REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8139 OF 2019
(DIARY NO. 38432 OF 2017)
UNION OF INDIA & ORS. .....APPELLANT(S)
VERSUS
LT. COL. OM DUTT SHARMA (RETD.) DEAD
THROUGH LRS & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) The challenge in the present appeal is to an order passed by the
Armed Forces Tribunal, Regional Bench, Jabalpur1
on 9th February,
2017 whereby, an Original Application filed by the respondent - Lt.
Col. Om Dutt Sharma was allowed holding that the respondent is
entitled to the benefit of One Rank One Pension2
.
2) The respondent died during pendency of the appeal. His legal
heirs have been brought on record, whereas respondent Nos. 3 to
86 have been impleaded as intervenors vide order dated 14th May,
1 for short, ‘Tribunal’
2 for short, ‘OROP’
1
2018 in view of the fact that the said intervenors claim the same
benefit as claimed and granted to the deceased respondent.
Since the issue is purely legal and the fact that large numbers of
personnel of Army Postal Service3
are involved, we have heard
learned counsel for the parties on merits in respect of their
entitlement to OROP in terms of Government of India’s Circular
dated 7th November, 2015.
3) The respondents were working on the non-gazetted posts in the
Department of Posts under the Government of India and were
taken on deputation in the APS from time to time. The deceased
respondent was taken on deputation in the year 1962. He
relinquished his Temporary Commission in the Army as Lt. Colonel
on 31st December, 1984 and retired on 14th May, 1985 after
repatriation to his parent department i.e. Department of Posts.
The stand of the intervenors is that they joined APS on deputation
either as Junior Commissioned Officer (JCO) or the Warrant Officer
(WO) and were not repatriated to their parent department. All the
intervenors retired from the APS on attaining the age of
superannuation, therefore, they claim benefit of OROP.
4) Learned counsel for the appellants refers to the different Army
Instructions issued from time to time to contend that for service
pension, officers of APS on deputation from the Department of
Posts are governed by civil pension rules, whereas in respect of
3 for short, ‘APS’
2
disability or special family pension, the option is available to be
governed by military or civil rules. It is also contended that age of
superannuation of a Lt. Colonel in the Army is 54 years, whereas a
person holding civil post under the Union continues to discharge
the duties up to the age of superannuation i.e. up to the age of 58
or 60 Years. It is also contended that the members of APS on
deputation from the Department of Posts serve till the age of
superannuation meant for civil employees of the Union. The
personnel of the Department of Posts are not granted pension by
the Ministry of Defence but are in receipt of pension from the
Department of Posts as the members of the Union holding civil
posts.
5) The relevant extracts of the different Army Instructions issued from
time to time read as under:
“ Army Instructions Nos. 107 of 19534
1. Temporary Commissions of a period of one year and for
so long thereafter as their services may be required will be
granted in the Army Postal Service or the Regular Army on
the terms and conditions laid down in the Annexure to this
AI.
2. Eligibility:- JCOs of the APS and such WOs as have
passed the IPOs/IRMs examination of the P and T
Department.
3. Length of Commission:- The Commission will be
granted for a period of one year and for so long thereafter
as their services may be required.
xx xx xx
4 For short “Army Instructions 1953”
3
10. Advance of Pay:- As admissible under the rules of the
P and T Department.
Annexure to Army Instructions No. 107 of 1953
1. xx xx xx
2. Rank, seniority and Promotion:-
(a) JCOs/WOs will be granted Temporary Commission in
the rank of 2/Lt except that JCOs/WOs I having 8 years
service as JCO/WO I and in the ranks would be
commissioned as Lt and granted 2 years ante date for the
purpose of pay only.
(b) Officers will be governed by the Acting Promotion
Rules in force from time to time. All gazetted service will
count as Commissioned service for the purpose of acting
promotions.
xx xx xx
6. (a) Disability and family pensions:-
(i) Officers governed by chapter XXXVIII C.S. R. may elect
to be governed either by military or civil rules. When
electing military rules the officers will be granted disability
element of pension like regular I.C. OS.
(ii) Those governed by Central Civil Services
(Extraordinary Pension) Rules will be eligible for
disability/family pensions under military rules. The
disability element of pension will be as for regular I.C. Os.
Army Instructions No. 295 of 19595
1. In supersession of the orders contained in A.I. 107/53,
insofar as they relate to the grant of commissions to
gazetted officers of the Post and Telegraphs Department,
temporary commission in the Army Postal Service will be
granted in future on the terms and conditions laid down in
annexure ‘A’ to this Army Instruction.
2. Eligibility:- Gazetted officers (substantive or officiating)
5 For short “Army Instructions 1959”
4
of the Posts and Telegraphs Department, preferably with
previous service in the Army, Navy or Air Force, will be
eligible.
3. Length of Commission:- The Commission will be
granted for a period of one year and for so long thereafter
as their services may be required but not exceeding the
age of compulsory retirement in the Army. The officers
will, however, normally be retained in the Army Postal
Service for minimum period of four years.
xx xx xx
12. Option – All officers of the Posts and Telegraph
Department at present serving in the Army Postal Service
will be allowed to opt for the terms and conditions
contained in Annexure ‘A’ to this Army Instructions from
the date of its issue provided that they satisfy the
conditions laid down therein. On exercising such option,
they will be regarded as newly commissioned for purposes
of the option to draw civil or military rates of pay under
paragraph 3(b) of annexure ‘A’. The existing orders will
continue to apply to other serving officers.
Annexure ‘A’ to Army Instructions No. 295 of 1959
1. xx xx xx
2. Rank, Promotion and seniority-
(a) On commissioning in the Army Postal Service, officers
will be ranked as follows:
Class II Officers with less than 2 years
gazette service
2
nd
Lieutenant
Class II/Class I officers with over 2 years
but not over 4 years gazetted service
Lieutenant
Class II officers with over 5 years but not
over 8 years gazetted service and class I
officers with over 3 years but not over 5
years gazetted service
Captain
Class I officers with over 5 years
but not over 12 years gazetted service
Major
Class I (Senior scale) officers with over 12
years gazetted service
Lieutenant
Colonel
xx xx xx
The Director General, Post and Telegraphs, may, however,
5
recommend variations in ranking when it is necessary due
to paucity of suitable volunteers.
(e) An officer serving in the rank of Major, who is
promoted to the grade of Director, Postal Service, in his
parent department, will be reverted to civil employment.
