ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI. O A Nos.58, 92, 105, 106,120 and 125 of 2013

Transcription

1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O A Nos.58, 92, 105, 106,120 and 125 of 2013 FRIDAY, THE 10TH DAY OF JANUARY, 2014/20TH POUSHA, 1935 CORAM: HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A) OA No.58 of 2013: APPLICANT: GROUP CAPTAIN SAJI ABRAHAM (16647) ADM, HQ, SAC IAF, AAKULAM, THIRUVANANTHAPURAM BY ADV. SRI. BIJU ABRAHAM. versus 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, SOUTHERN AIR COMMAND, AAKULAM, THIRUVANANTHAPURAM COMMANDING OFFICER, HEADQUARTERS, SOUTHERN AIR COMMAND UNIT, AAKULAM, THIRUVANANTHAPURAM BY ADV. SRI. P.J. PHILIP, CENTRAL GOVT. COUNSEL. OA No.92 of 2013: GROUP CAPTAIN JK CHANDNA (17043) ADM, 2 AIR FORCE SELECTION BOARD, MYSORE. APPLICANT: BY ADV. SRI. BIJU ABRAHAM.

2 120 & 125 of 2013 : 2 : versus 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, SOUTHERN AIR COMMAND, AAKULAM, THIRUVANANTHAPURAM AIR OFFICER COMMANDING, NO.2 AIR FORCE SELECTION BOARD, CV COMPLEX, SIDHARTH NAGAR, MYSORE (KARNATAKA) BY ADV. SRI. TOJAN J. VATHIKULAM, CENTRAL GOVT. COUNSEL. OA No.105 of 2013: APPLICANT: GROUP CAPTAIN SK MITTAL, VSM (17051) ADM, S/O. L.D. MITTAL, AGED 54 YEARS OF CHAF, BANGALORE, HAVING PERMANENT ADDRESS AT C/O. DILA RAM LACHMAN DASS RAMAN , DISTT. BATHINDA (PB). BY ADV. SRI. BIJU ABRAHAM. versus 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE 06.

3 120 & 125 of 2013 : 3 : 5. COMMANDANT, COMMAND HOSPITAL, AIR FORCE, AGRAM POST, BANGALORE , (KARNATAKA). BY ADV. SRI. TOJAN J. VATHIKULAM, CENTRAL GOVT. COUNSEL. OA No.106 of 2013: APPLICANT: GROUP CAPTAIN S. BANERJEE (17066-K), ADM, S/O LATE AJIT KUMAR BANERJEE, AGED 54 YEARS, RETIRED ON 30. JUNE 2013, AS DY. CHIEF ADMINISTRATIVE OFFICER. OF CHAF, BANGALORE HAVING PERMANENT ADDRESS AT NO.04, YASH CLASSIC ENCLAVE (PHASE I), HENNUR ROAD, BANGALORE BY ADV. SRI. BIJU ABRAHAM. versus 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE COMMANDANT, COMMAND HOSPITAL, AIR FORCE, AGRAM POST, BANGALORE , (KARNATAKA). BY ADV. SRI. TOJAN J. VATHIKULAM, CENTRAL GOVT. COUNSEL. OA No.120 of 2013: APPLICANT: GROUP CAPTAIN S.L. SHIVA PRASAD (18667 G), AE (L), S/O. S.R. LAKSHMANA SETTY, AGED 54 YEARS, RETIRED AS HOSPITAL IT OFFICER,

4 120 & 125 of 2013 : 4 : COMMN OFFICER & STO (MT) OF CHAF, BANGALORE, HAVING PERMANENT ADDRESS AT NO.147, FIRST MAIN ROAD, SEVENTH BLOCK, KORAMANGALA, BANGALORE BY ADV. SRI. BIJU ABRAHAM. versus 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE COMMANDANT, COMMAND HOSPITAL, AIR FORCE, AGRAM POST, BANGALORE , (KARNATAKA). BY ADV. SRI. S. KRISHNAMOORTHY, SENIOR PANEL COUNSEL. OA No.125 of 2013: APPLICANT: GROUP CAPTAIN M. NITHYANANDAN (17767 F), ADM, S/O.LATE MR. S.S. MOSES, AGED 53 YEARS AND 08 MONTHS, SERVING AS AN ADMINISTRATIVE OFFICER AT AIR FORCE STATION, JALAHALLI (WEST), BANGALORE , HAVING PERMANENT ADDRESS AT NO.374/3, OFFICERS ENCLAVE, AIR FORCE STATION, JALAHALLI (EAST), BANGALORE BY ADV. SRI. BIJU ABRAHAM. 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI versus RESPONDENTS:

5 120 & 125 of 2013 : 5 : 2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE AIR OFFICER COMMANDING, AIR FORCE STATION, JALAHALLI, BANGALORE , KARNATAKA. BY SMT.E.V.MOLY, CENTRAL GOVT. COUNSEL ORDER Shrikant Tripathi, Member (J): 1. In all these matters, the question whether the Group Captains (Time Scale) are entitled to be treated at par with the Group Captains (Select) regarding the age of superannuation and as such, are entitled to serve the Air Force up to the age of 57 years in place of 54 years has arisen, therefore, with the consent of the learned counsel for the parties, all these cases were heard together and are being disposed of by this common order. 2. The applicant, Group Captain Saji Abraham, No.16647, who filed O.A.No.58 of 2013, retired as Group Captain (Time Scale) from the Air Force service during the pendency of the instant petition on

6 120 & 125 of 2013 : 6 : 31 st May, He had prayed for a stay against his retirement, but it was denied. However, the Hon'ble High Court of Kerala, in O.P.(AFT) No.1867 of 2013, preserved the rights whatsoever of the applicant. If the age of retirement of this applicant had been 57 years instead of 54 years, he would have continued in service upto 31 st May, The next applicant, Group Captain JK.Chandna, No.17043, filed O.A.No.92 of He too had prayed for stay against retirement, but could not obtain the same and accordingly retired from service on 31 st July, 2013 as a Group Captain (Time Scale) on attaining the age of 54 years. This Bench while dismissing the stay application, however, protected his rights also. If the age of retirement of this applicant had been 57 years instead of 54 years, he would have continued in service upto 31 st July, The third applicant, Group Captain SK Mittal, No has filed OA No.105 of He also had sought for the interim relief of stay against his retirement. Though the OA was admitted, but no stay against retirement was granted. Accordingly, he retired from the Air Force service on 31 st August, The applicant claims that he is entitled to continue in service till 31 st August, 2016.

7 120 & 125 of 2013 : 7 : 5. The next applicant, Group Captain S.Banerjee, No K, has filed OA No.106 of Though the applicant had sought for extension of service up to the age of 57 years by the petition dated (Annexure A4), but no communication regarding the extension was received, so he retired from service on 30 th June, 2013 prior to the institution of the OA. According to the applicant, he is entitled not only to be reinstated but is also entitled to continue in service up to 30 th June, The applicant, Group Captain S.L.Shiva Prasad, No G, has filed O.A.No.120 of He had retired from service on 28 th February, 2013 before the institution of the OA. According to him, he is not only entitled to be reinstated but is also entitled to continue in service up to 28 th February, The applicant, Group Captain M.Nithyanandan, No M, has filed OA No.125 of He is due to retire on on attaining the age of 54 years. According to him, he is entitled to continue in service till he attains the age of 57 years, therefore, he is entitled to continue in service up to 31 st December, 2016.

8 120 & 125 of 2013 : 8 : 8. We have heard Mr.Biju Abraham for the applicants and Mr.P.J. Philip, Mr.Tojhan J. Vathikulam, Mr.Krishnamoorthy and Smt.E.V. Moly for the respondents. 8A. It is admitted to the parties that prior to the implementation of the report of the Committee headed by Mr.Ajai Vikram Singh, the then Secretary, Ministry of Defence, Government of India, (hereinafter referred to as the AVSC Committee), there had been two categories of Wing Commanders in the Air Force, and equivalent ranks in the Army and Navy, and they were Wing Commander (Select) and Wing Commander (Time Scale). Other ranks inferior to the Wing Commander had the time bound promotion scheme on completion of specified tenure. For promotion to the rank of Wing Commander (select) and equivalent ranks in the Army and Navy, there was a provision of selection on merit. But due to lack of adequate vacancies, most of the Commissioned Officers used to continue below the rank of Wing Commander. So, keeping in view that difficulty, the Government had propounded the policy of Wing Commander (Select) and Wing Commander (Time Scale). Accordingly, those who could not be selected as Wing Commander (Select) were being made Wing Commander (Time Scale) on completion of the prescribed years of service. It is also not in dispute that Wing Commanders happened to be the feeding cadre for promotion to the rank of Group Captain (Select). Since the number

9 120 & 125 of 2013 : 9 : of vacancies in the rank of Group Captain (Select) used to occur much less than the number of eligible Wing Commanders awaiting promotion and the selection for such promotion was confined only to the extent of vacancies available, the selection process for promotion was slightly tough and only those who succeeded to get a berth in the select list, used to get promotion to the rank of Group Captain (select). Resultantly, those who did not get a place in the select list due to lack of adequate vacancies and even after availing all the three chances available for promotion, had no option except to continue in the rank of Wing Commander. In this way, there resulted stagnation at the stage of Wing Commander. Similar problems were being prevalent even in the Army and Navy. So the Government of India, Ministry of Defence constituted the AVSC Committee to examine the issues and make recommendations. The AVSC Committee submitted its report to the Ministry of Defence in January 2003 focusing mainly on the restructuring of the Officer Cadre of the Army, but it was made applicable in almost equal measures to the Navy and Air Force. The report made it clear that the vacancies necessary to meet specific service requirements were to be pursued by the individual Service Headquarters separately. We do not consider it proper to refer to all the details of the recommendations made by the AVSC Committee, as we are concerned with the controversy involved in the present matters

10 120 & 125 of 2013 : 10 : regarding the claim for parity between Group Captain (Select) and Group Captain (Time Scale) pertaining to their age of retirement. It appears that in order to provide more promotional avenues to the Officers of the Services, the AVSC Committee, inter alia, recommended that promotions upto Wing Commanders be made time bound and those Wing Commanders who could not be promoted to the rank of Group Captain after all the three selection opportunities will be promoted as Group Captain (Time Scale) in substantive capacity on completion of 26 year of service as per the guidelines to be formulated separately. 9. The AVSC committee, therefore, modified the previous scheme and recommended for introduction of the policy of time bound promotion upto the rank of Wing Commander and equivalent ranks in the Army and Navy, which was accepted and implemented by the Government. According to the new scheme so introduced in the Air Force, a Commissioned Officer having 13 years service, occupies the rank of Wing Commander. Therefore, on implementation of such scheme, the concept of time scale and select scale at the level of Wing Commander, which had been in force prior to the implementation of the AVSC Committee report, were shifted to the rank of Group Captain. Resultantly, the Group Captain rank has two sub categories, one Group Captain (Select) and the other,

