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ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHISITTING CIRCUIT BENCH AT PARA REGIMENTAL TRAINING CENTRE, BANGALORE

O.A.NO.37/2014, MA.307/2014 IN OA. 39 & OA.NOS. 39, 44 & 45 OF 2014WEDNESDAY, 4TH DAY OF JUNE, 2014/14TH DAY OF JYAISHTA, 1936

CORAM HON’BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON’BLE VICE ADMIRAL M.P.MURALILDHARAN, AVSM & BAR, NM,MEMBER(A)O.A.NO.37 OF 2014:

APPLICANT:

GROUP CAPTAIN E.R.RAJAPPAN (18602 R),S/O.LATE E.R.RAMAN, AGED 54 YEARS,HQ TRAINING COMMAND, IAF, BANGALORE,HAVING PERMANENT ADDRESS AT B-114,,CENTURY COMMANDERS VISTA,BEHIND GREEN VALLEY APARTMENTS,ANANTHAPURA, NORTH YELEHANKA,BANGALORE, PIN 560 064.

BY ADV.MR.RAMESH.C.R.

RESPONDENTS:

1. THE UNION OF INDIA, THROUGH THE SECRETARY,MINISTRY OF DEFENCE (AIR FORCE)SOUTH BLOCK, NEW DELHI – 110 001.

2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI – 110011. 3. AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI – 110011. 4. AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE – 560006. 5. THE CDA, INDIAN AIR FORCE, NEW DELHI – 110 011.

BY MR.P.J.PHILIP, CENTRAL GOVT. COUNSEL .

OA.NO.39 OF 2014:

APPLICANT:

GROUP CAPTAIN (TS) (16846 – H) SR DASHARATHI,

AGED 54 YEARS, S/O.SHRI D.S.R.MOORTHY,

HQ TRAINING COMMAND, IAF, BANGALORE,HAVING PERMANENT ADDRESS AT B-101,SANGEETHA APARTMENT, 5TH CROSS ROAD,MALLESHWARAM, BANGALORE – 560 003.

BY ADV.SRI.RAMESH.C.

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RESPONDENTS: 1. THE UNION OF INDIA, THROUGH THE SECRETARY,

MINISTRY OF DEFENCE (AIR FORCE))SOUTH BLOCK, NEW DELHI – 110 001.

2. CHIEF OF AIR STAFF, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI – 110011. 3. AIR OFFICER IN CHARGE, PERSONNEL, AIR HEADQUARTERS (VAYU BHAVAN), RAFI MARG, NEW DELHI – 110011. 4. AIR OFFICER COMMANDING IN CHIEF, HEADQUARTERS, TRAINING COMMAND, JC NAGAR POST, BANGALORE – 560006. 5. THE CDA, INDIAN AIR FORCE, NEW DELHI – 110 011.

BY MR.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL.

OA.NO.44 OF 2014: APPLICANT:

GROUP CAPTAIN M.A.KHAN (18445 N) AE (M),S/O.P.ABDULLA KHAN, AGED 53 YEARS,WORKING AS INTERVIEWING OFFICER,IT OFFICER, COMMUNICATION/AFNET,OFFICER AT 2 AFSB, CV COMPLEX, BANNUR ROAD, SIDDHARTHA LAY OUT,MYSORE 570011, HAVING PERMANENT ADDRESS AT NO.301, TWELVTH MAIN ROAD,SEVENTH SECTOR, HSR LAYOUT,BANGALORE 560102.

BY ADV.MR.BIJU ABRAHAMRESPONDENTS:

1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY,MINISTRY OF DEFENCE (AIR FORCE)SOUTH BLOCK, NEW DELHI – 110 001.

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, AKKULAM, THIRUVANANTHAPURAM - 31 5. PRESIDENT, 2 AIR FORCE SELECTION BOARD, AIR FORCE, CV COMPLEX, SIDDHARTHA LAYOUT, MYSORE 570 011 (KARNATAKA). BY MR.S.KRISHNAMOORTHY, SENIOR PANEL COUNSEL

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OA.NO.45 OF 2014:

APPLICANT:

GROUP CAPTAIN S.A.KHAN (18740 S), AE (M),S/O. I A KHAN, AGED 54 YEARS, WORKING ASSE (AC) & SE (M) AT AIR FORCE STATION,YELEHANKA, BANGALORE 560 063 HAVING PERMANENT ADDRESS AT 27 MARRIS ROAD,ALIGARH 202001 (UP)

BY ADV.MR.BIJU ABRAHAM.

