armed forces tribunal, regional bench, kochi o a...

ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O A Nos.58, 92, 105, 106,120 and 125 of 2013

FRIDAY , THE 10TH DAY OF JANUARY, 2014/20TH POUSHA, 1935

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

OA No.58 of 2013: APPLICANT :

GROUP CAPTAIN SAJI ABRAHAM (16647) ADM,HQ, SAC IAF, AAKULAM, THIRUVANANTHAPURAM – 695 031. BY ADV. SRI. BIJU ABRAHAM.

versus

RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS

SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110001.

2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN),RAFI MARG, NEW DELHI – 11.

3. AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN),RAFI MARG, NEW DELHI – 11.

4. AIR OFFICER COMMANDING IN CHIEF,HEADQUARTERS, SOUTHERN AIR COMMAND,AAKULAM, THIRUVANANTHAPURAM – 695 031.

5. COMMANDING OFFICER, HEADQUARTERS,SOUTHERN AIR COMMAND UNIT, AAKULAM,THIRUVANANTHAPURAM - 695 031.

BY ADV. SRI. P.J. PHILIP, CENTRAL GOVT. COUNSEL.

OA No.92 of 2013: APPLICANT:

GROUP CAPTAIN JK CHANDNA (17043) ADM,2 AIR FORCE SELECTION BOARD, MYSORE.

BY ADV. SRI. BIJU ABRAHAM.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 2 :

versus





4. AIR OFFICER COMMANDING IN CHIEF,HEADQUARTERS, SOUTHERN AIR COMMAND,AAKULAM, THIRUVANANTHAPURAM – 695 031.

5. AIR OFFICER COMMANDING, NO.2 AIR FORCE SELECTION BOARD,CV COMPLEX, SIDHARTH NAGAR,MYSORE (KARNATAKA) – 570 011.

BY ADV. SRI. TOJAN J. VATHIKULAM, CENTRAL GOVT. COUNSEL.


GROUP CAPTAIN SK MITTAL, VSM (17051) ADM,S/O. L.D. MITTAL, AGED 54 YEARS OF CHAF,BANGALORE, HAVING PERMANENT ADDRESS ATC/O. DILA RAM LACHMAN DASS RAMAN – 151301,DISTT. BATHINDA (PB).


versus



2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN),

RAFI MARG, NEW DELHI – 11.

3. AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI – 11.

4. AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE – 06.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 3 :

5. COMMANDANT, COMMAND HOSPITAL, AIR FORCE, AGRAM POST, BANGALORE – 560007, (KARNATAKA).



GROUP CAPTAIN S. BANERJEE (17066-K), ADM,S/O LATE AJIT KUMAR BANERJEE, AGED 54 YEARS,RETIRED ON 30. JUNE 2013, AS DY. CHIEF ADMINISTRATIVE OFFICER.OF CHAF, BANGALORE HAVING PERMANENT ADDRESS ATNO.04, YASH CLASSIC ENCLAVE (PHASE I), HENNUR ROAD,BANGALORE – 560 043.


versus






5. COMMANDANT, COMMAND HOSPITAL,

AIR FORCE, AGRAM POST, BANGALORE – 560007, (KARNATAKA).



GROUP CAPTAIN S.L. SHIVA PRASAD (18667 G),AE (L), S/O. S.R. LAKSHMANA SETTY,AGED 54 YEARS, RETIRED AS HOSPITAL IT OFFICER,

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 4 :

COMMN OFFICER & STO (MT) OF CHAF, BANGALORE,HAVING PERMANENT ADDRESS AT NO.147, FIRST MAIN ROAD, SEVENTH BLOCK,KORAMANGALA, BANGALORE – 560 095.


versus




3. AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI – 11.


5. COMMANDANT, COMMAND HOSPITAL, AIR FORCE, AGRAM POST, BANGALORE – 560007, (KARNATAKA).

BY ADV. SRI. S. KRISHNAMOORTHY, SENIOR PANEL COUNSEL.


GROUP CAPTAIN M. NITHYANANDAN (17767 F), ADM,S/O.LATE MR. S.S. MOSES, AGED 53 YEARS AND 08 MONTHS,SERVING AS AN ADMINISTRATIVE OFFICER AT AIR FORCE STATION, JALAHALLI (WEST), BANGALORE

– 560 015, HAVING PERMANENT ADDRESS AT NO.374/3, OFFICERS ENCLAVE, AIR FORCE STATION, JALAHALLI (EAST), BANGALORE – 560 014. BY ADV. SRI. BIJU ABRAHAM. versus



OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 5 :



4. AIR OFFICER COMMANDING IN CHIEF,HEADQUARTERS, TRAINING COMMAND,JC NAGAR POST, BANGALORE – 06.

5. AIR OFFICER COMMANDING, AIR FORCE STATION,JALAHALLI, BANGALORE – 560 015, KARNATAKA.

BY SMT.E.V.MOLY, CENTRAL GOVT. COUNSEL

ORDER

Shrikant Tripathi, Member (J):

1. In all these matters, the question whether the Group

Captains (Time Scale) are entitled to be treated at par with the Group

Captains (Select) regarding the age of superannuation and as such,

are entitled to serve the Air Force up to the age of 57 years in place of

54 years has arisen, therefore, with the consent of the learned

counsel for the parties, all these cases were heard together and are

being disposed of by this common order.

2. The applicant, Group Captain Saji Abraham, No.16647, who

filed O.A.No.58 of 2013, retired as Group Captain (Time Scale) from

the Air Force service during the pendency of the instant petition on

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 6 :

31st May, 2013. He had prayed for a stay against his retirement, but it

was denied. However, the Hon'ble High Court of Kerala, in O.P.(AFT)

No.1867 of 2013, preserved the rights whatsoever of the applicant. If

the age of retirement of this applicant had been 57 years instead of

54 years, he would have continued in service upto 31st May, 2016.

3. The next applicant, Group Captain JK.Chandna, No.17043,

filed O.A.No.92 of 2013. He too had prayed for stay against

retirement, but could not obtain the same and accordingly retired

from service on 31st July, 2013 as a Group Captain (Time Scale) on

attaining the age of 54 years. This Bench while dismissing the stay

application, however, protected his rights also. If the age of

retirement of this applicant had been 57 years instead of 54 years, he

would have continued in service upto 31st July, 2016.

