Union of India Vs Atul Shukla Etc.

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4717-4719 of 2013

Union of India & Ors. …Appellants

Versus

Atul Shukla etc. …Respondents

With

Civil Appeal No.7219 of 2013 Civil Appeal No.7220 of 2013 Civil Appeal No.7221 of 2013 Civil Appeal No.7223 of 2013 Civil Appeal No.7228 of 2013 Civil Appeal No.6185 of 2013 Civil Appeal No.6193 of 2013 Civil Appeal No.6220 of 2013 Civil Appeal No.10955 of 2013 Civil Appeal No.10954 of 2013 Civil Appeal No.91 of 2014 Civil Appeal No.689 of 2014 Civil Appeal No.9592 of 2013 Civil Appeal No.9645 of 2013

1

Page 2

J U D G M E N T

T.S. THAKUR, J.

1. These appeals arise out of separate but similar orders

passed by the Armed Forces Tribunal, Principal Bench, New

Delhi, whereby the Tribunal has allowed the petitions filed by

the respondents holding them entitled to continue in service

upto the age of 57 years in the case of officers serving in the

ground duty branch and 54 years in the case of those

serving in the flying branch of the Indian Air Force. The

solitary question that falls for our consideration, therefore, is

whether the respondents who at the relevant point of time

held the rank of Group Captain (Time Scale) in the Indian Air

Force were entitled to continue in service upto 54 and 57

years depending upon whether they were serving in the

flying or ground duty branch of the force. The question

arises in the following backdrop:

2. Post Kargil War, the Government of India constituted a

Committee headed by Ajay Vikram Singh, former Defence

Secretary (hereinafter referred to as AVS Committee) to

study ways and means that would help ensure a “younger

2

Page 3

age profile” for the commanding officer in the Indian Armed

Forces. The Committee made its recommendations in regard

to all the three wings of the armed forces which were

considered and accepted by the Government culminating in

the issue of separate orders regarding re-structuring of the

officers cadre in the Army, Navy and the Air Force. In so far

as the Indian Air Force was concerned, the Government of

India by an order dated 12th March, 2005 revised the terms

and conditions applicable to Air Force Officers excluding

officers serving in the medical and dental branch. The order

was to the following effect:

“ANNEXURE P-2

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

Bharat Sarkar/Government of India

Raksha Mantralay/Ministry of Defence

New Delhi-110011

March 12, 2005

To

The Chief of Air Staff

Air Headquarters,

Vayu Bhawan,

New Delhi.

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

3

Page 4

Sir,

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

2. Substantive Promotion:

To reduce the age profile and supersession levels in the Air Force as also to improve vertical mobility, promotion to the substantive ranks of officers will be made on completion of reckonable commissioned service as indicated below:

Rank Reckonable 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 promotion examinations already awarded will continue to hold good.

4. Those serving in the rank of Wg Cdr (Time Scale) will now be eligible for grant of the substantive rank of Wg Cdr. On grant of substantive rank of Wg Cdr these officers would become eligible for consideration for Gp Capt (Select)/Gp Capt (Time Scale) provided that;

(a) Those who have attained the rank of Wg Cdr (Time Scale) on completion of 20 years of service before the dare of implementation of the order and who have been found suitable for grant of Wg Cdr (Time

4

Page 5

Bound) based, on the new Human resource policy notified by Air HQ will be eligible for consideration to the rank of GP Capt (Select). These officers would reckon their seniority immediately below the junior most select Wg Cdr who has already been promoted ahead of him prior to Implementation of this order.

(b) Those who have attained the rank of Wg Cdr (Time Scale) on completion of 20 years of service, before the date of implementation of the order and who have been found unsuitable for grant of Wg Cdr (Time Bound) based on the new Human resource policy will be ineligible for consideration to the rank of GP Capt (Selection) but will be eligible for grant of rank of Gp Capt (Time Scale).

GP Capt (Time Scale)

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

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

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

(c) Other Allowances & Perks. Officers holding the rank of Gp Capt (Time Scale) will be eligible for all allowances and other perks as applicable to Gp Capt (Select) Grade.

(d) Age of Superannuation. The age of superannuation for Gp Capt (time Scale) would be same as it is for the rank of Wg Cdr in respective, branches. Therefore, there is no change in the retirement age of a Wg Cdr on being promoted to the rank of Gp Capt (Time Scale).

5

Page 6

(e) Medical Criteria. The present provisions contained in the policies and amendments thereto, applicable so far for the rank of Wg Cdr (Time Scale) will now be applicable to the new grade of Gp Capt (Time Scale):

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

(a) Substantive Gp Capt (Select). (b) Acting Gp Capt (Select).

7. Detailed criteria and procedure for grant of substantive rank of Gp Capt by Time Scale will immediately be notified by the Air Headquarters through HRP.

8. Revision in pay and pension due to promotion, where applicable, to officers who have retired, during the intervening period between 16 Dec 04 and date of issue of this letter will be reviewed with retrospective effect from 16 Dec 04.

