No. 2809759H Ex-Recruit Babanna … vs Union Of India . on 9 February, 2024

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Supreme Court of India

No. 2809759H Ex-Recruit Babanna … vs Union Of India . on 9 February, 2024

Author: Pankaj Mithal

Bench: Pankaj Mithal, Bela M. Trivedi

                                                                         REPORTABLE

 2024 INSC 95
                                   IN THE SUPREME COURT OF INDIA

                                    CIVIL APPELLATE JURISDICTION
                                  CIVIL APPEAL NOs. 644-645 OF 2017


                      No.2809759H EX-RECRUIT BABANNA
                      MACHCHED                                     …APPELLANT(S)

                                                 VERSUS

                      UNION OF INDIA AND ORS.                      …RESPONDENT(S)

                                                  WITH

                                   CIVIL APPEAL NOs. 652-653 OF 2017,
                                  CIVIL APPEAL NOs. 642-643 OF 2017 &
                                   CIVIL APPEAL NOs. 654-655 OF 2017


                                             JUDGMENT

PANKAJ MITHAL, J.

1. Learned counsel for the parties were heard.

2. 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
Signature Not Verified

Digitally signed by
VISHAL ANAND
Date: 2024.02.09
16:52:05 IST
Reason:

per cent of the total yearly demand released by the

1
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.

3. 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

2
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.

4. 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.

3

5. In these appeals the challenge is to the common judgment

and order of the Armed Forces Tribunal1, Kochi, dated

6.03.2014, whereby the Tribunal has refused to interfere

with the discharge certificate, dismissing the appellants

from service for adopting fraudulent means. Consequently,

refusing the prayer of the appellants to reinstate them.

6. Notice in these appeals were issued only because the

appellants before this Court wished to press that the

appellants had never applied for enrollment in any reserved

category. This was done on the statement of the counsel for

the appellants which stands recorded in the order dated

08.03.2016.

7. In view of the above factual position, the only question for

our consideration in these appeals is whether the

appellants had applied and were selected as general

category candidates or were placed in any of the reserved

category.

8. Briefly stated, after the appellants were enrolled/recruited

in the Army, they were served with identical show cause

notices contending that they have been enrolled in the Army

1
Hereinafter referred to as ‘the Tribunal’

4
by producing false relationship certificates and the

documents produced by them on verification have been

found to be fake/forged. Thus, calling upon them as to why

they should not be dismissed from service. In response to

the show cause notice, all the appellants submitted their

response on identical lines that they were recruited in the

Army after they have passed all exams and standards; they

were not recruited on the basis of the claim that they were

relatives of any serving or ex-servicemen personnel rather

they had applied under the general category and as such

there was no occasion for them to have produced any

relationship certificate. In other words, they clearly denied

having produced any certificate of relationship for the

purposes of recruitment and as such contended that they

cannot be charged of producing fake certificates.

9. The Maratha Light Infantry Regimental Centre by similar

orders dismissed all the appellants from service with effect

from 9.05.2013. The discharge certificate issued to each of

the appellant in unequivocal terms stated that they are

being dismissed from service for the reason that they got

themselves enrolled by adopting fraudulent means, referring

5
to the fake relationship certificates as mentioned in the

show cause notices.

10. In other words, the appellants were dismissed/discharged

from service on the ground that at the time of their

enrollment in the Army through Maratha Light Infantry

Regimental Centre under the Unit Headquarters Quota in

December, 2009 they had produced false relationship

certificates which upon verification were found to be

manipulated and false.

11. The departmental appeal(s) against the aforesaid

discharge/dismissal also failed whereupon the appellants

preferred Original Applications before the Armed Forces

Tribunal. The Original Applications were dismissed by the

Tribunal and so were the review petitions.

12. The appellants have thus preferred these appeals under

Section 31 of the Armed Forces Tribunal Act, 2007 before

this Court inter alia contending that the appellants were

recruited under the general category and not on priority

basis as relatives of any servicemen or ex-servicemen; and

they have not produced any relationship certificate and,

therefore, they cannot be charged for obtaining

6
enrollment/recruitment on the basis of fake relationship

certificates. The authorities as well as the Tribunal have not

considered the above explanation of the appellants and only

on the basis that the certificates alleged to have been

produced by the appellants on verification have been found

to be fake/forged, without recording any finding that the

appellants had in effect produced any such certificate,

upheld the order of discharge/dismissal.

13. The defence of the respondents is that the

enrollment/recruitment under the Army Headquarters

Quota is only for the relatives of the servicemen/ ex-

servicemen and that there is no general category in which

the appellants could have been recruited. It is also

contended that the appellants are taking the above grounds

of enrollment/recruitment under general category and of

non-production of relationship certificate as an afterthought

as on identical plea the sports persons were directed to be

reinstated.