Such an officer may however be retained in the Army
Postal Service for a period not exceeding four months at
the discretion of the Quartermaster General.
3. Pay and Allowances
(a) xx xx xx
(b) An officer will however have an option at the time of
commissioning and a further option on each occasion of
promotion in Army rank to draw either military pay and
allowances or civil pay 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 to the officers’ permanent cadre.
(c) Pay and allowances during the joining period prior to
being commissioned as well as during transit on reversion
will be on the Civil rates only, and no deputation
allowance will be allowed in addition.
xx xx xx
6. Pension
(a) For service pension, officers will be governed by civil
rules.
(b) For disability and special family pension, officers will
be permitted to elect to be governed by either military or
civil rules. The election may be made by an officer at any
time during service with the Army or after it, and once
made will be final. When an officer dies without making
6
the election, his family will be eligible to receive awards
under the civil or the military rules whichever was more
favourable. Those who elect military rules for disability
pension will be entitled to only disability element of
disability pension as for regular commissioned officers in
addition to civil pay and allowances or service pension as
the case may be.
xx xx xx
9. Special Provisions Applicable to Officers Electing Civil
Rates of Pay –
(a) In regard to other conditions service including
dearness and compensatory allowances and other
concessions, officers on civil rates of pay will be governed
by the rules applicable to them in their civil appointments
except to the extent indicated on the succeeding subparagraphs.
Army Instructions No. 29 of 19856
In supersession of the orders contained in A.I. 107/53, and
AI 295/59, terms and conditions laid down in annexure ‘A’
to this Army Instructions will apply to the Temporary
Commissions granted in the Army Postal Service of
Regular Army.
Annexure ‘A’
1. xx xx xx
2. Rank, Promotion and seniority –
(a) In the case of JCOs/WOs of APS – JCOs/WOs will be
granted temporary commission in the rank of 2 Lt except
that JCOs/WOs having 8 years service as JCO/WO and in
the ranks would be commissioned as Lt and granted 2
years ante date for the purpose of pay only.
(b) In the case of gazetted officers of the Department of
Posts – On commissioning in the Army Postal Service,
Officers of the Department of Posts will be ranked as
follows:-
PSS/PMS Group ‘B’ Officers - Lt/Capt
6 For short “Army Instructions 1985”
7
IPS Group ‘A’ Officers – Junior Scale - Capt
IPS Group ‘A’ Officers – Senior Scale - Major
IPS Group ‘A’ Officers with over ten years - Lt. Col.
Service or Director Postal Services
Director Postal Services drawing base pay
of
- Col.
Rs.1800/- or
more
Postmaster General Level II - Brig
Postmaster General Level I - Major Gen
The Director General, Postal Services, may, however,
recommend variation in ranking when it is necessary due
to paucity of suitable volunteers.
3. (a) xx xx xx
(b) An officer will however have an option at the time of
commissioning and a further option on each occasion of
promotion in Army rank to draw either military pay and
allowances or civil pay plus a deputation allowance as
under:
An officer below the grade of Director Postal
Services
- 20%
An officer of the grade of Director - 12½%
Postal Services and above
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 to the officers’ permanent cadre.
(c) Pay and allowances of officers joining from the
Department of Posts during the period prior to being
commissioned as well as transit on reversion will be on the
civil rates only and no deputation allowance will be
allowed in addition.
4. xx xx xx
5. xx xx xx
6. Pension
(a) For service pension, officers will be governed by civil
rules.
(b) For disability and family pension, the officer or, when
the officer dies in service, his family will be eligible to
receive awards under AI 64/76 as amended from time to
time.
8
7. xx xx xx
8. xx xx xx
9. Relinquishment of Commission and repatriation to the
Department of Posts
(1) An officer shall relinquish his temporary commission in
Army Postal Service and be repatriated to the Department
of Posts or proceed on compulsory retirement on
superannuation by order of the Central Government or the
authority specified in sub-para (2) with effect from the
afternoon of the date specified in the orders.
(2) The authority specified in Sub Para (1) shall be the
Additional Director General Army Postal Service.
(3) Approval of the Central Government will be obtained
by the Additional Director General Army Postal Services
prior to the issue of orders in all cases except the
following:-
(a) Where an officer has completed the minimum period
of engagement as specified in Para 3 of AI 29/85 and
seeks repatriation to the Department of Posts.
(b) Where the service of the officer is recalled by the
Department of Posts.
(c) Where the officer has completed his period of
engagement and has outlived his utility to the APS and
(d) Where an officer has attained the age of compulsory
retirement in the Army Postal Service and instead of being
repatriated to the Department of Posts seeks retirement
from Army Postal Service.
(4) The consent of the Department of Posts will be
obtained and a minimum not of three months shall be
given to the officer before his relinquishment of
commission and repatriation to the Department of Posts.”
6) Mr. Huzefa Ahmadi, learned senior counsel for the respondents
argued that the respondents are not the Gazetted Officers of the
Department of Posts to whom the Army Instructions 1959 are
9
applicable. In fact, Mr. Ahmadi relies upon Army Instructions 1953
and Army Instructions 1985 to contend that the respondents are
entitled to the benefit of OROP. It is submitted that the argument
of the appellants that the respondents held a lien on equivalent
posts in the Department of Posts when they retired from APS, is not
tenable as the pension of the respondent is higher than their
respective counterparts in the Department of Posts, therefore,
there is no parity with the pension drawn by the respondents with
the person who continue to work in the Department of Posts.
7) It is argued that the pension of the respondent is calculated on the
basis of last pay drawn which includes the components of Military
Pay Scale, Military Service Pay, whereas, the civil posts in the Postal
Department do not have such component of Military Service Pay.
Therefore, their last pay drawn is not comparable to any other civil
pay and also their pension. Their pension has always been equal to
other Army Officers.
