Monday, 21 October 2013
Updated AVSC - AFT Jaipur Judgment in Sqn Ldr C Singh Vs UoI & Hon'ble Supreme Court in R S Kshirsagar Vs UoI
IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR.
J U D G M E N T
Sq Ldr C.Singh v. UNION OF INDIA & OTHERS.
TRANSFER APPLICATION NO. 177 OF 2010
S.B. CIVIL WRIT PETITION NO. 441/2005
DATE OF JUDGMENT : 17th AUGUST , 2010.
HON’BLE MR.JUSTICE BHANWAROO KHAN(J)
HON’BLE Lt Gen SUSHEEL GUPTA (A)
Sq Ldr C.Singh, Applicant present in person.
Mr. Sanjay Pareek, for the non - applicants.
BY THE TRIBUNAL (PER HON’BLE Lt Gen SUSHEEL GUPTA) :
The applicant, Squadron Leader C. Singh had filed a writ petition in the High Court of Judicature for Rajasthan at Jodhpur praying for grant of promotion to the rank of Wing Commander and consequential retrial benefits. The writ petition was transferred to this Tribunal under Sec.34 of the Armed Forces Tribunals Act, 2007 and the same has been registered as Transfer Application No. 144 of 2005
2. Brief facts of the case are, that the applicant was enrolled in Indian Air Force on 21.1.1966 and served in all ranks till the post of Junior Warrant Officer and was commissioned in the rank of Flying Officer on 17.12.1988. The applicant was promoted to the rank of Flight Lieutenant on completion of 6 years service on 3.1.1994 and was promoted to the rank of Squadron Leader on 14.1.2000 on completion of 12 years service. On attaining the age of 57 years, the applicant was superannuated from Indian Air Force on 31.8.2004 and was thereafter placed on regular Air Force Reserve till 31.8.2006.
3. A Committee presided by Mr. Ajay Vikram Singh, the then Defence Secretary, was constituted for making recommendations regarding the promotions to the Commissioned Officers in the Defence Services i.e. Army, Navy and Air Force. The Central Government had accorded approval for implementation of the recommendations of this Committee as pertaining to the Air Force vide their letter No. 4(2)/US(L)/D(Air -III)/04 dated 12.3.2005 with effect from 16.12.2004. Since the applicant has proceeded on retirement on 31.8.2004 on attaining the age of 57 years prior to implementation of the said Committee recommendation, he could not be promoted to the rank of Wing Commander.
4. Aggrieved by this denial of promotion, the applicant filed a representation addressed to the Chief of Air Staff on 23.6.2005, which was rejected by the Air Headquarters vide their letter dated
12.7.2005. The grounds given for rejection was that the Ministry of Defence has directed to grant substantive promotions on completion of specified reckonable commissioned service and on fulfilling the qualitative requirements specified. Since the policy came into force w.e.f. 16.12.2004, the benefits of this, could not be provided to the applicant as he had superannuated on 31.8.2004. Aggrieved by this decision of the Chief of Air Staff, the applicant had filed this writ petition in the High Court of Judicature for Rajasthan at Jodhpur.
5. The applicant, in his written submission, has contended that the Sub -Committee, which was formed for upgrading the ranks in the Indian Air Force was consequent to the recommendation of 5th Central Pay Commission, which was effective from 1.1.1996. Hence, applicability of the recommendation of the said Committee should be with effect from the same date. The applicant has also contended that if ante-date seniority of two years given to him for the purpose of pay was counted, he had served 17 years and 8 months as an officer and since he had completed the requisite criteria of 13 years of service eligible for promotion to the rank of Wing Commander, he should be granted the rank notionally for the purpose of retrial benefits.
In his opinion, laying down a cut -off date was unjustified and without any rational to treat the same Group of Officers differently for promotion.
6. The applicant has stated that on retirement, he was transferred to Regular Air Force Reserve by an order dated 16.11.2004. In view of this, though retired on 31.8.2004, he was still governed by statutory orders, being a member of Regular Air Force Reserve till 31.8.2006. Thus, denial of promotion during the intervening period, after his retirement till he was on the roll of
Regular Air Force Reserve is arbitrary, illegal, and discriminatory. This discrimination continues throughout, even after retirement because if he had been granted promotion as per authorization, he would also be eligible for retrial benefits which are being denied to him now.
