APPLICANT: RESIDING AT: E-517 SENA VIHAR, KAMMANAHALLI, KALYAN NAGAR.P.O., BANGALORE BY ADV.SRI.RAMESH.C.R. Versus RESPONDENTS:

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1 ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 43 OF 2015 WEDNESDAY, THE 5TH DAY OF AUGUST, 2015/14TH SRAVANA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) CAPTAIN (TS) NO.02678K ASHOK K NAIR, INDIAN NAVY, AGED 54 YEARS, S/O.BRIGADIER (RETD) V.K.NAIR, NAVAL DETACHMENT, SK GARDEN, BENSON TOWN, BANGALORE APPLICANT: RESIDING AT: E-517 SENA VIHAR, KAMMANAHALLI, KALYAN NAGAR.P.O., BANGALORE BY ADV.SRI.RAMESH.C.R. Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF DEFENCE (INDIAN NAVY), SOUTH BLOCK, NEW DELHI RESPONDENTS: 2. THE CHIEF OF NAVAL STAFF, INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE (NAVY) SOUTH BLOCK, NEW DELHI PRINCIPAL DIRECTOR OF PERSONNEL, INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (NAVY), DIRECTORATE OF PERSONNEL, C WING, SENA BHAVAN, NEW DELHI THE FLAG OFFICER COMMANDING (FOR STAFF OFFICER (PERSONNEL)), HEADQUARTERS, KARNATAKA NAVAL AREA, NAVAL BASE, AGRA POST, KARWAR THE COMMANDING OFFICER, INS TANAJI, MANKHURD, MUMBAI BY ADV.MR.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL.

2 OA 43 of 2015 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. This Original Application has been filed by Captain (Time Scale) Ashok K Nair, No.02678K, Indian Navy seeking to set aside the orders retiring him at the age of 54 years and to permit him to continue in service upto the age of 56 years along with all consequential benefits on par with Captain (Select). 2. The essential facts of the case are that the applicant who was commissioned into the Indian Navy on 01 January 1984 was retired on 30 November 2014 on attaining the age of 54 years in the rank of Captain (Time Scale), hereinafter referred to as 'Captain (TS)', in accordance with Naval Headquarters letter RS/0888/2014 dated 20 th of May 2013 (Annexure A1). On retirement, the applicant has been reemployed in the Indian Navy as Captain (TS) for a period of 13 months till 31 December 2015 vide Naval Headquarters letter RS/0867/RE/2014 dated 04 July 2014 (Annexure A2).

3 OA 43 of 2015 : 3 : 3. Sri Ramesh C.R, learned counsel for the applicant submitted that based on AVS Committee recommendations to reduce age profile and supersession levels, Government of India (Respondent No.1) introduced the rank of Captain (TS) for those officers who could not be promoted or selected as Captain due to competitive merit or lack of vacancies, on completion of 26 years of service. The learned counsel further submitted that officers of the rank of Captain (TS) were in the same pay scale and had all other allowances and perks as applicable to Select Captains. However Captains(TS) were made to superannuate on attaining the age of 54 years, whereas Select list Captains were retired only on reaching the age of 56 years. This, the learned counsel submitted, was discriminatory and in violation of Articles 14 and 16 of the Constitution. The learned counsel also stated that the applicant being keen to continue in the Navy had sought reemployment and had been re-employed by Naval Headquarters and was currently still serving.

4 OA 43 of 2015 : 4 : 4. The learned counsel further submitted that the Hon'ble Apex Court had considered an identical issue in the case of Air Force Officers in Union of India & Ors. vs. Atul Shukla & Ors, (2014) 10 SCC 432, as there too retirement age for Group Captain (TS) (equivalent to the rank of Captain (TS) in the Navy) and Group Captain (Select) were different. The Hon'ble Apex Court held that the classification made between Time Scale Officers and Select Officers by giving them different retirement age does not stand the scrutiny of Articles 14 and 16 of the Constitution and once an officer is promoted even on Time Scale, he is equal in all respects to a select rank officer and cannot be dealt with differently in the matter of service conditions or benefits or in age of retirement. 5. The learned counsel further submitted that based on the principle laid down by the Apex Court in the case of Atul Shukla (supra), the Principal Bench of the Armed Forces Tribunal, New Delhi considering the case of Captain C.S.Panda vs. Union of India & Ors., O.A.No.324 of

