Dr. M.K. Sharma, J.
1. The facts and the issues arising for considering in these writ petitions are similar and, thereforee, I propose to dispose of all these writ petitions by this common judgment and order.
2. The petitioners herein were all Re-employed superannuated officers from the Indian Army. Pursuant to the Scheme of the Respondents the petitioners herein after their retirement from the Indian Army were Re-employed in terms of the said Scheme of the respondents. The petitioners, however, were not given extension of Re-employed service up to the age of 58 years om terms of the amended Army instructions and, thereforee, the petitioners herein filed the present petition seeking for a direction to the respondents to allow the petitioners to work and to have extend service up to the age of 58 years.
3. There is a considerable deficiency of regular officers in the Army since long. The same is an accepted position as there is a deficiency of 12000 officers in the Indian Army. In order to cope up with the aforesaid problem, in 1957 a Scheme was started to make up the aforesaid deficiency by re-employing superannuated Army Officers and an instruction to that effect was issued by the Indian Army which is dated 4.2.1990. The aforesaid instruction laid down the terms and conditions of service of Retired Regular Army Officers. It provides that Regular Army Officers who retired in the substantive rank of Lt. Col. and below may be Re-employed by Army Headquarters for service in the Regular Army for a maximum period of three years and a minimum period of two years in the first instance. Under the terms and conditions stated in the said instructions it was also provided that extension(s) beyond the above period may also be granted at the discretion of Army Headquarters limited to the age of 55 years. It further provided that Retired substantive Colonels, other than those belonging to AMC, might also be Re-employed. Para 6 thereof laid down the age limit which provides that the officers must not be over 53 years of age on the date of re-employment and that no officer under the aforesaid Army instructions would be retained beyond the age of 56 years.
4. However, subsequently as a result of the recommendations of the Vth Pay Commission the age of superannuation of the Regular defense Officers was increased by two years by a Notification issued by the Ministry of Personnel, Public Grievance and Pension dated 13.5.1998. In the said O.M. it was state that recommendations made by the Vth Central Pay Commission relating to the age of retirement of Central Government Employees was examined and it was decided that every Government servant who age of retirement was currently 58 years would now retire from service on the afternoon of the last day of the month in which he/she attains the age of 60 years. It was further provided in the said Notification that it is also the decision that the age of retirement of the Personnel of Armed Forces and Central Para-Military Forces, should also be enhanced by two years and necessary orders with regard to the same would be issued by the Ministry of defense and Ministry of Home Affairs as the case may be.
5. Pursuant thereto a decision was also taken to amend the Army instructions of the year 1980 and by a Notification issued in the month of May, 2000 it was ordered that 57 and 58 years be read in place of 55 & 56 years. In terms thereof the age limit for Re-employed officers stand amended to the effect that officers must not be over 55 years of age of the date of re-employment and that no officer under the Army instructions would be retained beyond the age of 58 years. However, a rider was issued to the aforesaid amendment laying down that the aforesaid amendment would be effective after 30th May, 2000. thereforee, the age of Re-employed officers although was increased to 58 years but because of the aforesaid rider as a cut off date was mentioned as 30.5.2000, the amendment was made applicable from 30.5.2000. Consequently, the officers who had been Re-employed before 30.5.2000 were not to be given the benefit of age extension and those Re-employed after the said date were to go up to the increased age of 58 years.
6. The aforesaid cut off date provided in the amendment were challenged in this writ petition as highly arbitrary and discriminatory on the ground that here is no reasonable criteria for such discrimination between the same class of people. In was submitted that when the original letter of 13.5.1998 did not make any classification in regular officers the corrigendum for Re-employed officers would not and could not make such a distinction and, thereforee, such a classification is discriminatory and vocative of Articles 14 & 15 of the Constitution of India and, thereforee, void.
7. When the present writ petition was pending in this Court, the Government of India on their own took a decision to delete from the memorandum the rider of the cut off date of 305.2000. By a communication issued on 303.2001 the Ministry of finance informed the Chief of the Armed Staff that the paragraphs 3 of the Army instructions AI/9/2000 regarding Re-employed officers terms and conditions of service stands deleted from the aforesaid Army instructions. The aforesaid paragraph 3 pertains to the amendment and increase of the age limit effective from 30.5.2000 was deleted. In order to have a better appreciation of facts of the case, the contents of AI 9 of 2000 are extracted below :-
' ARMY INSTRUCTIONS
CORRIGENDUM NO.
New Delhi, the Thursday, June
1,2000/Jyaistha 11, 1922 Sept.
No. /2000 - Re-employment of
Retired Regular Officer-Terms and conditions of Services.