8) It is argued that the Instructions to grant OROP on 7th November,
2015 w.e.f. 1st July, 2014 is a beneficial provision for the ‘Exservicemen’. Since the respondents were holding Army rank and
were entitled to the benefits of medical and other benefits at par
with the officers of the Army, therefore, the respondents being Exservicemen are entitled to the benefit of OROP. Learned counsel
for the respondents refers to the Ex-servicemen (Re-employment in
10
Central Civil Services and Posts) Rules, 19797
. In terms of Rule 2(c)
as amended, the Ex-servicemen include the personnel retired from
APS. Learned counsel also refers to Army Instructions 1953 to
contend that the Annexure attached to the said Instructions
permits service pension. Mr. Ahmadi argued that the respondents
were conferred Army rank and carry such rank even after
retirement. It is argued that it cannot be imagined that in the
Department of Posts, a civilian would hold a rank of Lt. Colonel,
therefore, the respondents as Ex-servicemen are entitled to the
benefit of Circular dated 7th November, 2015 granting OROP. It is
also argued that the Circular dated 3rd February, 2016 makes the
policy of OROP applicable to all Commissioned Officers including
honorary Commissioned Officers which would include Temporary
Commissioned Officers such as the respondents. Therefore, the
respondents are covered by the clarification dated 3rd February,
2016.
9) The Ministry of Defence, Department of Ex-Servicemen Welfare on
7
th November, 2015 issued a letter to the Chiefs of Army Staff,
Naval Staff and Air Staff to implement OROP for the Ex-servicemen
w.e.f. 1st 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 Forces Personnel retiring in the same rank
with the same length of service, regardless of their date of
retirement, which, implies bridging the gap between the
7 for short, ‘1979 Rules’
11
rates of pension of current and past pensioners at periodic
intervals.”
10) Subsequently, another letter was issued by the Ministry of Defence,
Department of Ex-Servicemen Welfare on 3rd February, 2016
wherein it was decided that the benefit of OROP was being
conferred to Defence Forces Personnel and to all pensioners in the
rank of honorary Commissioned 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 out from service/died in service or
after retirement in the rank of Commissioned Officers,
honorary Commissioned Officers, JCOs/Ors and NonCombatants (Enrolled) of Army, Navy, Air Force, Defence
Security Corps, Territorial Army & Ex-State Forces and are
in receipt of pension/family pension as on 1.7.2014.
4.1. 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-gratia payments.”
11) We have considered the respective arguments of learned counsel
for the parties. The JCOs of Armed Forces and Warrant Officers who
have passed IPO/IRM examination of Posts & Telegraph Department
are eligible for the grant of Commission for a period of one year
and for such period, their service may be required. The
Commission under such instructions was meant for Junior
Commissioned Officers and the Warrant Officers who have passed
examination of the Department of Posts for Commission which is
for a period of one year and as long services are required. Thus,
12
the officials of the Department of Posts continue to have lien over
the posts under the Union.
12) The next Army Instructions 1959 supersede the earlier Army
Instructions in so far as they relate to the grant of the Commission
to the Gazetted Officers of the Posts & Telegraph Department. The
eligibility for grant of Temporary Commission was in respect of the
Gazetted Officers, (substantive or officiating) of the Posts &
Telegraph Department. In terms of Clause 12 of the Army
Instructions 1959, all officers of the Posts & Telegraph Department,
which will include Non-Gazetted Offices, were given an option to
opt for terms and conditions contained in Annexure ‘A’ to these
Instructions. On exercise of such option, they will be regarded as
newly commissioned officers with an option to draw civil or military
rates of pay. In respect of pension, there is no option and that the
officers would be governed by civil rules for service pension.
13) As per Army Instructions 1985, the eligibility for grant of Temporary
Commission in the APS is Gazetted Officers (substantive or
officiating) of the Department of Posts and JCOs of the APS and
such WOs who have earned competitive vacancies in the Rank of
JAOs/IPOs/IRMs in examination of the Department of Posts. Clause
12 of such instructions gives an option to all officers which will
include the Gazetted and Non-Gazetted Officers of the Department
of Posts serving in the APS to opt for the terms and conditions
contained in Annexure ‘A’ to these instructions. On exercise of
13
such instructions, they will be regarded as newly commissioned for
the purpose of option to draw civil or military rates of pay. Such
Annexure ‘A’ to the Instructions again has a clause that the officers
will be governed by civil rules for service pension. There is no
option to opt for military pension.
14) Therefore, we do not find any merit in the argument raised that
Army Instructions only cover the Gazetted Officers. The eligibility
for grant of a Temporary Commission is the Gazetted Officers and
JCOs etc. but clause 12 of Army Instructions 1959 and 1985 cover
all officers of the Department of Posts. It is not the case of the
respondents that their lien in the Department of Posts was ever
terminated.
15) The argument that the respondents were drawing more pension
than their counterparts in the Department of Posts, therefore, they
are entitled to the periodical increase of pension on the parity of
the personnel of the Armed Forces, is not tenable. The respondents
have discharged their duties as per Army Instructions issued from
time to time. If they have drawn higher salaries while working in
the APS than other counterparts in the Department of Posts that
will not make them at par with the members of the Armed Forces.
Their birth mark is with the Department of Posts which mark was
never removed, when they were serving as members of APS. The
Instructions provided for an option on promotion on every rank in
the Army to draw either military pay and allowances or civil pay
14
plus deputation allowances meaning thereby that they continue to
hold their lien on the civil posts in the Department of Posts. Since
they hold a lien in the Department of Posts they could be recalled
by the Department of Posts as well as they could seek reversion to
their parent Department.
16) The respondents were appointed in the Department of Posts and
were sent on deputation to the APS. They hold a lien in the
Department of Posts inasmuch as they can be recalled by the
Department of Posts and that they can seek reversion to the parent
department. Clause 3 (a) of Annexure ‘A’ to Army Instructions
1959 gives an officer an option at the time of commissioning and a
further option on each occasion of promotion in Army rank to draw
either military pay and allowances or civil pay and the deputation
allowance. Sub clause (c) further provides that pay and allowances
during the joining period prior to being commissioned as well as
during transit on reversion will be on the civil rates only, and no
deputation allowance will be allowed. Such Instructions also state
that an officer serving in the rank of Major, who is promoted to the
grade of Director, Postal Service in his parent department will be
reverted to civil employment but he can be retained in the APS for
a period not exceeding four months at the discretion of the
Quartermaster General. In respect of pension, there is a
categorical instruction that the officers would be governed by civil
rules for service pension. An option is available to opt for military
or civil rules in respect of disability or special family pension.
15
17) In the subsequent Instructions 1985, superseding the earlier
Instructions, the members of Department of Posts have an option
at the time of Commission and further option on each occasion of
promotion in Army rank to draw either military pay and allowances
or civil pay plus a deputation allowance. The condition of pay and
allowances of officers joining from the Department of Posts during
the period prior to Commission as well as on transit on reversion
will be on the civil rates and 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 of 1976 is applicable.