5 OA 43 of 2015 : 5 : 2014 and other cases had held that Captain (TS) is to continue in service till the age of 56 years (Annexures A4 to A7). The learned counsel amplified that the case of Captain R.S.Rawal vs. Union of India & Ors., O.A.No.78/2015 (Annexure A7), was akin to that of the applicant, in that the Officer had retired and was on re-employment like the applicant and the Hon'ble Principal Bench had directed that he be reinstated in service till he completes the age of 56 years. The learned counsel therefore prayed that retirement orders of the applicant, who was similarly placed, be set aside and he be permitted to continue in regular service till the age of 56 years with all consequential benefits. The learned counsel also submitted that the applicant also undertakes to refund the retirement benefits received by him on his reinstatement, if need be. 6. Sri.K.M.Jamaludheen, Senior Panel Counsel appearing for the respondents raised a primary objection that the applicant had preferred the O.A only after the judgment of the Hon'ble Apex Court in the Atul Shukla case

6 OA 43 of 2015 : 6 : (supra) and other cases in the Principal Bench of the Armed Forces Tribunal. The learned counsel submitted that the applicant had accepted his retirement as per the policy of the Naval Headquarters at 54 years which was promulgated as early as May 2013 (Annexure A1) and objected only after decision of the Apex Court. He further contended that the benefit of the Apex Court judgment cannot be extended to a person who was silent over the dispute for an unreasonable period as he had filed the O.A only in April This was in keeping with the principles settled by the Hon'ble Apex Court in U.P.Jal Nigam & Anr vs. Jaswant Singh & Anr., (2006) 11 SCC 464 and also in the case of Rup Diamonds & Ors. vs. Union of India & Ors, (1989) 2 SCC 356. The learned counsel for the respondents therefore was of the view that the O.A was barred by limitation. 7. The learned counsel further contended that retirement age was an administrative decision and the policy on retirement age of Naval Officers was promulgated by Letter No.3(4)98/DO(P)/D(N-II) dated 17 th March 1999

7 OA 43 of 2015 : 7 : (Annexure R1). He further submitted that the rank of Captain (TS) and restructuring of the Officer Cadre of the Navy had been promulgated by letter No.4(1)/US(MP)/D(N- II)/2004 dated 11 March 2005 (Annexure R4) which specifically laid down that officers of the rank of Capt (TS) would be held against the sanctioned strength of Commanders and that officers holding the rank of Captain (TS) shall retire on superannuation on attainment of the age of 54 years. Hence the applicant was retired in accordance with the policy on the subject. 8. Heard rival submissions and perused records. 9. It is observed that Annexure A1 which promulgated retirement orders of the applicant, had referred to the provisions contained in Government of India, Ministry of Defence letter No.3(4)98/DO(P)/D(N-II) dated 17 th March 1999 (Annexure R1). In accordance with the letter, all Captains or Commodores would retire at the age of 56 with the exception of those officers placed in the select list for

8 OA 43 of 2015 : 8 : promotion to the rank of Rear Admiral who would retire at 57 years. The Letter has no reference to the rank of Captain (TS). Admittedly, the rank of Captain (TS) introduced vide Annexure R4 states that a Captain (TS) will superannuate on attaining the age of 54 years. While the letter talks of amending in due course orders/instructions effected by its promulgation, no such amendments have been placed before us. Therefore, in our view, the retirement letter of the applicant is legally not tenable. 10. However, the subject is no more res integra as the case of Captain (TS) is pari meteria with the case of Group Captain (TS) of the Air Force, which was considered by the Hon'ble Apex Court in Atul Shukla case (supra). Testing the validity of the classification of Group Captains in Indian Air Force as Group Captain (Select) who were promoted on basis of merit and Group Captain (Time Scale) who rose to that rank on completion of 26 years of service, for purpose of age of retirement, the Apex Court has held that there can be no differential treatment. The Apex Court

