Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
NO. 664950 IM HAVILDAR/CIERK SC BAGARI
DATE OF JUDGMENT: 15/04/1999
BENCH:
Syed Shah Mohammed Quadri, S.N. Phukan.
JUDGMENT:
S.N.PHUKAN, J.
This appeal is directed against the full bench
decision dated 24.12.1993 of the High Court of Himachal
Pradesh in Civil Writ petition No, 747 of 1991.
For the purpose of appreciating the points urged in
this appeal we may briefly state the facts.
The respondent appeared in person before the High
Court. In this Court though notices were issued he did not
appear hence the matter was taken up for hearing in his
absence.
The respondent is a Havildar/Clerk in Indian Army
and he was interested in prosecuting his studies further for
obtaining higher educational qualifications such as
post-graduation in law but he felt handicapped because of
the provisions contained in Army Instruction namely Army
Order No. 11 of 1987 according to which only Regular
Commissioned Officers can be granted extra-ordinary leave
subject to certain conditions and not persons like the
petitioner, who is not an officer. Therefore, he challenged
the said Army Order before the High Court on the grounds of
discrimination, without any lawful basis etc.
Before the High Court the present appellants took
the stand that study leave is granted to a Regular
Commissioned Officer to get higher studies having a direct
and close connection with the spheres of his duties. It was
also stated that the nature of duties of Junior Commissioned
Officers and non-Commissioned Officers is different as
compared to Regular Conimissioned Officers. The appellants
took the stand that the matter of grant or refusal of study
leave is purely discretionary. The allegation of
discrimination was denied. It was also sated that for
Junior Commissioned Officers and Noncommissioned Officers
there are institutions of the appellants where these
Officers are trained.
We find from the judgment that & prayer made on
behalf of the present appellants for adjournment was denied
on the ground stated in the judgment and the writ petition
was disposed of without hearing the learned counsel for the
appellants.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
The High Court relying on the decisions of this
Court came to the finding that the duties of clerical nature
are also important and therefore, rejected the stand of the
appellants and held that higher educational qualification is
also necessary for clerical staff.
According to the High Court the present
classification for granting study leave was not founded on
an intelligible differentia and the same has also no
relation to the object sought to be achieved and benefit of
study leave must be made available equally to all classes of
above officers of Indian Army.
We have heard Mr. P.N. Mishra, learned Senior
counsel for the appellant.
Before entering into the reasoning given by the High
Court let us now first consider the scope and ambit of
Articles 14 and 16 vis-a-vis different classes of employees.
We may refer to:
In All India Station Masters’ and Assistant Station
Masters’ Association Delhi and others Versus General
Manager, General Railway and others AIR 1960 SC 384 = 1960
(Vol.II SCR 311 while considering Article 16 of the
Constitution the Constitution Bench of this Court inter alia
held that equality means - equality equality as between
members of the same class of employees, and not equality
between members of separate, independent classes.
Similar views were expressed by the Constitution
Bench of this Court in Jagannath Prasad Sharma Versus The
State of Uttar Pradesh and others AIR 19661 SC 1245 = 1962
(Vol.I) SCR 151 and in paragraph 15 it was inter alia held
that equal protection of the laws does not postulate equal
treatment of all persons without distinction, it merely
guarantees the application of the same laws alike and
without discrimination to all persons similarly situated.
In The State of Mysore and another Versus P.
Narasinga Rao AIR 1968 SC 3349 = 1966 (Vol. I) SCR 407 this
Court considered the validity of the Rules and it was inter
alia held that it is well settled that though Article 14
forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation and when any
impugned rule or statutory provision is assailed on the
ground that it contravenes Article 14, its validity can be
sustained if two tests are satisfied namely classification
on which it is founded must be based on an intelligible
differentia which distinguishes persons or things ground
together from others left out of the group, and the second
test is that the differentia in question must have a
reasonable relation to the object sought to be achieved and
in other words there must be some rational nexus between the
basis of classification and the object intended to be
achieved. It was also held that Articles 14 and 16 form
part of the same constitutional code of guarantees and
supplement each other and in other words Article 16 is only
an instance of the application of the general rule of
equality laid down in Article 14 and it should be construed
as such and, therefore, there is no denial of equality of
opportunity unless the person who complains of
discrimination is equally situated with the person or
persons who are alleged to have been favoured.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
In the decision of this Court in Indian Railway SAS
Staff Association & other Vs. Union of India and others
(1998 (2) SCC 651), it was held that there can be many
criteria for classification of posts such as administrative
procedure and others which have to be taken into
consideration by the authorities concerned before deciding
on the classification.
Situated thus, broadly speaking, concept of equality
has an inherent limitation arising from very nature of the
guarantee under the Constitution and those who are similarly
circumstanced are entitled to equal treatment. If there is
a rational classification consistent with the purpose for
which such classification was made, equality is not
violated. Article 16 of the Constitution does not bar a
reasonable classification of employees or reasonable tests
for selection. Equality of opportunity of employment means
equality as between members of the same class of employees
and not equality between members of separate independent
classes.
Mr. Mishra, learned counsel for the appellant, has
drawn our attention to Clauses (XII), (XV) and (XVIII) of
Section 3 of The Army Act, 1950. These clauses define
’Junior Commissioned Officer’, Non-Commissioned Office’ and
’Officer’. Clause (XVIII) of Section 3 of The Army Act,
1950, while defining the term ’Officer’, has clearly stated
that the Officer or Non-Commissioned Officer. Relying on
the above definitions, Mr. Mishra has rightly pointed out
that legislature has classified the personnel of the Armed
Forces into different categories and this classification has
not been challenged. We are of the opinion that legislature
while creating different classes of officers has classified
them on the basis of the requirement of armed forces and
thus this classification cannot be said to be arbitrary. If
pay, perks and other privileges granted to these officers
are different, we are, therefore, of the opinion that there
is no question of violation of provisions of articles 14 and
16 of the Constitution.
