in the Year 2013 and Later. Since M. Tech courses will be applicable to these officers from Year 2019 onwards
and Part D is applicable from 3' year of service, hence all provisions as spelt out at Appendix A will be applicable to these officers. Officers
to be given total three attempts for DSSC/ DSTSC/ M. Tech (included).
(b) Officers Commissioned before 2013. Following provisions will be applicable to these officers:
xx xx xx xx xx xx
(ii) All attempts for M. Tech counted Null and Void. Officer may avail of MaXIMUM of three fresh attempts for M. Tech, subject to
satisfying QR at Appendix A.
(iii) Attempts given for Staff College to be counted and maximum three attempts for Staff College will be valid. To amplify, for officers senior
to 2013 batch onwards, the number of attempts already attempted for M. Tech will be counted as null & void. For eg. One officer of 2008
batch who has attempted one chance for DSSC/ DSTSC and one attempt of M. Tech. The officer's M. Tech attempt will be counted null &
void and he may apply for M. Tech provided he is eligible to apply for M. Tech as per the QR iii the Policy and this will be counted towards
two mandatory attempts for DSSC/ DSTSC/ M. Tech.'
Learned counsel asserts that it clearly flows from the aforesaid that officers commissioned prior to 2013, like the applicants, would be granted up to
three chances after 06.12.2018 for appearing for M. Tech course, provided they met the laid down QR, as specified at Appendix-H to the new policy,
and that this tantamounted to their 'vested right' on account of the provisions of the old policy being protected. Thus, it was incumbent on the
respondents not to take away this right unfairly by wrong interpretation of the policy during the process of considering their eligibility for availing
opportunity for appearing in the M. Tech entrance exam. Mr. Sinha further asserted that, therefore, the declaration of the applicants' ineligibility for
appearance in the entrance exam for CSE-2020 vide letter dated 03.01.2020 was illegal, arbitrary and contrary to the letter and spirit of the policy
letter on the subject.
In order to show that the applicants were put to disadvantage by retrospective application of the new rules and the policies, the learned counsel for
the applicants placed reliance on the following decisions:
(a) Tej Prakash Pathak and others v. Rajasthan High Court and others (2013) 4 SCC 540;
(b) Parmender Kumar and others v. State of Haryana and others (2012) 1 SCC 177;
(c) Union of India and others v. Asian Food Industries, (2006) 13 SCC 542;
(d) K Manjusree v. State of Andhra Pradesh and another (2008) 3 SCC 512; and
(e) Kishor Kumar and others v. Pradee,o Shukla and others (2012) 4 SCC 103.
Mr. Sinha has also referred to the fact that three other officers listed at SI. Nos. 13, 19 and 23 at Appendix-D to the impugned letter dated
03.01.2020, whose candidature for the exam had been declared as 'ineligible' by the third respondent, were subsequently granted 'waivers' and allowed
to appear for the exam. This occurred despite the fact that there was no possibility of 'waiver' mentioned anywhere in the new policy of 06.12.2018.
Obviously, had the applicants been made aware of such a possibility, they too would have been liable to be granted a 'waiver' and allowed to appear in
the exam. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in State of Gujarat and others v. Arvino'kumar I Tiwari and
another (2012) 9 SCC 545. Para 10 of the said decision is reproduced as hereunder:
In a particular case, where it/s so required, relaxation of even educational qualifications may be permissible, provided the rules
empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship.
However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only in favour of an individual.
The power to relax the recruitment rules or any other rule made by the State Government/ authority is conferred on the Government/
authority to meet any emergent situation where injustice may have been caused or, is likely to be caused to any person or class of persons
or, where the working of the said rules may have become impossible. (vide State of Haryana vs Subash Chander Marwaha (1974) 3 SCC
220, 1.C. Kadav vs State of Haryana (1990) 2 SCC 189 and Ashok Kumar Uppal vs State of AK (1998) 4 SCC 179.
Furthermore, Mr. Sinha has submitted that achieving M. Tech qualification is of crucial importance to the applicants as it improves their promotion
prospects and monthly remunerations substantially. Therefore, in all fairness to the applicants, as they have been unjustly denied opportunity to appear
in CSE-2020 by retrospective invoking of new policy, they must be allowed to avail of one unfilled vacancy of the current year or alternately, provided
opportunity for appearing in CSE-2021 (and 2022 in the case of second applicant), so that they can appear for the future M. Tech courses
accordingly.
