Vikram Swami v. Union of India

16. The Respondents have provided rationale for State-wise short-listing criteria as under: i.) “It is submitted that the recruitment of sailors in the Indian Navy is undertaken based on the State-wise Recruitable Male Population (hereinafter referred to as “RMP”), which is as per the directives issued to the three services by Government of India Ministry of Defence vide MoD/ Def Sec Note ID No. 6287/Def Secy dated 03.07.1992. It is further submitted that the recruitment in the three services is based on state wise RMP, which is further derived from the National census data, is an established principal. It is further submitted that hence, towards ensuring the homogenous representation from all States, State-wise shortlisting of candidates is undertaken. ii.)It is submitted that the aim of recruitment in the Indian Navy is to select qualified and competent manpower whilst ensuring that the national character of the Indian Navy is maintained, through homogenous representation from all states/ union territories. It is further submitted that the homogenous representation amongst sailors is essential for maintaining the functional efficiency of the war-fighting platforms of the Indian Navy. It is further submitted that the recruitment of personnel based on State wise RMP is critical towards maintaining the homogeneous representation, which further necessitates the state wise shortlisting of candidates. iii.) It is submitted that the process of shortlisting of candidates State-wise, based on marks obtained in the qualifying examination is an established procedure, which was being followed prior to the introduction of the Digitaaly computer based INET Test in 2018, and the same has been laid down in Navy Order 27/2015. It is further submitted that the purpose of the INET examination was to shortlist candidates for the further stages of recruitment, for which candidates were being shortlisted vide the state wise RMP. Hence, the process of shortlisting candidates based on state wise RMP, has always been there and no change has been made by the Indian Navy in that regard. ”

17. The Respondents have further stated that the process of short-listing of candidates based on State-wise Recruitable Male Population (RMP) has been resorted to, due to non-availability of contract with any public/ private entity involved in conducting Pan-India Computer Based Examination. It is contention of the Respondents that criteria evolved by them does not violate any constitutional right guaranteed to the Petitioner, who has filed the present PIL.

18. The Respondents have explained the process of recruitment in the Indian Navy as under: i.) “It is submitted that Section 11 of Navy Act 11957 and Regulation 261(2) of Regs Navy Part III authorizes the Chief of the Naval Staff to conduct recruitment of sailors through the Recruitment Organisation and lay down appropriate regulations regarding manner, procedure and terms and conditions of enrolment. A copy of Section 11 of Navy Act, 1957 is annexed herewith and marked as Annexure R-3. A copy of the Regulation 261(2) of Regs Navy Part III is annexed herewith and marked as Annexure R-4. ii.) It is submitted that the Government of India/ Ministry of Defence Letter dated 01.09.2006 delegates administrative powers to Service headquarters wherein Digitaaly Sr. NO. 10 at Appendix „A‟ delegates the authority to “introduce new entry/ schemes/ disciplines including technical education qualification for induction of personnel into the Army/ Navy/ Air Force with no additional financial implications”, to the Chief of Personnel (hereinafter referred to as “COP”). A copy of the Ministry of Defence Letter dated 01.09.2006 is annexed herewith and marked as Annexure R-5. iii.) It is submitted that the detailed orders pertaining to recruitment methodology to be employed have been laid down in the Navy Order No. 27/2015. It is further submitted that the Para 20 of Navy Order No. 27/2015 specified the conduct of written examination (for all entries except for musicians and sports entry), for shortlisting of candidates to undergo Physical Fitness Test. Copy of relevant extracts of the Navy Order NO. 27/2015 is annexed herewith and marked as Annexure R- 6. iv.) It is submitted that it is evident from above, that the COP is authorized to decide on the recruitment methodology including the mode of examination for induction of sailors.”

19. The Respondents further contended that it is for the employer to evolve a process for short-listing and as there was an acute shortage of Sailors in the Indian Navy, and especially in view of the fact that a batch holiday was declared in the previous year due to Covid-19 Pandemic, shortlisting was done by the Respondents. Thereafter, based upon the marks obtained in INET examination, candidates have been appointed by the Respondents in the Indian Navy.

20. The Respondents have further stated that the Petitioner, herein, was unsuccessful in the recruitment process in the years 2019, 2020 and 2021. Digitaaly Now, that he is over-age, wants to unsettle the recruitment, which has already taken place, by filing the present PIL. The Respondents have further stated that at present, the entire scheme/ process of recruiting Sailors – which was earlier in existence, has been replaced by the Agnipath scheme. It is pertinent to state that the Agnipath scheme was also challenged before various High Courts, and also before this Court in W.P.(C.) No. 11011/2022 titled Harsh Ajay Singh Vs. Union of India and Ors. & was connected with other batch matters. The batch matters were thereafter decided vide a common judgment dated 27.02.2023 which in turn has upheld the Agnipath scheme.

