Delhi High Court

Cpl.B.K.Verma vs Union Of India & Ors on 20 February, 2017

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Decided on: February 20, 2017

+       W.P.(C) 5952/2016
        CPL.B.K.Verma                            ..... Petitioner
             Through:      Mr.Ankur Chhibber, Advocate.

                           versus

    UNION OF INDIA & ORS                ...... Respondents
        Through: Ms. Monika Arora, AGSC with
                  Mr. Kushal Kumar and Mr. Harsh Ahuja,
                  Advocates.
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA

                                 ORDER

INDIRA BANERJEE, J

1. The petitioner, a non-commissioned officer in the Indian Air

Force of the rank of Corporal, has filed this writ petition,

interalia challenging an order dated 05/07/2016, whereby the

application of the petitioner for study leave to enable him to

undergo the M TECH course at IIT Dhanbad has been rejected.

2. The petitioner has been denied leave on the purported ground

that there is no provision for grant of study leave to „airmen‟ in ===================================================================== W.P.(C) No.5952/2016

the Defence Services Regulations (India) Leave Rules, which

deals with all types of leave to defence personnel.

3. The Defence Services Regulations (India) Leave Rules provide

for the following kinds of leave:-

(I) Casual Leave under Rule 38

(2) Annual Leave under Rule 39

(3) Sick Leave under Rule 40

(4) Compassionate Leave under Rule 42

4. The respondents contend that at present study leave is restricted

to the serving officers, for enhancing their usefulness in their

branch as air force officers.

5. The AA Headquarters Human Resource Policy Part

1/PO/MISC/15/2015 as circulated by a circular being Air

HQ/98805/8/PO - 5 dated 23/12/2015 has introduced Study

Leave for Air Force Officers, subject to fulfilment of the terms

and conditions for grant of study leave as stipulated in the

policy.

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6. Paragraph 5 of the Policy, which stipulates the eligibility

criteria for grant of study leave is set out herein below for

convenience:-

"Eligibility Criteria Grant of study leave to officers of all branches in IAF, other than Medical and Dental branch, will be governed by the following eligibility conditions:-

(a) Study leave may be granted to an officer, to enable him/her to undergo in India or abroad, a special non- academic course or study, certified by Air HQ, as enhancing his/her usefulness in his/her branch as an IAF Officer.

(b) Study leave abroad would be admissible for non- academic courses which are not available in any University or Institute in India.

(c) Study leave may be granted to officers for attaining higher levels of education, culminating in the award of PG or higher degree, from institutions recognised by University Grants Commission (Recognition of the course by any university under the UGC), All India Council for Technical Education (AICTE) or the Department of Electronics (DOEACC „A‟ level), Government of India.

(d) QRs The study leave will normally be granted to the officers of Indian Air Force who fulfil the following QRs:-

===================================================================== W.P.(C) No.5952/2016

(i) Type of Commission Study leave would be granted to only Permanent Commission officers of the Indian Air Force. Study leave is not authorised for Short Service Commission officers.

(ii) Length of Service The officer should have rendered a minimum of 15 years of service.

(iii) AR Grading The officer should have an average AR grading of 6.5 or above in last five years.

(iv) Residual Service The officer should have minimum three years residual service on completion of study leave.

(v) Type of Course Study leave would not be granted for any correspondence course or part time course.

(vi) Study leave abroad would be admissible for those non-academic courses which are not available at any University or Institution in India.

(vii) The officer should be spareable by hi/her Branch.

(viii) The research Subject/Topic selected by the officer should have relevance to the IAF and the officer should be gainfully utilised in the IAF on completion of the course."

===================================================================== W.P.(C) No.5952/2016

7. Paragraph 6 Of the Policy provides that study leave would

normally be granted for the following research subjects/topics,

which have been recommended by the concerned branch

specialist directorates air headquarters based on post course

utilisation in the air force:-

             "(a)      Aviation
              (b)      Engineering and Technology
              (c)      Administration
              (d)      Finance and Accounting
              (e)      Management and other allied subject
              (f)      Defence Studies"

8. In such cases, the maximum period of study leave would

ordinarily be 24 months. However, if justified, the period could

be extended by a period of 4 months comprising 2 months

annual leave of the year in which the study leave had

commenced (if not already availed) and 2 months‟ furlough

leave entitlements in a three-year cycle spanning the study

leave period. The period of study leave including annual leave

and furlough leave was not to exceed 28 months during the

entire service of an officer.

===================================================================== W.P.(C) No.5952/2016

9. There can be no doubt as argued by Ms. Arora that no leave can

be claimed as a matter of right. The respondents have the right

to refuse leave to any officer or employer.

