Supreme Court Denies One Rank One Pension to Army Postal Service Deputationists: Union of India vs. Lt. Col. Om Dutt Sharma (2019)

Date of the Judgment: November 5, 2019

Citation: 2019 INSC 1229

Judges: L. Nageswara Rao, J., Hemant Gupta, J.

Can employees of the Department of Posts, who are temporarily commissioned in the Army Postal Service (APS), claim the benefits of ‘One Rank One Pension’ (OROP) like regular army personnel? The Supreme Court of India addressed this question in a recent judgment, clarifying the pension rules applicable to such deputationists. The core issue revolved around whether these individuals, despite holding army ranks, were fundamentally civil employees entitled to civil pension rules or whether their temporary commission entitled them to military pension benefits. The judgment was delivered by a two-judge bench comprising Justices L. Nageswara Rao and Hemant Gupta, with the opinion authored by Justice Hemant Gupta.

Case Background

The case involves a dispute over the applicability of the One Rank One Pension (OROP) scheme to personnel of the Army Postal Service (APS) who were initially employees of the Department of Posts. These individuals were deputed to the APS and granted temporary commissions in the army. The lead respondent, Lt. Col. Om Dutt Sharma, was taken on deputation in 1962 and relinquished his temporary commission on December 31, 1984, retiring on May 14, 1985, after returning to the Department of Posts. Other respondents, who were intervenors in the case, had also joined the APS on deputation as Junior Commissioned Officers (JCOs) or Warrant Officers (WOs) and retired from the APS without being repatriated to their parent department. They all claimed the benefit of OROP, arguing that their service in the APS entitled them to it.

Timeline:

Course of Proceedings

The Armed Forces Tribunal, Regional Bench, Jabalpur, had allowed the original application filed by Lt. Col. Om Dutt Sharma, holding that he was entitled to the benefit of OROP. The Union of India then appealed this decision to the Supreme Court. The Supreme Court admitted the appeal and, recognizing the wide implications of the issue, heard the matter on merits, especially considering the large number of Army Postal Service personnel involved.

Legal Framework

The Supreme Court considered the following Army Instructions:

• Army Instructions No. 107 of 1953: This instruction dealt with the grant of temporary commissions in the Army Postal Service (APS) and the Regular Army. It specified that JCOs and WOs of the Department of Posts who had passed certain examinations were eligible for temporary commissions. It also stated that officers could elect to be governed by either military or civil rules for disability and family pensions.
• Army Instructions No. 295 of 1959: This instruction superseded the 1953 instructions regarding the grant of commissions to gazetted officers of the Department of Posts. It stated that gazetted officers of the Department of Posts were eligible for temporary commissions. It also provided an option to officers to choose between military or civil pay, but for service pension, officers were to be governed by civil rules.

  “For service pension, officers will be governed by civil rules.”

• Army Instructions No. 29 of 1985: This instruction superseded the previous instructions and laid down the terms and conditions for temporary commissions in the APS. It stated that officers of the Department of Posts could choose between military or civil pay, but for service pension, they would be governed by civil rules. It also specified that for disability and family pension, Army Instruction No. 64 of 1976 would be applicable.

  “For service pension, officers will be governed by civil rules.”

The Court also considered the following:

• Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979: These rules define “ex-servicemen” to include personnel retired from the APS.
• Ministry of Defence Circular dated November 7, 2015: This circular implemented OROP for ex-servicemen with effect from July 1, 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…”

• Ministry of Defence Circular dated February 3, 2016: This circular extended OROP benefits to all pensioners in the rank of Commissioned Officers, honorary Commissioned Officers, etc.

  “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.”

Arguments

Arguments by the Appellants (Union of India):

• The appellants argued that for service pension, officers of the APS on deputation from the Department of Posts are governed by civil pension rules.
• They contended that the age of superannuation for a Lt. Colonel in the Army is 54 years, while civil employees of the Union continue until 58 or 60 years. The APS deputationists serve until the civil superannuation age.
• The appellants stated that the personnel of the Department of Posts are not granted pensions by the Ministry of Defence but by the Department of Posts.
• They emphasized that the Army Instructions clearly specify that service pension for these officers is governed by civil rules.

Arguments by the Respondents (Lt. Col. Om Dutt Sharma and others):

• The respondents argued that they were not Gazetted Officers of the Department of Posts to whom Army Instructions 1959 were applicable, relying instead on Army Instructions 1953 and 1985.
• They contended that their pension was calculated on the basis of the last pay drawn, which included Military Pay Scale and Military Service Pay, unlike civil posts in the Postal Department.
• The respondents argued that the OROP scheme was a beneficial provision for ‘Ex-servicemen,’ and since they held army ranks and received medical benefits at par with army officers, they were entitled to OROP.
• They cited the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, which include personnel retired from APS as ex-servicemen.
• The respondents argued that they were conferred army ranks, which they carry even after retirement, and that a civilian in the Department of Posts would not hold such ranks.
• They further argued that the Circular dated February 3, 2016, made OROP applicable to all Commissioned Officers, including honorary Commissioned Officers, which would include temporary commissioned officers like themselves.

Submissions Table:

Innovativeness of the argument: The respondents innovatively argued that their military ranks and pay scales should qualify them for OROP, despite their civil service origins. They also relied on the broad definition of ex-servicemen in the 1979 Rules to support their claim.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether the personnel of the Army Postal Service (APS) on deputation from the Department of Posts are entitled to the benefit of One Rank One Pension (OROP).

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• Major M.R. Penghal v. Union of India [(1998) 5 SCC 454] – Supreme Court of India: The Court examined a case where a clerk of the Department of Posts, promoted as Major in the APS, was considered a civilian on deputation, not a full-fledged army personnel. The Court relied on this case to emphasize that the respondents, despite holding army ranks, were fundamentally civil employees on deputation.

Legal Provisions:

• Army Instructions No. 107 of 1953: This instruction dealt with the grant of temporary commissions in the Army Postal Service (APS) and the Regular Army. It specified that JCOs and WOs of the Department of Posts who had passed certain examinations were eligible for temporary commissions. It also stated that officers could elect to be governed by either military or civil rules for disability and family pensions.
• Army Instructions No. 295 of 1959: This instruction superseded the 1953 instructions regarding the grant of commissions to gazetted officers of the Department of Posts. It stated that gazetted officers of the Department of Posts were eligible for temporary commissions. It also provided an option to officers to choose between military or civil pay, but for service pension, officers were to be governed by civil rules.
• Army Instructions No. 29 of 1985: This instruction superseded the previous instructions and laid down the terms and conditions for temporary commissions in the APS. It stated that officers of the Department of Posts could choose between military or civil pay, but for service pension, they would be governed by civil rules. It also specified that for disability and family pension, Army Instruction No. 64 of 1976 would be applicable.
• Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979: These rules define “ex-servicemen” to include personnel retired from the APS.
• Ministry of Defence Circular dated November 7, 2015: This circular implemented OROP for ex-servicemen with effect from July 1, 2014.
• Ministry of Defence Circular dated February 3, 2016: This circular extended OROP benefits to all pensioners in the rank of Commissioned Officers, honorary Commissioned Officers, etc.

Table of Authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Major M.R. Penghal v. Union of India [(1998) 5 SCC 454]:* The Court followed this judgment to emphasize that the respondents, despite holding army ranks, were fundamentally civil employees on deputation.
• Army Instructions No. 107 of 1953:* The Court considered this instruction to understand the initial terms of deputation and commission.
• Army Instructions No. 295 of 1959:* The Court considered this instruction to understand the terms of deputation and commission for Gazetted officers and the option for civil or military pay.
• Army Instructions No. 29 of 1985:* The Court considered this instruction to understand the terms of deputation and commission and the option for civil or military pay.
• Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979:* The Court considered the definition of “ex-servicemen” but clarified that it was for recruitment purposes, not for pension benefits.
• Ministry of Defence Circular dated November 7, 2015:* The Court considered this circular for the implementation of OROP for ex-servicemen but clarified that it was not applicable to civil pensioners.
• Ministry of Defence Circular dated February 3, 2016:* The Court considered this circular for the extension of OROP benefits to Commissioned Officers but clarified that it was applicable to defence pensioners, not civil pensioners.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the respondents, despite holding temporary commissions in the Army Postal Service (APS), were fundamentally civil employees of the Department of Posts on deputation. The Court emphasized that their service pension was governed by civil rules, as explicitly stated in the Army Instructions. The Court also noted that the respondents continued to hold a lien on their civil posts, and their retirement age was consistent with civil service rules, not military service rules. The Court rejected the argument that higher pay and military ranks entitled them to OROP, holding that their ‘birth mark’ remained with the Department of Posts.

Sentiment Analysis of Reasons:

Fact:Law Ratio:

The Court’s reasoning was heavily based on the legal interpretation of the Army Instructions and the policy decisions related to OROP. While the factual aspects of the respondents’ service in the APS were considered, the legal framework and the specific terms of their deputation and pension rules were the dominant factors in the Court’s decision.

Logical Reasoning:

The Court considered alternative interpretations, such as the respondents’ argument that their military ranks and pay scales should qualify them for OROP. However, these interpretations were rejected because they contradicted the explicit provisions in the Army Instructions and the OROP policy decisions. The Court also considered that the Ex-servicemen Rules were for recruitment, not pension benefits.

The decision was reached by concluding that the respondents were not pensioners of the Armed Forces as contemplated in the OROP circulars, and their service pension was governed by civil rules. The Court emphasized that their temporary commission and army ranks did not change their fundamental status as civil employees on deputation.

The Court’s reasoning was based on the following points:

• The Army Instructions clearly state that service pension for officers of APS on deputation is governed by civil rules.
• The respondents held a lien on their civil posts in the Department of Posts, indicating that their deputation was temporary.
• The respondents retired at the age of superannuation applicable to civil employees, not the age of retirement for army officers of the same rank.
• The OROP policy was specifically for pensioners of the Armed Forces, and the respondents were not drawing pensions from the Defence Ministry.

“For service pension, officers will be governed by civil rules.”

“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.”

“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.”

There were no dissenting opinions in this judgment. The two-judge bench unanimously agreed on the decision and the reasoning.

Key Takeaways

• Personnel of the Army Postal Service (APS) on deputation from the Department of Posts are not entitled to the benefit of One Rank One Pension (OROP).
• Service pension for these deputationists is governed by civil rules, not military rules.
• Holding a temporary commission and army rank in the APS does not change their status as civil employees on deputation.
• The definition of “ex-servicemen” in the 1979 Rules is for recruitment purposes, not for pension benefits.
• The OROP policy is specifically for pensioners of the Armed Forces, not civil pensioners.

This judgment clarifies the pension rules applicable to APS personnel on deputation, ensuring that they are treated as civil pensioners. It may have a significant impact on similar cases involving deputationists from other civil departments to the armed forces. The decision sets a precedent that the nature of employment at the time of retirement is the determining factor for pension benefits, not the temporary assignments or ranks held during service.

Directions

There were no specific directions given by the Supreme Court in this judgment. The Court simply set aside the order of the Armed Forces Tribunal and held that the respondents were not entitled to the benefit of OROP.

Development of Law

The ratio decidendi of this case is that personnel of the Army Postal Service (APS) on deputation from the Department of Posts are not entitled to the benefit of One Rank One Pension (OROP) because their service pension is governed by civil rules, they hold a lien in the Department of Posts, and they are not considered pensioners of the Armed Forces. This judgment reinforces the principle that the nature of employment at the time of retirement is the determining factor for pension benefits, not the temporary assignments or ranks held during service. There was no change in the previous position of law but it further clarified the position of law.

Conclusion

The Supreme Court’s judgment in Union of India & Ors. vs. Lt. Col. Om Dutt Sharma (Retd.) Dead Through Lrs & Ors. clarifies that personnel of the Army Postal Service (APS) on deputation from the Department of Posts are not entitled to the benefit of One Rank One Pension (OROP). The Court emphasized that their service pension is governed by civil rules, they hold a lien in the Department of Posts, and they are not pensioners of the Armed Forces. Thisjudgment reinforces the principle that the nature of employment at the time of retirement is the determining factor for pension benefits, not the temporary assignments or ranks held during service. The Court set aside the order of the Armed Forces Tribunal, denying OROP benefits to APS deputationists and upholding the civil pension rules applicable to them.