On the other hand, Dr. Mahndiyan, learned counsel for the respondents in O.A. 430 of 2020 and Shri Shyam Narayan, learned counsel for the
respondents in O.A. 570 of 2020, have refuted the arguments made on behalf of the applicants. At the outset, Dr. Mahndiyan submitted that, in
keeping with organisational need, a new policy for selection of officers for M. Tech courses was formulated in 2018 after following due process. He
contended that, therefore, the prayer of the applicants to quash the new policy dated 06.12.2018 was not maintainable as policy making by the
Executive is beyond the scope and purview of judicial review, as provided in Section 14(1) of the Act, which is reproduced as under:
Jurisdiction, powers and authority in service matters:- (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise,
on and from the appointed day, all the jurisdiction power and authority, exercisable immediately before that day by all courts (except the
Supreme Court or a High Court exercising jurisdiction under Article 226 and 227 of the Constitution) in relation to all service matters.
Reliance in this regard is placed on the order dated 31.07.2018 of this Tribunal (Principal Bench) in the matter of Sub Maj/Chief D Man Hari Om
Dubey v. Union of India and others (0.A No. 144 of 2015), wherein it was observed as under:
That we feel that there is merit in the submission made by the learned counsel for the respondents in as much as Section 14 of the Af T Act
does not give the power of issuance of writs to the Tribunal and consequently, legality, validity and vires of the circular cannot be decided
by the Tribunal.
It was further submitted by the learned counsel that the relationship between the Government and its employees is not like an ordinary contract of
service between master and servant, but it is in the nature of status. This is the position as well in respect of personnel subject to Army Act, 1950.
Therefore, the Government can frame and alter the terms and conditions of service unilaterally and the employee has no vested right in regard to the
terms and conditions of service in matters like grant of antedate seniority, retirement age and grant of re-employment. It is trite that, once appointed,
the Government servant has no fundamental or any other right to claim that he ought to be governed in a particular way.
With regard to the merits of the case, learned counsel submitted that, about five months before the issue of the new policy letter dated 06.12.2018,
the third respondent had already issued a communication dated 02.07.2018 (Annexure R1) which had informed all concerned about the envisaged
changes in the policy. The relevant portions of the same are reproduced as under:
IHQ OF MoD (ARMY)/ GS BRANCH DTE GEN OF MIL TRG (MT-10)
POLICY FOR SELECTION OF IA OFFR5 FOR POST GRADUATE TRG IN INDIA (M TECH) AT IlsT/II5c/DIAT/BARC
Ref the fwg:-
(a) Policy for selection of IA offrs for M Tech under Post Graduate Trg in India (Al Tech) at IIsT/IISc/DIAT/BARC I5sued vide DGMT/MT-
10 letter No A/63062/Policy/GS/MT-10 dt 11 Dec 2003.
(b) Amdt to Policy issued vide DGMT/MT-10 letter No.A/63062/GS/MT-10 dt 19 Aug 2013.
Policy under review by MT Dte and MS Branch. Revised Policy will be promulgated after approval of competent authority.
QR as approved in principle by COAS are as following:-
(a) Common entrance exam on the lines of GATE
(b) QR (Age) Minimum. Five yrs of reckonable service
(ii) Maximum. Not more than 35 yrs as on 01 Jul of the yr in which the course is to commence for all Arms/Services.
(c) Qualification on Part 0 mandatory for applying for M Tech Course.
(d) Max of three attempts for DS5C/TSOC/M Tech Course.
(e) Offr can attend only one course between DS5C/T.SOC and M Tech Course
The above is for your info and disseminated to envt.
Sd/-
(Abhimanyu Bhatia)
Lt Col
Offg Dir; MT-10
Thus, the applicants, in July 2018, would have been well aware about the envisaged changes in the policy at the time when they were submitting their
application for appearance in CSE-2019 and, therefore, they cannot claim that they were unaware about the changes in the new policy with regard to
the number of attempts that an officer could avail of, subject to fulfilling other criteria. Moreover, on 17.01.2019, a further clarification was issued,
vide letter at Annexure R15, granting permission to officers of seniority prior to 2013, who had exhausted all three attempts at DSSC/DSTSC exam, to
appear for CSE-2019 as a one-time measure. Thus, the prayer of the applicants to be granted another compensatory chance for CSE-2021 because
they were unaware of the change in policy is totally unjustified and should not be given favourable consideration.
Further, learned counsel for the respondents has referred to the letters dated 07.11.2019 and 18.11.2019, whereby a Board of Officers was
detailed by the third respondent, with Presiding Officer and Members from various line directorates from Army Headquarters, to scrutinise the
eligibility of applicants for CSE-2020 in accordance with the provisions of the new policy letter of 06.12.2018, and submitted that it is based on this
scrutiny that the applicants were found to be ineligible on account of the fact that they had already availed of two/ three chances for DSSC/ DSTSC
entrance exam and one chance for M. Tech exam.
