Union Of India & Ors. vs Lt. Col. Om Dutt Sharma (RETD.) Dead Through Lrs & Ors.

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

VERSUS

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

JUDGMENT

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’

1 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 Service 3 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 14 th 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’

2 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 19534

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”

3

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 19595

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”

4 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 2nd 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 officers with over 3 years but not over 5 years 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 years gazetted service Colonel

xx xx xx

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

5 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

6 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 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.

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 - Col. Director Postal Services drawing base pay Rs.1800/- or of 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 - 20% Services 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.

8

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

9 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 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

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

10 Central Civil Services and Posts) Rules, 1979 7. 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 7 th 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 3 rd 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’

11 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 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 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,

12 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

13 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

14 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.

15

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

16 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 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

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,

17 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 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 3 rd

18 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 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

19 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

20 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.

21