9 OA 43 of 2015 : 9 : has observed that it is trite that birthmark of an officer who is a part of the cadre of Group Captains cannot provide an intelligible differentia for the classification to be held valid on the touchstone of Articles 14 and 16 of the Constitution. 11. Based on the principles enunciated by the Apex Court in the case of Group Captain (TS) of the Air Force in Atul Shukla's case (supra), we are of the view that no discrimination can be made in the retirement age between Captain (Select) and Captain (TS) and therefore retiring the applicant at 54 years is legally infirm. 12. The only other issue that remains to be examined is whether the O.A has been filed with inordinate delay as vigorously argued by the learned counsel for the respondents. The learned counsel has cited the case of U.P.Jal Nigam's case (supra), and also the decision of this Tribunal in O.A.No.173 of 2014 and other connected cases. In our view,

10 OA 43 of 2015 : 10 : the facts in both the cases differ from the present one. In those cases, the applicants had retired and left the service whereas in the instant case he is still continuing in the Navy albeit on re-employment. 13. The Hon'ble Apex Court in the case of Dayal Singh & Ors. vs. Union of India & Ors, (2003) 2 SCC 593, has held that a writ Court has the powers to examine the matter of delay and admit any petition despite delay and laches and it is not a valid ground to set aside any decision. The view of the Apex Court is placed below: 41. It was submitted that the respondents having filed a writ petition after a period of eight years, the same ought not to have been entertained. Primarily a question of delay and laches is a matter which is required to be considered by the writ court. Once the writ court has exercised its jurisdiction despite delay and laches on the part of the respondents, it is not for us at this stage to set aside the order of the High Court on that ground alone particularly when we find that impugned judgment is legally sustainable.

11 OA 43 of 2015 : 11 : 14. Section 14 of the Armed Forces Tribunal Act, 2004 confers powers and jurisdiction on the Tribunal in all service matters and Section 22 gives powers of condonation of delay. Section 22(2) being relevant is re-produced below: 22. Limitation:- (1) (2) Notwithstanding anything contained in subsection (1), the Tribunal may admit an application after the period of six months referred to in clause (a) or clause (b) of sub-section (1), as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal is satisfied that the applicant had sufficient cause for not making the application within such period. 15. As brought out earlier, the applicant had continued to serve in the Navy on re-employment and did not de-link himself from service as was the case of employees in the U.P.Jal Nigam case (supra). Further, the cause of action for him to agitate arose only after the decision of the Apex Court in Atul Shukla case (supra) and subsequent to the decision of the Apex Court, he had to first exhaust means

12 OA 43 of 2015 : 12 : within the service before he approached the Tribunal. All these issues were looked at by us during admission of the O.A and respondents had raised no objections on account of delay at that stage. In view of powers of the Tribunal to condone delay and the views of the Apex Court in Dayal Singh case (supra), we do not see any reason to set aside the O.A on this ground alone. As regards the legal aspects of the core issue, ie difference in retirement age between Select and Time Scale Captains, as brought out, the same has been settled by the Apex Court in Atul Shukla case (supra). A similar view has been taken by the Principal Bench of this Tribunal in the case of Captain R.S.Rawal (supra). 16. In view of the above, the Original Application is allowed and the order of retirement issued to the applicant dated 20 May 2013 is set aside, to the extent applicable to him. The applicant shall be reinstated in service as though there was no break in service and be permitted to remain in service till he completes the age of 56 years. He shall also be granted all consequential

13 OA 43 of 2015 : 13 : benefits. Suitable orders to this effect shall be issued by the respondents within a period of three months from the date of receipt of a copy of this order. 17. There will be no order as to costs. 18. Issue free copy to the parties. Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J) (true copy) an Prl.Pvt.Secretary

ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 163 of 2014 THURSDAY, THE 10TH DAY OF DECEMBER 2015/19TH AGRAHAYANA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL