Kishanchand v. Union of India: Pre-Commissioning Training and the Constitutional Test of Equality

-by Atul Singh, Advocate

The judgment of the Delhi High Court in Kishanchand v. Union of India, MANU/DE/0883/1995 : (1996) ILR 2 Delhi 175, decided on 29 September 1995, may at first appear to be a case concerning a relatively narrow question of pensionary benefits. The petitioner was an Army Officer who had earlier served as an Air Force airman and after being selected for permanent commission in the Army, underwent pre-commissioning training at the Indian Military Academy. The period spent by him at IMA was not counted for the purpose of pensionary benefits and the authorities took the position that, having been discharged from the Air Force upon selection for commission, there was a break in service.

The petitioner continued to pursue the matter for years before approaching the Delhi High Court. What makes the judgment significant, however, is not merely that the Court ultimately directed the Union to count the period spent by the petitioner at IMA as service and to grant him pay and allowances. The real significance lies in the manner in which the Court dealt with an administrative instruction which created a distinction between similarly placed military personnel and in the constitutional test which the Court applied to that distinction.

The Government relied heavily upon Air Force Instruction No. 142/62. The instruction provided that Air Force airmen who were selected as cadets for commission in the Armed Forces would be treated as “Service Cadets” during their pre-commissioning training. They would receive the pay and allowances of their substantive rank and would continue to remain borne on the cadre for the period of training. The instruction, however, contained an exclusion in paragraph 5. The benefit was made inapplicable to airmen undergoing training at the Indian Military Academy. Thus, the very instruction which recognised a person selected for commission as a Service Cadet created an exception if the training was undertaken at IMA.

That distinction became the central issue before the Court. The petitioner contended that there was no rational justification for denying him the benefit merely because he had undergone his pre-commissioning training at the Indian Military Academy. He pointed out that personnel undergoing pre-commissioning training at other establishments were treated as Service Cadets and received the corresponding benefits. He also relied upon the fact that personnel undergoing training at the Officers Training Academy at Madras were being treated in the same manner. The question, therefore, was not whether the Government had issued an instruction thereby creating a classification. It plainly had. The question was whether the distinction created by that instruction had any rational basis.

The answer given by the Delhi High Court was in the negative.

The Court found that the Union had failed to establish any distinguishing feature in the training imparted at IMA which could justify depriving the petitioner of the benefit available to similarly placed personnel undergoing training elsewhere. The Court observed that no cogent material had been placed on record to establish that the course, practice or training at the National Defence Academy, Naval and Air Force training establishments was materially different from that at the Indian Military Academy. In the absence of such material, the Court was unwilling to accept a distinction which operated to deprive one class of personnel of a benefit available to another class undergoing comparable pre-commissioning training.

The judgment is important because the Court did not treat the administrative instruction as the answer to the constitutional question. The Government's position, in substance, was that the petitioner was excluded because paragraph 5 said so. The Court went behind that position and examined whether the exclusion itself could withstand the test of equality. That is the approach which gives the judgment its continuing importance. The State cannot first create a classification through an executive instruction or policy and then defend the classification merely by pointing out that the instruction contains the classification. The existence of the rule does not establish the validity of the rule.

The Court held that there was no intelligible differentia distinguishing the petitioner from other similarly placed personnel and no rational nexus between the distinction and the object of the benefit. The exclusion was therefore described as an artificial bar. The Court specifically observed that every action of the State must satisfy the test and standard of reasonableness and that depriving a class as a whole of a benefit which would otherwise have been available to persons undergoing the same kind of training amounted to inequality in law. The significance of the judgment lies precisely here. Article 14 does not prohibit all classifications. It does, however, prohibit arbitrary classifications. The State is free to distinguish between different classes where the distinction is real and bears a rational relationship with the object sought to be achieved. What the State cannot do is create a distinction which has no rational basis and then insist that the Court must accept it merely because it appears in a Government instruction.

This aspect of the judgment is especially relevant to questions concerning military trainees, i.e. the Officer Cadets. In administrative law, there is sometimes a tendency to treat nomenclature as determinative. A person is called a cadet and is therefore treated as a cadet; another is called a recruit and is therefore treated as a recruit; and the legal consequences are made to follow from the nomenclature. Kishanchand judgment demonstrates that the constitutional court is not required to accept such nomenclature at face value. The Court can examine the substance of the relationship between the individual and the State, the nature of the training, the obligations imposed upon the individual and the legal consequences which the State itself attaches to that relationship.

This principle becomes particularly relevant when the question of disability suffered during military training is examined. An Officer Cadet entering the Indian Military Academy does not enter the institution in the same manner as an ordinary student entering a civilian educational institution. The individual has been selected through a military selection process for the purpose of eventual commissioning into the Armed Forces. The individual is placed in a military academy, subjected to military discipline, required to undergo prescribed physical and military training and exposed to risks inherent in that training. The entire training is directed towards a military objective. Yet, when an Officer Cadet suffers a permanent disability during that training, the argument advanced on behalf of the State has often been that the individual was not yet a commissioned officer and, therefore, cannot be treated on the same footing as serving military personnel, including a similarly placed recruit, for the purpose of disability pension.

That proposition, however, cannot be accepted as the end of the constitutional inquiry. It is, at best, the beginning of it.