4. The third applicant, Group Captain SK Mittal, No.17051 has

filed OA No.105 of 2013. He also had sought for the interim relief of

stay against his retirement. Though the OA was admitted, but no stay

against retirement was granted. Accordingly, he retired from the Air

Force service on 31st August, 2013. The applicant claims that he is

entitled to continue in service till 31st August, 2016.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 7 :

5. The next applicant, Group Captain S.Banerjee, No.17066 K,

has filed OA No.106 of 2013. Though the applicant had sought for

extension of service up to the age of 57 years by the petition dated

16.5.2013 (Annexure A4), but no communication regarding the

extension was received, so he retired from service on 30 th June,

2013 prior to the institution of the OA. According to the applicant, he is

entitled not only to be reinstated but is also entitled to continue in

service up to 30th June, 2016.

6. The applicant, Group Captain S.L.Shiva Prasad, No.18667

G, has filed O.A.No.120 of 2013. He had retired from service on 28th

February, 2013 before the institution of the OA. According to him, he

is not only entitled to be reinstated but is also entitled to continue in

service up to 28th February, 2016.

7. The applicant, Group Captain M.Nithyanandan, No.17767

M, has filed OA No.125 of 2013. He is due to retire on 31.12.2013 on

attaining the age of 54 years. According to him, he is entitled to

continue in service till he attains the age of 57 years, therefore, he is

entitled to continue in service up to 31st December, 2016.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 8 :

8. We have heard Mr.Biju Abraham for the applicants and

Mr.P.J. Philip, Mr.Tojhan J. Vathikulam, Mr.Krishnamoorthy and

Smt.E.V. Moly for the respondents.

8A. It is admitted to the parties that prior to the implementation

of the report of the Committee headed by Mr.Ajai Vikram Singh, the

then Secretary, Ministry of Defence, Government of India, (hereinafter

referred to as the AVSC Committee), there had been two categories

of Wing Commanders in the Air Force, and equivalent ranks in the

Army and Navy, and they were Wing Commander (Select) and Wing

Commander (Time Scale). Other ranks inferior to the Wing

Commander had the time bound promotion scheme on completion of

specified tenure. For promotion to the rank of Wing Commander

(select) and equivalent ranks in the Army and Navy, there was a

provision of selection on merit. But due to lack of adequate

vacancies, most of the Commissioned Officers used to continue

below the rank of Wing Commander. So, keeping in view that

difficulty, the Government had propounded the policy of Wing

Commander (Select) and Wing Commander (Time Scale).

Accordingly, those who could not be selected as Wing Commander

(Select) were being made Wing Commander (Time Scale) on

completion of the prescribed years of service. It is also not in

dispute that Wing Commanders happened to be the feeding cadre for

promotion to the rank of Group Captain (Select). Since the number

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 9 :

of vacancies in the rank of Group Captain (Select) used to occur

much less than the number of eligible Wing Commanders awaiting

promotion and the selection for such promotion was confined only to

the extent of vacancies available, the selection process for promotion

was slightly tough and only those who succeeded to get a berth in the

select list, used to get promotion to the rank of Group Captain

(select). Resultantly, those who did not get a place in the select list

due to lack of adequate vacancies and even after availing all the

three chances available for promotion, had no option except to

continue in the rank of Wing Commander. In this way, there resulted

stagnation at the stage of Wing Commander. Similar problems were

being prevalent even in the Army and Navy. So the Government of

India, Ministry of Defence constituted the AVSC Committee to

examine the issues and make recommendations. The AVSC

Committee submitted its report to the Ministry of Defence in January

2003 focusing mainly on the restructuring of the Officer Cadre of the

Army, but it was made applicable in almost equal measures to the

Navy and Air Force. The report made it clear that the vacancies

necessary to meet specific service requirements were to be pursued

by the individual Service Headquarters separately. We do not

consider it proper to refer to all the details of the

recommendations made by the AVSC Committee, as we are

concerned with the controversy involved in the present matters

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 10 :

regarding the claim for parity between “Group Captain (Select)” and

“Group Captain (Time Scale)” pertaining to their age of retirement.

It appears that in order to provide more promotional avenues to the

Officers of the Services, the AVSC Committee, inter alia,

recommended that promotions upto Wing Commanders be made

time bound and those Wing Commanders who could not be promoted

to the rank of Group Captain after all the three selection opportunities

will be promoted as Group Captain (Time Scale) in substantive

capacity on completion of 26 year of service as per the guidelines to

be formulated separately.

9. The AVSC committee, therefore, modified the previous

scheme and recommended for introduction of the policy of time

bound promotion upto the rank of Wing Commander and

equivalent ranks in the Army and Navy, which was accepted and

implemented by the Government. According to the new scheme so

introduced in the Air Force, a Commissioned Officer having 13 years

service, occupies the rank of Wing Commander. Therefore, on

implementation of such scheme, the concept of time scale and select

scale at the level of Wing Commander, which had been in force prior

to the implementation of the AVSC Committee report, were shifted to

the rank of Group Captain. Resultantly, the Group Captain rank has

two sub categories, one Group Captain (Select) and the other,

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 11 :

Group Captain (Time Scale). The rank of the Group Captain (select)

is being filled up by promotion from amongst the Wing Commanders

on the basis of selection exclusively on merit, whereas the rank of

the Group Captain (Time Scale) is being filled up in accordance with

the policy laid down by the Government of India, Ministry of Defence

vide the letter No.2(2)/US (L)/D(Air.III)/04 dated March 12, 2005.

Para 1 to 11 of the said letter being relevant, are reproduced as

follows:

1. The President is pleased to sanction revision of various

terms and conditions of service for the Air Force officers

as given in the succeeding paragraphs excluding officers

of Medical and Dental Branch.

2. Substantive Promotion. To reduce the age profile and

supersession levels in the Air Force as also to improve

vertical mobility, promotion to the substantive ranks of

officers will be made on completion of reckonable

commissioned service as indicated below:

Rank Reckonable

Commissioned Service

(a) Flying Officer (Fg.Offr) On Commissioning

(b) Flight Lieutenant (Flt Lt) 2 years

(c) Squadron Leader (Sqn Ldr) 6 years

(d) Wing Commander (Wg.Cdr) 13 years

( e) Group Captain (Gp Capt)

(Time Scale) 26 years.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 12 :

3. Promotion accruing from Para 2 above shall also be

subject to the officers fulfilling other criteria to be notified

immediately by the Air Headquarters through Air HQ

Human Resource Policy. Loss of seniority for non

qualification in promotion examinations already awarded

will continue to hold good.

4. Those serving in the rank of Wg Cdr (Time Scale) will

now be eligible for grant of the substantive rank of

Wg.Cdr. On grant of Substantive rank of Wg Cdr, these

officers would become eligible for consideration for Gp

Capt (Select)/Gp Capt (Time Scale) provided that,

(a) Those who have attained the rank of Wg Cdr

(Time Scale on completion of 20 years of service before

the date of implementation of the order and who have

been found suitable for grant of Wg.Cdr. (Time Bound)

based on the new Human Resource Policy notified by Air

HQ will be eligible for consideration to the rank of Gp Capt

(Select). These officers would reckon their seniority

immediately below the junior most select Wg Cdr who has

already been promoted ahead of him prior to

implementation of this order.

(b) Those who have attained the rank of Wg.Cdr

(Time Scale) on completion of 20 years of service before

the date of implementation of the order and who have

been found unsuitable for grant of Wg Cdr (Time Bound)

based on the new Human Resource Policy will be

ineligible for consideration to the rank of Gp Capt

(Selection) but will be eligible for grant of Rank of Gp Capt

(Time Scale).

Gp.Capt (Time Scale)

5. Officers not promoted to the rank of Gp Capt by

selection may be granted the substantive rank of Gp Capt

(Time Scale) irrespective of vacancies, provided they are

considered fit in all other respects. The terms and

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 13 :

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.15,100-450-17350.

(b) Rank Pay: Officers will be entitled to rank pay of a Wg

Cdr which currently is Rs.1,600/- pm.

(c) Other Allowances & Perks. Officers holding the rank

of Gp Capt (Time Scale) will be eligible for all allowances

and other perks as applicable to Gp Capt (Select) Grade.

(d) Age of Superannuation. The age of superannuation

for Gp Capt (Time Scale) would be same as it is for the

rank of Wg Cdr in respective branches. Therefore, there

is no change in the retirement age of a Wg Cdr on being

promoted to the rank of Gp Capt (Time Scale).

(e) Medical Criteria. The present provisions contained in

the policies and amendments thereto applicable so far for

the rank of Wg Cdr (Time Scale) will now be applicable to

the new grade of Gp Capt (Time Scale).

6. Officers holding the rank of Gp Capt (Time Scale) will

be held against the authorisation of Wg Cdr. Such

Officers shall, in precedence, rank junior to the following

officers:-

(a) Substantive Gp Capt (Select).

(b) Acting Gp Capt (Select)

7. Detailed criteria and procedure for grant of substantive

rank of Gp Capt by Time Scale will immediately be notified

by the Air Headquarters through HRP.

8. Revision in pay and pension due to promotion, where

applicable, to officers who have retired during the

intervening period between 16 Dec 04 and date of issue

of this letter will be reviewed with retrospective effect from

16 Dec 04.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 14 :

9. As a consequence of the implementation of the above

orders the appointment in which Sqn Ldrs and Wg Cdrs

can be posted are given at Appendices 'A' and 'B' to this

letter, mutatis mutandis Unit Establishments of units,

formations and establishments will stand modified to the

above extent till their revision in due course. Various

orders and instructions affected by the above decisions

would be amended in due course.

10. These orders will take effect from 16 Dec 2004.

11. This issues with the concurrence of Integrated

Finance vide their Dy No.636/Dir(Fin/AG/GS) dated March

11, 2005.”.

10. According to para 2 of the aforesaid letter dated March

12, 2005, a person occupies the rank of “Flying Officer” only on being

Commissioned to the Air Force, and on completion of two years

service he becomes “Flight Lieutenant” and on completion of six

years service he attains the rank of “Squadron Leader”. As and

when he completes 13 years service, he becomes Wing Commander.

Similarly, he becomes Group Captain (Time Scale) on completion of

26 years' service. These promotions, according to para 3 of the letter,

are not automatic, but subject to the officers fulfilling other criteria

notified by the Air Headquarters. While laying down so, loss of

seniority for non qualification in promotion examinations already

awarded was directed to continue to hold good. According to para 5

of the letter, which provides for promotion to the rank of Group

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 15 :

Captain (Time Scale), officers not promoted to the rank of Group

Captain by selection were made eligible for promotion to the

substantive rank of Group Captain (Time Scale) irrespective of

vacancies provided they are found fit in all other respects. The pay

scale provided to Group Captain (Time Scale) is the same as

applicable to Group Captain (Select) and there is no different pay

scale for Group Captain (Time Scale) and Group Captain (Select).

Similar is the position with regard to other allowances and perks, but

the Rank Pay, as per para 5(b) of the letter, that was made

admissible to Group Captain (Time Scale) is the Rank Pay admissible

to Wing Commander. But, this disparity of Rank Pay came to an end

on implementation of the decision of the Central Government on the

basis of the recommendations of the 6th Central Pay Commission with

effect from 1.1.2006. According to the recommendations of the 6th

Central Pay Commission, the policy of granting Rank Pay no more

survives. Colonel of the Indian Army, Captain of the Indian Navy

and Group Captain of the Indian Air Force being equivalent ranks,

have been placed in Pay Band 4 (Rs.37400 - 67000) with Grade

Pay of Rs.8700/- p.m and Military Service Pay of Rs.6,000/- p.m. As

such there is no difference of the Pay Band, Grade Pay and Military

Service Pay between the Group Captains (Time Scale) and Group

Captains (Select) with effect from 01.01.2006. This factual aspect of

the matter regarding the implementation of recommendation of 6th

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 16 :

Central Pay Commission was not disputed before us. Para 5(d) of

the letter, which is very relevant in the present matters, speaks of age

of superannuation and according to that, the age of superannuation

for Group Captain (Time Scale) would be the same as it is for the rank

of Wing Commander in the respective branches, and as such, no

change in the retirement age of Wing Commander on being promoted

to the rank of Group Captain (Time Scale) was made by the

Government Letter dated March 12, 2005. Resultantly, the Group

Captain (Time Scale) is made to retire on attaining the age of 54

years, whereas Group Captain (Select) retire on attaining the age of

57 years. Para 5(e) of the aforesaid Government Letter maintain the

same medical criteria for the new grade of Group Captain (Time

Scale) as were made applicable for the rank of Wing Commander

(Time Scale). Para 6 of the letter provides that the officers holding

the rank of Group Captain (Time Scale) will be held against the

authorisation of Wing Commander and such officers shall, in

precedence, rank junior to the Substantive Group Captain (Select)

and Acting Group Captain (Select). Para 7 of the letter provides as

to how the selection for promotion to the rank of Group Captain (Time

Scale) is to be made and according to that, the criteria and procedure

will be notified by the Air Headquarters through HRP. The aforesaid

letter was made effective from 16.12.2004, according to Para 10 of

the letter.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 17 :

11. The issue involved in the present matters was also in issue

before the Principal Bench in T.A.No.385 of 2009, in the matter of

Group Captain Atul Shukla v. Union of India, and other

connected cases, (decided on 2nd May, 2013). The Principal Bench

of the Armed Forces Tribunal rendered a detailed order on 2.5.2013

holding that the Group Captains(Time Scale) and Group Captains

(Select) belonging to the same class could not be treated differently

with regard to their age of retirement. The Principal Bench

accordingly quashed the notification dated 12th June, 2009 to the

extent it had laid down the age of retirement for the rank of Group

Captain (Time Scale) as 54 years, and directed that all the persons

holding the rank of Group Captain (Time Scale) will be entitled to

continue in service upto the age of 57 years. Consequently, the

Principal Bench placed the Group Captains (Time Scale) equal to the

Group Captains (Select) in the matter of age of retirement. The

observations of the Principal Bench made in para 19, 20, 22, 23 and

24 being relevant are reproduced as follows:

“19. We quite appreciate the laudable purpose of

the respondent of creating a time scale post of Gp. Capt. on

completion of 26 years of service. This was done on the

basis of the AV Singh Committee report which was

appointed to rationalise the service conditions. It is true that

earlier there was a time scale for Wg Cdr. also and they

used to retire at the age of 54. The learned counsel for the

respondent tried to justify this distinction on the basis that

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 18 :

Gp Captain (TS) belong to original cadre of Wg Cdr and

therefore, they have to retire at the age of 54 meant for Wg

Cdr and they are also posted in the station which is manned

by Wing Cdr. This is no justification. The very fact that Gp.

Capt (TS) wears the same rank, gets the same salary, gets

the same grade pay and posting or adjusting these Gp Capt

(TS) against Wg Cdr post is all administrative matter of the

respondent. But what is the rationale on the basis of which

these different age of retirement has been prescribed? The

only difference between the two is that a person who is

meritorious becomes eligible for consideration for the post of

the Gp Capt with the lesser period of service than the

person who is selected against a time scale, i.e., after

completion of 26 years. Gp Capt for the time scale is

eligible for promotion in case he completes 26 years of

service for consideration of Gp Captain (TS). A person who

is meritorious will become earlier on completion of minimum

service for consideration for promotion to the post of Gp

Captain whereby a person in time scale he need to have

minimum 26 years of service. Once incumbent puts 26

years of service he is given benefit of time scale being found

suitable on criteria laid down for that. A person who is

meritorious become selected earlier and gets a march over

a person who is selected in time scale. Therefore, his future

prospects grow further, whereas a person in time scale has

to wait for 26 years in service when he is not found suitable

on the basis of selection. Therefore, a person who gets the

rank in the time scale no doubt is not meritorious, because

he could not make a merit but he is serving in Indian Air

Force for more than 26 years of service and as laudable

purpose of respondent in their reply is, that in order to avoid

the stagnation and to give proper incentive to the young

officers their avenue for promotion has been opened up.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 19 :

20. On the one hand they have granted them the

benefit for serving Indian Air Force for more than 26 years

and on the other hand they want to deprive them by retiring

them at the age of 54 years. Their (sic. “There”) appears to

be no rational basis in this, when both the persons wear

the same rank, draw the same salary and they get the same

grade pay and then to say that one Gp Capt (TS) will retire

at the age of 54 years and the other Gp Capt (Select) at the

age of 57 years. This distinction which is sought to be

made has no rational basis whatsoever. It is true that

Government can have mini and micro classification but

there has to be some rational basis for certain object which

is sought to be achieved. In this case all rationale which

has been given is this only, that since the Gp. Captain (TS)

are posted against the post of Wg.Cdr and age of retirement

of Wg. Cdr is 54 years, therefore, they should be retired at

54 years is no rationale. Once a person who has been

promoted from Wg Cdr to Gp.Captain, he wears his uniform

as Gp.Captain and he draws same salary of Gp.Capt, he

performs same duties of Gp.Capt as other Gp.Capt

performs except the flying branch, then to make a

distinction that he should retire at the (sic. age) of 54 years

because the post against which he has been appointed is

that of a Wg Cdr, therefore, he will still be treated as Wg Cdr

for the purpose of superannuation is no rationale.

21. We have been informed that earlier as Lt.Col

(TS) is concerned, they used to retire at age of 53 and

Lt.Col (Select) used to retire at 54. That distinction has

been now done away subsequent on recommendation of

the AV Singh Committee.

22. In this connection our attention was invited to

decision of the Supreme Court in the case of E.P.Royappa

vs. State of Tamil Nadu & Anr. (supra). In that Their

Lordships in para 85 observed that, which reads:

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 20 :

“Article 16 embodies the fundamental guarantee that there

shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under

the State. Though enacted as a distinct and independent

fundamental right because of its great importance as a

principle of ensuring equality of opportunity in public

employment which is so vital to the building up of the new

classless egalitarian society envisaged in the Constitution,

Article 16 is only an instance of the application of the

concept of equality enshrined in Article 14. In other words,

Article 14 is the genus while Article 16 is a species. Article

16 gives effect to the doctrine of equality in all matters

relating to public employment. The basic principle which,

therefore, informs both Article 14 & 16 is equality and

inhibition against discrimination.

23. Similarly in the decision given by the Hon'ble

Supreme Court of India in the case of Ajay Hasia & Ors.

vs. Khalid Mujib Sehravardi & Ors. (1981) 1 SCC 722, it

was pointed out that the classification should be founded on

an intelligible differentia and that differentia has a rational

relation to the object sought to be achieved by the impugned

legislative or executive action. It was also observed that

Article 14 has highly activist magnitude and it embodies a

guarantee against arbitrariness.

4. Similarly our attention was invited in the case of

Union of India & Ors. vs. Nitdip Textile Processors

Pvt. Ltd. & Anr (supra). In para 49 it was observed that,

“The tests adopted to determine whether a classification is

reasonable or not are, that the classification must be

founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left

out of the groups and that the differentia must have a

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 21 :

rational relation to the object sought to be achieved by

Statute in question”.”

12. After having heard the learned counsel for the parties at

length and also having perused the relevant materials on record, we

have no reason to take a different view than the view adopted by the

Principal Bench in the aforesaid matter. We would however like to

add few additional grounds to supplement the decision.

13. Before entering into the merits of the case we have to

understand the true import of the doctrine of equality clause

enshrined by Articles 14 and 16 of the Constitution of India. It is well

settled that Articles 14 and 16 of the Constitution of India are

designed to prevent a person or class of persons from being singled

out from other similarly situated persons. To put it otherwise class

legislation is not permissible by the Constitution of India, but,

however, a reasonable classification is permissible on the basis of

two well settled principles, firstly that the classification must be

founded on an intelligible differentia which distinguishes those that

are grouped together from others and the differentia must have a

rational relation to the object sought to be achieved. This principle

was propounded by the Constitution Bench of the Apex Court in the

matter of State of West Bengal v. Anwar Ali Sarkar (AIR 1952 (2)

SC 75), E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3)

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 22 :

and Ajay Hasia & others v. Khalid Mujib Sehravardi & others

(1981) 1 SCC 722). The principle so propounded is being

consistently followed by the Apex Court without any further

modification. The classification to be so made may be on different

basis depending upon various facts and circumstances, but mere

classification is not enough to get over the inhibition of Articles 14 and

16 of the Constitution of India. To put it otherwise, the classification

must not be arbitrary, but must be rational, that is to say, it must not

only be based on some qualities or characteristics which are to be

found in all the persons grouped together and not in others who are

left out, but those qualities or characteristics must have a reasonable

relation to the object sought to be achieved. We are, therefore,

required to see whether or not the classification being made by the

respondents between the Group Captain (Select) and Group Captain

(Time Scale) with regard to their age of retirement is a reasonable

classification?

14. The Armed Forces, namely, the Army, the Navy and the Air

Force, have no uniform age of retirement of the Commissioned

Officers and PBORs. The age of retirement varies from rank to

rank. The rank of Sepoy and equivalent rank in the Navy and Air

Force retires earliest, whereas the Generals namely, the Chief of the

Army Staff, Chief of the Air Staff and Chief of the Naval Staff have the

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 23 :

maximum tenure, who retire on attaining the age of 62 years or on

completion of tenure of three years, whichever is earlier. The other

ranks of the officers have lesser tenure. But one thing is almost

common and that is the same age of retirement in one rank. It is

also significant to state that prior to the implementation of the AVSC

Committee report, the rank of the Wing Commander in the Air Force,

as we have already indicated, had two categories (1) Wing

Commander (Time Scale), and (2) Wing Commander (Select), but

there was no different age of retirement rather the same for these

two groups. The system of having two types of officers, one “Time

Scale” and the Other “Select”, was shifted from the rank of Wing

Commander to the rank of Group Captain on implementation of the

report of the AVSC committee, but the respondents, while doing so,

laid down the policy of providing different age of retirement, 54 years

for the “Group Captain (Time Scale)” and 57 years for the “Group

Captain (Select)”, though they are part and parcel of the same rank

“Group Captain” having the same status and pay etc. The

respondents, while laying down different ages of retirement for the

Group Captain (Time Scale) and Group Captain (Select) had forgotten that

they had provided the same age of retirement at the stage of Wing

Commander with respect to Wing Commander (Time Scale) and Wing

Commander (Select) under the old scheme. The learned counsel for

the respondents very frankly conceded that the equivalent rank in the

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 24 :

Army and the Navy, namely, the Colonel (Time Scale) and the

Colonel (Select) in the Army and the Captain (Time Scale) and the

Captain (Select) in the Navy have the same age of retirement and

there is no differentiation between these two groups so far as the age

of retirement is concerned. There does not appear to be any

justification to adopt a different yardstick in laying down the age of

retirement at the level of Group Captain in the Air Force, specially

when the AVSC Committee's report was implemented with the same

intent and spirit in all the three services.

15. Mr. P.J. Philip appearing for the respondents tried to

contend that Group Captains (Select) and Group Captain (Time

Scale) are two different and distinct classes, so the doctrine of

equality enshrined by Articles 14 and 16 of the Constitution of India

had no application. According to him, it was open to the Government

to prescribe two different age of retirement, one for the Group

Captain (Select) and the other for the Group Captain (Time Scale).

To substantiate this submission, Mr. Philip urged that the promotion to

the rank of Group Captain (Select) is made exclusively on merit after

due selection in accordance with law from amongst the Wing

Commanders. Only three chances are available to Wing

Commanders for such promotion. If a Wing Commander, even after

availing of all the three chances, does not get a place in the select

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 25 :

list, he has to continue in the rank of Wing Commander until he

completes the service of 26 years. According to Mr. Philip, the Wing

Commanders, who are not promoted on merit to the rank of Group

Captain (Select) even after all the three selections, are promoted as

Group Captain (Time Scale) on their completing the total service of

26 years as Commissioned Officers. So according to the policy in

vogue, the promotion to the rank of Group Captains (Time Scale) is a

concessional promotion and as such the same could not be equated

with promotion made on the basis of merit only. Mr. Philip further

contended that according to para 6 of the Scheme formulated by the

respondent No.1 vide letter No. 2(2)/US(L)/D.(Air.III)/04 dated March

12, 2005 (Annexure R2), the officers of the rank of Group Captain

(Time Scale) hold the rank against the authorization of Wing

Commanders and are placed junior to the substantive Group

Captains (Select) and Acting Group Captain (Select). On this basis

he next contended that the respondent No.1 has not created any

additional post of Group Captain to accommodate the Wing

Commanders promoted to the rank of Group Captain (Time Scale).

So according to Mr. Philip such type of promotion is nothing except

grant of personal scale to Wing Commanders having 26 years of

service.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 26 :

16. In our view, the aforesaid submissions made by Mr. P.J.

Philip lack merit. The distinction being drawn by him appears to be

artificial and has no rational basis. The scheme for promotion to the

rank of Group Captain (Time Scale) as formulated by the respondent

No.1 vide letter dated March, 2005 (Annexure R2) virtually speaks

for granting substantive right of Group Captain (Time Scale) to Wing

Commander on completion of 26 years of service. Para 2 of the

letter (Annexure R2) clearly provides that the promotions, inter alia,

made to the rank of Group Captain (Time Scale) is the promotion to

confer the substantive rank to Group Captain. So the contention

that the promotion is merely grant of personal scale to Wing

Commanders is devoid of merit. It is also significant to state that the

promotion to the rank of Group Captain (Time Scale), as per the

scheme, is not automatic on completion of 26 years of service. In

this regard the provisions of para 3 of the letter dated March 12, 2005

(Annexure R2) is very clear, according to which, the promotion is to

be made subject to the officers fulfilling other criteria to be notified by

the Headquarters.

17. What is apparent from the various schemes formulated

by the respondent No.1 and the Air Headquarters is that the

promotion to the rank of Group Captain is made in two different ways

after the implementation of the recommendation of the AVSC

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 27 :

Committee. The first mode of promotion is based on merit alone

without due regard to the seniority. The promotion on merit is made

quite early, so the person so promoted occupies on promotion not

only the higher rank of Group Captain (Select) at a very early age, but

also gains seniority, which ultimately helps him in getting quick

promotions to other higher ranks. But the promotions so made on

merit does not affect the rights of others who are promoted subsequently

on completion of 26 years of service, because in such promotion weightage

is given not only to the experience and length of the tenure, but also to

the merit, besides other criteria notified by the Headquarters as per para 3

of the Government Letter dated March, 12, 2005 (Annexure R2). But as

and when a promotion is made to the rank of Group Captain (Time Scale),

the promotee occupies the same rank and status of Group Captain

equal to the rank of the Group Captain (Select) already promoted

on merit. They also wear the same uniform. Consequently all the

promoted officers fuse together as the part and parcel of the same

rank of the Group Captain, therefore, the policy attempting to

distinguish them in the matter of the age of retirement cannot be

accepted, especially when both type of the promotions are substantive in

nature. It is true that only those who were not selected for promotion on

comparative merit, after availing of all the three selections are

subsequently promoted to the rank of Group Captain (Time Scale), on

completion of 26 years of service, but it does not mean that they are

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 28 :

rotten persons. Virtually they could not get promotion on merit at the early

stage due to lack of adequate vacancies in the higher rank of Group

Captain. In our view, the policy of promotion in substantive capacity on

completion of 26 years of service is nothing except by way of

providing one more mode of promotion other than the already

existing mode of promotion on merit. So far as the contention that

the Group Captain (Select) are placed higher in the seniority list than

the placement of the Group Captain (Time Scale) is concerned, it has

no nexus to the age of retirement. It is not acceptable in law to determine

the age of retirement according to seniority in any one cadre or rank. So

any attempt to prescribe higher age of retirement for the seniors in

comparison to the juniors in the same rank or cadre is apparently

violative of Articles 14 and 16 of the Constitution of India. In this view

of the matter, the contention that both the categories of promotees

are different and distinct classes, cannot be accepted in law, especially

when the rank, Group Captain (Time Scale) and Group Captain (Select),

virtually belong to the same rank of Group Captain for all purposes

carrying the same pay band, grade pay and Military service pay and are

filled up from the same rank of Wing Commanders only.

18. Mr. Philip lastly submitted that the Group Captain (Select) are

qualified to perform flying duties but the Group Captain (Time Scale) are

not qualified to discharge flying duties, therefore, the distinction being

made between these two groups by the respondents were quite

rational. It is true that Group Captain (Select) perform flying duties and

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 29 :

have been made eligible for such duties, but officers from non flying

branches, as conceded by the learned counsel for the parties, are also

placed in Group Captain (Select) rank. Apart from this, deputing a person

to flying duties is merely an administrative decision, so any officer who is

qualified and medically fit can be deputed to do so. We fail to understand

as to how the flying duties would play an important role in determining the

age of retirement of the rank of Group Captain (Time Scale) and Group

Captain (Select). The Group Captain (Select) discharging flying duties

have been made eligible for the flying pay/ allowance, whereas the Group

Captain (Time Scale) not discharging flying duties has no such benefit. The

classification between them, therefore, pertains to the flying pay/allowance

only and has no nexus to the age of retirement and as such the same

could not be taken as a valid ground to prescribe two different age of

retirement for the same rank of Group Captain.

19. The learned counsel for the respondents relied upon the

decision of the Apex Court in Lt.Gen.R.K.Anand v. Union of India and

Anr. (AIR 1992 SC 763) and contended that in that case the Apex Court

maintained the policy of prescribing two different age of retirement at the

level of Lt. Generals in the Indian Army. So on the basis of the policy

adopted by the Apex Court in that case, the policy of the

respondents in providing two different age of retirement for Group

Captain (Select) and Group Captain (Time Scale) was liable to be

affirmed. We have given our anxious consideration to this

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 30 :

submission and perused the decision of the Apex Court. It may be

significant to state that the decision of the Apex Court rendered in

Lt. Gen.R.K.Anand's case (supra) was given due consideration even

by the Principal Bench while rendering the order in T.A.No. 385 of

2009 (Group Captain Atul Shukla v. Union of India and others)