18) In the first Army Instructions issued in the year 1953, there is no
specific clause pertaining to pension but for disability and family
pension, an option is given to opt for military or civil rules governed
by Chapter XXXVIII of Civil Service Regulations. The service
element of disability is contemplated on service share basis at the
time of eventual retirement from the service. Such Instructions
were superseded in 1959 and it was those Instructions or later
Army Instructions of 1985 which were in force when the
respondents joined APS.
19) Such Instructions clearly stipulate that the pension to the members
of APS will be as per civil rules. Such Instructions also contemplate
that at every stage of promotion in APS, an option is available to
the officer to choose military pay or the civil pay. These conditions
16
show that the members of the APS continue to hold lien in the
Department of Posts though they were conferred ranks in the Army
and were also entitled to certain benefits as the members of the
Armed Forces but being members of the Armed Forces during the
period of their Temporary Commission does not make them a
pensioner of the Armed Forces as contemplated in the Circular
dated 7th November, 2015.
20) The said Circular confers benefit of OROP upon Ex-servicemen,
whereas the subsequent Circular dated 3rd February, 2016 grants
benefit of OROP to all pensioners in the rank of Commissioned
Officers and honorary Commissioned Officers etc. who are in
receipt of pension or family pension as on 1st July, 2014. This
Circular, as explained by Circular dated 7th February 2016 is
applicable only to personnel who are drawing pension from the
Defence Establishments as the said Circular is addressed to the
Chiefs of three armed forces of the country including personnel
from Territorial Army. Such Circular has limited application and is
not applicable to the other civil pensioners of the Union.
Admittedly, none of the respondents are in receipt of the pension
from Defence but were granted pension by the Department of
Posts.
21) We do not find merit in the argument that the benefit of OROP is
not extended to certain category of pensioners as mentioned in
para 4.1 of the Circular dated 7th November 2015 only. Therefore,
17
the pensioners of APS having not been excluded in such Circular,
would be covered by the decision to grant OROP. Such circular
excludes only those pensioners who are in receipt of pension for
the services rendered in the armed forces of the country or the
armed forces prior to the Independence of the Country or the
forces which are getting pension for the reason that they were
members of the State forces at the time of merger of the States
with Indian Union after independence. Such exclusion is of distinct
category who are pensioners of the Army at some stage but have
no relation with the pensioners of defence forces as on 1st July
2014. There was never any condition in any policy decision that the
members of APS will be treated as pensioners of the Armed Forces.
22) The reliance of Mr. Ahmadi on 1979 Rules wherein the Exservicemen have been defined to include the members of APS, is
again not tenable. Such Rules are applicable for the purpose of
recruitment to certain posts in the Central Civil Services. The wide
definition and purport of the Rules is to provide reservation for Exservicemen for the purpose of employment in the civil
administration. Such provision is not of general application so as to
extend the meaning assigned in a particular rule to another set of
Instructions. Similarly, the Circular dated 3rd February, 2016 is
applicable to the defence pensioners. The Circulars dated 7th
November, 2015 and 3rd February, 2016 were addressed to the
Chiefs of the Armed Forces in respect of the pensioners of the
forces which is evident from clause 4 of the Circular dated 3rd
18
February, 2016 when, the benefit of OROP is conferred on all
pensioners including the Commissioned Officers.
23) The respondents were holders of Temporary Commission only to facilitate the grant of rank and other benefits but they cannot be
called as Commissioned Officers. Even the argument that the
members of Territorial Army have been granted benefit of OROP is
again not tenable for the reason that the Territorial Army is governed by a statute and is Armed Forces of the Union, who have
been specifically included in the Circular dated 3rd February, 2016.
This Court in exercise of judicial review will interpret the policy decisions as they exist rather than to expand the scope of Circulars
when such benefits were not conferred on the members of APS.
24) This Court in a judgement reported as Major M.R. Penghal v.
Union of India
8 examined somewhat similar question but in
different context. In that case, a clerk of the Department of Posts
was promoted as Major in the APS. He initially sought voluntary
retirement from the Department of Posts but subsequently sought
to withdraw his such request. The question was as to whether the
appellant therein can invoke jurisdiction of the Central
Administrative Tribunal or the High Court, it being 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 the Postal Department for appointment to the post of
clerk, but he could not be given any appointment due to
8 (1998) 5 SCC 454
19
want of vacancy in the unit of his choice. Under such
circumstances, the appellant was offered an appointment
to work as a clerk in the Army Postal Service on the
condition that he would remain a civilian employee on
deputation in the Army. The appellant accepted the
aforesaid offer and agreed to the conditions that he would
revert to the civil appointment in Posts and Telegraphs
Department on his release from the Indian Army Postal
Service. With these conditions, the appellant continued to
serve in the Army as a permanent employee of 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 he worked as such till the date when his
relinquishment was ordered. The aforesaid facts clearly
demonstrate that the appellant has a lien with the Posts
and Telegraphs Department working on deputation in the
Indian Army Postal Service and at no point of time the
appellant became a full-fledged army personnel. Since the
appellant was not a member of the Armed Forces and
continued to work as a civilian on deputation to the Army
Postal Service, his case was covered under Section 14(1)
(a) of the Administrative Tribunals Act. In that view of the
matter, the High Court was right in rejecting the writ
petition filed by the appellant, whereas the Central
Administrative Tribunal erroneously accepted the claim of
the appellant that he is an army personnel………... “
25) Another undisputed fact that the respondents have retired from
service corresponding to the age of the retirement of the
Department of Posts i.e. 58 years or 60 years. It is not disputed
that retirement age of a regular Commissioned Officer of the rank
of Lt. Colonel is 54 years. Such fact only shows that the
respondents are the holders of civil posts entitled to civil pension
and are not the Ex-servicemen to which benefit of OROP was
conferred. If the respondents are to be accepted as members of
the Armed Forces in respect of retrial benefits, they would have
been made to retire at the age of 54 years i.e. the age of the
superannuation of the personnel of the Armed Forces in the rank of
20
Lt. Colonel.
26) We, thus, hold that the persons such as the respondent and the
intervenors on deputation to APS from Department of Posts are not
entitled to the benefit of OROP. Therefore, the order of the
Tribunal is not sustainable in law and hence set aside. The appeal
is allowed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
NOVEMBER 05, 2019.
