ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

O.A.NO. 116 of 2015

THURSDAY, THE 28TH DAY OF JANUARY, 2016/08TH MAGHA, 1937

CORAM:

HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT :

GP CAPT B.BALAJI, NO.23328 'L', AE(M)

PRESENTLY POSTED AT:

AFTPS, ASTE, YEMALUR P.O.,BANGALORE, KARNATAKA – 560 037.

BY ADV. SRI.V.K.SATHYANATHAN

Versus RESPONDENTS:

1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 011.

2. THE CHIEF OF THE AIR STAFF, AIR HEAD QUARTERS (VAYU BHAVAN) RAFI MARG, NEW DELHI – 110 011.

3. THE AIR OFFICER COMMANDING-IN-CHIEF, HQ TC, IAF, JC NAGAR POST, BANGALORE – 560 006.

4. AVM RAJEEV HORA, THE COMMANDANT, ASTE, YEMALUR P.O., BANGALORE – 560 037.

5.GP CAPT N.K.NAIR, VSM, ASTE, YEMALUR P.O., BANGALORE – 560 037,

BY ADV. SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVERNMENT COUNSEL

O.A.116 of 2015 : 2 :

O R D E R

VAdm.M.P.Muralidharan, Member (A):

1. The Original Application has been filed by Gp Capt

B.Balaji No.23328 'L', AE(M), a serving officer posted at

ASTE, Bangalore essentially seeking assumption of

appointment as STE (OC TES) of ASTE.

2. Shri. V.K. Sathyanathan, learned counsel for the

applicant submitted that the applicant was initially posted to

ASTE in the rank of Wg Cdr on 21 July 2014

(Annexure A1). On promotion to the rank of Gp Capt on 28

July 2014, he was re-posted to ASTE to fill Gp Capt Senior

Test Engineer (STE) post by Air Headquarters (Annexure

A2). The learned counsel further submitted that there are

two positions for Gp Capt FTEs at ASTE, ie, Senior Test

Engineer (STE) for AE(M) and Deputy Chief Research and

Project Officer (Dy CRPO) for AE(L). STE is currently known

O.A.116 of 2015 : 3 :

as OC Test Engineering Squadron (OC TES). The learned

counsel submitted that based on the directives issued by the

Commandant, ASTE, from the date of the applicant's posting

till 31 May 2015, he was tenanting the appointment of Chief

Engineering Instructor which is not a Gp Capt post, primarily

to allow Gp Capt NK Nair (respondent No.5), who is an AE

(L) officer posted as DY CRPO to officiate as OC TES.

Applicant did not object to this arrangement initially as the

Commandant as well as the Chief Test Pilot (CTP) had

changed within a fortnight and continuance of Gp Capt Nair

would have provided stability to the functioning of the

establishment. Applicant believed that Gp Capt Nair would

be posted out in June 2015 and he would then take over the

appointment from him.

3. However, the Commandant sought another extension

for Gp Capt Nair for one more year citing service interests

despite the applicant being positioned at the Unit to take

over as STE (OC TES). At that stage, the applicant

O.A.116 of 2015 : 4 :

requested the Commandant to appoint him as OC (TES) and

Gp Capt Nair to tenant the appointment of Dy CRPO the

position to which he was posted. The applicant discussed the

issue with the Commandant on two occasions in April 2015

and since he did not receive any positive response, on 20th

April 2015 the applicant submitted a personal application

requesting that he be permitted to take over the duties as

STE (OC TES) (Annexure A5). Applicant was called at that

stage by the Commandant and informed that Gp Capt Nair

had been given an extension for one more year by Air

Headquarters. The applicant was given option of either

continuing as CEI, discharging duties of Dy CRPO or working

as STE under OC TES. The applicant had submitted to the

Commandant that working as STE or as CEI would reduce

his position and honour as both were not Gp Capt vacancies

and since the post Dy CRPO required involvement of a

specialist it would not be in the interest of service for him to

tenant such a post. The Commandant was however of the

view that utilizing Gp Capt Nair as Dy CRPO would be an

O.A.116 of 2015 : 5 :

under utilization of his potential and not in interest of the

establishment. Verbatim discussions between the

Commandant and the applicant is placed at Annexure A6.

The applicant's request to take over as OC TES was turned

down and he was informed that he will take over as Senior

Test Engineer (STE) to work under the OC TES which would

enable him to take over as OC TES when Gp Capt Nair is

posted out (Annexure A7).