(supra). The Principal Bench after examining the decision thoroughly

found that the issue raised in the matter of Lt. Gen. R.K. Anand's

case (supra) did not survive any more, as the Government,

subsequent to the decision of the Apex Court, removed the anomaly

by prescribing the same age of superannuation for the Lt. Generals

posted in “Command and Staff Stream” and “Staff Stream”. The

Principal Bench further held in para 20 that the society was advancing

and such kind of artificial distinction was going slowly and slowly

disused. In our view, in the matter of Lt. Gen. R.K. Anand's case

(supra) the application of the equality clause as enshrined by

Articles 14 and 16 of the Constitution of India was neither raised nor

decided. Virtually in that case two letters prescribing the age of

retirement for the Lt.Generals, besides Army Rule 16A were under

consideration. The first letter was dated 9th May 1985, which had

prescribed the age of 58 years as the age of superannuation for

Lt.Generals. The said letter further provided that the Army Rule 16A

should be revised in due course. But it was never done. Later on

the Government issued the second letter dated 9th September 1986

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 31 :

whereby the rank of Lt.Generals was divided in two categories,

namely, Lt.Generals in “Command and Staff Stream” and

Lt.Generals in the “Staff Stream” only. The age of retirement for the

Lt. Generals of the stream 'Command and staff' was prescribed as 58

years and the age of retirement of the Lt. Generals belonging to the

stream “Staff only” was prescribed as 57 years. The petitioner therein

contended that he was entitled to the benefit of the first letter dated 9th

May 1985. He next contended that the second letter dated 9th

September 1986 was not applicable to him and made various

submissions in support of this plea. The Apex Court found that the

subsequent letter dated 9th September 1986 was applicable to the

petitioner therein. So the petitioner was not given the benefit of the

first letter dated 9th May 1985. The decision of the Apex Court in

Lt.Gen.R.K.Anand's case (supra) being based on the facts and

circumstances of that case has not propounded any principles of

law with regard to the applicability of the equality clause as enshrined

in Articles 14 and 16 of the Constitution of India. In this view of the

matter, the decision of the Apex Court in Lt.Gen.R.K.Anand's case

(supra) is of no help to the respondents.

20. The learned counsel for the respondents referred to one

more decision of the Apex Court in the matter of Commander

Ravindera Sadashio Kshirsagar v. Union of India and others

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 32 :

((2009) 4 SCC 641) and contended that in that matter the Apex

Court found that the Captain (Time Scale) and the Captain (Select) in

the Navy were two different and distinct classes, so the present

matter also needs to be dealt with accordingly. In our view, the

decision of the Apex Court in the matter of Commander Ravindera

Sadashio Kshirsagar (supra) was altogether in a different context.

In that case, it was decided that the Commander ( Time Scale)

would be eligible for promotion to the rank of Captain (Time Scale)

only after all erstwhile Commander (Select) and Acting Commander

(Select) have been promoted to the rank of Captain (Select) and

Captain (Time Scale) or have retired. This policy was challenged by

the Commanders (Time Scale) on the ground that deferment of their

promotion in the aforesaid manner was not proper. It was contended

on behalf of the Government before the Apex Court that the

Commanders (Select) and Acting Commanders (Select) were

admittedly seniors, so it was decided to promote seniors before

Junior Commanders (Time Scale) were to be promoted. The Apex

Court upheld the policy and held in paragraphs 29 and 31 that the

whole idea was to protect the interests of the seniors among the

officers as per the Navy list. The Apex Court further found that if the

policy as suggested by the appellants therein was to be implemented,

the rank structure in the Navy which determines the command and

control structure would get radically altered. The Apex Court further

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 33 :

held that the Navy list provides that the Commander (Select) and

Acting Commander (Select) would ranked senior to Captain (Time

Scale) even if Commander (Time Scale) had put in more years of

service as Commander (Time Scale). The Apex Court next held that

if the guidelines and the policy dated 11th March, 2005 were

understood as suggested by the appellants therein, the entire

protection given to the Commanders (Select List) in order to maintain

inter se seniority in the Naval list would get disturbed. It is thus clear

that the Apex Court gave due significance to the seniority and upheld

the policy and promotion in accordance with seniority. As the

Commander (Select) and Acting Commander (Select) were seniors

to all the Commanders (Time Scale), the Apex Court upheld the policy

of granting promotion to the seniors prior in time and deferment of

promotion of juniors till the promotion of the seniors is either

exhausted or they are retired. In our view, the said decision has no

application to the facts of the instant case and is of no help to the

respondents.

21. It is also significant to observe that the Principal Bench

while rendering the order in T.A.No. 385 of 2009 and other connected

matters had, inter alia, relied upon the decisions of the Apex Court

in M.G. Pandke and Ors. v. Municipal Council, Hinganghat (AIR

1993 SC 142) and Miss Raj Soni v. Air Officer Incharge (1990

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 34 :

AIR SC 1305) and applied the same in support of its order. In the

matter of Miss Raj Soni (supra) two different age of retirement was

prescribed for the Recognised Private Schools and Aided Schools.

The Apex Court found the distinction to be arbitrary. In M.G.

Pandke & others (supra) the age of retirement of teachers working

in Municipal School of Vidharba division of Maharashtra was in

issue. The Apex Court found that there was no justification to

prescribe different age of retirement of teachers working under

different Municipal Council, especially when they were identically

placed. Apart from these two decisions, we would like to refer to

one more decision of the Apex Court in the matter of State of Uttar

Pradesh v. Dayanand Chakrawarty & others ((2013) 7 SCC 595).

In that case, two different age of retirement were prescribed, one for

the employees of erstwhile Local Self Government Engineering

Department (LSGED) transferred to U.P. Jal Nigam and the other for

the persons, who were directly recruited by the U.P. Jal Nigam. The

policy was not upheld, consequently the scheme was modified and

uniform age of retirement was prescribed.

22. Mr. Philip attempted to argue that the Tribunal has no

power to strike down a policy decision of the Government on the

ground of the same being violative of Article 14 and Article 16 of the

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 35 :

Constitution of India, so according to Mr. Philip, the Bench has no

option except to uphold the policy of the respondents prescribing two

different age of retirement for Group Captain (Select) and Group

Captain (Time Scale) and decide the matter accordingly. In our view,

the above submission of the learned counsel for the respondents

lacks merit. The power of the Tribunals to strike down any statutory

provision or to decide the question regarding the vires of any

statutory provision had been thoroughly examined by the Seven

Judge Bench of the Apex Court in L.Chandra Kumar v. Union of

India and Others, (1997) 3 SCC 261. The Apex Court in para 93

opined that the Tribunals are competent to hear matters where the

vires of a statutory provision are questioned. But the Apex Court put

an exception to this proposition by propounding the principle that the

Tribunal shall not entertain any question regarding the vires of their

parent statute on the principle that a Tribunal which is a creature of

an Act cannot declare that very Act to be unconstitutional. The Apex

Court further held that it will not be open to the litigant to directly

approach the High Court in cases where they question the vires of

statutory legislations, subject of course to the aforesaid exception.