21
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8139 OF 2019
(DIARY NO. 38432 OF 2017)
UNION OF INDIA & ORS. .....APPELLANT(S)
VERSUS
LT. COL. OM DUTT SHARMA (RETD.) DEAD
THROUGH LRS & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) The challenge in the present appeal is to an order passed by the
Armed Forces Tribunal, Regional Bench, Jabalpur1
on 9th February,
2017 whereby, an Original Application filed by the respondent - Lt.
Col. Om Dutt Sharma was allowed holding that the respondent is
entitled to the benefit of One Rank One Pension2
.
2) The respondent died during pendency of the appeal. His legal
heirs have been brought on record, whereas respondent Nos. 3 to
86 have been impleaded as intervenors vide order dated 14th May,
1 for short, ‘Tribunal’
2 for short, ‘OROP’
1
2018 in view of the fact that the said intervenors claim the same
benefit as claimed and granted to the deceased respondent.
Since the issue is purely legal and the fact that large numbers of
personnel of Army Postal Service3
are involved, we have heard
learned counsel for the parties on merits in respect of their
entitlement to OROP in terms of Government of India’s Circular
dated 7th November, 2015.
3) The respondents were working on the non-gazetted posts in the
Department of Posts under the Government of India and were
taken on deputation in the APS from time to time. The deceased
respondent was taken on deputation in the year 1962. He
relinquished his Temporary Commission in the Army as Lt. Colonel
on 31st December, 1984 and retired on 14th May, 1985 after
repatriation to his parent department i.e. Department of Posts.
The stand of the intervenors is that they joined APS on deputation
either as Junior Commissioned Officer (JCO) or the Warrant Officer
(WO) and were not repatriated to their parent department. All the
intervenors retired from the APS on attaining the age of
superannuation, therefore, they claim benefit of OROP.
4) Learned counsel for the appellants refers to the different Army
Instructions issued from time to time to contend that for service
pension, officers of APS on deputation from the Department of
Posts are governed by civil pension rules, whereas in respect of
3 for short, ‘APS’
2
disability or special family pension, the option is available to be
governed by military or civil rules. It is also contended that age of
superannuation of a Lt. Colonel in the Army is 54 years, whereas a
person holding civil post under the Union continues to discharge
the duties up to the age of superannuation i.e. up to the age of 58
or 60 Years. It is also contended that the members of APS on
deputation from the Department of Posts serve till the age of
superannuation meant for civil employees of the Union. The
personnel of the Department of Posts are not granted pension by
the Ministry of Defence but are in receipt of pension from the
Department of Posts as the members of the Union holding civil
posts.
5) The relevant extracts of the different Army Instructions issued from
time to time read as under:
“ Army Instructions Nos. 107 of 19534
1. Temporary Commissions of a period of one year and for
so long thereafter as their services may be required will be
granted in the Army Postal Service or the Regular Army on
the terms and conditions laid down in the Annexure to this
AI.
2. Eligibility:- JCOs of the APS and such WOs as have
passed the IPOs/IRMs examination of the P and T
Department.
3. Length of Commission:- The Commission will be
granted for a period of one year and for so long thereafter
as their services may be required.
xx xx xx
4 For short “Army Instructions 1953”
3
10. Advance of Pay:- As admissible under the rules of the
P and T Department.
Annexure to Army Instructions No. 107 of 1953
1. xx xx xx
2. Rank, seniority and Promotion:-
(a) JCOs/WOs will be granted Temporary Commission in
the rank of 2/Lt except that JCOs/WOs I having 8 years
service as JCO/WO I and in the ranks would be
commissioned as Lt and granted 2 years ante date for the
purpose of pay only.
(b) Officers will be governed by the Acting Promotion
Rules in force from time to time. All gazetted service will
count as Commissioned service for the purpose of acting
promotions.
xx xx xx
6. (a) Disability and family pensions:-
(i) Officers governed by chapter XXXVIII C.S. R. may elect
to be governed either by military or civil rules. When
electing military rules the officers will be granted disability
element of pension like regular I.C. OS.
(ii) Those governed by Central Civil Services
(Extraordinary Pension) Rules will be eligible for
disability/family pensions under military rules. The
disability element of pension will be as for regular I.C. Os.
Army Instructions No. 295 of 19595
1. In supersession of the orders contained in A.I. 107/53,
insofar as they relate to the grant of commissions to
gazetted officers of the Post and Telegraphs Department,
temporary commission in the Army Postal Service will be
granted in future on the terms and conditions laid down in
annexure ‘A’ to this Army Instruction.
2. Eligibility:- Gazetted officers (substantive or officiating)
5 For short “Army Instructions 1959”
4
of the Posts and Telegraphs Department, preferably with
previous service in the Army, Navy or Air Force, will be
eligible.
3. Length of Commission:- The Commission will be
granted for a period of one year and for so long thereafter
as their services may be required but not exceeding the
age of compulsory retirement in the Army. The officers
will, however, normally be retained in the Army Postal
Service for minimum period of four years.
xx xx xx
12. Option – All officers of the Posts and Telegraph
Department at present serving in the Army Postal Service
will be allowed to opt for the terms and conditions
contained in Annexure ‘A’ to this Army Instructions from
the date of its issue provided that they satisfy the
conditions laid down therein. On exercising such option,
they will be regarded as newly commissioned for purposes
of the option to draw civil or military rates of pay under
paragraph 3(b) of annexure ‘A’. The existing orders will
continue to apply to other serving officers.
Annexure ‘A’ to Army Instructions No. 295 of 1959
1. xx xx xx
2. Rank, Promotion and seniority-
(a) On commissioning in the Army Postal Service, officers
will be ranked as follows:
Class II Officers with less than 2 years
gazette service
2
nd
Lieutenant
Class II/Class I officers with over 2 years
but not over 4 years gazetted service
Lieutenant
Class II officers with over 5 years but not
over 8 years gazetted service and class I
officers with over 3 years but not over 5
years gazetted service
Captain
Class I officers with over 5 years
but not over 12 years gazetted service
Major
Class I (Senior scale) officers with over 12
years gazetted service
Lieutenant
Colonel
xx xx xx
The Director General, Post and Telegraphs, may, however,
5
recommend variations in ranking when it is necessary due
to paucity of suitable volunteers.
(e) An officer serving in the rank of Major, who is
promoted to the grade of Director, Postal Service, in his
parent department, will be reverted to civil employment.
Such an officer may however be retained in the Army
Postal Service for a period not exceeding four months at
the discretion of the Quartermaster General.
3. Pay and Allowances
(a) xx xx xx
(b) An officer will however have an option at the time of
commissioning and a further option on each occasion of
promotion in Army rank to draw either military pay and
allowances or civil pay 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 to the officers’ permanent cadre.
(c) Pay and allowances during the joining period prior to
being commissioned as well as during transit on reversion
will be on the Civil rates only, and no deputation
allowance will be allowed in addition.
xx xx xx
6. Pension
(a) For service pension, officers will be governed by civil
rules.
(b) For disability and special family pension, officers will
be permitted to elect to be governed by either military or
civil rules. The election may be made by an officer at any
time during service with the Army or after it, and once
made will be final. When an officer dies without making
6
the election, his family will be eligible to receive awards
under the civil or the military rules whichever was more
favourable. Those who elect military rules for disability
pension will be entitled to only disability element of
disability pension as for regular commissioned officers in
addition to civil pay and allowances or service pension as
the case may be.
xx xx xx
9. Special Provisions Applicable to Officers Electing Civil
Rates of Pay –
(a) In regard to other conditions service including
dearness and compensatory allowances and other
concessions, officers on civil rates of pay will be governed
by the rules applicable to them in their civil appointments
except to the extent indicated on the succeeding subparagraphs.
Army Instructions No. 29 of 19856
In supersession of the orders contained in A.I. 107/53, and
AI 295/59, terms and conditions laid down in annexure ‘A’
to this Army Instructions will apply to the Temporary
Commissions granted in the Army Postal Service of
Regular Army.
Annexure ‘A’
1. xx xx xx
2. Rank, Promotion and seniority –
(a) In the case of JCOs/WOs of APS – JCOs/WOs will be
granted temporary commission in the rank of 2 Lt except
that JCOs/WOs having 8 years service as JCO/WO and in
the ranks would be commissioned as Lt and granted 2
years ante date for the purpose of pay only.
(b) In the case of gazetted officers of the Department of
Posts – On commissioning in the Army Postal Service,
Officers of the Department of Posts will be ranked as
follows:-
PSS/PMS Group ‘B’ Officers - Lt/Capt
6 For short “Army Instructions 1985”
7
IPS Group ‘A’ Officers – Junior Scale - Capt
IPS Group ‘A’ Officers – Senior Scale - Major
IPS Group ‘A’ Officers with over ten years - Lt. Col.
Service or Director Postal Services
Director Postal Services drawing base pay
of
- Col.
Rs.1800/- or
more
Postmaster General Level II - Brig
Postmaster General Level I - Major Gen
The Director General, Postal Services, may, however,
recommend variation in ranking when it is necessary due
to paucity of suitable volunteers.
3. (a) xx xx xx
(b) An officer will however have an option at the time of
commissioning and a further option on each occasion of
promotion in Army rank to draw either military pay and
allowances or civil pay plus a deputation allowance as
under:
An officer below the grade of Director Postal
Services
- 20%
An officer of the grade of Director - 12½%
Postal Services and above
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 to the officers’ permanent cadre.
(c) Pay and allowances of officers joining from the
Department of Posts during the period prior to being
commissioned as well as transit on reversion will be on the
civil rates only and no deputation allowance will be
allowed in addition.
4. xx xx xx
5. xx xx xx
6. Pension
(a) For service pension, officers will be governed by civil
rules.
(b) For disability and family pension, the officer or, when
the officer dies in service, his family will be eligible to
receive awards under AI 64/76 as amended from time to
time.
8
7. xx xx xx
8. xx xx xx
9. Relinquishment of Commission and repatriation to the
Department of Posts
(1) An officer shall relinquish his temporary commission in
Army Postal Service and be repatriated to the Department
of Posts or proceed on compulsory retirement on
superannuation by order of the Central Government or the
authority specified in sub-para (2) with effect from the
afternoon of the date specified in the orders.
(2) The authority specified in Sub Para (1) shall be the
Additional Director General Army Postal Service.
(3) Approval of the Central Government will be obtained
by the Additional Director General Army Postal Services
prior to the issue of orders in all cases except the
following:-
(a) Where an officer has completed the minimum period
of engagement as specified in Para 3 of AI 29/85 and
seeks repatriation to the Department of Posts.
(b) Where the service of the officer is recalled by the
Department of Posts.
(c) Where the officer has completed his period of
engagement and has outlived his utility to the APS and
(d) Where an officer has attained the age of compulsory
retirement in the Army Postal Service and instead of being
repatriated to the Department of Posts seeks retirement
from Army Postal Service.
(4) The consent of the Department of Posts will be
obtained and a minimum not of three months shall be
given to the officer before his relinquishment of
commission and repatriation to the Department of Posts.”
6) Mr. Huzefa Ahmadi, learned senior counsel for the respondents
argued that the respondents are not the Gazetted Officers of the
Department of Posts to whom the Army Instructions 1959 are
9
applicable. In fact, Mr. Ahmadi relies upon Army Instructions 1953
and Army Instructions 1985 to contend that the respondents are
entitled to the benefit of OROP. It is submitted that the argument
of the appellants that the respondents held a lien on equivalent
posts in the Department of Posts when they retired from APS, is not
tenable as the pension of the respondent is higher than their
respective counterparts in the Department of Posts, therefore,
there is no parity with the pension drawn by the respondents with
the person who continue to work in the Department of Posts.
7) It is argued that the pension of the respondent is calculated on the
basis of last pay drawn which includes the components of Military
Pay Scale, Military Service Pay, whereas, the civil posts in the Postal
Department do not have such component of Military Service Pay.
Therefore, their last pay drawn is not comparable to any other civil
pay and also their pension. Their pension has always been equal to
other Army Officers.
8) It is argued that the Instructions to grant OROP on 7th November,
2015 w.e.f. 1st July, 2014 is a beneficial provision for the ‘Exservicemen’. Since the respondents were holding Army rank and
were entitled to the benefits of medical and other benefits at par
with the officers of the Army, therefore, the respondents being Exservicemen are entitled to the benefit of OROP. Learned counsel
for the respondents refers to the Ex-servicemen (Re-employment in
10
Central Civil Services and Posts) Rules, 19797
. In terms of Rule 2(c)
as amended, the Ex-servicemen include the personnel retired from
APS. Learned counsel also refers to Army Instructions 1953 to
contend that the Annexure attached to the said Instructions
permits service pension. Mr. Ahmadi argued that the respondents
were conferred Army rank and carry such rank even after
retirement. It is argued that it cannot be imagined that in the
Department of Posts, a civilian would hold a rank of Lt. Colonel,
therefore, the respondents as Ex-servicemen are entitled to the
benefit of Circular dated 7th November, 2015 granting OROP. It is
also argued that the Circular dated 3rd February, 2016 makes the
policy of OROP applicable to all Commissioned Officers including
honorary Commissioned Officers which would include Temporary
Commissioned Officers such as the respondents. Therefore, the
respondents are covered by the clarification dated 3rd February,
2016.
9) The Ministry of Defence, Department of Ex-Servicemen Welfare on
7
th November, 2015 issued a letter to the Chiefs of Army Staff,
Naval Staff and Air Staff to implement OROP for the Ex-servicemen
w.e.f. 1st 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 Forces Personnel retiring in the same rank
with the same length of service, regardless of their date of
retirement, which, implies bridging the gap between the
7 for short, ‘1979 Rules’
11
rates of pension of current and past pensioners at periodic
intervals.”
10) Subsequently, another letter was issued by the Ministry of Defence,
Department of Ex-Servicemen Welfare on 3rd February, 2016
wherein it was decided that the benefit of OROP was being
conferred to Defence Forces Personnel and to all pensioners in the
rank of honorary Commissioned 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 out from service/died in service or
after retirement in the rank of Commissioned Officers,
honorary Commissioned Officers, JCOs/Ors and NonCombatants (Enrolled) of Army, Navy, Air Force, Defence
Security Corps, Territorial Army & Ex-State Forces and are
in receipt of pension/family pension as on 1.7.2014.
4.1. 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-gratia payments.”
11) We have considered the respective arguments of learned counsel
for the parties. The JCOs of Armed Forces and Warrant Officers who
have passed IPO/IRM examination of Posts & Telegraph Department
are eligible for the grant of Commission for a period of one year
and for such period, their service may be required. The
Commission under such instructions was meant for Junior
Commissioned Officers and the Warrant Officers who have passed
examination of the Department of Posts for Commission which is
for a period of one year and as long services are required. Thus,
12
the officials of the Department of Posts continue to have lien over
the posts under the Union.
12) The next Army Instructions 1959 supersede the earlier Army
Instructions in so far as they relate to the grant of the Commission
to the Gazetted Officers of the Posts & Telegraph Department. The
eligibility for grant of Temporary Commission was in respect of the
Gazetted Officers, (substantive or officiating) of the Posts &
Telegraph Department. In terms of Clause 12 of the Army
Instructions 1959, all officers of the Posts & Telegraph Department,
which will include Non-Gazetted Offices, were given an option to
opt for terms and conditions contained in Annexure ‘A’ to these
Instructions. On exercise of such option, they will be regarded as
newly commissioned officers with an option to draw civil or military
rates of pay. In respect of pension, there is no option and that the
officers would be governed by civil rules for service pension.
13) As per Army Instructions 1985, the eligibility for grant of Temporary
Commission in the APS is Gazetted Officers (substantive or
officiating) of the Department of Posts and JCOs of the APS and
such WOs who have earned competitive vacancies in the Rank of
JAOs/IPOs/IRMs in examination of the Department of Posts. Clause
12 of such instructions gives an option to all officers which will
include the Gazetted and Non-Gazetted Officers of the Department
of Posts serving in the APS to opt for the terms and conditions
contained in Annexure ‘A’ to these instructions. On exercise of
13
such instructions, they will be regarded as newly commissioned for
the purpose of option to draw civil or military rates of pay. Such
Annexure ‘A’ to the Instructions again has a clause that the officers
will be governed by civil rules for service pension. There is no
option to opt for military pension.
14) Therefore, we do not find any merit in the argument raised that
Army Instructions only cover the Gazetted Officers. The eligibility
for grant of a Temporary Commission is the Gazetted Officers and
JCOs etc. but clause 12 of Army Instructions 1959 and 1985 cover
all officers of the Department of Posts. It is not the case of the
respondents that their lien in the Department of Posts was ever
terminated.
15) The argument that the respondents were drawing more pension
than their counterparts in the Department of Posts, therefore, they
are entitled to the periodical increase of pension on the parity of
the personnel of the Armed Forces, is not tenable. The respondents
have discharged their duties as per Army Instructions issued from
time to time. If they have drawn higher salaries while working in
the APS than other counterparts in the Department of Posts that
will not make them at par with the members of the Armed Forces.
Their birth mark is with the Department of Posts which mark was
never removed, when they were serving as members of APS. The
Instructions provided for an option on promotion on every rank in
the Army to draw either military pay and allowances or civil pay
14
plus deputation allowances meaning thereby that they continue to
hold their lien on the civil posts in the Department of Posts. Since
they hold a lien in the Department of Posts they could be recalled
by the Department of Posts as well as they could seek reversion to
their parent Department.
16) The respondents were appointed in the Department of Posts and
were sent on deputation to the APS. They hold a lien in the
Department of Posts inasmuch as they can be recalled by the
Department of Posts and that they can seek reversion to the parent
department. Clause 3 (a) of Annexure ‘A’ to Army Instructions
1959 gives an officer an option at the time of commissioning and a
further option on each occasion of promotion in Army rank to draw
either military pay and allowances or civil pay and the deputation
allowance. Sub clause (c) further provides that pay and allowances
during the joining period prior to being commissioned as well as
during transit on reversion will be on the civil rates only, and no
deputation allowance will be allowed. Such Instructions also state
that an officer serving in the rank of Major, who is promoted to the
grade of Director, Postal Service in his parent department will be
reverted to civil employment but he can be retained in the APS for
a period not exceeding four months at the discretion of the
Quartermaster General. In respect of pension, there is a
categorical instruction that the officers would be governed by civil
rules for service pension. An option is available to opt for military
or civil rules in respect of disability or special family pension.
15
17) In the subsequent Instructions 1985, superseding the earlier
Instructions, the members of Department of Posts have an option
at the time of Commission and further option on each occasion of
promotion in Army rank to draw either military pay and allowances
or civil pay plus a deputation allowance. The condition of pay and
allowances of officers joining from the Department of Posts during
the period prior to Commission as well as on transit on reversion
will be on the civil rates and 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 of 1976 is applicable.