11 120 & 125 of 2013 : 11 : Group Captain (Time Scale). The rank of the Group Captain (select) is being filled up by promotion from amongst the Wing Commanders on the basis of selection exclusively on merit, whereas the rank of the Group Captain (Time Scale) is being filled up in accordance with the policy laid down by the Government of India, Ministry of Defence vide the letter No.2(2)/US (L)/D(Air.III)/04 dated March 12, Para 1 to 11 of the said letter being relevant, are reproduced as follows: 1. The President is pleased to sanction revision of various terms and conditions of service for the Air Force officers as given in the succeeding paragraphs excluding officers of Medical and Dental Branch. 2. Substantive Promotion. To reduce the age profile and supersession levels in the Air Force as also to improve vertical mobility, promotion to the substantive ranks of officers will be made on completion of reckonable commissioned service as indicated below: Rank Reckonable Commissioned Service (a) Flying Officer (Fg.Offr) On Commissioning (b) Flight Lieutenant (Flt Lt) 2 years (c) Squadron Leader (Sqn Ldr) 6 years (d) Wing Commander (Wg.Cdr) 13 years ( e) Group Captain (Gp Capt) (Time Scale) 26 years.

12 120 & 125 of 2013 : 12 : 3. Promotion accruing from Para 2 above shall also be subject to the officers fulfilling other criteria to be notified immediately by the Air Headquarters through Air HQ Human Resource Policy. Loss of seniority for non qualification in promotion examinations already awarded will continue to hold good. 4. Those serving in the rank of Wg Cdr (Time Scale) will now be eligible for grant of the substantive rank of Wg.Cdr. On grant of Substantive rank of Wg Cdr, these officers would become eligible for consideration for Gp Capt (Select)/Gp Capt (Time Scale) provided that, (a) Those who have attained the rank of Wg Cdr (Time Scale on completion of 20 years of service before the date of implementation of the order and who have been found suitable for grant of Wg.Cdr. (Time Bound) based on the new Human Resource Policy notified by Air HQ will be eligible for consideration to the rank of Gp Capt (Select). These officers would reckon their seniority immediately below the junior most select Wg Cdr who has already been promoted ahead of him prior to implementation of this order. (b) Those who have attained the rank of Wg.Cdr (Time Scale) on completion of 20 years of service before the date of implementation of the order and who have been found unsuitable for grant of Wg Cdr (Time Bound) based on the new Human Resource Policy will be ineligible for consideration to the rank of Gp Capt (Selection) but will be eligible for grant of Rank of Gp Capt (Time Scale). Gp.Capt (Time Scale) 5. Officers not promoted to the rank of Gp Capt by selection may be granted the substantive rank of Gp Capt (Time Scale) irrespective of vacancies, provided they are considered fit in all other respects. The terms and

13 120 & 125 of 2013 : 13 : conditions governing the rank of Gp Capt (Time Scale) are (a) Pay Scale: As applicable to Gp Capt (Select) Grade which currently is Rs.15, (b) Rank Pay: Officers will be entitled to rank pay of a Wg Cdr which currently is Rs.1,600/- pm. (c) Other Allowances & Perks. Officers holding the rank of Gp Capt (Time Scale) will be eligible for all allowances and other perks as applicable to Gp Capt (Select) Grade. (d) Age of Superannuation. The age of superannuation for Gp Capt (Time Scale) would be same as it is for the rank of Wg Cdr in respective branches. Therefore, there is no change in the retirement age of a Wg Cdr on being promoted to the rank of Gp Capt (Time Scale). (e) Medical Criteria. The present provisions contained in the policies and amendments thereto applicable so far for the rank of Wg Cdr (Time Scale) will now be applicable to the new grade of Gp Capt (Time Scale). as under:- 6. Officers holding the rank of Gp Capt (Time Scale) will be held against the authorisation of Wg Cdr. Such Officers shall, in precedence, rank junior to the following officers:- (a) Substantive Gp Capt (Select). (b) Acting Gp Capt (Select) 7. Detailed criteria and procedure for grant of substantive rank of Gp Capt by Time Scale will immediately be notified by the Air Headquarters through HRP. 8. Revision in pay and pension due to promotion, where applicable, to officers who have retired during the intervening period between 16 Dec 04 and date of issue of this letter will be reviewed with retrospective effect from 16 Dec 04.