4. The learned counsel submitted that the applicant

was not satisfied with the logic and approach of the

Commandant and therefore submitted a statutory complaint

on 05 May 2015 under Section 27 of the Air Force Act, 1950

(Annexure A9). Further, in view of the inordinate delay in

getting his grievance redressed he forwarded a copy of the

statutory complaint directly to the Chief of the Air Staff on

08 July 2015 (Annexure A10). The learned counsel for the

applicant also submitted that the AOC-in-C, Training

Command was an intermediate authority in the statutory

O.A.116 of 2015 : 6 :

complaint and, in accordance with Para 622 (g) & (h) of

Regulations for Air Force, he should either have redressed

the grievance locally or if he did not do so, he should have

forwarded the application to Air Headquarters within 10 days

with his remarks. However, he disposed of the same by a

speaking order dated 08 July 2015 (Annexure A11). The

applicant therefore requested that his statutory complaint be

forwarded to Air HQ (Annexure A12).

5. Shri V.K.Sathyanathan, learned counsel for the

applicant further submitted that the applicant had been

informed that he would be called for an interview by Air

Officer in Charge of Personnel (AOP) and the issues raised by

him would be resolved. However, at Air Headquarters he

was informed that interview would be with ACAS (PO). The

applicant sought a one on one meeting with ACAS (PO) and

approval to make minutes of the interview. Both these

requests were not acceded to and the interview was in the

presence of PDPO and DPO-1(M).

O.A.116 of 2015 : 7 :

6. The learned counsel further submitted that the

details of the applicant and the 5th respondent downloaded

from the AOP Net clearly indicates that the applicant is

appointed as STE and 5th respondent as Dy CRPO (Annexure

A13). The applicant had been posted by respondent No.2 in

accordance with Para 191 (a)(i) of Regulations for the Air

Force and hence respondent No.4 (Comdt ASTE) did not

have powers to force him to function in a position lower than

his service rank.

7. Shri Tojan J. Vathikulam, learned Central Government

Counsel for the respondents, was assisted by Gp Capt JS

Bhalla, VSM, Jt JAG (Air) and Gp Capt Nandakumar, DPO

1(M) from Air Headquarters. The learned counsel submitted

that in terms of Section 3 (o) of the Armed Forces Tribunal

Act, 2007, the O.A. cannot be termed as 'service matter' as

service matters exclude transfers and posting, including the

change of place or unit on posting. The applicant wanted a

change of place and he prayed for shifting him to his

O.A.116 of 2015 : 8 :

appointment as STE while he was discharging the duties of

Chief Engineering Instructor (CEI). Further, the O.A. itself is

premature as the applicant has not exhausted the statutory

remedies available under the Air Force Act and hence in

accordance with Section 21(1) of the AFT Act the O.A. was

liable to be rejected. Section 21(2) of the AFT Act, further

stipulates that an applicant can approach the Tribunal only

after receiving the final order on his representation from the

competent authority and if no such order is forthcoming, then

he has to wait at least for a period of six months from the

date on which he preferred the petition or representation.

The applicant had submitted a representation on 13 July

2015 wherein he had expressed his dissatisfaction with the

redress granted by the AOC-in-C on the subject and had

requested for his representation be forwarded to Air

Headquarters. This was received in Air Headquarters only on

27 August 2015 along with the comments of Training

Command and without offering a reasonable time to the

respondents to consider his representation the applicant had

O.A.116 of 2015 : 9 :

filed the O.A.

8. The learned counsel further submitted that Air

Headquarters is the Apex body of the Air Force under the

Ministry of Defence and the Air Force is organised into

Commands which are functionally and administratively

controlled by the Air Headquarters. There are specialist units

like ASTE which are under the direct functional control of Air

Headquarters with administrative services being provided by

Headquarters Training Command. Gp Capt Nair (respondent

No.5) and the applicant are working under Commandant of

ASTE. Gp Capt Nair has been at the ASTE since June 2011

and functioning as Senior Test Engineer since April 2012. He

is senior to the applicant in service as well as in rank. The

applicant was posted to ASTE in July 2014. As Gp Capt Nair

was actively involved in many of the key projects of the

ASTE, in the interests of service, his continuation in the

appointment was considered necessary by the Commandant.

