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Judgment
D. K. Seth, J.—The petitioner was commissioned in the Army Education Corps (hereinafter referred to as AEC) through the short Service Commission (NonTechnical) by an order dated 2441973 with effect from 2941973 for five years in the Army in the rank of Second Lieutenant under the terms and conditions of service as contained in Army Instructions No. ll/S/64. He had undergone training for ten months at the Officers Training School (hereinafter referred to as OTS) at Madras.
Subsequently, the petitioner was granted permanent/regular commission in AEC at Indian Military Academy, Dehradun (hereinafter referred to as IMA). The fixation of seniority of Short Service Commission (hereinafter referred to as SSC) Officers, commissioned permanently in the Army is regulated by Army InstructionAI3/S/70 as amended by Amendment No. AI93/73, dated 2871973. The said instructions in clause (v) provides that the seniority of SSC Officers would be granted on antidated equivalent to their full pay commissioned service as SSC Officer less period of shortfall in their training of the training prescribed for grant of SSC from that prescribed for the particular type of permanent Commission entry at the IMA. According to the petitioner the training period of direct recruit officer commissioned in AEC at IMA is ''12 months and he is granted seniority from the date of his completion of such training. Therefore, the petitioner is entitled to the grant of seniority from the date of his full pay commission service in SSC less by two months, being difference of the training period of OTS and AEC at IMA. Whereas while fixing the seniority one year two months instead of two months was deducted from the period of full pay commission service in SSC Being aggrieved the petitioner made an application to the Military Secretary, Headquarter, through the Commanding Officer (Annexure1 to the petition). The Commanding Officer while forwarding the said application recommended that seniority due to the petitioner rightfully be restored (Annexure2 to the petition). By a letter dated 2921988 (Annexure3) the petitioner was informed about the rejection of his aforesaid application which was a non statutory complaint, on the ground that the petitioner''s entry in SSC was for nontechnical stream of OTS, at Madras. Therefore for the purposes of fixation of his seniority he was to be compared with the nontechnical candidates granted permanent commission at IMA, who were required to undergo two years training and, therefore, difference of the training period, being one year and two months, was deducted while fixing the petitioner''s seniority, from the period of full Pay Commission in SSC Aggrieved thereby the petitioner preferred a statutory complaint on 2761988 to the Central Government through proper channel. While forwarding the statutory complaint the President, 19Service Selection Board, Allahabad (SSB) endorsed the recommendation that the petitioner''s contention appears to be genuine (Annexure5). By an order dated 1171989 (AnnexureSAl) the petitioner''s statutory complaint was rejected by the Central Government. The information about the rejection of statutory complaint was intimated to the petitioner on 29121989 (Annexure6 to the writ petition and annexureSA 1 to the Supplementary affidavit.). The petitioner was facilitated with a copy of the said order dated 1171989 only through the said letter dated 2461990, after the petitioner had sent three letters dated 2911990, 1521990 and 2131990 respectively, requiring copy of the said order. It is this order (AnnexureSA2) which is the subjectmatter of challenge in the .present proceedings filed by the petitioner, who prayed for quashing of the said order contained in annexureSAz and fixation of his seniority from 2961973 instead of 2661974.
In the counteraffidavit the respondents had contended that the petitioner having commissioned in AECas SSC (Non technical) in the month of April 1973 , had undergone ten months training at OTS Madras. Similar category of Officers inducted into IMA, as permanent Commissioned Officers, are required to undergo training at IMA for two years before granting commission. Therefore, the short fall of the training period applicable to regular officers inducted into Army under the same nontechnical stream was deducted from the period of full pay commission of service of the petitioner is SSC in accordance with the Army Instructions number 3/S/70 as amended by Army Instructions number 93/73. Since the petitioner''s entry was in nontechnical stream, therefore, while granting permanent commission, he is to be treated in the same nontechnical stream, for which two years training is prescribed and accordingly one year and two months is deducted as short fall of the training period while fixing seniority. The benefit of training period of respect of direct entry (permanent commission) through AEC Officers, therefore, cannot be extended to the petitioner. Thus there is no illegality in rejecting the nonstatutory complaint by order, dated 2921988 (Annexure3) or in the order dated 1171989 (AnnexureSA2). Therefore, present writ petition should be dismissed.
