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'We Will Bend Our Backs To Do Justice, But Will Also Flex Our Jurisdiction If We Are Being Taken For A Ride': SC Pulls Up Petitioner For Suppression Of Record

Mehal Jain
29 Nov 2020 6:33 AM GMT
We Will Bend Our Backs To Do Justice, But Will Also Flex Our Jurisdiction If We Are Being Taken For A Ride: SC Pulls Up Petitioner For Suppression Of Record
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"We will bend our backs to do justice, but we will also flex our jurisdiction if we are being taken for a ride", was Justice D. Y. Chandrachud's stern observation on Friday. The bench of Justices Chandrachud, Indu Malhotra and Indira Banerjee was hearing a SLP against a September 18 judgment of the Delhi High Court, where the plea of the petitioner, a candidate for recruitment as...

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"We will bend our backs to do justice, but we will also flex our jurisdiction if we are being taken for a ride", was Justice D. Y. Chandrachud's stern observation on Friday. 

The bench of Justices Chandrachud, Indu Malhotra and Indira Banerjee was hearing a SLP against a September 18 judgment of the Delhi High Court, where the plea of the petitioner, a candidate for recruitment as a Commissioned Officer in the 130th Technical Graduate Course of the Indian Army, impugning the cancellation of his candidature on January 21, was rejected. Subsequently, the review petition had also come to be dismissed on October 7.
Justice Chandrachud was displeased at the failure of the petitioner to file before the apex court a counter affidavit that had been submitted before the High Court.
"The practice before the Supreme Court of India has degenerated to this level! A material piece of record of the lower court is being suppressed from the Supreme Court? You think that this is a busy court and you will not file the counter before this court and be able to get an order?", said the judge.
"Why did you not file the counter? A young man is trying to cut corners to get ahead? And this is a person who wants to be in the army? Tell him that we are taking a very serious view of this", Justice Chandrachud told the Lawyer for the petitioner.
Eventually, the bench dismissed the SLP after hearing the counsel.
The petition came up for admission before the High Court on July 28, when it was the contention of the counsel for the petitioner that the candidature of the petitioner in the recruitment process undertaken by him was cancelled for the reason of the petitioner not having minimum 67% marks in B. Tech. (Civil Engineering) and instead having 66.67% marks; that the petitioner had 4037 out of 6000 marks, equivalent to 67.28% marks and that in the advertisement inviting applications for recruitment in the said course, there was no minimum of 67% marks prescribed.

The counsel for the respondents No. 1 to 3 Indian Army on 11th August stated that while the Certificate dated 28th February, 2020, was issued by the Additional Controller of Examination of the respondent No. 4 Dr. APJ Abdul Kalam Technical University, the earlier Certificate dated 11th January, 2020 showing the petitioner to be having 66.67% marks was issued by the Controller of Examination of the respondent No. 4 Dr. APJ Abdul Kalam Technical University; it was argued that the Additional Controller of Examination could not, without referring to the earlier Certificate and explaining the same, issue another certificate depicting a different picture. It was further the contention of the counsel for the respondents No. 1 to 3 Indian Army that the petitioner had indulged in suppression and in other examinations in which he had appeared, has filled in different percentages of marks. Attention in this regard was drawn to various documents annexed to the counter affidavit filed by the respondents No. 1 to 3 Indian Army. It was also the contention of the counsel for the respondents No. 1 to 3 Indian Army on 11th August, 2020, that the subject course had commenced as far back as on 14th January, 2020 and it was not possible to allow the petitioner to join. It was further contended that the cause of action, if any accrued to the petitioner on 21st January, 2020, when the cancellation letter was issued but the first legal notice got issued by the petitioner was after two months therefrom and this petition itself had come up first before the Court after much delay, on 28th July, 2020. It was also the argument that the petitioner had otherwise indulged in falsehood and misrepresentation and was not entitled to any relief.

The High Court had directed the counsel for the respondent No.4 Dr. APJ Abdul Kalam Technical University, from which the petitioner had done his B. Tech (Civil Engineering) to clarify and the Vice Chancellor of the said University was also requested to, in a communication under his/her hand, certify that he/she has personally verified the records.

On 11th September, 2020, the affidavit/letter filed by the respondent-University were perused and satisfaction with respect thereto expressed in the open Court, though not recorded in the order of that date. It was not deemed necessary to so record in the order because it had already been recorded in the earlier order, that the 130th Technical Graduate course for which the petitioner had competed, had already commenced; it was deemed necessary to make further enquiries before granting any relief to the petitioner on the basis of the clarification issued by the respondent No.4 Dr. APJ Abdul Kalam Technical University. Personal presence of the competent officer of the respondents-Indian Army was directed.

The proceedings on September 18 were joined by Col. V.S. Negi, Lt. Col. Kumar Umashankat, Lt. Col. Vivek Khanduri and Maj. A.S. Katoch from the respondents No. 1 to 3 Indian Army and the position was understood from them.

"They have explained, (i) that the petitioner was qualified to join only the Civil Engineering stream of the Technical Graduate Course of the respondents No. 1 to 3 Indian Army and had applied in the said stream only; (ii) that though in the advertisement published of recruitment for the 130th Technical Graduate course there were 10 vacancies in the stream of Civil Engineering and the petitioner, in the merit list was 6th in position, but the said course having begun and nearing completion, the possibility of the petitioner now joining therein does not exist; (iii) that the vacancy position is advertised for each year and the vacancies are not carried forward; (iv) that the 131st Technical Graduate course is scheduled to now commence on 19th October, 2020; in the recruitment advertisement for the 131st course, there were only 8 vacancies in the stream of Civil Engineering and for which 17 candidates qualified and of which the first 8 have already been picked up for the course; (v) that the 8 vacancies in the stream of Civil Engineering for the current 131st Technical Graduate course having already been filled up, the petitioner cannot be accommodated therein; (vi) that the petitioner has also applied for the Short Service Commission (SSC) in the Indian Army and has also applied in the recruitment process for 132nd Technical Graduate Course and can compete therein and if selected, can join the 132nd Technical Graduate course; and, (vii) that it is not possible to otherwise accommodate the petitioner", the High Court had recorded in the judgment.

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