UNION OF INDIA & ORS. versus LT. COL. OM DUTT SHARMA (RETD.) DEAD THROUGH LRS & ORS. on 5 November 2019

[2019] 14 S.C.R. 9

9

UNION OF INDIA & ORS.

A

v.

LT. COL. OM DUTT SHARMA (RETD.) DEAD THROUGH LRS

& ORS.

(Civil Appeal No. 8139 of 2019)

B

NOVEMBER 05, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law:

Pension – One Rank one Pension (OROP) – Entitlement toC– Of the personnel of Army Postal Service (APS), on deputationfrom Department of Posts and Telegraph – Held: The ArmyInstructions show that the members of APS hold a lien in their parentdepartment though conferred ranks in the Army – Such instructionsclearly stipulate that the pension to the members of APS will be asDper civil rules – Being member of APS during the period of theirtemporary Commission does not make them a pensioner of ArmedForces entitling them to OROP.

Allowing the appeal, the Court

HELD : 1. The Junior Commissioned Officers (JCOs) ofArmed Forces and Warrant Officers who have passed IPO/IRMexamination of Posts & Telegraph Department are eligible forthe grant of Commission for a period of one year and for suchperiod, their service may be required. The Commission undersuch instructions was meant for Junior Commissioned Officersand the Warrant Officers who have passed examination of theDepartment of Posts for Commission which is for a period of oneyear and as long the services are required. Thus, the officials ofthe Department of Posts continue to have lien over the postsunder the Union. [Para 11] [24-C-D]

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2. The Army Instructions 1959 supersede the earlier ArmyInstructions in so far as they relate to the grant of the Commissionto the Gazetted Officers of the Posts & Telegraph Department.The eligibility for grant of Temporary Commission was in respectof the Gazetted Officers, (substantive or officiating) of the Posts H

A& Telegraph Department. In terms of Clause 12 of the ArmyInstructions 1959, all officers of the Posts & TelegraphDepartment, which will include Non-Gazetted Offices, were givenan option to opt for terms and conditions contained in Annexure‘A’ to these Instructions. On exercise of such option, they willbe regarded as newly commissioned officers with an option toBdraw civil or military rates of pay. In respect of pension, there isno option and that the officers would be governed by civil rulesfor service pension. [Para 12] [24-E-G]

3. As per Army Instructions 1985, the eligibility for grantof Temporary Commission in the APS is Gazetted OfficersC(substantive or officiating) of the Department of Posts and JCOsof the APS and such WOs who have earned competitive vacanciesin the Rank of JAOs/IPOs/IRMs in examination of theDepartment of Posts. Clause 12 of such instructions gives anoption to all officers which will include the Gazetted and Non-DGazetted Officers of the Department of Posts serving in the APSto opt for the terms and conditions contained in Annexure ‘A’ tothese instructions. On exercise of such instructions, they will beregarded as newly commissioned for the purpose of option todraw civil or military rates of pay. Such Annexure ‘A’ to theInstructions again has a clause that the officers will be governedEby civil rules for service pension. There is no option to opt formilitary pension. [Para 13] [24-G-H; 25-A-B]

4. Therefore, it is not correct to say that Army Instructionsonly cover the Gazetted Officers. The eligibility for grant of aTemporary Commission is the Gazetted Officers and JCOs etc.,Fbut clause 12 of Army Instructions 1959 and 1985 cover all officersof the Department of Posts. It is not the case of the respondentsthat their lien in the Department of Posts was ever terminated.[Para 14] [25-C]

5. The argument that the respondents were drawing moreGpension than their counterparts in the Department of Posts,therefore, they are entitled to the periodical increase of pensionon the parity of the personnel of the Armed Forces, is not tenable.The respondents have discharged their duties as per ArmyInstructions issued from time to time. If they have drawn higher H

salaries while working in the APS than other counterparts in theDepartment of Posts that will not make them at par with themembers of the Armed Forces. Their birth mark is with theDepartment of Posts which mark was never removed, when theywere serving as members of APS. The Instructions provided foran option on promotion on every rank in the Army to draw eithermilitary pay and allowances or civil pay plus deputation allowancesmeaning thereby that they continue to hold their lien on the civilposts in the Department of Posts. Since they hold a lien in theDepartment of Posts, they could be recalled by the Departmentof Posts as well as they could seek reversion to their parentDepartment. [Para 15] [25-D-F]

