While fully, firmly and finally upholding the Union Government’s Agnipath scheme for the Armed Forces, the Delhi High Court in a most laudable, learned, landmark and latest judgment titled Harsh Ajay Singh vs Union of India and Ors in W.P.(C) 11011/2022 & CM APPL. 32617/2022 and Ors and cited in Neutral Citation Number: 2023/DHC/001414 that was finally pronounced on February 27, 2023 has said that it can conclusively state that the scheme was made in national interest to ensure that armed forces are better equipped.

It must be noted that while referring to the frequent skirmishes on the borders as we see specially with the Chinese and Pakistani forces, the Division Bench of Hon’ble The Chief Justice Satish Chandra Sharma and Hon’ble Mr Justice Subramonium Prasad minced just no words to observe that such transgressions exacerbate the need to have a leaner and fitter Armed Force which is capable of handling the mental and physical distress that accompanies service in the Armed Forces.

It deserves mentioning here that the Division Bench called the scheme a well thought out policy decision by the Union Government and said rather than focusing on the alleged political motives of the scheme, it is necessary to focus on the benefits that are being provided by it. It also said that policy decisions, particularly those which have wide-ranging implications on the nation’s health and security, should be decided by bodies best suited to do so.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble The Chief Justice Satish Chandra Sharma for a Division Bench of the Delhi High Court comprising of himself and Hon’ble Mr Justice Subramonium Prasad sets the ball in motion by first and foremost putting forth in para 1 that:
A batch of twenty-one Writ Petitions being, W.P.(C) Nos. 10023/2022, 10231/2022, 10386/2022, 10422/2022, 10748/2022, 10856/2022, 10887/2022, 11011/2022, 11012/2022, 11013/2022, 11014/2022, 11904/2022, 12034/2022, 13910/2022, 13911/2022, 13912/2022, 13913/2022, 14596/2022, 15171/2022, 15174/2022 and 15319/2022 were heard analogously and were reserved on 15.12.2022.

Thereafter, W.P.(C) 17302/2022 came up for hearing on 19.12.2022 and was heard and reserved for judgment. W.P.(C) 16695/2022 was received on transfer from the High Court of Kerala at Ernakulum and came up for hearing on 19.12.2022 on which date there was no appearance on behalf of the Petitioner and the matter was adjourned to 17.02.2023. On 17.02.2023 the matter was heard and reserved for judgment.

Interestingly enough, we find that the Division Bench then discloses in para 2 stating:
While some Writ Petitions challenge the constitutional validity of the Agnipath Scheme (hereinafter referred to as ‘the Impugned Scheme’), in others, the grievance of the Petitioners is that they went through the recruitment process for the Armed Forces that was prevalent prior to the Impugned Scheme. It is stated that they have been shortlisted but have not been appointed because of the Impugned Scheme and, thereby, have been prejudiced.

Some Writ Petitioners have challenged both - the Scheme and the prejudice caused to them by the introduction of the Impugned Scheme. This judgment is, therefore, divided into two parts - Part A deals with the validity of the Impugned Scheme and Part B deals with the grievances of the Petitioners that the Impugned Scheme has taken away their rights insofar as they have participated in the recruitment process and many of them have been shortlisted but have not been appointed due to the Impugned Scheme.

To put things in perspective, the Division Bench envisages in para 3 that:
The Ministry of Defence, Union of India came up with a scheme for recruitment of personnel below the rank of commissioned officers for the Indian Army, Indian Air Force and Indian Navy (hereinafter referred to as the Indian Armed Forces) for a period of four years. The recruited soldiers have been titled as ‘Agniveers’. As per the scheme, individuals aged between 17.5 years to 21 years are eligible to apply for recruitment as Agniveers.

Upon being recruited, such individuals would get trained for a period of 6 months and will be in active service for a period of 3.5 years and post that 25% of such Agniveers will be retained as soldiers under the permanent commission and the rest of the Agniveers will be permitted to return to the civilian life. As per the scheme, Agniveers are given a salary of about Rs. 4.76 lacs per year to begin with, which can be increased to about Rs. 6.92 lacs by their fourth year in service.

