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 ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: GROUP CAPTAIN 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 Commodore from the date of his promotion as Group Captain. 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 Air Commodore. The respondents were still following the recommendations of the AVS Committee by which restructuring of the officer cadre of the Air Force 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 Commander 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.