Hav (Ofc) Rwmwi Borgoyary vs Union Of India

2. 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.

3. Deepak Kumar Mishra-Appellant was enrolled in the

Army Air Defence 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

27.12.2010. He was awarded diploma in Radar

Technology, Surveillance, Electronic Warfare and

Equipment Management from IGNOU in 2011. During

the course of his service, he was a recipient of “Veerta

Patra” and “Commandant’s Appreciation”.

[2]

4. Rwmwi Borgoyary- Appellant was also enrolled in

Army Air Defence as Solider 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 – CNSP Course in December, 2011. He was

awarded diploma in Radar Technology, Surveillance,

Electronic Warfare and Equipment Management from

IGNOU.

5. In January/ February, 2016, seven vacancies for

Record Officers and eight vacancies for Technical

Equipment Officer (TEO) in AAD were notified. The

Appellants applied for being considered to the said

posts. The Appellants were permitted to undergo the

selection process after which they were informed by a

communication dated 23.03.2017 that they were found

ineligible for being considered for TEO (AAD) category.

The Appellants submitted a representation to their

Commanding Officer requesting him to take up their

[3] case at the appropriate level. The OC Troops (Col A) /

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 TEO as they were eligible. As the pre-commissioning

training was scheduled to commence, the Appellants

filed Original Applications (OA) before the Armed Forces

Tribunal (for short “the Tribunal”) which were dismissed.

Their Applications for seeking Leave to Appeal were also

dismissed.

6. The Respondents contended before the Tribunal

that the eligibility criteria for Special List (SL) category

were given at Appendix ‘A’ to AG’s Branch/ MP-2 letter

dated 17.01.2007. Para 2 dealt with the Technical

Equipment Officers (AAD). The eligibility criteria is as

follows:

“2. Technical Equipment Officer (Arty) & Technical Equipment Officer (AAD):

[4] (a) Qualification. Senior School Certificate Exam Class XI (CBSE Pattern) or equivalent.

(b) Service. Minimum 10 years of service on 01 Jul of the year in which the applications are invited.

(c) JCOs/ NCOs from AIG (FD), AIG (CB), AIG (ADO) and TIFC (AD & FD) category or Clk/ SKsT Grade-I with five years experience in accounting/ holding of Army Eqpt/ Stores.”

7. It was further contended on behalf of the

Respondent that the qualification of TIFC (AD & FD)

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 TEOs was that an error was

committed in making a few appointments and the

Appellants were not entitled to be appointed as they

were ineligible.

[5]

8. The Tribunal held that training for the trade of

Operator Fire Control (OFC) cannot be a substitute for

the qualification of Technical Instructor Fire Control (AD

& FD) 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.

9. Mr. Sudhanshu S. Pandey, learned counsel for the

Appellants submitted that Army Instruction Nos.84 and

85 dated 12.10.1974 govern the selection of JCOs/ NCOs

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 JCOs and NCOs

commissioned from Army ranks is that the candidates

should have minimum educational qualification for

appointment to the Special List. In addition, the

candidates must have specialized knowledge and

[6] practical experience connected with the duties of the

posts to which they applied. Mr. Pandey 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 TEO 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. He

further 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.

10. On behalf of the Respondents, it was contended

that by a letter dated 01.09.2006 of the Ministry of

Defence, Administrative Powers of the Service

Headquarters were delegated to the Adjutant General

(Army), and he was authorized to introduce new entry [7] schemes/ disciplines including technical educational

qualifications for induction of personnel into the Army

with no financial implications. TEO (AAD) category was

introduced by the standing Instructions dated

17.01.2007 by Adjutant General (Army) and it cannot be

said that the said Instructions providing for the eligibility

criteria for the post of TEO are contrary to the Army

Order dated 12.10.1974. The Appellants had applied to

TEO (AAD) category and PC (SL) category as well. An

error was committed in processing their selection for

appointment to the post of TEO (AAD), which was

realised later and they were held ineligible as they did

not have the qualification of TIFC (AD & FD). The

Appellants were considered for appointment to the post

of Record Officer, but could not be selected. In respect

of the submission pertaining to discrimination, it was

argued by the learned counsel for the Respondents that

the mistake committed in appointing certain ineligible

persons is under investigation and corrective action will

be taken.

[8]

11. We have examined the submissions made by

learned counsel and we are of the considered opinion

that the Appellants are not entitled to the relief claimed.

There is no merit in the submission made by the learned

counsel for the Appellants that the Army Order Nos.84

and 85 issued on 12.10.1974 have to be followed and

the Instructions issued on 17.01.2007 should be

ignored. The Instructions issued on 17.01.2007 are in

addition to the Instructions dated 12.10.1974.

Moreover, the Appellants had applied and participated

in the selection conducted for the posts of Record

Officer and TEOs cannot be permitted to challenge the

Instructions of 2007. There is no dispute that the

Appellants were aware of the Instructions of 2007. It is

also not disputed that the Appellants were considered

for the post of Record Officers and were not selected

due to lack of merit. No objection was raised by the

Appellants during the process of selection.

[9]

12. We are in agreement with the Tribunal that

selection to the post of Technical Equipment Officer

requires standards of high order and training in the

trade of Operator Fire Control (OFC) is no substitute for

the qualification of Technical Instructor Fire Control (AD

& FD). The Appellants who do not have the qualification

of Technical Instructor Fire Control (AD & FD) cannot

claim appointment to the post of TEO in Air Defence

Branch.

13. Learned counsel for 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

[10] 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.

14. In view of the above, the Appeals are dismissed.

.……................................J. [L. NAGESWARA RAO]

..…………..........................J. [HEMANT GUPTA]

New Delhi, December 06, 2019.

1 (1) 2019 SCC Online SC 1207

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