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
IN
S.B. CIVIL WRIT PETITION NO. 441/2005
.
DATE OF
JUDGMENT :
17th AUGUST , 2010.
PRESENT
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
Vs.
Union of India
(UOI) and Ors.
Hon'ble Judges:
Lokeshwar Singh
Panta, J and B. Sudershan Reddy, J
JUDGMENT
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.
Xxx xxx xxx
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.
Xxxxxxx xxxxxx xxxxxxxx
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.
xxxxxxxx xxxxxxx xxxxxx
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.
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