Case: HAV (OFC) RWMWI BORGOYARY Vs. UNION OF INDIA

2. Pankaj Negi- Appellant was enrolled in the Army Air Defence as Soldier T echnical and was selected for the trade of Operation Fire Control while working as Havildar. He cleared Class I grade of his T echnical Trade Operation Fire Control (OFC) in 2009. He also secured a diploma in Radar T echnology, Surveillance, Electronic Warfare and Equipment Management from the Indira Gandhi National Open University (IGNOU) in 20113. Deepak Kumar Mishra-Appellant was enrolled in the Army Air Defence as Soldier T echnical and cleared Class I grade of his T echnical 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 T echnology, Surveillance, Electronic Warfare and Equipment Management from IGNOU in 2011. During the course of his service, he was a recipient of Veerta Patra and Commandants Appreciation4. Rwmwi Borgoyary- Appellant was also enrolled in Army Air Defence as Solider T echnical 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 T echnology, Surveillance, Electronic Warfare and Equipment Management from IGNOU5. In January/ February, 2016, seven vacancies for Record Officers and eight vacancies for T echnical 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 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 dismissed6. The Respondents contended before the Tribunal that the eligibility criteria for Special List (SL) category were given at Appendix A to AGs Branch/ MP-2 letter dated 17.01.2007. Para 2 dealt with the T echnical Equipment Officers (AAD). The eligibility criteria is as follows:2. T echnical Equipment Officer (Arty) & T echnical Equipment Officer (AAD):(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/ Stores7. 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 Respondents 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 ineligible8. The Tribunal held that training for the trade of Operator Fire Control (OFC) cannot be a substitute for the qualification of T echnical 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.

Court's reasoning:
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 selection12. We are in agreement with the Tribunal that selection to the post of T echnical Equipment Officer requires standards of high order and training in the trade of Operator Fire Control (OFC) is no substitute for the qualification of T echnical Instructor Fire Control (AD & FD). The Appellants who do not have the qualification of T echnical Instructor Fire Control (AD & FD) cannot claim appointment to the post of TEO in Air Defence BranchIt 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) 2019 SCC Online SC 1207held 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.