C.M. Khanna vs Union Of India
1995 Latest Caselaw 1016 Del

JUDGMENT

Usha Mehra, J.

(1) Petitioner Shri C.M.Khanna retired as Lt.Coloncl (Time Scale) from Army Service. He has challenged the Special Army Instructions 1/8/87 dated 23rd June,1987 issued by the defense Ministry by virtue of which the respondent implemented the recommendation of the Fourth Central Pay Commission for the officers of the Army. Consequent upon the recommendation of the Fourth Central Pay Commission integrated pay scale of Rs.2300-5100.00 was made admissible to officers of the Army above the rank of Second Lieutenant to Brigadier. But with regard to the officers of the substantive rank of the Lt.Colonel (Time Scale) omission has been made to regulate their initial fixation of pay as on 1st January,1986, in relation to prescribed length of reckonable service as required for substantive promotion. The aim of providing one integrated scale for officers from the rank of second Lt. to Brigadier was to give one scale-related with length of service. But this has been denied to Lt.Colonel (Time Scale) hence discrimination and denial of equal rights.

(2) In order to appreciate the challenge the brief facts arc that petitioner was commissioned in the Indian Army on 15th June, 1966 with antedate seniority from 15th June,1964. He was promoted to the substantive rank of Ll.Colonel (Time Scale) in 1986 w.e.f. 15th Junt,1985,on completion of 21 years of reckonable service. The recommendation of the Fourth Central pay Commission in 1987 were accepted by the Union of India. Chapter-28 of the said Report deals with the recommendation for Armed Forces Personnel. Pursuance to the same respondent issued Special Army Instruction 1/8/87 on 23ard June,1987(in short Sai, According to petitioner, the said Sai, deals with three aspects in order to implement the recommendations namely; (1) Revision of Pay scale; (2) Fixation of initial pay in the revised scale; (3)Regulation of pay on promotion subsequent to 1st January,1986. The basic pay of every Officer from the rank of Second Lieutenant to Brigadier comprised of two elements namely pay in the integrated scale plus rank pay as per the rank held. Two factors which require special consideration are (i) fixation of initial pay namely an amount representing 20% of the basic pay in existing scale to be added to the existing emoluments of the Officer; and (ii) an amount equivalent to the rank pay, if any, appropriate to the rank held by the officer as on 1st January,1986 was to be deducted and thereafter officer's pay was to be fixed in the integrated scale at the stage next above the amount thus computed. Further according to petitioner on the basis of this factor of 20% of the existing basic pay the pay in the integrated scale for officers of the rank of substantive Lt.Colonel (Time Scale). Lt.Colonel (by selection). Colonel and Brigadier had to be worked out. The minimum pay in the integrated scale was to be different for different ranks provided they had completed specified length of reckonable commissioned service. On this post the pay was to be stepped up to be minimum in the integrated scale. The integrated scale of pay was to cover the time span of 24 years. Therefore, the minimum pay in the integrated scale for each rank related to completed length of reckonable commissioned service. The new integrated scale in relation to completed length of reckonable commissioned service was not given. Sai, made provision for stepping up pay on promotion subsequent to. 1st January, 1986 to the minimum for the rank provided that the officer had completed the length of reckonable commissioned service as prescribed for each rank. The idea behind this was to give benefit to the officers to be brought into new integrated scale. But unfortunately this provision of minimum pay in the integrated scale based on completion of specified length of Commissioned Service for substantive promotion has not been made applicable to the officers promoted to the substantive rank of Lt.Colonel (Time Scale) on completion of 21 years of service. Except for the substantive rank of Li.Colonel (Time Scale) all other six ranks officers namely; ''Lieutenant, Captain, Major, Lt.Colonel (by selection), Colonel and Brigadier have been given the benefit of regulation of pay by providing minimum pay in the integrated scale based on completion of specified length of reckonable commissioned service on substantive promotion. Petitioner had completed 21 years of service as on 1st June,1986. He was promoted to the substantive rank of Lt.Colonel (Time- Scale) w.e.f. 15th June, 1985 but for this rank implementation of Fourth Central Pay Commission by the said Army Instructions petitioner would have also got benefit of his pay in the new integrated scale by keeping in view the reckonable length of service of 21 years. His salary would have been fixed as on 1st. January, 1986 at Rs.4,650 and on the date of his retirement on 31st August,1991 at Rs.5,100.00 . Due to this discrimination he has approached this Court.

(3) Refusing that the Army Instructions provide for length of years of commissioned service as the basis fixing minimum pay in the integrated scale. Ms.Jyoti Singh drew my attention to para 6(a)(if) of the Sai, The reading of which shows that it was not applied to the substantive rank of Lt.Colonel (Time Scale). No separate provisions for Lt.Colonel (Time Scale) have been made in the Sai, for the reasons that so far as the pay fixation is concerned, the Lt.Colonel (Time Scale) is a rank not distinguishable from the rank of Major. There is no separate authorisation for Lt.Colonel (Time Scale). Both the Lt.Colonel (Time Scale) and the Major are 172 counted against the authorised vacancies of Majors. They are entrusted with similar duties and responsibilities. The post of Lt.Colonel (Time Scale) was created in order to give a rank to a person who had completed 21 years of service without getting promotion to a higher rank. The Lt.Colonel (Time Scale) were not found suitable for promotion to Lt.Colonel (by Selection). Petitioner and the like officers were in the same integrated scale as that of Major. The pay can reach up to the maximum of the scale i.e. Rs.5100.00 even if they are unfit for promotion to the higher rank. Under the rules the Lt.Colonel (Time Scale) have been equaled with Major. That is the reason they were given the same rank pay as is admissible to the Major.

(4) The contention of Mr.Khanna that there is no difference between the Lt.Colonel (Time Scale) and the Lt.Colonel (by Selection), if accepted would lead to anomalous results. It would completely upset the hierarchy in service. Lt.Colonel (by selection) is a rank different than the Lt.Colonel (Time Scale). Ms.Jyoti Singh took pains to explain that the posts of Lt.Colonel (Time Scale) and Major are in fact being equated for all intent and purposes. However, in order to remove frustration amongst the officers who could not gel seat into the Lt.Colonel (by-selection) that they were given time scale promotion so that they need not feel frustrated. It is in this background that their length of service has to be counted. defense Service Regulations made a provision that if a person has put in 21 years of service he would he given a higher designation than Major, that is why the rank of Lt.Colonel (Time Scale) was coined though in fact the post actually remains on the strength of Major. This was done in order to ensure that after retirement these officers may get some benefits. They are, therefore, given the rank of Lt.Colonel (Time Scale). But that by itself would not entitle them the same minimum pay in the integrated scale nor the length of service can be the basis for the grant of integrated scale in their case. By merely counting 21 years of completed service by itself would nol equate them with Lt.Colonel (by selection). If that be so then the person even though found unfit for promotion to the substantive rank of Lt.Colonel (by selection) would get same or higher scale in integrated scale. This would create an anomalous position not reconcilable by any sound reasoning. If he was unfit to get promoted to the rank of Lt.Colonel (by selection) he cannot achieve the same or better pay by using the handle of length of service. The reading of Rule 3(a)(i) of SA1.1987 indicates the integrated scale of pay for all rank of officers. Rule 6 of the said Instructions indicates how the pay has to be fixed in the revised scale of pay. Rule 6(a)(i) & (ii) which is reproduced as under lays down under what circumstances length of service would be-counted, in fact the petitioner and counsel for the respondent both have placed heavy reliance on this rule. This rule is the anchor sheet for both of them to support their respective stand.

RULE6(a)

(I)An amount representing 20 percent of the basic pay in the existing scale shall be added to the existing emoluments of the officer.

(II)After the existing emoluments have been so increased, an amount equivalent to the rank pay, if any, appropriate to the rank held by the officer on 1st January,1986 at the rates prescribed in 3(a)(ii) above, will be deducted. Thereafter, the officer's pay will be fixed in the revised scale at the stage next above the amount thus computed. In case the stage of fixation falls below the minimum pay for the rank held by the officer on 1st January, 1986 as prescribed in the tables below, the pay will he stepped up to such minimum provided the officer has completed the length of reckonable commissioned service indicated in the same table.

(5) Putting emphasis on the word "completed the length of reckonable commissioned service", used in para 6 quoted above, Mr.Khanna wants this Court to hold that for the purpose of fixing revised pay scale and for stepping up the minimum pay, the completed length of reckonable service is an integral part of the instructions. I am afraid this interpretation cannot be inferred from the reading of this para 6. The reading of para 6 shows that only in those eventualities when the pay on refixation fall below the minimum pay of the nk previously held by the officer, then there will be a cause for stepping up the pay in the higher post. It is at this stage that length of service has to be counted. It is not in every case that the completed length of reckonable commissioned service has to be counted as Mr.Khanna wants this Court to interpret. Infact for relaxation of pay as on 1st January,1986 the length of service is not the criteria. For classification reference can be made to para No.13(c) of the said Army Instructions where integrated pay scale is defined. Reading of the same would show that in case an officer who on promotion to the next higher rank receives the pay in the integrated scale which is less than the minimum pay prescribed in the table in para No.6 then to give him the benefit of the promotion his completed length of service would be counted. 11 is not petitioner's case that on promotion as Lt.Colonel (Time Scale) w.e.f. 1st January,1980 his minimum pay which he was drawing as Major became less and therefore by counting his length of service pay be stopped up. If that had been the case then of course his pay would have been stepped up by taking into account his completed length of service. Reading of para 66 of the SAI-1987 fortifies this point that the substantive promotion to the rank of Lt.Colonel (Time Scale) of officers not promoted by selection against the authorised establishment of Lt.Colonels, can be made, subject to their being considered fit in all respects, by time scale on completion of 21 years reckonable commissioned service. The officers so promoted will not be reckoned against various establishment of Lt.Colonels but will be held in a separate non-selection list. The number of officers held on the non-selection list will count against the authorised establishment of officers in the rank of Major.This means that in order to facilitate those Majors who could not get promoted 'as Lt.Colonel (by selection) being promoted as Ll.Colonel (Time Scale) they would be kept in the 'non-selection' list. They would nol be put on the strength of the Lt.Colonel (by Selection) but for all intent and purpose remain on the authorised strength of the rank of Major. If thin Court now accepts the contention of the petitioner and refix his pay scale as substantive Lt.Colonel (by selection), then this Court would indirectly equating him with Lt.Colonel (by Selection) which the petitioner in his turn failed to achieve. By equating these two ranks i.e. By Selection and Time Scale this Court would not only upset the Rules but also the structural hierarchy of the service. He admittedly was given the rank of Lt. Colonel (Time Scale) but remained on the authorised establishment in the rank of Major. The mere fact that petitioner was called Lt.Colonel (Time Scale) would not entitle him to be equaled with Lt.Colonel (by promotion). In the case of Lt.Colonel (Time Scale) the word 'promotion' is a misnomer. Reading of para 66 of the SAI-1987 would show that it was for the persons who had put 21 years of service and had not been promoted to the next higher rank that this time scale promotions were created to give them at least the status of a Lt.Colonel (Time Scale) so that they can avail benefits at the time of retirement. The petitioner, to my mind, cannot be allowed to contend that he has been discriminated nor Para 66 of the SAI-1987 can be called arbitrary. It is only to remove frustration in the service the rank promotion had been allowed with some fringe benefits like one year more for retirement but all other benefits and responsibilities remained that of the rank of Major. Hence for the refixation of pay in the integrated scale, he was rightly equated with that of a Major. The contention of Mr.Khanna that even the Lt.Colonel (Time Scale) arc selected by a Selection Board, therefore, there should not be any discrimination 'on this account. This argument has no merits because there could be number of Majors who might have completed 21 years of reckonable service. Can all of them be promoted to the rank of Lt.ColoncI (Time Scale). Hence even amongst those Majors who have completed 21 years reckonable service some sort of selection has to be made. But that selection cannot be compared with the selection of a Major for promotion to the rank of Lt.Colonel (By Selection). This has been so clarified in a letter issued by the Government of India, Ministry of defense dated 11th Deccmber,l984. The subject of this letter is "Rules regarding substantive promotion by Time Scale". The relevant extract of that letter reproduced as under :-

RESTRICTED

No.A/49453/AG/PS29(a)/

6426/SD(AG)

GOVERNMENT of India,

MINISTRY of defense,

NEWDelhi. 11-12-1984

To,

THE Chief of the Army Staff,

NEWDelhi.

SUBJECT:-RULESREGARDING SUBSTANTIVE

Promotion by Time SCALE.

Sir,

Iam directed to state that in implication of the provisions contained in Government of India, Ministry of defense letter No.A/49453/AG/PS2(a) 4253/D(AG) dated 31st July,1984, the President is pleased to grant the relaxation for the purpose of grant of substantive promotion to the rank of Capt., Major and Lt.Col. by time scale as follows :-

(A)Captains

(B)Majors

(C)Lt.Cols.-Existing para(b)(ii) of the Ministry's letter will be deleted and substituted as under:

(I)Officers who are granted the rank of Lt.Col.(TS) but have not been finally superseded for promotion to the acting rank of Lt.Col. by selection, will continue to remain eligible for promotion to the rank of acting Lt.Col. by selection even after the grant of substantive rank of Lt.Col.(TS).

II)Majors granted the rank of Lt.Gol.(TS), after completion of 21 years reckonable commissioned service, on final supersession for promotion to the acting rank of Lt.Col. by selection will continue to be governed by the terms and conditions as applicable to Lt.Col.(TS) held against the authorisation of Majors.

III)Officers in the rank of Lt.Col. (TS) on promotion to the acting rank of Lt.Col. by selection, will be governed by We terms and conditions as applicable to Lt.Cols. by selection. Such officers will hold substantive rank of Lt.Col(TS) against the authorisation of Lt.Cols. Their inter-se seniority in the rank of Ll.Col.(TS) held against the authorisation of Lt.Col. will be determined in accordance with the sequence of selection in which they had been approved to the rank of acting Lt.Col.

(6) Harmonious reading of sub paras (i), (ii) and (iii) of para 'C' of this letter would lead only to one conclusion that a Major who completed 21 years of reckonable commissioned service may be appointed as Lt.Colonel (Time Scale), but for promotion to the rank of Lt.Colonel he has to get the rank of a Lt.Colonel by Selection. It is only when begets selected to the rank of Lt.Colonel by selection that he will come in the authorised strength of Lt.Colonel. It is only then that he would get the benefits of the rank of Lt.Colonel. Even a Lt.Colonel (Time Scale) gets promotion to the rank of a Lt.Colonel by selection. This apparently means that Lt.Colonel (Time Scale) and Lt.Colonel (by selection) are two distinct and different ranks. Lt.Colonel (time Scale) is lower in hierarchy to Lt.Colonel (by selection). Mr.Khanna, therefore, cannot claim parity of pay in the integrated scale with that of Lt.Colonel (By selection). Therefore the Fourth Central Pay Commission did not prescribe separate pay for Lt.Colonel (Time Scale) but put them at par with Majors. This must have been done keeping in view the hierarchy in the army service. The Lt.Colonel by selection is treated a higher rank officer than the Lt.Colonel (Time Scale).

(7) In this regard reference can be made to Chapter 28 of the Fourth Central Pay Commission dealing with the Armed Forces Personnel and in particular para 28.10 which reads as under: 28.10Service officers are employed in various arms, corps and branches of the Army, Navy and Air Force. All officers, except those in the specialised cadres, have the same pay structure. The rank determines the pay and different posts held by officers of the same rank have comparable pay. Officers in specialised cadres like Army Medical Corps (AMC), Army Denial Corps (ADC), Remount and Veterinary Corps (RVC), Flying Branch, Submarine Branch and Military Nursing Service (MNS) have a separate pay structure. There is time scale promotion up to the rank of Lieutenant Colonel (time scale) bused on the length of service and subject to qualifying in prescribed examinations, etc. Promotions to the higher ranks are by selection and with reference to the availability of posts. There are separate pay scales for the posts of Colonel, Brigadier and Major General. The posts of Lieutenant General and General are on the fixed pay."

(8) Reading of this para shows that promotion up to the rank of Lt.Colonel (Time Scale) is a time bound promotion otherwise promotions to the higher rank is by selection. The Lt.Colonel (by Selection) is a promotion to a different cadre and, therefore, these are two different posts/ranks. Time scale promotions are given with the object to provide necessary incentives to such officials who have put in long service in a particular rank but could not fit into the selection. The time Scale promotions are given only up to the rank of Ll.Colonel and not beyond. Because Army Service is like pyramids. There are number of officials working at lower level but as one goes up the posts become less and less, hence more competition and difficult selection. In the process of selection number of officials arc left behind. In order to remove their frustration and to give them incentive the respondent adopted Time Scale Promotions for which purpose length of service has to be counted. In fact Officers who could not be promoted by way of selection arc entrusted with oilier assignments requiring skill and experience as has been pointed by the Fourth Pay Commission in para 28.11 in Chapter 28 of its report.

(9) Admittedly, when an incentive is provided by lime scale promotion then it would not be merely giving the rank but some fringe benefits also like in the case of Lt.Colonel (Time Scale). The officer will retire a year later than a Major. But by no stretch of-imagination he can be considered at par , the Lt.Colonel by selection. Even the Rank Pay of Lt.Colonel (Selection) is different from that of the Lt.Colonel (Time Scale). Similarly Compensatory Field Area Allowance, Special Compensatory Counter Insurgency Allowance etc. are different for Lt.Colonel (lime Scale) and Lt.Colonel (by selection). For these allowances Lt.Colonel (Time Scale) has been clubbed with the Majors. The Lt.Colonel (Time Scale) being not a separate cadre distinct from Major, therefore. Notification with regard to the allowances is at par with that of a Major. The Lt.Colonel (Time Scale) is only a time scale promotion. It cannot be called a promotion in the real sense. The word "Promotion" to the rank of Lt.Colonel (Time Scale) is a misnomer. In fact there is as such no promotion. If for refixing the pay in the integrated scale length of service is the criteria then the substantive rank Lt.Colonel (by Selection) would be getting less pay than the Lt.Colonel (Time Scale). At time Lt. Colonel (Time Scale) may even be getting more pay than a full Colonel. Therefore, what we have to keep in mind while analysing these instructions is the hierarchy in the armed forces. While determining the pay scales of service officers we have to keep in mind the functional hierarchical structure of the forces. Reading of the SAI-1987 and the defense service rules it can be said that for the purpose of fixation of pay, the length of service is not the criteria. Length of service will be counted only in that eventuality as stipulated in para 6 i.e. when on promotion to higher scale the officer's pay becomes less than what he was getting in the previous rank. That is not the case in hand. His was only a notional promotion to the rank of Lt.Colonel (lime Scale). He remained on the authorised strength of the rank of Major. Hence if there is a difference in the fixation of pay in the integrated scale of the petitioner in comparison with others that by itself cannot be a ground to declare SAI-1987 as arbitrary or illegal. Respondents have Justified the fixing of pay in the integrated scale for the rank of Lt.Colonel (Time Scale). If length of service is accepted as the criteria then petitioner, as Ms.Jyoti Singh contended, would be getting more pay than Lt.Colonel (by selection) and even a full Colonel. That cannot be permitted because if allowed it would completely upset the functional hierarchical structure of the service.

(10) During the course of arguments Mr.Khanna cited examples of Lt.Colonel (by selection) and Lt.Colonel (Time Scale) to point out that Lt.Colonel (Time Scale) were getting more pay than Lt.Colonel (by selection). The instruction given by him to bring home the fact that on account of their length of service Ll.Colonel (Time Scale) are getting more integrated scale of pay has been repudiated by the respondent on the ground that the pay shown by the petitioner against Lt.Colonel (Time Scale) has not been correctly depicted. A Certificate of the Senior Accounts Officer in reply to the telegram issued by the respondent on 9th October,1995 has been placed on record. Copy of the reply received from Senior Accounts Officer shows fallacy in the arguments of the petitioner.

(11) For the reasons stated above, I find no merits in the petition. Dismissed with no order as to costs.