The Agniveers, in case of a mishappening or an accident, are liable to receive a non-contributory life insurance cover of about Rs. 48 lacs, additional ex-gratia of Rs. 44 Lacs for death attributable to service, and salary for the unserved portion of the four year service. At the end of the four year tenure, each Agniveer will leave the service with a corpus of about Rs. 11 lacs. Many of the Agniveers who are not retained in the army will be absorbed in the paramilitary forces. The Agniveers who are not retained will also be given certificates of experience of the nature of work rendered by them which will facilitate them to get jobs in private sector.

Most forthrightly, the Division Bench mandates in para 74 that:
There is another irreconcilable factor weighing against the Petitioners: public interest. As has already been stated, a recruitment process can be changed by the State midway, if the same is in public interest. The Agnipath Scheme seems to adequately pass this test as well. The stated objective of the scheme is to reduce the age of the Armed Forces; this will make the forces leaner, agile and will be greatly beneficial for border security. It has also been stated that the Impugned Scheme, by reducing the average age of soldiers, will bring our Armed Forces at par with other nations, as the average age of Armed Forces across the world is 26 years. The stated objective of the Impugned Scheme is to have a blend of young Jawans, Sailors or Airmen between the age of 18-25 years as Agniveers, supervised by an experienced regular cadre having the age of 26 years. To achieve this goal, the State has also been consistently decreasing the age bracket of officers. As dealt with in the first part of this judgment, such stated objectives of the Government cannot be said to be arbitrary, whimsical or mala fide; they serve a definite public interest.

Most analytically, the Division Bench points out in para 79 that:
The contention of the learned Counsel for the Petitioners that the persons who have been appointed in Navy have been given preferential treatment via-a-vis the recruitment of Soldiers and Airmen in the Army and the Air Force respectively also cuts no ice. A perusal of the material, as submitted by the learned ASG, shows that due to COVID-19 Pandemic, there was no recruitment in the Indian Air Force and, therefore, 02/2020 Batch was declared as a Batch holiday. The learned ASG has also submitted that before the onset of COVID-19 and the ensuing lockdown, the written examination of the candidates of 02/2020 Batch had been completed and the merit list had been prepared and all the candidates of 02/2020 Batch were treated as 01/2021 Batch. It has also been submitted by the learned ASG that the recruitment of Sailors, which is the entry level appointment in the Indian Navy, is much lesser as compared to the Indian Army and the Indian Air Force. It has been submitted by the learned ASG that the total strength of Sailors in Indian Navy is approximately 60,000 and due to COVID-19 Pandemic, the Indian Navy has a manpower shortage of approximately 12,500 Sailors. The learned ASG has further submitted that there was a short-fall of 16.5% Sailors in the Indian Navy in 2020 due to delay in recruitment process and not recruiting Sailors in the Indian Navy would only make the situation worse. Resultantly, the Indian Navy had to, in national interest, continue its recruitment process. In view of the reasons given by the learned ASG, this Court does not find any force in the contention of the Ld. Counsel for the Petitioners that if the Indian Navy could continue recruitment, so could the Indian Army and the Indian Air Force.

