Delhi High Court
Krishan Chand vs Union Of India And Anr. on 1 September, 1995
Equivalent citations: 1995IVAD(DELHI)285, 60(1995)DLT597, 1995(35)DRJ434
JUDGMENT Usha Mehra, J.
(1) The short point involved in this petition is whether services rendered by the petitioner in the Indian Air Force for nearly 22 months can be counted towards pensionary benefits. The petitioner joined Indian Air force and served from 21st March,1967 to 11th January,1970. He was, however, discharged from Air Force w.e.f. 11th January,1970 on 'Selection for Permanent Commission' in the Army. His lien on the present rank was not maintained nor the service rendered by him for the duration of his pre-commissioning training has been counted towards pensionery benefits. The action of the respondent is based on the wrong interpretation of the rules. When on being selected on permanent commission, his duration of pre-commissioning training was not considered. The petitioner made representation through Commandant Indian Military Academy seeking benefit of service rendered during that period. He also met personally with the then Chief of Air Staff, but his representation was rejected by the Army Head Quarters on 20th May,1976 thereby showing its inability to sponsor the petitioner's case for the benefit of service rendered by him in the Indian Air Force from 21st March,1967 to 11th January,1970. He thereafter filed a non-statutory complaint. The same was also rejected on 17th May,1977 but without assigning any reason. The Controller General of defense Accounts informed the petitioner that his service rendered in the Air Force could not be counted for pension because of break in service as he stood discharged, hence could not claim the benefit of pre-commissioning training. Subsequent thereto on 12th September,1991, Army Head Quarters intimated to the petitioner that his service in Air Force preceding his discharge on 11th January,1970 had been counted but the pre-commissioning period at the Indian Military Academy could not be counted as he was not granted pay and allowances for that period. The petitioner filed a statutory complaint which met the same fate, as his earlier representation, on 24th January,1994. Aggrieved by the wrong interpretation given to the rules and the army instructions the petitioner approached this Court. The respondent has taken the plea that under the provisions of Iaf Act Rules,1932 Chapter Iii, Rule 13, Clause (VI) "on selection for permanent commission in the Army" the petitioner was discharged on 11th January,1970. Hence, his name was struck off from the strength of Iaf w.e.f. 12th January,1970. That there are Air force Instructions called Afi 142/62 under para No.5 of that instructions, the time spent by the petitioner as airman in Indian Military Academy (in short IMA) was not to be treated as service. Hence the petitioner cannot take advantage of the period spent in IMA. Moreover, pursuance to this instruction, the petitioner was not granted pay and allowances as he underwent training at IMA. Hence, the petitioner was not treated
142.Pay and Allowance as "Service Cadets" to Airmen including Apprentices during pre-commissioning training. Airmen including Apprentices of the Air Force selected as Cadets for commission in the Armed Forces will be treated as "Service Cadets".
(2) During the period of their training as cadets at the National defense Academy or Naval and Air Force Establishments, Service Cadets will receive Pay and Allowance of their substantive rank/classification held by them as airmen or as for an apprentice at the time of selection as Cadet. They will also be entitled to receive increments of pay, if any, admissible.
(3) If the pay and allowances of their substantive rank/classification be less than the financial assistance admissible under Government of India, Ministry of defense letter No.F.130/49 D-1(a) dated the 1st November,1949 and Air HQ/9141/3/PP&R/AF/17504/D.4 dated the 20th December,1949 to direct cadets and provided they are otherwise eligible for such assistance, they will also receive the difference between the two amounts.
(4) Such airmen (including Apprentices) will be borne supernumerary to the sanctioned cadre of the Air Force for the period of such training and struck off the strength as airmen from the date preceding the date on which they are commissioned.
(5) Past cases will also be regulated accordingly. These orders are, however, not applicable to airmen undergoing training at the Indian Military Academy.