14 120 & 125 of 2013 : 14 : 9. As a consequence of the implementation of the above orders the appointment in which Sqn Ldrs and Wg Cdrs can be posted are given at Appendices 'A' and 'B' to this letter, mutatis mutandis Unit Establishments of units, formations and establishments will stand modified to the above extent till their revision in due course. Various orders and instructions affected by the above decisions would be amended in due course. 10. These orders will take effect from 16 Dec This issues with the concurrence of Integrated Finance vide their Dy No.636/Dir(Fin/AG/GS) dated March 11, According to para 2 of the aforesaid letter dated March 12, 2005, a person occupies the rank of Flying Officer only on being Commissioned to the Air Force, and on completion of two years service he becomes Flight Lieutenant and on completion of six years service he attains the rank of Squadron Leader. As and when he completes 13 years service, he becomes Wing Commander. Similarly, he becomes Group Captain (Time Scale) on completion of 26 years' service. These promotions, according to para 3 of the letter, are not automatic, but subject to the officers fulfilling other criteria notified by the Air Headquarters. While laying down so, loss of seniority for non qualification in promotion examinations already awarded was directed to continue to hold good. According to para 5 of the letter, which provides for promotion to the rank of Group

15 120 & 125 of 2013 : 15 : Captain (Time Scale), officers not promoted to the rank of Group Captain by selection were made eligible for promotion to the substantive rank of Group Captain (Time Scale) irrespective of vacancies provided they are found fit in all other respects. The pay scale provided to Group Captain (Time Scale) is the same as applicable to Group Captain (Select) and there is no different pay scale for Group Captain (Time Scale) and Group Captain (Select). Similar is the position with regard to other allowances and perks, but the Rank Pay, as per para 5(b) of the letter, that was made admissible to Group Captain (Time Scale) is the Rank Pay admissible to Wing Commander. But, this disparity of Rank Pay came to an end on implementation of the decision of the Central Government on the basis of the recommendations of the 6 th Central Pay Commission with effect from According to the recommendations of the 6 th Central Pay Commission, the policy of granting Rank Pay no more survives. Colonel of the Indian Army, Captain of the Indian Navy and Group Captain of the Indian Air Force being equivalent ranks, have been placed in Pay Band 4 (Rs ) with Grade Pay of Rs.8700/- p.m and Military Service Pay of Rs.6,000/- p.m. As such there is no difference of the Pay Band, Grade Pay and Military Service Pay between the Group Captains (Time Scale) and Group Captains (Select) with effect from This factual aspect of the matter regarding the implementation of recommendation of 6 th

16 120 & 125 of 2013 : 16 : Central Pay Commission was not disputed before us. Para 5(d) of the letter, which is very relevant in the present matters, speaks of age of superannuation and according to that, the age of superannuation for Group Captain (Time Scale) would be the same as it is for the rank of Wing Commander in the respective branches, and as such, no change in the retirement age of Wing Commander on being promoted to the rank of Group Captain (Time Scale) was made by the Government Letter dated March 12, Resultantly, the Group Captain (Time Scale) is made to retire on attaining the age of 54 years, whereas Group Captain (Select) retire on attaining the age of 57 years. Para 5(e) of the aforesaid Government Letter maintain the same medical criteria for the new grade of Group Captain (Time Scale) as were made applicable for the rank of Wing Commander (Time Scale). Para 6 of the letter provides that the officers holding the rank of Group Captain (Time Scale) will be held against the authorisation of Wing Commander and such officers shall, in precedence, rank junior to the Substantive Group Captain (Select) and Acting Group Captain (Select). Para 7 of the letter provides as to how the selection for promotion to the rank of Group Captain (Time Scale) is to be made and according to that, the criteria and procedure will be notified by the Air Headquarters through HRP. The aforesaid letter was made effective from , according to Para 10 of the letter.

17 120 & 125 of 2013 : 17 : 11. The issue involved in the present matters was also in issue before the Principal Bench in T.A.No.385 of 2009, in the matter of Group Captain Atul Shukla v. Union of India, and other connected cases, (decided on 2 nd May, 2013). The Principal Bench of the Armed Forces Tribunal rendered a detailed order on holding that the Group Captains(Time Scale) and Group Captains (Select) belonging to the same class could not be treated differently with regard to their age of retirement. The Principal Bench accordingly quashed the notification dated 12 th June, 2009 to the extent it had laid down the age of retirement for the rank of Group Captain (Time Scale) as 54 years, and directed that all the persons holding the rank of Group Captain (Time Scale) will be entitled to continue in service upto the age of 57 years. Consequently, the Principal Bench placed the Group Captains (Time Scale) equal to the Group Captains (Select) in the matter of age of retirement. The observations of the Principal Bench made in para 19, 20, 22, 23 and 24 being relevant are reproduced as follows: 19. We quite appreciate the laudable purpose of the respondent of creating a time scale post of Gp. Capt. on completion of 26 years of service. This was done on the basis of the AV Singh Committee report which was appointed to rationalise the service conditions. It is true that earlier there was a time scale for Wg Cdr. also and they used to retire at the age of 54. The learned counsel for the respondent tried to justify this distinction on the basis that

