ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

O.A.NO. 81 of 2015

WEDNESDAY, THE 8TH DAY OF JUNE, 2016/18TH JYAISHTA, 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT:

GROUP SAJI ABRAHAM, SERVICE NO.16647, S/O P.P.ABRAHAM, AGED 56 YEARS, PRESENTLY POSTED AT AFTC, JALAHALLI WEST, BANGALORE – 560015,

BY ADV. SRI. BIJU ABRAHAM

VERSUS

RESPONDENTS:

1.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.

BY ADV.SRI. K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL

OA No. 81 of 2015 : 2 :

O R D E R

VAdm.M.P.Muralidharan, Member (A):

1. This Original Application has been filed by

Group Captain Saji Abraham, No. 16647 essentially seeking a declaration that he is entitled to be considered for promotion to the post of Air from the date of his promotion as .

2. The applicant who is a Group Captain (Time

Scale) had earlier filed OA.No.58/2013 before this

Tribunal seeking entitlement of Group Captain (Time

Scale) to be treated at par with Group Captain (Select) regarding the age of superannuation. By order dated 10

January 2014 in OA.No.58/2013 and other connected cases, this Tribunal had directed the respondents to allow the applicant to serve as Group Captain (Time Scale) till he attains the age of 57 years at par with Group

Captain (Select). The applicant who had retired based OA No. 81 of 2015 : 3 : on the existing Regulations at the age of 54 years, was reinstated by the respondents based on the orders of the

Tribunal. The applicant subsequently challenged some of the conditions imposed by the respondents at the time of reinstatement vide OA.No.15/2015. That Original

Application was later dismissed as infructuous vide order dated 27 November 2015, as the respondents had granted benefits sought by the applicant.

3. Sri. Biju Abraham, the learned counsel for the applicant submitted that the Hon'ble Apex Court had considered appeals arising from the decision of the

Principal Bench of this Tribunal in TA.No.385/2009 and other similar cases of Group Captains (Time Scale) in

Union of India & Ors. vs. Atul Shukla & Ors, (2014)

10 SCC 432. The learned counsel submitted that during the course of hearing, many issues including the age of retirement, rank, cadre, conditions of service and benefits received by Group Captains (TS) vis-a-vis

Group Captain (Select) were canvassed by the OA No. 81 of 2015 : 4 : applicants and the respondents. The Apex Court held that Group Captains constitute one rank and cadre after promotion and the distinction between 'Select' and 'Time

Scale' was only indicative of the route by which they have risen to the rank. The learned counsel further submitted that the Apex Court had also held that better inter se merit earns an officer accelerated right of promotion to Group Captain's rank, but once officers promoted on Time Scale also attain the rank of Group

Captain, they are equal in all respects and cannot be dealt with differently in matters of service conditions or benefits.

4. The learned counsel submitted that the applicant was promoted to the cadre of Group Captain on

11 December 2007. Discarding the orders of the

Hon'ble Apex Court for equal opportunity for employment or appointment, Group Captains (Select) who were junior to the applicant were promoted to the rank of Air

Commodore. The learned counsel further submitted that OA No. 81 of 2015 : 5 : the applicant and other Group Captains (Time Scale) were not included in the selection process for consideration to the rank of . The respondents were still following the recommendations of the AVS Committee by which restructuring of the officer cadre of the was ordered vide Ministry of

Defence Letter No.2(2)/US(L)/D(Air iii/04 dated 12

March 2005 (Annexure A1). Instead of following the relative seniority based on the date of promotion of each officer into the substantive cadre, respondents are still treating the applicant as junior to Group Captain

(Select). The applicant therefore submitted a representation to the respondents (Annexure A3). The learned counsel further submitted that the policy being adopted by the respondents is violative of Para 25 of

Defence Service Regulations (Annexure A4). He further submitted that the policy letter of restructuring

(Annexure A1) is in violation of service regulations and against the spirit of the judgment of the Hon'ble Apex

Court in Atul Shukla's case (supra). OA No. 81 of 2015 : 6 :

5. The learned counsel submitted that it was a legitimate right of the applicant to be considered for the post of Air Commodore and denial of such consideration is illegal. The learned counsel therefore prayed that

Paras 4(b) and 6 of Annexure A1 be set aside and the applicant be declared eligible for consideration to the post of Air Commodore from the date of his promotion to the cadre of Group Captain. The learned counsel also prayed that all promotions made to the rank of Air

Commodore be reviewed and the applicant's seniority be protected when promoted as Air Commodore.

