Service Law:
Pension – One Rank one Pension (OROP) – Entitlement to – 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 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 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 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 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. [Para 12] [24-E-G]
3. 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 NonGazetted 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 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., 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 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 Department. [Para 15] [25-D-F]
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 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. [Para 16] [25-G-H; 26-A-B]
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 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. [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 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. [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 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 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 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. [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 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. [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 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 February, 2016 when, the benefit of OROP is conferred on all pensioners including the Commissioned Officers. [Para 22] [27-G-H; 28-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 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]
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 holders of civil posts entitled to civil pension and are not the Exservicemen 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. [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]
Major M.R. Penghal v. Union of India (1998) 5 SCC
454 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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