9. As a consequence of the implementation of the above orders the appointments in which Sqn. Ldrs and Wg Cdrs can be posted are given at appendices ‘A’ and ‘B’ to this letter, mutatis mutandis Unit Establishments of units,’ formations and Establishments will stand modified to the above extent till their] revision in due course. Various orders and instructions affected by the above decisions would be amended in due course.

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

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

Yours faithfully,

(Bimla Julka)

Joint Secretary to the Govt. of India”

3. It is evident from the above that a Squadron Leader

can, under the new dispensation, be promoted as a Wing

6

Page 7

Commander upon his completing 13 years reckonable

commissioned service in the force. He can be further

promoted as Group Captain (Time Scale) after he has to his

credit reckonable service of 26 years. The position prevalent

pre-AVS Committee recommendations, was that a Squadron

Leader who did not make it to the next rank of Wing

Commander in three chances admissible to him could

become a Wing Commander (Time Scale) and retire upon

attaining the age of 52 years in case he was serving the

flying branch and 54 years if he was serving in the ground

duty branch of the force. This was true even for a Wing

Commander (Select) who did not make it to the next higher

rank of Group Captain in three chances available to him for

such promotion. Post-AVS Committee the Government

provided an additional avenue for the Wing commanders to

pick up the next higher rank of a Group Captain (Time

Scale) even if they were not able to make it to the next rank

on the basis of inter se merit. The AVS Committee

recommendations and the Government Order were meant to

provide relief to such officers, as were not able to go to the

next level due primarily to the limited number of vacancies

7

Page 8

in the pyramid like service structure where the number of

posts become fewer and fewer as one climbs higher in rank.

The pre-AVS Committee and post-AVS Committee position in

regard to the retirement age fixed for various ranks in the

Indian Air Force can be conveniently summarised in the

following chart:

INDIAN AIR FORCE

Pre-AVSC Post AVSC

Rank Flying Branc h

Grou nd Duty Branc h

Edn Branc h

Met Branc h

Flying Branc h

Ground Duty Branch

Edn Branch

Met Branch

Wg Cdr (TS)

52 54 54 57 - - - -

Wg Cdr. (Select)

52 54 54 57 52 54 57 57

Gp Capt (TS)

- - - - 52 54 57 57

Gp Capt (Select)

52 (Extenda ble to 54)

57 57 57 52 (Extend able to 54)

57 57 57

4. The chart makes it clear that post-AVS Committee’s

report and recommendations the Wing Commander (Time

scale) rank was abolished and the bar for time scale

promotion to officers who did not make to the next rank

raised to Group Captain (Time Scale). To that extent the

8

Page 9

issue of stagnation in the Air Force was addressed by

providing avenues for upward mobility of Wing

Commanders. There was at the same time a flip side to the

Government decision inasmuch as the advantage in terms of

upward movement was, to an extent, neutralised by the

Government retaining the retirement age of Group Captains

(Time Scale) at 52 years in the case of flying branch and 54

years in the case of officers serving in the ground duty

branch. This is evident from a reading of clause 5(d)

extracted above which denied to the Group Captains (Time

Scale) the benefit of a higher retirement age applicable to

Group Captains (Select) who could serve upto 54 years of

age in the flying branch and 57 years in the ground duty

Education and Met branches of the force. The Government

Order in effect classified officers holding the rank of Group

Captains in two categories one comprising officers who rise

to that rank by time scale upon completion of 26 years of

service and the other who got there by promotion on the

basis of merit. This classification of officers serving in the air

force holding the same rank but governed by different

standards for purposes of their superannuation was assailed

9

Page 10

by the respondents who were Group Captain (Time Scale) in

petitions filed by them before the Armed Forces Tribunal,

Principal Bench, New Delhi. The grievance made by them

was that Group Captains in the Air Force constituted one

class regardless whether they were promoted to that rank

by time scale or on inter se merit. The respondents alleged

that they were discharging the same kind of duties as were

being performed by Group Captains (Select). They were

wearing the same ranks and drawing the same emoluments

and other allowances and were regulated by the same

conditions of services in all other respect. Classifying officers

who were similarly situate on the basis of the method of

appointment to the rank of Group Captain when everything

else was the same, was violative of Articles 14 and 16 of the

Constitution argued the aggrieved officers.

5. The petitions were contested by the appellant-Union of

India primarily on the ground that although the respondents

held the same rank as Group Captains (Time Scale) and

were similar in all other respects including emoluments and

other conditions of service and although they were treated

10

Page 11

to be equivalent to Group Captain (Select) yet the nature of

duties and the operational employability of officers promoted

to Group Captain (Select) rank was better in comparison to

those holding the rank of Group Captain (Time Scale). The

rank of Group Captain (Time Scale) was, according to the

appellant, a new rank created under Government Order

dated 12th March, 2005 (supra) subject to the condition that

the retirement age of Group Captain (Time Scale) would

remain the same as was applicable to Wing Commanders

retiring in that branch. The objective behind creating the

rank of Group Captain (Time Scale) was to provide

continued motivation even such officers as may not have

made it to the rank of Group Captain (Select). It was

alleged that post implementation of AVS Committee

recommendations, Group Captain (Time Scale) Officers were

being posted against positions earlier given to Wing

Commanders apart from the fact that the sanctioned

strength of such Time Scale ranks officers was held against

Wing Commander (Time Scale) ranks that existed earlier.