21. The Respondents have stated that the question of interference in the peculiar circumstances of the present case does not arise and an individual who is aspiring to join the Indian Army, Navy or Air Force, has to apply as and when an advertisement is issued under the Agnipath scheme.

22. The Respondents have stated that the present Petition is frivolous and deserves to be dismissed with heavy cost.

23. Heard Learned Counsels appearing for the Parties and perused the record. The undisputed facts of the case reveal that the Petitioner before this Court, Mr. Vikram Swami, though has filed the present Petition as a public interest petition, is personally interested in the matter. The Petitioner himself was an Applicant for Sailors entry and had applied for the post of Sailor in the Indian Navy as a Artificer Apprentice/ Senior Secondary Recruit, during the year 2019, 2020 and 2021. He had also applied for entry into Matric Recruitment in the October, 2020 batch. The Petitioner out of Digitaaly four attempts made by him for joining the Indian Navy was absent in respect of one attempt and was not selected in other three attempts, on account of his failure in the short-listing examination or alternatively on account of low marks obtained by him at the time of short-listing.

24. The Petitioner was again an Applicant in the August, 2021 recruitment batch, wherein, the same short-listing process which had been adopted earlier was followed by the Respondents and the Petitioner has filed a PIL challenging the short-listing criteria adopted by Navy.

25. The Petitioner after participating in the process of selection is questioning the process of selection, and, therefore, once he has participated in the selection process, he is estopped from questioning the same. In the considered opinion of this Court, the Petitioner has personal interest in the litigation and the Petition is guided by self-gain, hence, cannot be treated as a PIL.

26. Not only this, the present PIL is a PIL in respect of a service matter and the Hon‟ble Supreme Court has time and again held that PILs in service matters are not maintainable. In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, (1998) 7 SCC 273, the Hon‟ble Supreme Court has observed as under: -

27. The aforesaid line of reasoning has been upheld on various instances thereafter, in Dr. B. Singh v. Union of India & Ors., (2004) 3 SCC 363 and Neetu v. State of Punjab, (2007) 10 SCC 614.

28. This Court, even though a PIL is not maintainable in a service matter, has looked into the process of selection and the undisputed facts reveal that an Advertisement for recruitment of Sailors as SSRs and AAs is published twice in a year in the month of May-June and September-October, respectively. As per the process of selection, eligible candidates are required to submit an online application keeping in view the terms and conditions of the Advertisement. Without going into detail, the Respondents, Digitaaly herein, have already described the selection process in detail.

29. So far as the selection process in Indian Navy is concerned, the recruitment is a two stage process, wherein, Stage-I is aimed at short-listing of the candidates for the subsequent stage of examination being Stage-II which is conducted in a naval environment. Based upon this examination, a merit list is prepared and orders of appointment are issued basis the merit list prepared by the Indian Navy.

30. The undisputed facts further reveal that short-listing of candidates prior to the year 2018 was carried out based on marks obtained in class 12th examination and the number of short-listed candidates depended upon the testing capacity of the Indian Navy.

31. The Indian Navy in order to provide transparent mechanism for the purpose of selection conceptualized the INET which is a computer based examination for short-listing of Sailors.

32. The INET started from the year 2014 with due approval of the Hon‟ble Defence Minister and the approval was accorded on 15.07.2016.

33. The first two examination cycles of INET were conducted on a pilot basis in the year 2018 for a limited number of entries, and, thereafter, the INET was expanded to include all sailor entries from February, 2019 onwards.

34. The INET was conducting the process of short-listing of the candidates for the further recruitment process and had, in fact, replaced the short-listing based on marks. Digitaaly

35. The record further reveals that M/s Sify Technologies Ltd. was awarded the contract for conducting INET which expired on 15.07.2020. The contract was not extended for the following reasons: “i) Decline in Academic Performance of Trainees: A major decline in the academic performance of trainees was observed in the training institutions. The alarming decline in academic performance was evident from the fact that around 220 trainees were relegated from a particular batch on academic grounds, out of which approx. 50 candidates were subsequently discharged from service as unsuitable (based on poor academic performance). ii) Reports of Manipulation of Online Examinations: Since early 2021, various reports/cases/attempts of manipulation/hacking of online or computer-based examinations (such as JEE, NEET, GRE, STAR conducted by IAF etc.) had surfaced in the media. Hence, a review of the security features of Indian Navy‟s INET was considered essential. iii) Nexus of Coaching Centres/Touts/ Middlemen, etc: Experience from conducting examinations, inputs from field as well as various internal inquiries by the Indian Navy have suggested that the environment in which the computer-based examination is conducted, is extremely hostile, with numerous players including coaching centres, touts, middlemen, examination centre owners and some of their staff form an impenetrable nexus involved in subverting the examination process. ”