(6) The opening sentence of this instruction states that all airmen selected as cadet for commission in Armed Forces (underlining mine) will be treated as "Service Cadets". The petitioner on being selected as cadet for commission underwent a training at IMA. Due to the restrictions imposed by para 5 of the said instruction, the said instruction was made inapplicable to petitioner because the petitioner underwent training at IMA. This condition in para No.5, petitioner says is arbitrary and without any rationale. Para no.2 of the said instruction clearly provides that it would apply to the Cadets at the National defense Academy or Naval and Air Force Establishments. They will receive pay and allowances on their substantive rank. Whereas for Airman taking training at Ima have been debarred. There is no justification to deprive the airmen this benefit who underwent training at IMA. As per petitioner, the airmen who underwent training at the Ima also performed same functions and were imparted the same training as to their counter parts in the Naval or Air Force Establishments or National defense Academy. Para 5 is not only discriminatory but also arbitrary. Training at Indian Military Academy or for that matter National defense Academy or Naval or Air Force Establishments is almost similar. Airmen who took training at Ima became Army Officers and those who took training at Naval and Airforce establishments became Naval or Airforce Officers. Petitioner also pointed out that the officer taking training from the Officers Training Academy, Madras have been treated as "Service Cadets" which fact was not denied by the respondent. Then why the airman undergoing training at Indian Military Academy should be deprived of the pay and allowances as Service Cadets during pre-commissioning training at IMA. No justiciable defense has been put up by the respondent for discriminating the petitioner on this ground. Had he undergone a training at the Officers Training Academy Madras, the precommissioning training would have been treated as Service Cadets. This is wholly arbitrary and violative of the equal right of the petitioner. There is no rational nexus in discriminating the airmen taking training at Ima with that of Naval and Air Force Establishments or for that matter National defense Academy. The artificial bar created in para 5 for people like petitioner violates the right of the petitioner to receive the same benefit for undergoing same training by an Academy established by the respondent. Hence, the bar created in para 5 of this instruction is violative of the equal rights of the petitioner vis. a vis. his counter parts in Naval and Air force. This bar in para 5, to my mind, deprived the petitioner his dues which airmen who joined training at Naval and Airforce Establishment got. This bar is against the principle of natural justice and fair play and is inconsistent with the theory of equality before law. Every action of the State must satisfy the test and standard of reasonableness. There is no intelligible differentia which distinguishes officials like the petitioner from other individuals similarly placed. There is no rationale differentia, nexus between such persons. To deprive a class as a whole from the benefit which if the member of that class of having taken training under Naval or Airforce Establishment would have got, such a bar as provided in para 5 amounts to inequality in law.
(7) MR.K.C.MITTAL appearing for the respondent has not been able to point out as to what are the distinguishing features in the training imparted at Indian Military Academy and by its counterpart namely Naval or Air Force Establishments. The airman would become eligible to receive the pay and allowances and will be treated as Service Cadets if takes training at Airforce Establishment. No plausible reason has been assigned nor brought on record to show as to why the same airman when undergoes training at Indian Military Academy should be deprived of the same benefit. On account of this discrimination which had no rationale the Army authority issued Instruction No.4/S/74 which is reproduced as under:
4/S/74.Grant of Regular Commission in the Army through the Indian Military Academy, Dehra Dun. A certain number of direct entry (civilian) candidates will be selected and trained at the Indian Military Academy, Dehradun, grant of permanent commission in the Army. Note : Service candidate belonging to the Regular and Territorial Army, Navy and Air Force can also apply for commissions under the terms and conditions given below.
(8) This entitled the airmen taking training at IN a admissible for all benefits and treated as "Service Cadet". The contention of Mr.K.C.Mittal that this Special Army Instruction 4/S/74 is not retrospective, to my mind, is without force. The question is not whether this instruction is prospective or retrospective but what was the rationale nexus for depriving the officials like the petitioner vide para 5 of AFI.142/62. From the facts which have come on record, it appears that this instruction was issued to clarify and remove the bottleneck created by para 5 and which illegally and arbitrarily was depriving the persons like the petitioner their rightful due. Therefore, this instruction No.4/S/74 which is by way of clarification would apply to the case of the petitioner. Nor he can be deprived of the benefit as he had been persisting his claim on the ground of being deprived of his rightful due ever since.