With regard to the contention on behalf of the applicants that three officers, who were found ineligible along with the applicants, were
subsequently given 'waivers' arbitrarily to enable their appearance in CSE-2020 entrance exam, despite there being no provisions for grant of such
waivers in the new policy letter, learned counsel for the respondents contends that the 'waivers' were granted for justifiable reasons. They are:
 (a) Waivers to Maj. Anil Ishwara Karwal and Maj. Aditya.
Both the officers had availed of three attempts for DSSC/ TSC exam till September 2018, which were prior to the policy change of December 2018
and thus they were entitled for one waiver attempt during CSE-2019. However, Maj. Anil Ishwara Karwal was posted in a MES establishment and
Maj. Aditya in a highly active field area and thus they could not avail the one-time waiver that was made available for CSE-2019. Applications for
waiver, which were duly recommended by the line directorate, were approved by the competent authority and compensatory attempt was extended in
CSE-2020.
No policy violation has taken place as both officers were eligible for at least one attempt for M. Tech exam.
(b) Waiver to Lt Col Prashant Chandra Sarkar.
The officer had taken two DSSC/ TSC attempts, i.e. one in 2016 and another in 2019. He had also applied for DSSC/ TSC exam in 2017 but had
withdrawn his application in advance. His application for CSE-20 was rejected as it was erroneously assumed that he had availed a chance in 2017.
Once that fact was pointed out and verified, the officer was justifiably given a waiver to enable his appearance in CSE-2020.
Therefore, clearly, waivers were granted to the said officers when inadvertent errors were pointed out or on grounds of service exigencies, as
explained. Moreover, there were no violations of policy in the grant of these waivers. However, waiver cannot be granted to the applicants as it would
entail violation of the new policy and would set a wrong precedent.
As regards the contentions regarding the legal and other aspects raised by learned counsel for the second applicant, Mr. Shyam Narayan, learned
counsel for the respondents in O.A. No. 570 of 2020, subscribed to the arguments made by learned counsel for the respondents in 0. A No. 430 of
2020.
Consideration:
We have given careful consideration to the arguments on both sides and perused the documents on record.
The applicants are serving officers from the Corps of Engineers who were commissioned in 2006 and 2010 respectively, whose eligibility for
entrance exam for joining M. Tech Course in 2020 have been denied based on the provisions of new rules for selection which were promulgated by
the third respondent on 06.12.2008.
The primary issue before us in this case is, whether the applicants merit grant of compensatory chance for future entrance exam(s) (CSE) for M.
Tech course based on their contention that the sudden change in the Army policy on selection of candidates issued vide letter of 06.12.2018 unfairly
deprived them of opportunity to qualify for attendance on NI. Tech course, which opportunity would have been available to them otherwise as per the
old policy of 2003. In this regard, the applicants have also made a plea for quashing the new policy dated 06.12.2018 as well as the letter dated
03.01.2020, which rejected their candidature for appearing for CSE-2020, in the context that the M. Tech qualification is very important for
enhancement of promotion prospects of officers like the applicants who belong to the technical Arms of the Army.
Mr. Sinha, learned counsel for the applicants has submitted that the M. Tech Course is an important qualification for officers of the Technical
Arms as it grants them crucial marks while being considered for promotion, as also some other remunerative benefits. He has contended that the old
policy entitled the applicants to a chance for appearance for the entrance exam for M. Tech course starting in 2020 and that the new policy of
December 2018 appeared to protect this 'vested right' of officers like the applicants who were commissioned before 2013 when it was directed at
Appendix H of the new policy that M. Tech entrance exam attempts by them prior to the issue of the new policy would be treated as null and void and
consequently they would be granted three fresh chances for M. Tech exam after 2018, provided they met the QR specified at Appendix A of the new
policy, which the applicants met in respect of CSE-2020. Thus, the learned counsel has contended that the retrospective application of the new policy,
which has resulted in the applicants being declared 'ineligible' to appear for CSE-2020, is unfair, arbitrary and illegal. He has also challenged the
legality of the new policy on the grounds that it has made arbitrary changes to provisions and stipulations laid down in Special Army Order SAO
1/S/2013/GS, which is statutory in nature. He has cited the decision of this Tribunal in the case of Maj Gen V.K Singh (supra) to assert that the
Tribunal is empowered to consider the legality and vires of the policy issued by the respondents, especially with regard to new provisions which have
adverse effect on the rights of some affected personnel as well as perceived flaws in its implementation viz. retrospective application of the new
policy. In this regard, he has placed reliance on a number of judgments of the Hon'ble Supreme Court which decided in favour of petitioners who
challenged their being placed at a disadvantage by issue of new policy or by retrospective application of such policy.
