# _(2014) 14 S.C.R. 1151 UNION OF INDIA & ORS v. ATULSHUKLA

- **Citation:** [2014] 14 S.C.R. 1151
- **Court:** Supreme Court of India
- **Decided:** 2014-09-24
- **Case number:** Civil Appeal Nos. 4717-4719 of2013
- **Bench:** T. S. Thakur, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2014-14-s-c-r-1151-union-of-india-ors-v-atulshukla-29672
- **Pages:** 37

## Headnote

Service Law- Retirement age - Classification - Indian
Air Force - Different retirement age for Time Scale (TS)
Officers and Select Officers -Validity- Held: Difference in C
employability of Time Scale officers vis-a-vis Select officers
is more illusory than real - 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 D
an officer legally impermissible, such deployment remains
an administrative prerogative of the competent authority -
Classification made by the Government of India for purposes
of different retirement age for Time Scale Officers and Select E
Officers does not stand scrutiny on the touchstone of Arts, 14
and 16 of the Constitution - Constitution of India - Arts. 14
and 16.
Constitution of India -Art. 14 - Content and sweep ofCon stitutional validity of a classification -
Tests for F
determination - Held: Art. 14 prohibits class legislation and
not reasonable classification - A classification passes the
test of Art. 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 G
differentia and the object of the legislation.
Dismissing the appeals, the Court
HELD: 1.1. In the case at hand, the difference in
employability of Group Captains (TS) is not borne out to
justify the classification made by the Government. It is H
1151
'
1152
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A evident from the particulars given by the respondents
that several Group Captains (TS) have held
appointments which are also held by Group Captains
(Select). If that be so, the difference in the employability
of Time Scale officers vis-a~vis select officers appears
8 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
c 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
o administrative prerogative of the competent authority.
[Para 37][1186-H; 1187-A-D]
1.2. 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
E valid basis for giving to the Time. Scale Officers a
treatment different from the one given to the Select
Officers. Also, 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
F remain to be substantiated on the basis of any empirical
data. 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 ·
G as rightly held by the Tribunal. [Para 38][1187-D-G]
H
State of West Bengal v. Anwar Ali AIR 1952 SC
75 : 1952 SCR 284 ; Dr. Subramanian Swamy v.
Director, CBI and Anr. AIR 2014 SC 2140 : 2014
UNION OF INDIA & ORS. v. ATUL SHUKLA
1153
(8) SCC 682 ; Shri Ram Krishna Dalmia v. Shri .
A
Justice S.R. Tendolkar& Ors. AIR 1958 SC 538:
1959 SCR 279 ; Lachhman Das v. State of Punjab
AIR 1963 SC 222: 1963 SCR 353; E.P. Royappa
v. State of Tamil Nadu (1974) 4 SCC 3: 1974 (2)
SCR 348 ; Maneka Gandhi v. Union of India
B
(1978) 1SGC248: 1978 (2) SCR 621 ; Col. A.S.
Iyer& Ors. v. Bala Subramanyan & Ors.(1980) 1
SCC 634 : 1980 (1) SCR 1036 ; Air India v.
Nargesh Mirza §Jnd Ors. (1981) 4 SCC 335 : 1982
(1) SCR 438 and Kamlakar and Ors. v. Union of
C
India & Ors. (1

## Text

_Characters 0–39,898 of 69,256. This is a partial read: ask again with offset=39898 for what follows._

_(2014) 14 S.C.R. 1151
UNION OF INDIA & ORS.
A
v.
ATULSHUKLA
(Civil Appeal Nos. 4717-4719 of2013)
SEPTEMBER 24, 2014
B
[T. S. THAKUR AND C. NAGAPPAN, JJ.]
Service Law- Retirement age - Classification - Indian
Air Force - Different retirement age for Time Scale (TS)
Officers and Select Officers -Validity- Held: Difference in C
employability of Time Scale officers vis-a-vis Select officers
is more illusory than real - 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 D
an officer legally impermissible, such deployment remains
an administrative prerogative of the competent authority -
Classification made by the Government of India for purposes
of different retirement age for Time Scale Officers and Select E
Officers does not stand scrutiny on the touchstone of Arts, 14
and 16 of the Constitution - Constitution of India - Arts. 14
and 16.
Constitution of India -Art. 14 - Content and sweep ofCon stitutional validity of a classification -
Tests for F
determination - Held: Art. 14 prohibits class legislation and
not reasonable classification - A classification passes the
test of Art. 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 G
differentia and the object of the legislation.
Dismissing the appeals, the Court
HELD: 1.1. In the case at hand, the difference in
employability of Group Captains (TS) is not borne out to
justify the classification made by the Government. It is H
1151
'
1152
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A evident from the particulars given by the respondents
that several Group Captains (TS) have held
appointments which are also held by Group Captains
(Select). If that be so, the difference in the employability
of Time Scale officers vis-a~vis select officers appears
8 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
c 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
o administrative prerogative of the competent authority.
[Para 37][1186-H; 1187-A-D]
1.2. 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
E valid basis for giving to the Time. Scale Officers a
treatment different from the one given to the Select
Officers. Also, 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
F remain to be substantiated on the basis of any empirical
data. 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 ·
G as rightly held by the Tribunal. [Para 38][1187-D-G]
H
State of West Bengal v. Anwar Ali AIR 1952 SC
75 : 1952 SCR 284 ; Dr. Subramanian Swamy v.
Director, CBI and Anr. AIR 2014 SC 2140 : 2014
UNION OF INDIA & ORS. v. ATUL SHUKLA
1153
(8) SCC 682 ; Shri Ram Krishna Dalmia v. Shri .
A
Justice S.R. Tendolkar& Ors. AIR 1958 SC 538:
1959 SCR 279 ; Lachhman Das v. State of Punjab
AIR 1963 SC 222: 1963 SCR 353; E.P. Royappa
v. State of Tamil Nadu (1974) 4 SCC 3: 1974 (2)
SCR 348 ; Maneka Gandhi v. Union of India
B
(1978) 1SGC248: 1978 (2) SCR 621 ; Col. A.S.
Iyer& Ors. v. Bala Subramanyan & Ors.(1980) 1
SCC 634 : 1980 (1) SCR 1036 ; Air India v.
Nargesh Mirza §Jnd Ors. (1981) 4 SCC 335 : 1982
(1) SCR 438 and Kamlakar and Ors. v. Union of
C
India & Ors. (1999) 4 SCC 756- referred to.
CASE LAW REFERENCE
1952 SCR 284
referred to
Para 10
2014 (8) sec 682
referred fo
Para 10
D
1959 SCR 279
referred to
Para 11
1963 SCR 353
referred to
Para 12
1974 (2) SCR 348
referred to
Para 13
1978 (2) SCR 621
referred to
Para 14
E
2014 (8) sec 682
referred to
Para 15
1980 (1) SCR 1036
referred to
Para 21
1982 (1) SCR 438
referred to
Para 22
(1999) 4 SCC 756
referred to
Para 23
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4717-4719 of 2013.
From the judgment and order dated 02.05.2013 passed
by the Armed Forces Tribunal, Principal Bench, New Delhi in
Transfer Application No. 385/09 in Writ Petition.No. 7811/09; · G
Transfer Application No. 386/09 in Writ Petition No. 9772/09
and Original Application No. 99/09 and order dated 21.05.2013
in Misc. Application No. 267/1.3 in T.A. No. 385/2009 in W.P.
No. 7811 of2009.
H
1154
SUPREME COURT REP,ORTS
[2014] 14 S.C.R.
A
With
C.A. Nos.6185,6193,6220, 7221, 7223, 7228, 7220,
7219, 9645, 10955, 10954 and 9592 of 2013.
C.A. Nos. 91 and 689 of 2014
B
R. Balasubramanian, D.K. Singh, Ms. Sonakshi Malhan,
Ms. Archita Phookan and B.V. Balaram ()as, Advs., for the
Appellants.
I
P.S. Narasimha, Sr.Adv., Sridhar Potaraju, S.S. Pandey,
Gaichangpou Gangmei, Abhishek R. Shukla, Arjun Singh,
C
lshaan George, Ms. Megha Misra Aakarshan Sahai, Ms.
D
Manmeet Singh (ForM/s. Karanjawala & Co.), Ms. G Sreedevi
and Rabin Majumder, Advs., for the Respondents.
· The Judgment of the Court was delivered by
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
'
E
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
F
Group Captain (lime 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
G a Committee headed by Ajay Vikram Singh, former Defence
Secretary (hereinafter referred to asAVS Committee) to study
ways and means that would help ensure a "younger age profile"
for the commanding officer in the Indian Armed Forces. The
Committee made its recommendations in regard to all the
H
UNION OF INDIA & ORS. v. ATUL SHUKLA
1155
[T. S. THAKUR, J.]
three wings of the armed forces which were considered and
A
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 Ma~ch, 2005 revised the terms and conditions B
applicable to Air Force Officers excluding officers serving in
the medical and dental branch. The order was to the following
effect:
To
"ANNEXURE P-2
No.2(2)/Us(L)/D(AIR-111)/04
Bharat Sarkar/Government of India
Raksha Mantralay/Ministry of Defence
New Delhi-110011
March 12, 2005
The Chief of Air Staff
Air Headquarters,
Vayu Bhawan,
New Delhi.
c
D
E
Subject: Restructuring of the officers cadre of the air
force.
F
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 G
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,
H
1156
A
B
c
D
E
F
SUPREMECOURTREPQRTS
[2014] 14 S.C.R. .
Rank
Reckon able
commissioned
service
a) Flying officer (FG Offr)
0 N commission irig
b) Flight lieutenant (Flt
2 years
Lt.)
..
c) Squadron leader (Sqn
6 years
Ldr)
• .. .•.
d) Wing Commander (Wg
13 years
Cdr)
--
e) Group
Captain
(Gp .
26 years
Capt) (Time Scale)
promotion to the substantive ranks of officers will
be made on completion of reckonable
commissioned service as indicated below:
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 a~rded 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
ofWg Cdr. On grant of substantive rank ofWg Cdr
these officers would be·come eligible for
consideration for Gp Capt (Select)/Gp Capt (Time
Scale) provided that;
'
(a) Those who have attained the rank ofWg Cdr (Time
G
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
Bound) based, on the new Human resource policy
notified by Air HQ will be eligible for consideration
H
to the rank of GP Capt (Select). These officers
UNION OF INDIA& ORS. v.ATULSHUKLA
1157
[T. S. THAKUR, J.]
would reckon their seniority immediately below the A
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 ofWg Cdr (Time
Scale) on completion of20 years of service, before B
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 c
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 D
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) E
Grade which currently is Rs. 15, 100-450
17,350.
(b)
Rank Pay. Officers will be entitled to rank pay
of a Wg Cdrwhich currently is Rs. 1,600/-p.m.
(c)
Other Allowances & Perks. Officers holding the
F
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 G
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 H
Scale).
1158
A
B
c
SUPREME COURT REPORTS
(2014] 14 S.C.R.
(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
D
through HRP.
, , ,
8.
Revision in pay and pension due to prorhbtion,
where applicable, to officers who have retired 1:~uring
the intervening period between 16 Dec 04 ar'id!date
of issue of this letter will be reviewed :with
E
retrospective effect from 16 Dec 04.
:::::~
F
G
H
9.
As a consequence of the implementation of the
above orders the appointments in which Sqo~•Ldrs
and Wg Cd rs can be posted are given at appeilidices
'A' and 'B' to this letter, mutatis mutandis Unit
Establishments of units,' formationsOand
Establishments will stand modified to the~above
extent till their] revision in due course. Various'6i:ders ·
and instructions affected by the above decisions
would be amended in due course.
10. These orders will take effectfrom 16 Dec2U04.
11. This issues with the concurrence of lnt~ated
Finance vide their Dy No.636/Dir (FintAiGYGS)
dated March 11, 2005.
: :'
UNION OF INDIA&ORS. v.ATULSHUKLA
1159
[T. S. THAKUR, J.]
Yours faithfully,
A
(Bimla Julka)
Joint Secretary to the Govt. of India"
3. It is evident from the above that a Squadron Leader B
can, under the new dispensation, be promoted as a Wing
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 preC
AVS Co.mmittee 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 D
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 E
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 F
to the next level due primarily to the limited number of vacancies
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
reg·ard to the retirement age fixed for various ranks in the Indian G
Air Force can be conveniently summarised in the following
chart:
H
1160
SUPREME COURT REPORTS
(2014] 14 S.C.R.
A
INDIAN AIR FORCE
Pre-AVSC
Post AVSC
Raok
Flying
G'°""d
""
""
Rying
Ground
"'"
""
BraO<h
D"'Y
Bra""'
Branch
Brandi
°"ty
Bra""'
"'"""
Bra"°"
Bra""'
Wg
52
54
54
57
-
-
-
-
Cdr
'
8
(TS)
Wg
52
54
54
57
52
54
57
57
Cdr.
(Select)
'.
Go capt -
-
-
-
52
54
57
57
c
(TS)
Go capt 52
57
57
57
52
57
57
57
(Select)
(Extenda
(Extenda
bleto54)
ble
to
54)
4. The chart makes it clear that post-AVS Committee's
D report and recommendations the Wing Commander (Time
scale) rank was abolished and the barfortime scale promotion
to officers who did not make to the next rank raised to Group
Captain (Time Scale). To that extent the issue of stagnation in
the Air Force was addressed by providing avenues for upward
E · 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
F 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
G 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
.H
UNION OF INDIA&ORS. v.ATULSHUKLA
1161
[T. S. THAKUR, J.]
service and the other who got there by promotion on the basis A
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 by the
respondents who were Group Captain (Time Scale) in petitions
filed by them before the Armed Forces Tribunal, Principal
B
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 c
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 o.f the method of appointment to o ·
the rank of Group Captain wheh 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
E
held the same rank as Group Captains (Time Scale) and were
similar in all other respects inclu'ding emoluments and other
conditions of service and although they were treated to be
equivalent to Group Captain (Select) yet the nature of duties
and the operational employability of officers promoted to Group
F
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 ran.k created under Government Order dated 12th March,
2005 (supra) subject to the condition that the retirement age G
of Group Captain (Time Scale) would remain the sanie 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
H
1162
SUPREME COURT REPORTS
[2014) 14 S.C.R.
A
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
B of such Time Scale ranks officers_ was held against Wing
Commander (Time Scale) ranks that existed earlier.
6. Th·e Tribunal has, upon consideration of the rival
submissions, come to the conclusi.on that while the purpose
underlying the creation of time scale post of Group Captain on
C 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
D 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
E 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
F for not less than 26 years., Select officers by that pr.ocess
become senior to the Time .Scale Promotees. The Tribunal
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
G 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
H
UNION OF INDIA& ORS. v.ATULSHUKLA
1163
[T. S. THAKUR, J.] ·
of higher retirement age that would accrue to them by reason A
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 B
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 C
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 th.ere has to be some rational basis for cerlain object
which is sought be achieved. In this case all rationale D
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 from Wg Cdr to Gp E
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 F
age of 54 years because the post against which he has
been aP,pointed 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 G
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
H
1164
SUPREME COURT REPORTS·
[2014] 14 S.C.R.
A
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
B appointment to that rank itself being different. It was also
contended that although Group Captains (Select) and Group
Captains (Tiine scale) were in all respects including the ranks
that they wear, salary they receive, and other service benefits
they are entitled to similar to Group Captains (Select), yet the
c nature of duties which Group Captains (lime Scale) performed
were substantially if not entire,ly 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
o 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
E distinction in the Army did not mean that the same could not
be made in regard to theAir 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
F
according to them an intelligib,le differentia that fully justifies ·
the classification.
8. On behalf of the respondents it was, on t~e other hand,
contended that the classification made by the Government of
India in the matter of age of retirement of Select and Time
G 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
H
UNION OF INDIA& ORS. v.ATULSHUKLA
1165
[T. $.THAKUR, J.]
be promoted by a different route than officers in the select A
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
B
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).
C
The Tribunal had also recorded a finding to that effect and held
that the posting of an officer after he is promotec;i as Group
Captain (Time Scale) or Group Captain (Select) was an
administrative matter which could not provide a reasonable
basis or an intelligible differentia to treat them differently so as o
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 E
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 theAVS
Committee recommendations and the Government Order on
the one hand and the classification of officers on the other.
F
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 theAir Force.
·
10. The seminal question that falls for our determination G
in the above backdrop is whether classification of Group
Captains in the Indian Air Force for purposes of age of
superannuation, is offensive to Article 14 of the Constitution. A
long line of decisions of this Court that have explained the
H
1166
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
meaning of equality guaranteed by Articles 14 and 16 of the
Constitution and laid down test.s 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
B 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.
Subram.anian Swamyv .. Director, CBI andAnr. (AIR 2014
SC 2140) have extensively examined and elaborately
c 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
D Anwar Ali's case (supra) summed up the essence of what is
permissible under Article 14 in the following words:
•
"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
E
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
F
an intelligibl~ 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
G
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
H SC 538) in the following passage:
UNION OF INDIA&ORS. v.ATULSHUKLA
1167
[T. S. THAKUR, J.]
"It is now well establishecf that while article 14 forbids A
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 B
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 C
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."
12. In Lachhman Das v. State of Punjab, (AIR 1963 D
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:
E
" ..... 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 F
and imperceptibly deprive the article of its glorious
content. ThaJ process would inevitably end in
substituting the doctrine of classification for the doctrine
of equality: the fundamental right to equality before the
Jaw and equal protection of the laws may be replaced G
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
H
1168
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
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:
B
c
D
E
F
G
.H
"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 traditionaland 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 a/so violative of Article 16. Articles
14 and 16 strike at arbitrariness in State action and
UNION OF INDIA & ORS. v. ATUL SHUKLA
1169
[T. S.THAKUR, J.]
ensure fairness and equality of treatment. They require A
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 B
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 ma/a fide exercise
of power and that is hit by Articles 14 and 16. Mala fide C
exercise of power and arbitrariness are different lethal
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 D
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 E
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
F
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 G
Government to conduct any inquiry or investigation into any
offence alleged to have been committed under the said Act
where such allegations related to employees of the Central
Government of the level of Joint Secretary and above and
H
1170
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
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:
B
c
D
E
F
G
H
· "Can it be· said that the classification is based on
intelligible differentia when one set of bureaucrats of
Joint S(#cretary 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 prot§ction though both
classes of these officers are accused of an offence
.under PC Act, 1988 and inquiry I 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 Centra/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.
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.
UNION OF INDIA & ORS. v. ATUL SHUKLA
1171
[T. S. THAKUR, J.]
As noticed earlier, there are in substance two main reasons A
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 B
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 c
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 o
appellants, be classified as a 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 E
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
F
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 G
recruit while the other is a promotee. So also an !AS 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
H
1172
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
that so long as the officers are a part of the cadre, their birth
marks, based on how they joined 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
B 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
C 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
D 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.
19. It is common ground that Time Scale Officers do not
E 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
F
a matter of course.