Negative equality does not come under Article 14

Sarthak Khandelwal | Kirit P. Mehta School Of Law, NMIMS University, Mumbai | 4th January 2020

HAV (OFC) RWMWI Borgoyary & Ors. Etc. Vs. Union of India & Ors.(Civil Appeal Nos.8986- 8988 of 2019)

Facts of Case:

Pankaj Negi- Appellant was enrolled in the Army Air Defence as Soldier Technical and was selected for the trade of Operation Fire Control while working as Havildar. He cleared Class I grade of his Technical Trade “Operation Fire Control” (OFC) in 2009. He also secured a diploma in Radar Technology, Surveillance, Electronic Warfare and Equipment Management from the Indira Gandhi National Open University (IGNOU) in 2011.

Deepak Kumar Mishra-Appellant was enrolled in the Army Air Defence(AAD) as Soldier Technical and cleared Class I grade of his Technical Trade “Operation Fire Control” (OFC) while working as Havildar from 04.08.2007. He cleared his Weapon Training Course (PWN) on 27.12.10. He was awarded a diploma in Radar Technology, Surveillance, Electronic Warfare and Equipment Management from IGNOU in 2011.

Rwmwi Borgoyary- Appellant was also enrolled in Army Air Defence as Soldier Technical and was promoted as Havildar. He cleared his diploma in Network Administration and Cyber Security. He also cleared Cyberoam Certified Network and Security Professional Course in December, 2011. He was awarded diploma in Radar Technology, Surveillance, Electronic Warfare and Equipment Management from IGNOU.

In January/ February, 2016, seven vacancies for Record Officers and eight vacancies for Technical Equipment Officer in Army Air Defence were notified.The Appellants applied and then undergone the selection process after which in a communication dated 23.03.17 they were informed that they were found ineligible for being considered for Technical Equipment Officer category. 

The Appellants submitted a representation to their Commanding Officer requesting him to take up their case at the appropriate level. The Commanding Officer recommended the case of the Appellants to the Director General of the Army Air Defence Regiment and requested him to direct the concerned officer to consider the Appellants for the post of Technical Equipment Officer(TEO) as they were eligible. As the pre-commissioning training was scheduled to commence, the Appellants filed Original Applications before the Armed Forces Tribunal which were dismissed. Their Applications for seeking Leave to Appeal were also dismissed.

Respondent contended that the qualification of Technical Instructor Fire Control which is acquired only after selection for the course and a ten month long training at AD College, followed by gaining experience as an instructor is compulsory. The Respondent’s response to the submission made on behalf of the Appellants that other similarly placed persons were appointed as Technical Equipment Officers was that an error was committed in making a few appointments and the Appellants were not entitled to be appointed as they were ineligible.

The Tribunal held that training for the trade of Operator Fire Control cannot be a substitute for the qualification of Technical Instructor Fire Control(TIFC) as the latter requires much more capability, skill and training as compared to the former. The Tribunal was of the opinion that the Appellants were not entitled to seek parity with a few appointments which were made due to a mistake.

counsel for the Appellants submitted that Army Instruction Nos.84 and 85 dated 12.10.1974 govern the selection of Junior Commissioned Officer/ non-commissioned officers for granting permanent commission (Special List) in the Army, in respect of Equipment Officers. The eligibility prescribed in the Army Instructions for grant of permanent commission for Junior Commissioned Officer and non-commissioned officers commissioned from Army ranks is that the candidates should have minimum educational qualification for appointment to the Special List. 

They also submitted that the standing instructions issued by the Adjutant General’s Branch, integrated HQ, Ministry of Defence (Army) on 17.01.2007 prescribing additional qualifications for appointment to the post of Technical Equipment Officer suffer from the vice of lack of jurisdiction. He also submitted that the standing instructions issued on 17.01.2007 cannot override Army Order dated 12.10.1974.contended that two persons who were similarly situated to the Appellants have been granted permanent commission and were also permitted to continue as commissioned officers and as such, there is no reason why the said benefit cannot be extended to the Appellants.

The counsel of the respondent said that the appellants had applied to TEO (AAD) category and Permanent Commission (Special List) category as well. An error was committed in processing their selection for appointment to the post of TEO (AAD), which was released later and they were held ineligible as they did not have the qualification of TIFC. The Appellants were considered for appointment to the post of Record Officer, but could not be selected. 

HELD:

The Supreme court uphold the judgement of the Armed Forces Tribunal and said that the claim of the Appellants contended that non-consideration of the Appellants for appointment as TEO is vitiated by hostile discrimination as two other persons who were similarly situated were appointed as TEOs and are continuing. It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha & Anr. v. Anup Kumar Senapati & Anr. 1 held that there is no concept of negative equality under Article 14 of the Constitution of India. The Appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the Respondents to perpetuate illegality. The Appeals are dismissed.