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Monday, October 27, 2014

Service Matter - Indian Air Force - whether the Service tenure of Group Captains ( Time Scale) & (Select) whether serving in flying or on ground duty entitled to continue in service up to 54 &57 years - Tribunal held yes - challenged - Apex court too confirmed the same and held that the basis for classification in question for purposes of age of superannuation which the appellant has projected is much too tenuous to be accepted as a valid basis for giving to the Time Scale Officers a treatment different from the one given to the Select Officers. We are also of the view that concerns arising from a parity in the retirement age of Time Scale and Select Officers too are more perceptional than real. At any rate, such concerns remain to be substantiated on the basis of any empirical data. The upshot of the above discussion is that the classification made by the Government of India for purposes of different retirement age for Time Scale Officers and Select Officers does not stand scrutiny on the touchstone of Articles 14 and 16 of the Constitution as rightly held by the Tribunal. In the result, these civil appeals fail and are hereby dismissed but in the circumstances without any order as to costs.= CIVIL APPEAL NOS. 4717-4719 of 2013 Union of India & Ors. …Appellants Versus Atul Shukla etc. …Respondents = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41952

Service matter - Indian Air Force - whether the Service tenure of Group Captains ( Time Scale) & (Select) whether serving in flying or on ground duty entitled to continue in service up to 54 &57 years - Tribunal held yes - challenged -  Apex court too confirmed the same and held that the basis for classification  in  question  for purposes of age of superannuation which the appellant has projected is  much too tenuous to be accepted as a valid basis for giving  to  the  Time  Scale
Officers a treatment different from the one given to  the  Select  Officers. We are also of  the  view  that  concerns  arising  from  a  parity  in  the retirement age of Time Scale and Select Officers too are  more  perceptional than real.  At any rate, such concerns remain to  be  substantiated  on  the
basis of any empirical data. The upshot of the above discussion is that  the classification made by the Government of India  for  purposes  of  different retirement age for Time Scale Officers and Select Officers  does  not  stand scrutiny on the touchstone of Articles 14 and  16  of  the  Constitution  as rightly held by the Tribunal. In the result, these civil appeals fail and are hereby  dismissed  but in the circumstances without any order as to costs.=

whether the  respondents  who  at the relevant point of time held the rank of Group Captain  (Time  Scale)  in the Indian Air Force were entitled to continue in service  up to  54  and  57
years depending upon whether they were serving in the flying or ground  duty
branch of the force =
Armed Forces Tribunal, Principal Bench, New Delhi,  has
allowed the petitions filed by the  respondents  holding  them  entitled  to
continue in service upto the age  of  57  years  in  the  case  of  officers
serving in the ground duty branch and 54 years in the case of those  serving
in the flying branch of the Indian Air Force.=
On the material placed before  us  and  having  regard  to  the  rival
assertions  made  by  the  parties  in  their  respective   affidavits   the
difference in employability of Group Captains (TS)  is  not  borne  out   to
justify the classification made by the Government.
It is evident  from  the
particulars given by the respondents that several Group Captains  (TS)  have
held appointments which are also held by Group Captains (Select).   If  that
be so, the difference in the employability of Time Scale officers  vis-a-vis
select officers appears to be more  illusory  than  real.  
There  does  not
appear to be any hard and  fast  rule  on  the  question  of  deployment  or
employability of Group Captains (TS) or Group  Captains  (Select)  for  that
matter.
The Air HQ can, depending upon  its  perception,  order  deployment
and post any officer found suitable  for  the  job.
Deployment  remains  an
administrative matter and unless the same involves  any  reduction  in  pay,
allowances or other benefits or reduction in rank or status  of  an  officer
legally   impermissible,   such   deployment   remains   an   administrative
prerogative of the competent authority.

38.   Suffice it to say that the basis for classification  in  question  for
purposes of age of superannuation which the appellant has projected is  much
too tenuous to be accepted as a valid basis for giving  to  the  Time  Scale
Officers a treatment different from the one given to  the  Select  Officers.
We are also of  the  view  that  concerns  arising  from  a  parity  in  the
retirement age of Time Scale and Select Officers too are  more  perceptional
than real.  
At any rate, such concerns remain to  be  substantiated  on  the
basis of any empirical data. The upshot of the above discussion is that  the
classification made by the Government of India  for  purposes  of  different
retirement age for Time Scale Officers and Select Officers  does  not  stand
scrutiny on the touchstone of Articles 14 and  16  of  the  Constitution  as
rightly held by the Tribunal.

39.   In the result, these civil appeals fail and are hereby  dismissed  but
in the circumstances without any order as to costs.


2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41952
                                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOS. 4717-4719 of 2013


Union of India & Ors.                        …Appellants

Versus

Atul Shukla etc.                             …Respondents




                                    With

Civil Appeal No.7219 of 2013

Civil Appeal No.7220 of 2013

Civil Appeal No.7221 of 2013

Civil Appeal No.7223 of 2013

Civil Appeal No.7228 of 2013

Civil Appeal No.6185 of 2013

Civil Appeal No.6193 of 2013

Civil Appeal No.6220 of 2013

Civil Appeal No.10955 of 2013

Civil Appeal No.10954 of 2013

Civil Appeal No.91 of 2014

Civil Appeal No.689 of 2014

Civil Appeal No.9592 of 2013

Civil Appeal No.9645 of 2013









                               J U D G M E N T

T.S. THAKUR, J.

1.    These appeals arise out of separate but similar orders passed  by  the
Armed Forces Tribunal, Principal Bench, New Delhi, whereby the Tribunal  has
allowed the petitions filed by the  respondents  holding  them  entitled  to
continue in service upto the age  of  57  years  in  the  case  of  officers
serving in the ground duty branch and 54 years in the case of those  serving
in the flying branch of the Indian Air Force.  The  solitary  question  that
falls for our consideration, therefore, is whether the  respondents  who  at
the relevant point of time held the rank of Group Captain  (Time  Scale)  in
the Indian Air Force were entitled to continue in service  upto  54  and  57
years depending upon whether they were serving in the flying or ground  duty
branch of the force. The question arises in the following backdrop:

2.    Post Kargil War, the  Government  of  India  constituted  a  Committee
headed by Ajay Vikram Singh, former Defence Secretary (hereinafter  referred
to as AVS Committee) to study ways  and  means  that  would  help  ensure  a
“younger age profile”  for  the  commanding  officer  in  the  Indian  Armed
Forces. The Committee made its recommendations in regard to  all  the  three
wings of the  armed  forces  which  were  considered  and  accepted  by  the
Government culminating  in  the  issue  of  separate  orders  regarding  re-
structuring of the officers cadre in the Army, Navy and the Air  Force.   In
so far as the Indian Air Force was concerned, the Government of India by  an
order dated 12th March, 2005 revised the terms and conditions applicable  to
Air Force Officers excluding officers serving  in  the  medical  and  dental
branch. The order was to the following effect:

                                        “ANNEXURE P-2

                             No.2(2)/Us(L)/D(AIR-III)/04

                       Bharat Sarkar/Government of India

                       Raksha Mantralay/Ministry of Defence

                                  New Delhi-110011

                                  March 12, 2005



To

The Chief of Air Staff

Air Headquarters,

Vayu Bhawan,

New Delhi.

Subject: Restructuring of the officers cadre of the air force.

Sir,



The President is pleased to sanction revision of various  terms  of  service
for Air Force Officers as  given  in  the  succeeding  paragraphs  excluding
officers of Medical and Dental Branch.