11

Page 12

6. The Tribunal has, upon consideration of the rival

submissions, come to the conclusion that while the purpose

underlying the creation of time scale post of Group Captain

on completion of 26 years of service was laudable,

classification of Group Captains (Time Scale) and Group

Captains (Select) into two categories was not

constitutionally permissible. The Tribunal recorded a finding

that Group Captains (Time Scale) wear the same rank and

get the same salary, grade pay and draw the same benefits

as Group Captains (Select). Posting of Group Captains (Time

Scale) against posts earlier manned by Wing Commanders

was, according to the Tribunal, an administrative matter

which did not justify the classification made by the

Government for purpose of prescribing a different retirement

age for the two categories. The Tribunal held that the only

difference between Group Captains (Time Scale) and Group

Captains (Select) is that the latter get promoted to the post

of Group Captains in a shorter period whereas Group

Captains (Time Scale) can get to that rank only after serving

for not less than 26 years. Select officers by that process

become senior to the Time Scale Promotees. The Tribunal

12

Page 13

held that providing avenues for promotion for Wing

Commanders who do not make it to the rank of Group

Captains by selection was meant to avoid stagnation in the

officers rank besides providing incentives to such officers to

continue serving the force subject to their maintaining the

required level of professional ability and proficiency and

physical fitness to be promoted to the next rank against a

time scale vacancy. Such officers could not, therefore, be

deprived of the benefit of higher retirement age that would

accrue to them by reason of their continued good

performance required for such promotion to the next rank.

The Tribunal observed:

“On the one hand they have granted them a benefit for serving Indian Air Force for more than 26 years and on the other hand they want to deprive them by retiring them at the age of 54 years. There appears to be no rational basis in this. When both the persons wear the same rank, draw the same salary and get the same grade pay and then to say that one Gp Capt (TS) will retire at the age of 54 and the other Gp Capt (Select) at the age of 57 years. This distinction which is sought to be made has no rational basis whatsoever. It is true that Government can have mini and micro classification but there has to be some rational basis for certain object which is sought be achieved. In this case all rationale which has been given is this only that since the Gp. Captain (TS) are posted against the post of Wg Cdr and age of retirement of Wg Cdr is 54 years, therefore, they should be retired at 54 years is no rationale. Once a person who has been promoted

13

Page 14

from Wg Cdr to Gp Captain, he wears his uniform as Gp Captain and he draws same salary of Gp. Capt he gets same Grade Pay of Gp. Capt., he performs same duties of Gp Capt as others Gp Capt performs except the flying branch, then to make a distinction that he should retire at the age of 54 years because the post against which he has been appointed is that of a Wg Cdr, therefore, he will still be treated as Wg Cdr for the purpose of superannuation is no rationale.”

7. Appearing for the appellants, Mr. R. Balasubramanian

strenuously argued that the Tribunal had fallen in error in

holding that there was no rational basis for classifying Group

Captains (Time Scale) and Group Captains (Select) in two

different categories for purposes of their retirement age.

The fact that the Group Captains (Select) were promoted to

that rank on the basis of their merit was, according to the

learned counsel, by itself a sufficient reason that would

justify their classification as a separate and distinct group for

purposes of prescribing a different retirement age apart from

the method of appointment to that rank itself being

different. It was also contended that although Group

Captains (Select) and Group Captains (Time scale) were in

all respects including the ranks that they wear, salary they

receive, and other service benefits they are entitled to

14

Page 15

similar to Group Captains (Select), yet the nature of duties

which Group Captains (Time Scale) performed were

substantially if not entirely different from those that are

assigned to Group Captains (Select). The deployability of

Time Scale Officers was, according to the learned counsel,

limited which put them into a different bracket for purposes

of superannuation. It was submitted that even when the

recommendations made by the AVS Committee as applicable

to the Indian Army had not made a distinction between a

Colonel (Select) and Colonel (Time scale) in terms of the

retirement age yet the very fact that the Government had

not made such a distinction in the Army did not mean that

the same could not be made in regard to the Air Force. The

classification made by the Government for purposes of

different ages of retirement between officers in the Select

and Time Scale categories was thus sought to be justified by

the appellants on what was according to them an intelligible

differentia that fully justifies the classification.

8. On behalf of the respondents it was, on the other hand,

contended that the classification made by the Government of

15

Page 16

India in the matter of age of retirement of Select and Time

Scale officers was wholly impermissible and hostile to the

Time Scale Officers who were holding the same rank,

drawing the same salary and allowances and for all intents

and purposes, discharging the same duties as any other

officer holding that rank was doing. Just because Time Scale

Officers came to be promoted by a different route than

officers in the select category did not justify the classification

brought about by the Government Order in the matter of

age of superannuation. It was also contended that there

was no intelligible differentia between Group Captains

whether they came to hold that rank based on Selection or

Time Scale so long as the officers held the same rank and

enjoyed similar service benefits. It was urged that there was

no real basis for the appellants to argue that upon

promotion as Group Captain (Time Scale) the appellants

were discharging functions that were, in any way, inferior or

less onerous to those discharged by Group Captain (Select).

The Tribunal had also recorded a finding to that effect and

held that the posting of an officer after he is promoted as

Group Captain (Time Scale) or Group Captain (Select) was

16

Page 17

an administrative matter which could not provide a

reasonable basis or an intelligible differentia to treat them

differently so as to justify a different treatment.

9. It was also contended that the Government had by

accepting the AVS Committee Report opened avenues for

upward mobility of officers who fulfil the minimum

requirement prescribed for such upward movement which

was earlier restricted to a Wing Commander level but now

raised to the rank of Group Captain. There was, in any case,

no nexus between the object sought to be achieved in terms

of the AVS Committee recommendations and the

Government Order on the one hand and the classification of

officers on the other. This was true even when the claim

made by the appellants that the classification and the lower

age of retirement for Group Captain (Time Scale) was meant

to keep a lower age profile for commanding officers in the

Air Force.

10. The seminal question that falls for our determination in

the above backdrop is whether classification of Group

Captains in the Indian Air Force for purposes of age of

17

Page 18

superannuation, is offensive to Article 14 of the Constitution.

A long line of decisions of this Court that have explained the

meaning of equality guaranteed by Articles 14 and 16 of the

Constitution and laid down tests for determining the

constitutional validity of a classification in a given case

immediately assume importance. These pronouncements

have by now authoritatively settled that Article 14 prohibits

class legislation and not reasonable classification. Decisions

starting with State of West Bengal v. Anwar Ali (AIR

1952 SC 75) down to the very recent pronouncement of

this Court in Dr. Subramanian Swamy v. Director, CBI

and Anr. (AIR 2014 SC 2140) have extensively examined

and elaborately explained that a classification passes the

test of Article 14 only if (i) there is an intelligible differentia

between those grouped together and others who are kept

out of the group; and (ii) There exists a nexus between the

differentia and the object of the legislation. Speaking for the

Court Das J., in Anwar Ali’s case (supra) summed up the

essence of what is permissible under Article 14 in the

following words:

18

Page 19

“The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.

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

11. The principle was reiterated in Shri Ram Krishna

Dalmia v. Shri Justice S.R. Tendolkar & Ors. (AIR 1958

SC 538) in the following passage:

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

19

Page 20

12. In Lachhman Das v. State of Punjab, (AIR 1963

SC 222), this Court while reiterating the test to be applied

for examining the vires of an Act on the touchstone of Article

14 sounded a note of caution that over-emphasis on the

doctrine of classification may gradually and imperceptibly

deprive the Article of its glorious content. This Court

observed:

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

13. The content and the sweep of Article 14 of the

Constitution was once more examined in E.P. Royappa v.

State of Tamil Nadu (1974) 4 SCC 3, where this Court

laid bare a new dimension of Article 14 and described its

activist magnitude as a guarantee against arbitrariness.

Speaking for the Court, P.N. Bhawati, J. as His Lordship then

was said:

20

Page 21

“85. xxxxxx Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination.

Xxxxxxx

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

21

Page 22

radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”

14. The dimensions of Article 14 were further enlarged by

this Court in Maneka Gandhi v. Union of India (1978) 1

SCC 248, where Bhagwati, J. once again speaking for the

Court described the guarantee against arbitrariness as a

great equalising principle, a founding faith of the

Constitution, and a pillar on which rests securely the

foundation of our democratic republic.

15. It is unnecessary to burden this judgment with

reference to several indeed numerous other pronouncements

that have reiterated and followed the ratio of the decisions

to which we have referred hereinabove for we would remain

content with a reference to a recent Constitution Bench

decision in Dr. Subramanian Swamy v. Director, CBI

and Anr. (AIR 2014 SC 2140) where this Court was

examining whether Section 6A(1) of the PC Act, 1988 was

constitutionally valid insofar as the same required approval

of the Central Government to conduct any inquiry or

investigation into any offence alleged to have been

22

Page 23

committed under the said Act where such allegations related

to employees of the Central Government of the level of Joint

Secretary and above and officers as are appointed by the

Central Government in Corporations established by or under

any Central Act, Government companies, societies etc.

Speaking for the Court Lodha, CJI observed:

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

23

Page 24

16. Time now to test the validity of the classification in the

case at hand; in the light of the legal position enunciated in

the decisions of this Court juxtaposed with the rationale

which the appellant-Union of India has advanced to justify

its action. As noticed earlier, there are in substance two

main reasons which the appellant has advanced in support

of the classification made by it. The first and foremost is that

officer who get promoted to the rank of Group Captains on

the basis of merit constitute a class different from the ones

who do not make it to the next rank on that basis. That

officers who fail to make the grade in merit selection on

three occasions admissible to them are eventually promoted

to the rank of Group Captains based on the length of their

service does not, according to the appellant, make them

equal to their colleagues who have stolen a march over

them by reason of their superior merit. The second and the

only other ground called in aid of the classification is that

Group Captains (Time Scale) do not discharge the same

functions as are discharged by Group Captains (Select). The

deployability of time scale Group Captains being limited,

they can, according to the appellants, be classified as a

24

Page 25

different group or category even when in all other respects

they are equal to the officers promoted on merit.

