caselaws.org
Supreme Court of India
Union Of India vs Brig.Balbir Singh (Retd.) on 16 January, 2020Author: 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
1 | Page
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
2 | Page
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
3 | Page
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
4 | Page
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
5 | Page
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.
6 | Page
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
7 | Page
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
8 | Page
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.
9 | Page
Comments