There can be no differential treatment between an employee directly recruited vis-à-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-à-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 birthmarks, 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4717-4719 of 2013
Union of India & Ors.
Versus
Atul Shukla etc.
Citation;(2014) 10 SCC 432.
Dated;September 24, 2014
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
2
Page 2
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.
3
Page 3
Sir,
1. 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.
2.
Substantive Promotion:
To reduce the age profile and supersession levels in the Air
Force as also to improve vertical mobility, promotion to the
substantive ranks of officers will be made on completion of
reckonable commissioned service as indicated below:
Rank
Reckonable
service
commissioned
a) Flying officer (FG Offr) ON commissioning
b) Flight lieutenant (Flt Lt.) 2 years
c) Squadron leader (Sqn Ldr) 6 years
d) Wing Commander (Wg Cdr) 13 years
e) Group Captain (Gp Capt) 26 years
(Time Scale)
3. Promotion accruing from Para 2 above shall also be subject
to the officers fulfilling other criteria to be notified
immediately by the Air Headquarters: through Air HQ Human
Resource Policy. Loss of seniority for non qualification in
promotion examinations already awarded will continue to
hold good.
4. Those serving in the rank of Wg Cdr (Time Scale) will now be
eligible for grant of the substantive rank of Wg Cdr. On grant
of substantive rank of Wg Cdr these officers would become
eligible for consideration for Gp Capt (Select)/Gp Capt (Time
Scale) provided that;
(a)
Those who have attained the rank of Wg Cdr (Time
Scale) on completion of 20 years of service before
the dare of implementation of the order and who
have been found suitable for grant of Wg Cdr (Time
4
Page 4
Bound) based, on the new Human resource policy
notified by Air HQ will be eligible for consideration to
the rank of GP Capt (Select). These officers would
reckon their seniority immediately below the junior
most select Wg Cdr who has already been promoted
ahead of him prior to Implementation of this order.
(b)
Those who have attained the rank of Wg Cdr (Time
Scale) on completion of 20 years of service, before
the date of implementation of the order and who
have been found unsuitable for grant of Wg Cdr
(Time Bound) based on the new Human resource
policy will be ineligible for consideration to the rank
of GP Capt (Selection) but will be eligible for grant of
rank of Gp Capt (Time Scale).
GP Capt (Time Scale)
5. 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:
(a) Pay Scale. As applicable to Gp Capt (Select) Grade
which currently is Rs. 15,100-450-17,350.
(b) Rank Pay. Officers will be entitled to rank pay of a
Wg Cdr which currently is Rs. 1,600/- p.m.
(c) Other Allowances & Perks. Officers holding the rank
of Gp Capt (Time Scale) will be eligible for all
allowances and other perks as applicable to Gp Capt
(Select) Grade.
(d) Age of Superannuation. The age of superannuation
for Gp Capt (time Scale) would be same as it is for
the rank of Wg Cdr in respective, branches.
Therefore, there is no change in the retirement age
of a Wg Cdr on being promoted to the rank of Gp
Capt (Time Scale).
5
Page 5
(e)
Medical Criteria. The present provisions contained in
the policies and amendments thereto, applicable so
far for the rank of Wg Cdr (Time Scale) will now be
applicable to the new grade of Gp Capt (Time Scale):
6. 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:-
(a) Substantive Gp Capt (Select).
(b) Acting Gp Capt (Select).
7. Detailed criteria and procedure for grant of substantive rank
of Gp Capt by Time Scale will immediately be notified by the
Air Headquarters through HRP.
8. Revision in pay and pension due to promotion, where
applicable, to officers who have retired, during the
intervening period between 16 Dec 04 and date of issue of
this letter will be reviewed with retrospective effect from 16
Dec 04.
9. 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.
10.
These orders will take effect from 16 Dec 2004.
11. 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
6
Page 6
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
7
Page 7
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 Grou Edn Met Flying Ground Edn Met
Branc nd Branc Branc Branc Duty Branch Branch
h Duty h h h Branch
Branc
h
Wg 52 54 54 57 - - - -
Cdr
(TS)
Wg Cdr. 52 54 54 57 52 54 57 57
(Select)
Gp Capt - - - - 52 54 57 57
(TS)
Gp Capt 52 57 57 52 57 57 57
(Select) 57 (Extend
(Extenda able to
ble 54)
to
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
8
Page 8
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
9
Page 9
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
10
Page 10
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).
alleged
that
post
implementation
of
AVS
It was
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.
11
Page 11
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
12
Page 12
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
13
Page 13
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
14
Page 14
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
15
Page 15
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
16
Page 16
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
17
Page 17
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:
18
Page 18
“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.”
19
Page 19
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:
20
Page 20
“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
21
Page 21
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
22
Page 22
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.
23
Page 23
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
24
Page 24
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
25
Page 25
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.
26
Page 26
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
27
Page 27
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
implementing
the
for
them.
Not
AVS-Committee
only
that
while
recommendations
in
regard to the Indian Army the Government have not made
28
Page 28
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
29
Page 29
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.
30
Page 30
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
31
Page 31
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.
32
Page 32
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:
(i) 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.
(ii) Individual Aspirations. Left unfulfilled
due to:
(a) Inadequate career progression.
(b) Disparity with Class ‘A civil
services.
(c)
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
33
Page 33
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
34
Page 34
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
35
Page 35
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
36
Page 36
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
37
Page 37
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
38
Page 38
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
39
Page 39
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
40
Page 40
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 Appointment
established
s
against
posts (Since which posted
the
same
contain
confidential
data,
Petitioners
crave leave
of
this
Hon’ble
Court
to
refer to and
rely upon the
same at the
time
of
arguments)
Are posted in As laid down
vacancies by
which the
are established
authorised appointment
as wise
per vacancies
establishmen applicable to
t for Group Wg Cdrs.
Captain
Select rank
officers
2. Specimen
Organisation
Chart (A true
copy of a
specimen
organisation
Sample Jt. Directors
Directors are are Gp Capt
Organisation Gp (Time Scale)
Capt and Wg Cdrs
chart
with (Select)
duties
and
responsibiliti
es
of
a
41
Page 41
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 Group 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
42
Page 42
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:
i)
ii)
iii)
iv)
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
43
Page 43
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.
(iii)
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
44
Page 44
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 Period
Appointment Capt (TS)
Commanding Officer Gp Not known
Air Force Intelligence Capt
School (TS)
Kapil
Shukla
Chief Logistics Officer, Gp 2005-2006
No-3, Base Repair Capt
Depot (TS)
Vijay
Narain
45
Page 45
Chief Gp Captain 2007-2009
Logistics (TS)
Management Officer, VJ
HQ Narain
Maintenance
Command
Chief Logistics Officer, Gp Not Known.
No-7, Base Repair Capt
Depot (TS)
Chander
Shekhar
Command Gp 07/20120
Organisation (TS) To 6/2013
Westtern Negi
Command
Officer,
Air
Capt
AS
Command Gp 6/2010
Intelligence Capt 02/2012
Officer, (TS)
HQ Y
Eastern Bagga
Air
Command
to
Director (Policy & Co- Gp 08/2012
ordination), Capt onwards
Directorate (TS)
of AK
Air Chatterjee
Force Works, Air HQ.
Director ECHS Gp 04/2012 To
Regional Centre, Capt 07/2013
Nagpur (TS)
VK
Yadav
Director ECHS Gp 06/2012
Regional Centre, Capt onwards
Sulur (TN) (TS) Sajjan
Director Gp Not known
ECHS Capt
Regional Hyderabad (TS)
M
Mahapatra
Director ECHS Gp Not known
Regional Centre Cap[t
Bangalore (TS)
M
Mahapatra
Wing Gp 01/2011
Incharge Capt 06/2012
Pension & Welfare (TS)
Wing Air Force Record Ram
Office Pratap
to
Commanding Officer Gp 06/2008
(Unit) HQ Training Capt 10/2010
Command (TS)
Ram
Pratap
to
46
Page 46
Director
Air
Staff
Inspectiopn
(ATS),
Directorate
of
Air
Staff Inspection, Air
HQ
Gp
Capt
(TS) AS Gill
04/2009
03/2010
to
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
47
Page 47
(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
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of different retirement age for Time Scale Officers and Select
Officers does not stand scrutiny on the touchstone of Articles
14 and 16 of the Constitution as rightly held by the Tribunal.
39. In the result, these civil appeals fail and are hereby
dismissed but in the circumstances without any order as to
costs.
................................................J.
(T.S. THAKUR)
................................................J.
(C. NAGAPPAN)
New Delhi
September 24, 2014
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