The applicant was hence directed to tenant the appointment

O.A.116 of 2015 : 10 :

of CEI and the applicant raised no objections to the

arrangement for about a year and submitted an application

only in April 2015 for change of appointment. As the request

of the applicant was not acceded to by the Commandant in

the interest of service, the applicant submitted a

representation which was disposed of by the C-in-C Training

Command by a speaking order. The applicant not being

satisfied requested for his appeal to be forwarded to the

Chief of Air Staff.

9. Learned counsel submitted that Annexure A6

submitted in the OA is the transcript of a conversation

between the Commandant and the applicant that took place

in the office of the Commandant. The contents clearly

reflects that the applicant may have recorded the

conversation between the Commandant and himself with the

help of a concealed device as it is humanly not possible to

recall discussions in such detail. The action of the applicant is

without approval of the Commandant and is unbecoming of

O.A.116 of 2015 : 11 :

an officer of his rank and seniority.

10. The respondents further submitted that since the

claim of the applicant was for an appointment in a sensitive

unit like ASTE, after due deliberations at Air Headquarters

the applicant was called for an interview to understand the

issues being raised by him in the correct perspective and to

make him aware of the organisational requirements. The

applicant was interviewed by Assistant Chief of Air Staff

(Personnel Officers) ACAS(PO) on 20 October 2015. It was

explained to the applicant that while his aspirations were

well understood by Air Headquarters, there was a need to

maintain a balance between organisational requirements and

individual aspirations. He was therefore offered suitable

appointments in any of the other units in Bangalore. Further

an offer for posting back to ASTE to tenant the appointment

of STE at a later stage was also made. This was not

acceptable to the applicant. In view of the sensitive nature

of projects being undertaken at ASTE and the various

O.A.116 of 2015 : 12 :

representations submitted by the applicant against the

Commandant some mistrust has been created within the

organisation and therefore appointing the applicant to a

sensitive post against the requirements projected by the

Commandant would have adverse effect on the ongoing

projects and trials. The positioning of respondent No.5 was

considered essential for ongoing projects and, therefore, he

was being planned to be retained till March 2016. While

these issues were explained to the applicant he did not

appreciate that organisational interests are paramount.

11. The learned counsel also submitted that the

interpretation of the applicant that his honour has been

lowered by appointing him as CEI was incorrect as the

appointment has always been tenanted by a Gp Capt

whereas Dy CRPO, though a Gp Capt post, was being

tenanted by a Wing Commander. Further, right from the

inception of ASTE, the posts of CEI and STE have always

been considered at par.

O.A.116 of 2015 : 13 :

12. It was also submitted by the representatives of

Air Headquarters that posting orders for officers in select

ranks are issued based on vacancies existing in a particular

branch or a particular unit, considering cadre management

angle. Flexibility is however given to the Commanding

Officer on the spot or head of the branch to deploy officers

either to the same post to which he is posted or to a

different appointment within the unit or branch based on his

experience level or on overall availability of officers and

requirement of continuity. This is a practice that is routinely

followed and no exception was made in the case of the

applicant. The applicant had also accepted to tenant the

post of CEI without any conditions and it was only later that

he began insisting on replacing respondent No.5 as OC TES.

13. Learned counsel for the respondents submitted that

although postings and attachments of officers are done under

the orders of the Chief of the Air Staff in accordance with

Para 191 of Air Force Regulations, provision is also made

O.A.116 of 2015 : 14 :

enabling the C-in-C of the Command to authorise attachment

of officers from one unit to the another within the Command.

Postings are normally made only to fill vacancies in an

establishment. Further, in accordance with Para 52 of

Regulations for Air Force, overall efficiency of an organisation

is the responsibility of the Commanding Officer and he could

distribute the work between himself and his subordinates as

deemed fit to ensure efficiency of the organisation.

Therefore, it was incorrect on the part of the applicant to say

that the Commanding Officer could not utilise him for any

other work.

14. The learned counsel for the respondents further

submitted that every effort was made by the respondents to

resolve the issues being raised by the applicant, including

grant of personal interview at the level of ACAS(PO).