10. In this case, however, leave has been declined on the sole

ground that study leave can only be granted to permanent

commissioned officers and not to airmen. Leave has not been

declined on the ground of any administrative or operational

exigencies.

11. The concept of equality before law means that among equals

the law should be equal and should be equally administered and

likes should be treated alike. Aricle 14 guarantees similarity of

treatment. The guarantee of equal protection of law and

equality before the law does not, of course, prohibit reasonable

classification. Equality before law does not mean that things

which are different shall be treated as though they are the same.

However, the classification has to be reasonable.

12. While the principle of equality does not absolutely prevent the

State from making differentiation between persons and things ===================================================================== W.P.(C) No.5952/2016

and the State has the power to have a classification, this

classification has to be on the basis of rational distinctions. The

classification has to be founded on intelligible differentia,

which distinguishes persons or things that are grouped from

others, who are left out of the group and the differentia must

have a nexus between the basis of classification and the object

sought to be achieved by such classification.

13. If any classification is based on a rational basis and all persons

falling in the same class are treated alike, there is no violation

of Article 14. If there is equality and uniformity within each

group, the law cannot be condemned as discriminatory, though

due to some fortuitous circumstances arising out of a peculiar

situation, some included in the class get an advantage over the

others, so long as they are not singled out for special treatment.

14. When a provision is challenged as violative of Article 14, it is

necessary in the first place to ascertain the policy underlying the

statute and the object intended to be achieved by the provision

and having ascertained the policy and object of the Act, the ===================================================================== W.P.(C) No.5952/2016

Court has to apply the dual test of whether the classification is

rational and based upon an intelligible differentia, which

distinguishes persons or things that are grouped together from

others and that are left out of the group, and whether the basis

of differentiation has any rational nexus or relation with its

avowed policy and objects.

15. It is very difficult to appreciate the rationale behind

differentiation between officer and airmen in the matter of

granting study leave. It is, in our view, preposterous to assume

that only officers would have aspirations of improving their

knowledge and educational qualifications, and not the airmen.

16. Equality before the law is fundamental to the concept of the

rule of law. Equality and good conscience should be at the core

of all the governmental functions. The executive cannot

interfere with the rights and liabilities of any person,

particularly his right to equal treatment.

17. It is true that unequals cannot be clubbed together. Article 14

does not forbid different treatment of unequals. However, ===================================================================== W.P.(C) No.5952/2016

every classification would be decided against the rule of

rationality.

18. In Praveen Singh Vs. State of Punjab reported in AIR 2001 SC

152, the Supreme Court held that the administrative or quasi

administrative power ought to be left unfettered in adaptation of

procedural aspect, but that does not mean and imply that the

same would be made available to an employer at the cost of

fairplay, good conscience and equity.

19. The academic records of the petitioner are outstanding. The

petitioner has done his B.Tech Course from a reputed

engineering institution. The petitioner was awarded a gold

medal for his performance in the B. Tech Course.

20. The petitioner appeared for the Graduate Aptitude Test in

Engineering (GATE) and secured admission in the M.Tech

Course in I.I.T. Dhanbad. Many of the superior officers, under

whom the petitioner was posted recommended that the

petitioner be granted study leave to pursue the M. Tech Course

at the I.I.T., Dhanbad.

===================================================================== W.P.(C) No.5952/2016

21. The respondents should appreciate intellect and erudition, and

encourage the talented and the meritorious by giving them

adequate opportunity to improve their knowledge skills, and

their educational qualifications and not deny them equality by

refusing them leave to pursue higher studies only on the ground

of their rank and status.

22. There may be restrictions and conditions imposed for grant of

study leave. Study leave may be refused, if exigencies do not

permit release of an airman on long leave. However, an airman

cannot, in our view, be denied study leave by framing

discriminatory leave rules which do not provide for study leave

for airmen. Discriminatory leave rules, which purport to treat

officers and airman differently for grant of study leave, without

explaining the reason for differentiation offend Article 14 of the

Constitution.

23. In State of Bihar Vs. Upendra Narayan Singh reported in

(2009)5 SCC 65, the Supreme Court held as under:-

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"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner."

24. It is true that policy decisions are not ordinarily interfered with

under Article 226 of the Constitution. However a policy

decision which is arbitrary, unreasonable, discriminatory and

violative of Article 14 of the Constitution of India may be

interfered with. Reference may be made to the judgments of

the Supreme Court in Brij Mohan Lal v. Union of India & Ors.,

reported in (2012) 6 SCC 502 and in Natural Resources

Allocation Re Special Reference reported in (2012) 10 SCC 1.

25. There can be no doubt that Article 14 envisages equality

amongst equals. Reasonable classification is permissible.

However such reasonable classification is required to have a

reasonable nexus with the object sought to be achieved by such