The Government may very well have a legal framework which distinguishes between a commissioned officer, recruits and a person undergoing pre-commissioning training. But once that distinction is relied upon to deny a substantive pensionary benefit arising from disability caused by military training, the State must explain why that distinction is relevant to the purpose of the benefit. The question is not whether an Officer Cadet is formally a commissioned officer. He plainly is not until the commission is granted. The question is whether the absence of commission is a constitutionally sufficient reason to deprive him altogether of the disability protection otherwise available to other service personnel who suffer disability in the course of military service/training.

This is where the reasoning in Kishanchand becomes particularly valuable. The Delhi High Court did not accept the mere existence of a difference in administrative status as sufficient. It asked whether that difference had any rational connection with the benefit which was being denied. That is precisely the approach which would be required in any Article 14 challenge concerning disabled Officer Cadets. If the Government relies upon the distinction between a recruit and an Officer Cadet, or between commissioned and under training Officer Cadet, it must still demonstrate why the distinction is relevant to the object of disability pension.

The distinction becomes even more difficult to justify when one considers that military service/training itself may be the cause of the disability. The person is recruited and selected by the State, enters a military training establishment, is required to undertake physical and military exercises and is subjected to the medical and disciplinary regime of the armed forces. If the disability is attributable to or aggravated by that service/training, then the source of the disability is not some unrelated civilian activity. It is the very activity which the State required the individual to undertake as a pre-condition of eventual commissioning. In such circumstances, the question naturally arises whether the mere fact that the commission had not yet been issued is a sufficient rational basis for denying the pensionary protection which may be available to another category of military trainee who suffers disability in training.

The State may say that a recruit and an Officer Cadet are different categories. That proposition, taken in isolation, is uncontroversial. The problem arises when the classification is used to produce completely different consequences in relation to disability arising from military training. If one category is entitled to disability pension and another category, undergoing military training in a military environment and suffering disability from that very training, is denied the same protection, the State has to explain why the difference between the two categories bears a rational nexus with the object of the pensionary benefit.

That is the point at which the reasoning in Kishanchand assumes real significance as it clarifies that  where the State wishes to deny one category a benefit which is available to similarly situated persons, the State must establish a rational basis for that distinction. The distinction cannot survive merely because it has been incorporated into an administrative instruction.

When a classification is challenged, the State cannot simply assert that the two groups are different. It must identify the difference and place material before the Court demonstrating why that difference is relevant to the right or benefit in dispute. In the absence of such material, an assertion of difference may remain nothing more than an administrative conclusion.

The same approach is capable of being applied when the Government seeks to justify the differential treatment of Officer Cadets and other military personnels (including trainees). If it is asserted that the two categories are so fundamentally different that one must receive disability pension while the other cannot, the Government should be required to identify the precise difference which makes that distinction necessary. Is the distinction based upon the nature of the service/training? If so, what is the difference? Is it based upon military discipline? Again, what is the difference? Is it based upon inherent risk? If so, does the risk materially differ? Is it based upon the nature of the relationship with the State? What is that difference and why should it determine the pensionary consequences of a disability caused by training?

The answers matter because Article 14 is concerned not merely with the existence of categories but with the reason for the categories. A classification which has a rational basis may survive constitutional scrutiny. A classification which is artificial, unsupported by evidence and disconnected from the object of the legislation or regulation cannot be sustained merely because it has existed for years.

The Court in Kishanchand also dealt with the Government's reliance upon Special Army Instruction 4/S/74, which came into force after the petitioner's training. The argument on behalf of the Union was that the instruction could not operate retrospectively. The Court rejected that approach and held that the real question was whether the earlier exclusion had any rational basis. The subsequent instruction, according to the Court, was in the nature of a clarification and served to remove the bottleneck created by the earlier provision. The significance of this finding should not be overlooked. The Court was not prepared to allow a procedural argument about retrospective application to preserve an exclusion which it had already found to be arbitrary.

The judgment therefore contains a useful combination of principles. It treats equality not as an abstract proposition but as a test to be applied to the actual classification created by the State. It looks beyond the language of the administrative order and examines the substance of the arrangement. It requires the Government to justify the distinction with material and not merely assertion. It refuses to permit formalities such as discharge to defeat the substantive consequences of the governing scheme. And it adopts a liberal and harmonious interpretation where a narrow construction would produce an irrational result.

An administrative instruction is an instrument of Government. It is not a source of constitutional immunity. The State may frame rules. It may create categories. It may prescribe different conditions of service. But every such exercise remains subject to the fundamental requirement that persons who are similarly situated cannot be treated differently without a rational basis.

In the case of an Officer Cadet who suffers permanent disability during military training, therefore, the real question is not merely whether the word “cadet” appears in the pension regulations or whether the individual had formally received a commission on the date of injury. The real question is whether the distinction relied upon by the State has any rational relationship with the object of disability protection. If the disability arose from military training/service, and if other service personnels receive pensionary protection for disabilities arising from comparable training/service, then the Government must explain why the Officer Cadet stands outside that protection.

That explanation cannot be reduced to nomenclature. The facts before the Court in Kishanchand were different. The constitutional principle was not.

And that principle remains relevant today:

The State cannot create an artificial distinction, deny a benefit on the basis of that distinction, and then defend the denial merely by pointing to the very instruction which created the distinction. The reason for the distinction must itself withstand the test of Article 14.

That is the question which any serious examination of the pensionary rights of disabled Officer Cadets must ultimately confront.

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MANU-DE-0883-1995-ILRDelhi20260820135315.pdf

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