14. After hearing Shri Vinay Navare, learned senior counsel,

appearing as a lead lawyer for the appellants and Ms.

Aishwarya Bhati, learned Additional Solicitor General,

7
appearing for the respondents, in the facts and

circumstances of the case, as narrated above, the following

points arise for our consideration:

(i) Whether the appellants were enrolled/recruited by

giving benefit of relationship with the servicemen/ex-

servicemen;

(ii) Whether the appellants have produced any

relationship certificate(s);

(iii) Whether their discharge/dismissal from service is bad

in law for non-consideration of their explanation.

15. 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

8
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 ___________.”

16. 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.

17. The appellants have brought on record zerox copies of their

applications submitted for the purposes of

9
enrollment/recruitment. In Part-II of the application(s)

under the heading ‘Documentation’ they have not claimed

status of a relative of servicemen/ex-servicemen, NCC,

Sports persons rather they have clearly stated to be of

general category. The application(s) nowhere mentions that

they have produced any relationship certificate(s). The

application(s) thus clearly establishes that the appellants

appear to have applied as a general category candidate(s)

against the surplus seats/vacancies remaining unfilled after

considering the priority/reserved quota for relatives of

servicemen/ex-servicemen, etc. In such a situation, when

they have not claimed any enrollment/recruitment on the

basis of relationship with servicemen/ex-servicemen,

obviously there was no occasion for them to submit any

relationship certificate.

18. In response to the show cause notice which stated that the

appellants have obtained enrollment/recruitment on false

relationship certificates which on verification have been

confirmed to be fake, the appellants have denied producing

any such certificates as they never applied under any

priority category as a relative of servicemen/ex-servicemen

10
but in the general category. The discharge certificate simply

states that the appellants are dismissed from service under

the orders of Commandant for the reason of obtaining

enrollment/recruitment by fraudulent means referring to

submission of fake relationship certificates. The order of the

Commandant states that at the time of

enrollment/recruitment in December, 2009 under the Unit

Headquarters Quota at the Maratha Light Infantry

Regimental Centre, the relationship certificates of the

appellants upon verification from records have been found

to be manipulated and false. Therefore, the appellants had

obtained enrollment/recruitment by fraudulent means and

their services are liable to be terminated. Accordingly, the

appellants were dismissed.

19. 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

11
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.

20. A reading of the order of the Tribunal also shows that the

above aspect or the contention of the appellants was not

dealt with by the Tribunal. The Tribunal in a casual and

routine manner affirmed the discharge/dismissal order

simply holding that the relationship certificates produced by

the appellants have been found to be fake even upon

verification. The Tribunal also seems to have lost sight of

the crucial point of the appellants that they have applied

under the general category and not as relatives of

servicemen/ex-servicemen. They have not produced the

alleged certificate(s) which could be held to be fake.

Accordingly, the core issue arising in the matter was missed

not only by the authorities concerned but by the Tribunal

as well. Thus, the order(s) of discharge/dismissal of the

appellants and that of Tribunal stand vitiated for non-

consideration of the material aspect.

12

21. In S.N. Mukherjee vs. Union of India2, it has been

categorically laid down by this Court that an order passed

without consideration of the material evidence or the plea

would be violative of Principles of Natural Justice and would

stand vitiated for non-consideration of the relevant material,

plea or the evidence.

22. At the same time in Mohinder Singh Gill vs. Chief

Election Commissioner, New Delhi3, it has been provided

that the validity of the order impugned has to be tested on

the basis of the reasoning contained therein and that the

authorities are not supposed to supplement the same by

means of extraneous material or affidavit before the courts.

23. 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

2
(1990) 4 SCC 594
3
(1978) 1 SCC 405

13
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).

24. 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.

25. The decision in Ex Sig. Man Kanhaiya Kumar vs. Union

of India and Ors.4 as cited from the side of the

respondents has no application in the present case

4
(2018) 14 SCC 279

14
inasmuch as in the said case the fraudulent enrollment in

the Army was admitted to the appellants to be on the basis

of fake relationship certificate. There is no dispute to the

ratio laid down in the above case that the authorities had

the power of punishment/dismissal/removal of the

candidate in the event the enrollment/recruitment had been

obtained by fraudulent means or on the basis of fake

relationship certificate.

26. Similarly, the case of S. Muthu Kumaran vs. Union of

India and Ors.5 is of no help to the respondents as the

dismissal therein under the Army Act was on the ground of

fraudulent recruitment which was found to be proved and

no perversity was found in the order of the Tribunal

affirming the dismissal order which was

modified/substituted to that of discharge.

27. 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

5
(2017) 4 SCC 609

15
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.

28. The appeals are allowed as aforesaid with no order as to

costs.

……………………….. J.

(BELA M. TRIVEDI)

……………………….. J.

(PANKAJ MITHAL)
NEW DELHI;

FEBRUARY 9, 2024.

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