6. The respondents were appointed in the Department ofPosts and were sent on deputation to the APS. They hold a lienin the Department of Posts inasmuch as they can be recalled bythe Department of Posts and that they can seek reversion to theparent department. Clause 3 (a) of Annexure ‘A’ to ArmyInstructions 1959 gives an officer an option at the time ofcommissioning and a further option on each occasion of promotionin Army rank to draw either military pay and allowances or civilpay and the deputation allowance. Sub clause (c) further providesthat pay and allowances during the joining period prior to beingcommissioned as well as during transit on reversion will be onthe civil rates only, and no deputation allowance will be allowed.Such Instructions also state that an officer serving in the rank ofMajor, who is promoted to the grade of Director, Postal Servicein his parent department will be reverted to civil employmentbut he can be retained in the APS for a period not exceeding fourmonths at the discretion of the Quartermaster General. In respectof pension, there is a categorical instruction that the officers wouldbe governed by civil rules for service pension. An option isavailable to opt for military or civil rules in respect of disabilityor special family pension. [Para 16] [25-G-H; 26-A-B]

7. In the subsequent Instructions 1985, superseding theearlier Instructions, the members of Department of Posts havean option at the time of Commission and further option on eachoccasion of promotion in Army rank to draw either military pay A

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Aand allowances or civil pay plus a deputation allowance. Thecondition of pay and allowances of officers joining from theDepartment of Posts during the period prior to Commission aswell as on transit on reversion will be on the civil rates and thatno deputation allowance will be allowed remain unchanged. Again,the officers will be governed by civil rules for service pension,Bwhereas for disability and family pension, Army Instructions No.64 of 1976 is applicable. [Para 17] [26-C-E]

8. In the first Army Instructions issued in the year 1953,there is no specific clause pertaining to pension but for disabilityand family pension, an option is given to opt for military or civilCrules governed by Chapter XXXVIII of Civil Service Regulations.The service element of disability is contemplated on service sharebasis at the time of eventual retirement from the service. SuchInstructions were superseded in 1959 and it was thoseInstructions or later Army Instructions of 1985 which were inDforce when the respondents joined APS. [Para 18] [26-E-F]

9. Such Instructions clearly stipulate that the pension tothe members of APS will be as per civil rules. Such Instructionsalso contemplate that at every stage of promotion in APS, anoption is available to the officer to choose military pay or the civilEpay. These conditions show that the members of the APScontinue to hold lien in the Department of Posts though theywere conferred ranks in the Army and were also entitled to certainbenefits as the members of the Armed Forces but being membersof the Armed Forces during the period of their TemporaryCommission does not make them a pensioner of the ArmedFForces as contemplated in the Circular dated 7[th] November, 2015.[Para 19] [26-G-H; 27-A]

10. The Circular dated 7th November, 2015 confers benefitof OROP upon Ex-servicemen, whereas the subsequent Circulardated 3[rd] February, 2016 grants benefit of OROP to all pensionersGin the rank of Commissioned Officers and honoraryCommissioned Officers etc. who are in receipt of pension or familypension as on 1[st] July, 2014. This Circular, as explained by Circulardated 7[th] February 2016 is applicable only to personnel who are drawing pension from the Defence Establishments as the saidCircular is addressed to the Chiefs of three armed forces of thecountry including personnel from Territorial Army. Such Circularhas limited application and is not applicable to the other civilpensioners of the Union. Admittedly, none of the respondentsare in receipt of the pension from Defence but were grantedpension by the Department of Posts. [Para 20] [27-B-C]

11. It is not correct that non-exclusion pensioners of APSin such Circular, would be covered by the decision to grant OROP.Such circular excludes only those pensioners who are in receiptof pension for the services rendered in the armed forces of thecountry or the armed forces prior to the Independence of theCountry or the forces which are getting pension for the reasonthat they were members of the State forces at the time of mergerof the States with Indian Union after independence. Such exclusionis of distinct category who are pensioners of the Army at somestage but have no relation with the pensioners of defence forcesas on 1[st] July 2014. There was never any condition in any policydecision that the members of APS will be treated as pensionersof the Armed Forces. [Para 21] [27-D-F]

12. The reliance on 1979 Rules wherein the Ex-servicemenhave been defined to include the members of APS, is again nottenable. Such Rules are applicable for the purpose of recruitmentto certain posts in the Central Civil Services. The wide definitionand purport of the Rules is to provide reservation for Ex-servicemen for the purpose of employment in the civiladministration. Such provision is not of general application so asto extend the meaning assigned in a particular rule to anotherset of Instructions. Similarly, the Circular dated 3[rd] February, 2016is applicable to the defence pensioners. The Circulars dated 7[th]November, 2015 and 3[rd] February, 2016 were addressed to theChiefs of the Armed Forces in respect of the pensioners of theforces which is evident from clause 4 of the Circular dated 3[rd]February, 2016 when, the benefit of OROP is conferred on allpensioners including the Commissioned Officers. [Para 22][27-G-H; 28-A]

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A13. The respondents were holders of TemporaryCommission only to facilitate the grant of rank and other benefitsbut they cannot be called as Commissioned Officers. Even theargument that the members of Territorial Army have been grantedbenefit of OROP is again not tenable for the reason that theTerritorial Army is governed by a statute and is Armed Forces ofBthe Union, who have been specifically included in the Circulardated 3[rd] February, 2016. This Court in exercise of judicial reviewwill interpret the policy decisions as they exist rather than toexpand the scope of Circulars when such benefits were notconferred on the members of APS. [Para 23] [28-B-C]

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14. It is not disputed that retirement age of a regularCommissioned Officer of the rank of Lt. Colonel is 54 years.The respondents have retired from service corresponding to theage of the retirement of the Department of Posts i.e. 58 years or60 years. Such fact only shows that the respondents are theDholders of civil posts entitled to civil pension and are not the Ex-servicemen to which benefit of OROP was conferred. If therespondents are to be accepted as members of the Armed Forcesin respect of retiral benefits, they would have been made to retireat the age of 54 years i.e. the age of the superannuation ofthe personnel of the Armed Forces in the rank of Lt. Colonel.E[Para 25] [29-D-E]

15. Therefore, the persons such as the respondent and theintervenors on deputation to APS from Department of Posts arenot entitled to the benefit of OROP. [Para 26] [29-F]FMajor M.R. Penghal v. Union of India (1998) 5 SCC454 – relied on.

Case Law Reference

(1998) 5 SCC 454 relied on.Para 24

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8139Gof 2019.

From the Judgment and Order dated 09.02.2017 of the ArmedForces Tribunal, Regional Bench, Jabalpur in EA/04 (J)/2016 in RE OA/11(J)/2016 and order dated 06.10.2017 in M.A.112(J)/2017.

R. Balasubramanian, Sr. Adv., O. P. Shukla, Mukesh KumarMaroria, Advs. for the Appellants.

Huzefa Ahmadi, Sr. Adv., Sanjai Kumar Pathak, Ms. Shasi Pathak,Arvind Kumar Tripathi, Rohan Sharma, Niraj Sharma, Advs. for theRespondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theArmed Forces Tribunal, Regional Bench, Jabalpur[1] on 9[th] February, 2017whereby, an Original Application filed by the respondent - Lt. Col. OmDutt Sharma was allowed holding that the respondent is entitled to thebenefit of One Rank One Pension[2].

2. The respondent died during pendency of the appeal. His legalheirs have been brought on record, whereas respondent Nos. 3 to 86have been impleaded as intervenors vide order dated 14[th] May, 2018 inview of the fact that the said intervenors claim the same benefit asclaimed and granted to the deceased respondent. Since the issue is purelylegal and the fact that large numbers of personnel of Army Postal Service[3]are involved, we have heard learned counsel for the parties on merits inrespect of their entitlement to OROP in terms of Government of India’sCircular dated 7[th] November, 2015.

3. The respondents were working on the non-gazetted posts inthe Department of Posts under the Government of India and were takenon deputation in the APS from time to time. The deceased respondentwas taken on deputation in the year 1962. He relinquished his TemporaryCommission in the Army as Lt. Colonel on 31[st] December, 1984 andretired on 14[th] May, 1985 after repatriation to his parent department i.e.Department of Posts. The stand of the intervenors is that they joinedAPS on deputation either as Junior Commissioned Officer (JCO) or theWarrant Officer (WO) and were not repatriated to their parentdepartment. All the intervenors retired from the APS on attaining theage of superannuation, therefore, they claim benefit of OROP.

4. Learned counsel for the appellants refers to the different ArmyInstructions issued from time to time to contend that for service pension,officers of APS on deputation from the Department of Posts are governed 1 for short, ‘Tribunal’

2 for short, ‘OROP’

3 for short, ‘APS’

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Aby civil pension rules, whereas in respect of disability or special familypension, the option is available to be governed by military or civil rules. Itis also contended that age of superannuation of a Lt. Colonel in theArmy is 54 years, whereas a person holding civil post under the Unioncontinues to discharge the duties up to the age of superannuation i.e. upto the age of 58 or 60 Years. It is also contended that the members ofBAPS on deputation from the Department of Posts serve till the age ofsuperannuation meant for civil employees of the Union. The personnelof the Department of Posts are not granted pension by the Ministry ofDefence but are in receipt of pension from the Department of Posts asthe members of the Union holding civil posts.C5. The relevant extracts of the different Army Instructions issuedfrom time to time read as under:

“Army Instructions Nos. 107 of 19534

1. Temporary Commissions of a period of one year and for soDlong thereafter as their services may be required will be grantedin the Army Postal Service or the Regular Army on the terms andconditions laid down in the Annexure to this AI.