17. The Tribunal has rejected both the reasons

aforementioned and, in our opinion, rightly so. Classification

of employees based on the method of their recruitment has

long since been declared impermissible by this Court. There

can be no differential treatment between an employee

directly recruited vis-a-vis another who is promoted. So long

as the two employees are a part of the same cadre, they

cannot be treated differently either for purposes of pay and

allowances or other conditions of service, including the age

of superannuation. Take for instance, a directly recruited

District Judge, vis-a-vis a promotee. There is no question of

their age of superannuation being different only because one

is a direct recruit while the other is a promotee. So also an

IAS Officer recruited directly cannot for purposes of age of

superannuation be classified differently from others who join

the cadre by promotion from the State services. The

underlying principle is that so long as the officers are a part

of the cadre, their birth marks, based on how they joined

25

Page 26

the cadre is not relevant. They must be treated equal in all

respects salary, other benefits and the age of

superannuation included.

18. In the case at hand, Group Captains constitute one

rank and cadre. The distinction between a Group Captain

(Select) and Group Captain (Time Scale) is indicative only of

the route by which they have risen to that rank. Both are

promotees. One reaches the rank earlier because of merit

than the other who takes a longer time to do so because he

failed to make it in the three chances admissible to them.

The select officers may in that sense be on a relative basis

more meritorious than time scale officers. But that is bound

to happen in every cadre irrespective of whether the cadre

comprises only directly recruited officers or only promotees

or a mix of both. Inter se merit will always be different, with

one officer placed above the other. But just because one is

more meritorious than the other would not by itself justify a

different treatment much less in the matter of age of

superannuation.

26

Page 27

19. It is common ground that Time Scale Officers do not

get to the higher rank only because of the length of service.

For purposes of time scale promotion also the officers have

to maintain the prescribed minimum standard of physical

fitness, professional ability, commitment and proficiency.

Rise to the next rank by time scale route is, therefore, by no

means a matter of course. It is the length of service and the

continued usefulness of the officer on the minimal

requirements stipulated for such promotion that entitles an

officer to rise to higher professional echelons. Suffice it to

say that while better inter se merit would earn to an officer

accelerated promotion to the Group Captain’s rank and

resultant seniority over Time Scale Officers who take a much

longer period to reach that position, but once Time Scale

Officers do so they are equal in all respects and cannot be

dealt with differently in the matter of service conditions or

benefits. All told the submission of the Time Scale Officers

that because of their long years of service and experience,

they make up in an abundant measure, for a relatively lower

merit cannot be lightly brushed aside. That Group Captains

(Time Scale) wear the same rank, are paid the same salary

27

Page 28

and allowances and all other service benefits admissible to

Group Captains (Select) supports that assertion for

otherwise there is no reason why they should have been

equated in matters like pay, allowances and all other

benefits including the rank they wear if they were not truly

equal. Once it is conceded that the two are equal in all

other respects as indeed they are, there is no real or

reasonable basis for treating them to be different for

purposes of age of retirement.

20. Two significant features need to be noticed at this

stage. The first and foremost is that before AVS Committee

recommended the raising of bar for time scale officers, from

the rank of Wing Commanders (TS) to Group Captains (TS),

the age of retirement for Wing Commanders (TS) and Wing

Commanders (TS) was the same. In other words, the pre-

AVS Committee regime did not recognise any distinction

between time scale and select officers to justify a different

age of retirement for them. Not only that while

implementing the AVS-Committee recommendations in

regard to the Indian Army the Government have not made

28

Page 29

any distinction between Cols (Select) and Cols (TS) for

purposes of the age of retirement as both retire at the same

age. When asked whether there is any difference in Time

Scale and Select Officers serving in the Army on the one

hand and Air Force on the other, learned counsel for the

appellants was unable to provide any satisfactory

explanation for the dichotomy. All that was argued was that

Army being a bigger organisation there is no difficulty in

suitably deploying Col. (TS) officers but Air Force being a

smaller organisation as compared to the Army, it is not

possible to do so in the Air Force. That is, in our opinion,

hardly a reason for the classification brought about by the

Government in regard to Air Force Officers. While it is true

that Air Force is a smaller organisation in comparison to

Army, the fact remains that the number of Time Scale

Officers would also be proportionally smaller than those in

the Indian Army.

21. It is trite that birthmark of an officer who is a part of

the cadre of Group Captains cannot provide an intelligible

differentia for the classification to be held valid on the

29

Page 30

touchstone of Articles 14 and 16 of the Constitution. We may

in this regard gainfully refer to the decision of this Court in

Col. A.S. Iyer & Ors. V. Bala Subramanyan & Ors.

(1980) 1 SCC 634, where Krishna Iyer J. as his Lordship

then was rejected a somewhat similar argument to justify a

classification based on the birthmarks of the members of a

cadre. He said:

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

(emphasis supplied)

22. In Air India v. Nargesh Mirza and Ors. (1981) 4

SCC 335, a three-Judge Bench of this Court was examining

whether a rule that permitted retirement of Hostesses,

within four years of her joining service, was reasonable.

