Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 337 of 2020 (@ D. No.32143 of 2016)

Union of India & Ors. .... Appellant(s)

versus

Brig. Balbir Singh (Retd.)                    …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. This  appeal  is  directed  against  the  judgment  of  the

Armed Forces Tribunal, Regional Bench, Kolkata by which the

Appellants  were  directed  to  consider  the  claim  of  the

Respondent  for  payment  of  grade  pay  of  Rs.10,000/-  or

more, at par with his civilian counterparts holding the post

of Chief Engineer in the Military Engineering Services (MES),

with all consequential benefits.

2. The  Respondent  was  commissioned  in  the  Army  on

16.12.1978 and he was allotted to the Corps of Engineers in

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July, 2005.  The Respondent was promoted to the rank of

Brigadier and was posted as Chief Engineer, Shillong Zone

in  the  Military  Engineering  Service.   Aggrieved  by  the

disparity  with  regard  to  grade  pay  of  Brigadier  vis-à-vis

civilian Chief Engineer in the MES, the Respondent filed O. A.

No.155 of 2012 before the Armed Forces Tribunal, Regional

Bench, Jaipur and sought a direction to the Appellants that

he shall be entitled to the grade pay of Rs.10,000/- at par

with  his  civilian  counterparts.   The  Respondent  further

sought  a  direction  to  the  Appellants  herein  to  pay  the

arrears consequent to re-fixation of grade pay at Rs.10,000/-

with all benefits along with interest at 18 % on such arrears.

The O.A.  filed before the Armed Forces Tribunal,  Regional

Bench, Jaipur was transferred to the Armed Forces Tribunal,

Regional Bench, Kolkata.  By a judgment dated 13.08.2015,

the Tribunal allowed the O.A. filed by the Respondent and

granted  the  relief  sought  by  the  Respondent.    The

application filed by the Appellants seeking leave to appeal

to this Court was dismissed by the Tribunal.  

3. The Tribunal held that the post of the Chief Engineer

carries the same duties whether they are performed by a

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military person or a civilian.  The Tribunal was of the opinion

that in case the work and duties are similar then the source

is immaterial,  and whosoever may be assigned the same

duties shall be entitled for the same pay and pay band.  The

Tribunal was of the opinion that the disparity in pay leads to

the reduction of status of an employee, and amounts to an

adverse  public  perception  of  their  capability  and  their

efficiency.   By placing reliance on several judgments of this

Court on the principle of ‘equal pay for equal work’ including

in  Randhir  Singh v.  Union of  India1,  Bhagwan Dass

and Others v. State of Haryana and Others2 and Jaspal

& Others v. State of Haryana and Others3, the Tribunal

held  that  the  nature  of  appointment  being  tenure  or

temporary in nature does not make a difference to the claim

made by the Respondent.   In the opinion of the Tribunal, the

payment of lesser salary to an employee or officer holding

the same post affects his fundamental rights.  On the basis

of the above findings, the Tribunal allowed the O.A. filed by

the Respondents.   

1 (1982) 1 SCC 618 2 (1987) 4 SCC 634 3 [1987] 4 SCC 634

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4. Ms. Madhavi Divan, learned Additional Solicitor General

appearing for the Appellants-Union of India argued that an

Army Officer posted as Chief  Engineer in the MES cannot

seek parity of grade pay with his civilian counterparts in the

Indian  Defence  Service  of  Engineers  (IDSE)  because

members  of  the  Armed  Forces  are  a  distinct  and

distinguishable  class.    The  learned  Solicitor  General

submitted  that  the  Indian  Defence  Service  of  Engineers

(Recruitment  and  Conditions  of  Service)  Rules,  2016

(hereinafter  referred  to  as  “the  IDSE  Rules”)  are  not

applicable to the Respondent and he cannot seek the same

grade pay as IDSE officers working as Chief Engineers.  By

relying on the judgment of this Court in Confederation of

Ex.  Servicemen Associations  v.  Union  of  India4, the

learned  Additional  Solicitor  General  argued  that  the

classification  between  defence  personnel  and  other  than

defence personnel is reasonable and valid.  It was further

contended on behalf of the Appellants that the conditions of

service of Commissioned Officers in the Army and civilian

Chief  Engineers  are  entirely  different.    Commissioned

Officers  are  liable  to  be  posted  anywhere  in  the  country

4 (2006) 8 SCC 399

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including hard field areas such as Jammu and Kashmir and

the North East, unlike civilian engineers who do not have an

all-India liability.   It was further submitted on behalf of the

Appellants that the hierarchy of the ranks in the Indian Army

are completely  different  from that  of  the  IDSE.   The pay

structure  and  conditions  of  service  are  different  and  the

Army  Officers  are  entitled  to  Military  Service  Pay  of

Rs.15,000/- per month which is not available to their civilian

counterparts.   That apart, several other facilities in material

form  such  as  canteen  facilities,  mess,  ration  etc.  are

provided to the Army Officers, which disentitle them to seek

parity with civilian Chief Engineers.   

5. Countering  the  submissions  on  behalf  of  the

Appellants,  Mr.  Rajeev  Manglik,  learned  counsel  for  the

Respondent  submitted  that  the  IDSE  (Service  Conditions)

Rules  are  applicable  only  in  respect  of  the  15  posts  of

civilian  Chief  Engineers  and  that  the  said  Rules  do  not

govern the recruitment and conditions of  service of  Army

Officers and the posts earmarked for them.  He relied upon

the recommendations of the 6th Central Pay Commission by

which the concept of grade pay and running pay band for

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various posts  were introduced.   According to Mr.  Manglik,

seniority of a post shall depend upon the grade pay drawn.

It  was  further  submitted  that  though  the  appointment  of

Respondent in MES is on a tenure basis, he is not disentitled

from claiming parity  of  grade pay at  par  with his  civilian

counterparts.  The learned counsel for the Respondent made

it clear that the benefit claimed by the Respondent is only

for the period during which he worked in the MES.   

6. The contention  of  the  Appellants  is  that  the  MES is

governed by the provisions of the Military Engineer Services

(Army Personnel) Regulations, 1989, (hereinafter referred to

as MES Regulations) which are framed under Section 192 of

the Army Act, 1950.   Regulation 3 of the said Regulations

provides for a number of posts and proportion or percentage

of the Army Officers belonging to the Corps of Engineers in

the  MES  for  each  post.    In  so  far  as  the  executive

appointment  of  Chief  Engineer  is  concerned,  the  total

number of posts is 37, out of which 50 % of the posts are

filled by Army Officers.  In addition, 27 civilian and 9 military

officers  of  the  rank  of  the  Chief  Engineer  are  on  staff

appointment.   

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7. The IDSE Rules regulate the method of recruitment and

conditions  of  service  of  persons  appointed  to  the  Indian

Defence  Service  of  Engineers  in  the  Ministry  of  Defence,

Government of India.  Rule 3 of the IDSE Rules deals with

the constitution of the Indian Defence Service of Engineers.

The  service  in  the  Indian  Defence  Service  of  Engineers,

according  to  Rule  3,  shall  consist  of  posts  specified  in

Schedule  I.   The  post  of  Chief  Engineer,  Senior

Administrative  Grade  is  shown  against  Serial  No.3  of

Schedule-I.   The total number of posts of Chief Engineers

are  45.   The  pay  scale  of  Chief  Engineer,  Senior

Administrative Grade is  Rs.37400-67000 in pay band –  4.

The  grade  pay  applicable  to  the  post  of  Chief  Engineer,

Senior  Administrative  Grade  is  Rs.10,000/-.   It  is

categorically laid down in Rule 12 of the IDSE Rules that the

Rules shall not apply to Army Officers appointed on a tenure

basis as they are governed by the Army Act and the Rules

framed  thereunder.    There  is  no  dispute  that  the

Respondent was appointed on a tenure basis in accordance

with the MES Regulations.  Therefore, there cannot be any

doubt  that  the  IDSE  Rules  are  not  applicable  to  the

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Respondent.   As  such,  we  are  unable  to  accept  the

submission made on behalf of the Respondent that the IDSE

Rules are applicable only to the 15 civilian posts and not to

the others.   

8. The  Army  Officers  forming  a  separate  class  in

comparison to the civilian employees is a point which is no

more res integra.    In Confederation of Ex. Servicemen

Associations (supra) and Union of India v. Capt. Gurdev

Singh5  this  Court  has  clearly  laid  down  that  the

classification  of  military  personnel  as  different  class  from

non-military  personnel  is  permissible  and  valid.    The

submissions made on behalf of the Appellant that the Army

Officers serving in the MES as Chief Engineers continue to

get  the same benefits and perks attached to  the post  of

Brigadier  has  not  been  controverted  by  the  Respondent.

Though there is no dispute that the principle of ‘equal pay

for equal work’ is applicable even to tenure or temporary

appointments, in view of the IDSE Rules which govern the

grade  pay  of  the  post  of  the  Chief  Engineer,  Senior

Administrative  Grade,  we  are  of  the  opinion  that  the

Respondent is not entitled to claim parity with members of 5 2019 SCC OnLine SC 173  

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the  IDSE.  The  validity  of  the  IDSE  Rules  has  not  been

challenged by the Respondent.  We do not see any force in

the submission of the Respondent that grade pay should be

made available to all  persons working as Chief  Engineers

irrespective of the source.  We are in agreement with the

Appellants that the Respondent continues to be a Brigadier

for  all  practical  purposes  and  is  entitled  for  the  benefits

attached to the post of Brigadier, irrespective of the place

and post in which he works.  

9. In view of the aforesaid, the judgment of the Armed

Forces Tribunal is set aside and the appeal is allowed.   

     .................................J.

                                                     [L. NAGESWARA RAO]

                                             ..…............................J.            [HEMANT GUPTA]

New Delhi, January 16, 2020.

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