6. Sri KM Jamaludheen, the learned Senior Panel

Counsel for the respondents submitted that the applicant had initially filed OA.No.420/2015 before the Principal

Bench of the Armed Forces Tribunal at New Delhi seeking the same reliefs (Annexure R1) and when it came up for hearing, observing that OA was not likely to be admitted, the applicant had withdrawn the petition with liberty to file a fresh one (Annexure R2). However, these facts OA No. 81 of 2015 : 7 : had been suppressed by the applicant. Learned counsel further submitted that in his earlier OA also, viz

OA.No.58/2013, the applicant had challenged the MOD letter on restructuring of officer cadre of Air Force

(Annexure A1), but had only contested the provision regarding disparity in superannuation ages of Group

Captain (TS) and Group Captain (Select) and had made no challenges to the other provisions of the policy letter.

The learned counsel therefore contended that the present OA was barred by the operation of the principle of res judicata and the applicant cannot raise piecemeal challenge to the above policy.

7. The learned counsel further submitted that the relief now being claimed by the applicant had not been covered by the judgment of the Hon'ble Apex Court in

Atul Shukla (supra). The Apex Court had only examined the issue of disparity in superannuation ages and held that the Group Captains (TS) were entitled to continue in service upto 54 and 57 years depending upon whether OA No. 81 of 2015 : 8 : they are serving in the flying or ground duty branch of the Air Force. Therefore the observations of the Apex

Court in the judgment were in the nature of 'obiter dictum' and were essentially confined to the consideration of the issue of age of superannuation of

Group Captains (TS).

8. The learned counsel further submitted that the rank of Group Captain (TS) is granted only after an officer of the rank of Wing fails to make the grade for promotion to Group Captain (Select) on three occasions. After the third time the Officer becomes permanently passed over and is not eligible for any further promotion in his career. Therefore an officer who failed to get promoted to the rank of Group Captain

(Select) and was only granted the rank of Group Captain

(TS) on completion of 26 years of service has no right to seek promotion to the rank of Air Commodore as he is on a different footing from the officers who had been promoted as Group Captain by selection. The OA No. 81 of 2015 : 9 : promotion policy for Air ranks is based on the principle of merit-cum-seniority and is meant to introduce a merit based system for promotion at senior levels with due consideration to seniority. If Group Captain (TS) are considered for promotion to Air Commodore, the learned counsel submitted that it would bring in mediocrity as those found unfit for selection to Group Captain, would be considered for higher rank at the cost of those who were select listed as Group Captain.

9. The learned counsel submitted that the concept of equality cannot be claimed by the applicant vis-a-vis

Group Captain (Select) for purpose of promotion. The concept of equality pre-supposes that likes are to be treated in like manner. The Hon'ble Apex Court in the case of Ganga Ram & Ors. vs. Union of India &

Ors., 1970 (1) SCC 377 observed that mere production of inequality is not enough to attract the constitutional inhibition because every classification is likely in some degree to produce some inequality. The Apex Court OA No. 81 of 2015 : 10 : held that the State is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in service. The learned counsel also submitted that in Kishori Mohanlal Bakshi vs Union of India, AIR 1962 SC 1139, the Apex Court had considered the aspect of Article 16 of the Constitution and had clearly held that Article 16 does not forbid the creation of different grades in the Government services and in that case had held that Article 16 had not been violated merely because Class II Income Tax Officers were not eligible for promotion to higher posts of

Commissioners.

10. The learned counsel further submitted that

Group Captain (TS) are held against the vacancy of Wing

Commander and Group Captain (Select) are against specific vacancies of Group Captains. The Government of India, Ministry of Defence letter promulgating the rank of Group Captain (TS) clearly says that they would be junior to substantive Group Captain (Select) as well OA No. 81 of 2015 : 11 : as acting Group Captains (Select). The Officers of the administrative branch who were considered and promoted to the rank of Air Commodore were those holding the rank of Group Captain (Select) and were qualified for consideration and promotion. As the applicant had been passed over permanently on completion of his three chances and had only been granted Group Captain Rank on time scale basis, he was not eligible for consideration to the rank of Air

Commodore.

11. Heard rival submissions and perused records.

12. O.A.Nos.58/2013 and 15/2015 are tacked on along with this OA for our perusal. During the course of arguments, the learned Senior Panel Counsel for the respondents was assisted by Group Captain J.Rajendra

VSM, Joint Judge Advocate (Air) and Group

Captain Anand Sondhi VSM, DPO-5, both from Air

Headquarters. OA No. 81 of 2015 : 12 :

13. It is observed that in the earlier OA, viz,

OA.No.58/2013, the applicant had essentially challenged

Annexures A1 and A2 in the said OA, wherein Annexure

A1 was the Air Headquarters HR Policy on grant of substantive promotion upto the rank of Wing

Commander and Group Captain (TS) and Annexure A2 was the Certificate of Service issued to the applicant which indicated amongst other data, his date of retirement on attaining 54 years of age. The applicant contended that he was entitled to continue in service upto the age of 57 years in view of the decision of the

Principal Bench of this Tribunal in T.A. No.385 of

2009, Group Captain Atul Shukla vs. Union of India

& Ors. and other connected cases wherein it was held that all officers of the rank of Group Captain (TS) will be entitled to continue upto the age of 57 years.

14. In the present OA the applicant is challenging the policy letter issued by the Ministry of Defence on 12

March 2005 (Annexure A1) to the extent of setting aside OA No. 81 of 2015 : 13 :

Sub-para 4(b) and Para 6 of the letter. Sub-Para 4(b) specifies as to who among (TS) would be ineligible for consideration to the rank of Group

Captain (Select). Para 6 amplifies the aspect of sanctions and precedence of officers holding the rank of

Group Captain (TS). The applicant has further sought that he ought to be considered for the post of Air

Commodore from the date of his promotion to the cadre of Group Captain.

15. The applicant has contended that as the

Hon'ble Apex Court in Atul Shukla (supra) held that

Group Captain (TS) and Group Captain (Select) after promotion to the cadre cannot be treated differently, the clauses in the policy Letter at Annexure A1, being challenged by him, was in violation of the Apex Court decision. Further the said ruling also makes him eligible for consideration to the rank of Air Commodore.

It is observed that the Hon'ble Apex Court in the said case was considering an appeal against the decision of OA No. 81 of 2015 : 14 : the Principal Bench of this Tribunal which had held that retirement ages of Group Captain (Select) and (Time

Scale) cannot be different. While a number of issues such as recommendations of AVS Committee, mode of selection, employment on promotion and rationale for the rank were discussed, they were all with respect to difference in retirement ages. The Apex court had held as follows:

"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 . 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 OA No. 81 of 2015 : 15 :

the force...... 46. Suffice it to say that the basis for classification in question for purposes of age of superannuation which the appellant has projected is much too tenuous to be accepted as a valid basis for giving to the Time Scale Officers a treatment different from the one given to the Select Officers. We are also of the view that concerns arising from a parity in the retirement age of Time Scale and Select Officers too are more perceptional than real. At any rate, such concerns remain to be substantiated on the basis of any empirical data. The upshot of the above discussion is that the classification made by the Government of India for purposes of different retirement age for Time Scale Officers and Select Officers does not stand scrutiny on the touchstone of Articles 14 and 16 of the Constitution as rightly held by the Tribunal.

16. Therefore, in our view, the only issue examined by the Hon'ble Apex Court in Atul Shukla

(supra) was whether differentiation can be made in retirement age of Group Captain (TS) and Group Captain

(Select). None of the other contentions now being raised by the applicant were looked into by the Apex OA No. 81 of 2015 : 16 :

Court in the said case.

17. The learned counsel for the respondents submitted that the issues being raised by the applicant are barred by 'res judicata'. Section 11 of the Code of

Civil Procedure and the aspect of a subsequent proceeding being barred by res judicata were looked into by the Hon'ble Apex Court in Jaswant Singh &

Anr vs. Custodian of Evacuee Property, New Delhi

(1985) 3 SCC 648 and had held as follows:

“14. . . This ground is based on the principles underlying section 11 of the Code of Civil Procedure, 1908. That section provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation IV to OA No. 81 of 2015 : 17 :

that section provides that any matter which might or ought to have been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit. It is well settled that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision”...... A cause of action for a proceeding has no relation whatever to the defence which may be set up, nor does it depend upon the character of the relief prayed for by the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application as the case may be as the cause of action or in the other words to the media upon which the plaintiff or the applicant asks the court to arrive at a conclusion in his favour. In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact OA No. 81 of 2015 : 18 :

founded upon the same cause of action which was the foundation of the former suit or proceedings.. . . .”

18. Based on the principles enunciated by the

Hon'ble Apex Court in Jaswant Singh (supra), in order to establish that res judicata would apply, it would be necessary to examine the cause of action as well as whether the applicant had an opportunity of getting relief which he is now seeking in the former proceedings. As already brought out, in his earlier OA.No.58/2013, the applicant had challenged the HR Policy of the Air Force in fixing the age of superannuation of Group Captain

(TS), (Annexure A1 in the said OA). In the current OA he has challenged two of the sections in the Government policy on re-structuring the officer cadre of the Air Force

(Annexure A1) and that, as a Group Captain (TS) he should be considered for promotion to the rank of Air

Commodore. OA No. 81 of 2015 : 19 :

19. It is observed that the HR Policy of Air Force which was challenged earlier, was a consequence of the

Government policy letter by which the rank of Group

Captain (TS) was created and is under challenge in this

OA. In essence the cause of action was the Government letter and based on Para 7 of the letter, criteria and procedure for grant of substantive rank to the rank of

Group Captain (TS) was promulgated by Air

Headquarters through a HR Policy. It is observed that an initial HR Policy was issued in July 2006, which was subsequently superseded by the letter of January 2009 which was challenged by the applicant in his earlier OA.

It is also observed that while the applicant had not attached the Government letter at Annexure A1 now being challenged by him in his earlier OA, the respondents in their reply statement to that OA had placed as Annexure R2 the said Government letter. It is also observed that the applicant had then been given the opportunity to file a rejoinder and while no rejoinder was filed, the learned counsel for the applicant had sought OA No. 81 of 2015 : 20 : time to seek clarification from the applicant regarding rank pay admissible to the Group Captain (TS) according to the Government letter. Therefore it is evident that the applicant had an opportunity to examine and challenge issues or policy matters that were contained in the

Government letter now under challenge while

OA.No.58/2013 was being heard. The applicant at that stage had not challenged any of the other clauses in the letter despite having the opportunity to do so and only questioned the age of superannuation. It is further observed that the entire Government letter has also been quoted in the orders in OA.No.58/2013 delivered on 10

January 2014. The applicant therefore also had an opportunity to seek a review after pronouncement of the order on the issues now being questioned, but no review was sought.

20. Therefore, when the above issues are examined in the light of the principles enunciated by the Hon'ble

Apex Court in Jaswant Singh (supra), it clearly OA No. 81 of 2015 : 21 : emerges that not only was the basic cause of action same ie the Government letter now under challenge and also that the applicant had an opportunity to contest any of the conditions laid down in the letter, more so as the same had been produced by the respondents in

OA.No.58/2013. Therefore, in our view, the principle of res judicata would apply as regards challenging any of the clauses or conditions specified in the said

Government letter. While the issue of Group Captain

(TS) being considered for the rank of Air Commodore, has not been spelt out per se either in the Government letter at Annexure A1 nor in the HR Policy of Air

Headquarters, in our view, consideration to the rank of

Air Commodore is intrinsically linked to selection to rank of Group Captain. An Officer who does not merit selection to rank of Group Captain cannot be considered for promotion to a higher rank. Further, in accordance with the Government policy, which created the rank of

Group Captain (TS), they are junior to all Group Captain

(Select) and are held against the vacancies of Wing OA No. 81 of 2015 : 22 :

Commander. We have already observed that the policy cannot be challenged as it is covered by res judicata.

Notwithstanding the above, the issue is analysed further in succeeding paragraphs.

21. Prior to implementation of the AVS Committee recommendations and promulgation of the

Government order at Annexure A1, restructuring the

Officer cadre of the Air Force, there was no rank of

Group Captain(TS). Therefore, the respondents had to promulgate fresh policy directives/terms and conditions to incorporate the new rank in the Air Force structure. It was done through the letter at Annexure A1 and while doing so, it was open to the respondents to modify policies as necessary.

22. On the issue of the Government making changes to policies, the Hon'ble Apex Court in Col

A.S.Sangwan vs. Union of India, 1980 (Supp) SCC

559 held that in the absence of any statutory rules, OA No. 81 of 2015 : 23 : policy decision can be changed by the Government at any time and a new policy can be made, provided it is not arbitrary. The Hon'ble Apex held as follows:

“4. The policy statement of 1964 was, as we have earlier stated, not issued under any rules or regulations or statute. The executive power of the Union of India, when it is not trammelled by any statute or rule, is wide and pursuant to its power it can make executive policy. Indeed, in the strategic and sensitive area of defence, Courts should be cautious although Courts are not powerless...... A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and re-adjust it according to the compulsions of circumstances and the imperatives of national considerations. We cannot, as Court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. In this view, we agree with the submission of the Union of India that there is no bar to its changing the policy formulated in 1964 if there are good and weighty reasons for doing so. We are far from suggesting that a new policy should be made merely because of the lapse of time, nor are we inclined to suggest the manner OA No. 81 of 2015 : 24 :

in which such a policy should be shaped. It is entirely within the reasonable discretion of the Union of India.. . ..”

23. The applicant has contended that the policy is in contravention of the Defence Service Regulations for the Air Force. The respondents have submitted that the regulations are not statutory in nature. As seen from the preface of the same (Annexure A5) “Should questions arise regarding their correct interpretation of the regulations, the final decision in the matter shall rest with the Government of India.” It is also specified that the regulations do not supersede or cancel any administrative and departmental regulations, orders and instructions which were in force at the time of promulgation which govern certain special provisions.

We have observed earlier that the rank of Group Captain

(TS) was not envisaged at the time of promulgation of the Regulations for the Air Force and that it was within the purview of the Government to issue amended policies as necessary. OA No. 81 of 2015 : 25 :

24. Defence Service Regulations for the Air Force,

Part I, Chapter V deals with promotions of officers. As brought out, the Regulations having been promulgated in January 1968, does not indicate the rank of Group

Captain (TS). Officers were promoted upto the rank of

Squadron Leader by time and thereafter by selection to the rank of Wing Commander and higher ranks. In accordance with Para 115 of the Regulations, substantive promotion to the rank of Wing Commander and above to fill authorised vacancies has to be by selection subject to specified conditions. While Para 115 lays down conditions for promotion of general duties branch, Para 125 specifies conditions for promotion of ground duties branches other than medical and dental and are similar in nature. Para 114 specifies conditions for promotion from to Wing

Commander (TS) and envisages that a Squadron Leader who was not promoted as substantive Wing Commander

(Select), will be eligible for promotion to the substantive rank of Wing Commander on time scale basis, based on OA No. 81 of 2015 : 26 : the specified conditions. It has been further specified that officers promoted as Wing Commander (TS) will be borne on a separate list and will not be shown against regular vacancies of Wing . Para 124 deals with promotion to Wing Commander (TS) for ground duties branches other than medical and dental and specifies that conditions would be similar to those in Para

114.

25. On promulgation of the Government policy letter at Annexure A1, officers upto the rank of Wing

Commander were to be promoted by time subject to meeting specified criteria and thereafter by selection to the rank of Group Captain and higher ranks. So prior to the promulgation of the new policy, once an officer was passed over for selection to the rank of Wing

Commander after consideration on three occasions, he became permanently passed over. It implied that he was no longer eligible for consideration for any select rank promotions, but could be promoted to Wing Commander OA No. 81 of 2015 : 27 :

(TS) on meeting specified criteria which included completion of 24 years of commissioned service. After the introduction of the new policy of time bound promotions upto the rank of Wing Commander, officers were considered for promotion to the rank of Group

Captain (Select) in accordance with Air Headquarters HR

Policy in force. The current HR Policy, Air HQ/C

98824/1/PO-5 dated 20 September 2013 on the subject which superseded the earlier policy of July 2008, was placed before us by the respondents. According to the policy, Officers were to be considered for promotion to

Group Captain (Select) three times by the Promotion

Boards and those who missed selection even after three attempts were deemed to be permanently passed over.