    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    |
|Flying officer (FG Offr)            |ON commissioning                   |
|Flight lieutenant (Flt Lt.)         |2 years                            |
|Squadron leader (Sqn Ldr)           |6 years                            |
|Wing Commander (Wg Cdr)             |13 years                           |
|Group Captain (Gp Capt) (Time Scale)|26 years                           |




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.



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;



Those who have attained the rank of Wg Cdr (Time Scale) on completion of  20
years of service before the dare 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.



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)



Officer not promoted to the rank of Gp Capt by  selection,  may  be  granted
that substantive rank of Gp Capt (Time Scale),  irrespective  of  vacancies,
provided they are considered fit in  all  other  respects.   The  terms  and
conditions governing the rank of Gp Capt (Time Scale) are as under:



Pay Scale. As applicable to Gp Capt (Select) Grade which  currently  is  Rs.
15,100-450-17,350.



Rank Pay. Officers will be entitled to rank pay of a Wg Cdr which  currently
is Rs. 1,600/- p.m.



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.



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).



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):



Officers holding the rank of Gp Capt (Time Scale) will be held  against  the
authorization of Wg Cdr. Such officers shall, in precedence, rank junior  to
the following officers:-

Substantive Gp Capt (Select).

Acting Gp Capt (Select).



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.



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.



As a consequence of the implementation of the above orders the  appointments
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.



 These orders will take effect from 16 Dec 2004.



This issues with  the  concurrence  of  Integrated  Finance  vide  their  Dy
No.636/Dir (Fin/AG/GS) dated March 11, 2005.



Yours faithfully,



(Bimla Julka)

              Joint Secretary to the Govt. of India”

3.    It is evident from the above that a Squadron  Leader  can,  under  the
new dispensation, be promoted as a Wing Commander  upon  his  completing  13
years reckonable commissioned service  in  the  force.  He  can  be  further
promoted  as  Group  Captain  (Time  Scale)  after  he  has  to  his  credit
reckonable service of 26 years. The  position  prevalent  pre-AVS  Committee
recommendations, was that a Squadron Leader who did not make it to the  next
rank of Wing Commander in three chances admissible to  him  could  become  a
Wing Commander (Time Scale) and retire upon attaining the age  of  52  years
in case he was serving the flying branch and 54 years if he was  serving  in
the ground duty branch  of  the  force.  This  was  true  even  for  a  Wing
Commander (Select) who did not make it to the  next  higher  rank  of  Group
Captain in three chances available  to  him  for  such  promotion.  Post-AVS
Committee  the  Government  provided  an  additional  avenue  for  the  Wing
commanders to pick up the next higher rank of a Group Captain  (Time  Scale)
even if they were not able to make it to the  next  rank  on  the  basis  of
inter se merit. The AVS Committee recommendations and the  Government  Order
were meant to provide relief to such officers, as were not  able  to  go  to
the next level due primarily to the  limited  number  of  vacancies  in  the
pyramid like service structure where the number of posts  become  fewer  and
fewer as one climbs higher in  rank.  The  pre-AVS  Committee  and  post-AVS
Committee position in regard to the retirement age fixed for  various  ranks
in the Indian Air Force can be  conveniently  summarised  in  the  following
chart:

|INDIAN AIR FORCE                                                             |
|                   Pre-AVSC                                                  |
|Post AVSC                                                                    |
|Rank    |Flying  |Ground  |Edn     |Met     |Flying  |Ground  |Edn     |Met     |
|        |Branch  |Duty    |Branch  |Branch  |Branch  |Duty    |Branch  |Branch  |
|        |        |Branch  |        |        |        |Branch  |        |        |
|Wg Cdr  |52      |54      |54      |57      |-       |-       |-       |-       |
|(TS)    |        |        |        |        |        |        |        |        |
|Wg Cdr. |52      |54      |54      |57      |52      |54      |57      |57      |
|(Select)|        |        |        |        |        |        |        |        |
|Gp Capt |-       |-       |-       |-       |52      |54      |57      |57      |
|(TS)    |        |        |        |        |        |        |        |        |
|Gp Capt |52      |57      |57      |57      |52      |57      |57      |57      |
|(Select)|(Extenda|        |        |        |(Extenda|        |        |        |
|        |ble to  |        |        |        |ble to  |        |        |        |
|        |54)     |        |        |        |54)     |        |        |        |


4.    The  chart  makes  it  clear  that  post-AVS  Committee’s  report  and
recommendations the Wing Commander (Time scale) rank was abolished  and  the
bar for time scale promotion to officers who did not make to the  next  rank
raised  to  Group  Captain  (Time  Scale).  To  that  extent  the  issue  of
stagnation in the Air Force was addressed by providing  avenues  for  upward
mobility of Wing Commanders. There was at the same time a flip side  to  the
Government decision inasmuch as the advantage in terms  of  upward  movement
was, to an extent, neutralised by the Government  retaining  the  retirement
age of Group Captains (Time Scale) at 52 years in the case of flying  branch
and 54 years in the case of officers serving  in  the  ground  duty  branch.
This is evident from a reading of clause 5(d) extracted above  which  denied
to the Group Captains (Time Scale) the benefit of a  higher  retirement  age
applicable to Group Captains (Select) who could serve upto 54 years  of  age
in the flying branch and 57 years in  the  ground  duty  Education  and  Met
branches of the force. The Government Order in  effect  classified  officers
holding the  rank  of  Group  Captains  in  two  categories  one  comprising
officers who rise to that rank by time scale upon completion of 26 years  of
service and the other who got there by promotion  on  the  basis  of  merit.
This classification of officers serving in the air force  holding  the  same
rank  but  governed  by  different   standards   for   purposes   of   their
superannuation was assailed by the respondents who were Group Captain  (Time
Scale) in  petitions  filed  by  them  before  the  Armed  Forces  Tribunal,
Principal Bench, New Delhi. The  grievance  made  by  them  was  that  Group
Captains in the Air Force constituted  one  class  regardless  whether  they
were promoted to that rank  by  time  scale  or  on  inter  se  merit.   The
respondents alleged that they were discharging the same kind  of  duties  as
were being performed by Group Captains (Select). They were wearing the  same
ranks and  drawing  the  same  emoluments  and  other  allowances  and  were
regulated  by  the  same  conditions  of  services  in  all  other  respect.
Classifying officers who were similarly situate on the basis of  the  method
of appointment to the rank of Group Captain when  everything  else  was  the
same, was violative of Articles 14 and 16 of  the  Constitution  argued  the
aggrieved officers.

5.     The  petitions  were  contested  by  the  appellant-Union  of   India
primarily on the ground that although the respondents held the same rank  as
Group  Captains  (Time  Scale)  and  were  similar  in  all  other  respects
including emoluments and other conditions of service and although they  were
treated to be equivalent to Group Captain (Select) yet the nature of  duties
and the operational employability of  officers  promoted  to  Group  Captain
(Select) rank was better in comparison to those holding the  rank  of  Group
Captain  (Time  Scale).   The  rank  of  Group  Captain  (Time  Scale)  was,
according to the appellant, a new rank created under Government Order  dated
12th March, 2005 (supra) subject to the condition that  the  retirement  age
of Group Captain (Time Scale) would remain the same  as  was  applicable  to
Wing Commanders retiring in that branch. The objective behind  creating  the
rank of Group Captain (Time Scale) was to provide continued motivation  even
such officers as may  not  have  made  it  to  the  rank  of  Group  Captain
(Select).   It  was  alleged  that  post  implementation  of  AVS  Committee
recommendations, Group Captain  (Time  Scale)  Officers  were  being  posted
against positions earlier given to Wing Commanders apart from the fact  that
the sanctioned strength of such Time Scale ranks officers was  held  against
Wing Commander (Time Scale) ranks that existed earlier.