In the rejoinderaffidavit the petitioner has repeated the statements made in the writ petition while elucidating and elaborating the same further.
Sri Amar Saran, learned counsel appearing on behalf of the petitioner contended that the fixation of seniority, in the facts and circumstances of the case, and in view of the Army Instructions, cannot be sustained in law. The petitioner cannot be treated for the purposes of seniority at par with the other officers, granted permanent commission at IMA in nontechnical stream, since the petitioner was inducted in AEC which through clubbed with the non technical officers, but the training period of the direct recruits in AEC is one year. Therefore the petitioner has to be treated at par with AEC candidates.
Sri Sushil Harkauli, learned counsel appearing on behalf of the respondents, on the other hand, contends that the entry in a particular stream is the determining factor. Since the petitioner''s entry was in nontechnical stream in SSC he is to be treated at par with the nontechnical stream granted permanent commission at IMA According to him unless it is so determined the petitioner would become senior to his batchmates, who were inducted at IMA in the branches other than AEC. Inasmuch as all the batchmate of the petitioner inducted at IMA were given seniority after deducting one year two months from full pay commission service in SSC. Since the petitioner was the only person, who joined AEC at IMA from SSC and there having been no waste in AEC no further induction in AEC is made, therefore, there can not be any separate kind of treatment for the petitioner from those of his batchmates.
It is the case of the respondents that in terms of the Army Instruction AI3/S/70 as amended vide Al93/73 the petitioner''s seniority is to be fixed after deducting the said short fall period of one year two months from his full pay commissioned service in SSC.
However, the learned counsel for the respondents could not show anything which specifies that once entry is nontechnical stream in SSC the same is final and can not be changed when inducted at IMA on permanent commission. On the other hand he very fairly conceded that he is not aware as to the existence of any such instruction. According to him while the batchmates of the petitioner had their seniority fixed as on 2961974, if the petitioner''s contention is accepted, his seniority would have to be fixed as on 29th June 1973.
In para4 of the counteraffidavit, it has been stated, "that the petitioner was commissioned in AEC as short service (non technical) in the month of April 1973. "Admittedly, the petitioner was inducted at IMA in AEC on permanent commission. The petitioner in paragraph9 of the petition has quoted Army Instruction No. AI105/61 so far as it is relevant for AEC. In para11 of the counteraffidavit the respondents have admitted that the said Army Instruction has been correctly reproduced in para9 of the writ petition. The direct recruits granted permanent commission in AEC are governed by the said Army Instructions.
In order to appreciate the rival contentions, it is necessary to refer to Army Instructions No. AI105/61 which runs as under:
"1. A certain number of permanent regular commissions will be granted to Engineering Graduates in Corps of Engineers, Signals and Electrical and Mechanical Engineers and to Graduates in Agriculture in the Military Farms Services and Art/Science Graduates in AEC/ASC (Food Inspection Organization) after a short course of training at the Indian Military Academy, Dehradun.
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(b) AgelimitsA candidate to be eligible must not have passed his 27th birthday and must not be below 20 years of age on the 1st day of the month of the commencement of the course which will be notified sufficiently in advance. Agelimits for AEC candidates will be 2327 years.
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(v) Army Education Corps
(a) An MA./M.Sc degree in 1st or 2nd Division of a recognised University plus a degree/diploma in teaching;
OR
(b) An MA/ M.Sc degree in 1st or 2nd Division of a recognised University with at least 23 years experience of teaching in a High/Higher Secondary School, College or University.
Method of Selection(a) Application on the prescribed forms will be submitted to the AG''s branch Rtg. 6 (SP)
(b) Candidates will be required to appear for an interview by SSB.
Trainingselected candidates will be required to undergo a course of Training for a period of about 12 months at the Indian Military Academy, Dehradun. The entry into the course will be half yearly w.e.f. January 1961.
Grant of CommissionCommissions will be granted in the rank of 2/Lt. only on successful completion. of training at the Indian Military Academy, Commissions will be dated from the date on which the training at the Academy successfully completed."