26. In our view, therefore, with the introduction of time bound promotions upto the rank of Wing

Commander and the first selection being at the Group

Captain level, any officer who did not merit selection to the rank of Group Captain after being considered by OA No. 81 of 2015 : 28 :

Promotion Boards on three occasions was permanently passed over and would be no longer eligible to be considered for further select promotions. However in accordance with the Government policy at Annexure A1, he would be eligible for time scale promotion to the rank of Group Captain on completion of 26 years, provided other specified conditions were met.

27. It is also observed from the HR Policy for promotion Group Captain (Select) that due weightage is being given for seniority, in that an officer in his second chance gets a weightage of one mark and in his third chance a weightage of two marks. It is further observed that among other specified performance criteria, the average report status for five years preceding to the selection Board should be 7.0 or above. On the other hand, the HR Policy for promotion to the rank of Group

Captain (TS) which was challenged by the applicant in his earlier OA, specifies among other issues an aggregate grading of 18 in the preceding three year's OA No. 81 of 2015 : 29 : reports with a grading of at least 6 in each of the reports. It is therefore evident that much higher standards have been specified for promotion to the rank of Group Captain on selection basis vis-a-vis attaining the rank on time scale basis.

28. A Constitution Bench of the Hon'ble Apex

Court examined the aspect of equality of opportunity in matters relating to employment in Ganga Ram (supra) and held:

“2. ….....The equality of opportunity in the matter of services undoubtedly takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription of reasonable rules for selection and promotion, applicable to all members of a classified group. Mere production of inequality is not enough to attract the constitutional inhibition because every classification is likely in some degree to produce some inequality. The State is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and classification need not be scientifically perfect OA No. 81 of 2015 : 30 :

or logically complete. In applying the wide language of Articles 14 and 16 to concrete cases a doctrinaire approach should be avoided and the matter considered in a practical way, of course, without whittling down the equality clauses. The classification, in order to be outside the vise of inequality, must, however, be founded on an intelligible differentia which on rational grounds distinguishes persons grouped together from those left out. The differences which warrant a classification must be real and substantial and must bear a just and reasonable relation to the object sought to be achieved...... ”

29. Even in Atul Shukla (supra) while it was held that no differentiation can be made in the age of superannuation, it was also held that classification could pass the test of Article 14 if there is an intelligible differentia between those who are grouped together and those who are kept out of the group. The Apex Court held as follows:

“16.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 OA No. 81 of 2015 : 31 :

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 Sarkar (AIR 1952 SC 75) down to the very recent pronouncement of this Court in Subramanian Swamy v. CBI (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.

17. Speaking for the Court, Das J., in Anwar Ali case (supra) summed up the essence of what is permissible under Article 14 in the following words: (AIR p.93, para 54)

“54...... 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 OA No. 81 of 2015 : 32 :

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”.

30. As observed by the Apex Court, Article 14 of the Constitution permits reasonable classification, provided it is not arbitrary and is rationale. We have already observed that there are specified standards laid down for selection to the rank of Group Captain which are much higher than those for promotion to the rank of

Group Captain by time. Policy also provides that an officer becomes permanently passed over once he had three chances for selection. Hence there is an intelligible differentia on the aspect of further promotion between an officer who attains the rank of Group Captain by selection vis-a-vis one who attains it on time scale basis. OA No. 81 of 2015 : 33 :

We are therefore of the considered view that an officer

promoted Group Captain on Time Scale like the

applicant, is not eligible for consideration to the rank of

Air Commodore, which is to be from officers who were

promoted to the rank of Group Captain on selection

basis. We have also held that all policy directives given

in the Government letter at Annexure A1, except the age

of superannuation set aside by the Hon'ble Apex Court

can no more be challenged in view of the principle of res

judicata.

31. In view of the foregoing, the Original Application

is devoid of any merit and is accordingly dismissed.

32. There will be no order as to costs.

33. Issue free copy to the parties.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

PTO OA No. 81 of 2015 : 34 :

34. After pronouncement of the order, learned

counsel for the applicant requested for leave to appeal

to the Supreme Court. In our opinion, no question of law

of general public importance is involved in the matter.

Hence leave requested for is refused.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

(true copy) an

Prl.Pvt.Secretary