Union of India & Ors Vs. No. 664950 Im
Havildar/Cierk Sc Bagari  INSC 150 (15 April 1999)
Shah Mohammed Quadri, S.N. Phukan. S.N.Phukan, J.
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.
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
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.
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
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.
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.
have heard Mr. P.N. Mishra, learned Senior counsel for the appellant.
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
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.
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.
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.
decision of this Court in Indian Railway SAS (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.
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
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.
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.
Conditions for the grant of study leave are as under :
leave will be admissible to Officers of all Arms and Services.
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 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.
Leave will not be granted for correspondence courses, part time courses and
attending night classes.
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 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.
The maximum period of study leave will be up to 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.
Study leave Ex-India will ordinarily be admissible for those non-academic
courses which are not available at any University or Institution in India.
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.
Study leave vacancies will be filled up.
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 Screening Committee are quoted below :-
Usefulness off the subject of study to Arms/Service.
Subjects contributing to an officer's employability in the service.
Residual Service of the officer from the point of view of utility of his
education to the service.
Officers who have obtained admission in recognised Universities or Institutions
will be preferred.
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.
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. others
(AIR 1979 SC 1628), Union of India and another etc.
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.
to High Court, benefit of study leave must be made applicable equally to all.
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.
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 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
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
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.