It is apparent from the above Army Instructions that a candidate selected for AEC at IMA recruited directly are required to undergo Training for a period of twelve months and commission is granted in the rank of Second Lieutenant on successful completion of the training at IMA from the date of completion of training. Therefore, a directly recruited candidate commissioned in AEC at IMA would be entitled to get his seniority fixed only after deduction of 12 months from the date of his entry. Admittedly, the petitioner had undergone training of ten months at OTS Madras. Therefore, there is short fall of two months in respect of the period of training between a direct recruit and an SSC officer commissioned in AEC.
It is necessary to refer to Army Instruction No. AI3/S/70. Relevant portion whereof is reproduced below:
"56AI3/S/70 regarding grant of permanent Commission Service to short service commissioned officers is amended as under:
(Amendment No. 3)
Clause (b) is reconsidered as under:
(b) For the purpose of seniority and promotion (both substantive and acting) officers will be granted an ante dated equivalent to their full pay commissioned service as a short Service Commissioned Officer less the period of short fall in their training to be arrived at by deducting the period of training prescribed for grant of Short Service Commission from that prescribed for a particular type of permanent Commission entry at the Indian Military Academy."
A plain reading of clause (b) of the relevant Army Instruction reveals, seniority of SSC officers ought to be fixed at an ante date equivalent to their full pay commissioned service at SSC less the period of short fall in their training being difference of the period of training, undergone in SSC from that prescribed for a particular type of permanent commission entry at IMA. Therefore, it is plain and simple that the said provision does not prescribe that the period of short fall in training is to be calculated from the period oftraining of permanent Commission at the IMA. Neither the instruction prescribes that entry in SSC would be governing factor for calculating the short fall of the training period. Our attention has not been drawn to any such instructions. On the other hand it clearly specified the terms when it uses the phrase by deducting the period of training prescribed for grant of Short Service Commission from that prescribed for a particular type of permanent commission entered at IMA." The period of training at OTS Madras has to be deducted from the prescribed period of training for a particular type of permanent commission entered at IMA. As we have found from AI105/.62 that AEC is a different service like other different services namely Corps of Engineers, Signals and Electrical and Mechanical Engineers and in the Military Farms Service, AEC/SSC being the short course of training at IMA. The training has been prescribed in para3 of the said Army Instruction No. AI105/61, is for a period of 12 months. The commission is granted in terms of para4 thereof on the date on which training is successfully completed. Therefore, a direct recruit in AEC at IMA would be entitled to fixation of his seniority from the date of successfully completion of the training, meaning thereby that there would be a deduction of the period of 12 months from the date of his entry at IMA. Whereas if the contention, as advanced on behalf of respondents, is accepted, in that event a person inducted at IMA from SSC would suffer a loss of one year more than the direct recruit while having his seniority fixed. It is not disputed that the petitioner''s entry in SSC was in AEC and he was inducted at IMA in AEC being the same stream.
Learned counsel for the respondents has not been able to indicate or draw our attention to any Instructions, Rules or Regulation by which AEC can be specified as nontechnical or technical.
But the facts remained that the training period required for commission in AEC is fixed at 12 months. Therefore a person inducted in AEC from SSC cannot be discriminated upon with those who had entered through direct recruitment process in the matter of calculation of period of training for the purposes of clause (b) of Army Instruction No. AI3/S/70 as amended by AI93/73. Admittedly, AEC is a particular type of entry. Therefore, the period prescribed for training in AEC is the period from which deduction of the period of training at OTS is to be deducted. While fixation of seniority of a person entering in a particular type of entry can not be dependent upon the training period prescribed for another type of entry though, however, both may be nontechnical. It is apparent that the description of non technical can not be the criterion. It is a particular type of entry in permanent commission, is the criterion, which is determining factor for deduction of the period of training undergone in SSC, as contemplated in Clause (b) of AI/3/S/70 as amended by the Army Instruction No. AI/93/73. The batchmates of the petitioner having entered in different type can not be treated to be in the same class or classification. Article 14 of the Constitution does not prohibit classification altogether. The classification must be backed by rationale. The classification of AEC stands altogether different from the other entries which is apparent from clause (b) of Army Instruction number AI105/61 prescribing the agelimit and item (v) prescribing the qualification. Inas much as the agelimit for AEC candidate is 2327 years while that of other entries are 2027 years. Specific qualification M.A./M.Mc. degree in 1st or IInd Division of a recognised University and Degree/Diploma in teaching or M.A./M. Sc degree in 1st or IInd Division of a recognised University with atleast 23 years experience of teaching in High/Higher Secondary School, College or University, has been fixed, which is much higher than other candidates. Admittedly, two years antidate seniority is given from the date of successful completion of training to a Engineering graduate entering into other specialised service at IMA.
