Case: UNION OF INDIA Vs. LT. COL OM DUTT SHARMA (RETD)DEAD THR. LRS

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 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 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 1 st 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 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 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 3 rd February, 2016 is applicable to the defence pensioners. The Circulars dated 7 th November, 2015 and 3 rd 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 3 rd 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 fa- cilitate 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 gov- erned by a statute and is Armed Forces of the Union, who have been specifically included in the Circular dated 3 rd February, 2016. This Court in exercise of judicial review will interpret the policy de- cisions 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 (1998) 5 SCC 454 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 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 T elegraphs 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 T elegraphs 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 Lt. Colonel.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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, the officials of the Department of Posts continue to have lien over the posts under the Union12. 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 pension13. 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 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 pension14. 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 terminated15. 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 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 Department18. 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 APS19. 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 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 7 th November, 201520. The said Circular confers benefit of OROP upon Ex-servicemen, whereas the subsequent Circular dated 3 rd 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 1 st July, 2014. This Circular, as explained by Circular dated 7 th 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 Posts21. 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 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 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 1 st July 2014. There was never any condition in any policy decision that the members of APS will be treated as pensioners of the Armed Forces22. 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 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 3 rd February, 2016 is applicable to the defence pensioners. The Circulars dated 7 th November, 2015 and 3 rd 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 3 rd February, 2016 when, the benefit of OROP is conferred on all pensioners including the Commissioned Officers23. The respondents were holders of Temporary Commission only to fa- cilitate 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 gov- erned by a statute and is Armed Forces of the Union, who have been specifically included in the Circular dated 3 rd February, 2016. This Court in exercise of judicial review will interpret the policy de- cisions as they exist rather than to expand the scope of Circulars when such benefits were not conferred on the members of APS25. 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 Lt. Colonel.