NATIONAL EX-SERVICEMEN CO-ORDINATION COMMITTEE ETC. ETC.versusCONTROLLER GENERAL OF DEFENCE ACCOUNTS AND ORS.

             NATIONAL EX-SERVICEMEN CO-ORDINATION                               A
                      COMMITTEE ETC. ETC.
                                        v.
    CONTROLLER GENERAL OF DEFENCE ACCOUNTS AND ORS.

                             SEPTEMI?ER 9, 1996
                                                                                B
                 [KULDIP SINGH AND B.L. HANSARIA, JJ.]

         SERVICE LAW:

         Ex-Servicemen (Re-employment in Central Services and Posts) Rules,     C
    1979:

          Ex-servicemen-Re-employment-Dearness Re Ii ef-Pension-Office
    Memorandum regarding-0.M. denying to ex-servicemen re-employed to
    posts under Central Government without a similar provision for those re-
    employed in public sector--Held not discriminatory.                         D
          Service Law-Policy decision-Scope of judicial review-Service condi-
    tions-Alteration by executive instmctions-Pennissibility of.

          Constitution of India, 1950 : Seventh Schedul~ist:---£ntry 2.
                                                                                E
          ''Amted Forces''-Scope of expression.

           The question involved in this petition relates to payment of dearness
    relief to ex-servicemen on re-employment. The Office Memorandum dated
    1.8.1975 had been made applicable by the Ministry of Defence vide their
    netter dated 28.10.1975 to the Armed Forces pensioners also. For the F
    petitioners it was contended that : (i) the denial of the Dearness Relief to
    the service personnel re-employed in posts under Central or State Govern·
    ment, without there being a similar provision for those re-employed in
    public .sector undertakings or nationalised banks was discriminatory; (ii)
.
r
    the Ministry of Defence's letter dated 28.10.1975 was inapplicable in view
    of Ministry of Defence's O.M. d11ted 8.2.1983; (iii) the service conditions G
    of armed personnel being not attractive they should be treated differently
    from the re-employed civilians; (iv) their service conditions cannot be
    altered by mere executive instructions; (v) realisation of Dearness Relief
    on pension already paid to re-employed service personnel would cause
    hardship to them; and (vi) the letter dated 28.10.1975 was not applicable H
                                         675
    676                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A   to the personnel of naval, military and air force.

          Dismissing the Review Petition, this Court

          HELD : 1. Government employees form a distinct class and their
    service conditions can be different from those who are employed in public
B   sector undertakings or lllationalised. banks. [677-F-G]

           2. The subject matter of 1983 O.M. is entirely different and cannot
    effect the rationale in denial of Dearness Relief on pension on re-employ-
    ment " the same being that the Dearness Relief paid after re-employment
    takes care of the erosion in the value of the money because of rise in prices,
C   which lies at the back of grant of Dearness Relief, Payment of Dearness
    Relief in such a situation on pension would amount to giving Dearness
    Relief twice, wliich is n11t visualized. [678-B-C]

          3:The question wlhether ex-servicemen should be treated differently
D   from re-employed civilians being a matter of policy has to be appropriately
    decided by the Government. The Government would do so keeping in view
    the present scenario and national perspective. [678-D]

          4. It is settled law that service condition can be altered by issuing
    executi~e instructions where the field is not occupied by statutory· rules.
E   The non-amendment of the Rules has, therefore, no sequitur. [679·C)

          5. The appropriate authorities shoutd sympathetically consider that
    the realisation of the Dearness Relief on pension already paid may not be
    insisted. (678-F]

p         6. The word "other" in the second part of Entry 2 of List I of the
    Seven~ Schedule to the Constitution clearly shows that naval, military
    and air forces have been accepted as armed forces. [678-H, 679-A]

          CIVIL APPELLATE JURISDICTION : Review Petition No. 1002
    of 1993 Etc.
G
                                         IN
          .'
          Civil Appeal No. 1809 of 1993 Etc.

         From the Judgment and Order dated 23.2.93 of the Delhi High Court
H   in C.W.P. No. 1966 of 1992.
   NATIONALEX-SERVICEMENCO-ORD.COM. '· CON1ROLLERGEN.OFDEPENCE (HANSARIA,J.]   677

                                     WITH                                            A

      Civil Appeal Nos. 11984, 11981, 11983 and 11982 of 1996.

      H.N. Salve, P.P. Malhotra, N.N. Goswami, K.V. Mohan, S.M. Hooda,
N.S. Bisht. G. Prakash, Ms. Beena Prakash, Ms. Anil Katiyar, T.V. Ratnam,
Ms. Indra Swahney and P.P. Tripathi for the Appearing parties.                       B

      The Judgments of the Court was delivered by

       HANSARIA, J. These review petitions were entertained on a
grievance being made that while deciding the appeals in question reliance            C
had been placed on some documents which had been annexed along with
the written submission filed after the judgment was reserved, as permitted
by the Court, because of which the review petitioners did not get oppor-
tunity to have their say on the applicability and relevance of the documents.

                                                                                     D
       2. During the hearing of the review petitions it was not. disputed by
either Shri Salve on Shri Tripathi appearing for some of the review
petitioners that the Office Memorandum of 1.8.1975 had been made ap-
plicable by the Ministry of Defence vide their letter dated 28.10.1975 to the
Armed Forces pensioners also, as mentioned in para 6 of the judgment                 E
since reported in (1995) 2 SCC 32. What was rather contended by Tripathi
was that the denial of the Dearness Relief to the service personnel re-
employed to posts under Central or State Government, without there being
a similar provision for those re-·employed in public sector undertakings or
nationalised banks, is discriminatory. We are not impressed with this
contention as it is known that Government employees form a distinct class            F
and their service conditions can be different from those who are employed
in public sector undertakings or nationalised banks.

      3. To the aforesaid submission of Shri Tripathi, Shri Salve's booster
was that the Ministry of Defence's letter dated 28.10.1975 would become
non-applicable in view of Ministry of Defence's OM No. 2(1)/83/D(Civ-I) G
dated 8.2.1983 by which while fixing the pay of ex-servicemen on re-
employment pension drawn by them was required to be ignored either fully
or upto a specified limit. Relying on this OM, the submission made was
that pension has been treated differently from pay, and so, the Dearness
Relief paid on pension should be treated different from the Dearness H
    678                  SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A Relief available after re-employment. According to the learned counsel
    both the reliefs can co-exist.. We are not persuaded to accept this submis-
    sion because the subject matter of 1983 OM is entirely different and cannot
    affect the rationale of denial of Dearness Relief on pension on re-employ-
    ment as mentioned in the judgment rendered in the appeals - the same
B   being that the. Dearness Relief paid after re-employment takes care of the
    erosion in the value of the money because of rise in prices, which lies at
    the back of grant of Dearness Relief. Payment of Dearness Relief in such
    a situation on pension would amount to giving Dearness Relief twice, )Vhich
    is not visualised.

C          4. The further submission of both Shri Salve and Shri Tripathi was
    that the service conditions of armed personnel being not attractive as would
    be apparent from many posts in the army lying presently vacant, which is
    not in the larger national interest, a case for treating the ex-servicemen
    differently from the re-employed civilian does not exist. There appears to
D   be some force in this contention, but this being a matter of policy has to,
    be appropriately decided by the Government. We do think that the
    Government would do so keeping in view the present scenario and national
          '
    perspective.

       s". A submission was also made by Shri Tripathi that despite some
E re-employed service personnel having retired on superannuation by now,
    steps a're being taken to realise Dearness Relief on pension which had been
    paid to them at one stage. This is causing hardship to these persons,
    according to ·the learned counsel. We do find force in this submission and
    would require the appropriate authorities to consider that the realisation
F   of the aforesaid amount may not be insisted.

          6. What is left is to deal with the submission of Shri Bisht advanced
    in Review Petition No. 1039 of 1995. According to the learned counsel, the
    aforesaid letter of Ministry of Defence dated 28.10.1975 by which the
    Office Memorandum of 1.8.1975 was made applicable to Armed Forces
G   pensioners has no application to the personnel of naval, military and air
    forces. To show the r&tionality of this submission, we were referred to
    Entry 2 of List I of the Seventh Schedule to the Constitution reading :
    "Naval, military and air forces; any other armed forces of the Union", The
    word "other" in the second part of the entry itself demolishes the contention
H   advan~d, as this clearly shows that naval, military and air forces have been
       NATIONALEX-SllRVICEMEN CO-ORD. COM. v. CONTROLLllR GEN. OF DEFENCE (HANSAR!A,J.]   679

    accepted as armed forces. Further, if these forces would not be armed                       A
    forces, it is difficult to visualise which forces would be so. Thus, there is
    no substance at all in this submission of Shri Bisht. His another contention
    was that instead of issuing aforesaid executive orders, if the Intention was
    to deny Dearness Relief to the ex-servicemen on re-employment, ap-
    propriate amendment could have been made to the Ex-servicemen (Re-                          B
    employment in Central Civil Services and Posts) Rules, 1979. The
    submission has also no force inasmuch as it is settled law that service
•   conditions can be altered by issuing executive instructions where the field
    is not occupied by statutory rules. The non-amendment of the Rules has,
    therefore, no sequitur.

          7. No other submission having been made, or indeed being available,
                                                                                                c
    the review petitions are dismissed. We would, however, desire the Union
    of India to apply mind to the question whether ex-servicemen could be
    treated differently from others in so far as the matter at hand is concerned,
    in view of their service conditions said to be not attractive. We would also
    desire the Central Government to sympathetically consider the question of                   D
    non-realisation of amount already disbursed to re-employed ex-servicemen
    on the aforesaid account.

          HANSARIA, J. Leave granted. Heard learned counsel for the parties.

         2. In view of the judgment of this Court in Union of India & Ors. v. E
    G. Vasudevan Pillay & Ors., [1995] 2 SCC 32, these appeals are allowed by
    setting aside the impugned judgments, inasmuch as the review petitions
    concerning those cases have been dismissed today by a separate judgment.
    The observations made in the judgment relating to non-realisation of the
    amount already disbursed shall apply to these cases as well.                                F
    T.N.A.                                                               Appeals allowed.




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