Learned counsel for the applicants has also contended that the respondents granted 'waivers' to three other officers from the 'ineligible' list to
enable their appearance in CSE-2020 and that the applicants did not avail of such an opportunity for 'waiver' as neither did such a provision exist in the
new policy nor did the respondents inform the 'ineligible' officers as per their list at Appendix D to the letter of 03.01.2020 that such a possibility
existed, through any letter or any such communication. Thus, the fact that the three officers were provided 'waivers' by the respondents is reflective
of certain flexibility in implementation of the new policy by them, but the fact that the applicants were not made aware of such flexibility clearly
reflects arbitrariness in their actions.
On the other hand, the learned counsel appearing for the respondents have asserted that framing and alteration of policy relating to the terms and
conditions of service comes within the domain of the Executive and thus the policy cannot be subjected to judicial review by this Tribunal. It has also
been contended that it is well settled law that once appointed, the Government servant has no fundamental or any other right to claim that he ought to
be governed in a particular way and thus the prayer for quashing the new policy is not maintainable as it is contrary to provisions of Section 14 of the
Act.
On the merits of the case, the learned counsel for the respondents have argued that the new policy contained provisions for protecting the interests
of officers who would be adversely affected by the new policy, in that a compensatory chance was made available to such officers in 2019, which the
applicants had availed of. They have contended that the applicants cannot claim any advantage out of the fact that they had already applied for
entrance exam for M. Tech course much before the issue of the new policy in December 2018, due to the fact that a letter had been issued in July
2018 itself by the third respondent which had informed the environment about changes that were envisaged in the new policy, which was under
process for approval by the competent authority at that stage. On the issue of 'waivers' granted to three other officers, learned counsel for the
respondents have submitted that the waivers were granted after due process and these were granted specific to the extenuating circumstances that
were highlighted by the affected officers.
Having considered the rival arguments with regard to the maintainability or otherwise of this case, we are of the opinion that, whereas framing of
policy comes clearly within the power of the Executive (the respondents in these cases), its interpretation or implementation can be subject to judicial
adjudication in case the complainants contend that such interpretation or implementation of policy have been done in a manner which is wrong or is
violative of principles of natural justice. Further, as observed by this Tribunal in the case of Maj Gen V.K Singh (supra), whenever alterations or
modifications are made to existing policy, these must stand the test of natural justice in the way the policy change is formulated or put into effect, e.g.
on the question of retrospective application of new policy, which results in detrimental effect on the promotion prospects of the complainant as
compared to the certain rights, in terms of additional chances for entrance exam, that they were granted under the old policy.
There are a catena of judgments of the Hon'ble Supreme Court on the issue of changes in earlier policy which result in adverse effect on the
service conditions of personnel. In this regard, the general principle laid down by the Hon'ble Supreme Court in K. Manjusree (supra) is that ""the rules
of the game cannot be changed after the game is played."" In this case, when the recruitment process for appointments under the Andhra Pradesh
State Higher Judicial service were initiated and the procedure laid down for selection, no minimum qualifying mark for interview was prescribed.
However, after the prescribed recruitment process was completed, a minimum qualifying mark for the interview was prescribed. This, according to
the Hon'ble Supreme Court, amounted to introducing a change in the process of selection much after the selection process was completed and it was
held that this would amount to changing the rules of the game, not only after the game was started, but after the game was played. After considering
various submissions, three questions were formulated by the Hon'ble Supreme Court from Paragraph 25 onwards and it was held that in introducing a
requirement of obtaining minimum marks for interview after the selection process was completed, the same amounted to changing the rules of the
game, which is clearly impermissible and in arriving at this conclusion, three earlier decisions of the Hon'ble Supreme Court in (i) P.K. Ramachandra
Iyer v. Union of India (1984) 2 SCC 141; (ii) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (i'') Durgacharan Misra v. State of
Orissa (1987) 4 SCC 646 were relied upon, finally the conclusion arrived at is the one as has been detailed herein above. That apart, after following
the decision of the Hon'ble Supreme Court in the case of Maharashtra SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51, it has been observed
that the rules of the game viz, the criteria for selection cannot be altered by the authorities in the middle of the selection process or after the selection
process has commenced.
Further, in Asian Food Industries (supra), the Hon'ble Supreme Court has held that, "" ..... by reason of a policy, a vested or accrued right cannot
be taken away. Such a right, therefore, cannot 'a fortiori be taken away by an amendment thereof"" It has been held in this case that changing the
norms of recruitment during the pendency of the selection process to the disadvantage of the prospective candidates is impermissible and cannot be
granted approval.
Similarly, in Kishor Kumar (supra), it was observed by the Hon'ble Supreme Court as follows:
The said decision of the Division Bench came to be challenged before this Court by the State of UP by way of Special Leave Petition
(Civil) No.20558 of 2009, which was heard along with several other special leave petitions where the issue was the same. During the course
of hearing of the special leave petitions, the main question that fell for decision was whether the Rules can be applied differently at different
points of time, in order to deny the benefit of appointment to the same group of people at such different points of time. It was also indicated
by the Division Bench that the State Government had acted arbitrarily and unfairly in not applying the same set of rules when the turn of the
respondents came to be appointed on the basis thereof on the ground that they have become averaged. It had been submitted that such
arbitrariness could not be allowed to continue and the decision of the State and the authorities not to give batch wise promotion to those
Pharmacists, who had obtained their diplomas prior to 1988, was liable to be quashed.
In the case of Parmender Kumar (supra), the principle carved out is to the effect that it was not open to the Government to alter the terms and
conditions of the selection process once it has begun as this would result in denying a prospective candidate an opportunity to participate in the process
of selection in accordance with the procedure notified when he had applied and any change to his disadvantage cannot be permitted. This was a case
where in the matter of admission to a course in the university, Government orders and rules enforced before the issuance of the prospectus was
changed after the admission process had begun and this was held to be impermissible.
Even though in the case of Tej Prakash Pathak (supra) all these principles have been reiterated and certain issues with regard to fixing of
minimum marks for permitting rigorous scrutiny of selection process were referred for consideration by a larger Bench in Paragraph 15, it has been
held by the Hon'ble Supreme Court that no doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the ""rules of the
game"" insofar as the prescription of eligibility criteria, etc. is concerned, once the process of selection has begun. It has been categorically held that
changing the rules of the game either midway or midstream or after the game has commenced is not permissible.
Therefore, in our opinion, whereas we cannot find fault with the action of the respondents in issuing a new set of rules in December 2018, keeping
organisational requirements in view, for selection of candidates for appearing in M. Tech exam (CSE), we find shortfalls in the actions implemented by
them to protect the interests of officers like the applicants, commissioned prior to 2013, who were conferred a certain number of chances for M. Tech
earlier as per the old policy, which were curtailed by the issue of the new policy in 2018. We do not find merit in the contention on behalf of the
respondents that the applicants had already been informed in July 2018 about the envisaged changes in the new policy under process at that time
because the communication in this regard was an inter-office note at Army Headquarters and not in the form of a formal policy letter addressed in the
chain of command. Further, we find that Para 1(b)(ii) of Appendix-H to the new policy letter appears to protect the rights of such affected officers
like the applicants, by providing that ""All (prior) attempts for M. Tech counted Null and Void. Officer may avail maximum of three fresh attempts for
M. Tech subject to satisfying QR at Appx A."" To that extent, in case the respondents had a different interpretation to the effect that this would
tantamount to only one compensatory chance in 2019, it would have been fair on part of the respondents to provide an additional compensatory
attempt for desirous and qualified officers like the applicants for the next M. Tech entrance exam (CSE-2020), provided they met the other eligibility
criteria laid down, including age criteria of 35 years, as on 01 July 2020. Such an action may have set to rest any dissatisfaction or allegations of
arbitrariness or illegality related to issue of the new policy.
With regard to the allegation that subsequent waivers were granted by the respondents to three other officers who had been declared 'ineligible'
along with the applicants, while similar opportunity was not provided to the latter, we find merit in the claim of the applicants that they should have
been made aware of such a possibility, especially when there was so little time between the date of issue of the new policy letter and the date of the
entrance exam in CSE-2019 as well as between the date of issue of list of eligible/ineligible candidates in January 2020 and the date of conduct of
CSE-2020.
Accordingly, whereas we find no reason to quash the new policy of 06.12.2018 or the list of 'ineligible' candidates thereto, as issued by the
respondents at Appendix-D to the impugned letter of 03.01.2020, however, we find merit in the case of the applicants and, therefore, direct that,
subject to the applicants meeting other QR criteria for CSE-2020 at the time of applying for the exam as well as the age criteria thereto of 35 years as
on 01.07.2020, they be granted one compensatory chance for CSE-2021, for M. Tech course in 2021-23.
Viewed thus, we partly allow both the 0.As, to the above extent. No order as to costs.
Pronounced in open Court on this the day 23rd of September 2020.