Case Note & Summary
The dispute concerned selection for Permanent Commission in the Army Medical Corps (Non-Technical) for the 1986 quota. The appellants, enrolled as Other Ranks and serving as Havildar Clerks in the Army Medical Corps, applied under Army Instructions Nos. 69-73 of 1976. They were found eligible and appeared before a Service Selection Board, which subjected them to a vigorous test over several days and placed them fourth and fifth in the merit list. The Board forwarded its recommendations and grading to the Director General, Armed Forces Medical Services (DGAFMS) for final selection up to the required number. In May 1986, the DGAFMS issued a letter stating that eligibility for Permanent Commission would be strictly based on merit as determined by the Board and limiting the number of chances to six; it did not envisage any change in the method of selection. By a further letter dated 5 May 1987, the DGAFMS modified the eligibility criteria to make selection subject to performance before the Board followed by a selection interview by a board constituted by the DGAFMS. The appellants were then required to undergo a personality test, and candidates lower in order of merit were selected. Aggrieved, the appellants approached the High Court, but their writ petitions were dismissed on the ground that selection was in accordance with the 1976 Army Instructions. Before the Supreme Court, the appellants contended that the expression “final selection” in the instructions should be understood as the issuance of appointment letters up to the required number, because the Board had already carried out a rigorous selection; the DGAFMS’s power was only to fill notified vacancies in order of merit. The Union of India argued that the instructions clearly did not make the Board’s selection final and that a personality test was necessary for assessing competency and efficiency. In the Special Leave Petition, the appellants specifically claimed that the Department had never deviated from the Board’s selection and had never subjected recommended candidates to a personality test. The Union’s reply was vague, so the Supreme Court by order dated 7 October 1993 directed the Union to file a supplementary counter-affidavit explaining the practice from 1976 to 1987 and whether any further interview was held after Board recommendations. The Court also required production of records and warned that non-compliance could result in an adverse inference. The Union did not initially comply, and the Court granted a last chance. Subsequently, a supplementary counter-affidavit was filed admitting that prior to 1987, for the 1986 quota interviews, candidates were commissioned from the list forwarded by the Service Selection Board strictly on the basis of merit and no further interviews were held. On the basis of this affidavit, the Supreme Court held that it was unnecessary to decide the abstract question of whether the 1976 instructions contemplated only one selection, because the admitted departmental practice until 1987 was to appoint candidates in order of merit on the recommendation of the Board. The changed procedure introduced from May 1987 did not apply to the 1986 quota. The respondents were therefore not justified in denying Permanent Commission to the appellants. The Court allowed the appeals and directed the respondents to grant Permanent Commission in the Army Medical Corps (Non-Technical) to the appellants from the date it was granted to other selected candidates for the 1986 quota. The appellants were held entitled notionally to all consequential benefits including promotion and seniority, except payment of back wages. The Court clarified that while determining seniority, the seniority or promotion already given to any selected candidate who was working on a promotional post would not be disturbed. Parties were directed to bear their own costs.
Headnote
A) Service Law - Selection for Permanent Commission - Scope of 'Final Selection' - Army Instructions No. 69-73 of 1976 - The court was called upon to interpret whether the expression 'final selection' in the instructions meant the Service Selection Board's recommendation was final and the Director General Armed Forces Medical Services only issued appointment letters up to the required number, or whether a separate personality test was contemplated. The court noted the divergent contentions of both parties but did not decide this abstract question because the supplementary counter-affidavit established the actual past practice. Held that since the department until 1987 appointed candidates solely on the basis of the Service Selection Board's merit list, the 1976 instructions were not shown to require a second personality test for the 1986 quota (Paras 1-5, 8-10). B) Service Law - Past Practice and Legitimate Expectation - Non-applicability of Changed Procedure - Army Instructions No. 69-73 of 1976 read with DGAFMS letters dated 1986 and 1987 - The department admitted that prior to 1987, candidates recommended by the Service Selection Board were commissioned strictly on merit without any further interview; the new selection interview was introduced only from May 1987. The Supreme Court held that the changed procedure did not apply to the 1986 quota and that the respondents were not justified in denying Permanent Commission to the appellants. The court allowed the appeals and directed grant of Permanent Commission from the date it was granted to other 1986 quota candidates with all consequential benefits including promotion and seniority, except back wages; existing promotions of already promoted candidates were not to be disturbed (Paras 6-10).
Issue of Consideration
Whether Army Instruction Nos. 69-73 issued on 11th September, 1976 for Permanent Commission in the Army Medical Corps (Non-Technical) contemplated selections one by the Service Selection Board and another by the Director General, Armed Forces Medical Services, and whether the Department was justified in denying Permanent Commission to the appellants for 1986 quota when the practice prevalent till 1987 was to appoint candidates on the basis of the list prepared by the Board in order of merit.
Final Decision
Appeals allowed. Respondents directed to allow Permanent Commission in the Army Medical Corps (Non-Technical) to the appellants from the date it was granted to other candidates selected for 1986 quota. Appellants entitled notionally to all consequential benefits including promotion and seniority, except payment of back wages. Seniority or promotion given to any selected candidate already working on a promotional post not to be disturbed. Parties to bear their own costs.
Law Points
- Past administrative practice prevails over changed selection procedure not applicable to earlier quota
- Department bound by its own longstanding practice
- Service Selection Board merit list is basis for Permanent Commission
- Changed procedure from May 1987 cannot affect 1986 quota
- Adverse inference for non-filing of affidavit
- Legitimate expectation from consistent departmental practice
