REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8139 OF 2019 (DIARY NO. 38432 OF 2017)

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

LT. COL. OM DUTT SHARMA (RETD.) DEAD  THROUGH LRS & ORS. .....RESPONDENT(S)

J U D G M E N T

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 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 14 th May,

1 for short, ‘Tribunal’ 2 for short, ‘OROP’

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2018 in view of the fact that the said intervenors claim the same

benefit  as  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.

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.  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.  

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 by civil  pension rules, whereas in respect of

3  for short, ‘APS’

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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  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.   

5) The relevant extracts of the different Army Instructions issued from

time to time read as under:

“Army Instructions Nos. 107 of 1953  4

1.  Temporary Commissions of a period of one year and for so 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.

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

4  For short “Army Instructions 1953”

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10.  Advance of Pay:-  As admissible under the rules of the P and T Department.

Annexure to Army Instructions No. 107 of 1953

1.  xx xx xx

2.  Rank, seniority and Promotion:-

(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.

(b)  Officers will be governed by the Acting Promotion  Rules in 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:-

(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  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 1959  5

1.  In supersession of the orders contained in A.I. 107/53, insofar  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)

5  For short “Army Instructions 1959”

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of the 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 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 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  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.

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 be ranked as follows:

Class II Officers with less than 2 years  gazette service

2nd

Lieutenant Class II/Class I officers with over 2 years but not over 4 years gazetted service

Lieutenant

Class II officers with over 5 years but not over 8 years gazetted service and class I officers  with over 3 years  but  not  over  5 years gazetted service

Captain

Class I officers with over 5 years but not over 12 years gazetted service

Major

Class I (Senior scale) officers with over 12 years gazetted service

Lieutenant Colonel

xx xx xx

The Director General, Post and Telegraphs, may, however,  

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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 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

(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 in Army rank to draw either military pay and allowances  or  civil  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%

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 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

(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 officer dies without making

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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 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 –

(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.

Army Instructions No. 29 of 1985  6

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.

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 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  –  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

6  For short “Army Instructions 1985”

7

IPS Group ‘A’ Officers – Junior Scale - Capt IPS Group ‘A’ Officers – Senior Scale - Major IPS Group ‘A’ Officers with over ten years - Lt. Col. Service or Director Postal Services Director Postal Services drawing base pay of

- Col. Rs.1800/-  or more

Postmaster General Level II - Brig Postmaster General Level I - Major Gen

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 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:

An officer below the grade of Director Postal Services

- 20%

An officer of the grade of 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 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.

4.  xx xx xx

5.  xx xx xx

6.  Pension

(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.

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7.  xx xx xx

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 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 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:-

(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.   

(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.  

(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.”

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

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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 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 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 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 7th November,

2015  w.e.f.  1st July,  2014  is  a  beneficial  provision  for  the  ‘Ex-

servicemen’.  Since the respondents were holding Army rank and

were entitled to the benefits of medical and other benefits at par

with 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

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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  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 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  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:

“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

7  for short, ‘1979 Rules’

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rates of pension of current and past pensioners at periodic intervals.”

10) Subsequently, another letter was issued by the Ministry of Defence,

Department  of  Ex-Servicemen  Welfare  on  3rd 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 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 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.

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 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 Department of Posts for Commission which is

for a period of one year and as long services are required. Thus,

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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 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.

 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 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

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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.

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 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 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

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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.  

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 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.   

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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 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.

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  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 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

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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.   

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  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.

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 7th November 2015 only. Therefore,

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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  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.  

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  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

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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 3rd 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  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  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

8  (1998) 5 SCC 454

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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  Telegraphs  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 Telegraphs 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

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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 not sustainable in law and hence set aside.  The appeal

is allowed.   

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; NOVEMBER 05, 2019.

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