2. Eligibility:- JCOs of the APS and such WOs as have passedthe IPOs/IRMs examination of the P and T Department.

E3. Length of Commission:- The Commission will be granted for aperiod of one year and for so long thereafter as their servicesmay be required.

xxxxxx

10. Advance of Pay:- As admissible under the rules of the P andFT Department.

Annexure to Army Instructions No. 107 of 1953

1. xxxxxx

2. Rank, seniority and Promotion:-

G(a) JCOs/WOs will be granted Temporary Commission in therank of 2/Lt except that JCOs/WOs I having 8 years service asJCO/WO I and in the ranks would be commissioned as Lt andgranted 2 years ante date for the purpose of pay only.

H4 For short “Army Instructions 1953"

(b) Officers will be governed by the Acting Promotion Rules inforce from time to time. All gazetted service will count asCommissioned service for the purpose of acting promotions.

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6. (a) Disability and family pensions:-

(i) Officers governed by chapter XXXVIII C.S. R. may elect tobe governed either by military or civil rules. When electing militaryrules the officers will be granted disability element of pension likeregular I.C. OS.

(ii) Those governed by Central Civil Services (ExtraordinaryPension) Rules will be eligible for disability/family pensions undermilitary rules. The disability element of pension will be as forregular I.C. Os.

Army Instructions No. 295 of 19595

1. In supersession of the orders contained in A.I. 107/53, insofaras they relate to the grant of commissions to gazetted officers ofthe Post and Telegraphs Department, temporary commission inthe Army Postal Service will be granted in future on the termsand conditions laid down in annexure ‘A’ to this Army Instruction.

2. Eligibility:- Gazetted officers (substantive or officiating) of thePosts and Telegraphs Department, preferably with previous servicein the Army, Navy or Air Force, will be eligible.

3. Length of Commission:- The Commission will be granted for aperiod of one year and for so long thereafter as their servicesmay be required but not exceeding the age of compulsoryretirement in the Army. The officers will, however, normally beretained in the Army Postal Service for minimum period of fouryears.

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12. Option– All officers of the Posts and Telegraph Departmentat present serving in the Army Postal Service will be allowed toopt for the terms and conditions contained in Annexure ‘A’ to thisArmy Instructions from the date of its issue provided that they A

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satisfy the conditions laid down therein. On exercising such option,they will be regarded as newly commissioned for purposes of theoption to draw civil or military rates of pay under paragraph 3(b)of annexure ‘A’. The existing orders will continue to apply toother serving officers.

Annexure ‘A’ to Army Instructions No. 295 of 1959

1. xxxxxx

2. Rank, Promotion and seniority-

(a) On commissioning in the Army Postal Service, officers willbe ranked as follows:

The Director General, Post and Telegraphs, may, however,recommend variations in ranking when it is necessary due topaucity of suitable volunteers.

(e) An officer serving in the rank of Major, who is promoted tothe grade of Director, Postal Service, in his parent department,will be reverted to civil employment. Such an officer may howeverbe retained in the Army Postal Service for a period not exceedingfour months at the discretion of the Quartermaster General.

3. Pay and Allowances

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(b) An officer will however have an option at the time ofcommissioning and a further option on each occasion of promotion in Army rank to draw either military pay and allowances or civilpay plus a deputation allowance as under:- An officer below the grade of Director Postal Services – 20%

An officer of the grade of Director Postal Services and above –12½%

The term ‘civil pay’ will take into account increments of civil pay,as they become due and the operations of the ‘Next Below Rule’affecting officiating promotions under the civil rules applicable tothe officers’ permanent cadre.

(c) Pay and allowances during the joining period prior to beingcommissioned as well as during transit on reversion will be on theCivil rates only, and no deputation allowance will be allowed inaddition.

6. Pension

(a) For service pension, officers will be governed by civil rules.

(b) For disability and special family pension, officers will bepermitted to elect to be governed by either military or civil rules.The election may be made by an officer at any time during servicewith the Army or after it, and once made will be final. When anofficer dies without making the election, his family will be eligibleto receive awards under the civil or the military rules whicheverwas more favourable. Those who elect military rules for disabilitypension will be entitled to only disability element of disabilitypension as for regular commissioned officers in addition to civilpay and allowances or service pension as the case may be.

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9. Special Provisions Applicable to Officers Electing Civil Rates–of Pay (a) In regard to other conditions service including dearness andcompensatory allowances and other concessions, officers on civilrates of pay will be governed by the rules applicable to them intheir civil appointments except to the extent indicated on thesucceeding sub-paragraphs.