However, since the applicant could not be satisfied either at

the level of the C-in-C or during the interview at Air

Headquarters his representation is being examined by Air

O.A.116 of 2015 : 15 :

Headquarters. The said representation was received at Air

Headquarters only on 27 August 2015 and before reasonable

time was given to examine the issues, the applicant had

approached the Tribunal. As the matter was under

consideration of the Tribunal the respondents have not

disposed of the said representation. The learned counsel

prayed that since the applicant had approached the Tribunal

even before the time laid down in Section 21 of the AFT Act

had expired, the respondents be given an opportunity to

decide on the representation of the applicant in accordance

with Air Force Act and Regulations.

15. Heard rival submissions and perused the records.

16. Shorn of details, the applicant is essentially

seeking that directions be given to the respondents to allow

him to take over as OC TES. It is not disputed that the

applicant was initially posted to ASTE in the rank of Wing

Commander with effect from 21 July 2014 and was re-posted

O.A.116 of 2015 : 16 :

on promotion to the same unit with effect from 28 July 2014.

It is also not disputed that even though Air Headquarters

posting orders (Annexure A2) indicated that he was posted

to ASTE on promotion to fill the post of Group Captain STE,

he tenanted the appointment of the Chief Engineer Instructor

(CEI) as directed by the Commandant, ASTE. As per

submissions made by the applicant himself in the OA, he was

in agreement with the Commandant to assume the position

of CEI. It was only when he found that respondent No.5 was

likely to continue for another year in the same post that he

raised objections including the issue of undermining of his

honour.

17. Section 9 of Regulations for the Air Force deals with

postings and attachments and paragraph 191 of the said

Section being relevant is reproduced below:

“191. (a) General.

(i) Postings and attachments will be carried out

under the orders of the Chief of the Air Staff. An

O.A.116 of 2015 : 17 :

air Officer Commanding-in-Chief may authorise

attachments of officers from one unit to another

within his command. Period of attachment is not

to exceed 89 days under any circumstances.

(ii) Postings are normally to be made only to fill

vacancies in establishment and every officer on

the strength of the unit is to be allocated to a

definite place in the establishment except where

an officer, is posted supernumerary to a unit for

practical experience/operational requirements.

(iii) . . . . . . . . . . . . . . . .

(iv) . . . . . . . . . . . . . . . .

(v) In order that it may be known to Air

Headquarters which vacancies in the

establishment are covered by the officers, it is

necessary that they should be employed on the

duties and filled against vacancies in the

establishment for which they are posted. Each

unit will render to Air Hqrs through the usual

channels a quarterly return on form P.2 of all

officers on its strength or attached to it, but

excluding those undergoing training, whether,

filling vacancies in the establishment or held

supernumerary. Any change in details of the

return occurring during the intervening period will

be notified monthly by the unit as amendments to

the quarterly return.”

O.A.116 of 2015 : 18 :

18. Paragraphs 51 and 52 of the Regulations deal with

instructions for Commanding Officers and being relevant are

reproduced below:

“51. General Responsibility

(a) Commanding officer is responsible to the air

officer commanding-in-chief through the air or

other officer commanding, if any, for the command,

discipline, training, efficiency and proper

administration of the station and/or unit or units

under his command.

(b) It will be his duty to keep himself informed in

detail of the organisation and administrative

arrangements in the units comprised within his

command, and to render to his junior officers such

advice and assistance as lie within his power.

52. personal responsibility of a CommandingOfficer and Delegation of Duties

(a) In the interest of efficiency a commanding officer

must remain ultimately responsible for the whole of

the organisation and administration of his station or

unit, but the distribution of work between himself

and his subordinates is left substantially to his

discretion. Broadly speaking, he should allocate to

O.A.116 of 2015 : 19 :

responsible officers, who are his immediate

subordinates, all matters of routine and minor

administration, retaining (sic) for himself questions

of general organisation, important matters requiring

his personal attention and decision, and the general

control and supervision of the various duties which

he has allocated to others. As a general rule,

regulations are not framed so as to distinguish

between duties which a commanding officer must

discharge personally and duties for which he is

responsible but may entrust to others. A

commanding officer should not however, regard

himself as bound to carry out a duty personally,

unless the regulation expressly requires him to do so

or it is of such importance that it cannot be

defeated.

(b) Subject to such general directions as may be

given in regulations, the extent and manner of

delegation is left to the discretion of the commanding

officer to be decided in accordance with the size and

nature of the unit, the character and experience of

the subordinate personnel and the varying

circumstances of the moment. Notwithstanding any

delegation authorised in the following regulations, the

commanding officer will retain general responsibility

and keep in touch with the details of the daily life of

his station or unit by occasionally scrutinising and

carrying out a check of the documents in question.”