18 120 & 125 of 2013 : 18 : Gp Captain (TS) belong to original cadre of Wg Cdr and therefore, they have to retire at the age of 54 meant for Wg Cdr and they are also posted in the station which is manned by Wing Cdr. This is no justification. The very fact that Gp. Capt (TS) wears the same rank, gets the same salary, gets the same grade pay and posting or adjusting these Gp Capt (TS) against Wg Cdr post is all administrative matter of the respondent. But what is the rationale on the basis of which these different age of retirement has been prescribed? The only difference between the two is that a person who is meritorious becomes eligible for consideration for the post of the Gp Capt with the lesser period of service than the person who is selected against a time scale, i.e., after completion of 26 years. Gp Capt for the time scale is eligible for promotion in case he completes 26 years of service for consideration of Gp Captain (TS). A person who is meritorious will become earlier on completion of minimum service for consideration for promotion to the post of Gp Captain whereby a person in time scale he need to have minimum 26 years of service. Once incumbent puts 26 years of service he is given benefit of time scale being found suitable on criteria laid down for that. A person who is meritorious become selected earlier and gets a march over a person who is selected in time scale. Therefore, his future prospects grow further, whereas a person in time scale has to wait for 26 years in service when he is not found suitable on the basis of selection. Therefore, a person who gets the rank in the time scale no doubt is not meritorious, because he could not make a merit but he is serving in Indian Air Force for more than 26 years of service and as laudable purpose of respondent in their reply is, that in order to avoid the stagnation and to give proper incentive to the young officers their avenue for promotion has been opened up.

19 120 & 125 of 2013 : 19 : 20. On the one hand they have granted them the benefit for serving Indian Air Force for more than 26 years and on the other hand they want to deprive them by retiring them at the age of 54 years. Their (sic. There ) appears to be no rational basis in this, when both the persons wear the same rank, draw the same salary and they get the same grade pay and then to say that one Gp Capt (TS) will retire at the age of 54 years and the other Gp Capt (Select) at the age of 57 years. This distinction which is sought to be made has no rational basis whatsoever. It is true that Government can have mini and micro classification but there has to be some rational basis for certain object which is sought to be achieved. In this case all rationale which has been given is this only, that since the Gp. Captain (TS) are posted against the post of Wg.Cdr and age of retirement of Wg. Cdr is 54 years, therefore, they should be retired at 54 years is no rationale. Once a person who has been promoted from Wg Cdr to Gp.Captain, he wears his uniform as Gp.Captain and he draws same salary of Gp.Capt, he performs same duties of Gp.Capt as other Gp.Capt performs except the flying branch, then to make a distinction that he should retire at the (sic. age) of 54 years because the post against which he has been appointed is that of a Wg Cdr, therefore, he will still be treated as Wg Cdr for the purpose of superannuation is no rationale. 21. We have been informed that earlier as Lt.Col (TS) is concerned, they used to retire at age of 53 and Lt.Col (Select) used to retire at 54. That distinction has been now done away subsequent on recommendation of the AV Singh Committee. 22. In this connection our attention was invited to decision of the Supreme Court in the case of E.P.Royappa vs. State of Tamil Nadu & Anr. (supra). In that Their Lordships in para 85 observed that, which reads:

20 120 & 125 of 2013 : 20 : Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle of ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Article 14 & 16 is equality and inhibition against discrimination. 23. Similarly in the decision given by the Hon'ble Supreme Court of India in the case of Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi & Ors. (1981) 1 SCC 722, it was pointed out that the classification should be founded on an intelligible differentia and that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was also observed that Article 14 has highly activist magnitude and it embodies a guarantee against arbitrariness. 4. Similarly our attention was invited in the case of Union of India & Ors. vs. Nitdip Textile Processors Pvt. Ltd. & Anr (supra). In para 49 it was observed that, The tests adopted to determine whether a classification is reasonable or not are, that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the groups and that the differentia must have a

21 120 & 125 of 2013 : 21 : rational relation to the object sought to be achieved by Statute in question. 12. After having heard the learned counsel for the parties at length and also having perused the relevant materials on record, we have no reason to take a different view than the view adopted by the Principal Bench in the aforesaid matter. We would however like to add few additional grounds to supplement the decision. 13. Before entering into the merits of the case we have to understand the true import of the doctrine of equality clause enshrined by Articles 14 and 16 of the Constitution of India. It is well settled that Articles 14 and 16 of the Constitution of India are designed to prevent a person or class of persons from being singled out from other similarly situated persons. To put it otherwise class legislation is not permissible by the Constitution of India, but, however, a reasonable classification is permissible on the basis of two well settled principles, firstly that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and the differentia must have a rational relation to the object sought to be achieved. This principle was propounded by the Constitution Bench of the Apex Court in the matter of State of West Bengal v. Anwar Ali Sarkar (AIR 1952 (2) SC 75), E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3)

22 120 & 125 of 2013 : 22 : and Ajay Hasia & others v. Khalid Mujib Sehravardi & others (1981) 1 SCC 722). The principle so propounded is being consistently followed by the Apex Court without any further modification. The classification to be so made may be on different basis depending upon various facts and circumstances, but mere classification is not enough to get over the inhibition of Articles 14 and 16 of the Constitution of India. To put it otherwise, the classification must not be arbitrary, but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, but those qualities or characteristics must have a reasonable relation to the object sought to be achieved. We are, therefore, required to see whether or not the classification being made by the respondents between the Group Captain (Select) and Group Captain (Time Scale) with regard to their age of retirement is a reasonable classification? 14. The Armed Forces, namely, the Army, the Navy and the Air Force, have no uniform age of retirement of the Commissioned Officers and PBORs. The age of retirement varies from rank to rank. The rank of Sepoy and equivalent rank in the Navy and Air Force retires earliest, whereas the Generals namely, the Chief of the Army Staff, Chief of the Air Staff and Chief of the Naval Staff have the

