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O.A No. 802 of 2015 Col Mukul Dev

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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,


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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


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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


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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


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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


10

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


13

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


15

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


16

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


17

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.


19

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


20

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


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‟.


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


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


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


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


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,


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.


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.


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


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.


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


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


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


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


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


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. …….”


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;


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


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


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


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),


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,


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


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


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


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


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,


48

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.


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.”


50

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


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.


52

“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.”


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.


54

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:


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


56

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


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.


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


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?


60

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


61

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


62

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


63

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


64

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.


65

(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


66

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):


67

“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.


68

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


69

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


70

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


71

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


72

“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.


73

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,


74

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


75

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.


76

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


77

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.”


78

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


79

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


80

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.”


81

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


82

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.


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


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


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


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


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


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


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


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


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


92

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.


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;


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


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


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


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

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