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AArmy Instructions No. 29 of 19856

In supersession of the orders contained in A.I. 107/53, and AI295/59, terms and conditions laid down in annexure ‘A’ to thisArmy Instructions will apply to the Temporary Commissionsgranted in the Army Postal Service of Regular Army.

B‘’Annexure A

1. xxxx

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2. Rank, Promotion and seniority –

(a) In the case of JCOs/WOs of APS – JCOs/WOs will be grantedCtemporary commission in the rank of 2 Lt except that JCOs/WOshaving 8 years service as JCO/WO and in the ranks would becommissioned as Lt and granted 2 years ante date for the purposeof pay only.

(b) In the case of gazetted officers of the Department of Posts –DOn commissioning in the Army Postal Service, Officers of theDepartment of Posts will be ranked as follows:-

PSS/PMS Group ‘B’ Officers-Lt/CaptIPS Group ‘A’ Officers – Junior Scale-CaptIPS Group ‘A’ Officers – Senior Scale-MajorIPS Group ‘A’ Officers with over ten years -Lt. Col. Service or Director Postal Services-Col. Director Postal Services drawing base pay Rs.1800/- or ofmorePostmaster General Level II-BrigPostmaster General Level I -Major Gen E

FThe Director General, Postal Services, may, however, recommendvariation in ranking when it is necessary due to paucity of suitablevolunteers.

3. (a)xxxxxx

(b) An officer will however have an option at the time ofGcommissioning and a further option on each occasion of promotionin Army rank to draw either military pay and allowances or civilpay plus a deputation allowance as under:

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The term ‘civil pay’ will take into account increments of civil pay,as they become due and the operations of the ‘Next Below Rule’affecting officiating promotions under the civil rules applicable tothe officers’ permanent cadre.

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(c) Pay and allowances of officers joining from the Departmentof Posts during the period prior to being commissioned as well astransit on reversion will be on the civil rates only and no deputationallowance will be allowed in addition.

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6. Pension

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(a) For service pension, officers will be governed by civil rules.

(b) For disability and family pension, the officer or, when theofficer dies in service, his family will be eligible to receive awardsunder AI 64/76 as amended from time to time.

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9. Relinquishment of Commission and repatriation to theDepartment of Posts

(1) An officer shall relinquish his temporary commission in ArmyPostal Service and be repatriated to the Department of Posts orproceed on compulsory retirement on superannuation by order ofthe Central Government or the authority specified in sub-para (2)with effect from the afternoon of the date specified in the orders.

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(2) The authority specified in Sub Para (1) shall be the AdditionalDirector General Army Postal Service.

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(3) Approval of the Central Government will be obtained by theAdditional Director General Army Postal Services prior to theissue of orders in all cases except the following:- H

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(a) Where an officer has completed the minimum period ofengagement as specified in Para 3 of AI 29/85 and seeksrepatriation to the Department of Posts.

(b) Where the service of the officer is recalled by the Departmentof Posts.

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(c) Where the officer has completed his period of engagementand has outlived his utility to the APS and (d) Where an officer has attained the age of compulsory retirementin the Army Postal Service and instead of being repatriated to theDepartment of Posts seeks retirement from Army Postal Service.

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(4) The consent of the Department of Posts will be obtained anda minimum not of three months shall be given to the officer beforehis relinquishment of commission and repatriation to theDepartment of Posts.”

D6. Mr. Huzefa Ahmadi, learned senior counsel for the respondentsargued that the respondents are not the Gazetted Officers of theDepartment of Posts to whom the Army Instructions 1959 are applicable.In fact, Mr. Ahmadi relies upon Army Instructions 1953 and ArmyInstructions 1985 to contend that the respondents are entitled to thebenefit of OROP. It is submitted that the argument of the appellantsEthat the respondents held a lien on equivalent posts in the Department ofPosts when they retired from APS, is not tenable as the pension of therespondent is higher than their respective counterparts in the Departmentof Posts, therefore, there is no parity with the pension drawn by therespondents with the person who continue to work in the Departmentof Posts.F

7. It is argued that the pension of the respondent is calculated onthe basis of last pay drawn which includes the components of MilitaryPay Scale, Military Service Pay, whereas, the civil posts in the PostalDepartment do not have such component of Military Service Pay.Therefore, their last pay drawn is not comparable to any other civil payGand also their pension. Their pension has always been equal to otherArmy Officers.