18) In the first Army Instructions issued in the year 1953, there is no
specific clause pertaining to pension but for disability and family
pension, an option is given to opt for military or civil rules governed
by Chapter XXXVIII of Civil Service Regulations. The service
element of disability is contemplated on service share basis at the
time of eventual retirement from the service. Such Instructions
were superseded in 1959 and it was those Instructions or later
Army Instructions of 1985 which were in force when the
respondents joined APS.
19) Such Instructions clearly stipulate that the pension to the members
of APS will be as per civil rules. Such Instructions also contemplate
that at every stage of promotion in APS, an option is available to
the officer to choose military pay or the civil pay. These conditions
16
show that the members of the APS continue to hold lien in the
Department of Posts though they were conferred ranks in the Army
and were also entitled to certain benefits as the members of the
Armed Forces but being members of the Armed Forces during the
period of their Temporary Commission does not make them a
pensioner of the Armed Forces as contemplated in the Circular
dated 7th November, 2015.
20) The said Circular confers benefit of OROP upon Ex-servicemen,
whereas the subsequent Circular dated 3rd February, 2016 grants
benefit of OROP to all pensioners in the rank of Commissioned
Officers and honorary Commissioned Officers etc. who are in
receipt of pension or family pension as on 1st July, 2014. This
Circular, as explained by Circular dated 7th February 2016 is
applicable only to personnel who are drawing pension from the
Defence Establishments as the said Circular is addressed to the
Chiefs of three armed forces of the country including personnel
from Territorial Army. Such Circular has limited application and is
not applicable to the other civil pensioners of the Union.
Admittedly, none of the respondents are in receipt of the pension
from Defence but were granted pension by the Department of
Posts.
21) We do not find merit in the argument that the benefit of OROP is
not extended to certain category of pensioners as mentioned in
para 4.1 of the Circular dated 7th November 2015 only. Therefore,
17
the pensioners of APS having not been excluded in such Circular,
would be covered by the decision to grant OROP. Such circular
excludes only those pensioners who are in receipt of pension for
the services rendered in the armed forces of the country or the
armed forces prior to the Independence of the Country or the
forces which are getting pension for the reason that they were
members of the State forces at the time of merger of the States
with Indian Union after independence. Such exclusion is of distinct
category who are pensioners of the Army at some stage but have
no relation with the pensioners of defence forces as on 1st July
2014. There was never any condition in any policy decision that the
members of APS will be treated as pensioners of the Armed Forces.
22) The reliance of Mr. Ahmadi on 1979 Rules wherein the Exservicemen have been defined to include the members of APS, is
again not tenable. Such Rules are applicable for the purpose of
recruitment to certain posts in the Central Civil Services. The wide
definition and purport of the Rules is to provide reservation for Exservicemen for the purpose of employment in the civil
administration. Such provision is not of general application so as to
extend the meaning assigned in a particular rule to another set of
Instructions. Similarly, the Circular dated 3rd February, 2016 is
applicable to the defence pensioners. The Circulars dated 7th
November, 2015 and 3rd February, 2016 were addressed to the
Chiefs of the Armed Forces in respect of the pensioners of the
forces which is evident from clause 4 of the Circular dated 3rd
18
February, 2016 when, the benefit of OROP is conferred on all
pensioners including the Commissioned Officers.
23) The respondents were holders of Temporary Commission only to facilitate the grant of rank and other benefits but they cannot be
called as Commissioned Officers. Even the argument that the
members of Territorial Army have been granted benefit of OROP is
again not tenable for the reason that the Territorial Army is governed by a statute and is Armed Forces of the Union, who have
been specifically included in the Circular dated 3rd February, 2016.
This Court in exercise of judicial review will interpret the policy decisions as they exist rather than to expand the scope of Circulars
when such benefits were not conferred on the members of APS.
24) This Court in a judgement reported as Major M.R. Penghal v.
Union of India
8 examined somewhat similar question but in
different context. In that case, a clerk of the Department of Posts
was promoted as Major in the APS. He initially sought voluntary
retirement from the Department of Posts but subsequently sought
to withdraw his such request. The question was as to whether the
appellant therein can invoke jurisdiction of the Central
Administrative Tribunal or the High Court, it being 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 the Postal Department for appointment to the post of
clerk, but he could not be given any appointment due to
8 (1998) 5 SCC 454
19
want of vacancy in the unit of his choice. Under such
circumstances, the appellant was offered an appointment
to work as a clerk in the Army Postal Service on the
condition that he would remain a civilian employee on
deputation in the Army. The appellant accepted the
aforesaid offer and agreed to the conditions that he would
revert to the civil appointment in Posts and Telegraphs
Department on his release from the Indian Army Postal
Service. With these conditions, the appellant continued to
serve in the Army as a permanent employee of 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 he worked as such till the date when his
relinquishment was ordered. The aforesaid facts clearly
demonstrate that the appellant has a lien with the Posts
and Telegraphs Department working on deputation in the
Indian Army Postal Service and at no point of time the
appellant became a full-fledged army personnel. Since the
appellant was not a member of the Armed Forces and
continued to work as a civilian on deputation to the Army
Postal Service, his case was covered under Section 14(1)
(a) of the Administrative Tribunals Act. In that view of the
matter, the High Court was right in rejecting the writ
petition filed by the appellant, whereas the Central
Administrative Tribunal erroneously accepted the claim of
the appellant that he is an army personnel………... “
25) Another undisputed fact that the respondents have retired from
service corresponding to the age of the retirement of the
Department of Posts i.e. 58 years or 60 years. It is not disputed
that retirement age of a regular Commissioned Officer of the rank
of Lt. Colonel is 54 years. Such fact only shows that the
respondents are the holders of civil posts entitled to civil pension
and are not the Ex-servicemen to which benefit of OROP was
conferred. If the respondents are to be accepted as members of
the Armed Forces in respect of retrial benefits, they would have
been made to retire at the age of 54 years i.e. the age of the
superannuation of the personnel of the Armed Forces in the rank of
20
Lt. Colonel.
26) We, thus, hold that the persons such as the respondent and the
intervenors on deputation to APS from Department of Posts are not
entitled to the benefit of OROP. Therefore, the order of the
Tribunal is not sustainable in law and hence set aside. The appeal
is allowed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
NOVEMBER 05, 2019.
21
