Delhi High Court
Vikram Swami vs Union Of India And Ors on 18 May, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
Neutral Citation Number: 2023:DHC:4494-DB
$~38.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 18.05.2023
% W.P.(C) 12949/2021 and C.M. Nos. 40781/2021, 43477/2021,
30337/2022 & 30344/2022
VIKRAM SWAMI ..... Petitioner
Through: Mr. Ankur Chhibber, Mr. Anshuman
Mehrotra & Mr. Nikunj Arora,
Advocates.
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC, for
Respondents No.1 to 3/ UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The Writ Petition has been filed stating it to be in public interest and
would benefit a large number of citizens who aspire to join the armed forces.
2. The Petitioner‟s grievance is that the Indian Navy is discriminating in
the matter of recruitment of personnel below officer rank (PBOR) by
evolving a short-listing criteria even before the written examination, and the
act of the Indian Navy in short-listing the candidates even before the
commencement of examination is bad in law. The Petitioner has prayed for
the following reliefs.
"a) Issue a Writ of Certiorari for quashing of the advertisement
issued by the Respondents in the employment news dated 16-22
October, 2021 to the extent whereby the Indian Navy has
reserved its right for short listing the Applicants by increasing
the cut off marks obtained by them in class 10+2 examination,
contrary to the already laid down eligibility criteria in the said
advertisement, after their applications were received by them
for recruitment as PBOR(s) in the Indian Navy; and
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ROHELLA
Signing Date:05.07.2023
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b) Issue a Writ of Mandamus directing the Respondents to
consider all candidates, who are fulfilling the eligibility criteria
laid out in the advertisement, to take part in the selection
process by issuing admit cards to them for the post they have
applied for; and
c) Pass any such orders as the Hon'ble Court may deem fit in
the light of above mentioned facts and circumstances of the
case."
3. The Petitioner in the Writ Petition has described the process of
recruitment of enrollment as a personnel below officer rank in the armed
forces. He contended that Army, Air Force and Navy conducts their
independent selection process through various selection boards.
4. The Petitioner has further stated that earlier also, a PIL was preferred
i.e. W.P.(C.) No. 8678/2017 titled Onkar Choudhary Vs. Union of India &
Ors. challenging the methodology adopted by the Navy and Air Force in
short-listing the candidates by increasing the cut-off marks obtained by the
candidates in class 10+2 examination, and during the pendency of the
aforesaid Writ Petition, the Indian Air Force as well as Indian Navy had
filed an affidavit and the grievance raised in the PIL was redressed. The PIL
preferred in the aforesaid matter was disposed of on 24.04.2019. However,
the Indian Navy still continuing with the process of short-listing candidates
by increasing the cut-off marks obtained by them in the class 10+2
examination. The Petitioner has prayed for quashment of the advertisement
published in Employment News dated 16-22.10.2021. The advertisement
dated 16-22.10.2021 is reproduced as under:
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""
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5. A detailed and exhaustive reply has been filed on behalf of
Respondents, and the Respondents have stated that the Petitioner does not
have any locus to file the Petition. It is further stated that the present case is
a Public Interest Litigation in a service matter which deserves to be
dismissed.
6. The Respondents have also stated that the Petitioner is guilty of
suppressing facts before this Court by stating that he does not have any
personal interest in the litigation but, in fact, the Petitioner himself was an
Applicant for sailor‟s entry, and submitted his application for the post of
Sailor in Indian Navy as Artificer Apprentice (hereinafter to be referred as
„AA‟)/ Senior Secondary Recruit (hereinafter to be referred as „SSR‟) during
the year 2019, 2020 and 2021 for entry into Matric Recruitment (hereinafter
to be referred as „MR‟) in the October 2020 batch.
7. The Respondents have further stated that out of the four attempts, the
Petitioner absented himself in one, and was not selected in the remaining
three attempts.
8. The Respondents have further stated that the Petitioner - who himself
was an Applicant for the recruitment batch in August, 2021, wherein, the
same short-listing process, which was in existence earlier also, was adhered
to apply, has filed a PIL and it is nothing but personal interest litigation.
9. The Respondents have further stated that the advertisement for
recruitment of Sailors as SSRs/ AAs is published twice in a year in the
month of May-June and September-October, respectively and the selection
procedure provided under the advertisement is as under:
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"
i.) Advertisement for recruitment is published in
employment news and leading newspaper across the
country as well as on the website;
„www.joinindiannavy.gov.in‟.
ii.) Candidates are to fill online form on website
www.joinindiannavy.gov.in and upload scanned copy of
Class 10 and Class 12 mark sheets and Domicile
Certificate on the website.
iii.) Shortlising of candidates in carried out State-wise,
based on marks obtained in the qualifying (Class 12).
The shortlisted candidates are issued admit cards for the
next stage (written exam & physical fitness test). The
number of candidates shortlisted (10,000 candidates for
AA/SSR - 01/2022 batch) is based on the „testing
capacity‟ of the Indian Navy.
iv.) The shortlisted candidates undergo written
examination and physical fitness test at designated Naval
Recruitment Establishments.
v.) Merit List is compiled based on marks obtained in
the written examination (Stage II), subject to candidates
qualifying in physical fitness test. The candidates
featuring in the merit list are given the call up letter for
enrolment medical examination at Chilka.
vi.) On reporting at INS Chilka, candidates undergo
induction medical examination. Medically qualified
candidates are thereafter inducted."
10. The Respondents have stated that the process of recruitment in the
Indian Navy is a two stage process, wherein, stage-I is aimed at short-listing
of candidates for the subsequent stage-II examination, which thereafter is
conducted in a naval environment. Further, based upon the merit list for the
respective batch, the process of recruitment is continued.
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11. It has been further stated that the short-listing of the candidates prior
to 2018 was carried out on the basis of marks obtained in class 12th
examination and the number of short-listed candidates depended upon the
testing capacity of the Indian Navy.
12. The Respondents have further stated that the Indian Naval Entrance
Test (hereinafter to be referred as „INET‟) was conceptualized as a Pan-
India Computer Based Examination for short-listing of Sailors in the year
2014 and approval of the Hon‟ble Defence Minister for the same was
accorded on 15.07.2016.
13. Initially, first two examination cycles were conducted on a pilot basis
in the year 2018 for a limited number of entries and thereafter, the Naval
Entrance Test was expanded to include all sailor entries from February,
2019 onwards.
14. The Respondents have further stated that INET was conducting the
process of short-listing of candidates for the further recruitment process and
had replaced the earlier process of short-listing based on marks.
15. The Respondents have further stated that at a relevant point in time,
there was a manpower shortage in the Indian Navy, and on account of
nation-wide lockdown imposed by the Government of India in March 2020,
a batch holiday was declared in the Indian Navy recruitment cycle. The
same resulted in additional shortage of about 2500 Sailors and in those
circumstances, the impugned advertisement was issued i.e. Advertisement
No. 1/2022. The entire process of recruitment, on account of the aforesaid
examination, is over. The merit list of successful candidates has been
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prepared on the basis of result of written examination and physical fitness
test which was held between 06.12.2021 and 09.12.2021.
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
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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
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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, short-
listing 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.
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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
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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: -
"18. The constitution of Administrative Tribunals was
necessitated because of the large pendency of cases relating to
service matters in various courts in the country. It was expected
that the setting up of Administrative Tribunals to deal
exclusively in service matters would go a long way in not only
reducing the burden of the courts but also provide to the
persons covered by the Tribunals speedy relief in respect of
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their grievances. The basic idea as evident from the various
provisions of the Act is that the Tribunal should quickly redress
the grievances in relation to service matters. The definition of
"service matters" found in Section 3(q) shows that in relation
to a person, the expression means all service matters relating to
the conditions of his service. The significance of the word "his"
cannot be ignored. Section 3(b) defines the word "application"
as an application made under Section 19. The latter section
refers to "person aggrieved". In order to bring a matter before
the Tribunal, an application has to be made and the same can
be made only by a person aggrieved by any order pertaining to
any matter within the jurisdiction of the Tribunal. We have
already seen that the word "order" has been defined in the
explanation to sub-section (1) of Section 19 so that all matters
referred to in Section 3(q) as service matters could be brought
before the Tribunal. If in that context Sections 14 and 15 are
read, there is no doubt that a total stranger to the service
concerned cannot make an application before the Tribunal. If
public interest litigations at the instance of strangers are
allowed to be entertained by the Tribunal, the very object of
speedy disposal of service matters would get defeated."
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,
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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 12 th
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.
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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.
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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
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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 counter-
affidavit 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
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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
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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 W.P.(C.) No.12949/2021 Page 18 of 18 Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:05.07.2023 14:33:55