Therefore, different criterion are in existence for different type of entry. Classification does not depend on the year of entry, but on the particular type of service in which entry is made. It is apparent that though the entry is made in different service at the same time but there are different period of training for different services and different criterion in fixation of seniority in different types. Therefore the classification is acknowledged, accepted and recognised at IMA for different types of entry and different type of seniority is being granted to different type of entry. If the batchmates of the petitioner are inducted in some other branches of stream the same can never be governing factor for determining the seniority of the petitioner. The seniority is to be fixed on the basis of instructions governing service. In the present case the petitioner entry was in AEC in SSC. When inducted in permanent commission in AEC the rules governing AEC candidates in permanent Commission would be applicable in his case. It cannot be said that because the petitioner was described as nontechnical in SSC, therefore, the rule governing AEC candidates would be inapplicable in his case simply because he was described as non technical.
The order dated 2921988 did not specify anything as to on which basis it was decided that the petitioner was required to undergo two years training in AEC at IMA in the corresponding course of nontechnical permanent commission. While the training period of AEC is fixed at one year. The proposition that for the petitioner the training period would be two years in AEC since the petitioner was described as nontechnical would be very difficult to accept when technical or nontechnical as the case may be training meant for AEC, is one year. There can not be a different standard for the petitioner who has in AEC in SSC and who was inducted in AEC at IMA through interview, admittedly without any written test or other examination. The said order does not disclose any provision under which conclusion has been arrived at. The other ground that he cannot be compared with technical graduate is also wholly irrelevant. Inasmuch as the other technical graduates do have additional two years antidated seniority from the date of successful completion of the training. Whereas the petitioner is not claiming such benefit. Therefore, it is not required to compare the petitioner with the technical graduates. Army Instruction No. AI/105/61 itself prescribes period of training of 12 months, which is a type in particular with which the petitioner is concerned. Admittedly, the period of training in AEC at IMA is 12 months and at OTS, Madras, ten months. The entry at OTS being in AEC and at IMA also being in AEC there cannot be any difference simply because the petitioner was described as nontechnical, basis whereof has not been spelt out either in the counteraffidavit or at the time of hearing. It is very difficult to accept the reasonableness of the order, dated 2921988 (Annexure3). Therefore, in the eyes of law the said order cannot be sustained.
On the other hand the order dated 1171989 (AnnexureSAl) does not give any reason. The only expression used for rejecting the petitioner''s claim was coined as "after perusal of relevant record, "the Government" is satisfied that no injustice has been done to him "(petitioner). By no stretch of imagination the above phrase can be treated to be a reason. It is very difficult to ascertain as to what passed through to the mind of the authorities, it does not indicate anything to show that he has applied his mind. The expression used can not be brought within the realm of reasons. What is reason is very difficult to define. But it seems reason is something which indicates the process leading to a conclusion on the basis of certain material justifying the decision, and is a manner of expression conveying application of mind and rational process of thinking, though it may be very brief and need not be elaborate and may not be a judgment in that sense.
In that view of the matter the orders dated 2921988 (Annexure3) and the order dated 1171989 (AnnexureSA2) are liable to be quashed and are hereby quashed. Accordingly, a writ of certiorari to issue. Since we are of the view that the petitioner''s seniority is to be fixed in terms of clause (b) of the Army Instruction No. AI3/S/70 in AEC, after deducting the period of training in SSC at OTS, Madras from the period prescribed for training for the type of permanent commission entered in AEC at IMA the deduction of training period for fixation of seniority would be for a period of two months only and thereby seniority of the petitioner is to be fixed on 2961973. Accordingly a writ of mandamus do issue commanding the respondents to fix the seniority of the petitioner as on 2961973 instead of 2961974.
In the result the writ petition succeeds and is hereby allowed. There will be, however, no order as to costs.