23 120 & 125 of 2013 : 23 : maximum tenure, who retire on attaining the age of 62 years or on completion of tenure of three years, whichever is earlier. The other ranks of the officers have lesser tenure. But one thing is almost common and that is the same age of retirement in one rank. It is also significant to state that prior to the implementation of the AVSC Committee report, the rank of the Wing Commander in the Air Force, as we have already indicated, had two categories (1) Wing Commander (Time Scale), and (2) Wing Commander (Select), but there was no different age of retirement rather the same for these two groups. The system of having two types of officers, one Time Scale and the Other Select, was shifted from the rank of Wing Commander to the rank of Group Captain on implementation of the report of the AVSC committee, but the respondents, while doing so, laid down the policy of providing different age of retirement, 54 years for the Group Captain (Time Scale) and 57 years for the Group Captain (Select), though they are part and parcel of the same rank Group Captain having the same status and pay etc. The respondents, while laying down different ages of retirement for the Group Captain (Time Scale) and Group Captain (Select) had forgotten that they had provided the same age of retirement at the stage of Wing Commander with respect to Wing Commander (Time Scale) and Wing Commander (Select) under the old scheme. The learned counsel for the respondents very frankly conceded that the equivalent rank in the

24 120 & 125 of 2013 : 24 : Army and the Navy, namely, the Colonel (Time Scale) and the Colonel (Select) in the Army and the Captain (Time Scale) and the Captain (Select) in the Navy have the same age of retirement and there is no differentiation between these two groups so far as the age of retirement is concerned. There does not appear to be any justification to adopt a different yardstick in laying down the age of retirement at the level of Group Captain in the Air Force, specially when the AVSC Committee's report was implemented with the same intent and spirit in all the three services. 15. Mr. P.J. Philip appearing for the respondents tried to contend that Group Captains (Select) and Group Captain (Time Scale) are two different and distinct classes, so the doctrine of equality enshrined by Articles 14 and 16 of the Constitution of India had no application. According to him, it was open to the Government to prescribe two different age of retirement, one for the Group Captain (Select) and the other for the Group Captain (Time Scale). To substantiate this submission, Mr. Philip urged that the promotion to the rank of Group Captain (Select) is made exclusively on merit after due selection in accordance with law from amongst the Wing Commanders. Only three chances are available to Wing Commanders for such promotion. If a Wing Commander, even after availing of all the three chances, does not get a place in the select

25 120 & 125 of 2013 : 25 : list, he has to continue in the rank of Wing Commander until he completes the service of 26 years. According to Mr. Philip, the Wing Commanders, who are not promoted on merit to the rank of Group Captain (Select) even after all the three selections, are promoted as Group Captain (Time Scale) on their completing the total service of 26 years as Commissioned Officers. So according to the policy in vogue, the promotion to the rank of Group Captains (Time Scale) is a concessional promotion and as such the same could not be equated with promotion made on the basis of merit only. Mr. Philip further contended that according to para 6 of the Scheme formulated by the respondent No.1 vide letter No. 2(2)/US(L)/D.(Air.III)/04 dated March 12, 2005 (Annexure R2), the officers of the rank of Group Captain (Time Scale) hold the rank against the authorization of Wing Commanders and are placed junior to the substantive Group Captains (Select) and Acting Group Captain (Select). On this basis he next contended that the respondent No.1 has not created any additional post of Group Captain to accommodate the Wing Commanders promoted to the rank of Group Captain (Time Scale). So according to Mr. Philip such type of promotion is nothing except grant of personal scale to Wing Commanders having 26 years of service.

26 120 & 125 of 2013 : 26 : 16. In our view, the aforesaid submissions made by Mr. P.J. Philip lack merit. The distinction being drawn by him appears to be artificial and has no rational basis. The scheme for promotion to the rank of Group Captain (Time Scale) as formulated by the respondent No.1 vide letter dated March, 2005 (Annexure R2) virtually speaks for granting substantive right of Group Captain (Time Scale) to Wing Commander on completion of 26 years of service. Para 2 of the letter (Annexure R2) clearly provides that the promotions, inter alia, made to the rank of Group Captain (Time Scale) is the promotion to confer the substantive rank to Group Captain. So the contention that the promotion is merely grant of personal scale to Wing Commanders is devoid of merit. It is also significant to state that the promotion to the rank of Group Captain (Time Scale), as per the scheme, is not automatic on completion of 26 years of service. In this regard the provisions of para 3 of the letter dated March 12, 2005 (Annexure R2) is very clear, according to which, the promotion is to be made subject to the officers fulfilling other criteria to be notified by the Headquarters. 17. What is apparent from the various schemes formulated by the respondent No.1 and the Air Headquarters is that the promotion to the rank of Group Captain is made in two different ways after the implementation of the recommendation of the AVSC