O.A.116 of 2015 : 20 :

19. A conjoint reading of above paragraphs indicates

that Commanding Officer of a Unit is responsible to the Air

Officer Commanding-in-Chief among others for efficiency,

command and training of his unit. Postings are normally

made to ensure that all sanctioned vacancies of the

establishment are filled up. It also emerges that while

officers should normally be employed on duties against

vacancies in the establishment to which they are posted,

some latitude is given at the local level. AOC-in-C can post

officers out of one unit to another under his Command for

specified periods. The Commanding Officers are further

authorised to delegate duties to the officers under them to

ensure overall efficiency of the organisation and to enable

completion of tasks allocated. There are no specific orders

to the effect that officers should not be redeployed without

prior approval of Air Headquarters as a quarterly return on

utilisation of officers have been sought from each unit. In

our view, it therefore emerges that contrary to the

submissions made by the applicant, the Commanding

O.A.116 of 2015 : 21 :

Officer, who in the instant case is the Commandant of ASTE,

has the flexibility to use officers within the unit to posts as

deemed fit by him to enhance overall operational efficiency.

This is clearly evident, as Respondent No.5, appointed by

Air Headquarters as Dy CRPO has been tenanting the post of

STE from April 12 without any objections by Air

Headquarters or the Command Headquarters.

20. Applicant had submitted a statutory complaint in

accordance with Section 27 of the Air Force Act. Procedure

to be followed on such a complaint is specified in Para 622

of the Regulations for the Air Force and being relevant is

reproduced below:

“622. Remedy for Aggrieved Officers

(a) The manner in which an officer should

proceed to obtain redress for any grievance

which he conceives himself to be suffering from

is prescribed in section 27 of the Air Force Act.

This para lays down the procedure to be

followed.

O.A.116 of 2015 : 22 :

(b) Scope of complaints. Complaints made

under section 27 of the Air Force Act, 1950 must

show that a service wrong has been done to the

complainant in that he has been deprived of a

service right or privilege. An officer may make a

complaint on matters not arising from the

service, but such complaints will not be deemed

to have been made under section 27 of the Air

Force Act.

(c) Criticism of Superiors. In applications for

redress of grievances criticism of superiors

should be scrupulously avoided. In this

connection, attention of all concerned is drawn to

para 569 of these regulations.

(d) ….......................

(e) Representation by officers to C.A.S. or other

government Authorities. An application for

redress, be it for service wrongs or on personal

matters affecting morale and welfare, must in the

first instance be submitted by a service officer to

his commanding officer. The practice of

bypassing the normal service channels and

making direct representations to higher

authorities except as provided in sub para (k) is

prohibited. Officers will render themselves liable

to severe disciplinary/administrative action for

any violation of these regulations.

O.A.116 of 2015 : 23 :

(f).......................

(g) Proper channel and Procedure for Progressing

Petitions. An officer's application except as stated

in sub para (k) is to be addressed to his

commanding officer and copies of the application

are not to be forwarded to higher authorities. On

receipt of the application, the commanding officer

will investigate the case, and if possible, redress

the grievance of the officer locally. If the

commanding officer redresses the grievance, he

will inform the applicant and obtain from him in

writing a statement to the effect that his

grievance has been redressed. If however, the

commanding officer is not in a position to redress

the grievance locally, the application together with

a report from the command officer will be

forwarded to the next higher formation in the

chain of command, and the officer concerned

informed of this fact in writing.

(h) On receipt of the application at higher

formation similar action as at sub para (g) will be

taken and the application will continue to be

forwarded to higher authority until it reaches Air

Headquarters, unless the grievance is redressed.

The applicant is to be informed of the fact that his

application has been forwarded to the next higher

authority.

(i) . .. .. . . .

O.A.116 of 2015 : 24 :

(j) After due consideration at Air Headquarters, the

officer will be informed through the normal

channels, as to what action has been taken on his

grievance. If the officer is not satisfied with the

redress granted by Air Headquarters, his

application will be forwarded to the Central

Government for a decision.

(k) Exemption to rules About Proper Channel.

Complaints/ applications for redress of grievance

may be addressed to next higher authorities only

when the commanding officer or the intermediate

authority refuses to give a legitimate redress asked

for or unnecessarily delays forwarding of the

complaints to higher authorities. Under such

circumstances, the complainant will inform the

immediate authority of his action.