36. The Ministry of Defence, keeping in view the aforesaid, reviewed the process of INET and initiated the process of revamping the sailor‟s recruitment process with various technical and administrative enhancements/ alterations aimed at curbing any such issue of manipulation of the examination in the future. Thereafter, the Government of India took a policy decision for conducting a Pan-India Computer Based Examination. Digitaaly

37. The record further reveals that there was an acute manpower shortage in the Indian Navy, and on account of the nation-wide lockdown imposed by the Government of India in March, 2020, a batch holiday was declared by Indian Navy in respect of the recruitment cycle, which resulted in shortage of about 2,500 Sailors. The total manpower shortage was approximately 12,500 sailors and keeping in view the total strength of sailors and the shortage which was caused on account of non-conduct of the recruitment examination, the Indian Navy initiated the process of recruitment in respect of AA/ SSR by issuing an Advertisement. The Advertisement which has been reproduced earlier was issued for AA/SSR – 01/ 2022, and after holding the examination, the merit list of successful candidates was prepared based upon the written examination and the physical fitness test, held on 06.12.2021 and 09.12.2021.

38. The Indian Navy after the medical examination of individual candidates on 01.02.2020 has issued appointment orders and the entire process of appointment is over. The Petitioner, herein, has been unsuccessful in the same, and is raising hue and cry in the matter pretending to be a bona fide Petitioner.

39. It is pertinent to note that the Government of India has taken a policy decision in the matter of recruitment by introducing the Agnipath scheme and the scheme was also subjected to judicial scrutiny by this Court. This Court has upheld the scheme introduced by the Government of India, as the policy clearly is in the national interest, and the same is a policy decision. After the introduction of Agnipath scheme with effect from 14.06.2022, all recruitments are being done as per the Agnipath scheme. The process of Digitaaly recruitment which is subject matter of the present Writ Petition/ PIL has already been discontinued.

40. Much hue and cry has been raised by the Petitioner in the matter of short-listing and the fact reveals that the Indian Navy has limited presence across the country with major naval bases situated in a few coastal cities. The Indian Navy has got a total of 9 naval recruitment establishments situated at Mumbai, Kochi, Chennai, Visakhapatnam, Jamnagar, Kolkata, Delhi, Dehradun and Port Blair. In those circumstances, the short-listing of the candidates was being done by taking into account the 12th Standard marks.

41. It is nobody‟s case that persons who are less meritorious are being selected. In fact, short-listed candidates are more meritorious. The counteraffidavit explained the rationale for state-wide short-listing criteria and the same is reproduced as under: i.) “It is submitted that the recruitment of sailors in the Indian Navy is undertaken based on the State-wise Recruitable Male Population (hereinafter referred to as “RMP”), which is as per the directives issued to the three services by Government of India Ministry of Defence vide MoD/ Def Sec Note ID No. 6287/Def Secy dated 03.07.1992. It is further submitted that the recruitment in the three services is based on state wise RMP, which is further derived from the National census data, is an established principal. It is further submitted that hence, towards ensuring the homogenous representation from all States, State-wise shortlisting of candidates is undertaken. ii.)It is submitted that the aim of recruitment in the Indian Digitaaly Navy is to select qualified and competent manpower whilst ensuring that the national character of the Indian Navy is maintained, through homogenous representation from all states/ union territories. It is further submitted that the homogenous representation amongst sailors is essential for maintaining the functional efficiency of the war-fighting platforms of the Indian Navy. It is further submitted that the recruitment of personnel based on State wise RMP is critical towards maintaining the homogeneous representation, which further necessitates the state wise shortlisting of candidates. iii.) It is submitted that the process of shortlisting of candidates State-wise, based on marks obtained in the qualifying examination is an established procedure, which was being followed prior to the introduction of the computer based INET Test in 2018, and the same has been laid down in Navy Order 27/2015. It is further submitted that the purpose of the INET examination was to shortlist candidates for the further stages of recruitment, for which candidates were being shortlisted vide the state wise RMP. Hence, the process of shortlisting candidates based on state wise RMP, has always been there and no change has been made by the Indian Navy in that regard. ”

42. In the considered opinion of this Court, the criteria of short-listing can never be said to be an arbitrary process, and it has to be applied in all cases where the number of candidates is very high.

43. This Court is of the considered opinion that the short-listing criteria adopted by Indian Navy does not warrant any interference. The Petitioner has not been able to point out a violation of any statutory provisions of law warranting interference by this Court

44. The Petitioner has also not been able to point out violation of any Digitaaly right guaranteed to the Petitioner under the Constitution of India. On the contrary, the Petitioner has been unsuccessful on account of the short-listing process carried out by the Respondents for selection, which stands concluded. The Petitioner has become over-aged, and on account of change in policy, the recruitment to the post of sailor is not in existence and all recruitments by the Respondents are being done as per the Agnipath Scheme.

45. This Court does not find any reason to interfere in the matter keeping in view the peculiar facts and circumstances of the case. The present PIL stands dismissed.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J. MAY 18, 2023 aks Digitaaly