27 120 & 125 of 2013 : 27 : Committee. The first mode of promotion is based on merit alone without due regard to the seniority. The promotion on merit is made quite early, so the person so promoted occupies on promotion not only the higher rank of Group Captain (Select) at a very early age, but also gains seniority, which ultimately helps him in getting quick promotions to other higher ranks. But the promotions so made on merit does not affect the rights of others who are promoted subsequently on completion of 26 years of service, because in such promotion weightage is given not only to the experience and length of the tenure, but also to the merit, besides other criteria notified by the Headquarters as per para 3 of the Government Letter dated March, 12, 2005 (Annexure R2). But as and when a promotion is made to the rank of Group Captain (Time Scale), the promotee occupies the same rank and status of Group Captain equal to the rank of the Group Captain (Select) already promoted on merit. They also wear the same uniform. Consequently all the promoted officers fuse together as the part and parcel of the same rank of the Group Captain, therefore, the policy attempting to distinguish them in the matter of the age of retirement cannot be accepted, especially when both type of the promotions are substantive in nature. It is true that only those who were not selected for promotion on comparative merit, after availing of all the three selections are subsequently promoted to the rank of Group Captain (Time Scale), on completion of 26 years of service, but it does not mean that they are

28 120 & 125 of 2013 : 28 : rotten persons. Virtually they could not get promotion on merit at the early stage due to lack of adequate vacancies in the higher rank of Group Captain. In our view, the policy of promotion in substantive capacity on completion of 26 years of service is nothing except by way of providing one more mode of promotion other than the already existing mode of promotion on merit. So far as the contention that the Group Captain (Select) are placed higher in the seniority list than the placement of the Group Captain (Time Scale) is concerned, it has no nexus to the age of retirement. It is not acceptable in law to determine the age of retirement according to seniority in any one cadre or rank. So any attempt to prescribe higher age of retirement for the seniors in comparison to the juniors in the same rank or cadre is apparently violative of Articles 14 and 16 of the Constitution of India. In this view of the matter, the contention that both the categories of promotees are different and distinct classes, cannot be accepted in law, especially when the rank, Group Captain (Time Scale) and Group Captain (Select), virtually belong to the same rank of Group Captain for all purposes carrying the same pay band, grade pay and Military service pay and are filled up from the same rank of Wing Commanders only. 18. Mr. Philip lastly submitted that the Group Captain (Select) are qualified to perform flying duties but the Group Captain (Time Scale) are not qualified to discharge flying duties, therefore, the distinction being made between these two groups by the respondents were quite rational. It is true that Group Captain (Select) perform flying duties and

29 120 & 125 of 2013 : 29 : have been made eligible for such duties, but officers from non flying branches, as conceded by the learned counsel for the parties, are also placed in Group Captain (Select) rank. Apart from this, deputing a person to flying duties is merely an administrative decision, so any officer who is qualified and medically fit can be deputed to do so. We fail to understand as to how the flying duties would play an important role in determining the age of retirement of the rank of Group Captain (Time Scale) and Group Captain (Select). The Group Captain (Select) discharging flying duties have been made eligible for the flying pay/ allowance, whereas the Group Captain (Time Scale) not discharging flying duties has no such benefit. The classification between them, therefore, pertains to the flying pay/allowance only and has no nexus to the age of retirement and as such the same could not be taken as a valid ground to prescribe two different age of retirement for the same rank of Group Captain. 19. The learned counsel for the respondents relied upon the decision of the Apex Court in Lt.Gen.R.K.Anand v. Union of India and Anr. (AIR 1992 SC 763) and contended that in that case the Apex Court maintained the policy of prescribing two different age of retirement at the level of Lt. Generals in the Indian Army. So on the basis of the policy adopted by the Apex Court in that case, the policy of the respondents in providing two different age of retirement for Group Captain (Select) and Group Captain (Time Scale) was liable to be affirmed. We have given our anxious consideration to this

30 120 & 125 of 2013 : 30 : submission and perused the decision of the Apex Court. It may be significant to state that the decision of the Apex Court rendered in Lt. Gen.R.K.Anand's case (supra) was given due consideration even by the Principal Bench while rendering the order in T.A.No. 385 of 2009 (Group Captain Atul Shukla v. Union of India and others) (supra). The Principal Bench after examining the decision thoroughly found that the issue raised in the matter of Lt. Gen. R.K. Anand's case (supra) did not survive any more, as the Government, subsequent to the decision of the Apex Court, removed the anomaly by prescribing the same age of superannuation for the Lt. Generals posted in Command and Staff Stream and Staff Stream. The Principal Bench further held in para 20 that the society was advancing and such kind of artificial distinction was going slowly and slowly disused. In our view, in the matter of Lt. Gen. R.K. Anand's case (supra) the application of the equality clause as enshrined by Articles 14 and 16 of the Constitution of India was neither raised nor decided. Virtually in that case two letters prescribing the age of retirement for the Lt.Generals, besides Army Rule 16A were under consideration. The first letter was dated 9 th May 1985, which had prescribed the age of 58 years as the age of superannuation for Lt.Generals. The said letter further provided that the Army Rule 16A should be revised in due course. But it was never done. Later on the Government issued the second letter dated 9 th September 1986

31 120 & 125 of 2013 : 31 : whereby the rank of Lt.Generals was divided in two categories, namely, Lt.Generals in Command and Staff Stream and Lt.Generals in the Staff Stream only. The age of retirement for the Lt. Generals of the stream 'Command and staff' was prescribed as 58 years and the age of retirement of the Lt. Generals belonging to the stream Staff only was prescribed as 57 years. The petitioner therein contended that he was entitled to the benefit of the first letter dated 9 th May He next contended that the second letter dated 9 th September 1986 was not applicable to him and made various submissions in support of this plea. The Apex Court found that the subsequent letter dated 9 th September 1986 was applicable to the petitioner therein. So the petitioner was not given the benefit of the first letter dated 9 th May The decision of the Apex Court in Lt.Gen.R.K.Anand's case (supra) being based on the facts and circumstances of that case has not propounded any principles of law with regard to the applicability of the equality clause as enshrined in Articles 14 and 16 of the Constitution of India. In this view of the matter, the decision of the Apex Court in Lt.Gen.R.K.Anand's case (supra) is of no help to the respondents. 20. The learned counsel for the respondents referred to one more decision of the Apex Court in the matter of Commander Ravindera Sadashio Kshirsagar v. Union of India and others