1. In para 1, 55 & 56 years may be amended to Read as 57 & 58 years respectively.
2. Delete existing Para 6 and substitute as under :-
'6. Officers must not be over 55 years of age on the date of re-employment. No officer Re-employed under this AI will be retained beyond the age of 58 years' 3. This will be effective after 30 May 2000 and will be applicable to officer retiring and Re-employed after 30 May 2000.'
8. So paragraph 3 of the aforesaid stood deleted with effect from 30.3.2001. Accordingly, it was submitted that once the Government had itself amended the letter of 30.5.2000 and cut off date have been removed the officers who were employed even prior to 30.5.2000 or on the said date become entitled to the benefit of the age extension subject to all other conditions being fulfilled. Relying heavily on the said amendment and also on the Notifications of the two other services namely, the Air Force and the Indian Navy wherein the Re-employed officers were granted raise of maximum age of re-employment from the existing 56 to 58 years irrespective of the date of the re-employment the petitioner submitted that the petitioners who were Re-employed by the Indian Army were also clearly entitled to be retained up to the age of 58 years which should be further clear from the letter of the MS Branch to the various Commands of the Army and the CDA which is dated 4.4.2001. The contends of the said letter is extracted below:
'Reisao comma A1/2000 and MS Policy letter 04580/MS Policy of 30 May 2000 on re-employment of retired regular officers (.) further of say no.382426/ AGE/ MS-3A of Apr04 ()(.)
Firstly(.) Para 3 of AI9/2000 dt.30 May 2000 stipulated that extend of Re-employed offers to 57 oblique 58 years will be effective after 30 May 2000 and will be applicable to offers retiring and Re-employed 1 after 30 May 2000 (.).
Secondly(.) Govt. of India vide MOD letter No.14(3)98-D(AG) dt. 30 Mar 2001 has cancelled Para 3 of AI 9/2000 quoted above (.).
Thirdly(.) Consequent to issue to Govt order of 30 Mar 2001 on enhancement of retiring age to 57 oblique 58 years of age restrictive stipulation of 30 May 2000 in respect of offers Re-employed before 30 May 2000 removed (.)
Fourthly(.) Re-employed offers proceeding on final release wef 30 Mar 2001 and subsequent dates at age of 55 oblique 56 years be held in abeyance comma withheld subject to offers opting and applying for further extend for a third tenure up to age of 57/58 years as per format in MS Policy letter no.04580/ MS Policy dt.30 May 2000 (.).
Fifthly(.) Offers NOT opting for extend can be released as hither to fore(.)
Sixthly(.) All units/mns under your Command to be info accordingly (.)'
9. In view of the aforesaid background facts, the issue that arises for my consideration is whether those officers of the Indian Army who were Re-employed prior to 30.5.2000 are or are not entitled to the benefits to the age extension. In support of the contention that such a benefit is not available to the Army Officers who were Re-employed prior to 30.5.2000 counsel for the respondents submitted that the officers appointed in terms of Army Instructions were given extension of service for a fixed period of time and the same in no manner is connected with the retirement age and, thereforee, since the petitioners were appointed on tenure basis they cannot ask for to be retained in service till completion of 58 years of age. It was submitted that since every Re-employed officer is always engaged for a period of two years initially and then for a further specified period at the discretion of the Army Headquarters limited maximum to the age of 56 years which was increased to 58 years, vide order dated 30.5.2000, the increase in the maximum age would not imply that the Re-employed officers who had already been engaged for a fix period would continue in service for any further period. It was also submitted that the comparison with increase in maximum age of Navy/Air Force Re-employed officer is misplaced as not only the terms of reemployment are wholly different in the three organisations but even the organisation and things are different and thereforee the decision to grant extension to Re-employed officers in Navy/Air Force does not necessarily imply that such extension must be granted to Re-employed officers in the Army also. It was also submitted that the Government having exercised its discretion not to increase the tenure of those officers who had already served as Re-employed officers for four years and the same benefits having been given to similarly placed officers, the writ petition is required to be dismissed.