8. It is argued that the Instructions to grant OROP on 7[th]November, 2015 w.e.f. 1[st] July, 2014 is a beneficial provision for the‘Ex-servicemen’. Since the respondents were holding Army rank andH

were entitled to the benefits of medical and other benefits at par withthe officers of the Army, therefore, the respondents being Ex-servicemenare entitled to the benefit of OROP. Learned counsel for the respondentsrefers to the Ex-servicemen (Re-employment in Central Civil Servicesand Posts) Rules, 1979[7]. In terms of Rule 2(c) as amended, the Ex-servicemen include the personnel retired from APS. Learned counselalso refers to Army Instructions 1953 to contend that the Annexureattached to the said Instructions permits service pension. Mr. Ahmadiargued that the respondents were conferred Army rank and carry suchrank even after retirement. It is argued that it cannot be imagined that inthe Department of Posts, a civilian would hold a rank of Lt. Colonel,therefore, the respondents as Ex-servicemen are entitled to the benefitof Circular dated 7[th] November, 2015 granting OROP. It is also arguedthat the Circular dated 3[rd] February, 2016 makes the policy of OROPapplicable to all Commissioned Officers including honorary CommissionedOfficers which would include Temporary Commissioned Officers suchas the respondents. Therefore, the respondents are covered by theclarification dated 3[rd] February, 2016.

9. The Ministry of Defence, Department of Ex-ServicemenWelfare on 7[th] November, 2015 issued a letter to the Chiefs of ArmyStaff, Naval Staff and Air Staff to implement OROP for the Ex-servicemen w.e.f. 1[st] July, 2014. Relevant clause reads as under:

“2. It has now been decided to implement ‘One Rank One Pension’(OROP) for the Ex-Servicemen with effect from 01.07.2014.OROP implies that uniform pension be paid to the Defence ForcesPersonnel retiring in the same rank with the same length of service,regardless of their date of retirement, which, implies bridging thegap between the rates of pension of current and past pensionersat periodic intervals.”

10. Subsequently, another letter was issued by the Ministry ofDefence, Department of Ex-Servicemen Welfare on 3[rd] February, 2016wherein it was decided that the benefit of OROP was being conferredto Defence Forces Personnel and to all pensioners in the rank of honoraryCommissioned Officers etc. Relevant clause reads as under:

“4. The provisions of this letter shall be applicable to all pensioners/family pensioners who had been retired/ discharged/invalidated 7 for short, ‘1979 Rules’

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Aout from service/died in service or after retirement in the rank ofCommissioned Officers, honorary Commissioned Officers, JCOs/Ors and Non-Combatants (Enrolled) of Army, Navy, Air Force,Defence Security Corps, Territorial Army & Ex-State Forces andare in receipt of pension/family pension as on 1.7.2014.

B4.1. The provisions of this order, however, do not apply to UK/HKSRA/KCIO pensioners, Pakistan & Burma Army pensioners,Reservist pensioners and pensioners in receipt of Ex-gratiapayments.”

11. We have considered the respective arguments of learnedCcounsel for the parties. The JCOs of Armed Forces and Warrant Officerswho have passed IPO/IRM examination of Posts & TelegraphDepartment are eligible for the grant of Commission for a period of oneyear and for such period, their service may be required. The Commissionunder such instructions was meant for Junior Commissioned Officersand the Warrant Officers who have passed examination of theDDepartment of Posts for Commission which is for a period of one yearand as long services are required. Thus, the officials of the Departmentof Posts continue to have lien over the posts under the Union.

12. The next Army Instructions 1959 supersede the earlier ArmyInstructions in so far as they relate to the grant of the Commission to theEGazetted Officers of the Posts & Telegraph Department. The eligibilityfor grant of Temporary Commission was in respect of the GazettedOfficers, (substantive or officiating) of the Posts & TelegraphDepartment. In terms of Clause 12 of the Army Instructions 1959, allofficers of the Posts & Telegraph Department, which will include Non-FGazetted Offices, were given an option to opt for terms and conditionscontained in Annexure ‘A’ to these Instructions. On exercise of suchoption, they will be regarded as newly commissioned officers with anoption to draw civil or military rates of pay. In respect of pension, thereis no option and that the officers would be governed by civil rules forservice pension.G

13. As per Army Instructions 1985, the eligibility for grant ofTemporary Commission in the APS is Gazetted Officers (substantive orofficiating) of the Department of Posts and JCOs of the APS and suchWOs who have earned competitive vacancies in the Rank of JAOs/IPOs/IRMs in examination of the Department of Posts. Clause 12 of H

such instructions gives an option to all officers which will include theGazetted and Non-Gazetted Officers of the Department of Posts servingin the APS to opt for the terms and conditions contained in Annexure ‘A’to these instructions. On exercise of such instructions, they will beregarded as newly commissioned for the purpose of option to draw civilor military rates of pay. Such Annexure ‘A’ to the Instructions again hasa clause that the officers will be governed by civil rules for servicepension. There is no option to opt for military pension.

