Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.8986- 8988 of 2019  

HAV (OFC) RWMWI Borgoyary & Ors. Etc.   .... Appellant(s)

Versus

Union of India & Ors.      ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. These  Appeals  arise  from  the  judgment  of  the

Armed Forces Tribunal, Principal Bench, New Delhi dated

08.08.2018  dismissing  the  applications  filed  by  the

Appellants for quashing the order dated 23.03.2007, by

which  the  Appellants  were  declared  ineligible  for

appointment as Technical Equipment Officers (TEO).   

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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

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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):

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(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.  

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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

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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

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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.  

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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.    

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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

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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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