The above principle propounded by the Apex Court in para 93, being

relevant is reproduced as follows:

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 36 :

“93. Before moving on to other aspects, we

may summarise our conclusion on the jurisdictional

powers of these Tribunals. The Tribunals are

competent to hear matters where the vires of statutory

provisions are questioned. However, in discharging

this duty, they cannot act as substitutes for the High

Courts and the Supreme Court which have, under our

constitutional set up, been specifically entrusted with

such an obligation. Their function in this respect is

only supplementary and all such decisions of the

Tribunals will be subject to scrutiny before a Division

Bench of the respective High Courts. The Tribunals

will consequently also have the power to test the vires

of subordinate legislations and rules. However, this

power of the Tribunal will be subject to one important

exception. The Tribunals shall not entertain any

question regarding the vires of their parent statutes

following the settled principle that a Tribunal which is a

creature of an Act cannot declare that very Act to be

unconstitutional. In such cases alone, the High Court

concerned may be approached directly. All other

decisions of these Tribunals, rendered in cases that

they are specifically empowered to adjudicate upon by

virtue of their parent statutes, will also be subject to

scrutiny before a Division Bench of their respective

High Courts. We may add that the Tribunals will,

however, continue to act as the only courts of first

instance in respect of the areas of law for which they

have been constituted. By this, we mean that it will

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 37 :

not be open for litigants to directly approach the High

Courts even in cases where they question the vires of

statutory legislations (except, as mentioned, where the

legislation which creates the particular Tribunal is

challenged) by overlooking the jurisdiction of the

Tribunal concerned.”

23. Mr. Philip submitted that the aforesaid principles

propounded by the Apex Court were not applicable to Armed Forces

Tribunal due to the reason that the Apex Court had examined the

ambit and scope of Article 323A of the Constitution of India and the

provisions of the Administrative Tribunals Act, 1985, while laying

down the aforesaid principles. He next contended that the Armed

Forces Tribunal Act was not established under the aforesaid Article

323A nor its provisions are synonymous to the provisions of the

Administrative Tribunals Act, 1985. The jurisdiction of the High Court

with regard to matters cognizable by the Central Administrative

Tribunal was completely excluded whereas the Armed Forces Tribunal

Act, 2007 has not excluded the jurisdiction of the High Court and due

to this material distinction, the principles propounded in the matter of

L.Chandrakumar (supra) were not attracted in the present matter.

In our view, this submission lacks merit. The Apex Court, while laying

down the aforesaid principles observed in para 99 that attempt to

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 38 :

exclude the jurisdiction of the High Court was unconstitutional and

bad in law because the power of the superior courts i.e. the Supreme

Court and the High Courts, to make judicial review is a part of the

basic structure of the Constitution, which could not be taken away by

ordinary legislation. So, the Apex Court held that the Administrative

Tribunals Act, 1985 could not take away the jurisdiction of the High

Court. Accordingly, the Apex Court held that the power of judicial

review exercisable by the High Court under Article 226 of the

Constitution of India was intact despite the enactment of Administrative

Tribunals Act, 1985. Resultantly, the provisions of the Administrative

Tribunal Act, 1985 after the decision of the Apex Court in L.Chandrakumar's

case (supra), are almost at par with the Armed Forces Tribunal Act,

2007, so far as the jurisdiction matter is concerned, particularly with

regard to the power of judicial review of the High Courts and the

Supreme Court. The observations of the Apex Court made in para

99 being relevant is reproduced as follows:

“... ... … The jurisdiction conferred upon the High

Courts under Article 226/227 and upon the Supreme Court

under Article 32 of the Constitution is a part of the inviolable

basic structure of our Constitution. While this jurisdiction

cannot be ousted, other courts and Tribunals may perform a

supplemental role in discharging the powers conferred by

Articles 226/227 and 32 of the Constitution.”

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 39 :

24. In our view, the principles laid down by the Apex Court in

L.Chandrakumar's case (supra), in para 93, being general

principles are applicable to Armed Forces Tribunal unless it is shown

that any contrary provision has been made in the Armed Forces Tribunal

Act, 2007. The said Act of 2007 has no specific provision taking away the

power of the Armed Forces Tribunal to strike down a legislation or

executive order/policy of the Government on the ground of the same

being violative of Articles 14 and 16 of the Constitution of India.

Therefore, the contention raised on behalf of the respondents that

the Armed Forces Tribunal has no power to strike down a policy

decision of the Government lacks absolute merit.

25. On the basis of the aforesaid discussions, we hold that the

officers holding the rank of Group Captain (Time Scale) and Group Captain

(Select) belong to the same rank of Group Captain in the substantive

capacity wearing the same uniform with no reasonable distinction. They

are not only in the same pay band but are also being paid the same grade

pay and the Military service pay. In this view of the matter, we do not find

any justification in prescribing two different age of retirement for the Group

Captain (Time Scale) and Group Captain (Select). In our view the

applicants are entitled to be given the benefit of the age of retirement

of 57 years already prescribed for the Group Captain (Select). The

Original Applications, therefore, deserve to be allowed.

OA Nos. 58, 92, 105, 106, 120 & 125 of 2013 : 40 :

26. All the Original Applications are allowed. The respondents

are directed to allow the applicants to serve as Group Captain (Time Scale)

till they attain the age of 57 years at par with the Group Captain (Select).

As most of the applicants were made to retire during the pendency of

these matters and some of them even prior thereto on their attaining

the age of 54 years, the respondents are further directed to reinstate

and also treat them in service with full pay, allowances and other

benefits, including continuity in service without attaching any

significance to such illegal retirements. Consequently the

respondents to sanction and pay, within four months, the entire

arrears of the pay, allowances and other benefits admissible to the

applicants for the period they had been out of service due to the

implementation of wrong age of retirement of 54 years, failing

which the unpaid amount will carry a simple interest at the rate of

8% per annum to be paid by the respondents.

27. There will be no order as to cost.

28.Issue free copy to both sides.

29. Let a copy of this order be placed on the records of each of

the connected cases.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)tm. /True Copy/

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