30

Page 31

This Court held that if the factors or circumstances that are

taken into consideration while fixing the age of

superannuation are inherently irrational or illogical, the

decision fixing the age of retirement will be flawed. The

Court observed:

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

23. In Kamlakar and Ors. v. Union of India & Ors.

(1999) 4 SCC 756, this Court was examining whether a

distinction could be made between direct recruits and

promotees as regards equal treatment in the matter of pay

scales admissible to them. Rejecting the contention that

such distinction would be justified this Court held that once

officers are placed in one cadre the distinction between

direct recruits and promotees disappears. The birthmarks

have no relevance for classification of Data Processing

31

Page 32

Assistants who are directly recruited and others who are

promoted. This Court observed:

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

24. The principles stated in the above decisions lend

considerable support to the view that classification of Group

Captains (Select) and Group Captains (Time Scale) in two

groups for purposes of prescribing different retirement ages,

is offensive to the provisions of Articles 14 and 16 of the

Constitution of India. These appeals must, on that basis

alone, fail and be dismissed, but, for the sake of a fuller

treatment of the subject, we may as well examine whether

the classification has any nexus with the object sought to be

achieved by the Government decision taken in the wake of

the AVS Committee recommendations.

32

Page 33

25. The AVS Committee was tasked to examine two main

issues namely (i) achieving optimal combat effectiveness by

bringing down the age profile of Battalion/Brigade

Commanders and (ii) making the organisation more effective

in fulfilling individual career aspirations by their officers. This

is evident from the report of the Committee in para 5

whereof it has said:

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

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

(ii) Individual Aspirations. Left unfulfilled due to:

(a) Inadequate career progression. (b) Disparity with Class ‘A civil

services.

(c) Harsh service conditions.’

26. The Committee then examined various options in

regard to both the issues mentioned above and made its

recommendations. Apart from suggesting measures that

could be taken to reduce the age profile of Battalion/Brigade

33

Page 34

Commanders, the Committee suggested introduction of Col.

(TS) rank for the Army which recommendation when applied

to Air Force resulted in introduction of the rank of Group

Captain (Time Scale). These new creations were meant to

meet the aspirations of the officers who did not make to the

next rank on the basis of merit selection.

27. In the Air Force, the avowed objectives underlying the

recommendations were achieved by the Government

permitting a Wing Commander to pick up the next higher

rank of Group Captain on merit after putting in a service of

13 years only and by creating the rank of Group Captain

(Time Scale). This change has ushered in a new regime

under which younger officers got promoted as Group

Captains. Once promoted they gain an edge over others who

do not make it to the next rank on merit but who reach

there on time scale basis after 26 years of service. Group

Captains (Select) who are invariably younger by many years

to such Group Captains (TS) thus provide the human

resource from out of which the Air Force picks up its

commanding officers. Time Scale officers, would in the light

34

Page 35

of the change, be generally if not invariably in non-command

positions in the Air Force, to which they have never raised

any objection as was the submission of learned counsel

appearing on their behalf. But to say that sending these time

scale offices home on attaining the age of 52 years and 54

years depending upon whether they are serving in the flying

or ground duty branch has any nexus with the object of

having a younger age profile of commanding officers is not

in our opinion correct. So long as Group Captains (Select)

are senior to Time Scale Officers and so long as the former

are younger in age as they are bound to be, the objective of

having a younger age profile of commanding officers is

achieved even if the Time Scale Officers are permitted to

retire at the same age as Group Captains (Select). The

second test applicable viz. existence of a nexus between the

object sought to be achieved and the classification made by

the Government also fails rendering the classification bad.

28. The only other aspect that needs to be addressed is

whether the classification of Group Captain (Select) and

Group Captain (Time Scale) can be justified on the basis of

35

Page 36

nature of duties they discharge. It was contended on behalf

of the appellants that nature of duties and functions were

not identical for the two categories. A classification based

on such a difference was, therefore, justified. The Tribunal

has examined and rejected a similar contention urged before

it. We may, in this connection, refer to para 10 of the Writ

Petition filed by the respondents that came to be transferred

to the Tribunal from the High Court for disposal. In para 10

the respondents-writ petitioners made the following

averments:

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

29. In the counter-affidavit filed on behalf of the appellants

herein the appellants asserted as follows:-

“9. In reply to Para 10, it is submitted that the nature of work, duties and functions performed by Time Scale Gp Capt is that of an officer of Wg Cdr rank. A Wg Cdr on not getting cleared for promotion to the rank of Group Captain is promoted on a time scale basis to Gp Capt on attaining 26 years of service. However the officer continues to perform the duties and work of a Wg Cdr. Financial powers of an officer are a function of the officer’s appointment

36

Page 37

and not of the rank. Therefore equating the financial powers based on promotion by Time Scale or by Selection has no meaning.”

30. A plain reading of the above reply would show that the

appellants have not indicated how the work, duties and

functions performed by Group Captain (Time Scale) are

different from those discharged by Group Captain (Select).