10. I have given my anxious considerations to the rival submissions of the learned counsel for the parties in the context of the aforesaid issue, which arises for my consideration. With the increase in the age of superannuation in all Government services from 58 to 60 years there was corresponding increase in the age of retirement of the Personnel of the Armed Forces also by two years. in terms of the aforesaid increase in the age of retirement corresponding increase was also made by the Government of India, Ministry of defense so far the terms and conditions of services of Re-employed Retired Regular Officers are concerned. The aforesaid Notification was issued in September, 2000 whereby it was provided that officers must not be over 55 years of age on the date of re-employment and that no officer Re-employed under the Army Instructions should be retained beyond the age of 58 years. thereforee, a Retired Regular Officer could be Re-employed and retained in service up to the age of 58 years. The aforesaid amendment was, however, made prospective by the communication issued by the Ministry of defense. Subsequently, however and during the pendency of the present writ petition aforesaid paragraph 3 making the said amendment effective from 30.5.2000 was deleted by the competent authority by issuing an appropriate notification. The aforesaid factual position clearly establishes that when an superannuated officer is Re-employed by the Indian Army his service after reemployment could be retained up to the age of 58 years subject, however, to fulfillment of all other conditions. My attention was also drawn to the fact that Air Force and Naval officers who are reemployed are also given the benefit of age extension irrespective of the date of re-employment unlike what was done in the case of the Army. In order to support their claim the petitioners have placed on record a copy of the letter dated 31.1.2000. In para 3 of the said letter it was specifically mentioned about the revision of ages for the Navy and the Air Force. Para 3 of the said letter clearly states that increase in cases of these two forces namely, the Indian Navy and the Indian Air Forces have been made effective from the date of their re-employment. The relevant portion thereof is extracted below :-
'Re-employed officers of Air Force and Indian Navy have been granted revision of maximum age of re employment from the existing 56 to 58 years vide Govt. of India letter no.... dated 12.1.2001. It has been intimated by the Naval authorities that the extension up to the age of 58 years is being granted irrespective of the date of re-employment.'
11. The Ministry of the three forces are the same and all the three are Armed forces. thereforee, when other two forces have granted the benefit of age extension to all officers irrespective of the date of re-employment there is no reason why similar benefit should not be made to the reemployed officers of the Army. There cannot be any discrepancy in the three forces which are equal in all respects and, thereforee, there is no reason why the Government should deprive the Armed forces the aforesaid benefits. Being aware of the aforesaid position the Government itself amended the letter of 30.5.2000 and stipulation of the cut off date has been removed and the said paragraph was deleted. thereforee, as of today all three forces constituting the Armed Forces are in parity with regard to the maximum age of re-employment having revised age up to 58 years irrespective of the date of the re-employment. Stand of the Army in making the amendment effective only after 30.5.2000 was arbitrary and discriminatory in the light of the well settled position of law laid down by the Supreme Court, reference to which shall be made presently. Realizing the said position the Army authorities themselves deleted the said cut off date subsequently making the position absolutely uniform in all the three wings of the Armed forces. thereforee, there could be no valid reason to deprive the benefits of being retained up to the maximum age of 58 years only because they were re-engaged prior to 30.5.2000.
12. In view of the aforesaid position and the development taking place subsequent to the filing of the writ petition fortifying the plea raised in the present petition, I see no reason why the petitioners should be deprived from the benefit of as is being available to the other two wings of the Armed forces. There cannot be any discrimination between similarly situated persons and the benefits given to one have to be given to the similarly situated persons. In this connection reference may be made to the various decisions of the Supreme Court laying down the aforesaid principle. Reference, however, could be specifically made to the decision of the Supreme Court in Union of India and Anr. v. K.T. Shastri, reported in : [1990]1SCR20 . In the said decision it was laid down by the Supreme Court that where the three Units of a service in which it was subsequently trifurcated belonged to one service when the aggrieved employee was recruited in that the employees were recruited initially to the service in question and then sent to different units and the service conditions of the employees belonging to the three units were the same and their services were inter-changeable between the three units and the Service Rules which applied to all the three units were also common and no option was given to the employees working in the different units to opt for one or the other of the units, denial of the benefit of enhanced superannuation age to the members of the unit to which the said employee belonged while the same was granted to the members of the other unit amounted to discrimination and was vocative of Article 16 of the Constitution.
13. In T.S. Thiruvengadam v. Secretary, Government of India, : (1993)ILLJ1101SC the Supreme Court observed that denial of the revised Pensionary benefit to those who were absorbed prior to a certain date, such as the appellant therein is vocative of Articles 14 and 16 of the Constitution of India. In D.S. Nakara and Ors. v. Union on India, reported in : (1983)ILLJ104SC it was held by the Supreme Court that the Fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification, however, must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. It was further held that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments.
14. thereforee, I am of the aforesaid opinion that once the Government had itself amended the letter of 30.5.2000 and the cut off date has been removed, the officers who were Re-employed even prior to 30.5.2000 or on the said date are entitled to the benefits of the age extension up to 58 years of age subject to all other conditions being fulfilled. There cannot be a discrimination between similarly situated persons and the benefit given to one should be given to all similarly situated persons. The petitioners are, thereforee, clearly entitled to be retained up to 58 years of age and, thereforee, the respondents are directed to given effect to the aforesaid observations, subject however to all other conditions being fulfillled. A writ of mandamus is accordingly issued in terms of the aforesaid directions and a decisions thereof shall be communicated to the petitioners within two months from the date of receipt of this order. All the writ petition stands disposed of in terms of the aforesaid observations and directions.