14. Therefore, we do not find any merit in the argument raisedthat Army Instructions only cover the Gazetted Officers. The eligibilityfor grant of a Temporary Commission is the Gazetted Officers and JCOsetc. but clause 12 of Army Instructions 1959 and 1985 cover all officersof the Department of Posts. It is not the case of the respondents thattheir lien in the Department of Posts was ever terminated.

15. The argument that the respondents were drawing more pensionthan their counterparts in the Department of Posts, therefore, they areentitled to the periodical increase of pension on the parity of the personnelof the Armed Forces, is not tenable. The respondents have dischargedtheir duties as per Army Instructions issued from time to time. If theyhave drawn higher salaries while working in the APS than othercounterparts in the Department of Posts that will not make them at parwith the members of the Armed Forces. Their birth mark is with theDepartment of Posts which mark was never removed, when they wereserving as members of APS. The Instructions provided for an option onpromotion on every rank in the Army to draw either military pay andallowances or civil pay plus deputation allowances meaning thereby thatthey continue to hold their lien on the civil posts in the Department ofPosts. Since they hold a lien in the Department of Posts they could berecalled by the Department of Posts as well as they could seek reversionto their parent Department.

16. The respondents were appointed in the Department of Postsand were sent on deputation to the APS. They hold a lien in theDepartment of Posts inasmuch as they can be recalled by the Departmentof Posts and that they can seek reversion to the parent department.Clause 3 (a) of Annexure ‘A’ to Army Instructions 1959 gives an officeran option at the time of commissioning and a further option on eachoccasion of promotion in Army rank to draw either military pay andallowances or civil pay and the deputation allowance. Sub clause (c)

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Afurther provides that pay and allowances during the joining period priorto being commissioned as well as during transit on reversion will be onthe civil rates only, and no deputation allowance will be allowed. SuchInstructions also state that an officer serving in the rank of Major, who ispromoted to the grade of Director, Postal Service in his parent departmentwill be reverted to civil employment but he can be retained in the APSBfor a period not exceeding four months at the discretion of theQuartermaster General. In respect of pension, there is a categoricalinstruction that the officers would be governed by civil rules for servicepension. An option is available to opt for military or civil rules in respectof disability or special family pension.C

17. In the subsequent Instructions 1985, superseding the earlierInstructions, the members of Department of Posts have an option at thetime of Commission and further option on each occasion of promotion inArmy rank to draw either military pay and allowances or civil pay plus adeputation allowance. The condition of pay and allowances of officersDjoining from the Department of Posts during the period prior toCommission as well as on transit on reversion will be on the civil ratesand that no deputation allowance will be allowed remain unchanged.Again, the officers will be governed by civil rules for service pension,whereas for disability and family pension, Army Instructions No. 64 of1976 is applicable.

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18. In the first Army Instructions issued in the year 1953, there isno specific clause pertaining to pension but for disability and familypension, an option is given to opt for military or civil rules governed byChapter XXXVIII of Civil Service Regulations. The service element ofdisability is contemplated on service share basis at the time of eventualFretirement from the service. Such Instructions were superseded in 1959and it was those Instructions or later Army Instructions of 1985 whichwere in force when the respondents joined APS.

19. Such Instructions clearly stipulate that the pension to themembers of APS will be as per civil rules. Such Instructions alsoGcontemplate that at every stage of promotion in APS, an option is availableto the officer to choose military pay or the civil pay. These conditionsshow that the members of the APS continue to hold lien in the Departmentof Posts though they were conferred ranks in the Army and were alsoentitled to certain benefits as the members of the Armed Forces butHbeing members of the Armed Forces during the period of their Temporary Commission does not make them a pensioner of the Armed Forces ascontemplated in the Circular dated 7[th] November, 2015.

20. The said Circular confers benefit of OROP upon Ex-servicemen, whereas the subsequent Circular dated 3[rd] February, 2016grants benefit of OROP to all pensioners in the rank of CommissionedOfficers and honorary Commissioned Officers etc. who are in receiptof pension or family pension as on 1[st] July, 2014. This Circular, asexplained by Circular dated 7[th] February 2016 is applicable only topersonnel who are drawing pension from the Defence Establishmentsas the said Circular is addressed to the Chiefs of three armed forces ofthe country including personnel from Territorial Army. Such Circularhas limited application and is not applicable to the other civil pensionersof the Union. Admittedly, none of the respondents are in receipt of thepension from Defence but were granted pension by the Department ofPosts.