RESPONDENTS:

1. THE UNION OF INDIA,REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE , SOUTH BLOCK, NEW DELHI – 110 001.

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 – 560006. 5. THE AOC, AIR FORCE STATION, YELEHANKA, BANGALORE 560 063.

BY MR.P.J.PHILIP, CENTRAL GOVT. COUNSEL. O R D E R

Justice Shrikant Tripathi, Member (J):

1. The reply statement filed on behalf of the

respondents in OA.No.39 of 2014 is taken on record after

condoning the delay. M.A.No.307 of 2014 is accordingly

disposed of. The learned counsel for the respondents submitted

that he would rely on the same reply statement in other

connected matters also.

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

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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.

3. The relevant facts are as follows:

4. The applicant, Group Captain (Time Scale), ER Rajappan

No.18602 R has filed OA.No.37 of 2014 with the allegations

that he was commissioned in the Indian Air Force on 6th

December 1986 and in due course rose to the rank of Group

Captain (TS) with effect from 06 December 2012 and retired

from the service on attaining the age of 54 years in the

afternoon of 28 February 2014 (vide Annexure A2).

5. The applicant, in OA.No.39 of 2014, Group Captain

(Time Scale), SR Dasharathi No. 16846 H has filed the O.A with

the allegations that he was commissioned in the Indian Air Force

on 04 June 1982 and in due course rose to the rank of Group

Captain (TS) with effect from 04 June 2008 and retired from the

service on attaining the age of 54 years in the afternoon of 31

March 2014 (vide Annexure A2).

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6. The applicant in OA.No.44 of 2014, Group Captain

(Time Scale), MA Khan No. 18445 N, has filed the O.A with the

allegations that he was commissioned in the Indian Air Force on

18 August 1986 and in due course rose to the rank of Group

Captain (TS) with effect from 18 August 2011 and retired from

the service on attaining the age of 54 years in the afternoon of

31 May 2014 (vide Annexure A2).

7. The applicant, in O.A.No.45 of 2014, Group Captain

(Time Scale), SA Khan, No. 18740 S, has filed the O.A with the

allegations that he was commissioned in the Indian Air Force on

16 February 1987 and in due course rose to the rank of Group

Captain (TS) with effect from 15 February 2012 and retired

from the service on attaining the age of 54 years in the

afternoon of 31 March 2014 (vide Annexure A2).

8. The aforesaid applicants have set up the case that

they were entitled to be retained in service till the age of 57

years at par with the Group Captain (Select), but the

respondents denied the said benefit to them in an arbitrary

manner, which gave occasion to file the present matters.

9. We have heard the learned counsel for the applicants

and the respondents and perused the record.

10. A similar controversy had arisen before this Bench in

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O.A.No.58 of 2013 and other connected matters, which we

have finally decided on merit. The present matters also need to

be disposed of accordingly. The relevant observations made in

O.A.No.58 of 2013 and other connected matters are being re-

produced as follows:

"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 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

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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 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.

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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, 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.

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

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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 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

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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.

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

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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 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 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

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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.

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

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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

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

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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.

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

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(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:

“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

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things that are grouped together from others left out of the

groups and that the differentia must have a 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) 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

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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 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

18

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 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 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

19

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.

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

20

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

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 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

21

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

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

22

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 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

23

course. But it was never done. Later on the Government

issued the second letter dated 9th September 1986 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 ((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

24

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

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.

25

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 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 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

26

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:

“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

27

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 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 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

28

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.”

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.

11. On the basis of the observations quoted above,

we hold that the officers holding the rank of Group Captain

29

(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.

12. All the Original Applications are allowed. The

respondents are directed to allow the applicants to serve as

Group Captain (TS) at par with the Group Captain (Select) till

they attain the age of 57 years. As none of the applicants has

crossed the age-limit of 57 years till date, the respondents are

further directed to reinstate and treat them in service with full

pay, allowances and other benefits including continuity in

service, without attaching any significance to their retirements

on attaining the age of 54 years. Consequently, the

respondents to sanction and pay, within four months, the

30

entire arrears of 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 retiremnt 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.

13. There will be no order as to cost.

14. Issue free copy to both sides.

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

each of the connected cases.

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

16. After dictation of the aforesaid order, the learned

counsel appearing for the respondents submitted that the

respondents be granted leave to appeal to the Supreme Court,

as an important point of law of general public importance is

involved in the decision.

17. In our view, the question whether the Group

Captains (Time Scale) are entitled to be retained in service upto

the age of 57 years at par with the Group Captain (Select)

involved in the decision seems to be the question of law of

31

general public importance. So, the matter needs to be settled

by the Apex Court.

18. In view of the aforesaid, the leave prayed for is

granted.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

(true copy)

an. Prl.Pvt.Secretary