7. The respondents, in their reply, have stated that the committee presided by Mr. Ajay Vikram Singh was constituted in the year 2004 for making recommendation regarding promotions to the Commissioned Officers in the Defence Services. This Committee submitted their report to the Central Government who accorded approval for implementation to the Chief of Air Staff
vide their letter dated 12.3.2005. Para 5 of the said letter stated that the officers not promoted to the rank of Group Captain by selection may be granted substantive rank of Group Captain (Time Scale) irrespective of vacancies provided they are considered fit in all other respects. The terms and conditions governing the rank of Group Captain (Time Scale), to include pay scale, rank pay, other allowances, age of superannuation and medical criteria have also been spelt out in the
said letter. Para 10 of the said letter states that these orders will take effect from 16.12.2004. Since the applicant has retired from active service on 31.8.2004, the provisions of the said letter was not applicable to him. There is no doubt that the officer was transferred to Regular Air Force Reserve on retirement till 31.8.2006. However, the officers who have been placed in Air Force Reserve are not in regular service and cannot be granted benefits of promotion if they had already superannuated. Since the applicant was not a member of Regular Air Force after retirement, the provision of Government of India letter dated 12.3.2005 could not be applied to him. All officers who were serving as on 16.12.2004 and who met the criteria laid down for promotion were promoted.
8. The applicant, pleading on his own behalf emphasized the point that the officer continued to be on Regular Air Force Reserve till 31.8.2006 and hence he was very much entitled to get
promotional benefits as given vide Ministry of Defence letter dated 12.3.2005 also, since he was subjected to the Air Force Act during the period of his service as Regular Air Force Reserve, he should be entitled to all the benefits as were entitled to Regular Air Force Officers.
9. The applicant has also stated that laying down a date for promotion as 16.12.2004 was
arbitrary and unconstitutional. A separate class of officers cannot be created by arbitrarily laying down a cut off date, thereby, providing benefits only to a particular class of officers and denying them to a few. In support of his arguments, he placed reliance on the decisions in the case of D.S.Nakara and others v. Union of India (AIR 1983 SC 130), Rajinder singh Patpatia v. The
Bhakra Beas Management Board and others (1999 (5) SLR 515), State of Punjab v. Justice S.S.Dewan (AIR 1997 SC 2388) and State of Kerala and another v. P.V. Neelakandan Nair and others (2005(34) AIC (SC) 285)
10. Mr. Sanjay Pareek, learned counsel for the non-applicants has argued that Ajay Vikram Singh Committee was an independent Committee totally de-linked from the Fifth Pay Commission. He has high-lighted the issue that the Government of India, Ministry of
Defence letter dated 12.3.2005 was absolutely unambiguous that the provisions of the said
letter were to take effect w.e.f. 16.12.2004. All those officers, who were in service on 16.12.2004 were promoted based on the criteria laid down. The applicant had proceeded on superannuation on 31.8.2004 and hence could not be promoted to the next rank after retirement.
11. As regards the applicability of Air Force Act, 1950, Sec. 26 of the Reserve and Auxiliary Air Force Act,1952 lays down the conditions of applicability. It clearly states that “Every member of an Air Force Reserve or the Auxiliary Air Force shall, when called up for training, medical examination or for service, under the Rules made thereunder in the same manner as a person belonging to Air Force and holding the same rank is subject to the said Act and Rules and
shall continue to be so subject until duly released from such training, medical examination or service, as the case may be.” Thus, it is very clear that the applicant is not governed by Air Force Act, 1950 after retirement until he meets the applicability conditions as spelt out above. The applicant was not called for any of the duties during the period of his reserve from 31.8.2004 to 24.8.2006.
12. The judgments cited by the applicant are of no avail as they are not relevant in the case in
question, thus, he cannot get any relief based on the judgment. It is clear that the applicant had retired from active service on 31.8.2004 and promotions as per Government of India letter dated 3.2.2005 was to be effected only from 16.12.2004. Since the applicant had already superannuated prior to issuance of the letter, question of promoting him to the higher rank after retirement even notionally does not arise.
13. With the above observations, the Transfer Application is dismissed.
(Lt Gen Susheel Gupta) A (Bhanwaroo Khan) J.
* * * * *
IN THE SUPREME COURT OF INDIA
Civil Appeal No. ... of 2009 (Arising out of SLP ( C ) No. 24003 of 2007)
Decided On: 16.03.2009
Ravindera Sadashio Kshirsagar
Union of India (UOI) and Ors.
Lokeshwar Singh Panta, J and B. Sudershan Reddy, J
B. Sudershan Reddy, J.
1. Leave granted.
2. This appeal arises from the judgment and order dated 19.10.2007 of the High Court of Judicature at Bombay dismissing the Writ Petition No. 1503 of 2006 filed by the appellant herein.
3. Brief facts needed for disposal of this appeal are as under:
4. The appellant joined the Indian Navy on 1.1.1978 as a Commissioned Officer and is at present serving in the rank of Commander (Time Scale) w.e.f. 1.1.1999.
In or about May, 2001 the Army Headquarters formulated certain proposals and forwarded them to the Ministry of Defence drawing attention to certain shortcomings and imbalances in the organizational structure of the Officer Cadre. After examining the proposals so made, the Ministry of Defence constituted a Committee in July, 2001 under the Chairmanship of the then Secretary, Ministry of Non-Conventional Energy Sources, Shri Ajai Vikram Singh (hereinafter referred to as "the AVS Committee") to examine the issues and make recommendations within three months. However, the AVS Committee submitted its report to the Ministry of Defence in January, 2003. The main issue considered by the AVS Committee was Cadre stagnation and mobility. (emphasis supplied) The AVS Committee after extensive deliberations inter alia recommended: -
(a) to grant time based rank of Lieutenant Colonel at 13 years of service as per the criteria drawn by the Army Headquarters; (b) corresponding reduction in age profile of junior officers through grant of substantive ranks of Captains and Majors early to make it compatible with the overall aim of brining down the age profile of officers. The Committee also recommended that the rank of Colonel (Time Scale) be granted at 26 years of service. The Military Secretary Branch, Army Headquarters, New Delhi issued guidelines for implementation of the recommendations so made by the AVS Committee on 21.12.2004. The Army and Air Force duly promoted all its Commissioned Officers who had completed 26 years reckonable commissioned service as on 16.12.2004 in compliance of the recommendations made by the AVS Committee.
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11. We must make it clear at the threshold that we are not impressed by the contention that the Navy under the garb of `service specific requirements' rendered the entire policy and the AVS report which was accepted by the government of India nugatory. The report itself makes it explicitly clear that its primary focus was on the restructuring of the officers' cadre of the Army, while making it applicable to the other two services including the Navy which has to work out its service specific requirements including the additional vacancies.
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15. Whether the Communications dated 14.3.2005 and 2.11.2005 have the effect of denying the chance of promotion to the Commander (Time Scale)? Whether they are violative of Article 14 of the Constitution of India?
16. It appears from the material on record that the appellant like most other Commanders will retire before they can be considered for the promotion to the rank of Captain (Time Scale). No Commander (Time Scale) will be eligible for consideration till 2015 by which time most of them would have retired. It is, however, explained that about 420 Officers (130 erstwhile Commanders (Time Scale)) and 290 `N' graded Lt. Commanders (Lt. Commanders who have not been select listed for Commanders) would continue to be eligible for promotion. It is further explained that para 3 (a) of the Government letter dated 11.3.2005 was aimed to bring the implementation of the AVS Report in consonance with Regulation.
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In the circumstances, the High Court came to the right conclusion to repel the submission based on Article 14 of the Constitution of India. No other contention is urged.
17. For the aforesaid reasons, we find no merit in this appeal and the same is, accordingly dismissed.