(9) The next contention of Mr.K.C.Mittal that since the name of the petitioner was struck off as he stood discharged hence not entitled to any benefit, this argument is contrary to para 4 of the instruction 142/62. The said para 4 of A.F.I. 142/62 clearly stipulates that airmen will remain on the sanctioned cadre of the Air Force for the period of such training and his name will be struck off as Airman from the date preceding the date on which they are commissioned. Having held that para 5 of A.F.I. 142/62 is violative of the equal right of the petitioner, hence the A.F.I. 142/62 would apply to the case of the petitioner. He would also be entitled as Armed Forces man to get pay and allowances for the period spent in training at IMA. Petitioner's name could not have been struck off untill he had successfully completed the training i.e. the date preceding the date on which he was commissioned and not on mere selection. The contention of the respondent that there was a break in service because he was discharged after being selected for a regular commission, to my mind, this action of the respondent is wholly unjustified and contrary to para 4 of A.F.I. 142/62.
(10) Mr. K.C. Mittal has not been able to establish by any cogent document that the course prescribed, the practice and training imparted at the National defense Academy, Naval and Air Force Training Centres is different than the one provided at the Indian Military Academy. In the absence of any record proving these oral submissions of Mr.Mittal, no reliance on the same can be placed. From the recent as well as from the counter affidavit filed by the respondent it cannot inferred that there is a difference in the course, practice and training at National defense Academy, Naval and Air Force Training Centres and that at the Indian Military Academy. In fact neither any document nor any rules or instructions have been placed on record to establish the rational in depriving the people of their pre- commissioning training at IMA. The respondent having realised its mistake and also the hardship to people like petitioner issued instruction No.4/S/74.
(11) Looking from another angle the interpretation to the word "Armed Forces" cannot be given a narrow or restricted meaning. The Officers undergoing training of National defense Academy, Naval or Air Force are covered under Armed Forces then why not Airmen taking training at Ima on parity with other trainings. The pre- commissioning training at Indian Military Academy will also be covered under the definition "Commissioned in the Armed Forces". If the narrow interpretation as Mr.K.C.Mittal wants this Court to give holding that the training at Indian Military Academy is not to be counted then the word 'Armed Forces' will become redundant. That could not have been the intention when this instruction was issued. The harmonious reading of paras 1 to 5 of this instruction No.142/62 lead to only one conclusion that Airmen selected for commission in the Armed Forces, be that National defense Academy, Naval or Air Force or Indian Military Academy have to be treated as "Service Cadets". If this interpretation is not given then there will be a contradiction in terms between para No.1 and 5 of this instruction. Therefore, liberal interpretation should be given. Reliance in this regard can be had to the observations of the Supreme Court that the interpretation should be given which is more liberal towards the employee. Hence, this Court is of the view that injustice has been inflicted on the petitioner thereby depriving him pay and allowance for the pre- commissioning training at Ima and by wrongly discharging him from service till he successfully completed the training.
(12) To my mind, the ratio of Supreme Court judgment does not apply to the facts of this case. In Hari Narayan Bhowal' case (supra) two different class of employees were involved - one who got enrolled as volunteers (Agragamies) under the West Bengal National Volunteer Force Act and the other under the West Bengal Police Force. These were two different classes of police force, having different set of working , establishment and service conditions. It was in this background the Apex Court opined that pay given to the West Bengal Police Officers could not be claimed by the volunteers under the West Bengal National Volunteer Force Act. It is not the case of the respondent that the Indian Military Academy is a different organisation. Therefore, the claim made by the petitioner based on discrimination has to be justified. Petitioner in his affidavit has given instances like Lt.Col.Jasmer Singh and Daljit Singh whose training period were counted. Similarly, Air Force personnel who took training at Officers Training Academy at Madras, were treated as service cadets and given all benefits. Petitioner has given the name of some of them namely Lt.Col.Kuldeep Saini. His training period at Madras was counted as service. This the respondent could not deny. Again, the reliance by Mr.Mittal on Union of India & ors. Vs. S.Vijayakumar & ors., is of no help to him. The denial of subsistence allowance was found to be on rational and had direct nexus with the intention behind granting that allowance to some and denying to others. The allowance was given to the people from outside in order to attract them to join service in North Eastern region. It was not given to the people of that Region. It was in this background that the Supreme Court observed that there was no discrimination because the said allowance was given to the outsiders for attracting their service and retaining them in North East Region. But that is not the case in hand.
(13) For the reasons stated above, the petition is accepted and rule made absolute. The order of rejection is quashed. Accordingly, directions are issued to the respondent to count petitioner's pre-commissioning training at the Indian Military Academy for the period from 12th January,1970 to 13th January,1971 as service cadet. He shall be paid the pay and allowances for this period including other benefits admissible.