Upholding Agnipath scheme: Supreme Court dismisses petitions challenging Delhi HC order

The bench, also comprising Justices P S Narasimha and J B Pardiwala, said that it did not find anything arbitrary in the recruitment done under the Agnipath scheme or that it was motivated by any extraneous consideration.

“There is no vested right here. The High Court has said the government cannot act arbitrarily. But it is not really a decision which is weighed in by any extraneous circumstances or any arbitrary reasons,” the CJI remarked while turning down the pleas.

Appearing for some of the appellants, Advocate Arunava Mukherjee said he was not challenging the scheme but only seeking directions to complete the previously notified recruitment process to Army and Air Force.

He argued that “it will make no difference to the Agnipath scheme even if these people are recruited. Because the Union says it will take 15-20 years for Agnipath to show some effect”.

But the court said nobody has a vested right in matters of employment unless the appointment is made. “Anyway, those people came in. Now we are not going to displace those people…You were people who had to come through the normal process. And they had cancelled it or they didn’t proceed with it as the Agnipath scheme had by then intervened. There is no vested right unless and until appointment is made.”

Appearing in a related matter involving petitioners who challenged their non-appointment after their names appeared in a provisional list for recruitment to Air Force, Advocate Prashant Bhushan said “there was written exam, thereafter physical test, medical exam, everything was done. Thereafter a provisional select list was published showing the ranks etc. Thereafter for more than one year, every three months they kept saying that appointment letters were going to be issued, however they were postponed due to Covid-19, etc.”

He submitted that “in the meantime they did recruitment rallies for the same posts claiming it was for fast-track recruitments to address the demographic imbalance to recruit tribal people, etc”. He added that these candidates had got jobs in BSF and other paramilitary organisations, but had refused as they were told that Air Force recruitment letters will be issued.

“They didn’t say the issue of letters being postponed due to Agnipath,” he said, adding there was the issue of promissory estoppel.

“After a more than 2 year process, you have repeatedly told me that letters are going to be issued…,” said Bhushan.

The CJI, however, pointed out that “promissory estoppel is always subject to overarching public interest”.

Justice Narasimha added that “this is not a contract matter where promissory estoppel in public law was applied, it is a public employment” and that “the question of applying this principle will not arise in this case”.

Appearing for the Centre, Additional Solicitor General Aishwarya Bhati said the rallies were held in view of the exigencies of the time.

“There were 11 special rallies. The recruitment took place during Covid times. These were extraordinary times that the institutions were grappling with. The process which the defence forces have carried out then is not a process of pick and choose. We wanted to fill up these vacancies because we needed to fill these vacancies in the defence interest, in the national interest,” she submitted.

While dismissing some of the petitions, the court on Bhushan’s request agreed to hear the matter in which he appeared separately, on April 17.