(l) Interview with Inspecting officers. If an

aggrieved officer feels that his application has not

received due consideration in a reasonable period of

time, he may seek an interview with an inspecting

officer, ie, the Chief of Air Staff, AOC-in-C or AOC,

as the case may be. When it is desired to seek an

interview with the inspecting officer, the following

action will be taken.

(i) The officer will make a request to his

commanding officer in writing for such an

interview.

O.A.116 of 2015 : 25 :

(ii) If the time permits, full details of the case

will be forwarded to the inspecting officer in

advance.

(iii) If, however, the notice for the inspection

is short, the commanding officer will apprise

the inspecting officer of the facts of the case

before interview.

(m) . . . . . .

(n) Period of permissible Delays. It is of utmost

importance that applications for redress of

grievance by officers are dealt with expeditiously so

as to reach the authority competent to redress the

grievance not later than 45 days from its date of

submission by the aggrieved person. No

intermediate authority will hold up the application

for more than 10 days. In the event of such a delay

a report indicating the reasons for the delay will be

made to the next higher authority.

21. It emerges from the procedure laid down that it is

the responsibility of the Commanding Officer at the first

stage and eventually through him at the level of the C-in-C

of the Command to ensure that grievances raised by officers

are addressed. Those which cannot be resolved at the level

O.A.116 of 2015 : 26 :

of the C-in-C would have to move up to the Chief of the Air

Staff (Air HQ) and eventually to the Central Government.

It is well known that in any organisation and more so in the

Armed Forces, the organisational goals are always placed

ahead of individual aspirations. It logically follows that it

would not be possible to meet the requirements/aspirations

of individuals in each and every case. Notwithstanding the

above, every effort needs to be made to satisfy individual

needs in order to keep up the morale of the Forces.

22. The C-in-C of a Command has the responsibility to

ensure redressal of grievances of officers under his

Command and hence in our view was justified in issuing a

speaking order (Annexure A11) on examination of the

statutory complaint raised by the applicant. We do not find

any merit in the applicant's submission that his statutory

complaint should have been forwarded to the next higher

authority by the C-in-C. It is observed from the speaking

O.A.116 of 2015 : 27 :

order issued that after examining the issues raised by the

applicant, C-in-C, has arrived at a view that no service

wrong has been done to the applicant and therefore as

appreciated by the C-in-C, grievance of the applicant had

been resolved. However since the applicant perceived that

his grievance has not been redressed, requesting that his

case be forwarded to Air Headquarters (Annexure A12) was

in tune with the regulations. Notwithstanding the same, it is

observed that the applicant had forwarded his statutory

complaint to Air Headquarters on 08 July 2015 (Annexure

A10) quoting Para 622(k) of Regulations possibly even

before receipt of the speaking order from C-in-C. While the

applicant has quoted Para 622(k) of Regulations, there is

nothing on record to indicate his seeking a personal

interview with C-in-C for redressal as provided in Para

622(l) of Regulations since as perceived by him, his written

application had not received timely consideration.

O.A.116 of 2015 : 28 :

23. As regards time delays, regulations provide for 45

days for the complaint to reach the authority who is

competent to redress the grievance with proviso of 10 days

limit for each intermediate authority. No time limit has

been set for the competent authority to dispose of the

complaint. It is however logical to assume that the

authority would dispose of the complaint in a reasonable

time frame. In the instant case, as submitted by the

applicant, his statutory complaint dated 05 May 2015 was

forwarded to the Command Headquarters on 13 May 2015

and the speaking order by the C-in-C (Annexure A11) was

issued on 08 July 2015. As observed earlier, the C-in-C was

of the view that he was competent to resolve the issue and

therefore did not forward it to the Air Headquarters. The

applicant had an option of seeking an interview with the

C-in-C if in his perception undue delay was taken over his

statutory complaint. There is nothing on record to indicate

whether he has sought such an interview. Not being

satisfied with the speaking order received, the applicant

O.A.116 of 2015 : 29 :

requested Commandant, ASTE on 13 July 2015 that his

statutory complaint be forwarded to Air Headquarters

(Annexure A12) and it was forwarded the very next day to

Command Headquarters. As submitted by the applicant, it

was forwarded by Command Headquarters to Air

Headquarters only on 14 August 2015. It was received at

Air Headquarters on 27 August 2015 as submitted by the

respondents. Admittedly, in the second round of forwarding

of statutory complaint by the applicant, the Command

Headquarters did take longer than the prescribed time prior

to forwarding it to the Air Headquarters. Once again the

applicant had an option to seek an interview but there is

nothing on record to indicate that whether he had exercised

the option. Notwithstanding the delays at Command

Headquarters the statutory complaint was received at Air

Headquarters on 27 August 2015 and the instant Original

Application was filed on 31 August 2015. This in our view

was clearly premature as a reasonable time has not been

given to the Air Headquarters.

O.A.116 of 2015 : 30 :

24. The applicant has stressed a lot on his honour

being lowered since he was tenanting a post normally held

by a Wing Commander, a rank one below the rank held by

the applicant. The respondents have indicated that the

appointment of CEI had always been held by a Group

Captain even though it was meant to be held by a Wing

Commander. We observe that the applicant had no issues

with honour when he held the post of CEI for nearly a year

after joining the establishment. It is also observed that

the post of STE itself was that of a Wing Commander and

was upgraded to that of a Group Captain post general

upgradation of the posts under the AVSC II Scheme of the

Government (Annexure A4).

25. Further, while the applicant has been insisting on

his honour, we observe that he has produced the record of

discussions between him and the Commandant held in

O.A.116 of 2015 : 31 :

Commandant's office on 21 April 2015 as Annexure A6 and

in the rejoinder filed by him there are extracts of the

conversation between him and ACAS at Air Headquarters.

Both these appear to be verbatim of discussions that took

place and such a reproduction would not be feasible, unless

the entire conversation was being recorded either by a

stenographer or by an electronic equipment. As it emerges,

the applicant himself has submitted that he was not allowed

to record minutes of discussions with ACAS and the

respondents have submitted that no permission of the

Commandant was sought to record discussions in his office.

We find it difficult to believe the applicant's submission that

he remembered the entire conversation in the way it has

been reproduced.

26. The Hon'ble Apex Court while examining the case

of Group Captain (Time Scale) in Union of India v. Atul

Shukla (2014) 10 SCC 432, held that lesser or higher

allocation of duties will not trivialise the promotion of a Wing

O.A.116 of 2015 : 32 :

Commander to the rank of Group Captain. The Apex Court

observation being relevant is re-produced below:

“37. . . . . . .. If a Wing Commander is promoted

as a Group Captain on Timescale basis, the nature

of duties must, by reason of such promotion, be

more onerous than those discharged by him as a

Wing Commander. Promotion to a higher cadre

invariably implies higher responsibilities even when

the essential nature of work may continue to be

the same. . . . . . . That apart, allocation of work

and duties is a matter left for the Air Force

Authorities to determine. Lesser or higher

allocation of such duties will not trivialise the

promotion of a Wing Commander to the rank of

Group Captain which progression must be treated

to be a promotion for all intents and purposes”.

27. In our view, even though the observation was in

case of Gp Capt (Time Scale), basic principles remain

unchanged even in case of Select Gp Captains and allocation

O.A.116 of 2015 : 33 :

of duties will not trivialise a promotion. Further as pointed

out earlier, Regulations provide discretion to the

Commanding Officer in allocation of work and duties to

officers under him.

28. While we have made the above observations, it

has been submitted on behalf of the respondents that they

were constrained to take a decision on the statutory

complaint, as an Original Application was filed by the

applicant before Respondent No.2 had reasonable time to

examine the issue. We are, therefore, of the view that

Respondents 1 and 2 need to be given an opportunity to

redress the grievances of the applicant.

29. In view of the foregoing, the Original Application

is disposed of directing Respondents 1 and 2 to examine

the issues raised by the applicant in his statutory complaint

untrammelled by the observations made by us and dispose

O.A.116 of 2015 : 34 :

of the same on its merits in accordance with law within a

period of three months from the date of receipt of a copy of

this order.

30. There will be no order as to costs.

31. Issue free copy to the parties.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

32. After pronouncement of the order, learned counsel

for the applicant requested for leave to appeal to the

Supreme Court. In our opinion, no question of law of

general public importance is involved in the matter. Hence

leave requested for is refused.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

Krs/an. (true copy)

Prl.Pvt.Secretary