Supreme Court of India
UNION OF INDIA & ORS.versusLT. COL. OM DUTT SHARMA (RETD.) DEAD THROUGH LRS & ORS.
- Citation
- 2019 INSC 1205
- Decided
- 5 November 2019
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
APS personnel on deputation from the Department of Posts are governed by civil pension rules and are not entitled to OROP.
Summary
The Union of India appealed against an Armed Forces Tribunal order that had granted One Rank One Pension (OROP) to Lt. Col. Om Dutt Sharma (deceased) and other personnel who served in the Army Postal Service (APS) on deputation from the Department of Posts. The respondents argued that, as temporary commissioned officers in the APS, they were ex‑servicemen entitled to OROP under the 2015 and 2016 government circulars. The Supreme Court examined the Army Instructions of 1959 and 1985, which stipulate that APS personnel on deputation retain a lien with the Posts department and are governed by civil pension rules, with no provision for military pension. It held that the OROP circulars apply only to pensioners drawing from defence establishments and not to civil pensioners such as the APS deputees. Consequently, the Court concluded that the respondents are not eligible for OROP and set aside the Tribunal’s order.
Issues considered
- Whether personnel of the Army Postal Service on deputation from the Department of Posts are to be treated as ex‑servicemen for the purpose of OROP.
- Whether the Army Instructions governing APS deputation prescribe civil pension rules exclusively.
- Whether the OROP circulars of 7 November 2015 and 3 February 2016 extend to APS deputed personnel.
- Whether the lien retained with the Department of Posts precludes entitlement to military pension benefits.
- Whether the retirement age of the respondents indicates civil rather than military service.
Legislation cited
- Administrative Tribunals Act, 1985s. 14(1)(a)
Subjects
OROPArmy Postal Servicetemporary commissioncivil pensionmilitary pensiondeputationex‑servicemenArmy Instructionsretirement agelien
Judgment
[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 to C
– Of the personnel of Army Postal Service (APS), on deputation
from Department of Posts and Telegraph – Held: The Army
Instructions show that the members of APS hold a lien in their parent
department though conferred ranks in the Army – Such instructions
clearly stipulate that the pension to the members of APS will be as
D
per civil rules – Being member of APS during the period of their
temporary Commission does not make them a pensioner of Armed
Forces entitling them to OROP.
Allowing the appeal, the Court
HELD : 1. The Junior Commissioned Officers (JCOs) of E
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 F
Department of Posts for Commission which is for a period of one
year and as long the services are required. Thus, the officials of
the Department of Posts continue to have lien over the posts
under the Union. [Para 11] [24-C-D]
2. The Army Instructions 1959 supersede the earlier Army G
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
H
9
10 SUPREME COURT REPORTS [2019] 14 S.C.R.
A & 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
B
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. [Para 12] [24-E-G]
3. As per Army Instructions 1985, the eligibility for grant
of Temporary Commission in the APS is Gazetted Officers
C (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-
D 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 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
E by civil rules for service pension. There is no option to opt for
military pension. [Para 13] [24-G-H; 25-A-B]
4. Therefore, it is not correct to say that Army Instructions
only cover the Gazetted Officers. The eligibility for grant of a
Temporary Commission is the Gazetted Officers and JCOs etc.,
F 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.
[Para 14] [25-C]
5. The argument that the respondents were drawing more
G 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
H
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 11
DEAD THROUGH LRS.
salaries while working in the APS than other counterparts in the A
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
B
military pay and allowances or civil pay 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. [Para 15] [25-D-F] C
6. 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 D
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 E
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 F
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. [Para 16] [25-G-H; 26-A-B]
G
7. 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
H
12 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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,
B
whereas 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 disability
and family pension, an option is given to opt for military or civil
C 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
D force when the respondents joined APS. [Para 18] [26-E-F]
9. 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
E pay. These conditions 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
F Forces as contemplated in the Circular dated 7th November, 2015.
[Para 19] [26-G-H; 27-A]
10. The Circular dated 7th November, 2015 confers benefit
of OROP upon Ex-servicemen, whereas the subsequent Circular
dated 3rd February, 2016 grants benefit of OROP to all pensioners
G 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
H
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 13
DEAD THROUGH LRS.
drawing pension from the Defence Establishments as the said A
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
B
pension by the Department of Posts. [Para 20] [27-B-C]
11. It is not correct that non-exclusion pensioners of APS
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 C
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 D
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. [Para 21] [27-D-F]
12. The reliance on 1979 Rules wherein the Ex-servicemen
have been defined to include the members of APS, is again not E
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 Ex-
servicemen 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 F
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 G
February, 2016 when, the benefit of OROP is conferred on all
pensioners including the Commissioned Officers. [Para 22]
[27-G-H; 28-A]
H
14 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 13. 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
B
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. [Para 23] [28-B-C]
C 14. It is not disputed that retirement age of a regular
Commissioned Officer of the rank of Lt. Colonel is 54 years.
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. Such fact only shows that the respondents are the
D 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 retiral 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 Lt. Colonel.
E [Para 25] [29-D-E]
15. Therefore, 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. [Para 26] [29-F]
F Major M.R. Penghal v. Union of India (1998) 5 SCC
454 – relied on.
Case Law Reference
(1998) 5 SCC 454 relied on. Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8139
G
of 2019.
From the Judgment and Order dated 09.02.2017 of the Armed
Forces 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.
H
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 15
DEAD THROUGH LRS.
R. Balasubramanian, Sr. Adv., O. P. Shukla, Mukesh Kumar A
Maroria, Advs. for the Appellants.
Huzefa Ahmadi, Sr. Adv., Sanjai Kumar Pathak, Ms. Shasi Pathak,
Arvind Kumar Tripathi, Rohan Sharma, Niraj Sharma, Advs. for the
Respondents.
The Judgment of the Court was delivered by B
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 C
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, 2018 in
view of the fact that the said intervenors claim the same benefit as D
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.
E
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. F
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.
G
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
1
for short, ‘Tribunal’
2
for short, ‘OROP’
3
for short, ‘APS’ H
16 SUPREME COURT REPORTS [2019] 14 S.C.R.
A by civil pension rules, whereas in respect of 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
B
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.
C 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
D 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.
E 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
10. Advance of Pay:- As admissible under the rules of the P and
F
T Department.
Annexure to Army Instructions No. 107 of 1953
1. xx xx xx
2. Rank, seniority and Promotion:-
G
(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.
4
H For short “Army Instructions 1953"
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 17
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
(b) Officers will be governed by the Acting Promotion Rules in A
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:-
B
(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 C
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 D
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) of the E
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 F
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 G
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
5
For short “Army Instructions 1959"
H
18 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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.
B 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
C be ranked as follows:
Class II Officers with less than 2 years 2 nd
gazette service Lieutenant
Class II/Class I officers with over 2 years Lieutenant
but not over 4 years gazetted service
Class II officers with over 5 years but not Captain
over 8 years gazetted service and class I
D officers with over 3 years but not over 5
yea rs gazetted service
Class I officers with over 5 years Major
but not over 12 years gazetted service
Class I (Senior scale) officers with over 12 Lieutenant
yea rs gazetted service Colonel
E xx xx xx
The Director General, Post and Telegraphs, may, however,
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
F
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
G
(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
H
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 19
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
in Army rank to draw either military pay and allowances or civil A
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%
B
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 C
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 D
(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 E
officer dies without making 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 F
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 –
G
(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 sub-paragraphs.
H
20 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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.
B 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
C 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 –
D 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
IPS Group ‘A’ Officers – Junior Scale - Capt
IPS Group ‘A’ Officers – Senior Scale - Major
IPS Group ‘A’ Officers with over ten years - Lt. Col.
E Service or Director Postal Services - Col.
Directo r Postal Services drawing base pay Rs.1800/- or
of more
Postmaster General Level II - Brig
Postmaster General Level I - Major Gen
F 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
G 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:
6
H For short “Army Instructions 1985"
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 21
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
An officer below the grade of Director - 20% A
Postal Services
An officer of the grade o f 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 B
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. C
4. xx xx xx
5. xx xx xx
6. Pension
D
(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.
7. xx xx xx E
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 F
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
G
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:-
H
22 SUPREME COURT REPORTS [2019] 14 S.C.R.
A (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.
B (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.
C
(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.”
D 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 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
E 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
F 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
G
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 7 th
November, 2015 w.e.f. 1st July, 2014 is a beneficial provision for the
‘Ex-servicemen’. Since the respondents were holding Army rank and
H
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 23
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
were entitled to the benefits of medical and other benefits at par with A
the officers of the Army, therefore, the respondents being Ex-servicemen
are entitled to the benefit of OROP. Learned counsel for the respondents
refers to the Ex-servicemen (Re-employment in 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
B
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 C
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
D
clarification dated 3rd February, 2016.
9. The Ministry of Defence, Department of Ex-Servicemen
Welfare on 7th 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:
E
“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 rates of pension of current and past pensioners F
at periodic intervals.”
10. Subsequently, another letter was issued by the Ministry of
Defence, Department of Ex-Servicemen Welfare on 3 rd 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 G
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
7
for short, ‘1979 Rules’
H
24 SUPREME COURT REPORTS [2019] 14 S.C.R.
A out from service/died in service or after retirement in the rank of
Commissioned Officers, honorary Commissioned Officers, JCOs/
Ors and Non-Combatants (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.
B 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
C 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
D Department of Posts for Commission which is for a period of one year
and as long services are required. Thus, 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
E 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-
F 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.
G
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
H
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 25
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
such instructions gives an option to all officers which will include the A
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 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
B
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 C
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 D
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 E
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 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 F
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 G
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) H
26 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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
B
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.
C 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
D 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.
E
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
F 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
G 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
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
H being members of the Armed Forces during the period of their Temporary
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 27
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
Commission does not make them a pensioner of the Armed Forces as A
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 B
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 C
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 D
4.1 of the Circular dated 7 th November 2015 only. Therefore, 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 E
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 F
members 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 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 G
of the Rules is to provide reservation for Ex-servicemen 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 H
28 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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 February, 2016 when, the
benefit of OROP is conferred on all pensioners including the
Commissioned Officers.
B 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
C 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
D v. Union of India8 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
E 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
F could not be given any appointment due to 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
G 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
8
H (1998) 5 SCC 454
UNION OF INDIA v. LT. COL. OM DUTT SHARMA (RETD.) 29
DEAD THROUGH LRS. [HEMANT GUPTA, J.]
promoted up to the rank of a Major in the Indian Army. However, A
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
B
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 C
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 D
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 retiral benefits, they would
have been made to retire at the age of 54 years i.e. the age of the E
superannuation 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 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 F
not sustainable in law and hence set aside. The appeal is allowed.
Kalpana K. Tripathy Appeal allowed.
G
H
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