6.    The Tribunal has, upon consideration of the  rival  submissions,  come
to the conclusion that while the purpose underlying  the  creation  of  time
scale post of Group Captain  on  completion  of  26  years  of  service  was
laudable, classification of Group Captains (Time Scale) and  Group  Captains
(Select) into two categories  was  not  constitutionally  permissible.   The
Tribunal recorded a finding that Group Captains (Time Scale) wear  the  same
rank and get the same salary, grade pay and draw the same benefits as  Group
Captains (Select). Posting of Group  Captains  (Time  Scale)  against  posts
earlier manned by  Wing  Commanders  was,  according  to  the  Tribunal,  an
administrative matter which did not justify the classification made  by  the
Government for purpose of prescribing a different  retirement  age  for  the
two categories. The Tribunal held that the  only  difference  between  Group
Captains (Time Scale) and Group Captains (Select) is  that  the  latter  get
promoted to the post of Group Captains in a  shorter  period  whereas  Group
Captains (Time Scale) can get to that rank only after serving for  not  less
than 26 years. Select officers by that process become  senior  to  the  Time
Scale Promotees. The Tribunal held that providing avenues for promotion  for
Wing Commanders who do not  make  it  to  the  rank  of  Group  Captains  by
selection was meant  to  avoid  stagnation  in  the  officers  rank  besides
providing incentives to such officers to continue serving the force  subject
to  their  maintaining  the  required  level  of  professional  ability  and
proficiency and physical fitness to be promoted to the next rank  against  a
time scale vacancy. Such officers could not, therefore, be deprived  of  the
benefit of higher retirement age that would accrue  to  them  by  reason  of
their continued good performance required for such  promotion  to  the  next
rank. The Tribunal observed:

“On the one hand they have granted them a 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.   There  appears  to  be  no
rational basis in this.  When both the persons wear the same rank, draw  the
same salary and get the same grade pay and then to  say  that  one  Gp  Capt
(TS) will retire at the age of 54 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 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 gets same Grade Pay  of  Gp.  Capt.,  he
performs same duties of Gp Capt  as  others  Gp  Capt  performs  except  the
flying branch, then to make a distinction that he should retire at  the  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.”




7.    Appearing for  the  appellants,  Mr.  R.  Balasubramanian  strenuously
argued that the Tribunal had fallen in error in holding that  there  was  no
rational basis  for  classifying  Group  Captains  (Time  Scale)  and  Group
Captains  (Select)  in  two  different  categories  for  purposes  of  their
retirement age.  The fact that the Group Captains (Select) were promoted  to
that rank on the  basis  of  their  merit  was,  according  to  the  learned
counsel,  by  itself  a  sufficient  reason  that   would    justify   their
classification as a separate and distinct group for purposes of  prescribing
a different retirement age apart from the  method  of  appointment  to  that
rank itself being different. It  was  also  contended  that  although  Group
Captains (Select) and Group Captains  (Time  scale)  were  in  all  respects
including the ranks that they wear, salary they receive, and  other  service
benefits they are entitled to similar to Group Captains  (Select),  yet  the
nature  of  duties  which  Group  Captains  (Time  Scale)   performed   were
substantially if not entirely different from  those  that  are  assigned  to
Group Captains (Select). The  deployability  of  Time  Scale  Officers  was,
according to the learned counsel, limited which put them  into  a  different
bracket for purposes of superannuation. It was submitted that even when  the
recommendations made by the AVS Committee as applicable to the  Indian  Army
had not made a distinction between a  Colonel  (Select)  and  Colonel  (Time
scale) in terms of the retirement age yet the very fact that the  Government
had not made such a distinction in the Army  did  not  mean  that  the  same
could not be made in regard to the Air Force.  The  classification  made  by
the  Government  for  purposes  of  different  ages  of  retirement  between
officers in the Select and Time Scale  categories  was  thus  sought  to  be
justified by the appellants on what was according to  them  an  intelligible
differentia that fully justifies the classification.

8.    On behalf of the respondents it was,  on  the  other  hand,  contended
that the classification made by the Government of India  in  the  matter  of
age  of  retirement  of  Select  and  Time   Scale   officers   was   wholly
impermissible and hostile to the Time Scale Officers who  were  holding  the
same rank, drawing the same salary and allowances and for  all  intents  and
purposes, discharging the same duties as  any  other  officer  holding  that
rank was doing. Just because Time Scale Officers came to be  promoted  by  a
different route than officers in the select category  did  not  justify  the
classification brought about by the Government Order in the  matter  of  age
of superannuation.  It was also contended that  there  was  no  intelligible
differentia between Group Captains whether  they  came  to  hold  that  rank
based on Selection or Time Scale so long as the officers held the same  rank
and enjoyed similar service benefits. It was urged that there  was  no  real
basis for the appellants to argue  that  upon  promotion  as  Group  Captain
(Time Scale) the appellants were discharging functions  that  were,  in  any
way,  inferior  or  less  onerous  to  those  discharged  by  Group  Captain
(Select).  The Tribunal had also recorded a finding to that effect and  held
that the posting of an officer after he is promoted as Group  Captain  (Time
Scale) or Group Captain (Select) was an administrative  matter  which  could
not provide a reasonable basis or an intelligible differentia to treat  them
differently so as to justify a different treatment.

9.    It was also contended that the Government had  by  accepting  the  AVS
Committee Report opened avenues for upward mobility of officers  who  fulfil
the minimum requirement  prescribed  for  such  upward  movement  which  was
earlier restricted to a Wing Commander level but now raised to the  rank  of
Group Captain. There was, in any case, no nexus between  the  object  sought
to be achieved in  terms  of  the  AVS  Committee  recommendations  and  the
Government Order on the one hand and the classification of officers  on  the
other.  This was true even when the claim made by the  appellants  that  the
classification and the lower age  of  retirement  for  Group  Captain  (Time
Scale) was meant to keep a lower age profile for commanding officers in  the
Air Force.

10.   The seminal question that falls for our  determination  in  the  above
backdrop is whether classification of  Group  Captains  in  the  Indian  Air
Force for purposes of age of superannuation, is offensive to Article  14  of
the Constitution.  A  long  line  of  decisions  of  this  Court  that  have
explained the meaning of equality guaranteed by Articles 14 and  16  of  the
Constitution  and  laid  down  tests  for  determining  the   constitutional
validity of a classification in a given case immediately assume  importance.
These pronouncements have by now authoritatively  settled  that  Article  14
prohibits class legislation and  not  reasonable  classification.  Decisions
starting with State of West Bengal v. Anwar Ali (AIR 1952  SC  75)  down  to
the very recent pronouncement of this Court  in  Dr.  Subramanian  Swamy  v.
Director, CBI and Anr. (AIR 2014 SC  2140)  have  extensively  examined  and
elaborately explained that a classification passes the test  of  Article  14
only if (i) there is  an  intelligible  differentia  between  those  grouped
together and others who are kept out of the group; and (ii) There  exists  a
nexus between the differentia and the object of  the  legislation.  Speaking
for the Court Das J., in Anwar Ali’s case (supra) summed up the  essence  of
what is permissible under Article 14 in the following words:

“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 of the legislation.  In order to pass the  test,  two
conditions must be fulfilled, namely, (1) that the  classification  must  be
founded on an intelligible differentia which distinguishes  those  that  are
grouped together from others and (2)  that  that  differentia  must  have  a
rational relation to the object sought to be achieved by the Act.

The differentia which is the basis of classification and the object  of  the
Act are distinct things and what is necessary is that there must be a  nexus
between them. ”



11.   The principle was reiterated  in  Shri  Ram  Krishna  Dalmia  v.  Shri
Justice S.R. Tendolkar & Ors. (AIR 1958 SC 538) in the following passage:

“It  is  now  well  established  that  while  article   14   forbids   class
legislation, it does not forbid reasonable classification for  the  purposes
of legislation.   In  order,  however,  to  pass  the  test  of  permissible
classification  two  conditions  must  be  fulfilled  namely  (1)  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 group and (ii) that differentia must have a rational relation  to
the  object  sought  to  be  achieved  by  the  statute  in  question.   The
classification may be founded on different basses, namely, geographical,  or
according to objects or occupation or the like.  What is necessary  if  that
there must be a nexus between the basis of classification and the object  of
the Act under consideration.”



12.   In Lachhman Das v. State of Punjab, (AIR  1963  SC  222),  this  Court
while reiterating the test to be applied for examining the vires of  an  Act
on the touchstone of Article  14  sounded  a  note  of  caution  that  over-
emphasis on the doctrine of classification may gradually  and  imperceptibly
deprive the Article of its glorious content. This Court observed:


“…..the doctrine of classification is only  a  subsidiary  rule  evolved  by
courts to give a practical content to the  said  doctrine.  Overemphasis  on
the doctrine of classification  or  an  anxious  and  sustained  attempt  to
discover some basis  for  classification  may  gradually  and  imperceptibly
deprive the article of its glorious content. That process  would  inevitably
end in substituting the doctrine  of  classification  for  the  doctrine  of
equality: the fundamental  right  to  equality  before  the  law  and  equal
protection of the laws may be replaced by the doctrine of classification.”



13.   The content and the sweep of Article 14 of the Constitution  was  once
more examined in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC  3,  where
this Court laid bare a  new  dimension  of  Article  14  and  described  its
activist magnitude as a guarantee against arbitrariness.  Speaking  for  the
Court, P.N. Bhawati, J. as His Lordship then was said:

“85. xxxxxx
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 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  Articles  14  and  16  is
equality and inhibition against discrimination.

Xxxxxxx

Equality is a dynamic concept  with  many  aspects  and  dimensions  and  it
cannot  be  “cribbed,  cabined  and   confined”   within   traditional   and
doctrinaire  limits.  From  a  positivistic  point  of  view,  equality   is
antithetic to arbitrariness. In fact equality and  arbitrariness  are  sworn
enemies; one belongs to the rule of law in a republic while  the  other,  to
the whim and caprice of an absolute monarch. Where an act is  arbitrary,  it
is implicit in it that it is unequal both according to political  logic  and
constitutional law and is therefore violative  of  Article  14,  and  if  it
effects any matter relating to public employment, it is  also  violative  of
Article 16. Articles 14 and 16 strike at arbitrariness in State  action  and
ensure fairness and equality of treatment. They require  that  State  action
must  be  based  on  valid  relevant  principles  applicable  alike  to  all
similarly situate and it must not be guided by any extraneous or  irrelevant
considerations  because  that  would  be  denial  of  equality.  Where   the
operative reason for State action, as  distinguished  from  motive  inducing
from the antechamber of the mind, is not  legitimate  and  relevant  but  is
extraneous and outside the area  of  permissible  considerations,  it  would
amount to mala fide exercise of power and that is hit  by  Articles  14  and
16. Mala fide exercise of  power  and  arbitrariness  are  different  lethal
radiations emanating from the same vice: in fact the latter comprehends  the
former. Both are inhibited by Articles 14 and 16.”



14.   The dimensions of Article 14 were further enlarged by  this  Court  in
Maneka Gandhi v. Union of India (1978) 1 SCC 248, where  Bhagwati,  J.  once
again speaking for the Court described the guarantee  against  arbitrariness
as a great equalising principle, a founding faith of the  Constitution,  and
a pillar on which rests securely the foundation of our democratic republic.

15.   It is unnecessary to burden this judgment with  reference  to  several
indeed numerous other pronouncements that have reiterated and  followed  the
ratio of the decisions to which we have referred hereinabove  for  we  would
remain content with a reference to a recent Constitution Bench  decision  in
Dr. Subramanian Swamy v. Director, CBI and Anr. (AIR  2014  SC  2140)  where
this Court was examining whether Section 6A(1)  of  the  PC  Act,  1988  was
constitutionally valid insofar as the same required approval of the  Central
Government to conduct any inquiry or investigation into any offence  alleged
to have been committed under the said Act where such allegations related  to
employees of the Central Government of the  level  of  Joint  Secretary  and
above  and  officers  as  are  appointed  by  the  Central   Government   in
Corporations established by or under any Central Act, Government  companies,
societies etc.  Speaking for the Court Lodha, CJI observed:

“Can  it  be  said  that  the  classification  is  based   on   intelligible
differentia when one set of bureaucrats of Joint Secretary level  and  above
who are working with the Central Government  are  offered  protection  under
Section 6-A while the same level of officers who are working in  the  States
do not get protection though both classes of these officers are  accused  of
an offence under  PC  Act,  1988  and  inquiry  /  investigation  into  such
allegations is to be carried  out.  Our  answer  is  in  the  negative.  The
provision in Section 6-A, thus, impedes tracking  down  the  corrupt  senior
bureaucrats as without previous approval of the Central Government, the  CBI
cannot even hold preliminary inquiry much less  an  investigation  into  the
allegations. The protection in Section 6-A has propensity of  shielding  the
corrupt. The object of Section 6-A,  that  senior  public  servants  of  the
level of Joint Secretary and above who take policy decision must not be  put
to any harassment, side-tracks the fundamental  objective  of  the  PC  Act,
1988 to deal with corruption and act against  senior  public  servants.  The
CBI is not able to proceed even to collect the  material  to  unearth  prima
facie substance into the merits of allegations. Thus, the object of  Section
6-A itself is discriminatory. That being the  position,  the  discrimination
cannot be justified on the ground that there is a reasonable  classification
because it has rational relation to the object sought to be achieved.


16.   Time now to test the validity of the classification  in  the  case  at
hand; in the light of the legal position  enunciated  in  the  decisions  of
this Court juxtaposed with the rationale which the appellant-Union of  India
has advanced to justify  its  action.  As  noticed  earlier,  there  are  in
substance two main reasons which the appellant has advanced  in  support  of
the classification made by it. The first and foremost is  that  officer  who
get promoted to the rank of Group Captains on the basis of merit  constitute
a class different from the ones who do not make it to the next rank on  that
basis. That officers who fail to make the grade in merit selection on  three
occasions admissible to them are eventually promoted to the  rank  of  Group
Captains based on the length of their service does  not,  according  to  the
appellant, make them equal to their colleagues who have stolen a march  over
them by reason of their superior  merit.  The  second  and  the  only  other
ground called in aid of the classification  is  that  Group  Captains  (Time
Scale) do not discharge the  same  functions  as  are  discharged  by  Group
Captains (Select). The deployability of  time  scale  Group  Captains  being
limited,  they  can,  according  to  the  appellants,  be  classified  as  a
different group or category even when in all other respects they  are  equal
to the officers promoted on merit.

17.   The Tribunal has rejected both the reasons aforementioned and, in  our
opinion, rightly so. Classification of employees  based  on  the  method  of
their recruitment has long since been declared impermissible by this  Court.
 There can  be  no  differential  treatment  between  an  employee  directly
recruited vis-a-vis another who is promoted. So long as  the  two  employees
are a part of the same cadre, they cannot be treated differently either  for
purposes of pay and allowances or other  conditions  of  service,  including
the age of superannuation. Take for instance, a directly recruited  District
Judge,  vis-a-vis  a  promotee.  There  is  no  question  of  their  age  of
superannuation being different only because one is a  direct  recruit  while
the other is a promotee.  So also an IAS Officer recruited  directly  cannot
for purposes of age of superannuation be classified differently from  others
who join the cadre by promotion from the  State  services.   The  underlying
principle is that so long as the officers are a part  of  the  cadre,  their
birth marks, based on how they joined the cadre is not relevant.  They  must
be treated equal in all respects salary,  other  benefits  and  the  age  of
superannuation included.

18.   In the case at hand, Group Captains constitute  one  rank  and  cadre.
The distinction between a Group Captain (Select)  and  Group  Captain  (Time
Scale) is indicative only of the route by which  they  have  risen  to  that
rank. Both are promotees. One reaches the  rank  earlier  because  of  merit
than the other who takes a longer time to do so because he  failed  to  make
it in the three chances admissible to them. The select officers may in  that
sense be on a relative basis more  meritorious  than  time  scale  officers.
But that is bound to happen in  every  cadre  irrespective  of  whether  the
cadre comprises only directly recruited officers or only promotees or a  mix
of both. Inter se merit will always be different, with  one  officer  placed
above the other. But just because one is more  meritorious  than  the  other
would not by itself justify a different treatment much less  in  the  matter
of age of superannuation.

19.   It is common ground that Time Scale Officers do not get to the  higher
rank only because of the length of  service.  For  purposes  of  time  scale
promotion  also  the  officers  have  to  maintain  the  prescribed  minimum
standard  of  physical  fitness,  professional   ability,   commitment   and
proficiency. Rise to the next rank by time scale route is, therefore, by  no
means a matter of course.  It is the length of  service  and  the  continued
usefulness of the officer on the minimal requirements  stipulated  for  such
promotion that entitles an officer to rise to higher professional  echelons.
Suffice it to say that while better inter se merit would earn to an  officer
accelerated promotion to the Group Captain’s rank  and  resultant  seniority
over Time Scale Officers who  take  a  much  longer  period  to  reach  that
position, but once Time Scale Officers do so they are equal in all  respects
and cannot be dealt with differently in the matter of service conditions  or
benefits. All told the submission of the Time Scale  Officers  that  because
of their long years of service and experience, they make up in  an  abundant
measure, for a relatively lower merit cannot be lightly brushed aside.  That
Group Captains (Time Scale) wear the same rank, are  paid  the  same  salary
and allowances and all other service benefits admissible to  Group  Captains
(Select) supports that assertion for otherwise there is no reason  why  they
should have been equated in matters  like  pay,  allowances  and  all  other
benefits including the rank they wear if they were not  truly  equal.   Once
it is conceded that the two are equal in all other respects as  indeed  they
are, there is no real or reasonable basis for treating them to be  different
for purposes of age of retirement.

20.   Two significant features need to be noticed at this stage.  The  first
and foremost is that before AVS Committee recommended  the  raising  of  bar
for time scale officers, from the rank of  Wing  Commanders  (TS)  to  Group
Captains (TS), the age of retirement for   Wing  Commanders  (TS)  and  Wing
Commanders (TS) was the same. In other words, the pre-AVS  Committee  regime
did not recognise any distinction between time scale and select officers  to
justify a different  age  of  retirement  for  them.  Not  only  that  while
implementing the AVS-Committee recommendations in regard to the Indian  Army
the Government have not made any distinction between Cols (Select) and  Cols
(TS) for purposes of the age of retirement as both retire at the  same  age.
When asked whether  there  is  any  difference  in  Time  Scale  and  Select
Officers serving in the Army on the one hand and Air  Force  on  the  other,
learned counsel for the appellants was unable to  provide  any  satisfactory
explanation for the dichotomy. All that was argued was  that  Army  being  a
bigger organisation there is no difficulty in suitably deploying  Col.  (TS)
officers but Air Force being a  smaller  organisation  as  compared  to  the
Army, it is not possible to do  so  in  the  Air  Force.  That  is,  in  our
opinion, hardly a  reason  for  the  classification  brought  about  by  the
Government in regard to Air Force Officers. While it is true that Air  Force
is a smaller organisation in comparison to Army, the fact remains  that  the
number of Time Scale Officers would  also  be  proportionally  smaller  than
those in the Indian Army.

21.   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. We may in this regard gainfully refer to the  decision  of
this Court in Col. A.S. Iyer & Ors. V. Bala Subramanyan & Ors. (1980) 1  SCC
634, where Krishna Iyer J. as his Lordship  then  was  rejected  a  somewhat
similar argument to justify a classification based on the birthmarks of  the
members of a cadre. He said:

“Let us eye the issue from the egalitarian angle of Articles 14 and  16.  It
is trite law that equals shall be treated as equals and, in its  application
to public service, this simply means that once several persons  have  become
members of one service they stand  as  equals  and  cannot,  thereafter,  be
invidiously differentiated for purposes of salary, seniority,  promotion  or
otherwise, based on the source of recruitment or other adventitious  factor.
Birth-marks of public servants are obliterated on entry into a  common  pool
and bur country does not believe in  official  casteism  or  blue  blood  as
assuring preferential treatment in the future career. The  basic  assumption
for the application of this principle is that the various members or  groups
of recruits have fused into or integrated  as  one  common  service.  Merely
because  the  sources  of  recruitment  are  different,  there   cannot   be
apartheidisation within the common service.”



                                      (emphasis supplied)



22.   In Air India v. Nargesh Mirza and Ors. (1981)  4  SCC  335,  a  three-
Judge Bench of this Court  was  examining  whether  a  rule  that  permitted
retirement of Hostesses, within four  years  of  her  joining  service,  was
reasonable.  This Court held that if the factors or circumstances  that  are
taken  into  consideration  while  fixing  the  age  of  superannuation  are
inherently  irrational  or  illogical,  the  decision  fixing  the  age   of
retirement will be flawed. The Court observed:

“There can be no cut and dried formula for fixing age of retirement.  It  is
to be decided by the authorities concerned after taking  into  consideration
various factors such as the nature of the work, the  prevailing  conditions,
the practice prevalent in  other  establishments  and  the  like.   But  the
factors to be considered must be relevant and should bear a close  nexus  to
the nature of the organisation and the duties of  the  employees.  So  where
the authority concerned takes into account factors  or  circumstances  which
are inherently irrational or illogical or tainted, the decision  fixing  the
age of retirement is open to serious scrutiny.”



23.   In Kamlakar and Ors. v. Union of India & Ors. (1999) 4 SCC  756,  this
Court was examining whether a  distinction  could  be  made  between  direct
recruits and promotees as regards equal  treatment  in  the  matter  of  pay
scales admissible to them. Rejecting the contention  that  such  distinction
would be justified this Court held that once  officers  are  placed  in  one
cadre the distinction between direct recruits and promotees disappears.  The
birthmarks  have  no  relevance  for  classification  of   Data   Processing
Assistants who are directly recruited and  others  who  are  promoted.  This
Court observed:

“12……Once they were  all  in  one  cadre,  the  distinction  between  direct
recruits and promotees disappears at any rate so far as equal  treatment  in
the same cadre for  payment  of  the  pay  scale  given  is  concerned.  The
birthmarks have no relevance in this connection. If any distinction is  made
on the question of their right to the post  of  Data  Processing  Assistants
they were holding and to its scale — which were matters  common  to  all  of
them before the impugned order of the Government of India was passed on 2-7-
1990, — then any distinction between Data  Processing  Assistants  who  were
direct recruits and those  who  were  promotees,  is  not  permissible.  We,
therefore, reject the respondents’ contention…..”



24.   The  principles  stated  in  the  above  decisions  lend  considerable
support to the view that  classification  of  Group  Captains  (Select)  and
Group Captains (Time Scale)  in  two  groups  for  purposes  of  prescribing
different retirement ages, is offensive to the  provisions  of  Articles  14
and 16 of the Constitution of India.  These  appeals  must,  on  that  basis
alone, fail and be dismissed, but, for the sake of  a  fuller  treatment  of
the subject, we may as well  examine  whether  the  classification  has  any
nexus with the object sought to  be  achieved  by  the  Government  decision
taken in the wake of the AVS Committee recommendations.

25.   The AVS Committee was tasked to examine two  main  issues  namely  (i)
achieving optimal combat effectiveness by bringing down the age  profile  of
Battalion/Brigade  Commanders  and  (ii)  making   the   organisation   more
effective in fulfilling individual career  aspirations  by  their  officers.
This is evident from the report of the Committee in para 5  whereof  it  has
said:

“5.   According  to  the  AHQ  Paper,  the  following  areas  needed  to  be
addressed:

Organisational Imbalances. Arising out of seep paramedical structure of  the
cadre. The issues mentioned in the Paper under this heading  were  high  age
profile, physical fitness and need for giving wider exposure to officers  in
today’s high technology environment.



Individual Aspirations. Left unfulfilled due to:

Inadequate career progression.

Disparity with Class ‘A civil services.



Harsh service conditions.’

26.   The Committee then examined various options  in  regard  to  both  the
issues mentioned above and made its recommendations. Apart  from  suggesting
measures that could be taken to reduce the age profile of  Battalion/Brigade
Commanders, the Committee suggested introduction of  Col.(TS) rank  for  the
Army  which  recommendation  when  applied  to   Air   Force   resulted   in
introduction of the rank of Group Captain (Time Scale). These new  creations
were meant to meet the aspirations of the officers who did not make  to  the
next rank on the basis of merit selection.

27.    In  the   Air   Force,   the   avowed   objectives   underlying   the
recommendations were achieved by the Government permitting a Wing  Commander
to pick up the next higher rank of Group Captain on merit after  putting  in
a service of 13 years only and by creating the rank of Group  Captain  (Time
Scale). This change  has  ushered  in  a  new  regime  under  which  younger
officers got promoted as Group Captains. Once promoted  they  gain  an  edge
over others who do not make it to the next  rank  on  merit  but  who  reach
there on time  scale  basis  after  26  years  of  service.  Group  Captains
(Select) who are invariably younger by many years  to  such  Group  Captains
(TS) thus provide the human resource from out of which the Air  Force  picks
up its commanding officers. Time Scale officers, would in the light  of  the
change, be generally if not invariably in non-command positions in  the  Air
Force, to which they have never raised any objection as was  the  submission
of learned counsel appearing on their behalf. But to say that sending  these
time scale offices home on attaining the  age  of  52  years  and  54  years
depending upon whether they are serving in the flying or ground duty  branch
has any nexus with the object of having a younger age profile of  commanding
officers is not in our opinion correct. So long as Group  Captains  (Select)
are senior to Time Scale Officers and so long as the former are  younger  in
age as they are bound to be, the objective of having a younger  age  profile
of commanding officers is achieved even  if  the  Time  Scale  Officers  are
permitted to retire at the same age as Group Captains (Select).  The  second
test applicable viz. existence of a nexus between the object  sought  to  be
achieved and the classification made by the Government also fails  rendering
the classification bad.

28.   The only other aspect that  needs  to  be  addressed  is  whether  the
classification of Group Captain (Select) and Group Captain (Time Scale)  can
be justified on the basis  of  nature  of  duties  they  discharge.  It  was
contended on behalf of the appellants that nature of  duties  and  functions
were not identical for the two categories.  A classification based  on  such
a difference was,  therefore,  justified.  The  Tribunal  has  examined  and
rejected a similar contention urged before it. We may, in  this  connection,
refer to para 10 of the Writ Petition filed by the respondents that came  to
be transferred to the Tribunal from the High Court for disposal. In para  10
the respondents-writ petitioners made the following averments:

“10. That the nature of work duties and functions performed  by  time  scale
group captains are identical to that of group captains  selection.  Further,
even the financial powers  enjoyed  by  Group  Captain  selection  are  also
vested with Group Captain time scale.  The duties discharged by  both  Group
captain selection and time scale are identical.”



29.   In the counter-affidavit filed on behalf of the appellants herein  the
appellants asserted as follows:-

“9.   In reply to Para 10, it is submitted that the nature of  work,  duties
and functions performed by Time Scale Gp Capt is that of an  officer  of  Wg
Cdr rank. A Wg Cdr on not getting cleared  for  promotion  to  the  rank  of
Group Captain is promoted on a time scale basis to Gp Capt on  attaining  26
years of service. However the officer continues to perform  the  duties  and
work of a Wg Cdr. Financial powers of an  officer  are  a  function  of  the
officer’s  appointment  and  not  of  the  rank.   Therefore  equating   the
financial powers based on promotion by Time Scale or  by  Selection  has  no
meaning.”



30.   A plain reading of the above reply  would  show  that  the  appellants
have not indicated how the work, duties and  functions  performed  by  Group
Captain (Time Scale) are different from those discharged  by  Group  Captain
(Select). All that is stated  is  that  Group  Captains  (Time  Scale)  when
promoted after completing 26 years of service continue to perform  the  work
and duties of Wing Commanders. We have not  been  able  to  appreciate  this
line of reasoning. If a Wing Commander is promoted as  a  Group  Captain  on
Time Scale basis, the nature of duties must, by reason  of  such  promotion,
be more onerous than those discharged by him as a Wing Commander.  Promotion
to a higher cadre invariably implies higher responsibilities even  when  the
essential nature of work may continue to be the same. For instance,  a  Wing
Commander in the flying branch may be required to fly fighter  aircrafts  on
peace time training or when the country is at war. A Group Captain  (Select)
would also be doing the same work as indeed even the  Group  Captains  (Time
Scale) shall be required to do. Flying a fighter aircraft is thus  essential
part of the duties of an officer serving in the  flying  wing.  But  to  say
that since a Group Captain (Time Scale) continues to fly as  he  was  flying
as a Wing Commander, his promotion  as  a  Group  Captain  (Time  Scale)  is
inconsequential from the point  of  view  of  nature  of  work  may  not  be
correct.  Nature  of  duties  in  such  situations  does  not  undergo   any
significant change even when an officer picks up a higher rank.  It is  only
the addition of higher and  more  onerous  responsibility  attached  to  the
office that fall on his shoulder.  One could well say that if Group  Captain
(Time Scale) continues to work as a Wing Commander, what work are  the  Wing
Commanders doing.  That apart, allocation of work and  duties  is  a  matter
left  for  the  Air  Force  Authorities  to  determine.  Lesser  or   higher
allocation of such duties will  not  trivialise  the  promotion  of  a  Wing
Commander to the rank of Group Captain which progression must be treated  to
be a promotion for all intents and purposes. That is perhaps the reason  why
the Tribunal appears to have repeatedly asked the appellants to explain  the
basis on which a distinction was made between Group  Captains  (Select)  and
Group Captains (Time Scale) no matter they are  wearing  the  same  uniform,
same rank, getting the same salary and the same grade pay.  In  the  absence
of any rational basis for such a distinction,  the  Tribunal  was  right  in
saying:

“We asked learned counsel for the respondent  repeatedly  to  tell  us  that
what is the  rationale  for  making  this  distinction  when  the  both  the
officers, one selected by “select” and other by “time scale” they wear  same
uniform, they wear same rank, they get same salary and they get  same  grade
pay and discharge identical duties (except  flying  branch)  then  why  this
distinction is sought to be made from their earlier birth  mark.   There  is
no rationale which has been brought up either in reply  or  by  the  learned
counsel for the respondent. The only argument was that these  are  basically
Wg Cdr and they continue  to  be  wing  commanders.   Once  they  have  been
promoted as a Gp. Captain (TS)  they  seize  to  be  Wg  Cdr,  it  is  there
administrative arrangement that  out  of  these  Wg  Cdrs,  some  posts  are
upgraded in order to provide salary to these persons of Gp. Cap.  Once  they
are drawing a salary of Gp. Capt and automatically  post  of  Wg  Cdr  stand
upgraded otherwise no salary of the Gp Capt will be  given  unless  post  of
the Wg Cdr to which he is posted is upgraded.”



31.   In the additional affidavit filed on behalf of the appellant-Union  of
India before us it was, inter alia, stated that upon  consideration  of  the
recommendations made by the AVS  Committee,  the  Ministry  of  Defence  had
submitted to Government of India  a  detailed  statement  of  case  for  the
latter’s consideration in which it was among other things pointed  out  that
while superseded wing commanders who make the minimum  eligibility  criteria
laid down by the Air HQ should be granted the rank of Group Captain (TS)  on
completion of 26 years of service, it  would  be  preferable  to  have  such
superseded officers exiting early so as not to adversely  affect  efficiency
in the cadre.  It was also asserted that if  the  retirement  age  of  Group
Captain (TS) and  Group  Captain  (Select)  were  to  be  at  par  this  may
adversely affect the Indian Air Force in  many  resultant  situations.   The
following four issues of concern have been expressed by  the  appellants  in
the event of such parity being granted in the matter of retirement age.

“(a) The operational fighting younger force will be depleted and effect  the
combat preparedness of the IAF.

(b)   If there is no additional benefit of promotion based  service  to  the
officers who  are  selected  on  merit,  the  motivation  incentive  to  the
officers who make it to the select rank through merit is nullified.

(c)   As per the felt requirements of the armed forces, which have now  been
accepted by the Government, the age profile of field  unit  commanders  have
been reduced to achieve optimum operational capabilities. If the  superseded
officers of older ages are retained further, their  employability  based  on
functional capacity under these younger  officers  would  pose  command  and
control hurdles.

(d)    It will lead to a further demand for equating in status  also,  which
will disturb the  cadre  structure  of  the  entire  Indian  Air  Force  and
affecting the operational efficiency and command and  control  structure  of
IAF.”



32.   The counter-affidavit further attempts to draw  a  comparison  between
Group Captain (TS) and Group Captain  (Select)  in  the  matter  of  posting
profiles. The counter- affidavit under the heading ‘Posting Profile’  points
out the following position:

|POSTING PROFILE                                                         |
|1.            |The list of   |Appointments  |Are posted in |As laid down  |
|              |established   |against which |vacancies     |by the        |
|              |posts (Since  |posted        |which are     |established   |
|              |the same      |              |authorised as |appointment   |
|              |contain       |              |per           |wise vacancies|
|              |confidential  |              |establishment |applicable to |
|              |data,         |              |for Group     |Wg Cdrs.      |
|              |Petitioners   |              |Captain Select|              |
|              |crave leave of|              |rank officers |              |
|              |this Hon’ble  |              |              |              |
|              |Court to refer|              |              |              |
|              |to and rely   |              |              |              |
|              |upon the same |              |              |              |
|              |at the time of|              |              |              |
|              |arguments)    |              |              |              |
|2.            |Specimen      |Sample        |Directors are |Jt. Directors |
|              |Organisation  |Organisation  |Gp Capt       |are Gp Capt   |
|              |Chart (A true |chart with    |(Select)      |(Time Scale)  |
|              |copy of a     |duties and    |              |and Wg Cdrs   |
|              |specimen      |responsibiliti|              |              |
|              |organisation  |es of a       |              |              |
|              |chart is      |specific      |              |              |
|              |marked and    |directorate   |              |              |
|              |annexed as    |              |              |              |
|              |Annexure A6)  |              |              |              |


33.   The counter-affidavit also cites reduction in combat effectiveness  as
one of the possible fall outs of any parity in  the  age  of  superannuation
between Group Captains (TS) and Group Captains (Select).

34.   The respondents have, in the reply filed to the  additional  affidavit
aforementioned, denied each one  of  the  distinctions  sought  to  be  made
between Group Captain (TS)  and  GroupQ  should   Captain  (Select).  It  is
asserted by them that while recommending the creation of Group Captain  (TS)
rank to provide upward mobility for officers who are unable to pick  up  the
next rank on merit basis, the AVS Committee recommendations never  envisaged
any  difference  in  the  age  of  superannuation  vis-a-vis  Group  Captain
(Select).  The AVS Committee which had examined the matter threadbare  never
thought that any such  distinction  or  discrimination  could  be  justified
between the two.  The concerns expressed by the  Government  as  a  possible
fall out of a parity in retirement age has also been stoutly denied  by  the
respondents in the following words:

”a)  The number of Group Captain(TS) is miniscule compared  to  the  overall
IAF cadre.  IAF has been perpetually deficient in  officers’  cadre.   Owing
to expansion of IAF both  in  terms  of  size,  challenges,  technology  and
capability and creation of several new units  and  formations  have  further
added to deficiency woes of the IAF.  Time  and  again  IAF  has  approached
Government of India to enhance the IAF cadre both  officers’  and  personnel
below officers’  rank.   But  for  classified  reasons  the  government  has
declined to enhance the IAF cadre barring some extremely  limited  revisions
of cadre thus compelling the IAF’s HR  management  to  manage  its  manpower
deficiencies from  within  the  current  cadre  by  adopting  the  following
measures:

 Creation of to be manned level and manning level  to  optimize  sharing  of
the overall deficiency in IAF cadre.

To share  the  poverty  of  deficient  manpower  across  various  roles  and
responsibilities of diverse formations of the IAF, reduced manning level  to
the extent of approximately 70% of the establishment  is  enforced  to  keep
the field and higher formations running at the optimum level of efficiency.

Retention of Group Captain (TS) for additional 3 years up to the age  of  57
would not only fill the  perpetual  deficiency  suffered  by  IAF  over  the
years.