21. We do not find merit in the argument that the benefit of OROPis not extended to certain category of pensioners as mentioned in para4.1 of the Circular dated 7[th] November 2015 only. Therefore, thepensioners of APS having not been excluded in such Circular, would becovered by the decision to grant OROP. Such circular excludes onlythose pensioners who are in receipt of pension for the services renderedin the armed forces of the country or the armed forces prior to theIndependence of the Country or the forces which are getting pensionfor the reason that they were members of the State forces at the time ofmerger of the States with Indian Union after independence. Such exclusionis of distinct category who are pensioners of the Army at some stage buthave no relation with the pensioners of defence forces as on 1[st] July2014. There was never any condition in any policy decision that themembers of APS will be treated as pensioners of the Armed Forces.

22. The reliance of Mr. Ahmadi on 1979 Rules wherein the Ex-servicemen have been defined to include the members of APS, is againnot tenable. Such Rules are applicable for the purpose of recruitment tocertain posts in the Central Civil Services. The wide definition and purportof the Rules is to provide reservation for Ex-servicemen for the purposeof employment in the civil administration. Such provision is not of generalapplication so as to extend the meaning assigned in a particular rule toanother set of Instructions. Similarly, the Circular dated 3[rd] February,2016 is applicable to the defence pensioners. The Circulars dated 7[th]

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ANovember, 2015 and 3[rd] February, 2016 were addressed to the Chiefs ofthe Armed Forces in respect of the pensioners of the forces which isevident from clause 4 of the Circular dated 3[rd] February, 2016 when, thebenefit of OROP is conferred on all pensioners including theCommissioned Officers.B23. The respondents were holders of Temporary Commission onlyto facilitate the grant of rank and other benefits but they cannot be calledas Commissioned Officers. Even the argument that the members ofTerritorial Army have been granted benefit of OROP is again not tenablefor the reason that the Territorial Army is governed by a statute and isArmed Forces of the Union, who have been specifically included in theCCircular dated 3[rd] February, 2016. This Court in exercise of judicialreview will interpret the policy decisions as they exist rather than toexpand the scope of Circulars when such benefits were not conferredon the members of APS.

24. This Court in a judgement reported as Major M.R. PenghalDv. Union of India[8]examined somewhat similar question but in differentcontext. In that case, a clerk of the Department of Posts was promotedas Major in the APS. He initially sought voluntary retirement from theDepartment of Posts but subsequently sought to withdraw his suchrequest. The question was as to whether the appellant therein can invokeEjurisdiction of the Central Administrative Tribunal or the High Court, itbeing a case prior to the enactment of Armed Forced Tribunal Act 2007.This Court held as under: - “9. As stated above, although the appellant was selected by thePostal Department for appointment to the post of clerk, but heFcould not be given any appointment due to want of vacancy in theunit of his choice. Under such circumstances, the appellant wasoffered an appointment to work as a clerk in the Army PostalService on the condition that he would remain a civilian employeeon deputation in the Army. The appellant accepted the aforesaidoffer and agreed to the conditions that he would revert to the civilGappointment in Posts and Telegraphs Department on his releasefrom the Indian Army Postal Service. With these conditions, theappellant continued to serve in the Army as a permanent employeeof the Posts and Telegraphs Department on deputation and was promoted up to the rank of a Major in the Indian Army. However,the appellant was only given a temporary commission and heworked as such till the date when his relinquishment was ordered.The aforesaid facts clearly demonstrate that the appellant has alien with the Posts and Telegraphs Department working ondeputation in the Indian Army Postal Service and at no point oftime the appellant became a full-fledged army personnel. Sincethe appellant was not a member of the Armed Forces and continuedto work as a civilian on deputation to the Army Postal Service, hiscase was covered under Section 14(1)(a) of the AdministrativeTribunals Act. In that view of the matter, the High Court wasright in rejecting the writ petition filed by the appellant, whereasthe Central Administrative Tribunal erroneously accepted the claimof the appellant that he is an army personnel………... “

25. Another undisputed fact that the respondents have retired fromservice corresponding to the age of the retirement of the Department ofPosts i.e. 58 years or 60 years. It is not disputed that retirement age ofa regular Commissioned Officer of the rank of Lt. Colonel is 54 years.Such fact only shows that the respondents are the holders of civil postsentitled to civil pension and are not the Ex-servicemen to which benefitof OROP was conferred. If the respondents are to be accepted asmembers of the Armed Forces in respect of retiral benefits, they would have been made to retire at the age of 54 years i.e. the age of thesuperannuation of the personnel of the Armed Forces in the rank of Lt.Colonel.

26. We, thus, hold that the persons such as the respondent and theintervenors on deputation to APS from Department of Posts are notentitled to the benefit of OROP. Therefore, the order of the Tribunal isnot sustainable in law and hence set aside. The appeal is allowed.

Kalpana K. Tripathy

Appeal allowed.

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