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
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