32 120 & 125 of 2013 : 32 : ((2009) 4 SCC 641) and contended that in that matter the Apex Court found that the Captain (Time Scale) and the Captain (Select) in the Navy were two different and distinct classes, so the present matter also needs to be dealt with accordingly. In our view, the decision of the Apex Court in the matter of Commander Ravindera Sadashio Kshirsagar (supra) was altogether in a different context. In that case, it was decided that the Commander ( Time Scale) would be eligible for promotion to the rank of Captain (Time Scale) only after all erstwhile Commander (Select) and Acting Commander (Select) have been promoted to the rank of Captain (Select) and Captain (Time Scale) or have retired. This policy was challenged by the Commanders (Time Scale) on the ground that deferment of their promotion in the aforesaid manner was not proper. It was contended on behalf of the Government before the Apex Court that the Commanders (Select) and Acting Commanders (Select) were admittedly seniors, so it was decided to promote seniors before Junior Commanders (Time Scale) were to be promoted. The Apex Court upheld the policy and held in paragraphs 29 and 31 that the whole idea was to protect the interests of the seniors among the officers as per the Navy list. The Apex Court further found that if the policy as suggested by the appellants therein was to be implemented, the rank structure in the Navy which determines the command and control structure would get radically altered. The Apex Court further

33 120 & 125 of 2013 : 33 : held that the Navy list provides that the Commander (Select) and Acting Commander (Select) would ranked senior to Captain (Time Scale) even if Commander (Time Scale) had put in more years of service as Commander (Time Scale). The Apex Court next held that if the guidelines and the policy dated 11 th March, 2005 were understood as suggested by the appellants therein, the entire protection given to the Commanders (Select List) in order to maintain inter se seniority in the Naval list would get disturbed. It is thus clear that the Apex Court gave due significance to the seniority and upheld the policy and promotion in accordance with seniority. As the Commander (Select) and Acting Commander (Select) were seniors to all the Commanders (Time Scale), the Apex Court upheld the policy of granting promotion to the seniors prior in time and deferment of promotion of juniors till the promotion of the seniors is either exhausted or they are retired. In our view, the said decision has no application to the facts of the instant case and is of no help to the respondents. 21. It is also significant to observe that the Principal Bench while rendering the order in T.A.No. 385 of 2009 and other connected matters had, inter alia, relied upon the decisions of the Apex Court in M.G. Pandke and Ors. v. Municipal Council, Hinganghat (AIR 1993 SC 142) and Miss Raj Soni v. Air Officer Incharge (1990

34 120 & 125 of 2013 : 34 : AIR SC 1305) and applied the same in support of its order. In the matter of Miss Raj Soni (supra) two different age of retirement was prescribed for the Recognised Private Schools and Aided Schools. The Apex Court found the distinction to be arbitrary. In M.G. Pandke & others (supra) the age of retirement of teachers working in Municipal School of Vidharba division of Maharashtra was in issue. The Apex Court found that there was no justification to prescribe different age of retirement of teachers working under different Municipal Council, especially when they were identically placed. Apart from these two decisions, we would like to refer to one more decision of the Apex Court in the matter of State of Uttar Pradesh v. Dayanand Chakrawarty & others ((2013) 7 SCC 595). In that case, two different age of retirement were prescribed, one for the employees of erstwhile Local Self Government Engineering Department (LSGED) transferred to U.P. Jal Nigam and the other for the persons, who were directly recruited by the U.P. Jal Nigam. The policy was not upheld, consequently the scheme was modified and uniform age of retirement was prescribed. 22. Mr. Philip attempted to argue that the Tribunal has no power to strike down a policy decision of the Government on the ground of the same being violative of Article 14 and Article 16 of the

35 120 & 125 of 2013 : 35 : Constitution of India, so according to Mr. Philip, the Bench has no option except to uphold the policy of the respondents prescribing two different age of retirement for Group Captain (Select) and Group Captain (Time Scale) and decide the matter accordingly. In our view, the above submission of the learned counsel for the respondents lacks merit. The power of the Tribunals to strike down any statutory provision or to decide the question regarding the vires of any statutory provision had been thoroughly examined by the Seven Judge Bench of the Apex Court in L.Chandra Kumar v. Union of India and Others, (1997) 3 SCC 261. The Apex Court in para 93 opined that the Tribunals are competent to hear matters where the vires of a statutory provision are questioned. But the Apex Court put an exception to this proposition by propounding the principle that the Tribunal shall not entertain any question regarding the vires of their parent statute on the principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. The Apex Court further held that it will not be open to the litigant to directly approach the High Court in cases where they question the vires of statutory legislations, subject of course to the aforesaid exception. The above principle propounded by the Apex Court in para 93, being relevant is reproduced as follows: