Union Of India vs Brig.Balbir Singh (Retd.) on 16 January, 2020


Supreme Court of India

Union Of India vs Brig.Balbir Singh (Retd.) on 16 January, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta

                                                  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)



                      JUDGMENT

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 Others 2 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 India 4, 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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