All that is stated is that Group Captains (Time Scale) when

promoted after completing 26 years of service continue to

perform the work and duties of Wing Commanders. We have

not been able to appreciate this line of reasoning. If a Wing

Commander is promoted as a Group Captain on Time Scale

basis, the nature of duties must, by reason of such

promotion, be more onerous than those discharged by him

as a Wing Commander. Promotion to a higher cadre

invariably implies higher responsibilities even when the

essential nature of work may continue to be the same. For

instance, a Wing Commander in the flying branch may be

required to fly fighter aircrafts on peace time training or

when the country is at war. A Group Captain (Select) would

also be doing the same work as indeed even the Group

37

Page 38

Captains (Time Scale) shall be required to do. Flying a

fighter aircraft is thus essential part of the duties of an

officer serving in the flying wing. But to say that since a

Group Captain (Time Scale) continues to fly as he was flying

as a Wing Commander, his promotion as a Group Captain

(Time Scale) is inconsequential from the point of view of

nature of work may not be correct. Nature of duties in such

situations does not undergo any significant change even

when an officer picks up a higher rank. It is only the

addition of higher and more onerous responsibility attached

to the office that fall on his shoulder. One could well say

that if Group Captain (Time Scale) continues to work as a

Wing Commander, what work are the Wing Commanders

doing. That apart, allocation of work and duties is a matter

left for the Air Force Authorities to determine. Lesser or

higher allocation of such duties will not trivialise the

promotion of a Wing Commander to the rank of Group

Captain which progression must be treated to be a

promotion for all intents and purposes. That is perhaps the

reason why the Tribunal appears to have repeatedly asked

the appellants to explain the basis on which a distinction was

38

Page 39

made between Group Captains (Select) and Group Captains

(Time Scale) no matter they are wearing the same uniform,

same rank, getting the same salary and the same grade pay.

In the absence of any rational basis for such a distinction,

the Tribunal was right in saying:

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

31. In the additional affidavit filed on behalf of the

appellant-Union of India before us it was, inter alia, stated

that upon consideration of the recommendations made by

the AVS Committee, the Ministry of Defence had submitted

39

Page 40

to Government of India a detailed statement of case for the

latter’s consideration in which it was among other things

pointed out that while superseded wing commanders who

make the minimum eligibility criteria laid down by the Air HQ

should be granted the rank of Group Captain (TS) on

completion of 26 years of service, it would be preferable to

have such superseded officers exiting early so as not to

adversely affect efficiency in the cadre. It was also asserted

that if the retirement age of Group Captain (TS) and Group

Captain (Select) were to be at par this may adversely affect

the Indian Air Force in many resultant situations. The

following four issues of concern have been expressed by the

appellants in the event of such parity being granted in the

matter of retirement age.

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

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

(c) As per the felt requirements of the armed forces, which have now been accepted by the Government, the age profile of field unit commanders have been reduced to achieve optimum operational capabilities. If the superseded officers of older ages are retained further, their employability

40

Page 41

based on functional capacity under these younger officers would pose command and control hurdles.

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

32. The counter-affidavit further attempts to draw a

comparison between Group Captain (TS) and Group Captain

(Select) in the matter of posting profiles. The counter-

affidavit under the heading ‘Posting Profile’ points out the

following position:

POSTING PROFILE

1. The list of established posts (Since the same contain confidential data, Petitioners crave leave of this Hon’ble Court to refer to and rely upon the same at the time of arguments)

Appointment s against which posted

Are posted in vacancies which are authorised as per establishmen t for Group Captain Select rank officers

As laid down by the established appointment wise vacancies applicable to Wg Cdrs.

2. Specimen Organisation Chart (A true copy of a specimen organisation

Sample Organisation chart with duties and responsibiliti es of a

Directors are Gp Capt (Select)

Jt. Directors are Gp Capt (Time Scale) and Wg Cdrs

41

Page 42

chart is marked and annexed as Annexure A6)

specific directorate

33. The counter-affidavit also cites reduction in combat

effectiveness as one of the possible fall outs of any parity in

the age of superannuation between Group Captains (TS) and

Group Captains (Select).

34. The respondents have, in the reply filed to the

additional affidavit aforementioned, denied each one of the

distinctions sought to be made between Group Captain (TS)

and Group Captain (Select). It is asserted by them that

while recommending the creation of Group Captain (TS) rank

to provide upward mobility for officers who are unable to

pick up the next rank on merit basis, the AVS Committee

recommendations never envisaged any difference in the age

of superannuation vis-a-vis Group Captain (Select). The

AVS Committee which had examined the matter threadbare

never thought that any such distinction or discrimination

could be justified between the two. The concerns expressed

42

Page 43

by the Government as a possible fall out of a parity in

retirement age has also been stoutly denied by the

respondents in the following words:

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

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

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

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

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

b) It is incorrect to say that Group Captain(Select) officers would be demotivated if Group Captain (TS) are granted 57 years and that of medical branch is 58 years. These retirement ages are devoid of promotional limitations from Flying officer onwards to Air Marshal. Since the very inception of the IAF continuation of such officers up to the age of 57

43

Page 44

regardless of merit, selection and/or supersession at the rank and has never demotivated the officers of the other branches who were selected on merit and retired at an equal age despite making to select rank through merit. All officers of similar categories in all groups of branches have co-existed in harmony and maintained efficient operational functioning and high levels of moral and motiviation.

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

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

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

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

35. More importantly, the respondents have asserted that

Group Captains (TS) and Group Captains (Select) perform

the same functions and duties which are higher than the

44

Page 45

duties and functions performed by the Wing Commanders,

they wear the same uniform and rank which is higher than

the Wing Commanders apart from drawing the same pay

scale as Group Captains, which too is higher than the one

admissible to Wing Commanders. On the question of posting

profile of Group Captains (TS) and Group Captains (Select),

the respondents have, on affidavit, denied not only the

alleged difference in the nature of duties and functions

performed by the two but specifically claimed that Group

Captains (TS) have been posted and have held positions and

appointments that are ordinarily given to Group

Captain(Select). In answer to para 11 of the counter-

affidavit extracted earlier, the respondents have given the

following instances, where Time Scale Officers have held

appointments also held by Select Officers:

Gp Capt (Select) Appointment

Held by Gp Capt (TS)

Period

Commanding Officer Air Force Intelligence School

Gp Capt (TS) Kapil Shukla

Not known

Chief Logistics Officer, No-3, Base Repair Depot

Gp Capt (TS) Vijay Narain

2005-2006

45

Page 46

Chief Logistics Management Officer, HQ Maintenance Command

Gp Captain (TS) VJ Narain

2007-2009

Chief Logistics Officer, No-7, Base Repair Depot

Gp Capt (TS) Chander Shekhar

Not Known.

Command Organisation Officer, Westtern Air Command

Gp Capt (TS) AS Negi

07/20120 To 6/2013

Command Intelligence Officer, HQ Eastern Air Command

Gp Capt (TS) Y Bagga

6/2010 to 02/2012

Director (Policy & Co- ordination), Directorate of Air Force Works, Air HQ.

Gp Capt (TS) AK Chatterjee

08/2012 onwards

Director ECHS Regional Centre, Nagpur

Gp Capt (TS) VK Yadav

04/2012 To 07/2013

Director ECHS Regional Centre, Sulur (TN)

Gp Capt (TS) Sajjan

06/2012 onwards

Director ECHS Regional Hyderabad

Gp Capt (TS) M Mahapatra

Not known

Director ECHS Regional Centre Bangalore

Gp Cap[t (TS) M Mahapatra

Not known

Wing Incharge Pension & Welfare Wing Air Force Record Office

Gp Capt (TS) Ram Pratap

01/2011 to 06/2012

Commanding Officer (Unit) HQ Training Command

Gp Capt (TS) Ram Pratap

06/2008 to 10/2010

46

Page 47

Director Air Staff Inspectiopn (ATS), Directorate of Air Staff Inspection, Air HQ

Gp Capt (TS) AS Gill

04/2009 to 03/2010

36. The assertion of the appellant that a parity in the

retirement age reduces the combat effectiveness of the force

has been stoutly denied by the respondents who have

asserted that if a Group Captain(Select) or for that an Air

Commodore or an Air Vice Marshall gets superseded, his

higher age neither automatically impedes the quality and

standard of performance of his duties nor does the IAF

summarily curtail his residual service as a consequence of

his supersession, on the ground that his higher age group

may impact combat effectiveness.

37. On the material placed before us and having regard to

the rival assertions made by the parties in their respective

affidavits the difference in employability of Group Captains

(TS) is not borne out to justify the classification made by

the Government. It is evident from the particulars given by

the respondents that several Group Captains (TS) have held

appointments which are also held by Group Captains

47

Page 48

(Select). If that be so, the difference in the employability of

Time Scale officers vis-a-vis select officers appears to be

more illusory than real. There does not appear to be any

hard and fast rule on the question of deployment or

employability of Group Captains (TS) or Group Captains

(Select) for that matter. The Air HQ can, depending upon its

perception, order deployment and post any officer found

suitable for the job. Deployment remains an administrative

matter and unless the same involves any reduction in pay,

allowances or other benefits or reduction in rank or status of

an officer legally impermissible, such deployment remains an

administrative prerogative of the competent authority.

38. Suffice it to say that the basis for classification in

question for purposes of age of superannuation which the

appellant has projected is much too tenuous to be accepted

as a valid basis for giving to the Time Scale Officers a

treatment different from the one given to the Select Officers.

We are also of the view that concerns arising from a parity in

the retirement age of Time Scale and Select Officers too are

more perceptional than real. At any rate, such concerns

remain to be substantiated on the basis of any empirical

data. The upshot of the above discussion is that the

classification made by the Government of India for purposes

48

Page 49

of different retirement age for Time Scale Officers and Select

Officers does not stand scrutiny on the touchstone of Articles

14 and 16 of the Constitution as rightly held by the Tribunal.

39. In the result, these civil appeals fail and are hereby

dismissed but in the circumstances without any order as to

costs.

………………………………….…..…J. (T.S. THAKUR)

…………………………..…………….J. (C. NAGAPPAN)

New Delhi September 24, 2014

49

UNION OF INDIA Vs ATUL SHUKLA ETC.

UNION OF INDIA Vs ATUL SHUKLA ETC.