It is pertinent to mention  here  that  minimum  age  of  superannuation  in
Meteorology and Education Branch of the  IAF  is  57  and  that  of  medical
branch is 58.

b)    It is incorrect to say that Group Captain(Select)  officers  would  be
demotivated if Group Captain (TS) are granted 57 years  and that of  medical
branch is 58  years.   These  retirement  ages  are  devoid  of  promotional
limitations from Flying officer onwards to  Air  Marshal.   Since  the  very
inception of the IAF continuation of such officers  up  to  the  age  of  57
regardless of merit, selection and/or  supersession  at  the  rank  and  has
never demotivated the officers of the other branches who  were  selected  on
merit and retired at an equal age despite  making  to  select  rank  through
merit.  All officers of similar categories in all groups  of  branches  have
co-existed in harmony and maintained efficient operational  functioning  and
high levels of moral and motiviation.

c)   It is true that AVSC has mandated  younger  age      profile  of  field
unit  and  formation  commanders.   Reduction  of  functional  capacity   on
retention of Group Captain(TS) beyond 54 and up to 57 years of  age  is  ill
conceived due to the following facts”

(i)   Command and control is a so well structured in the IAF that it is  the
superior rank whose orders are to be obeyed devoid of age of  the  personnel
placed below such commander;

(ii)    It may be recalled that currently minimum age of  superannuation  in
Meteorology and Education branch of the IAF is 57 years and that of  medical
branch is 58 years.  IAF history is replete with the  fact  that  there  has
never been any problem posed by  these  older  age  officers  serving  under
commanders younger in age of such officers.

 Even today a large no. of Group Captain(Select) superseded in  next  higher
rank (Air Commodore) continue to work under  Air  Commodores  who  are  both
younger and junior in  service  to  such  superseded  Group  Captain(Select)
officers, without causing any command and control hurdles.  Similarly  there
are umpteen numbers of examples in higher ranks”.



35.   More importantly, the respondents have asserted  that  Group  Captains
(TS) and Group Captains (Select)  perform  the  same  functions  and  duties
which are higher than  the  duties  and  functions  performed  by  the  Wing
Commanders, they wear the same uniform and rank which  is  higher  than  the
Wing Commanders apart from drawing the same pay  scale  as  Group  Captains,
which too is higher than the one  admissible  to  Wing  Commanders.  On  the
question of posting profile  of  Group  Captains  (TS)  and  Group  Captains
(Select), the respondents have, on affidavit, denied not  only  the  alleged
difference in the nature of duties and functions performed by  the  two  but
specifically claimed that Group Captains (TS)  have  been  posted  and  have
held  positions  and  appointments  that  are  ordinarily  given  to   Group
Captain(Select). In answer to para 11 of the  counter-  affidavit  extracted
earlier, the respondents have given  the  following  instances,  where  Time
Scale Officers have held appointments also held by Select Officers:

|Gp Capt (Select)         |Held by Gp Capt |Period          |
|Appointment              |(TS)            |                |
|Commanding Officer Air   |Gp Capt (TS)    |Not known       |
|Force Intelligence School|Kapil Shukla    |                |
|Chief Logistics Officer, |Gp Capt (TS)    |2005-2006       |
|No-3, Base Repair Depot  |Vijay Narain    |                |
|Chief Logistics          |Gp Captain (TS) |2007-2009       |
|Management Officer, HQ   |VJ Narain       |                |
|Maintenance Command      |                |                |
|Chief Logistics Officer, |Gp Capt (TS)    |Not Known.      |
|No-7, Base Repair Depot  |Chander Shekhar |                |
|Command Organisation     |Gp Capt (TS) AS |07/20120 To     |
|Officer, Westtern Air    |Negi            |6/2013          |
|Command                  |                |                |
|Command Intelligence     |Gp Capt (TS) Y  |6/2010 to       |
|Officer, HQ Eastern Air  |Bagga           |02/2012         |
|Command                  |                |                |
|Director (Policy &       |Gp Capt (TS) AK |08/2012 onwards |
|Co-ordination),          |Chatterjee      |                |
|Directorate of Air Force |                |                |
|Works, Air HQ.           |                |                |
|Director ECHS Regional   |Gp Capt (TS) VK |04/2012 To      |
|Centre, Nagpur           |Yadav           |07/2013         |
|Director ECHS Regional   |Gp Capt (TS)    |06/2012 onwards |
|Centre, Sulur (TN)       |Sajjan          |                |
|Director ECHS Regional   |Gp Capt (TS) M  |Not known       |
|Hyderabad                |Mahapatra       |                |
|Director ECHS Regional   |Gp Cap[t (TS) M |Not known       |
|Centre Bangalore         |Mahapatra       |                |
|Wing Incharge Pension &  |Gp Capt (TS) Ram|01/2011 to      |
|Welfare Wing Air Force   |Pratap          |06/2012         |
|Record Office            |                |                |
|Commanding Officer (Unit)|Gp Capt (TS) Ram|06/2008 to      |
|HQ Training Command      |Pratap          |10/2010         |
|Director Air Staff       |Gp Capt (TS) AS |04/2009 to      |
|Inspectiopn (ATS),       |Gill            |03/2010         |
|Directorate of Air Staff |                |                |
|Inspection, Air HQ       |                |                |


36.   The assertion of the appellant that a parity  in  the  retirement  age
reduces the combat effectiveness of the force has  been  stoutly  denied  by
the respondents who have asserted that if a  Group  Captain(Select)  or  for
that an Air Commodore or an Air Vice Marshall gets  superseded,  his  higher
age neither automatically impedes the quality and  standard  of  performance
of his duties nor does the IAF summarily curtail his residual service  as  a
consequence of his supersession, on the ground that  his  higher  age  group
may impact combat effectiveness.

37.   On the material placed before  us  and  having  regard  to  the  rival
assertions  made  by  the  parties  in  their  respective   affidavits   the
difference in employability of Group Captains (TS)  is  not  borne  out   to
justify the classification made by the Government.  It is evident  from  the
particulars given by the respondents that several Group Captains  (TS)  have
held appointments which are also held by Group Captains (Select).   If  that
be so, the difference in the employability of Time Scale officers  vis-a-vis
select officers appears to be more  illusory  than  real.   There  does  not
appear to be any hard and  fast  rule  on  the  question  of  deployment  or
employability of Group Captains (TS) or Group  Captains  (Select)  for  that
matter.  The Air HQ can, depending upon  its  perception,  order  deployment
and post any officer found suitable  for  the  job.  Deployment  remains  an
administrative matter and unless the same involves  any  reduction  in  pay,
allowances or other benefits or reduction in rank or status  of  an  officer
legally   impermissible,   such   deployment   remains   an   administrative
prerogative of the competent authority.

38.   Suffice it to say that the basis for classification  in  question  for
purposes of age of superannuation which the appellant has projected is  much
too tenuous to be accepted as a valid basis for giving  to  the  Time  Scale
Officers a treatment different from the one given to  the  Select  Officers.
We are also of  the  view  that  concerns  arising  from  a  parity  in  the
retirement age of Time Scale and Select Officers too are  more  perceptional
than real.  At any rate, such concerns remain to  be  substantiated  on  the
basis of any empirical data. The upshot of the above discussion is that  the
classification made by the Government of India  for  purposes  of  different
retirement age for Time Scale Officers and Select Officers  does  not  stand
scrutiny on the touchstone of Articles 14 and  16  of  the  Constitution  as
rightly held by the Tribunal.

39.   In the result, these civil appeals fail and are hereby  dismissed  but
in the circumstances without any order as to costs.




                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)






                                                        …………………………..…………….J.
                                                               (C. NAGAPPAN)
New Delhi
September 24, 2014

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