Be it noted, the Division Bench notes in para 81 that:
With respect to the Indian Army, the rally recruitment was undertaken to increase intake of the people from tribal and hilly areas in the Armed Forces so as to maintain a demographic balance, rallies were conducted at various locations in the country to recruit young people in the Armed Forces. A chart detailing the recruitment rallies conducted by the Army Recruiting Offices (AROs) has been submitted by the Ld. ASG which shows that the recruitment rallies during the COVID-19 Pandemic were conducted in ARO Ludhiana at Khanna from 07.12.2020 to 22.12.2020; in ARO Lansdowne at Kotdwar from 20.12.2020 to 02.01.2021; in ARO Silchar at Agartala from 12.01.2021 to 20.01.2021 and in ARO Siliguri at Sevoke Road Mil Station from 13.01.2021 to 21.01.2021. The said chart further shows that out of 47 rallies that were to be conducted only four rallies could be conducted between December 2020 & January 2021 as compared to about 80 rallies which were conducted throughout the year in pre-pandemic. As explained by the Ld. ASG, the method of recruitment of soldiers by way of written examination and the method of recruitment of soldiers by way of rallies are different and the time taken in both the processes is also different; while the rallies are a fast-track method of recruitment, the regular mode of recruitment was multi-pronged, and took longer, especially during the pandemic. By the time the normal recruitment process in the Army was concluded, the Government had already taken the policy decision to bring in the new Agnipath Scheme.

It would be instructive to note that the Division Bench clearly mentions in para 82 that:
Hence, due to these marked differences in rally recruitment and the erstwhile method of recruitment, the contention of the Petitioners that the normal method of recruitment through examinations must be concluded, does not hold any water. In any event, it cannot be said that the Government ought not to have recruited any candidate, other than through CEE, as the same would result in massive shortage of soldiers in the Indian Army. Article 14 cannot be invoked to state that soldiers must have been recruited by both the processes, i.e. by CEE and by conducting rallies, and appointing soldiers through only one of the source is violative of Article 14 of the Constitution of India.

While continuing in a similar vein, the Division Bench then observes in para 83 that:
Similarly, for the Indian Air Force too, due to delay in recruitment through examination mode, i.e. STAR, rallies were conducted at various places in the country to cater to the intake of Air Force. The rallies for recruitment in the Air Force were conducted between January and February, 2020 and from September to December, 2020.

Most remarkably, the Division Bench holds in para 86 that:
The Petitioners, during the course of hearing, also sought to argue that the stated objective of maintaining demographic balance in the Armed Forces through the rallies is misconceived since such rallies were also conducted in Delhi and Bhopal. This argument too does not find favour with this Court as we cannot take a myopic view of the objective sought to be achieved by the rally recruitment. During the pandemic, we were confronted with unprecedented and uncertain times. Such unprecedented times warranted that certain decisions be taken in public interest to ensure that the Armed Forces could function optimally. It is in such public interest that a handful of rallies were conducted in cities. This by itself does not mean that the purpose of rallies, which is to maintain demographic balance, was abandoned by the Government. This Court does not find any fault with this decision of the Government, which was carried out in good faith, and in larger public interest.

It cannot be glossed over that the Division Bench clearly holds in para 87 that, We have gone through the genesis of the two principles of equity, and the jurisprudence governing their applicability. We have also had the occasion to go through certain cases, with similar facts; wherein a recruitment process was halted midway. It emerges that firstly, the Petitioners have no vested right to seek such recruitment, and secondly, that promissory estoppel and legitimate expectation find themselves severely restricted by the overarching concerns of public interest.

Most significantly, the Division Bench minces just no words to hold in para 88 that:
We have extensively gone through the Agnipath Scheme, and can conclusively state that this Scheme was made in national interest, to ensure that the Armed Forces are better equipped. Due to this, this Court finds that the Petitioners have no vested right to claim that the recruitment under the 2019 Notification and CEE Examination needs to be completed. Furthermore, both promissory estoppel and legitimate expectation cannot be applied in the instant case to force the Government to complete the recruitment keeping in mind larger public interest.

Finally, the Division Bench concludes by holding in para 89 that:
In light of this, all the Writ Petitions stand dismissed, along with the pending application(s), if any.

In conclusion, the Delhi High Court has made it indubitably clear while dismissing the writ petitions that national security is at the heart of Agnipath scheme. It is a no-brainer that national security stands paramount and no compromise can be made on it under any circumstances. It also made it crystal clear that a fitter force is definitely needed against border skirmishes which we are witnessing also so regularly along both the Chinese and Pakistani borders. No denying!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh