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IN THE ARMED FORCES TRIBUNAL

REGIONAL BENCH, GUWAHATI

OA. NO. 06 OF 2013

P R E S E N T

HON’BLE MR. JUSTICE H.N.SARMA, Member (J) HON’BLE CMDE MOHAN PHADKE (Retd),Member (A)

21952 - L, Wing Commander K.Venugopal, 956 Squadron Air Force C/O. 99 APO and a resident of Room No.5 American Block, Officers Mess Air Force Station, Chabua,Assam -786102.

……..Applicant Dr.G.Lal Legal Practitioner for applicant.

-Versus-

1. Union of India Through its Secretary Ministry of Defence, Government of India New Delhi-110001.

2. Air Officer-in-Charge of Personnel (AOP), Air Headquarters ( Vayu Bhawan) PIN 936171 C/O. 56 APO

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3. Joint Director Personnel Officers(JDPO) -3(D),Air Headquarters (Vayu Bhawan) PIN 936171 C/O. 56 APO. 4. Air Officer-in-Charge, Air Force Central Accounts Office, Subroto Park, New Delhi- 110010. ……..Respondents

Mr.N.Deka,CGSC Legal Practitioner for Respondents.

Date of Hearing : 18-06-2013

Date of Judgment & Order. : 18-07-2013

J U D G M E N T

(Mohan Phadke)

Heard Dr.G.Lal, learned counsel appearing for

the applicant. Also heard Mr. N.Deka, learned CGSC

appearing for the respondents.

[2.] Necessary facts, relevant for the disposal of

this application, are that the applicant joined the Indian Air

force on 10.06.1992 as Short Service Commissioned Officer

for a term of six years. The applicant along with other

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Officers of 1 ADM/ATC/FC) COURSE were informed vide Air

Headquarters letter No. Air HQ/21901/1/PO3 (D) dated

11.6.1996 (Annexure-1) that they were due for

consideration for grant of permanent commission/

extension of SSC/release from service in June,1998. It was

further stated that considering and progressing of the case

with the Govt. was to commence in August 1996 and,

therefore, the officers listed in the Appendix No.2 to the

said letter were directed to intimate their option i.e.

whether they would like to be considered for grant of

Permanent Commission (hereinafter referred to as PC) or

extension of Short Service Commission (hereinafter

referred to as SSC) or to be released from service. Officers

who opted for PC were also to be advised to indicate

whether they would like to be considered for SSC, if PC

could not be granted to them. The Officers were finally

informed that the option once exercised would be final and

cannot be changed. In pursuance of the said offer, the

applicant opted for PC as mentioned in Para 4.2 of the

Original Application and was granted w.e.f. 10.06.1998

vide letter dated 28.5.998 (Annexure-2). The applicant

submits that as per the seniority mentioned at Annexure-

2A, his promotion to the next rank of Squadron Leader was

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required to be reckoned w.e.f. 10.06.1998. It was,

however, not so reckoned and Officers of No.1 SSC course

including him were not granted the rank of Squadron

Leader w.e.f. 10.6.1002 but his promotion to the rank of

Squadron Leader was reckoned w.e.f. 17.03.1999 instead

of 10.06.1998. The applicant claims that he officially came

to know about the list of seniority only when he was

promoted to the rank of Squadron Leader in the year 2003

as per Annexure -3. He then started making inquiries. He

learnt that seniority was adjusted according to the

corrigendum bearing No. Air HQ/S.24741/1/PP(O).376/US

/D (AirIII) dated 12.3.1998. It took him about 2 years to

obtain a copy of the said corrigendum. The applicant

further submits that when the PC was granted to him vide

letter No. Air HQ/21901/1/PO3(D)/790/US/D(Air-III) dated

28.5.1998 (Annexure 2), there was no mention of any loss

of seniority. The applicant accordingly preferred to submit

ROG bearing No. 21952-L/ adm/ATC1 dated 13.06.2005

(Anneuxre-4) for the redressal of his grievance. In

response, Respondent No.3 informed the applicant vide

letter dated 30.11.2005 about the corrigendum issued by

the Govt. of India vide Air force letter No. No. Air

HQ/24741/1/PP(0)/376/US/D(Air-III) dated 12.3.1998

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(Annexrure-6), a copy thereof was sent to him. Para 3 of

Anneuxre-5 stated “ According to the provisions contained in

the above quoted letters, the Officers of No.8 SSC(ATC/FC)

course have been granted 5 years 85 days of antedate seniority

out of previous full pay commissioned service and the date

reckonable for seniority and promotion has been fixed 01 Apr

2000”. The letter further stated “ Moreover, it is incumbent

upon the Officer to gain complete knowledge of terms and

conditions before opting for PC” The applicant submits that

this corrigendum was, in fact, not at all in existence and,

therefore, the applicant should not have any knowledge

about loss of seniority.

[3.] Not being satisfied with the aforesaid reply,

the applicant submitted another ROG dated 17.5.2006

praying that his grievance be considered by Respondent

No.1, Govt. of India, and Ministry of Defence. This ROG

was also rejected being devoid of merit by the Respondent

No.1 and this decision was communicated to the applicant

vide Air Force letter No. Air HQ/21901/21952/PO-3(D)

dated 10.06.2008 (Annexure-7). The applicant then

submits that although his grievances were not satisfactorily

considered or redressed, he did not take any further action

because by that time the applicant was promoted to the

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next rank of Wing Commander by virtue of the

recommendation of the Ajay Vikram Singh Committee

(AVSC). After so admitting, the applicant states in

paragraph 4.10 of the OA that “he was not aware of the fact

that because of the aforesaid corrigendum, his fixation of pay

was also affected”. The applicant is aggrieved that as a

result of the said loss of seniority under the aforesaid

corrigendum, the applicant was rendered junior not only to

his equivalent PC batch mates but also junior PC batch

officers who were commissioned 06 months after the

applicant was commissioned. ( para 4.11 of OA).

[4] The applicant contends that as a consequence of

the said loss of seniority, his salary was also affected

inasmuch as it was fixed by reducing one increment. The

applicant was thus paid less than his equivalent PC batch

mates and also junior batch mates who were

commissioned six months later. The applicant was thus

placed in Pay Band equal to the Junior PC batch mates -

officers who were commissioned one year after the

applicant. (Para 4.14 and 4.15 of the OA refers)

[5] The applicant thus contends that his consideration

to the rank of Group Captain should have been in 2012

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with the PC Batch Mates of Course No.90 GDOC but the

policy was reviewed and as per the revised policy

circulated vide Air Force letter No. Air HQ/S

98805/21/POP-5 dated 26.2.2010 (Annexure-20), the

length of service was to be reduced by six months every

year till it reached 17 ½ and 19 ½ years for Flying and

Ground duty respectively in the year 2015. The applicant

was thus scheduled to be considered for promotion in the

year 2014 instead of PB -2 of 2013. As PB-2 of 2013 was

scheduled to be held in the first week of February 2013

and as the statutory appeal was not disposed of by the

respondent authority, he approached the Tribunal by filing

OA 03/2013 which was disposed of vide order dated

29.01.2013 reproduced below:

“29.01.2013

Heard Dr.G. Lal, learned counsel for the applicant. Also

heard Mr. N. Deka, learned Central Govt Standing

Counsel, assisted by Wing Commander Tarun Khare, on

behalf of the respondents.

The applicant has filed this appeal seeking the

following reliefs-

“It is humbly prayed that this Hon’ble Tribunal may be graciously be pleased to admit the instant application of the applicant, call for the records, issue notice to respondents for showing cause as to why the impugned action of the respondents of considering the case of the applicant for promotion to his next rank of Gp Capt in PB-2/2014 instead of PB-2/2013 should not be set aside and that as to why the applicant should not be considered for

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his next rank of Gp Capt in Pb-2/2013 and after hearing both sides, be pleased to-

8.1. To set aside the impugned action of the Respondents No.1, 2 and 3 of not considering the date of commission (10.06.1992) and fixing the date of his commission as on 17.03.1993 of the applicant for his seniority and promotion and also not considering his case for promotion to the rank of Gp Capt in PB-2/2013 instead of PB-2/2014.

8.2. To set aside the impugned actions of the respondents No.4 of not considering the date of commission as on 10.06.1992 and considering the date of his commission as on 17.3.1993 of the applicant for fixation of his pay thereby reducing his one annual increment of pay and direct the said respondent to consider his date of commission as on 10.6.1992 instead of 17.3.1993 for fixation of his pay and re-fix the pay of the applicant with effect from 01.01.2006 without reducing his one annual increment of pay and also to pay the arrear thereof accordingly.”

We find from the record, as also fairly submitted by

Dr. Lal, that ventilating his grievances, the applicant has

preferred a statutory application under Section 27 of the

Air Force Act, 1950 on 26.12.2012.

Wing Commander Khare submits from the record

that the said application has in fact been received by the

department on 17.01.2013 and the same is at present in

the process of being forwarding to the Ministry of

Defence for necessary decision.

On the other hand, Dr Lal submits that the next

Promotion Board is scheduled to be held in the end of

first week of February, 2013.

Considering the entire facts and circumstances of the

matter and since the grievance of the applicant is lying

for consideration before the statutory authority in the

form of statutory complaint, we are inclined to dispose of

the matter without going into the merits of the case at

this stage.

Accordingly, the application stands disposed of with

the direction that the Respondent authority shall dispose

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of the statutory application dated 26.12.2012 filed by the

applicant at the earliest opportunity by passing a

speaking/reasoned order. The result of the consideration

of the statutory application shall also be communicated

to the applicant forthwith.

It is assured by Wing Commander Khare that the

statutory application shall be forwarded to the Ministry

of Defence within two days and the MoD shall take

necessary decision in the matter as early as possible

before the sitting of the Promotion Board.

With the above directions, this application stands

finally disposed of.”

A copy of the order shall be furnished to Mr.N.Deka,

learned CGSC for doing needful in the matter.”

[6] Pursuant to the said direction, respondent No.1

disposed of the said statutory complaint by a speaking

order dated 06.02.2013 (Annexure-24), material portion of

which reads as follows :

“12. AND WHEREAS your statutory complaint dated 26

Dec 12 received at Air HQ(VB) on 17 Jan 13 has been

considered in its entirety along with the Rules and

Government policies on the subject matter, it has been

found that your case is devoid of merit, repetitive in

nature and that no service wrong has been done to you.

13. NOW THEREFORE, your Statutory Complaint dated

26 Dec 12 received at Air HQ (VB) on 17 Jan 12 is rejected as

being devoid of merit.”

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[7] Aggrieved by the said rejection of his statutory

appeal, the applicant has again approached this Tribunal

by filing the present OA No.06/2013 praying for setting

aside the impugned order No. Air HQ/C 21901/21952/PO-

3(D)/790/US/DMOD DY No.177/D(Air –III) 2013dated

06.02.20013 (Annexure-24) and directing the respondents

to fix the seniority of the applicant w.e.f. 10.06.1992

instead of 17.3.21993 and to consider his case for

promotion in the rank of Group Captain in PB -2 /2013

instead of PB-2/2014 or to hold an additional PB-2/1013

for consideration of his case.

[8]. In the further reply dated 13.05.2013 filed by the

applicant in response to the counter affidavit, the applicant

has denied the contention of the respondents that he had

approached the Court after a gap of 14 years. He contends

that he came to know about the list of his seniority only on

17.03.2003 from the signal (Annexure-3 of the application)

and thereafter, he pursued the matter through service

channels. The applicant then controverted the contention

advanced by the respondents in their affidavit that the

application ought to be rejected as it was hit by Section 11

of CPC since he had earlier filed a statutory complaint on

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the same issue and the said statutory complaint had been

considered and rejected. The applicant has contended that

the provisions of CPC are not applicable in his case and the

contention of the respondents is misconceived and thus

untenable in law. He also claims that he had not filed he

statutory complaint in 2006 and, therefore, the question of

rejection of such application by the Central Government

did not arise and consequently, there was no question of

the decision of the Central Govt. attaining finality. The

applicant denied that he had belatedly filed the present

application with the misconceived intention of upsetting

the schedule of Promotion Board-2. He further denied the

statement of the respondents that disputed corrigendum

dated 12.3.1998 was circulated to all. The applicant

contends that it was circulated only to Command

HQ,AFA,AFCAO and other addressees of Air HQ mentioned

therein. It does not reflect dissemination to field units or

other affected officers like him. With reference to delay

and lapses, the applicant submits that when the

respondents communicated his ROG vide letter dated

10.06.2008, he was in Sudan from 15.12.2007 to

14.01.2009 and on return from there he was operated

upon at Unit Hospital Secunderabad for Mesh Hernioplasty.

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He was, thereafter, on sick leave and placed in Low

Medical Category A4G4 (T-24) till 11.08.2010 and due to

medical discomfort he was unable to pursue the Course

further. Thereafter, there was an air of expectancy in view

of AVSC Committee recommendation. He accordingly,

waited for some time. However, on learning from Air Force

web site that he could be considered for promotion only by

PB-2/2014 - instead of PB-2/2013 – he preferred the

statutory complaint dated 24.12.2012. According to the

applicant there was, therefore, no delay on his part.

[9] The applicant then contended that in case of

Technical and Flying branch of the Air Force, this condition

of undergoing pre commission training was not imposed

and, therefore, the policy was discriminatory insofar as

similarly situated persons like him were concerned and

amounted to violation of Article 14 of the Constitution of

India. With reference to the contention of the respondents

that he had raised the issue concerning his pay for the first

time without seeking any departmental remedy, the

applicant submits that he had raised this issue in his

statutory complaint but it was not addressed in the

impugned order dated 06.02.2013 (Annexure-24). In this

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regard, he questioned that if his seniority was to be

reckoned from 17.03.1993 instead of 10.06.1992 under the

disputed corrigendum, then his pay in the rank of Flight

Lieutenant should have been affected but this did not

happen. He contends that the very fact that his pay as

Flight Lieutenant was not affected shows that the

corrigendum did not, as a matter of fact, exists. The

applicant accordingly contends that the Statutory

Complaint was rejected illegally and arbitrarily without

properly addressing the various issues raised therein and

he was consequently compelled to approach this Tribunal

by way of preset Original Application.

[10] The applicant finally contends that the decision

rendered by the Hon’ble Supreme Court in the case of

Union of India vs K.Savitiri reported in (1998)SCC

358, as referred to by the respondents in Para 42 of the

affidavit was not applicable to his case as it reflects the

past service which could not be counted for new cadre

whereas in his case he was granted commission by the

President of India w.e.f. 10.06.1992. He contends that

disputed corrigendum under which his seniority was not

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communicated to him came to his knowledge only vide

Annexure-3 signal/letter, which is dated 07.03.2003.

[11]. The respondents have controverted the case of

the applicant on various counts. To start with, they have

contended that whereas the cause of action of the

Commission in the present case arises in 1998 when the

applicant was granted Permanent Commission (PC), he

had approached the Court of law after a gap of 14 years.

His case was accordingly barred by delay and latches. In

support of this contention, the respondents have cited the

case of Rabindra Bose and ors vs. Union of India

reported in (1970) 1 SCC 84 wherein the hon’ble Apex

Court has ruled that “no relief should be given to the

petitioners, who without any reasonable explanation

approach the Court after such inordinate delay.”

[12] The respondents next contended that the

applicant had filed a statutory complaint in the same cause

of action in 2006 and his petition was rejected by the

Central Govt. The present OA was, therefore, not tenable

in terms of section 11 of the CPC. The respondents further

relied upon the decision of the Hon’ble Supreme Court in

S.B.Dogra vs. State of Himachal Pradesh reported in

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(1992) 4 SCC 455 where the Hon’ble Apex Court has held,

“……If the employee concerned did not file his

representation within the period prescribed after the date

of publication of the provisional gradation list, then his

representation should have been rejected outright……”.

The respondents then referred to Page 75 of the OA to

show that the applicant had filed ROG on 18.05.2006 with

regard to the fixation of his seniority on grant of

Permanent Commission. This ROG was, however, rejected

by the Central Govt. and the decision was communicated

to him vide letter No. Air HQ /21901/21952/PO-3(D) dated

10 Jun 2008 as mentioned in page 75 of the OA

(Annexure-22). The applicant did not pursue the matter

thereafter and, therefore, the decision of the Central Govt.

had attained finality and the applicant cannot now agitate

this issue after a lapse of over 5 years. The respondents

further submit that the applicant had further preferred

another statutory complaint dated 26.12.2012 but his

petition was also considered by the Central Govt. in

pursuance of the direction of this Tribunal and rejected on

06.02.2013. In this context, the respondents have further

argued that the applicant was informed vide DO letters

dated 05.04.2011 and 27.04.2011 about the schedule of

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PB-2/2013 as per which the applicant’s course could not

have been held in 2013 as he completed 20 years and one

month on 1st April 2013 as against the requirement that 20

½ years of service should have been completed by that

date viz 1st April,2013. The respondents have accordingly

submitted that the claim for holding of PB for his course is

not acceptable. With reference to the corrigendum dated

12.03.1998, the respondents have submitted that it was

circulated to all Command Headquarters and other

personnel vide respondent Air Headquarters letter No. Air

HQ/S/24741/12/1/PP dated 18.03.1998. In addition it

was also referred to in AOP’S Directive No.1/98 dated

04.08.1998 on INTERNAL DIRECTIVE OF GRANT OF

PC/EXTENSION of SSC /RELEASE FROM SERVICE ON

COMPLETION OF SSC TENURE-GROUND DUTY BRANCHES

(Annexure-R/1 series). The respondents have further

rebutted the applicant’s claim that he came to know of the

policy some time in 2000 as being incorrect. Respondents

have stated that it was incredible that the applicant took

14 years to get a copy of the said letter because if the

applicant had applied through RTI he would have received

a copy of the Corrigendum at that time itself. Further, on

promotion to the rank of Squadron Leader along with 29

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other course mates, details of his promotion, fixation of

seniority were published in the Air Force list of 2004 which

is a document that is always available in all Air Force

Headquarters. Annexure-R/2 is an extract of the Air Force

List of 2004. Respondents argue that the Govt. letter

(corrigendum) dated 12.3.1998 was already in existence

before issuance of Corrigendum of Permanent Commission

to the Officers on 20.05.1998. Respondents further submit

that the PC was granted to the applicant only in pursuance

of his application and was not in any way thrust upon him.

That being so, the applicant could not plead ignorance on

the issue of his seniority.

[13]. In fact, the applicant had filed a statutory

complaint for the fixation of his seniority to MoD vide HQ

WAC IAF letter No.WAC/3002/1/P2 dated 07.06.2006. The

statutory complaint was duly considered by the MoD and

rejected as being devoid of merit and this decision was

communicated to the applicant vide Air Force letter dated

10.6.2008. Insofar as the Corrigendum of 12.12.998 was

concerned, it was circulated to command headquarters and

other authorities vide Air Force letter No. Air HQ/S

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24741/12/1/PP (O) dated 18.03.1998 for information of all

personnel.

[14] In furtherance thereto, the internal directive No.

01/1998 was also issued on 04.08.1998 and, therefore, the

contention of the applicant that the Government circular

did not exist and the date on the said circular had been

altered is a baseless allegation. If the applicant had any

serious misgivings on the question of Govt. of India

corrigendum, he could have obtained a copy of the said

letter from the originator under the provisions of RTI. On

his promotion to the rank of Squadron Leader on

17.03.2003 and Wing Commander on 17.03.2006, the pay

of the applicant was adjusted as per his re-fixed seniority

in the rank of Squadron Leader. His pay in the rank of

Wing Commander was also accordingly fixed and there

was no new development since fixation of his seniority in

1998. That being so, cause of action has to be taken to

have arisen at the time of grant of PC in 1998 i.e. 14 years

ago and consequently, it was time barred.

[15] The respondents have further submitted that

the applicant along with all other officers of 1 SSC

(ATC/FC) underwent ab initio training of 12 weeks before

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grant of Short Service Commission. As against this, his

contemporary permanent commissioned officers of 90

GDOC underwent ab initio training of 52 weeks before

grant of permanent commission. This shows that the

applicant and other short service commissioned officers

had undergone 40 weeks less training than their

contemporary direct entry permanent commissioned

officers. It was therefore that 40 weeks had to be

deducted in terms of the corrigendum of 12th March,

1998 so as to bring them at par with the permanent

commissioned officers. Consequently, the ante-date

seniority that had to be granted to 1 SSC ( ATC/FC)

course in 1998 at the time of grant of permanent

commission worked out to 5 years and 85 days and his

seniority was thus fixed on 17th March, 1993. The re-

fixation of his seniority was thus in order and the

applicant’s claim to the contrary is untenable. In view of

the re-fixation of his seniority, the applicant’s claim that his

pay has been fixed at par with the junior officers is not

correct. The applicant, in fact, is seeking to equate himself

with Permanent Commissioned Officers who have

completed 52 weeks which is not correct. The applicant

has for the first time sought to raise the issue concerning

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his pay without first attempting to avail of departmental

remedy. This is not permissible under the Armed Forces

Tribunal Act. Details of comparative statement as placed at

Annexure- R-3 will show that there is no anomaly in the

fixation of his pay. With reference to the applicant’s

contention that he should be considered for the post of

Group Captain in 2013, the respondents have submitted in

Para 25 that the applicant’s parallel PC Course ( 90

GDOC) was empanelled in PB-2/2013 and the applicant’s

Course ( 01 SCC ( ATC/FC) was likely to be empanelled in

2014. This was on the basis of the principle that the

applicant’s branch should have a minimum of 20 ½ years

of service before being empanelled for consideration

Whereas officers of 90 GDOC completed 20 years and 10

months of service on the stipulated date, i.e, 1st April,

2013. The officers of 01 SSC ( ATC/FC) had only 20 years

and one month of completed service on the stipulated

date. As a result of which they did not qualify for

empanelment in PB-2/2013 along with their permanent

commissioned counterparts. The statutory complaint

dated. 26th December, 2012 referred to by the applicant in

para 4.20 of the O.A. was duly considered by the Ministry

of Defence and was held to be devoid of merit vide their

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speaking order dated. 6.2.2013. The question raised by

the applicant with reference to the authenticity of the

Govt. of India letter of 12th March, 1998 is not tenable,

as, firstly, it was open for the applicant to obtain a certified

true copy of the said letter from the originator. The

applicant, however, failed to do this. He, therefore, failed

to discharge the burden of proof with reference to the

assertion that he was making. Notwithstanding this, the

respondents have reiterated that the said Govt. of India

letter was circulated to all the Command Head Quarters

and other addressees vide letter No. Air/HQ/S

24741/12/1/PP (O) dated 18th March, 1998 and a copy of

this letter should also have been obtained by the applicant.

In the face of this Govt. order and the other orders, the

applicant himself is to blame for the ignorance displayed

by him as regards his seniority. As per the corrigendum,

“The seniority of SSC officers will reckon from the date of

grant of provisional short service commission ( SSC) so as

to place them at par but junior to their contemporary PC

officers of GDOC. For the purpose of seniority and

promotion, both substantive and acting, the SSC officers

will be granted an ante-date equivalent to their previous

full pay commissioned service less the period by which the

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prescribed period of ab-initio training before the grant of

PSSC fell short of the normal training period for grant of

PC.”. The seniority of the applicant was correctly re-fixed

as 17th March, 1993 in terms of the aforesaid corrigendum.

[16] In rebutting the applicant’s contention that he

was not aware about his promotion and that he learned

about it from the Air Force internet in December 2012, the

respondents have submitted that perusal of the D.O.

letters dated. 5th April, 2011 and dated 27th April, 2011 (as

in Annexure 17 and 18 of the Original Application) would

show that the schedule and conditions of PB-2 were clearly

given there. It was mentioned that Ground Duties Branch

Officers who have completed 20 and half years of service

as on 1st April, 2013 should be considered in PB 2 in 2013.

Since the applicant had not completed the stipulated

period as on the said date, he along with his Course were

eligible to be considered only in 2014. The applicant along

with 29 other officers of his Course were promoted to

the post of Squadron Leader in 2003 w.e.f. 17.3.2003

after re-fixation of his seniority in terms of the said

corrigendum of 17th March, 1993. Details of re-fixation of

his seniority were published in Air Force List, 2004 which

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document was available in all Air Force units. His pay was

also proportionately fixed on grant of rank of Wing

Commander and thereafter there was no new development

on the question of fixation of seniority. The applicant’s

reference to AVSC committee was not proper as the said

Committee had only submitted its recommendation for

consideration. The applicant’s contention that he has been

deprived of promotion to the rank of Group Captain is false

and baseless, as Annexures 17 and 18 of the O.A.

themselves clearly show the schedule and conditions of

impending PB-2. Ground Duties Branch Officers, who

have completed twenty and half years of service as on 1st

April, 2013 are only considered in PB-2 in 2013. Since the

applicant has not completed the stipulated period, he is

not eligible to be considered.

[17] In answer to the various grounds taken by the

applicant, the respondents have reiterated all the

contentions and further brought out that all the policy

letters related to HR and other subjects are, as per

established practice of the Government, circulated through

branch channel. This practice was duly followed by the Air

HQs. In conclusion the respondents have once again

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stated that the applicant has sought to mislead the Court

throughout his O.A. by making factually incorrect

statements after his second statutory complaint dated

26.12.2012 was rejected by the Govt. as being devoid of

merit. Moreover, the applicant has not raised the issue

concerning his promotion, perks and privileges of service

ever since 1998.

[18] On a careful examination of the facts and

circumstances of this case and upon hearing both sides,

we find that the basic issue involved in this case relates to

the correctness or otherwise of the fixation of seniority of

the applicant on grant of permanent commission. The

applicant has brought out that although he was

commissioned on 10.6.1998 as a short service

commissioned Officer his seniority was reckoned w.e.f.

17.3.1999 instead of 10.6.1998 which was the date of his

commission. The applicant has basically contested the re-

fixation of his seniority on the ground that he was not

informed before carrying out that adjustment. In this

regard the applicant has contended that the Govt. letter

(at Annexure 2) which granted him permanent commission

did not mention anything about re-fixation of seniority.

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Besides, the corrigendum dated 12.3.1998 (Annexure- 6)

contains an overwriting with reference to the year of issue

and, therefore, the applicant has raised doubts about the

existence of this corrigendum as on that date. The

applicant has, in fact, gone so far as to say that that this

corrigendum was, in fact, not in existence at all.

[19] The respondents have rebutted all the

contentions taken by the applicant and brought out the

fact that adjustment of seniority in terms of the said Govt.

order of 12.3.1998 was necessitated by the fact that the

applicant along with his course mates who were all Short

Service Commissioned Officers had only done 12 weeks of

training as compared to 52 weeks of training that their

parallel GDOC Course had undergone. It is relevant to note

that the applicant was granted permanent commission on

10.6.1998. It goes without saying that the grant of

permanent commission has to be as per the existing rules

and orders. In the present case, the Govt. of India,

Ministry of Defence had issued orders by way of

corrigendum No. Air HQ/S24741/12/1PP (O)/376/US/D

(Air-III) dated 12th March, 1998 (Annexure- 6) to

determine the seniority of SSC Officers at the time of grant

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of commission. A careful reading of Para 2 of the

aforesaid corrigendum shows that the seniority of the SSC

officers is to be reckoned from the date of grant of

provisional SSC so as to place them at par but junior to

their contemporary PC officers of GDOC. To achieve this

parity the corrigendum further provides, “For the purpose

of seniority and promotion, both substantive and acting,

the SSC officers will be granted an ante-date equivalent to

their previous full pay commissioned service less the period

by which the prescribed period of ab-initio training before

the grant of PSSC fell short of the normal training period

for grant of PC.” It thus becomes evident that the Govt.

order lays down pre-conditions for the grant of permanent

commission. What this in effect means is that SSC officers

who were desirous of accepting permanent commission

would be granted permanent commission only if they

accepted these conditions.

[20] The respondents have, in the present case,

brought out that this corrigendum was duly circulated and

was also, in fact, produced before us along with AOP’s

directive No. O1 of 1998 which was issued vide reference

No. Air/HQ/S/20509/AOP dated 4.8.98 to show that the

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Govt. order was, in fact, referred to and relied upon in the

year 1998 itself by Air HQs. Besides, there is also a natural

presumption as regards the correctness of the Govt. order

unless anything to the contrary is proved. In the present

case there is nothing on record that casts any shadow of

doubt on the authenticity of the impugned Govt. order. In

view thereof, we hold that the applicant’s contention that

the Govt. of India order in question did not exist is without

any basis as it is not supported by any documentary

evidence.

[21] We further find that a perusal of the Govt.

speaking order dated 06.02.2013 (Annexure- 24) shows

that the Govt. itself has held in Para 3 of the letter that the

applicant’s seniority for the purpose of promotion along

with other officers of 1 SSC (ATC/FC) Course was re-fixed

on grant of permanent commission in accordance with

Govt. of India letter NO. 4 (4)/90/D (Air-III) dated 18th

July 1991 and corrigendum vide GOI Air HQ/S

24741/12/1/PP(O)/376/US/D (Air III) dated 12th March,

1998. The Govt. has thereby verified and acknowledged

the corrigendum of 12.3.1998. Thereafter, the Government

order observed the fact that the applicant along with other

OA -6/2013 Page 28 of 32

officers of 1 SSC (ATC/FC) had undergone ab-initio

training for only 12 weeks before grant of Short Service

Commission whereas his contemporary PC officers’ Course

had undergone ab-initio training for 52 weeks before grant

of Permanent Commission. After so observing, the Govt.

order has brought out that a period of 40 weeks was

deducted from the total service rendered by him prior to

grant of PC so as to fix his seniority in PC as per provisions

of ibid Govt. of India letter, viz., corrigendum dated

12.3.1998. The Govt. order further mentions that the ante-

date seniority was correctly re-fixed w.e.f. 17.3.1998 after

deducting 280 days which was the period that fell short of

the actual training period for grant of PC. The Govt. order

then goes on to acknowledge the fact that the

corrigendum was, in fact, circulated to all Command HQs

and other addressees and mentions that on re-fixation of

the applicant’s seniority as per Govt. of India letter of

12.3.1998, the seniority was published in the Air Force List

2000. The Govt. order further clarifies that the applicant

was granted the substantive rank of Squadron Leader

w.e.f. 17.3.2003 and the substantive rank of Wing

Commander on promotion w.e.f. 17.3.2006 on completion

of 10 years and 13 years respectively of

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qualifying service from the re-fixed seniority. The Govt.

letter finally mentions that the applicant had in the year

2006 submitted a statutory complaint for Redressal Of

Grievances by Ministry of Defence vide HQ QAC, IAF letter

Number WAC/3002/1/P2 dated 7th June, 2008 wherein the

applicant had requested re-fixation of his seniority as per

his date of commission without factoring “less the period

of training” clause as provided in the Govt. of India letter

dated 12th March, 1998. The said statutory complaint was

considered by the Ministry of Defence and rejected on

ground of being devoid of merit and applicant was

informed about the disposal of his ROG vide letter NO.

Air HQ/21901/21952/PO-3(D) dated 10.6.2008. The Govt.

letter observed that after more than 4 years from the

disposal of his statutory complaint the applicant submitted

the further statutory complaint dated 26.12.2012 for re-

fixation of his seniority. Since no new issue was brought

out in the said statutory complaint dated 26.12.2012 and

the earlier application having been duly considered and

rejected, the fixation of seniority had attained finality.

Govt. finally rejected the case of the applicant as being

devoid of merit and held that no service wrong has been

done to him.

OA -6/2013 Page 30 of 32

[22] Aforesaid Govt. order, which is a speaking

order, does not leave any room for doubt. While

establishing the genuineness of the corrigendum it also

shows that the re-fixed seniority of the applicant was

published in the Air Force List as far back as 2000 and also

that his promotion to the substantive rank of Squadron

Leader and Wing Commander were also granted on the

basis of the re-fixed seniority. That being so, the

applicant’s case has no leg to stand on. It has also to be

noted that the applicant, who is a responsible officer in the

Indian Air Force, has to be presumed to have accepted the

permanent commission with his eyes open. If the

conditions specified by the Govt. were not acceptable to

him, it was open for him to seek release and opt out. He,

however, chose not to do so. Secondly, he ignored the Air

Force lists which were issued from time to time including

the lists issued in the years 2000 and 2004 wherein his re-

fixed seniority was shown as per the Govt. order. Once the

applicant accepted the revised seniority or in other words

the applicant failed to represent against the re-fixed

seniority as published in Air Force list of 2000 and 2004

that seniority must be taken to have attained finality. In

the present case, notwithstanding this fact the Govt.

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considered his statutory complaint of 2006 and disposed it

on 10.6.2008, as mentioned in the Govt. speaking order

dated 6.2.2013 ( at Annexure 24). With the disposal of his

statutory complaint by the Govt. of India in 2008, the

Govt. decision attained finality, particularly as it was not

challenged thereafter. That being so,the applicant was

estopped from further agitating this issue. Notwithstanding

this fact, the applicant further represented vide his 2nd

statutory complaint of 26.12.2012.This statutory complaint

was also duly considered and finally disposed of by the

Govt. vide its speaking order dated 6.2.2013 (Annexure

24). The decision contained in the said Govt. order at

Annexure-24 is a policy decision which is aimed at

introducing parity between the PC Officers and their

contemporary SSC Officers based on the length of their

respective ab initio training. There is nothing on record to

show that the decision is in any way discriminatory. It may

be pertinent to mention in this regard that it was brought

out during the course of arguments that the principle of

adjustment of seniority of SSC Officers on account of the

shorter length of their ab initio training (12 weeks as

against the 52 weeks of training undergone by the

permanent commissioned officers) was introduced in terms

OA -6/2013 Page 32 of 32

of the policy that already existed in the Army and which

had stood the test of time. In view of the foregoing

discussion, we hold that, there is nothing that survives for

adjudication in this case. The various contentions taken by

the applicant are considered to be devoid of merit and are

accordingly rejected.

[23] The OA is accordingly dismissed.

[24] There will be no order as to costs.

MEMBER(A) MEMBER(J)

Chakravarti

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