Members of the Armed Forces are a distinct and distinguishable class

Sarthak Khandelwal | Kirit P. Mehta School Of Law, NMIMS University, Mumbai | 20th January 2020

Union of India & Ors. V. Brig. Balbir Singh (Retd.) Civil Appeal No. 337 of 2020

Facts of Case:

The Respondent was commissioned in the Army on 16.12.1978 and he was allotted to the Corps of Engineers in 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 the matter 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 matter was then 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 matter 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. 

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 India , Bhagwan Dass and Others v. State of Haryana and Others and Jaspal & Others v. State of Haryana and Others , 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.

Then the matter went to supreme court court said that the contention of the Appellants is that the MES is governed by the provisions of the Military Engineer Services (Army Personnel) Regulations, 1989, 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 Military Engineer Services 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.

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. And 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 | P a g e 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. 

HELD:

In Confederation of Ex. Servicemen Associations (supra) and Union of India v. Capt. Gurdev Singh 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.

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 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. The judgment of the Armed Forces Tribunal is set aside and the appeal is allowed.