Now the question is whether the impugned order,
namely, Army Order No. 11 of 1987 is discriminatory. We
quote below the relevant portion of the order as quoted in
the impugned judgment of the High Court :-
Rule 1 and 2 are given below :-
"1. All regular Officers will be
eligible for the grant of extra leave
known as Study Leave for pursuing special
studies in India or Ex-India under the
conditions specified in para 2 below.
2. Conditions for the grant of study
leave are as under :
(a) Study leave will be admissible to
Officers of all Arms and Services.
(b) Study Leave may be granted to an
officer enabling him to undergo, in or
Ex-India, a non academic full time regular
course/programme/doctoral studies leading
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
a recognised formal diploma/degree in
institutions recognised by the Ministry of
Education, Science and Technology,
certified by Army Headquarters as
enhancing the usefulness as an officer.
Study Leave will not be granted for
correspondence courses, part time courses
and attending night classes.
(c) Study Leave shall not be granted
to an officer who is due to retire from
service within 5 years or the date of
return to duty from study leave in respect
of Cols and above, and 7 years for Lt.Cols
and below. Residual service will be
calculated in the rank of the officer at
the time of sanction of study leave.
Study leave shall not be granted to an
officer who has rendered less than 10
years service. However, the minimum
service can be lowered under special
service can be lowered under special
circumstances on merits of the case by the
sanctioning authority. Residual service
for battle casualties and permanent low
medical category officers whose category
is either attributed or aggravated due to
uncongenial military service shall be
three years.
(d) The maximum period of study leave
will be upto 24 months. It may be extended
by a period of two months annual leave (if
not already availed) of the year in which
study leave commences, plus an additional
two three years cycle spanning the study
leave period, if so required for the
specific study being undertaken. Furlough
rates of pay will be admissible during
furlough leave when granted. The maximum
period of study leave, including annual
leave and furlough will be 28 months
during the entire service of the officer.
(e) Study leave Ex-India will
ordinarily be admissible for those
non-academic courses which are not
available at any University or Institution
in India.
(f) Study leave will be admissible
not more than twice throughout the
service, subject to the over all 28 months
limit prescribed in sub-para (d) above.
(g) Study leave vacancies will be
filled up.
XXXXXXXXXXXXXXXXXX X XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX X XXXXXXXXXXXXXXXXXX
"The application for approving study leave
has to be scrutinised by the Screening
Committee as per the impugned order and
priorities which are to be followed by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
Screening Committee are quoted below :-
(a) Usefulness off the subject of
study to Arms/Service.
(b) Subjects contributing to an
officer’s employability in the service.
(c) Residual Service of the officer
from the point of view of utility of his
education to the service.
(d) Officers who have obtained
admission in recognised Universities or
Institutions will be preferred.
(e) Officers who have been away from
regimental duties for the last two years
after specialised courses or post graduate
courses will be given lower priority.
(f) Officers with a good career
profile will be given preference.
(g) Battle casualties and disabled
officers who have limited scope for
furthering their career will be given
preference."
The High Court after stating the law laid down by
this Court in various decisions including Maneka Gandhi vs.
Union of India and others (AIR 1978 SC 597), Ajay Hasia vs.
Khallid Mujib Sehravardi and others (AIR 1981 SC 487), R.D.
Shetty Vs. The International Airport Authority of India and
others (AIR 1979 SC 1628), Union of India and another etc.
Vs. Tulsi Ram etc. (1985 (3) SCC 398), held that impugned
Army Order is not based on reasonable classification and
denial of study leave to Junior Commissioned Officers,
Non-Commissioned Officers and other ranks is not only
irrational and arbitrary and the classification is not
founded on an intelligible different but the same also has
no rational relation with the object sought to be achieved.
According to High Court, benefit of study leave must be made
applicable equally to all.
The Army authorities have given reasons for not
making available the benefit of study leave to the other
categories of officers except Commissioned Officers. It has
been categorically stated that for officers of other rank,
there are other institutions where courses are conducted for
these categories of personnel and by sending them for these
courses, proper care is taken to ensure efficiency in the
armed forces. In fact, the petitioner has admitted, as
stated in the writ petition, that tow weeks’ Computer Course
in Jodhpur University was organised by the Army Authorities.
It has also been stated in the counter that there
cannot be any dispute that character and duties of Junior
Commissioned Officers and Non-Commissioned Officers are
different as compared to that of regular Commissioned
officers. If the competent authority thought it fir and
proper that case for study leave for Commissioned Officers
should be considered and this benefit should not be given to
other categories of officers, as for this category Army
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Authorities take adequate care for training them in their
own institutions or outside, it cannot be said that impugned
Order No.11 of 1987 is arbitrary or irrational. The object
as stated in the counter, of granting study leave is to
enhance the knowledge of Commissioned Officers who have an
important role to play not only to maintain discipline but
also for performing their duties as Commissioned Officers.
Therefore, it cannot be said that Army Order No.11 of 1987
was not founded on intelligible differentia and it has no
relation with the object sought to be achieved and we hold
that the Order in question is not violative of Article 14 of
the Constitution.
For the reasons stated above, we find merit in the
appeal and accordingly it is allowed by setting aside the
impugned order. Costs on the parties.