O.A No. 802 of 2015 Col Mukul Dev
1
ARMED FORCES TRIBUNAL (PRINCIPAL BENCH)
NEW DELHI
OA 802/2015 IC-46298N Col Mukul Dev .. Petitioner
Versus
Union of India and others .. Respondents
With OA Nos. 818, 819 820, 821, 834, 835, 836, 842, 843, 844,
867, 868, 879, 880, 881, 882, 883, 885, 886, 890, 891, 892,
893, 922, 923, 924, 929, 930, 935, 936, 937, 939, 940, 941,
942, 943, 944, 945, 964, 965, 966, 969, 970, 971, 972, 974,
983, 984, 1006, 1013, 1014, 1015, 1016, 1017, 1068, 1069,
1073, 1097 and 1128 of 2015
&
OA Nos. 12, 20, 24, 33, 39, 59, 63, 70, 74, 75, 77, 81, 95,
115, 125, 137, 142, 152, 153, 221, 256, 293, 295, 297, 300,
301, 302, 318, 319, 320, 373, 375, 378, 382, 402, 420, 424,
425, 427, 463, 472, 473, 477, 480, 481, 506, 509, 516,
517, 524, 525, 540, 584, 586, 626, 631, 637, 641, 642, 647,
793, 794, 800, 801, 824, 885, 887, 888, 952, 953, 954, 955,
983, 990, 998, 1005, 1006, 1007, 1018, 1024, 1027, 1028,
1029, 1030, 1031, 1032, 1033, 1065, 1066, 1067, 1068,
1069, 1072, 1101, 1113, 1114, 1115, 1116, 1117, 1118,
1119, 1120, 1121, 1122, 1123, 1139, 1140, 1141, 1147,
O.A No. 802 of 2015 Col Mukul Dev
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1148, 1149, 1150, 1151, 1173, 1193, 1213, 1214, 1215,
1216, 1224, 1225, 1226, 1227, 1228, 1229, 1230, 1251,
1252 and 1253 of 2016
For petitioner Ms. Jyoti Singh, Sr. Advocate, with Ms Tinu Bajwa,
Mr. Rajiv Manglik, Dinesh Yadav and Mr Amandeep Joshi, Mr. Rajesh Nandal, Mr. SS Pandey, Mr. VS Kadian, Mr. Ajai Bhalla and Mr AS Mathur, Mr IS Yadav, Mr Abhishek R Shukla, Advocates
For respondents Gp Capt KS Bhati, Sr CGSC, Dr. Vijendra Mahndiyan, Mr. Prabodh Kumar, Mr. DK Bhati, Ms. Jyotsana Kaushik, Mr. SP Sharma, Mr. SR Swain, Mr. KK Tyagi, Mr. VVVMBNS Pattabhiram, Mr. Anil Gautam, Mr. Shyam Narayan, Mr. JS Rawat, Mr. Avdhesh Kumar, Mr. Harish V. Shankar, Mr. YP Singh, Mr. Ashok Chaitanya, Mr. SD Windlesh and Mr. VS Tomar, Arvind Patel, Advocates
References:
G.J Singh and ors. V. Union of India and ors (WP No.153/2013 Delhi High Court
State of Mizoram and anr v. Mizoram Engg Service Assn and anr, AIR 2004 SC 3644 D.S. Nakkara and ors v. Union of India, (1983) 1 SCC 305
Union of India and ors. V. Maj Gen Shri Kant Sharma and anr. (JT 2015 (4) SC 576
Parisons Agrotech Pvt LtD and anr v. Union of India and ors, (2015) 9 SCC 657. Union of India v. Dinesh Engg. Corpn, (2001) 8 SCC 491. Asif Hameed v. State of Jammu and Kashmir and ors, etc., (1989) Supp (2) SCC 364. Sita Ram Bishambhar Dayal and ors v. State of U.P, (1972) 4 SCC 485.
Union of India and ors v. Pradip Kumar Dey, (2000) 8 SCC 580. State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754.
Union of India v. Dineshan K.K, (2008) 1 SCC 586.
Delhi Transport Corpn v. D.T.C Mazdoor Congress and ors, (1991 Supp (1) SCC 600) Shri Sitaram Sugar Co. Ltd and anr v. Union of India and ors, (1990) 3 SCC 223
Mrs Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248 Sunil Batra v. Delhi Administration and others, (1978) 4 SCC 494
In re the Special Courts Bill 1978, (1979) 1 SCC 380
Hukum Chand Gupta, DG, Indian Council of Agrl. Research (2012) 12 SCC 666
M. Nagraj vs. Union of India, AIR 2007 SC 71)
Constituent Assembly Debates
Reports of VI and VII Central Pay Commissions
Report of A.V Singh Committee
CORAM
HON’BLE MR. JUSTICE B.P. KATAKEY, OFFG. CHAIRPERSON
HON’BLE LT GEN SANJIV LANGER, MEMBER
O.A No. 802 of 2015 Col Mukul Dev
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Date of last hearing: 04.10.2016
Date of Order: 23.12.2016
O R D E R
Lt Gen. Sanjiv Langer, Member:
These O.As have come up as a batch matter for consideration
before this Tribunal, and since the issue in all cases is identical, the
pleadings are being taken from the lead case that of O.A No. 802 of
2015.
2. The petitioners are aggrieved by the denial of grant of benefits
of Non Functional Upgradation (NFU), envisaging the pay parity with
IAS, as granted to the organised Group A services, IPS and Central
Para Military Forces with effect from 01.01.2006.
3. The brief facts of the petitioner‟s case are as follows: The
petitioner was commissioned as a Second Lieutenant in the Indian
Army on 20.08.1988, initially as a Short Service Commission and
subsequently granted permanent Commission with seniority with
effect from 18.04.1989. He was promoted from time to time and
presently is in the rank of Colonel with scale of pay in Pay Band 4,
and Grade Pay of Rs.8700. He is serving in the National Cadet Corps
(NCC), which is a mixed organization having officers from three
Services of the Armed Forces, as well as civilian officers belonging to
Organised Group A services, under the Ministry of Defence as also
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NCC officers. The petitioner states that the pay scales of Armed
Forces personnel invariably corresponded to the pay scales of IPS as
well as civilian government servants. He has contended that, he has
been denied NFU, despite the VI CPC recommending it and the
Government approving it for several other services
Pleadings and Arguments of the Petitioners:
4. The counsel for the petitioner has argued in detail on various
aspects related to the issue of denial of NFU to the Armed Forces. As
a background (as quoted from the report of the VI CPC; provided by
the petitioners), it is contended that after the First Pay Commission, a
Post War Pay Committee was constituted for the Defence Forces
personnel. Their recommendations were implemented from
01.07.1947. The Committee simplified the pay structure of the
Defence Forces personnel considerably, and abolished a number of
allowances, which were either relevant to war, or which could be
merged with the pay. The Committee established a broad relativity of
officers of Defence Forces with the officers of Class I Central Services
and the Indian Police Service (IPS). Pension related issues of the
Defence Forces were considered by the Defence Forces Pension
Revision Committee constituted in 1949, which gave its report in
1950.
5. Subsequent to the report of the Second Pay Commission,
consequential changes for Defence Forces personnel were effected
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based on the recommendations made by the Raghuramaiah
Committee, which gave its report in 1960. The revisions made by this
Committee broadly followed the revisions made by the Second Pay
Commission, on the civil side. The Committee did not modify any of
the principles followed by the Post War Pay Committee. The
Raghuramaiya Committee specifically mentioned that the accepted
Parallel between Defence Service Officers and Class I services of the
Central Government, particularly the IPS should be continued.
Subsequently, the parity of officers‟ pay scale in Defence Forces vis-
à-vis that of the IPS got cemented further and modifications in the
IPS scales, became a trigger for corresponding changes in the
analogous grade in the Defence Forces.
6. The Third Central Pay Commission was the first Commission,
whose terms of reference included examination of the structure of
emoluments, retirement benefits and terms and conditions of the
Defence Forces personnel. The Commission noted that the relativity
of the officers in the Defence Forces vis-à-vis IPS, was only a working
method of devising scales of pay for the service officers, which did
not mean that the functional role of the two services was similar. The
Commission, however, qualified this statement by mentioning that
the job profile of IPS officers was the closest civilian analogue vis-à-
vis infantry officers, and that a working relationship did exist between
the two organizations. This CPC, established the pay parity of Armed
O.A No. 802 of 2015 Col Mukul Dev
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Forces officers, with Class I services of the Central Government, and
specifically the IPS. The Fourth and the Fifth CPCs broadly continued
to maintain the established parity with the IPS.
7. The Central Government established the VI Pay Commission
(CPC) to study and recommend the pay scales to be made applicable
to the Central Government employees, including the Armed Forces.
The VI CPC gave its recommendations and divided the pay scales into
basic four groups i.e. Pay Bands viz. PB 1 to 4 and separate fixed pay
for Higher Administrative Grade (HAG), ranking officers.
8. While analyzing the pay scales of the Defence Forces officers,
specifically the parity of the officers with the civilian Group A officers
and IPS in particular, the VI CPC held at Para 2.3.10 of the report:
“2.3.10. The following facts emerge from the history of the rank
structure of officers in the Defence Forces:-
(i) A broad parity has always existed between the pay scales
of Defence Forces officers and civilian Group A services in
general and with IPS in particular.
(ii) Special Disturbance Allowance was given to the Defence
Forces officers in 1950 as a temporary measure to
improve their earnings without interfering with the pay
scales introduced as per the recommendations of the
Post War Pay Committee, which had brought down the
pay scales of many Indian Commissioned officers (ICOs).
(iii) An edge was provided by the Third CPC in the Defence
Forces officer‟s pay scales because the Commission had
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converted the then existing Special Disturbance
Allowance into an edge in starting pay vis-à-vis the
civilian Group A officers.
(iv) The Fourth CPC had continued this edge in devising the
running pay band for Defence Forces officers up to the
rank of Brigadier and had revised the integrated pay
scale taking in account the time taken for promotion to
different pay scales. The element of rank pay was carved
out of the pay scales so revised after giving the edge vis-
à-vis civilian Group A officers.
(v) The Fifth CPC maintained this edge even though it
reverted from running pay bands to individual pay scales
for various officers‟ ranks in the Defence Forces.
(vi) The edge in the Defence Forces pay scales for their
officers is on account of the Special Disturbance
Allowance. Otherwise, the established relativity of the
posts of Major General and Brigadier is with SAG and DIG
pay scales of civilians/police forces respectively.
(vii) The Defence Forces had sought running pay band up to
the post of Major General before the Fourth CPC. The
Commission, however, conceded the running pay band
only up to the post of Brigadier/equivalent.
(viii) The Fifth CPC had not recommended running pay in
Defence Forces on account of the repercussions it would
have had on civilian pay scales.” (emphasis supplied)
It follows, therefore, that the parity of the Army officers, (like the
petitioner), has always existed between the pay scales of Defence
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Forces officers and civilian Group A services in general and with IPS
in particular, since independence.
9. While recommending the pay scales for the Defence Forces, the
VI CPC also considered the edge enjoyed by the Armed Forces over
the civilian officers, and while granting similar pay scales with grade
pay, introduced the concept of Military Service Pay (MSP) up to the
level of Brigadier, to compensate for the disturbance allowance as
was granted by all the earlier Pay Commissions. The VI CPC, in its
report at Paragraphs 2.3.12 and 2.3.13 specifically laid down the
concept of MSP:
“2.3.12. The Commission is of the view that running pay bands on
par with those recommended for civilian officers needs to be
introduced in respect of the Defence Forces as well. This is also in
conformity with the recommendations of all the three earlier
Central Pay Commissions that had simultaneously considered the
pay scales and related issues of civilians as well as the Defence
Forces. The edge enjoyed by the Defence Forces over the civilian
scales will, after suitable enhancement to meet the genuine
aspirations of the Defence Forces, be given as a seParate element
called Military Service Pay. Presently the edge enjoyed by the
Defence Forces officers is limited to the rank of Brigadier. This edge
will need to be protected. The edge will be carried to the post of
Major General as well because Military Service Pay shall be taken in
account for purposes of fitment at the time of promotion from
Brigadier to Major General. Higher grades do not need to be
extended any MSP. Consequently, the Military Service Pay will be
extended to all the posts in the Defence Forces up to the level of
Brigadier/equivalent. MSP being a new element, no arrears shall be
O.A No. 802 of 2015 Col Mukul Dev
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paid on this account. It will, however, be considered for purposes
of fixation of pay and pension.
2.3.13. The Military Service Pay shall count as pay for all purposes
except for computing the annual increment(s). However,
status of the Defence Forces officers would be determined
by the grade pay attached to their post as is the case with
civilians. This will meet the two major demands of the Defence
Forces viz.
i) Parity with civilian posts with a distinct edge to
compensate for hardships specific to defence
service.
ii) Grant of Military Service Pay.
As stated earlier, the Commission has taken adequate care while
devising the Military Service Pay to ensure that not only the
element of edge over civilian pay scales currently enjoyed by the
Defence Forces is maintained but also that the genuine aspirations
of the Defence Forces officers are met.” (emphasis supplied)
10. According to the VI CPC, grant of MSP is only for the purpose
of compensating the hardship specific to defence services and the
status of the officers will be determined by the grade pay attached to
their posts as in the case of civilians and thus the MSP is, in no way,
either related to the parity with the civilian/IPS counterpart, or the
removal of stagnation in the career progression. The VI CPC also
analysed the problem of acute stagnation of the officers cadre. The
VI CPC specifically recommended in Para 3.3.12 the grant of non-
functional pay upgradation to All India Services, which was extended
O.A No. 802 of 2015 Col Mukul Dev
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to all Group A organized services. The recommendation of the VI
CPC, vide Para 3.3.12, is reproduced below:
“3.3.12. Most Group A Organised Services‟ Associations have
demanded abolition of the edge presently granted to the IAS in
terms of pay scales at the level of Senior Time Scale, Junior
Administrative Grade and Selection Grade. Insofar as the issue of
equal career progression is concerned, the promotion of IAS
officers in various State cadres varies depending on the vacancy
position, etc. In any case, promotion in a State cadre has to be
taken as distinct from their posting at different grades in the
Centre. A case, however, exists for ensuring that the Group A
services are given their due. In this context, it is observed that
there is a conventional edge of two years between IAS and other
AIS/Central Group A services. The Fifth CPC had considered this
issue and taken the view that the edge need not be disturbed. In
practice, however, the gap of two years for posting to various
grades in the Centre in form of empanelment of IAS officers and
promotion or other Group A officers, has increased in respect of
many organized Group A services. This is not justified as organized
Group A services have to be given their due which justifiably should
mean that the disparity, as far as appointment to various grades in
Centre are concerned, should not exceed two years between IAS
and organized Central Group A services. The Government should,
accordingly, consider batch-wise parity while empanelling and/or
posting at Centre between respective batches of IAS and other
organized Group A services with the gap being restricted to two
years. Whenever any IAS officer of a particular batch is posted in
the Centre to a particular grade carrying a specific grade pay in pay
bands PB-3 or PB-4, grant of higher pay scale on non-functional
basis to the officers belonging to batches of organized Group A
services that are senior by two years or more should be given by
the Government. The higher non-functional grade so given to the
officers of organized Group A services will be personal to them and
will not depend on the number of vacancies in that grade. These
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officers will continue in their existing posts and will get substantial
posting in the higher grade that they are holding on non-functional
basis only after vacancies arise in that grade. This will not only
ensure some sort of modified parity between IAS and other Central
Group A services but will also alleviate the present level of disparity
existing between promotional avenues available to different
organized Group A services. It is also observed that eligibility
criteria prescribed for promotion to SAG in different technical and
non-technical organized Group A services are different. In order to
bring uniformity, these eligibility criteria should be uniform across
various organized Group A services. The Commission recommends
accordingly.” (emphasis supplied)
Identical demand of NFU in respect of the Armed Forces officers up
to the rank of Lieutenant General was though addressed as genuine
by the VI CPC, but no clear cut recommendations were made and the
decision was left to the Government. The disparity in the
recommendations of the VI CPC, with regard to pay scales and grade
pay of the officers of the Armed Forces was noted specifically and the
sequence of events in this regard is covered subsequently. The VI
CPC recommended NFU to organised Group A services only, while it
was extended to IPS and IFS (on 27 Sep 2008 vide gazette
notification); and left the issue of granting of NFU to the Armed
Forces, for the Government; (while accepting the demand as
genuine, however, not giving any firm recommendations). The parity
of Armed Forces with IPS also got disturbed due to non-grant of NFU
to Armed Forces.
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11. The Central Government implemented the recommendations
regarding grant of NFU in respect of organized Group A services,
including IPS with effect from 01.01.2006 vide Annexure A2. The
grant of benefit to the Armed Forces officers was projected as part of
46 anomalies to Ministry of Defence vide Tri Services Pay Staff
(TRIPAS) Letter No. C/7026/3/VI/ CPC/Anomalies dated 08.12.2009
duly approved by the Chairman, PPOC. The petitioner came to know
through the information sought under RTI Act that the proposal was
never examined at the level sought to be examined, and was
examined only at the level of Joint Secretary, and was rejected vide
Annexure A3 (of the O.A), on the ground that the ample benefits in
the form of MSP and various allowances, have been given to Armed
Forces, and thus it is not logical to compare the earnings of two
services.
12. The Ministry of Personnel, Public Grievances & Pensions,
DoP&T had issued Annexure A4, wherein the attributes of the
organized Group A service was brought out. The petitioner‟s service
and all other Armed Forces officers‟ cadre meet all the attributes of
the Group A organized service. A detailed justification giving a
comprehensive reply to the MoD letter dated 15.07.2010 (Annexure
A3) was sent vide Annexure A5 (of the O.A).
13. Once again it is contended that the MoD, without referring the
matter to the appropriate level, took the decision and rejected the
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proposal vide Annexure A6 (of the O.A). The MoD gave the logic of
grant of MSP and other field area allowances, in refusing the grant of
NFU, but has failed to appreciate the purpose of the NFU, as
analysed by the VI CPC, which is to alleviate the hardship of acute
stagnation for promotion purposes and the modified parity with the
IAS. A comparison chart of stagnation in the Armed Forces vis-à-vis
civilian Group A services would make it clear that the stagnation in
the Armed Forces is manifold. The purpose of granting NFU is to give
relief to Group A officers facing the problem of stagnation, as a fall
back option, when regular promotions do not come due to various
factors. It is thus logical to conclude that the benefit of NFU is
required to be given to organisation/cadres facing the problem of
acute stagnation.
Sr. No
Cadre Total Strength
JTS STS JAG SAG HAG HAG+
Apex Scale
1. IAS 5246 - 581 458 1569 1489 897 252
2. IPS 4720 - 2151 1328 496 489 202 54
3. Group A Services
14260 4296 4307 3506 1771 331 29 20
4. Armed Forces Officers Corps
57137 5612 10213 40740 429 78 39 26
The percentage of posts in various services in the higher hierarchy is as under:
Service
Cadre
Strength
Posts:
JAG
Percentage
Posts HAG
and above
Percentage
IAS 5246 1569 30 2638 50
IPS 4720 496 11 745 16
Group A 14260 1771 12.5 380 3
Armed Forces 57137 429 0.75 143 0.25
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14. The above table shows that the disparity in promotion potential
in each of the four groups. To bridge the gap within the Civil
Services, the VI CPC gave unto the civil services NFU, so that all AIS
and Group A organised services could rise to the pay and pension of
an Additional Secretary in the HAG and HAG+ scales. The same logic
was, however, not extended to the petitioner‟s service i.e. Armed
Forces Services, and the same has been rejected on flimsy grounds.
The exclusion of the petitioner and other Armed Forces officers from
NFU has also led to lowering the status of military officers vis-à-vis
Group A central service officers. With over 97% Armed Forces
officers retiring in the Grade Pay of Rs.8700. Their exclusion from the
NFU is seen as a deliberate and calculated attempt to grossly
disadvantage and marginalize them. The benefit of NFU has also
been extended to Group A services whose officers work with the
Armed Forces in a supporting role. Armed Forces officers are also
posted to these organizations, such as Indian Naval Armament
Service, Indian Ordnance Factories Service, Indian Defence Service of
Engineers (MES), Defence Aeronautical Quality Assurance Service,
Defence Quality Assurance Service, Defence Research and
Development Service, Survey of India Group A service and the Border
Roads Organisation.
15. Ms. Jyoti Singh, the senior counsel for the petitioners, while
arguing the case, at the outset, stated that while the VI CPC had
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recommended NFU for certain services, and subsequently this had
been extended consequent to approval by the Government, the case
for denial to the Armed Forces is centred on the following assertions
by the respondents:
(a) NFU is a requirement relevant to organised Group A
services, and consequently is a measure, which is
only for them;
(b) The attributes of an organised Group A service have
been laid down in the office memorandum of
20.11.2009, and only services fulfilling that those
attributes can be drawn into the category of
organised Group A service;
(c) The Armed Forces have a different hierarchy,
different scales and have their own structure, and
consequently are a class apart;
(d) If NFU is given to the Armed Forces, command and
control of the services will be upset;
(e) There is considerable financial burden involved in
grant of NFU to the Armed Forces.
The learned senior counsel also stated that in their estimation, the
financial effect was approximately Rs.69 crores and in the case of
Para Military forces, who had been granted NFU by the Hon'ble Delhi
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High Court, the approximate cost on implementation was Rs.200-300
crores.
16. The learned senior counsel drew our attention to Annexure A2
and the O.M dated 24.04.2009 of the Ministry of Personnel (DoPT).
Herein, the grant of NFU (recommended by the VI CPC; Para 10
preceding refers), was conveyed to the establishments vide the O.M
and specifically it relates to NFU for officers of organised Group A
services in various pay bands. The senior counsel drew our attention
to the central clause in this letter, which is quoted as under:
(i) Whenever an Indian Administrative Services Officer of the
State of Joint Cadre is posted at the Centre to a particular
grade carrying a specific grade pay in Pay band 3 or Pay
Band 4, the officers belong to batches of Organised Group A
Services that are senior by two years or more and have not
so far been promoted to that particular grade would be
granted the same grade on non-functional basis from the
date of posting of the Indian Administrative Service Officers
in that particular grade at the Centre.
(ii) Grant of higher scale would be governed by the terms and
conditions given in Annex-I”
In furtherance of this, the provisions of Annexure-I to this letter were
brought out before the Court and those provisions are “terms and
conditions for grant of higher pay scale on non-functional basis to
officers of Organised Group A Services.” While all aspects of this
O.A No. 802 of 2015 Col Mukul Dev
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letter were explained to the Court, it is relevant to only re-produce
Paragraphs 1 and 2 of the Annexure, at page 32 of the O.A:
1. The non functional upgradation granted under these orders
will be based on empanelment and posting of particular
batch of IAS officer in the Centre. Such up-gradation would
not be linked to the vacancies in the grade.
2. The up-gradation granted under these orders will be a
purely non-functional up-gradation, personal to the officer
and it would not bestow any right to the officer to claim
promotion or deputation benefits based on non-functional
up-gradation in such a manner.”
17. Thereafter, the learned senior counsel drew our attention to the
O.M dated 19.11.2009 of Ministry of Personnel (DoPT) at Annexure
A4 of the O.A, which deals with the attributes of organised Group A
services – qualification reg. In this O.M, the attributes of organised
Group A services have been enumerated from (i) to (vi) and the
senior counsel emphatically stated that as related to the Armed
Forces, not only did they fulfill all these attributes, they definitely
were highly organised and were established by definitive procedures.
The learned senior counsel thereafter drew our attention to the Note
at the end of this O.M and this Note is re-produced below:
“Note:- The existing Organised Group „A‟ Services have
evolved over a period of time and may have minor deviations
owing to their respective functional requirements. The services
already declared as such need not, however, be reviewed.
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2. The above are certain basic attributes of an Organised
Group „A‟ Service. There is, however, nothing to suggest that the
services/cadres fulfilling these criteria would be automatically
conferred the status of an Organised Group „A‟ Service. An
Organised Group „A‟ Service is one which is constituted consciously
as such by the Cadre Controlling Authorities and such a service can
be constituted only through the established procedures.” (emphasis
supplied)
18. The learned senior counsel stated that the attributes, together
with the Note, as can be seen, clearly established the following:
(a) Essential attributes to be grouped as an organised
Group A service were stated, however;
(b) The fact that there would be minor deviations in the
services due to respective functional requirement;
(c) The fact that even if the basic attributes of a Group
A service was fulfilled, the criteria and status of an
organised Group A service would not be automatic
and such service can be constituted only through
established procedures.
The learned senior counsel for the petitioners stated that the
communication itself was strange in that while giving attributes, it
acknowledged that there would be variations and thereafter went on
to convolute the entire exercise by saying that even services with
such attributes could not be automatically conferred the status of an
organised Group A.
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19. The learned senior counsel thereafter drew our attention to a
sequence of issues related to the claims of the Armed Forces. At the
outset, the Prime Minister‟s Office (PMO) I.D No. 1176973/PMO/2008
dated 27.12.2008 (Annexure A1 of the O.A), was brought to our
attention. The Prime Minister, consequent to review of the issues
raised by the Armed Forces related to the VI CPC, had approved four
proposals. One of these proposals was setting up of a High Powered
Committee to resolve the issues relating to command and
control functions/status of Armed Forces vis-à-vis Para-
military forces and civilians. In continuation of this, the senior
counsel brought out that the demand for NFU was also one of the
continuing demands that needed to have been considered by the
High Power Committee.
20. The learned senior counsel thereafter brought our attention to
MoD I.D No. 1/(18)/2010/D (Pay/Services) dated 15.07.2010
(Annexure A3 of the O.A). Here, the anomalies/issues raised by the
Service on pay, allowances, pensions and service conditions had been
considered. In response to grant of higher non-functional scale, the
letter stated that “the sole argument in support of the issue is that
the life time earnings of Commissioned Officers which was in their
favour will now be in favour of Civilian Officer. The service conditions
of Armed Forces are quite different when compared to civilian
employees. Ample benefits in the form of MSP and various
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allowances are available to the Armed Forces officers. Therefore, it is
not logical to compare the earnings of two services. Moreover, the
Government orders are for organised Group “A” Services. Armed
Forces do not have such set up. In view of this, the proposal does
not contain any merit and is not agreed to.” To this, the learned
senior counsel stated that this decision represented the fact that the
consideration of this serious issue by the concerned authorities had
been done in a superficial manner, without, indeed, going into the
complex issues that hinged on it and also did not take into
consideration the structure, ranks and functions of the Armed Forces
and only chose to draw a distinction between the organised Group A
services and the Armed Forces, to exclude them for NFU.
21. In furtherance of the earlier arguments, she stated that in this
entire consideration of organised Group A Services, while attributes
of Group A services were being held sacrosanct, absence of certain
attributes also was no bar from being listed as such a service. She
stated that consequent to the recommendations of the VI CPC and
the acceptance by the Government, the IPS and the IFS (All India
Service) also had not been given NFU by the original Government
notification. It was only on the basis of a later executive instruction,
that these two services were extended the benefit of NFU. It is
strange that even in the internal hierarchy between services; the
Government had not considered the IPS initially, as an organised
O.A No. 802 of 2015 Col Mukul Dev
21
Group A service. This just went to show, how the entire organised
Group A service construct, was being used and misused without clear
definition, as a class; and presented a case where there were shifting
goal posts, wherein even a service, which had all stipulated
attributes, could be denied Group A status, while, on the other hand,
a Service, which may not have all the attributes, could be included in
such Group A service. To illustrate this aspect further, the learned
senior counsel drew our attention to Page 23 of the O.A, in the
pleadings, where it has been stated that there were several services
which did not meet the attributes of an organised Group A service,
but had, despite this, been extended the benefit of NFU. Page 23 of
the O.A, Grounds (L) and (M), which read as follows:
(L.) Because there are number of Gp „A‟ services, who do not
meet all the six criteria for Gp „A‟ Services, they have been
given deviation from the Norms and being given NFU. The
services which do not meet the attributes of Organised
Group „A‟ service but have been extended the benefit of NFU
are, Indian Legal Service and Indian Trade Service, Indian
Statistical Service, Indian Economic service, Central
Information service, etc.
(M.) Because there is no legal or other system to notify a service
as organised Group „A‟.
O.A No. 802 of 2015 Col Mukul Dev
22
The senior counsel stated that this aspect stood established, in view
of the fact that the counter affidavit filed by the respondents had not
in any way refuted this contention.
22. Thereafter, the learned senior counsel for the petitioners chose
to highlight an authoritative communication from the Adjutant
General‟s Branch, Standing Army Pay Commission Section
(C/7021/SAPCS dated 19.08.2011), at page 38 of the O.A. Related to
the issues of grant of NFU to Defence Forces, the Adjutant General‟s
Branch had responded to the MoD (Pay and Services) specifically
related to the anomaly of non-grant of NFU to Defence Forces. In
essence, the communication raised the fact that while the TRIPAS
had made these recommendations to the MoD, they had been turned
down by the MoD on the following three specific grounds:
(a) The service conditions of Armed Forces are quite different
when compared to civilian employees;
(b) Ample benefits in the form of MSP and various allowances
are available to Armed Forces officers;
(c) Govt orders are for Organised Group A Service and Armed
Forces do not have such set up.
In answer to this, the Adjutant General‟s Branch communication has
stated that the core issues of parity in this consideration by the MoD
had been overlooked. At the outset, the AG‟s Branch letter sought to
outline eight Group A services, which operated along with the Armed
O.A No. 802 of 2015 Col Mukul Dev
23
Forces in a supporting role, as also where officers of Armed Forces
were posted on deputation/assignments; and highlighted the fact
that while all these services had been extended the benefit of NFU,
the Armed Forces had still been denied.
23. The AG‟s Branch letter also brought out that there were several
CPOs like BSF, AR, ITBP, who either functioned under Army
formations, or were deployed along with Army who had been granted
NFU, while the Armed Forces continued to be left out, resulting in
serious command and control and functional problems, as also a
consequential demoralization effect on the officer cadre. The
implications of non extension of NFU have been examined in
Paragraphs 6 to 11 of this letter. Certain glaring disparities that have
emerged as a result of grant of NFU to services other than defence
services, have been enumerated, salient extracts among them are
reproduced below:
“(a) While a Director from the Organised Central Group „A‟
Services draws SAG pay scale at 22 years, the Defence Services
Officers with same service holding similar appointment draws a pay
scale of Rs.37400-67000/- with Grade Pay of Rs.8700/-. Similarly, a
Director from Organised Central Group „A‟ Services will be drawing
HAG Scale at 32 years of service, while the Defence Services
Officers with the same service holding similar appointment will be
drawing a PB-4 Scale of Rs.37,400 – 67,000/- with Grade Pay of
Rs.8700/-. This leads to differential treatment in form of pay and
allowances granted to Organised Central Group „A‟ Services / All
India Services and Defence Services Officers performing similar
appointment in the same Headquarters / Formation / Unit under
identical circumstances. (emphasis supplied)
xx xx xx xx xx xx
O.A No. 802 of 2015 Col Mukul Dev
24
Xx xx xx xx xx xx
(d) A Garrison Engineer of MES posted under Commander
Works Engrs/Col of Army) will be drawing higher grade pay of
Rs.10000/- than Commander Works Engineers. Similarly, the
Commander Works Engrs of IDSE officer working under Chief Engr
from Army (Brig) will be drawing higher grade pay than Chief
Engineers.
(e) The BSF Companies are deployed on Line of Control with
Army. The Company Commander of BSF will be drawing higher pay
than commanding officer from Army (Colonel) and even Brigade
Commander (Brigadier) resulting in severe Command and Control
problem. Similar problems arise where BSF is operating with Army
in Counter Insurgency Operation.
In addition, Paragraphs 10 and 11 of this letter, need to be focused
on:
10. A comparison of careers of Defence Service Officers and
Organised Group „A‟ Service / All India Services reveals the
following:-
(a) 100% Officers of Organized Group „A‟ Services end up drawing SAG scale at 22 years of service, whereas, no Defence Service Officer draws SAG scale till about 33 years of service.
(b) While 100% Officers of Organized Group „A‟ Services retire with HAG Scale, less than 1% officers of the Defence Service retire at a similar scale. (emphasis supplied)
11. Since grant of non-functional upgradation to Officers from
the Defence Services does not necessitate creation of additional
posts in each grade, it does not upset the existing organizational
structure of the services.
The AG‟s Branch letter thereafter proceeds to examine service
conditions of Armed Forces from Paragraphs 12 to 20 and specifically
O.A No. 802 of 2015 Col Mukul Dev
25
related to parity with the IPS, Paragraphs 21 and 23 are reproduced
below:
21. Parity with IPS. It may be recalled that the Third Central Pay
Commission (PCPC) on basis of Raghuramaiah Committee Report –
1960 vide 8 of Chapter 50 (Appendix A) elucidated the basis on
which a linkage / relativity in terms of pay structure of the Armed
Forces was established with Class I Services of Central Government
particularly Indian Police Service (IPS). It may also be noted that
Third CPC was the first Pay Commission that handled the pay of
civilians as well as Armed Forces Personnel. The Fourth and Fifth
CPC had also continued to broadly maintain the established parity
of the Armed Forces with the IPS. VI CPC had recommended Non
Functional Upgradation to Organised Group A services only.
Whereas same was extended to IPS and IFS. The parity of Armed
forces with IPS is also got disturbed due to non grant of NFU to
Armed Forces. (emphasis supplied)
xx xx xx xx xx xx
23. The Defence Forces fulfill all above attributes and they are
equated with IPS by all Pay Commission.
In Paragraphs 25 to 26, the AG‟s Branch letter has clearly brought
out the concept and application of MSP and the fact that MSP, in no
way, impacts on the grant of NFU. The learned senior counsel for the
petitioners thereafter brought out that in respect of this detailed and,
indeed, comprehensive letter, which had been sent to the Ministry on
all aspects on the issue of NFU to Defence Officers with detailed
justification, which had been given, the response of the Ministry was
O.A No. 802 of 2015 Col Mukul Dev
26
with a non-speaking I.D No. 1(18)/2010/D (Pay/Services) dated
24.10.2011, in which Para 2 is quoted below:
“2 The matter has been re-considered in consultation with Def
(Fin). The earlier stand of MoD communicated vide its ID Note
dated 15.7.2010 is reiterated.”
24. In July 2012, on the basis of the directions given by the Prime
Minister, a Committee under the Chairmanship of the Cabinet
Secretary was constituted. The issue placed before the Committee
was related to the pay of Defence Service personnel, including grant
of NFU. The Committee submitted its report in August 2012 and
instead of visiting the issues involved, simply ignored the same and
noted in Para 39 of the Report as under:
“The pay related issues are complex and have ramifications across
the Government, including on Para-military personnel. The
proposals made by the Defence Forces in many cases are at
variance with some principles followed by the VI Pay Commission.”
25. The learned senior counsel submits that the Military Service Pay
(MSP), in no way, could be linked to NFU. The senior counsel stated
that initially, up to the Fifth CPC, the Armed Forces always enjoyed
an edge over their civilian counterparts. While recommending the pay
scales for the Defence Forces, the VI CPC chose to discontinue the
edge in the scales of pay and introduced the concept of MSP up to
the level of Brigadier to compensate the aspect of strenuous service
conditions as well as disturbance to the Defence officers. This aspect,
O.A No. 802 of 2015 Col Mukul Dev
27
as quoted in Paragraph 9 above, was clearly enunciated in Para
2.3.12 of the Report of the VI CPC. Here, it is clearly evident that the
MSP is a separate element, which owes its origin to the historic edge
that Armed Forces officers were given by respective Pay Commissions
vis-à-vis their civilian counterparts and since the VI CPC did not want
to continue the edge in scales of pay, it transmuted this historic
advantage into MSP, which, while not forming part of the basic scales
of pay, would provide an increase in salary to cater for the strenuous
service conditions, as well as inherent disturbance caused to Armed
Forces personnel by virtue of their job profile. This was consequently
enabled up to the rank of Brigadier, and for Major Generals, while
there was no MSP, the Pay Commission consciously stated that it
would upend the fitment of this rank, so as to include the necessary
advantage to Major Generals in lieu of MSP. Related to overall grade
pay, status and other inter-se issues, the guiding factor would be the
scales of salary together with grade pay, in comparison with all other
services. MSP, a clearly monetary element, was, in no way, permitted
to interfere in this calculation so as to change the status/scale. As
such, the learned counsel stated that the VI CPC did away with the
traditional edge that had been enjoyed by the Armed Forces in scales
of pay, and to offset this disadvantage monetarily, the concept of
MSP was brought into force.
O.A No. 802 of 2015 Col Mukul Dev
28
26. The learned counsel thereafter stated that NFU, by definition,
was a completely different measure, which sought to bridge the
disproportionate gap between the rates of movement of different
Government cadres in their promotional avenues, where, in the
present circumstances the IAS was moving at the fastest rate and the
gap between the officers of that service, as well as those of other
services, (when they had put in similar years of service), their
resultant scales of pay remained substantially different. To resolve
this inequality, NFU, as a guided measure, had been mooted,
recommended and accepted.
27. In relation to the VI CPC, the senior counsel also sought to
highlight aspects from Chapter 3.3 related to Central Services Group
„A‟:
“Ðevelopments in last 10 years Till the time of the Fifth CPC, most Organized Central Services did not have an encadred Secretary level, or equivalent post. However, the Fifth CPC recommended that each Service should have one encadred post in the scale of Rs.26000 (fixed). Barring a few, this recommendation of the Fifth CPC has been implemented in most of the Services. In 2000, the Government implemented the Fifth CPC‟s Recommendation and increased the percentage of Non-Functional Selection Grade (NFSG) posts from 15% to 30% of Senior Duty Posts. Simultaneously, for the Technical Services, the scale of Rs.14300-18300 was made the functional grade of Superintending Engineer (and equivalent) and the scale of Rs.12000-16500 was made Non-Functional Junior Administrative Grade (JAG). Both these measures have considerably reduced the time taken by officers of both technical and non-technical Organized Services in getting the NFSG. The Ministry of Railways, however, did not implement the recommendation of the Fifth CPC regarding introduction of Non-Functional JAG for its Group A Technical Services on the ground that it would disturb the relativities between various Railway Services.
O.A No. 802 of 2015 Col Mukul Dev
29
3.3.7 Through the mechanism of Cadre Review, most Organized Group A Services have also got more posts created at Senior Administrative Grade (SAG) and Higher Administrative Grade (HAG) levels. ………. xx xx xx xx xx xx 3.3.11. Insofar as the general demands are concerned, following demands were made:--
(i) Full parity with the IAS in terms of pay-scales and career progression. This demand was made by a majority of the service associations.
(ii) Classification of Central Group A Services into 3 categories, viz., 1) those having sovereign functions of the State; 2) those having regulatory functions; and 3) the ones that are commercial in nature. While category 1 should be paid the best salaries, category 3 should be corporatized.
(iii) A level playing field for appointments in the Central Government under the Central Staffing Scheme of the SAG and HAG levels.
(iv) Ensuring an even progression for various Group A and All India Services.
(v) Increasing the entry grade in Group A Services sufficiently so that a nexus with the salaries existing in private sector is made and the Government is able to attract the best talent available.” (emphasis supplied)
28. Thereafter, the learned counsel chose to refer to the
recommendations of the VII CPC and, in the aspect of VII CPC, she
highlighted the fact that the Chairman of the Commission had
recommended that NFU be given to all services linked to their
residency period, and also one of the Members Shri Vinod Rae had, in
his recommendations, while dissenting with the Chairman, stated that
if at all NFU was to be given, it should, indeed, be given to the
O.A No. 802 of 2015 Col Mukul Dev
30
Armed Forces. The learned counsel chose to highlight various
Paragraphs from the notings of the Member of the VII CPC,
significant among them are noted below:
“A broad parity was disturbed by granting NFU to IPS, IFoS
and organised Group A services after the VI CPC report, without a
similar dispensation being extended to the Defence Forces.
Consequently, the Defence Forces officers, who are in no way lower in
status or responsibility than Group A Central Services, though not
classified as such, have fallen steeply behind IPS/IFoS and 49
organised Group A services. This has undermined the status and
morale of the Defence Forces and has been a matter of serious
concern for them over the last decade. As the Defence Forces have
pointed out in their joint service memorandum (JSM), the Defence
Forces faced an acute problem of stagnation because of their rank,
structure, and if there was a case for NFU at SAG and HAG level, it
should have been given to the Defence Forces before anybody else. In
fact, the policy outcome was the reverse, whereby the less
disadvantaged organised Group A services reaped the maximum
benefit on untenable grounds of parity with IAS. The undersigned
agrees with the view that exclusion of Defence Forces from NFU has
been unfair. The gap between career progression in the Defence
Forces in comparison with 49 organised Group A services and
IPS/IFoS, which was already enlarged, has been stretched beyond
reasonable limits.” (emphasis supplied)
Further also related to the VII CPC, the following was brought to our
notice (by the quoted extracts):
“7.3.21 After considering various aspects, especially the difficulties
faced by the officers owing to stagnation at various levels, the
Chairman is of the considered opinion that NFU should be allowed to
continue. Since NFU has been in existence for the last ten years and is
being availed by all the Organised Group „A‟ Services, there is no
reason to abolish it. The same will be available not only to all
Organised Central Group „A‟ Services but also members of CAPFs and
Defence forces on the basis of respective residency periods.
O.A No. 802 of 2015 Col Mukul Dev
31
7.3.22 The NFU should be subject to the completion of the
prescribed residency period in the preceding substantive grade and not
linked to the promotion of an IAS batch. All the prescribed eligibility
criteria and promotional norms including „benchmark‟ for upgradation
to a particular level would have to be met at the time of grant of NFU.
A screening committee chaired by the Secretary of the Ministry
concerned would oversee the implementation of NFU. The Committee
would consist of three members of at least one level above the level
for which upgradation is being considered. These orders are currently
also in existence.
7.3.23 xx xx xx xx xx xx
7.3.24 xx xx xx xx xx xx
7.3.25 Shri Vivek Rae, and Dr. Rathin Roy, Members, VII CPC have
not agreed with the view of the Chairman. Shri. Vivek Rae has
elaborated the case for withdrawal of NFU from Organised Group „A‟
Services as below:
xx xx xx xx xx xx”
29. The learned senior counsel thereafter drew our attention to the
judgment passed by the Hon'ble Delhi High Court in W.P (C) No. 153
of 2013 and C.M Nos. 3088 of 2013, etc. (G.J. Singh and others v.
Union of India and others), wherein those petitioners had sought a
writ of mandamus to grant them (i.e. Executive Group A officers of
CAPFs) the benefit of NFFU, with effect from 01.06.2006, as given to
other officers of Group A Service (PB-3 and PB-4, as issued vide OM
dated 24.04.2009). The petitioners in that writ petition had further
O.A No. 802 of 2015 Col Mukul Dev
32
prayed that they be declared as an organised Group A service with
effect from 01.01.2006 with all consequential benefits. The learned
counsel stated that the judgment was being brought to our notice for
illustration of the legal issues, as well as reiteration of the law. In the
course of this judgment, the Hon'ble Delhi High Court had outlined
the issues in the matter before them as:
“(i) What is NFFU? (ii) What is Organised Group A Services vis-à-vis Group
A Services? (iii) Whether the Government has regarded the
petitioners as Officers of Organised Group A Services?
(iv) If yes, whether they would be entitled to NFFU?”
Thereafter, the learned counsel chose to highlight several aspects of
this judgment. First and foremost, the counsel brought out that the
O.M dated 19.11.2009, which talked about the attributes of organised
Group A Central services had been one of the issues in examination
by the Hon'ble High Court. This O.M, in the present O.A, has been
referred to in Para 17 preceding and forms part of the O.A at
Annexure A4 of the O.A. The learned counsel thereafter brought to
our notice a communication received from the DoPT dated
26.10.2012, wherein the Government of India had stated as follows:
“This division does not entertain any separate list of organised
Group A services. However, a copy of the list of such central Group A
services issued with this department‟s O.M No. 22/3-CRD dated
O.A No. 802 of 2015 Col Mukul Dev
33
16.07.1990 containing order regarding selection grade in Group A services
is enclosed. No further list has been issued. It may be noted that NFSU is
meant for organised Group A services only.”
The learned senior counsel thereafter brought to our attention Para
31 of the judgment, which reads as under:
31. It is further submitted that during inspection of file No. I-
11011/12/2008-CRD, it was found that DoPT before issuing O.M dated
20.11.2009 in the shape of clarification on the issue of „Attributes‟ of
Organised Group „A‟ Services, has admitted in its note at page 56 in Para
(9) that “It is evident from the above that the attributes mentioned there
are too generic and could be applied even to the isolated cadres. Further,
there is hardly any provision to suggest that the services not conforming
to these attributes could not be recognized as organised Group A services.
It would be relevant to mention here that there are many organised
Group A services with provisions for appointment at higher level through
modes other than promotion which are contrary to the attributes
mentioned above. This makes it difficult to accept or deny the claims of
other Group A Services for similar benefits and has resulted in unending
litigations. In one such case, the court has expressed its surprise over the
term „organised‟ stating that any services under the government of India
has to be organised. Various streams of Geological Survey of India, the
Civil Construction Wing of the Ministry of Information & Broadcasting are
some of such examples. The department is also flooded with RTI
applications from individual officers in this regard.” (emphasis supplied)
The learned counsel further chose to highlight Paragraphs 36, 42 and
58 of the judgment, which read thus:
36. The word „organised‟ has not been defined anywhere. The 1993
Monograph in Para 2.3 defines „the service concept‟ to mean Civilian Posts
grouped into distinct homogenous cadre. „Cadre‟ has been defined to
comprise persons who have been adjudged suitable and recruited to hold
group of positions requiring similar skills. Para 2.5 stipulates that Central
Group „A‟ Service represents a group of posts belonging to distinct
functional areas arranged in hierarchical order representing different
grades or levels of responsibility. The hierarchical arrangement of posts
with different pay scales constitutes a cadre and the arrangement itself is
a „cadre structure‟.
xx xx xx xx xx xx
O.A No. 802 of 2015 Col Mukul Dev
34
42. In order to overcome the stagnation problems, the VI CPC
recommended NFU to all group A officers in various organised Group „A‟
Services. The purpose of granting NFU is to give relief to Group „A‟
Officers facing the problem of stagnation as a fall back option when
regular promotions do not come due to various factors. It is thus, logical
to conclude that benefit of NFU is required to be given to
organisation/cadres facing the problem of acute stagnation. It is
submitted that the CPMFs are facing huge problem of stagnation and thus
non grant of NFFU is most arbitrary.
xx xx xx xx xx xx
58. …… even though the Respondents have sought to rely on list of
„Organized Services‟ of the 4th CPC, many of these services including
„Indian Salt Services‟ have, in response to RTI Applications, denied that
they are Organized Services and thus, it is evident that the term
Organized Service has always been treated inter changeably with
Regularly Constituted Group „A‟ Services and the only attempt to deviate
from the said concept is by way of OM dated 19.11.2009 which has been
done away with an attempt to deprive many services including CAPFs of
the benefits of NFFU.” (emphasis supplied)
The learned counsel drew our attention to the analysis in the
judgment of the Hon'ble Delhi High Court in Para 73. In this
connection, the following Paragraphs were brought to our attention
Paragraphs 73, 74, 75, 81, 82 and 84, which are reproduced below:
“73. The crux of this matter is the Government‟s classification of
Group A services as organized or otherwise and whether the officers of
the CAPFs (previously knows an CMPFs) are a part of Organized Central
Group – A Services. The Court would note that the issue in these cases is
not fixation of pay scale as argued by the learned ASG but is in fact,
whether the Government itself has at any time acknowledged or stated
that such officers of the CAPFs form a part of organized Group-A Services.
………...
74. It is a settled canon of constitutional jurisprudence that the
doctrine of classification is a subsidiary rule evolved by courts to give
practical content to the doctrine of equality. Over-emphasis of the
O.A No. 802 of 2015 Col Mukul Dev
35
doctrine of classification or anxious or sustained attempt to
discover some basis for classification may gradually and
imperceptively erode the profound potency of the glorious
content of equality enshrined in Article 14 of the Constitution.
75. What is therefore necessary is a firm stance by the
Government with a proper classification in place leaving as little room for
ambiguity as possible. This is not seen in the OM dated November 19,
2009 to the extent that it notes that there may be certain “minor
deviations” from the attributes listed therein and also to the extent
wherein it states that even if the listed criteria are fulfilled, the same
would not automatically confer the status of an organised Group
A Service. The Court is therefore, reluctant to read too deeply
into these attributes when deciding on the status of the
petitioners as belonging to Organised Group A Service.
xx xx xx xx xx xx
81. The Court would note that the DoPT‟s OM dated
19/20.11.2009 which lays down six attributes which a Central Group „A‟
Service needs to possess to be considered as Organised cannot be relied
upon too heavily since it is the respondents‟ own admission in the
impugned O.M dated 28.10.2013 that “these attributes are merely
traits/characteristics and are not sacrosanct.” The Note at the bottom of
the 2009 OM provides for minor deviations from these attributes. It also
states that even if a Group „A‟ service possess all six attributes, it might
not be automatically conferred the status of an Organised Group „A‟
Service as these have to be „constituted consciously‟ and „can be
constituted only through the established procedures.‟
82. The Government‟s contention that NFFUs cannot be granted
since the CAPFs comprised a strict hierarchy with a well defined Command
and Control structure; that any interference with this structure would be
detrimental to the interest of the forces and would adversely affect its
operation and functioning. It was thus, claimed that all posts in the CAPFs
are functional and there is no room for Non Functional posts, is untenable
because by very definition there is no interference with functions, duties
or the posts but only an increase in the financial prospects.
xx xx xx xx xx xx
84. The issue of acknowledging the petitioners as OGAS has
been pending for some time like a festering wound. From the preceding
discussion, the Court would note although from the government records it
can clearly be seen that the petitioners have over and over again been
O.A No. 802 of 2015 Col Mukul Dev
36
recognized as OGAS, an element of obfuscation has been kept alive.
It cannot be over-emphasised that in matters relating to the
armed forces and the Para military/CAPFs there ought to be
clarity and certainty apropos the service benefits which the
forces would be entitled to. An element of greater dispatch in
taking decisions governing their service conditions would always
be requisite. Therefore, to the extent that the OM dated
19/20.11.2009 and OM dated 28.10.2010 themselves leave scope
for interpretation, it could well be said that there is a level of
arbitrariness in them.” (emphasis supplied)
30. The learned senior counsel also chose to refer to the following
judgments of the Hon'ble Supreme Court on this issue:
(1) D.S. Nakkara and others v. Union of India (1983) 1 SCC 305;
(2) State of Mizoram and another v. Mizoram Engineering Service Association and another – AIR 2004 SC 3644
In D.S. Nakkara (supra), the learned senior counsel has stated that
not only the fact of equal treatment of all Government servants was
endorsed by the judgment, but it was emphatically conveyed in the
concluding Paragraph that all benefits as visualized by enhanced
pension with effect from the cut-off date, would be applicable not
only to all Government servants, but also to all Armed Forces
personnel. Para 65 of the said judgment reads:
“65. ……….. liberalised pension scheme becomes operative
to all pensioners governed by 1972 Rules irrespective of the date of
retirement. Omitting the unconstitutional part it is declared that all
pensioners governed by the 1972 Rules and Army Pension
Regulations shall be entitled to pension as computed under the
liberalised pension scheme from the specified date, irrespective of
the date of retirement. …….”
O.A No. 802 of 2015 Col Mukul Dev
37
In Mizoram Engg. Service Association (supra), highlighting
Paragraphs 6 and 7, the learned senior counsel brought to our notice
the fact that a dispute had originated, whether, in fact, an
engineering service was an organised service or not. The main
reason for dubbing engineering service as an unorganized service in
the State was absence of recruitment rules for the service. It was
held that since the State Government had failed to frame the
Recruitment Rules and bring the engineering service within the frame
work of an organised service, the individuals could not be made to
suffer. The Apex Court also observed that there was hardly any
difference in between an organised and an unorganized service as far
as Government service is concerned. In Government service, such a
distinction did not appear to have any relevance. Civil service is not
trade unionism. The Court stated that it was not able to appreciate
what was sought to be conveyed by use of the words „organised
service‟ and „unorganised service‟ and the argument was found
wholly misconceived.
31. Accordingly, the petitioners have prayed for the reliefs in the
O.A as follows:
(i) Declare the action of the respondents as unjust,
arbitrary and illegal;
(ii) Quash and set aside letters dated 15.07.2010 and
24.10.2011 rejecting the grant of NFU;
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38
(iii) Direct the respondents to grant the NFU to the
applicant w.e.f 01.01.2006 in a time bound manner
keeping the parity with IAS with two year batch
difference as recommended and accepted by the
Central Government specifically parity with IPS and
CPMF;
(iv) Award exemplary costs in favour of the applicant;
and
(v) Pass such other and further orders which their
lordships may deem fit and proper in the existing
facts and circumstances of the case.
Arguments by the Respondents:
32. The respondents presented their case being argued by Mr. K.S.
Bhati, Sr. Central Government Standing Counsel, who has first and
foremost outlined the attributes of an organized Group „A‟ service
which have been re-emphasized, together with the fact that the
Armed Forces being not classified as such, are not an organized
Group „A‟ service. Further it has been argued that NFU for organized
Group „A‟ service was granted post recommendation of the VI Pay
Commission and consequent to consideration, this recommendation
was approved by the Government and the Government of India had
promulgated this measure for organized Group „A‟ services on
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39
24.04.2009 (page 29 of the O.A, Annexure A2). He then chose to
draw our attention to the prayer of the petitioners, whereby they
sought to set aside the letters of 15.07.2010 and 24.10.2011, and
submitted that the letters have no linkage with NFU.
33. Thereafter, drawing our attention to page 44 of the O.A
(Annexure A-7), the learned Sr. CGSC pointed out that the Hon'ble
Prime Minister had appointed a Committee under the Chairmanship
of the Cabinet Secretary to look into the aspects of Defence
personnel‟s claims, and several issues were listed before the
Committee, significantly the grant of NFU was one of these issues.
The committee, vide Para 37, has noted that “the service conditions
of Defence Force are quite different from those of civilians
employees. Benefits in the form of Military Service Pay and various
allowances are also available to the Defence Force Officers which are
not admissible to civilian Officers. It is, therefore, not logical to
compare the earnings of two services. Further, Defence Force
Officers are covered by a separate time bound promotion scheme up
to the level of Col. The scheme of non-functional upgradation is
applicable only for organized Group „A‟ Services and was extended to
IPS/IFS. The requirements related to command and control, the
norms for recruitment, promotion and the rank structure of the
Defence Force are not identical to those of Group „A‟ cadres. The
average age of entry of Commissioned Officers is lower than that of
O.A No. 802 of 2015 Col Mukul Dev
40
those joining the Group „A‟ Services. No parity presently exists in the
career progression of Group „A‟ Services and Commissioned Officers.
In the circumstances, the Committee is unable to make a
recommendation on the issue.”
34. He concluded by stating that the Government had accepted the
above recommendations and thereafter the five issues were referred
to the VII Pay Commission for resolution. In pursuance of the same,
the learned Sr. CGSC thereafter highlighted the Ministry of Defence
letter of 17.10.2014 at page 47 of the OA (Annexure A-8), wherein
issues were forwarded for the consideration of the VII Pay
Commission (through Ministry of Finance) and these issues included
the grant of NFU.
35. He thereafter stated that the aspects of pay and allowances
were issues that were to be examined by expert bodies, and it was a
settled law that the Courts should not intervene in these expert
issues. The learned Sr. CGSC thereafter brought to our attention the
fact that the report of a Committee related to Defence Service
personnel and the ex-service personnel was made available on
17.08.2012, and one of the issues considered therein was grant of
NFU, and he brought out that in this case also, there had been no
recommendations for grant of such a measure to the Armed Forces.
Significantly, he stated that the Armed Forces were accepted as a
distinct class, different from all other services with a distinct process
O.A No. 802 of 2015 Col Mukul Dev
41
of selection, rank structure, laws; service rules, functions, etc.; in
compensation of Armed Forces personnel, the Ministry of Defence
relies on a distinct number of allowances to Armed Forces, which
may not be available to other services, so comparison cannot be
made and as such NFU may not become an issue since it was,
indeed, disallowed to the Armed Forces while being allowed to Group
„A‟ services only.
36. In consideration of page 36 (Annexure A-4) of the O.A related
to the O.M of 19.11.2009, which talked about attributes of Organised
Group „A‟ Service, he stated that the contention of the learned Senior
Counsel for the petitioners that they had not been told that what
attributes they do not meet, may not be an appropriate question
since he would like to draw our attention to the note below this O.M,
which is referred to in Para 17 of this order preceding, (as quoted).
37. In pursuance of this above note, he therefore, stated that such
a classification of service was not automatic, and was the domain of
the Executive, and as such, based on the principles of division of
responsibilities, this was firmly within the competence of the
Executive to designate a service, and consequently this was not open
to interpretation.
38. He stated that while the contention being made by the
petitioners, is that the VI Pay Commission is the basis for non grant
of NFU and that a class was being deprived, (i.e. the Armed Forces),
O.A No. 802 of 2015 Col Mukul Dev
42
this could not be the basis of arguments of the petitioners, since
Armed Forces were a class apart and by definition were not included
in the Civil Services, therefore, there can be no argument that a
particular class has been deprived of a benefit. The Armed Forces do
not, in any way, form part of the class of Civil Services, far less
organised class „A‟ services. He stated from the Government O.M of
19.11.2009, laying down the attributes of organised Group „A‟
services, that the attributes are not very sacrosanct and the
Government reserves the right to classify a service where it deems
necessary.
39. In his opinion, the provisions of Articles 14 and 16 of the
Constitution, were not attracted and as an illustration, he stated, in
case the situation was that the Army had been given this NFU, and
the other two services had been denied, then, indeed, the provisions
of Article 14 of the Constitution were infringed; but, in the present
case, the Armed Forces did not form part of the classification of
Group „A‟ services and as such no inequity had manifested. He also
stressed on the logic and rationale behind the grant of NFU, and
stated that it was linked to the IAS and Organised Group „A‟ Services
and their peculiar career progression issues.
40. On the aspect of the AG‟s Branch note of 19.08.2011, referred
to in Para 22 preceding; (page 38 of the O.A), he stated that it was
addressed to the Ministry of Defence, it was an internal interaction,
O.A No. 802 of 2015 Col Mukul Dev
43
and could not help the petitioners, at any stage; the petitioners
cannot claim NFU on the justification emanating from this letter,
since it is the duty of the Government to enter into such deliberations
with the Armed Forces, and this communication was representative
of such a communication. The issue being open to wider scrutiny and
deliberation, its relevance did not apply. While referring to the AG
Branch‟s communication on this issue at page 38 (Annexure A-5 of
the O.A), the learned Sr. CGSC stated that Para 5 of this letter
highlights aspects of command and control as well as functional
problems which are slowly claiming to be eroding and demoralizing
the Armed Forces; he claimed this was an issue to be decided by the
Executive and the State, and not by Courts. He, therefore, stated that
straying into this domain consequently may not be appropriate.
41. He also brought out that when there were issues related to
promotion and cadre aspects, a specific committee, the A.V. Singh
Committee, had been constituted. This Committee had considered
issues specific to the Armed Forces personnel, and had, indeed,
granted cadre based and promotional based decisions, which only
benefited the Armed Forces, and did not, in any way, impact on other
Civil Services. We asked for the A.V. Singh Committee report to be
placed before us, which was done subsequently in a sealed cover.
42. To the arguments of the petitioners related to parity with IPS
and the necessary edge that was maintained historically, whether the
O.A No. 802 of 2015 Col Mukul Dev
44
edge was maintained or had now, indeed, been eroded, could not
influence opinion in any way, nor entitle the petitioners for grant of
NFU, which was a distinct issue. Further, related to the Hon'ble Delhi
High Court judgment, which had been relied upon by the petitioners,
he stated that the judgment related to Central Police Forces and
Para-Military Forces and were not applicable in this case, since in
their representation before the Hon'ble Delhi High Court the CPOs
and PMFs, had also sought amendments to their Recruitment Rules
and being considered as an Organised Group A Service. The learned
Sr. CGSC also stated that the judgment of the Hon'ble Delhi High
Court was not binding or applicable in this issue, since this issue was
under consideration by this Tribunal and in light of the judgment in
the case of Union of India and others v. Maj Gen Shri Kant
Sharma and another (JT 2015 (4) SC 576), judgments of the High
Courts were not binding on the Armed Forces Tribunal.
43. In furtherance of his arguments, thereafter he went on to the
counter affidavit as well as to quote and outline certain paragraphs of
that document. He stated, that the VI CPC was of the view that a
case exists for ensuring that the Group „A‟ services are given their
due and recommended that the Government should consider batch-
wise parity while empanelling and/or posting at Centre between
respective batches of IAS and other organized Group „A‟ services with
the gap being restricted to two years. Based on the
O.A No. 802 of 2015 Col Mukul Dev
45
recommendations of VI CPC, DoP&T formulated the NFU scheme.
This scheme has been formulated to grant financial upgradation, on
non-functional basis, to officers of organized Group „A‟ Services in
relation to IAS. The main purpose of the scheme is to bring some
sort of modified parity between IAS and other Central Group „A‟
Services, as per DoP&T‟s scheme for NFU, given in its O.M dated
24.04.2009. He thereafter outlined the major elements of this
scheme and the issues related to the Armed Forces.
44. The first premise of grant of NFU to an officer is that he should
belong to an organized Group „A‟ Service. The main reason for the
scheme is the disparity in the promotional avenues of IAS and other
Organised Group „A‟ Services. Defence Service officers do not belong
to an organised Group „A‟ Service. The command and control
features of Defence Services are quite unique and specific to their
system. They have a different hierarchical system and more number
of levels, different grade pay at these certain additional levels. They
have a separate scheme of promotional avenues having their own
residency periods in different ranks/grades. Defence Service officers
have a unique nature of service conditions and method of
compensation, monetary or otherwise, different from that of the IAS
or other organized Group „A‟ Services. Their nature of duties is quite
different and cannot be compared in any aspect with other organized
Group „A‟ Services. Their recruitment mode is also quite different and
O.A No. 802 of 2015 Col Mukul Dev
46
specific to their functional requirements. Any comparison of the
Defence Services with the other organized Group „A‟ Services for the
purpose of grant of NFU may be fallacious and contradictory. Even
the VI CPC did not recommend the grant of NFU to Defence Service
officers.
45. Post implementation of the VI CPC recommendations, the
Armed Forces have been representing to resolve issues related to
pay, parity and pension. On the directions of Hon'ble Prime Minister,
a Committee, under the Chairmanship of the Cabinet Secretary, to
look into certain pay and pension issues of serving and retired
Defence Service personnel, was set up by the Government in July,
2012, as stated in Para 24 preceding. The Committee submitted its
report in August, 2012. The Committee has not recommended grant
of NFU to Defence Force personnel. The contention of the petitioners
that non-grant of NFU to the Defence Forces is causing serious
command and control problems, is false and vehemently denied. No
such problem has been brought to the notice of the Government and
neither observed by it. A committee was constituted under the
Chairmanship of Cabinet Secretary on the directions of the Hon'ble
PM as stated above. The Committee did not recommend grant of
NFU to the Armed Forces officers. The matter of grant of NFU has
been examined at the highest level by the Government of India as
already stated earlier. Even the VI CPC, after complete examination
O.A No. 802 of 2015 Col Mukul Dev
47
of this issue, did not in its report anywhere recommend the grant of
NFU to the Armed Forces officers.
46. In continuation of the arguments, the Sr. CGSC highlighted that
comparison of earnings between the two services cannot be done
since such a comparison of two different classes of personnel cannot
be deemed to have similar structures of salary. Further, he stated
that there is no recommendation positively to grant NFU to the
Armed Forces, as such this was an area of policy, and since the
Executive had considered all facts despite there being no clear cut
recommendations, there could be no judicial intervention in this area
of policy. Subsequently the Sr. CGSC chose to refer to Paragraphs 4
and 5 of the rejoinder of the petitioners and in these paragraphs, the
Sr. CGSC drew attention as a response to the additional affidavit filed
by them on 27.07.2016 placed in the O.A, wherein in Paragraphs 2
and 3, the contentions raised by the petitioners in the rejoinder have
been, according to him, convincingly answered. The contentions
raised by the petitioners are that the Armed Forces meet all the
attributes stipulated by the respondents in their O.M dated
19.11.2009, related to definition and attributes of an organised Group
„A‟ service. They have also further stated that the aim of NFU was to
address the disparity in progression of IAS vis-à-vis the other services
and significantly the IPS. The petitioners have claimed that the
Armed Forces have always been equated for parity with the IPS and,
O.A No. 802 of 2015 Col Mukul Dev
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therefore, grant and non-grant of NFU is deliberately perpetuating a
disparity between the Armed Forces officers and the linked IPS pay
structure.
47. Further, the petitioners have stated that all Pay Commissions
from III CPC, have stipulated that a broad parity exists between the
Armed Forces officers and the civilian Group „A‟ officers, with IPS in
particular. Consequently, the contention of the respondents that
Defence Services are unique and specific to their own system is
incorrect. The petitioners have also stated that the respondents are
trying to mislead this Tribunal by making differences of the Armed
Forces on the basis of the service conditions, compensation and
monetary aspects, while the intention of NFU is only removal of
disparity in promotions to a particular grade of All India
Service/Group „A‟ services, vis-à-vis IAS with an edge of two years to
the IAS. The sole aim of NFU is for removal of stagnation in
promotion. It was also being submitted that the stagnation in Armed
Forces is far more acute than civilian Group „A‟ services. In response
to this, the respondents claimed by clearly answering these
contentions in their additional affidavit, firstly by clarifying the
conditions of NFU and its applicability, as also reinstating the unique
conditions between the Armed Forces and other organised Group „A‟
services, part of which is contained in Para 3 of the additional
affidavit.
O.A No. 802 of 2015 Col Mukul Dev
49
“It is submitted that as already submitted in Para 8 of the
Preliminary Submission in the Para wise reply of the counter
affidavit, Defence Service officers do not belong to organized
Group A Services. ………. Any comparison of the Defence
Services with the other Organised Group „A‟ Services for the
purpose of grant of NFU may be fallacious and contradictory.
Even VI CPC did not recommend the grant of NFU to Defence
Services Officers.”
48. The further paragraphs in the additional affidavit that the Sr.
CGSC chose to highlight were Paragraphs 9, 14, 15, 16 and 17 of the
additional affidavit. Para 9 is reproduced below:
“9) Further, the contention of the Applicant that Armed Forces
Officers have always been equated for parity with IPS is
also not correct. Armed forces have different Recruitment
Rules, Service conditions, governed by hierarchy,
command and control structure and compensation
package different from Organized Group “A” Services, and
also from IPS. The benefits of NFU have not been
extended to other Civil Services which have not been
recognized as Organized Group “A” Service. Therefore, it
may be incorrect to say that Respondents are trying to
inculcate a disparity between Armed Forces officers and
IPS. The contention of the Applicant “the sole aim of the
NFU is to cater for the demands of AIS/Group A services
for the removal of stagnation in promotion” is also not
correct as promotions at these levels are based on the
availability of vacancies at next higher level, and not
through NFU. Even in the scheme of NFU, the officer still
continues to work in the same functional post, on which
he was working before the grant of NFU. The only benefit
is given in pay to the officer concerned in NFU.”
O.A No. 802 of 2015 Col Mukul Dev
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49. In furtherance of other significant paragraphs in the additional
affidavit, the learned Sr. CGSC also stated, that the Petitioners have
contended that some services the officers of whom the armed forces
are working with on a daily basis, have been granted NFU such as
Coast Guard, BSF, ITBP etc. In this regard, it may be clarified that
Indian Coast Guard, BSF and ITBP have not been granted NFU.
Further, except the organized Group „A‟ Services, NFU has not been
granted in respect of all other services. It was also mentioned that
NFU is purely a non-functional upgradation, personal to the officer,
and will not bestow on him any right to claim promotion. Further,
the only benefit that is granted is financial and there is no change at
the functional level and all protocol and status aspects, amongst
different organizations are based on functional hierarchy, and not
based on financial upgradation under the NFU Scheme.
50. It was also submitted that the officers of Group „A‟
Services, who have to operate along side of Defence officers, would
not create any obstacle in the command structure. The officers, who
are in receipt of NFU, are sufficiently senior and unlikely to be
alongside the Army in operations. In any case, the rules of
command, as laid down, would operate and cannot dilute the system.
With reference to Para 8 of the petitioner‟s rejoinder, it is stated that
this paragraph confirms the contention of the respondents that
O.A No. 802 of 2015 Col Mukul Dev
51
service conditions of Defence Services are unique, therefore, they are
given an edge in the form of MSP and other measures. It may also
be submitted that civilians, including CAPF etc., who have joined on
or after 01.04.2004, have joined the new Pension Scheme, which is
contributory in nature, and consequently, they are not entitled to
regular Pension Scheme, as enjoyed by the Defence Service
Personnel. This also confirms that terms of engagement/service
conditions of Defence Personnel are different from the civilians.
51. With reference to the petitioner‟s rejoinder, the Sr. CGSC
submitted that NFU is not a promotion in any functional form, and is
only an extension of financial benefits under the scheme of NFU,
which is being claimed by the petitioners. The stagnation in any
service can only be handled under the scheme of cadre review;
therefore, reason for NFU given by the petitioners to “eliminate the
stagnation to certain extent” is not true. Consequently, the issue of
stagnation raised through tabulation made in Paras 4.27 and 4.28 of
the O.A cannot be addressed by the scheme of NFU.
52. Thereafter, the learned Sr. CGSC drew our attention to the VI
and VII CPCs. Summarising aspects of the VI CPC, he drew our
attention to the VII CPC aspects, which have been covered in Para 6
of the additional affidavit filed by the respondents.
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“6.It is respectfully submitted that the issue of grant of
the benefit of NFU to service officers was considered by the VII
CPC which is pending consideration with the Government. In
this Report, the commission has not given any unanimous
decision for grant of NFU to service officers. Instead there is a
fractured opinion with the Chairman of the Commission
recommending the grant of NFU to service officers but two
learned Members have given a Note of dissent with detailed
justification. However, the Chairman has not given detailed
justification for his recommendation. Even the Chairman has
recommended a change in the procedure for grant of NFU and
has stated that the NFU should be subject to the completion of
the prescribed residency period in the preceding substantive
grade and not linked to the promotion of an IAS batch as is
being presently done. To appreciate some of the important
aspects of the scheme of NFU and the claim of service officers, it
would be appropriate that the justifications of the two Members
of the Commission are considered by this Hon'ble Tribunal. The
views of two learned members are as follows:-
A. The view of Shri Vivek Rae, Member, VII CPC and one of the two members who has given his dissenting recommendation against the scheme of NFU, has opined for withdrawal of NFU even from Organised Group „A‟ Services. His detailed analysis on NFU and his comments on the issue are at Para 7.3.25 sub-Para (a) to (r) of the VII CPC Report which are contained in ANNEXURE AA-1 of Additional Affidavit.
B. Another member of VII CPC, Dr Rathin Roy, Member, has
further elaborated the case for withdrawal of NFU, and his detailed comments are at Para 7.3.26 sub-Paragraphs (a) & (b)(1) to (7) of the Report which may be be seen at ANNEXURE AA-2 of Additional Affidavit.”
O.A No. 802 of 2015 Col Mukul Dev
53
So the learned Sr. CGSC contended that there was no clear
recommendation by the VII CPC either and hence no case or
justification for NFU to the Armed Forces had been made out.
53. Related to judicial review, at the outset, the learned Sr. CGSC
stated that a judicial review, had to have (when related to Article 14
of the Constitution) some principle as also a nexus with the object
under scrutiny. Since there was no policy to give NFU, so how was
this review, in the absence of policy, possible?
54. The Sr. CGSC clarified on an aspect of financial constraints
raised by the petitioners, in that he stated that non-grant of NFU due
to financial constraints was not the claim of the Government.
Thereafter, a copy of the report of the A.V. Singh Committee was
presented in a sealed file for our perusal and the Sr. CGSC stated
that the reasons for the formulation of the Committee and its award
had been given. However, these may not have been the only
reasons being considered in the A.V. Singh Committee.
55. Constitutionally, the Defence Services were a different class.
Article 311 of the Constitution made the civil services unique, and this
needed to be borne in mind. The Sr. CGSC, thereafter, chose to place
before us an extract from the report of the VII CPC, Para 6.2.14 to
6.2.20, wherein the earnings of Service Officers and their civilian
equivalents in services had been highlighted and graphically
tabulated.
O.A No. 802 of 2015 Col Mukul Dev
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56. In support of his contentions, the learned Sr. CGSC has placed
reliance on the following decisions:
(i) Parisons Agrotech Private Limited and another v. Union of India and others (2015) 9 SCC 657.
(ii) Union of India v. Dinesh Engg. Corporation (2001) 8 SCC
491. (iii) Asif Hameed and others v. State of Jammu and Kashmir
and others, etc. (1989) Supp (2) SCC 364. (iv) Sita Ram Bishambhar Dayal and others v. State of U.P
(1972) 4 SCC 485. (v) Union of India and others v. Pradip Kumar Dey (2000) 8
SCC 580. (vi) State of Punjab v. Amar Nath Goyal (2005) 6 SCC 754. (vii) Union of India v. Dineshan K.K (2008) 1 SCC 586.
In furtherance of these decisions, referring to Articles 14 and 32 of
the Constitution of India, the Senior Standing Counsel chose to
highlight aspects related to the policy decisions, scope of judicial
review and the principles related to it. In consideration of the
preceding, the Senior CGSC stated that the O.As are not maintainable
and hence should be dismissed.
Rejoinder:
57. Consequent to the pleadings and arguments by the
respondents, the petitioners have raised the following issues in their
rejoinder:
O.A No. 802 of 2015 Col Mukul Dev
55
(i) The edge traditionally enjoyed by the Defence Forces
officers vis-à-vis other civil services had been lost due to
the implementation of NFU;
(ii) There was no doubt in the fact that the Armed Forces
were a class apart and no claims to the contrary had
been made in the O.A or in the arguments. In
continuation of this, the learned senior counsel contended
that the petitioners have never, in their O.As, claimed
that they are Group A service, nor did they claim to be
designated as a Group A Service;
(iii) While the respondents continuously have claimed that
this issue is the domain of the Executive, despite several
recommendations and considerations between
Commissions and the Executive; NFU has not been
granted to the Defence Service officers. Consequently
their only recourse is to approach this Tribunal;
(iv) The learned senior counsel, placing reliance on the
judgment in G.J Singh (supra), stated its relevance in
relation to the first impugned order in this O.A, wherein it
had been stated that “since you do not have the set up of
an organised Group A service, NFU cannot be given.”
Thereafter, inviting our attention to Paragraphs 73 and 74
of the judgment in G.J. Singh (supra), the learned senior
counsel stated that while the respondents insisted this
was not the domain of the Courts, the Paragraphs quoted
above contained justification for the fact that
classification cannot be over emphasized;
(v) The counsel stated the aspect of judicial review and the
powers of judicial review of Courts over administrative
action, and consequently the necessary appeal before this
O.A No. 802 of 2015 Col Mukul Dev
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Tribunal, to exercise that judicial review over Executive
action or inaction;
(vi) The mere fact that there is lack of recommendations on a
specific aspect (by the Pay Commission), does not bind
the Government. If the Pay Commission is silent, the
Government does not have to be captive to that silence;
(vii) The claim of the respondents that the Government has
not specifically given NFU due to lack of recommendation
by the Pay Commission, fails since the Government itself
decided to extend NFU to the IPS and IFS by an executive
order on its own volition;
(viii) When a policy of equation, over four decades had been
maintained with the IPS, grant of NFU to the IPS assumes
even greater relevance because of the acute nature of
discrimination;
(ix) Classification has to have a rational objective. Since this
measure of NFU was targeted at the aspect of stagnation,
its grant or denial has to be centered on that particular
aspect. The status of stagnation in the Armed Forces vis-
à-vis other Civil Services (IAS, IPS, Group A, etc) had
been clearly tabulated in Paragraphs 4.27 and 4.28 of the
O.A. There has been no response by the respondents to
this in any of their pleadings, nor has it been denied by
the Government. The counsel stated that while the
Government could have easily responded to this issue, it
has remained silent;
(x) Each of the 66 Civil Services were different and each had
distinctly different and exclusive criteria. The Chairman of
the VII CPC has recommended to give NFU to each
service. This could have been done in the case of the
O.A No. 802 of 2015 Col Mukul Dev
57
Armed Forces. In furtherance of this, the learned senior
counsel stated that if any two organised Group A services
were chosen, they would not be identical in terms of the
ingredients of cadre control; allowances; authorities;
residency periods; recruitment rules; etc.
Consideration by the Court:
58. While considering the arguments as well as the detailed
pleadings, it would be pertinent, at the outset, to examine the
constitutional status of the Armed Forces. In order to reach the root
of this status, the Constituent Assembly debates have been perused
and those that lend themselves to indicating that there was a clear
intention to formulate a separate and distinct, unique class of Armed
Forces are reproduced below:
Constituent Assembly Debates
59. At the outset the under mentioned discussion is related to the
power of superior civil courts, High Courts or Supreme Courts over
decisions taken by a Court or a Tribunal constituted under any law
relating to the Armed Forces. Here it is evident from the following
extract that not only were the Armed Forces of the Union always
considered distinct, but there was even great reliance and
dependence on the independent, uniqueness and need for unfailing
discipline and cohesion in the Armed Forces.
O.A No. 802 of 2015 Col Mukul Dev
58
“The Defence Ministry feels that such an important matter
ought not to be left in a condition of doubt and that there should be
a statutory provision requiring that none of the superior Civil Courts
whether it is a High Court or the Supreme Court shall exercise such
jurisdiction as against a Court or Tribunal constituted under any law
relating to the Armed Forces.
This question is not merely a theoretical question but is a
question of great practical moment because it involves the discipline
of the Armed Forces. If there is anything with regard to the Armed
Forces, it is the necessity of maintaining discipline. The Defence
Ministry feel that if a Member of the Armed Forces can look either
to the Supreme Court or to the High Court for redress against any
decision which has been taken by a Court or Tribunal constituted for
the purpose of maintaining discipline in the Armed Forces, discipline
would vanish.” (emphasis supplied)
Constituent Assembly debate with relation to Article 53 of the Constitution.
60. When dealing with Article 53 of the Constitution, whereby the
President is the Supreme Commander of the Defence Forces, the
Constituent Assembly debates are revealing. In the formulation of
Article 53, several amendments had been proposed by the
Constituent Assembly, which all intended to expand the scope of this
Article, which deals with the executive power of the Union and
numerous arguments on sovereignty, embodiment of sovereignty in
the person of the President; the fact that the President was a
creature of the Constitution, etc., were discussed and debated. There
was never any doubt or debate related to the President remaining
O.A No. 802 of 2015 Col Mukul Dev
59
unequivocally the Supreme Commander of the Defence Forces (only),
they being distinctive and unique. While all the other considerable
amendments proposed to this Article were not adopted by the
Constituent Assembly, the clear enunciation of Supreme Command of
the President over the Defence Services was enshrined to the
exclusion of others. It follows from this that there is unquestionably
no doubt that the Armed Forces of the Union are sovereign forces,
and this bears specific statement since, in our examination of the VI
CPC recommendations at one stage, the Civil Service has wanted to
be grouped in three classes, the upper most class being those that
perform sovereign function (Para 27 preceding referred). While such
a classification was not undertaken for the Civil Services, despite a
demand, related to the Defence Forces, the Constitution is definitive
of their clear linkage under the Supreme Commander, as a sovereign
force.
61. It is therefore, evidently clear that the Armed Forces are a
unique and separate class. We need to examine that by virtue of
being a unique and distinct class, prominently mentioned in the
Constitution, and has also clearly held in the mind of the Constituent
Assembly, does this automatically deny them the institution of a
NFU?
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Articles 14 and 16 of the Constitution
62. We would now turn to the aspect of scope, extent and
applicability of Articles 14 and 16 of the Constitution. Here it would
be worthwhile to extract a portion of the constituent assembly
debates related to Article 243 of the draft Constitution reproduced
below:-
“Shri H.V. Kamath; ….. May I humbly add my feeble voice
to the protest that has been raised in the house by several Hon'ble
Members against the Justice that has been sought to be embodied
in this Article? We have proclaimed in the preamble to the
Constitution that Justice shall be the Pole-Star or the Lode-Star of
our Constitution. We have given pride of place in the preamble to
our idol that Justice, social, political and economic, shall be meted
out to all. I hope we shall not deny any class of people, public
servants or others, the fundamental Justice that is their due …… I
was wondering whether we in this house are sitting as mere
lawyers framing Fundamental Rules …… or whether we as a free
people, after attainment of freedom are busy drafting a Constitution
for a free people – a Constitution illumined by idols of liberty,
equality and justice.”
63. In viewing the scope and, indeed, the extent of the all imposing
Article 14, we would like to put on record certain cardinal judgments.
Delhi Transport Corporation v. D.T.C Mazdoor Congress and others (1991 Supp (1) SCC 600):
“264. ………. The need to subject the power centres
to the control of the Constitution requires an expansion of
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concept of State action. The duty of State is affirmative
duty seeking that all essentials of life are made available to
all persons. The task of State today is to make the
achievement of good life both by removing obstacles in the
path of such achievement and by assisting individual in
realizing his ideal of self-perfection. ……………”
xx xx xx xx xx xx
“267. The Constitution is the permanent law of the
land and its preamble is an integral part thereof. It assures
Social and Economic Justice and also accords equality of
opportunity and status as well as equality before law
assuring dignity of the individual. The Constitution Forty-
second Amendment Act introduced “Socialism” in the
preamble and made explicit of what is latent in the
constitutional scheme. …..‟”
xx xx xx xx xx xx
“295. In E.P Royappa v. State of Tamil Naldu (1974)
4 SCC 3, Bhagwati, J. (as he then was) held that Article 14
is the genus while Article 16 is a specie. 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. „Equality is a dynamic concept with
many aspects and dimensions and it cannot be “cribbed,
cabined and confined” within traditional and doctrinaire
limits. From a positivistic point of view, equality is
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antithetical 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 affects any matter relating to public employment, it
is also violative of Article3 16. In Maneka Gandhi case
(1978) 1 SCC 248, it was further held that the principle of
reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence. In
Ramana case (1979) 3 SCC 489, it was held that it is merely
a judicial formula for determining whether the legislative or
executive action in question is arbitrary and therefore
constituting denial of equality. If the classification is not
reasonable and does not satisfy the two conditions namely,
rational relation and nexus the impugned legislative or
executive action would plainly be arbitrary and the
guarantees of equality under Article 14 would be breached.
…….. In fact, the concept of reasonableness and non-
arbitrariness pervades the entire constitutional scheme and
is a golden thread which runs through the whole of the
fabric of the constitution.” (emphasis supplied)
Mrs Maneka Gandhi v. Union of India and another (1978) 1 SCC 248:
“7. Now, the question immediately arises as to what
is the requirement of Article 14; what is the content and
reach of the great equalizing principle enunciated in this
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article? There can be no doubt that it is a founding faith of
the Constitution. It is indeed the pillar on which rests
securely the foundation of our democratic republic. And,
therefore, it must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to
truncate its all-embracing scope and meaning, for to do so
would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire
limits. We must reiterate here what was pointed out by the
majority in E.P. Royappa v. State of Ramil Nadu (1974) 4
SCC 3 …….. It must be „right and just and fair‟ and not
arbitrary, fanciful or oppressive; otherwise, it would be no
procedure at all and the requirement of Article 21 would not
be satisfied.” (emphasis supplied)
Sunil Batra v. Delhi Administration and others (1978) 4 SCC 494:
“37. …….. That is to say, courts must, with
intelligent imagination, inform themselves of the values of
the Constitution and, with functional flexibility, explore the
meaning of meanings to adopt that construction which
humanely constitutionalizes the statute in question. ……..
The luminous guidelines in Weems v. United States 54 L Ed
793, 801 (1909) sets our sights high:
…….. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can
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approach it”. The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. …….. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.”
In (1979) 1 SCC 380, a Constitution Bench of the Hon'ble Supreme
Court, in re the Special Courts Bill 1978, has held as under:-
“(3) The constitutional command to the State to afford
equal protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or
scientific exclusion or inclusion of persons or things. The
courts should not insist on delusive exactness or apply
doctrinaire tests for determining the validity of classification
in any given case. Classification is justified if it is not
palpably arbitrary.
(4) The principle underlying the guarantee of Article 14
is not that the same rules of law should be applicable to all
persons within the Indian Territory or that the same
remedies should be made available to them irrespective of
differences of circumstances. It only means that all persons
similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. Equal laws
would have to be applied to all in the same situation, and
there should be no discrimination between one person and
another if as regards the subject-matter of the legislation
their position is substantially the same.
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(5) By the process of classification, the State has the
power of determining who should be regarded as a class for
purposes of legislation and in relation to a law enacted on a
particular subject. This power, no doubt, in some degree is
likely to produce some inequality; but if a law deals with the
liberties of a number of well-defined classes, it is not open to
the charge of denial of equal protection on the ground that it
has no application to other persons. Classification thus
means segregation in classes which have a systematic
relation, usually found in common properties and
characteristics. It postulates a rational basis and does not
mean herding together of certain persons and classes
arbitrarily.
(6) The law can make and set apart the classes
according to the needs and exigencies of the society and as
suggested by experience. It can recognise even degree of
evil, but the classification should never be arbitrary, artificial
or evasive.
(7) 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 order to pass the
test, two conditions 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.
(8) The differentia which is the basis of the
classification and the object of the Act are distinct things and
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what is necessary is that there must be a nexus between
them. ……” (emphasis supplied)
We would like to place on record the salient issues from the
judgment of the Hon'ble Supreme Court.
64. In D.S Nakara (supra), the main issue that arose for
consideration in this case pertained to pension and not wages. In
Paragraph 32, the Apex Court held that the State shall strive to
minimize the inequalities in income and endeavour to eliminate
inequalities in status, facilities and opportunities. Article 39(d) enjoins
a duty to see that there is equal pay for equal work for both men and
women and this directive should be understood and interpreted in
the light of the judgment of the Supreme Court in Randhir Singh
(supra). It was also held that persons holding identical posts may not
be treated differently in the matter of their pay merely because they
belong to different departments.
65. In Hukum Chand Gupta v. Director General, Indian
Council of Aglricultural Research (2012) 12 SCC 666, while
rejecting the claim of the appellant for parity in pay scale, the
Supreme Court observed as follows:
“21. In expressing the aforesaid opinion, we are fortified by
the observations made by this Court in State of Punjab vs. Surjit
Singh (2009) 9 SCC 514. In that case, upon review of a large
number of judicial precedents relating to the principle of “equal
pay for equal work”, this Court observed as follows: (SCC pp. 527-
28, para 19):
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“19. ….. Undoubtedly, the doctrine of “equal pay for equal work” is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of “equal pay for equal work” has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation …..”
66. Based on the above judgments, it is ample evident that Article
14 and the concept of equality between classes cannot be viewed in
a restrictive and confined sense. More significantly, the
reasonableness and non-arbitrariness of an issue needs to be tested
on the premise of a reasonable classification of groups, however, in
each of the classifications, it must be directly linked to an intelligible
differentia, and very clearly the object sought to be achieved by that
classification, without it being subjected to these tests, it cannot be
upheld as valid.
67. The respondents had, on several occasions, raised the issue of
scope of judicial review. When related to the realm of policy and,
indeed, wherever it was claimed as the undisputed discretion of the
Executive to form such a policy, there was no scope for any judicial
intervention.
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68. Now, we shall deal with the decisions relied upon by the
learned Sr. CGSC:
(i) Parisons Agrotech Pvt Ltd (supra): Paragraphs 14
to 20 of this judgment are relevant. Critical to the present issue
is the fact that a decision or a policy must be arrived at with
due application of mind backed by cogent material and the
decision taken should not be arbitrary or irrational. While
Courts will not ordinarily interfere in policy matters, which are
based on expert knowledge, it does not imply that Courts would
abdicate their rights to scrutinize whether the policy in question
is formulated keeping in mind all the relevant facts and the
policy in question is beyond pale of discrimination or
unreasonableness. Any decision, be it a simple administrative
decision or a policy decision, if taken without considering the
relevant facts, can only be termed as an arbitrary decision;
Significantly stated is “Once we find that parameters of Article 14 are
satisfied; there was due application of mind in arriving at the
decision, which is backed by cogent material: the decision is not
arbitrary or irrational and; it is taken in public interest, the Court has
to respect such a decision of the Executive.”
(ii) Dinesh Engg Corpn (supra): Where the decision of
the authority is in regard to a policy matter, the Court will not
ordinarily interfere, since these policy matters are taken based
on expert knowledge. But this does not mean that the courts
have to abdicate their right to scrutinize whether the policy in
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question is formulated keeping in mind all the relevant facts
and whether the said policy can be held to be beyond the pale
of discrimination or unreasonable, on the basis of the material
on record.;
(iii) Asif Hameed (supra): The significant aspect is that
while the judiciary has no power over sword or the purse. It
has power to ensure that the two main organs of the State
(Legislature and Executive) function within the constitutional
limits. It is the sentinel of democracy. Judicial review is a
powerful weapon to restrain unconstitutional exercise of power
by the Legislature and the Executive. The Constitution does not
permit the Court to direct/advise the Executive in matters of
policy or to sermonize. The expanding horizon of judicial review
has taken in its fold the concept of social and economic justice.
It also stated that the exercise of judicial review should be with
self imposed discipline of judicial restraint.
(iv) We do not find much relevance in the decision in Sita
Ram Bishambhar Dayal (supra), so far as the facts of the
present cases are concerned.
(v) Pradip Kumar Dey (supra): Courts should normally
leave such matters, which require further consideration afresh
by an expert body like the Pay Commission or the Government
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itself, for the wisdom of administration except the proven cases
of hostile discrimination.
(vi) Placing reliance on the decision in Amar Nath Goyal
(supra), the learned Sr. Standing Counsel has brought out the
aspect that recommendations of the Pay Commission are not
binding on the Government as the Government has to accept
and implement those recommendations consistent with its
financial position. It is trite that the final recommendations of
the Pay Commission were not ipso facto binding on the
Government, as the Government had to accept and implement
the recommendations of the Pay Commission consistent with its
financial position. Such an action on the part of the
Government can neither be characterized as irrational, nor as
arbitrary so as to infringe Article 14 of the Constitution.
(vii) In Dineshan K.K (supra), which related to aspect of
equal pay for equal work, it was held that the principle has
assumed the status of a fundamental right. While this was the
position of the principle of equal pay for equal work, it had no
mathematical application in every case of similar work. It was
observed that equation of posts and equation of pay structure
being complex matters are generally left to the Executive and
expert bodies like the Pay Commission, etc. It was also
emphasized that a carefully evolved pay structure ought not to
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be ordinarily disturbed by the Court as it may upset the balance
and cause avoidable ripples in other cadres as well. It was also,
however, held that it was not correct to lay down as an
absolute rule that merely because determination and granting
of pay scales is the prerogative of the Executive, the Court has
no jurisdiction to examine any pay structure and an aggrieved
employee has no remedy if he is unjustly treated by arbitrary
State action or inaction, except to go on knocking at the doors
of the Executive or the Legislature.
69. In this regard, we would also like to put on record the
judgment of Hon'ble Supreme Court in the case of Shri Sitaram
Sugar Co. Ltd and another v. Union of India and others (1990)
3 SCC 223:
“46. Any arbitrary action, whether in the nature of a
legislative or administrative or quasi-judicial exercise of power, is
liable to attract the prohibition of Article 14 of the Constitution. As
stated in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 ……
The principle of equality enshrined in Article 14 must guide every
State action, whether it be legislative, executive, or quasi-judicial:
Ramana Dayaram Shetty v. International Airport Authority of India
(1979) 3 SCC 489; Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1
SCC 722 and D.S. Nakara v. Union of India (1983) 1 SCC 305.”
xx xx xx xx xx xx
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“52. The true position, therefore, is that any act of the
repository of power, whether legislative or administrative or quasi-
judicial, is open to challenge if it is in conflict with the Constitution
or the governing Act or the general principles of the law of the land
or it is so arbitrary or unreasonable that no fair minded authority
could ever have made it.” (emphasis supplied)
It is amply clear that the policy or the domain of policy falls within
the ambit of judicial review when it breaches any of the provisions of
reasonableness or, indeed, denial, based on obfuscation or
evasiveness; or is not considered “right, just and fair”. The aspect
related to the overall paradigm of NFU, as visualized by the VI CPC
and subsequently considered by the VII CPC, in the light of the
processing and clear enunciation in relation to the defence services,
falls firmly within the ambit of judicial review. We draw strength in
this regard, based on the judgments on this aspect by the Hon'ble
Supreme Court (see Delhi Transport Corporation; Mrs Maneka
Gandhi; In Re the Special Courts Bill 1978; Sugar Co. Ltd (supra)). As
such, we cannot agree with the repeated contentions of the
respondents that the issue before this Tribunal does not merit the
intervention of a judicial review, whether in fact there is a policy or
there is absence of one.
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THE VI AND VII CPCs
70. It would be pertinent now to examine the salient provisions of
VI and VII CPC. The Court recognizes that Pay Commissions are
indeed specialized bodies formulated periodically for review and
recommendations on all aspects related to pay and pensions. The
Notification for constitution of the Committee for the VI CPC was
constituted vide resolution 5/2/2006-E.III(A) dated Oct 5, 2006. The
terms of reference specified in Para 1.1.2 A, B, C and 1.1.6 are:
“A. To examine the principles, the date of effect thereof
that should govern the structure of pay, allowances and other
facilities/benefits whether in cash or in kind to the following
categories of employees:-
1. Central Government employees – industrial and
non-industrial.
2. Personnel belonging to the All India Services.
3. Personnel belonging to the Defence Forces.
4. Personnel of the Union Territories.
5. Officers and employees of the Indian Audit and
Accounts Department; and
6. Members of the regulatory bodies (excluding the
RBI) set up under Acts of Parliament.
B. To transform the Central Government Organisations
into modern, professional and citizen-friendly entities that
are dedicated to the service of the people.
C. To work out a comprehensive pay package for the
categories of Central Government employees mentioned at
(A) above that is suitably linked to promoting efficiency,
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productivity and economy through rationalization of
structures, organizations, systems and processes within the
Government, with a view to leveraging economy,
accountability, responsibility, transparency, assimilation of
technology and discipline.
1.1.6 Terms of Reference of the VI Central Pay Commission
are somewhat different from those of the earlier Central Pay
Commissions. Clause 2 (B) of the Terms of Reference
envisages transforming the Central Government
organizations into modern, professional and citizen friendly
entities that are dedicated to the service of the people. ……”
While aspects related to the defence services that have been
recommended by the VI Pay Commission have been covered in the
preceding Paragraphs. The Tribunal would seek to highlight some
aspects related to the civil services:-
“3.3.2 While the three All-India Services, namely, the
Indian Administrative Service, Indian Police Service and
Indian Forest Service are common to the Centre and the
States, the manpower for performing the functions of the
Central Government at Group A level is mainly provided by
Organized Central Services and these Services account for
the bulk of the Group A posts under the Central
Government. ……..
3.3.13 The demand of a few Associations regarding
classification of Central Group A Services into 3 categories,
viz., those having sovereign functions of the State; those
having regulatory functions; and the ones that are
commercial in nature have been examined by the
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Commission. While the Commission is not in favour of
disturbing the existing relativities in pay scales, the need to
reward performance cannot be understated. …….”
(emphasis supplied)
The applicants also placed before this Tribunal recommendations of
VII CPC. The relevant extracts of the VII CPC recommendations
related to NFU essential for consideration are reproduced below:
“6.2.33 In the Joint Services Memorandum, the Defence
Services have pointed out that the VI CPC, in its report
extended Non-Functional Upgradation to Organised Group „A‟
Services. Such benefit was however not granted to the
Defence Service Officers, which, in their view is an anomaly.
It has been pointed out by the Defence Services that the
grant of NFU to Organised Group „A‟ Services in Ministry of
Defence which operate alongside the defence forces like
MES, Border Road Organisation, and Survey of India etc. has
created command, control and functional problems.
6.2.34 The deliberations in the context of whether NFU,
presently available to Organised Group „A‟ services, should be
allowed to continue or not have been elaborated in Chapter
7.3. The aspect of grant of Non-functional upgradation to
officers of the Defence Forces was also discussed at length.
After considering the various aspects the Chairman felt that
NFU should be allowed to continue since it has existed for the
last 10 years and is being availed by all the Organised Group
„A‟ Services. Therefore, the Chairman did not propose to
abolish it.
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6.2.35 Further, with a view to ameliorate the difficulties
faced by the officers owing to stagnation at various levels,
the Chairman felt that NFU should be extended to the officers
of the Defence forces and CAPFs (including ICG) as well. The
manner in which NFU is to be regulated in the Defence
Forces is discussed in Chapter 11.22.
6.2.36 Shri Vivek Rae and Dr. Rathin Roy, Members, VII
CPC, have not agreed with the views of the Chairman. They
are of the considered view that NFU till SAG and HAG level,
granted to Organised Group „A‟ Services, should be
withdrawn. They have also not supported extension of NFU
to Defence Forces and CAPFs, including ICG. The rationale
for their views has been elaborated in Paragraphs 7.3.29 and
7.3.30 of the Chapter 7.3 on Central Services, Group „A‟ and
is not being repeated here.”
71. There have been considerable arguments over the views of Shri
Vivek Rae and Dr Rathin Roy, Members of the VII CPC who have not
agreed with the view of the Chairman. The Court in perusal of views
of Hon'ble Member Shri Vivek Rae has studied the comments in
Paragraphs 7.3.25 which are indeed based on a lucid and prescient
appreciation of the aspects related to NFU and how they have
manifested. In this the Hon'ble Member while outlining his dissent
and views based upon it, has centred his opinion on “seeking uniform
career progression even among organised Group „A‟ Services till the
highest levels in the hierarchy is also not tenable. The principle of
“equality of opportunity” cannot be stretched to mean “equality of
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outcomes”. Thereafter the Hon'ble Member has said that prior to the
VI CPC the Scheme for time bound promotion was broadly uniform
across India services, Organised Group „A‟ Services and the Defence
Forces. This broad parity he claims was disturbed by granting NFU to
IPS, IFS and Organised Group „A‟ Services after the VI CPC Report,
without a similar dispensation being extended to the Defence forces.
72. As extract of Shri Vinod Rae reads: “Consequently the Defence
forces officers who are in no way lower in status or responsibility
than Group „A‟ Central Services, though not classified as such, have
fallen steeply behind IPS/IFS and 49 Group „A‟ Services. This has
undermined the status and morale of the Defence Forces and has
been a matter of serious concern for them over the last decade. As
the Defence Forces has pointed out in their Joint Service
Memorandum (JSM), the Defence Forces face an acute problem of
stagnation because of their unique structure, if there was a case for
NFU and at SAG and HAG level it should have been given to Defence
Forces before anybody else. In fact, the policy outcome was the
reverse whereby the least disadvantaged Organised Group „A‟
Services reaped maximum benefit on untenable grounds of parity
with IAS. The exclusion of Defence forces from NFU has been unfair.
The gap between career progression in the Defence forces in
comparison with 49 Organised Group „A‟ and IPS/IFS which was
already in large has been stretched beyond reasonable limits.”
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73. Thereafter the Hon'ble Member has gone on to consider the
aspects related to the NFU and in consideration of such aspects has
stated “the special problems that the Defence Forces face with
regard to the eight Organised Group „A‟ Services with whom they
have close interface, also cannot be resolved under the NFU
dispensation. At the same time the dissonance between the Defence
Forces and these eight Organised Group „A‟ Services, as well as
adverse impact on command and control is clearly undesirable and
unacceptable outcome which has lowered the moral and status of
Defence Forces officers. Such a situation cannot be allowed to
continue. The only way in which some semblance of parity can be
restored is by withdrawing NFU from Organised Group „A‟ Services.
Thereafter the Member has stated that in the view of the
undersigned, it was a mistake to grant NFU to 49 Organised Group „A‟
Services, IPS and IFS till HAG level on untenable grounds of parity
with IAS. Exclusion of Defence Forces and CAPF‟s has only
aggravated the mistake.”
74. Significantly the Hon'ble Member thereafter has recorded his
views that the rationale for rejecting grant of NFU till SAG and HAG
level to Defence forces has been explained by Ministry of Defence as
“the issue was examined in the Ministry by a Committee headed by
the Cabinet Secretary. The Committee in its report which was
accepted by the government has noted that the service conditions of
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Defence Forces are quite different from those of civilian employees.
Benefits in the form of Military Service Pay and various allowances
are also available to the Defence Forces officers which are not
available to civilian officers. It is, therefore, not logical to compare
the earnings of two services. Further, Defence Forces officers are
covered by a seParate time bound promotion scheme up to the level
of Colonel. The scheme of non-functional upgradation is applicable
only for Organised Group „A‟ Services and was extended to IPS/IFS.
The requirements related to command and control, the norms for
recruitment, promotion and the rank structure of the Defence Forces
are not identical to those of Group „A‟ cadres. The average age of
entry of Commissioned Officers is lower than that of those joining
Group „A‟ Services.” In view of the above, the Committee did not
make any recommendation on this issue. The Hon'ble Member Shri
Vinod Rae has noted that “the above rationale applies equally to 49
Organised Group „A‟ Services who have been extended NFU. The
requirements related to command and control, the norms for
recruitment, promotion and the rank structure in the 49 Organised
Group „A‟ Services can vary widely, depending on the functions
performed by each service. These 49 Organised Group „A‟ Services
simply cannot be painted with the same brush. The rationale for
rejection of NFU for Defence Forces, therefore, applies equally to the
49 Organised Group „A‟ Services. Further, the average age of entry
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has no bearing on this matter since the vast majority of officers of
the Defence Forces also retire much earlier.”
75. It was in consideration of these and other comprehensive
issues that the Hon'ble Member had recommended a complete
discontinuance of NFU to all Class „A‟ Services. His non
recommendation for the Armed Forces has to be seen in this light.
76. In the comments by Dr. Rathin Roy, Hon'ble Member, VII CPC
at Para 7.3.26 while agreeing with the views of Shri Rae, he has in
Para 5 of his analysis stated his view and subsequently recorded his
dissent.
77. In Para 11.22.20, the Chairman has listed his
recommendations:-
“Further, with a view to ameliorate the difficulties
faced by the officers owing to stagnation at various levels,
the Chairman felt that NFU should be extended to the
CAPFs and Defence Forces as well. Both of them have,
citing high levels of stagnation, sought NFU on the same
lines as has been granted to the Organised Group „A‟
Service. Having regard to the legitimate career aspirations
of the CAPFs/Defence on the principles of equity, the
Chairman is of the considered view that NFU should be
extended to the CAPFs and Defence forces as well. The
number of non-functional upgrades may be limited to two,
as it is in the case with Organised Group „A‟ Service.
These two upgrades should, logically, be at the two levels
just above those where the system of time-bound
promotions ceases. These are also the stages at which
the stagnation levels are high.”
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Summary of Pay Commissions
78. It is clear from the preceding and examination of the Pay
Commission Reports, that the scope of the VI CPC and its mandate,
was to treat all services listed within its directive as one class for the
purposes of dealing with their comprehensive pay related issues. The
Armed Forces form part of this class for the VI CPC. It is also amply
clear that Pay Commissions are indeed Expert Bodies tasked with
specific mandate as well as Charters. Related to the VI CPC the
specific recommendations related to NFU have been covered in Para
2.3.17 of the report and relevant aspects are quoted below:-
“Grant of promotion on non-functional basis for
certain other posts of officers has also been demanded.
The demand has some merit as grant of higher pay
on personal basis to Defence Forces officers not
promoted due to short tenure would appear to be
justified. The Commission, however, is not making a clear
cut recommendation on this issue because, in its opinion,
the demand has to be considered by the Government taking
in view the various considerations. The Commission
recommends that the Government should consider
the demand of grant of higher pay band and grade
pay on non-functional basis to the Defence Forces
officers who are not promoted due to short tenure.
This non-functional upgradation, if allowed, will not count
for other benefits like increase in tenure, etc.” (emphasis
supplied)
79. Related to the VII Pay Commission it is amply clear that the
Chairman has recommended grant of NFU to the Defence Forces.
The two Members have dissented based on a principled approach to
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the entire concept of NFU as it pervades in the Civil Services. While
examining this, however, they have unequivocally stated that the
purpose for which the NFU was designed (i.e. addressing the aspects
of stagnation), has in itself the maximum relevance to Defence
Forces, and there was unfairness in it not having been granted to the
Armed Forces. They have also stated that the levels of stagnation in
the Armed Forces have reached unacceptable levels based on the
overall progression of other cadres and services. They have also
clearly stated that the Armed Forces which may not have been
classified as a Class „A‟ service, is in no way less than such services
and they indeed enjoy a special position in the various services of the
Union of India. Having stated this and examined NFU in its totality
they have overall recommended that NFU needs to be discontinued
across the board for all services and therefore, by implication in a
scenario where it was completely removed, it quite naturally would
not exist as a measure to be granted to any service. This, however,
is not the case today since despite the recommendations of the VII
CPC, NFU in its present form with the exclusion of Defence Forces
continues. If the Government had taken a decision to, indeed, do
away with NFU, circumstances for consideration of this issue, would
have been materially different. As a consequence the
recommendations of the Chairman and Members of the VII CPC have
to be viewed in their totality.
O.A No. 802 of 2015 Col Mukul Dev
83
Military Service Pay
80. MSP, clearly has been introduced for unique service conditions
(explained at Para 9 preceding); it was designed to give an edge to
compensate for hardships specific to the defence services and in its
commencement, the erstwhile edge in scales, was done away; and
this financial pay up to the rank of Brigadier, does not impact on the
scale or grade of pay and in any case does not, address the issue of
stagnation, which is sought to be alleviated by the NFU. The issue of
status that becomes linked to NFU, is clearly linked to grade pay. In
incorporation of this measure, the pay commission worked on a
principle of parity with civilian posts, with a distinct edge (monetary),
to compensate for hardships. Based on the principle of parity once
the civil services get NFU (pay scale & grade pay); naturally the
parity and resultant status of Defence Forces Officers will be
adversely effected due to non grant of NFU to them.
Examination of GOI File No.1/18/2010 D (Pay/Services) of the MOD:
81. This file provided to the Tribunal relates to the
anomalies/issues raised by services after implementation of the VI
CPC, and significantly also related to NFU. The file encloses an
attachment from the Department of Personnel & Training which has
outlined the fact there were no recommendations by the VI CPC for
grant of NFU to the IPS and IFS, and that these were extended to
O.A No. 802 of 2015 Col Mukul Dev
84
these two services later based on a recommendation made by the
Committee of Secretaries. It has also codified and stated that terms
and conditions for grant of NFU from which it becomes apparent that
all prescribed eligibility criteria and promotional norms will have to be
met for grant of this NFU. Significantly it also includes a
representation of CGHS Doctors who had demanded NFU. This,
however, was disallowed to them since the file records that they are
already beneficiaries of the FCS and DACP Schemes, which were
granted to them on completion of residency periods.
82. The main file deals with anomalies but significantly that related
to the NFU by the MoD. A perusal of the file reveals that the aspect
of the non-grant of NFU has been agitated comprehensively by the
Defence services not only by the Tri Services Pay Staff (TRIPAS), but
also specialized committees such as the PPOC (Principal Personnel
Officers Committee), but also most significantly by the Chiefs of Staff
Committee in person of the Chairman, who is the senior most
uniformed Defence Officer of the Union of India. Additionally also
the Adjutant General of Army Headquarters on behalf of the Services.
It is therefore, amply evident that the MoD is not only aware of the
continued denial of NFU to the Armed Forces, but also the fact that
the Armed Forces have recommended their case for NFU repeatedly
with detailed justification, covering the multiple aspects and
implications of this non-grant of NFU ranging from stagnation; effect
O.A No. 802 of 2015 Col Mukul Dev
85
on pension; command and control; relative status; pay status; etc.
Some of the communications of note are those of 08.12.2009 from
TRIPAS which talks of pay as well as promotional avenues;
19.08.2011 from the Adjutant General Branch; 28.07.2011 Chairman
COSC; 24.11.2011 from PPOC Secretariat, 09.01.2012; etc.
83. In the consideration of these on file what has been placed
before us, is the view taken by the Ministry of Defence, D/Pay
Services, wherein the heart of discussion has centred on the sole
argument being put forward in the issue being related to life time
earnings of commissioned officers vis-a-vis Civil Officers. We do not
find on file a comprehensive analysis of the several other connected
issues raised by several authorities of the Defence services on the
aspect of NFU. In fact what was placed before the RM was the fact
that this entire set of issues including NFU was to be placed before
the next Pay Commission for its consideration. Notings on file have
commenced on 02.07.2010 had consequently appeared before the
RM on 16.09.2013, in which he has been intimated that a Committee
headed by the Cabinet Secretary examined all the issues and
recommended that the issues be placed before the next Pay
Commission.
84. Two interesting facts further emerged in this file. First relates
to the fact that based on GOI DOPT communication of 25.09.2009,
No.AB.14017/64/2008-Establishment (RR), it has been clarified vide
O.A No. 802 of 2015 Col Mukul Dev
86
Para 5 of this letter that NFU would also be applicable to retired
officers who were eligible as on the due date of promulgation. In the
same departments communication of 10.06.2010 related to NFU, it
has been clarified that “in case no IAS officer is available for
comparison in STS grade, grant of NFU to STS level may be allowed
after 7 years of service as Group „A‟.” In other words NFU without
benchmarking a IAS officer, at JTS to STS grade, would be
permissible on a time scale. We are not sure whether these two
liberalizations of NFU, are part of the original concept and thought
process of the scheme.
A.V. Singh Committee Report
85. This report which became effective in January 2003 had been
constituted with a set of terms of reference.
86. We find that the A.V. Singh Committee centered on reducing
ages of officers in various ranks, and improving promotion prospects
by Cadre Review.
87. In the measures proposed and suggested by the Army
Headquarters however, the specific recommendations covered grant
of Brigadiers pay to all colonels in the last year of their service to
entitle them to Brigadier‟s pension. In Para 61 of this report the
aspect of pay benefit to senior selected rank features. Herein the
Army Headquarters had requested that the officers who are
considered fit for promotion in all respects but cannot be empanelled
O.A No. 802 of 2015 Col Mukul Dev
87
for promotion due to shortage of vacancies, should be separately
empanelled for pay benefit. In Para 62 the AV Singh Committee had
stated and recommended to the Government that it should consider
granting non functional selection grade pay to such Brigadiers and
Major Generals who fall within criteria. It is also evident to the Court
that these specific recommendations of the AV Singh Committee
were not implemented. Both the preceding are indicative that the
intention of the Service, was to seek a form of compensation for the
acute stagnation being caused in the Army at that point of time and
while other recommendations were put into implementation, those
related non functional upgrades were not implemented.
88. At the heart of this issue of NFU, lies the fact that the
Government has granted it to not only the stated Organised Class „A‟
Services, but several other services. Most significantly it has been
granted to Services that work in support of the Defence Forces. It
has also been given to Services, where Defence Forces Officers go on
deputation/secondment. It is not clear to this Tribunal that when
status and perquisites are indeed linked to grade pay, (an essential
ingredient of NFU); why would a construction that results in the de-
facto disadvantage of Defence Forces Officers, be adhered to? The
Armed Forces are indeed a unique and distinct class second to none
as recognized by the Constitution and the Pay Commissions over the
decades; and Military Institutions being a key symbol of National
O.A No. 802 of 2015 Col Mukul Dev
88
pride, why should there be an environment that they are made to
stagnate without compensation, in relation to Services that are not
only Parallel to them, but those that support them as well as those
where they go on deputation, and would undoubtedly be resultantly
under privileged there? It is also clearly evident that aspects of
command and control and morale have been repeatedly projected
and justified, with lucid illustrations and we are of the view (that as
appreciated by even the CPC), these are impacted by excluding
Defence Services Officers from NFU.
89. NFU seeks to address the stagnation in Services, when
measured against the datum of the IAS progression. This central
aspect related to the Defence Forces has remained unaddressed. A
strange fact situation has emerged, wherein CPCs (expert bodies)
have given recommendations to the Government; Government has
not evolved a policy and referred it back to the CPC. VII CPC has
given a view, the recommendations have been selectively
implemented by the Government, with the circumstances of the
Defence Forces remaining unchanged.
90. We find that the denial of NFU as initially conceived by the VI
CPC, and unactioned by the respondents (related to the Defence
Services); the exclusion being based on an insubstantial and
unsustainable classification is, indeed, unfair. Related to the central
issue of NFU as a measure for addressing stagnation, the response of
O.A No. 802 of 2015 Col Mukul Dev
89
the respondents has been evasive and unreasonable. The denial
based on a classification of Services, which itself is ambiguous and
bears relation to the object to be achieved (related to the NFU), does
not hold legally, and undoubtedly Article 14 of the Constitution has
been breached by non-grant of NFU to the Defence Services. This
inequity and unfairness has been enhanced by extension of NFU to
Services that support the Armed Forces and those where Armed
Forces Officers serve on deputation/secondment. This Tribunal also
can see no logic and legality in denial of equal status and privileges
based on the NFU Scheme that has become available to Civil
Services. We find the action/inaction of the respondents failing in
our judicial review, related to the issue of NFU.
91. It, therefore, emerges from the preceding consideration, the
following issues stand established:-
(i) The distinction of organised Class „A‟ service IPS, IFS
and Class „A‟ Services, etc. do not reveal themselves
in a clear and un-ambiguous classification, as such
this Tribunal cannot go by a prescribed logic that the
community of organised Class „A‟ service is indeed
one which is distinct clear and firmly exclusively,
when viewed related to the spectrum of Services. In
this regard we find convergence with the views of the
Hon‟ble Delhi High Court (in G.J Singh (supra) and
O.A No. 802 of 2015 Col Mukul Dev
90
bow to the clear enunciation by the Hon‟ble Supreme
Court of India (in Mizoram Engg Service Assn.
(supra)).
(ii) The Tribunal finds that the benefit of NFU has been
extended to several services (well beyond the
claimed Organised Group „A‟ Service), as well as
expanded in scope possibly beyond the original
conception.
(iii) Undoubtedly Pay Commissions are expert bodies and
in the case of VI CPC related to NFU there is no
negation of the concept for Defence Forces, in fact
there is acceptance by the VI CPC and
recommendation for the Government to examine and
promulgate a necessary policy. In the case of VII
CPC there is clear recommendation of the Chairman
to recommend NFU and indeed grant it to the
Defence Forces, with the dissenting views of the
Members clearly acknowledging the unfairness meted
out to the Defence Forces in non-grant of NFU by the
VI CPC, as well as their over powering needs based
stagnation and other issues. They have however,
have negated the entire concept of NFU and
recommended its abolishment to all services, a
O.A No. 802 of 2015 Col Mukul Dev
91
recommendation which the Government has not
acted upon.
(iv) NFU does not relate to revision of scales of pay, but
is linked to aspects of stagnation, and one of the
highest stagnations today is in the Defence Forces, a
fact which is established by the Pay Commission, and
no relief to address this aspect has been granted to
the Defence Forces over a protracted period.
(v) Objections of the MoD related to Armed Forces
(terms of service etc.), have been recognised by the
CPC as aspects that indeed could be said to be
relevant to the differences between any two Services
albeit civil, and we find no logic for the Armed Forces
being distinguished as a separate class for non grant
of NFU, on this basis.
(vi) The concept of MSP and its construction has been
clearly explained by the CPC, and this in no way over
laps and indeed addresses the aspects of NFU, or
what it was intended for.
(vii) The Court cannot enter into the aspects of
allowances, cadre review; cadres structures; since
none of these aspects have been placed before us in
their comprehensiveness. We are not aware of the
O.A No. 802 of 2015 Col Mukul Dev
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cadre review and allowances as well as their revisions
as applicable to civil services, the CPC has alluded to
these but we cannot make a determination on this
fact.
(viii) Aspects of edge of salary, loss of parity, linking over
the decade with the IPS cannot be ignored by this
Tribunal, since they have been clearly established
and recorded by the specialized bodies CPCs.
(ix) While the judgments of the Hon‟ble High Courts may
not be binding, they however retain persuasive value,
and in the specific case of G.J. Singh (supra), this
Tribunal cannot remain in ignorance of the issues
established in this judgment on similar issues.
(x) NFU impacts on (Grade Pay) which effects status,
perquisites and associated privileges. The CPC has
observed that Civil Services through Cadre Reviews
and NFU, attained a degree of advancement, where
by comparison of Armed Forces and CAPFs/PMIs
have remained most disadvantaged.
(xi) The respondents have not argued against NFU based
on any financial constraints.
O.A No. 802 of 2015 Col Mukul Dev
93
92. In the light of the preceding considerations, we find that the
respondents have been unfair, evasive and without valid justification,
for denial of the NFU benefit to the Defence Forces. This denial has
resulted in iniquitous treatment to the Defence Forces and we are
fortified in this view by the judgments in D.S Nakara; Hukum Chand;
and In Re Special Courts Bill (supra). The desire to negate NFU based
on the classification of Services related to NFU fails, since not only is
the classification unsustainable, but also it bears no nexus with the
object to be achieved, i.e. alleviation of the problem of stagnation by
NFU (In Re Special Courts Bill (supra)). We find that there are,
indeed, a wide range of issues that have impacted the Defence
Forces, due to this denial, and we cannot be permissive to any
denial, which impacts on the efficiency; morale and status of the
Armed Forces adversely, since such is not the constitutional position
or intention. It is also evident on record with us that the Army and
later the Defence Forces have been agitating this issue to the highest
levels since 2003 and pre VI CPC, subsequently.
Order of the Tribunal:
93. We, therefore, find that the petitioners succeed in their O.As
and hence we allow the O.As with the following directions:
(i) The NFU as visualized by the VI CPC and claimed by
the petitioners will be implemented for the
petitioners;
O.A No. 802 of 2015 Col Mukul Dev
94
(ii) Annexures A-3 letter dated 15.07.2010 and A-6
letter dated 24.10.2011 are set aside and quashed;
(iii) To avoid multiplicity of proceedings and also
considerable expenditure in litigation, we direct
applicability of NFU to all similarly placed officers of
the Defence Forces (Army, Navy and the Air Force);
(iv) The arrears, on account of the NFU to the
petitioners and others, will, however, be restricted
for a period of three years preceding the date of
pronouncement of this order, as the O.As are filed
on different dates in the year 2015 and 2016, and
we grant the benefit of NFU to the non-petitioners
also. The arrears, however, would not carry any
interest;
(v) The respondents shall ensure payment of arrears
within next four months from the date of receipt of
this order.
(vi) The direction issued to grant NFU is subject to the
decision that may be taken by the Central
Government on the basis of the recommendations
O.A No. 802 of 2015 Col Mukul Dev
95
of VII CPC, which has recommended abolition of
NFU altogether. It is, however, made clear that if
the Central Government decides to continue with
grant of NFU to IAS, IPS and other Group A
Services, the same benefit of NFU shall continue to
be granted to the officers of the Defence Forces
(Army, Navy and the Air Force); and
(vii) No order as to costs.
(B.P. KATAKEY) OFFG. CHAIRPERSON
(SANJIV LANGER) MEMBER
Alex
O.A No. 802 of 2015 Col Mukul Dev
96
ARMED FORCES TRIBUNAL (PRINCIPAL BENCH)
NEW DELHI
OA 802/2015 IC-46298N Col Mukul Dev .. Petitioner
Versus
Union of India and Ors. .. Respondents
With OA Nos. 818, 819 820, 821, 834, 835, 836, 842, 843, 844, 867, 868, 879, 880, 881, 882, 883, 885, 886, 890, 891, 892, 893, 922, 923, 924, 929, 930, 935, 936, 937, 939, 940, 941, 942, 943, 944, 945, 964, 965, 966, 969, 970, 971, 972, 974, 983, 984, 1006, 1013, 1014, 1015, 1016, 1017, 1068, 1069, 1073, 1097 and 1128 of 2015
&
OA Nos. 12, 20, 24, 33, 39, 59, 63, 70, 74, 75, 77, 81, 95, 115, 125, 137, 142, 152, 153, 221, 256, 293, 295, 297, 300, 301, 302, 318, 319, 320, 373, 375, 378, 382, 402, 420, 424, 425, 427, 463, 472, 473, 477, 480, 481, 506, 509, 516, 517, 524, 525, 540, 584, 586, 626, 631, 637, 641, 642, 647, 793, 794, 800, 801, 824, 885, 887, 888, 952, 953, 954, 955, 983, 990, 998, 1005, 1006, 1007, 1018, 1024, 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1065, 1066, 1067, 1068, 1069, 1072, 1101, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1139, 1140, 1141, 1147, 1148, 1149, 1150, 1151, 1173, 1193, 1213, 1214, 1215, 1216, 1224, 1225, 1226, 1227, 1228, 1229, 1230, 1251, 1252 and 1253 of 2016 For petitioner Ms. Jyoti Singh, Sr. Advocate, with Ms Tinu Bajwa,
Mr. Rajiv Manglik, Dinesh Yadav and Mr Amandeep Joshi, Mr. Rajesh Nandal, Mr. SS Pandey, Mr. VS Kadian, Mr. Ajai Bhalla and Mr AS Mathur, Mr IS Yadav, Mr Abhishek R Shukla, Advocates
O.A No. 802 of 2015 Col Mukul Dev
97
For respondents Gp Capt KS Bhati, Sr CGSC, Dr. Vijendra Mahndiyan, Mr. Prabodh Kumar, Mr. DK Bhati, Ms. Jyotsana Kaushik, Mr. SP Sharma, Mr. SR Swain, Mr. KK Tyagi, Mr. VVVMBNS Pattabhiram, Mr. Anil Gautam, Mr. Shyam Narayan, Mr. JS Rawat, Mr. Avdhesh Kumar, Mr. Harish V. Shankar, Mr. YP Singh, Mr. Ashok Chaitanya, Mr. SD Windlesh and Mr. VS Tomar, Arvind Patel, Advocates
CORAM
HON’BLE MR. JUSTICE B.P. KATAKEY, OFFG. CHAIRPERSON
HON’BLE LT GEN SANJIV LANGER, MEMBER
ORDER
23.12.2016
The order pronounced in open Court in the presence of the
learned counsel appearing for the parties.
Mr. K.S. Bhati, Sr. CGSC appearing for the respondents prays
for leave to appeal to the Hon'ble Supreme Court against the order
pronounced today, which, however, is denied as the order does not
involve any question of law having general public importance.
(B.P. KATAKEY) OFFG. CHAIRPERSON
(SANJIV LANGER) MEMBER