Gujarat High Court
Lt.Colonel Ram Kumar Gupta vs Union Of India & 4 on 7 July, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/18790/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18790 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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LT.COLONEL RAM KUMAR GUPTA....Petitioner(s)
Versus
UNION OF INDIA & 4....Respondent(s)
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Appearance:
MR SIRAJ R GORI, ADVOCATE for the Petitioner(s) No. 1
MR PRANAV G DESAI, ADVOCATE for the Respondent(s) No. 5
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 1 - 2
NOTICE SERVED for the Respondent(s) No. 1 , 3 - 5
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 07/07/2017
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C/SCA/18790/2016 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This petition under Article 226 of the Constitution of India challenges the order/letter dated 3.6.2016 as well as the action on the part of authorities for affecting recovery of the amount from the fixed deposit joint account of the petitioner and his wife, by which, an amount of Rs.17,57,275/- is to be recovered if not paid within 7 days from the accounts of the petitioner towards over paid amount of pension to the petitioner. Of course, the above communication is addressed by Assistant General Manager of State Bank of India but it has genesis in the decision taken by respondent Nos. 1, 2 and 3 and also by Reserves Bank of India which informed all the agencies banks to recover the excess pension paid to pensioners by adjusting such amount against the amount standing to the credit of the account of the pensioner.
2. Certain facts about service rendered by the petitioner, who was initially appointed as Emergency Commission Officer (ECO) with Indian Army and thereafter relieved from service of Armed Forces in the year 1967 and then joining service with National Cadet Corps (NCC) as Whole Time Officer (WTO) in the year 1968 are not in dispute. A reference is to be made to meritorious service rendered by the petitioner who is recipient of various accolades during his service as Emergency Commissioned Officer (ECO) and thereafter as WTO with NCC. As per policy decision taken by Union of India to relieve the services of Emergency Commissioned Officer from the active services of Indian Army to accommodate them (the Page 2 of 33 HC-NIC Page 2 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT Released Emergency Commissioned Officer and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967 (in short ECO Rules, 1967) were framed the above rules were later on replaced by Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971. After rendering the service as WTO with NCC the petitioner attained the age of superannuation and accordingly was relieved from the services w.e.f. 31.1.1995. That certain emoluments which were given to the petitioner while in service with NCC including his promotion to the rank of Major and given a selection grade of Lt. Colonel etc. as such are not in dispute.
3. However, after issuances of notice by this Court vide order dated 23.11.2016 affidavit-in-reply is filed a preliminary objection is taken with regard to the jurisdiction of this Court to hear the writ petition in exercise of powers under Article 226 of the Constitution of India and it is submitted that after tenure of the petitioner as Ex-Emergency Commissioned was over in the Army in September, 1967, after his release from the active service of the Army he applied for appointment as an officer in National Cadet Corps and was appointed as Whole Time Officer. It is emphatically submitted that officers of NCC are not members of Armed Forces of Union of India and in the facts of this case even matters pertaining to pension of the petitioner are governed by Central Civil Services (Pension) Rules, 1972 though entitled to receive the pension so paid to defence civilian. By referring to Section 2 (a) read with Sections 14(1) (b) of Administrative Page 3 of 33 HC-NIC Page 3 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT Tribunals Act, 1985 (Act 1985) and Sections 2 and 3 of the Armed Act 1950 as well as Section 9 pertaining to appointment of officers of NCC Act, 1948 read with Rules, 16, 35, 36 of NCC Rules, 1948 framed in exercise of powers conferred of Section 13 of NCC Act, 1948, it is submitted that the petitioner has to approach Central Administrative Tribunal for the reliefs prayed in this writ petition.
4. Ms. Trusha Patel, learned standing counsel appearing for the respondent submitted that grievances with regard to subject writ petition have to be ventilated before the Court at first instance namely Central Administrative Tribunal in view of decisions of the Apex Court in the case of L. Chandra Kumar v. The Union of India & Ors. reported in 1997(1) GLH 692. According to her, other decision namely Union of India vs. Lt. Col. Komal Charan reported in AIR 1992 SC 1479, in which it was held by the Apex Court that Whole Time NCC Officers are appointed as per the provisions of NCC Act and Rules and, therefore, they would be governed by contract and fundamental rules are not applicable. Later on, the above decision and law laid down therein particularly in para 7 was relied on by the Apex Court in another decision in the case of Union of India vs. Brahma Dutt Tripathi, whereby, Rule 16 of NCC Rules was considered which along with Section 9 of the Act confers powers with regard to appointment of officers in NCC in the context of nature of employment and duties to be discharged by NCC officers and that such officers of NCC are not members of Armed Forces. Reliance is placed on the decision of learned Page 4 of 33 HC-NIC Page 4 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT Single Judge of High Court of Allahabad reported in AIR 1965 Allahabad 236 in which Sections 29 and 40 of Defence of India Act with provisions of Arms Act and NCC Act were considered in the context of requisition order passed by the authority directing an individual to hand over vacant possession of residential house.
5. Apart from the above, relevant rules, office memorandum, circulars and instructions particularly dated 23.5.1980, 26.5.2009 and 27.1.2010 issued with regard to service conditions of officers of NCC and specifically no objection raised by petitioner about applicability of Civil Cervices Pension Rules governing fixation and revision of pension from time to time amounts accepting the very fact that the petitioner is not in active service of Armed Forces and belongs to the cadre of NCC Officers and would be covered by the provisions of Administrative Tribunals Act.
6. Barring the above, various orders passed either by Central Administrative Tribunal or some of the High Courts, in which, provisions of all three Acts namely Arms Act, NCC Act and the Administrative Tribunals Act are not considered much less discussed threadbare and therefore, we deem it just and proper not to refer to such orders at this stage for determining the preliminary objection raised by respondents.
7. As against above, learned advocate for the petitioner Mr.Siraj Gori, would contend that even as per decision relied on by learned standing counsel for Union of India Page 5 of 33 HC-NIC Page 5 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT and NCC in the case of Union of India vs. Lt. Col. Komal Charan (supra) in para 6 it is held that NCC Officers Employee of Whole Time basis are paid exclusively by the Central government from the defence, service estimates and affidavit filed by the officer not below the rank of Under Secretary of Union of India in that case clearly disclosed that they were not NCC civilian officer and pay of NCC officers was not debitable to civil estimates so required by the fundamental Rule 2 and, therefore, such officer are not to be treated as civilians and when they are not civil servants also the Central Administrative Tribunal has no jurisdiction. Mr. Siraj Gori, learned advocate for the petitioner has taken this Court to certain orders including the order dated 23.5.1980 pertaining to terms and conditions of service of NCC Whole Time Officers which also refer to grant of NCC Permanent Commissions as One Time Measure, limited to existing officers only. That para 7 of the above order is about Duties and Powers of Command which state that the duties assigned to NCC Officers will be the same as for Armed Forces/Officers posted in NCC Units/Forums and this officers will exercise command and control as provided for/under NCC Act and Rules as amended from time to time and this officers will be junior to the regular service officers of the same rank and will serve under them, when so posted but senior to all part time officers of the same rank irrespective of the length of service. Para 8 of the above order/instruction is for Pension, Family Pension, Death-cum-Retirement Gratuity and other terminal benefits will be governed by Central Civil Services (Pension) Rules, 1972 as amended from time to time. It is further submitted that affidavit-in- Page 6 of 33 HC-NIC Page 6 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT reply on behalf of respondent Nos. 1 to 4 by Shri Ruchir K.Vora, no designation of the officer affirming the affidavit is mentioned and is not competent to file affidavit as he is working under respondent NO.4. The above affidavit takes different stand then the affidavit earlier filed by Under Secretary, Ministry of Defence in the SLP (Civil) 11385-86 of 1991 before the Apex Court, in which it was categorically stated that the cadre of NCC Officers was a specialized cadre and that they were neither civilian nor fully armed forces service and were getting rank pay similarly of regular armed officers. According to Mr.Gori, learned advocate for the petitioner orders passed by this Court in Special Civil Application NO. 12131 of 2016 on 9.8.2016, in which, almost identical facts and challenge were same came to be allowed by treating ex-pensioners a Whole Time NCC Officer as in service of armed forces a review petition filed being MCA No. 3119 of 2016 also came to be rejected on 17.10.2016 by respondent Union of India. In the review application specific contention was raised by availability of jurisdiction of Central Administrative Tribunal being the First Court to adjudicate dispute arising out of service conditions of Central Government employees and other such employees came to be negatived. In Special Leave Petition preferred against the orders as above came to be disposed of on 13.2.2017 as per order in SLP No. 218 of 2017.
8. Mr.Gori, learned advocate for the petitioner places reliance on order dated 12.8.2016 passed in OA No.063/00130/2015 by CAT Chandigarh Bench, in which, respondent Union of India raised preliminary objection Page 7 of 33 HC-NIC Page 7 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT with regard to jurisdiction of the Tribunal contending that retired Lt. Col. Of NCC was a member of armed forces and not entitled to invoke the jurisdiction of the Tribunal. Upon consideration of such preliminary objection qua the maintainability, order was passed on 6/12.8.2016. Thus, different stand is taken before different forums about status of the officer serving with NCC. It is further submitted that the Administrative Tribunal shall have not jurisdiction by taking recourse either to Section 2 or Section 14 or both of the Administrative Tribunal Act. The petitioner cannot be treated as a civilian as they are paid from defence service estimates. That CAT will have no jurisdiction over the subject matter in absence of notification under section 14(2) of the Administrative Tribunal Act, 1985. Further, reliance was placed on circular No.520 dated 24.12.2013 and as per the Clause I
(ii), the above circular clearly contemplates that officer like petitioner is required to be treated at par with Regular Commissioned Officer in the grant of emoluments and other pay and allowances.
9. In further submissions to counter submissions of learned advocate for the petitioner, Ms.Trusha Patel, learned standing counsel referred to orders dated 17.5.2016 passed by Central Administrative Tribunal, Ernakulam Bench reported in 2016 SCC CAT 2092 and submitted that Special Arms Instructions has excluded NCC Officers from the preview of such instructions. That instructions issued after 6th Pay Commission for giving benefit of higher pay to Lt. Colonel and equivalent rank is not applicable to NCC Officer. Unless, there is a specific Page 8 of 33 HC-NIC Page 8 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT mention to such instructions and in absence there of, it cannot be applied to the NCC Officers as well. Likewise, orders passed by CAT Chandigarh Bench on 6/12.8.2016 was challenged in a writ petition before the High Court of Himmachal Pradesh and at the time of hearing it was submitted by learned Asst. Solicitor General appearing for Union of India that Central Administrative Tribunal is having the jurisdiction to hear the petition and the order was passed on 14.12.2016 setting aside the impugned order of CAT Chandigarh. With regard to order passed by Division Bench of this Court in SCA No. 112131 of 2016 and also in MCA for Review No. 3119 of 2016, it is submitted that in a challenge to both the orders as above, the Apex Court while disposing of the SLP No. 218 of 2017 by an order dated 13.2.2017, the Apex Court though declined to interfere with direction of Division Bench of this Court qua already paid pension to the recipient, a widow of Ex-NCC officer and held that the amount of pension already paid, would not be recovered but at the same time direction was issued that for future, pension that will have to be paid to the respondent as per rules applicable and further that order was passed in the facts of the case. Besides, before the Division Bench of this Court, in the above case, neither of the provisions of Army Act, The Administrative Tribunal Act, the NCC Act and Rules either argued or fell into consideration and, therefore, the above judgement can be said to be laying down no law and to be considered accordingly.
10. Therefore, by rejecting the writ petition, the petitioner be relegated to the appropriate forum namely Page 9 of 33 HC-NIC Page 9 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT the First Court available under the law before the Central Administrative Tribunal, Ahmedabad Bench for redressal of his grievances.
Sections 2 (a) and 14 (a) & (b) of the Administrative Tribunals Act, 1985 reads as under:
"2. Act not to apply to certain persons.- The provisions of this Act shall not apply to-
(a) any member of the naval, military or air forces or of any other armed forces of the Union;
14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court [***] in relation to-
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-
Page 10 of 33HC-NIC Page 10 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT India Service or a person referred to in clause
(c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All- India Service or a person referred to in clause
(c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owner or controlled by the Government;"
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-
clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
The Central Civil Service (Pension) Rules, 1972 Section 2 reads as under:
2.Application:- Save as otherwise provided in these rules, [these rules shall apply to Government servant appointed on or before the Page 11 of 33 HC-NIC Page 11 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT 31st day of December, 2003] including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to,-
(a) railways servants;
(b) person in casual and daily rated employment;
(c) persons paid from contingencies;
(d) persons entitled to the benefit of a Contributory Provident Fund;
(e) members of the All India Services;
(f) persons locally recruited for service in diplomatic, Consular or other Indian establishments in foreign countries;
(g) persons employed on contract except when the contract provides otherwise; and
(h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force."
Sections 2, 3 (1) and Clause 21 of The Army Act, 1950 reads as under:
"2. Persons subject to this Act.-(1) The following persons shall be subject to this Act wherever they may be, namely:-
(a) officers, junior commissioned officers and warrant officers of the regular Army;Page 12 of 33
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(b) persons enrolled under this Act;
(c) persons belonging to the Indian Reserve Forces;
(d) persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test;
(e) officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub-section (1) of Section 9 of the Territorial Army Act, 1948 (56 of 1948);
(f) persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;
(g) officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;
[***]
(i) persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army.
Page 13 of 33HC-NIC Page 13 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT (2) Every person subject to this Act under clauses (a) to [(g)] of sub-section (1) shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service.
3. Definitions.-In this Act, unless the context otherwise requires-
(i) "active service", as applied to a person subject to this Act, means the time during which such person-
(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or
(c) is attached to or forms part of a force which is in military occupation of a foreign country;
(ii) ***
(iii) ***
(iv) ***
(v) ***
(vi) ***
(vii) ***
(viii) ***
(ix) ***
(x) *** Page 14 of 33 HC-NIC Page 14 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT
(xi) "the Forces" means the regular Army, Navy and Air Force or any part of any one or more of them;
(xii) ***
(xiii) ***
(xiv) ***
(xv)***
(xvi) ***
(xvii) ***
(xviii) ***
(xix) ***
(xx)***
(xxi) "regular Army" means officers, junior
commissioned officers, warrant officers, non- commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service;
(xxii) ***
(xxiii) ***
(xxiv) ***
(xxv) ***
The National Cadet Corps Act, 1948:
(ACT 31 of 1948)
Objects and Reasons
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"It is considered that the present University Officers training Corps should be overhauled but at the same time it is felt that full development of character and the capacity for leadership will be possible only when the requisite training is given to boys and girls while they are young and impressionable.
The problem is essentially educational which can be solved adequately only if the educational authorities take an active interest in this aspect of training and make it an integral part of school education. A good beginning to achieve this end can be made by the introduction of cadet training in schools and universities. With that object in view, the present Bill has been drafted.
These units will be officered by members of the teaching staff, but regular training will be imparted wherever necessary by trained regular officers.
Provision is also included in the Bill for the raising of additional units as the exigencies of circumstances may require. The National Cadet Corps Committee recommended that open units should be constituted to which recruitment will be made from amongst boys earning a livelihood and the object of Cl.7 is to provide for such units."
Amending Act 50 of 1975:- Section 12 of the National Cadet Corps Act, 1948 empowers the Central Government to appoint a Central Advisory Committee to advise it on all Page 16 of 33 HC-NIC Page 16 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT matters of policy connected with the constitution and administration of National Cadet Corps. Under clause (i) of sub-section (1) of this section, two of the members of the Committee are to be elected by the House of the People and one by the Council of States annually. The Committee on Subordinate Legislation (Second Lok Sabha) recommended in their Third Report that this provision relating to election of Members of Parliament should be suitably amended to provide that the representatives of Parliament on the Central Advisory Committee would cease to be members thereof, if they cease to be Members of the House by which they are elected. This recommendation was accepted by Government and has been followed in actual practice all along. However, as no other amendments were considered necessary, no action was taken to amend the Act. The Lok Sabha Committee on Subordinate Legislation went into the matter again recently and an assurance was given to the committee in February, 1974 that legislation for implementing the recommendation of the Committee would be undertaken in the Monsoon Section. Hence this Bill.
9. Appointment of officers: - The Central Government may provide for the appointment of officers in or for any unit of the Corps either from amongst members of the staff of any university or school or otherwise and may prescribe the duties, powers and functions of such officers.
10. Duties of persons subject to this Act.- No person subject to this Act shall by virtue of being a member of the Corps be liable for active military service, but subject Page 17 of 33 HC-NIC Page 17 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT thereto any such person shall be liable to perform such duties and discharge such obligations as may be prescribed.
13. Power to make rules.- (1) The Central Government may make rules to carry out the objects of this Act. (2) In particular and without prejudice to the generality of the foregoing power such rules may-
(a) prescribe the conditions subject to which universities or schools shall be allowed to raise units under this Act.;
(b) prescribe the persons or class of persons who may be eligible for enrolment under section 7;
(c) prescribe the manner in which, the period for which and the conditions subject to which any person or class of persons may be enrolled under this Act;
(d) provide for the medical examination of persons offering themselves for enrolment under this Act;
(e) prescribe preliminary and periodical military training for any person or class of persons subject to this Act;
(f) prescribe the military or other obligations to which members of the Corps shall be liable when undergoing military training and provide generally for the maintenance of discipline amongst members of the Corps;
In exercise of the powers conferred under Section 13 of the NCC Act, 1948 following rules are made:
Part IV APPOINTMENT OF OFFICERS Rule 16 refers to Qualifications for appointment Page 18 of 33 HC-NIC Page 18 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT PART V POSTING AND TRANSFER
23.Posting:-(1) An officer of the Senior Division of the National Cadet Corps shall be posted to a unit of that Division by the Ministry of Defence, Government of India.
(2) An officer of the Junior Division of the National Cadet Corps shall be posted to a unit of that Division by the State Government.
24. Transfer:-(1) The transfer to another unit of the Senior Division of an officer who has been posted to a unit of that Division shall be authorized by the Ministry of Defence, Government of India.
(2) If the proposed transfer is to a unit of the Senior Division in another State, the Ministry of Defence, Government of Indian, Shall consult the State Government in whose jurisdiction the unit is located, and obtain their concurrence to the transfer.
PART VI OFFICERS-DUTIES, POWERS AND PROMOTIONS Rule 25 refers to Duties and Rule 26 refers to Powers PART IX PAY AND ALLOWANCES
35.Pay:-(1) Every officer commissioned in the National Cadet Corps and posted to a unit of the Senior Division shall be entitled:-
(a) for every day, not exceeding 15 days in all, actually spent in the annual training camp;Page 19 of 33
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(b) for periods of actual attendance at the Combined Cadre and Social Service Camps and at authorized courses of instruction in Armed Forces Schools, and with Armed Forces Units, including intervening Sundays and Holidays, to such pay as is specified in Schedule II:
Provided that NCC officers attending the Officers Special Course at the NCC Academy, Purandhar, shall not be entitled to pay of rank, but shall be entitled to only their normal pay as teachers:
(c) to an outfit allowance of Rs.400/- on being first commissioned;
(cc) to an outfit allowance Rs.400/- on transfer from one wing of the National Cadet Corps to another wing of the National Cadet Corps viz Army/Naval/Air wings, as the case may be. An officer shall be entitled to tis allowance only once in service;
(d) to an outfit allowance of Rs.45/- for the maintenance of his uniform at the end of every year of service in the National Cadet Corps;
(e) to an honorarium of Rs.75 per month throughout a year.
(2) Every officer commissioned in the National Cadet Corps, and posted to a unit of the Junior Division shall be entitled for period of actual attendance at the Combined Cadre and Social Service Camp, and at authorized courses of instruction in Armed Forces Schools and with Armed Forces Units including intervening Sundays and holidays, to such pay as is specified in Schedule II. (3) Every officer commissioned in the National Cadet Corps and posted to a unit of the Junior Division shall be Page 20 of 33 HC-NIC Page 20 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT entitled to receive at the end of the training year an honorarium as specified in Schedule II on condition that he has attended the annual training camp of his unit in such a training year, or has attended a course at the training centre during the actual period of the training camp. (4) A cadet appointed a unit or part thereof the Senior or Junior Division shall not be entitled to pay. (5) Every officer commissioned in the National Cadet Corps and posted to a unit of the Junior Division (Army, Navy and Air Wings) will be paid an honorarium of Rs.50 per month throughout the year.
Explanation:-The payment of honorarium under clause (e) of sub-rule (1) and under sub-Rule (5) shall be in addition to the pay admissible to the officer concerned.
36. Allowances. -(1) Every officer and cadet of the Senior and Junior Division posted or appointed to a unit or part there of shall be entitled to such allowances as are specified in schedule II.
(2) Every person selected for appointment as an officer and proceeding to an Armed Forces unit for training as specified in sub-rule (3) of Rule 21, shall be entitled to such allowances as are specified in Schedule II.
PART X DISCIPLINE
37. Service obligations:-(1) An officer or cadet shall have no liability to render active service in any of the Armed Forces of the Union.
(2) Every officer and cadet shall, when undergoing Page 21 of 33 HC-NIC Page 21 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT training obey the orders and carry out the directions of any person who is placed in command over him, irrespective of whether that person is subject to any law relating to the Armed Forces or to the Act.
11. The above statutory provisions of the Administrative Tribunal Act, 1985, Army Act, 1950, NCC Act, 1948 and Rules made there under are to be considered in the backdrop of controversy involved in this petition with regard to the status of the petitioner, Lt. Col. who retired as Lt. Col.CO-4 Gujarat Girls Battalion NCC, Vallabhvidhyanagar on 31.1.1995. That original pension payment order, (PPO) provide basic pension as Rs.2813 p.m. as per 4th Central Pay Commission (CPC). It was revised to Rs.7350/- w.e.f. 1.1.1996 as per 5th CPC and on implementation of 6th CPC w.e.f. 1.1.2006 it was revised to Rs.26,265 p.m. The case of respondents is about erroneous payment of pension paid to the petitioner upon implementation of 6th CPC w.e.f. 1.1.2006 as Rs.26,265 p.m. which was only available to Lt. Col. Of Armed Commission Officer as per circular No.412 dated 26.5.2009 and not to Lt. Col. Of NCC. That basic pension of the petitioner was required to be fixed as Rs.16,611/- in terms of Government of India, Office Memorandum dated 1.9.2008 which was applicable to civil pensioners including civil defence personnel. That the petitioner, a Lt. Col. Of NCC was wrongly equated with Lt. Col. Of Armed Commission Officer and therefore, he was overpaid pension, for which, he was not eligible. Besides, in order to removal of doubts and to lay down clear and precise instructions Government of India vide letter dated 13th Page 22 of 33 HC-NIC Page 22 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT January, 2014 clarified that the NCC Whole Time Officers in the rank of Lt. Col. have been placed in pay band III (in the scale of Rs.15,600-Rs. 39,100) with corresponding grade pay of Rs.76000 for the purpose of pensionary benefits w.e.f. 1.1.2006. The above instructions were issued with approval of Ministry of Finance and Department of Expenditure and concurrence of Ministry of Defence and of Director General of NCC were informed accordingly.
12. Even after 7th CPC recommendations were made for Central Civil Government Pensioners, the petitioner was paid arrears of Rs.37436 on 30.8.2016 for the period from 1.1.2016 to 31.7.2016 and his revised basic pension was fixed as Rs.42,948 p.m. considering him as NCC Officer of PPO bearing 'C series' and it was accepted by the petitioner without any objection.
Therefore, overpayment of the pension according to respondents for which recovery is initiated and challenge in this regard, if any, will have to be raised before Central Administrative Tribunal.
13. Keeping in mind the above controversy and provisions of three statutes to which reference is made earlier we may also consider decisions relied on by learned advocate appearing for the parties in the case of L.Chandra Kumar v. The Union of India and Ors.P1997 (1) GLH 692], the constitution bench of the Apex Court while considering Article 323A and 323B of the Constitution of India held that clause 2(d) of Article 323 A Page 23 of 33 HC-NIC Page 23 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT and Clause 3(d) of Article 323 B of the Constitution of India to the extent that they exclude the jurisdiction of the High Courts and the Supreme Court under Article 226 and 227 and 32 of the Constitution, are unconstitutional and the jurisdiction conferred upon the High Courts under Article 226 and 227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of the Constitution. It was further held that all decisions of Tribunals created under Article 323A and 323B of the Constitution of India however, will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of areas on law for which they have been constituted.
14. In the case of Union of India vs. Lt. Col. Komal Charan [1992 (supp 3) SCC 186, the question before the Supreme Court was whether the officers appointed on Whole Time Basis in the National Cadet Corps are governed by the fundamental rules applicable to the civil servant serving the Union of India and accordingly entitled to continue in service until the age of 58 years or they retire under the terms and conditions of their service as contained in the Government order being letter dated 23.5.1980 and answering the question in paras 6 and 7 held as under:
"6. It appears from the Fundamental Rule No.2, quoted earlier, that the Fundamental Rules are applicable only to such government Page 24 of 33 HC-NIC Page 24 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT servant whose pay is debitable to Civil Estimates. It is the case of the appellants that the pay and allowances of the N.C.C. Whole time officers are not paid from Civil Estimates and they are paid, from defence services Estimates. Reliance was placed on behalf of the appellants before the Tribunal on the Explanatory Notes, Sub-Head B-National Cadet Corps, in the Defence services Estimates for the year 1989-90. The Explanatory Note do support the appellants' stand, but since the respondents raised certain controversy about the meaning and effect of the said Explanatory Note, we adjourned the case to enable the parties to file further affidavits dealing with this question. Accordingly affidavit was filed on behalf of the appellants giving full details in this regard and in clear and unambiguous terms stating that the N.C.C. Officers employed on whole-time basis are paid exclusively, by the Central Government from the Defence, Services Estimates. This affidavit has been sworn by an Under Secretary of the Union of India, who claims to have access to the official records and has given details dealing with the question and we do not have any reason to doubt the correctness of the statement. We, therefore, hold that the pay of the respondents is not debitable to the Civil Estimates, as required by Fundamental Rule 2 for the applicable of the Fundamental Rules, and the Page 25 of 33 HC-NIC Page 25 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT Fundamental Rules must, therefore, be held to be not attracted. The Tribunal was, thus, in error to hold on that basis that the respondents were entitled to remain in service up to the age of fifty-eight years.
7. In view of our conclusion above we do not feel it necessary to refer to the other provisions of the N.C.C. Act relied upon by Mr.Mukhoty, and we do not consider it either necessary or relevant to examine the question whether the Army Act applied to the respondents or not. In support of these appeals Mr. Additional Solicitor General has not placed any reliance on the Army Act and his contention has been that the provisions of the National Cadet Corps Act, 1948, the rules framed thereunder and the letter dated 23-5-80 in pursuance of which the respondents were granted permanent commission, settled the question. The Corps has been established under Section 3 of the N.C.C.Act, Section 9 of the Act authorities the Central Government to provide for the appointment of officers from amongst the members of the staff and university or school or otherwise. Section 13 of the Act authorises the Central Government to make rules to carry out the objects of the Act and without prejudice to the generality of this power to lay down the manner in which and the conditions subject to which a person or class of persons may be enrolled under the Act. Accordingly the Rules Page 26 of 33 HC-NIC Page 26 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT described as National Cadet Corps Rules, 1948 were framed. Proviso (iii) in Rule 16 vests the authority concerned with very wide power in this regard. Except for Fundamental Rule 56
(a) relied upon in the impugned judgment, it has not been suggested on behalf of the respondents that they are entitled to continue in service up to the age of fifty-eight years on the strength of any other provision. The Central Government has, therefore, full authority to appoint persons on such terms and conditions as it may choose to prescribe. The question of grant of permanent commission to N.C.C. Officers employed on whole-time basis was considered in all the relevant aspects and a decision was taken as mentioned in the aforementioned letter dated 23.5.80 and referred to in the letter of 24-5-80 sent under the signature of the Under Secretary to the Government of India to the Director General, N.C.C., New Delhi (Annexure-P-4). It was considered desirable that before a person was granted N.C. Permanent commission in terms of the above letter an opportunity should be given to him to consider the terms and conditions of the appointment and then indicate his choice by exercising his option in the form prescribed in Appendix B to the letter.
The relevant order in clear terms lays down the age of superannuation at fifty-five years with a further provision of extension to the age of Page 27 of 33 HC-NIC Page 27 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT fifty-seven years. The respondents exercised their option and were accordingly granted whole-time N.C.C. Commission. They cannot now repudiate the same and claim any additional benefit which they are not entitled to under any rule or law."
15. The Apex Court relied on the affidavit filed by the Under Secretary of the Union of India stating that the NCC officers were employed on Whole Time Basis are paid exclusively by the Central Government from the Defence, Service Estimates and, therefore, it was held that the pay of the respondent was not debitable to the Civil Estimates is required by fundamental rules (2) of the Rules and, therefore, such rules were not attracted and the Tribunal was in error to hold on that basis that the respondents were entitled to remains in service upto the age of 58 years. The Apex Court also considered Sections 3, 9 and 13 of the NCC Act and found that it was not necessary to examine the question whether the Army Act applied to respondents or not. Thus, the Apex Court considered terms of appointment of Whole Time NCC officer which prescribe age of superannuation at 55 years with a further provision of extension of age of 57 years but were considered to be not entitled to continue in service upto the age of 58 years on par with civil servant to whom fundamental rules were applicable.
16. In the case of Union of India vs. Brahma Dutt Tripathi [2006 (10 SCC 220] the question which fall into consideration before the Supreme Court was whether the Page 28 of 33 HC-NIC Page 28 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT appointment of the respondents to the NCC Commission was in accordance with the Act and Rules or under the composite scheme formulated by the Govt. of India in exercise of its power under provisio III to Rule 16 of the Rules. In the above case the Apex Court considered scheme of NCC Act, 1948 including Section 3, Section 4 and Section and the scheme under proviso III to Rule 16 of the Rules framed Govt. of India, Ministry of Defence letter dated 21.12.1963, in which the age of the applicant on the date of application should not be less than 21 and not more than 51 years and Clause 4 of the Appendix A provide that officers will ordinarily hold commission until reaching the age of 55 years. In para 14 of the above judgement the Apex Court relied on earlier decisions of Union of India vs Lt. Col.Komal Charan (surpa) and para 7 of the decision was quoted and thereafter para 17 and 18 held as under:
"17.It, therefore, clearly appears that proviso (iii) to R.16 is carved out from the Rules authorizing the Ministry of Defence, Government of India for appointment of any person who is not qualified for appointment under the Rules. It must be grasped that throughout the NCC Act and Rules, there is absolutely no provision for appointment of discharged Short Commission Officer as an officer of the NCC. It is only to rehabilitate the Short Commission Officers, who had been discharged after the hostility ended, that a provision had been made in proviso Page 29 of 33 HC-NIC Page 29 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT
(iii) of R.16 empowering the Government for such appointment who were not otherwise qualified for the appointment under the Rules. As noticed earlier, the Government Order dated 21.12.1963 was in exercise of the powers under proviso (iii) to R.16. The respondent has not challenged the Government Circular dated 21.12.1963.
18. The contention of the learned counsel for the respondent that the respondent was appointed under the NCC Act and Rules and he would be entitled to continue in the post till he attained the age of 45 years is misconceived. It was to the knowledge of the respondent himself that he was appointed under the composite Scheme framed in exercise of the powers under proviso (iii) to R.16. Under the Scheme, the appointment was a tenure appointment and the service was for three years extendable by another three years at a time, subject to the requirement of the service but not beyond the age of 55 years. His service might also be terminated at any time before the completion of the initial or extended tenure at the discretion of the Government of India in terms of Cl.4 of Appendix B of the scheme."
Thus, it is held that rules governing officer of NCC Page 30 of 33 HC-NIC Page 30 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT under the Scheme made in the provisio III of Rule 16 would govern the case.
17. The Apex Court interfered with direction of a Division Bench of this Court in the case of Union of India & 3 vs. Savitakumari J.Mishra widow of Late Lt. Colonel J.N.Mishra in Special Civil Application No.12131 of 2016 by the judgement dated 9.8.2016 and Misc. Civil Application (For Review) No.3119 of 2016 passed on 17.10.2016, wherein it was held that the amount of pension already paid, would not be recovered but the same time direction was issued that for future, pension that will have to be paid to the respondent as per rules applicable and further that order was passed in the facts the case. Besides, before the Division Bench of this Court, neither of the provisions of Arms Act, the Administrative Tribunal Act, the NCC Act and Rules either argued or fell into consideration and, therefore the above judgement can be said to be laying down no law and to be considered accordingly.
18. Thus, a careful perusal of all the provisions of the Administrative Tribunal Act, the Army Act, NCC Act and Rules made thereunder and the Central Civil Services (Pension) Rules, 1972 along with relevant circulars it is clearly borne out that Whole Time Officer with NCC appointed either under Section 9 of the Act and/or under Rule 16 of the Rules is not Army Officer or an officer connected with defence services. The above aspect can be considered by referring to the Army Act and particularly sub-section (2) which defines persons who shall be subject to the provisions of the Army Act, Section Page 31 of 33 HC-NIC Page 31 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT 3 about active service, clause 10 pertaining to the forces and Clause 21 regular army, nowhere includes the officers appointed with the National Cadet Force. More so, section 9 of NCC Act provide for appointment of officers by the Central Government and duties of persons subject to the NCC Act under Section 10 clearly mandates that no persons subject to the NCC Act shall by virtue of being the member of the Corps be liable for active military service and also the Central Civil Services (Pension) Rules 1972, Rule 2 pertaining to the application for releasing the pension and accepted by the petitioner collectively lead to inescapable conclusion about the petitioner that he neither can be treated as an Army Officer nor can be equated with. Even nomenclature of the designation of the petitioner and the pay band as attached to, for which, reference is made in para 11 and 12 of this decision again reveal that the petitioner for all purposes is a civilian covered under Section 2 (b) (iii) of the Central Administrative Act and, therefore, as a first forum available as held in the case of L.Chandra Kumar (supra) the jurisdiction for the subject matter would lie before the Central Administrative Tribunal. Thus on preliminary issue only this writ petition is decided and it is held that the petitioner who retired as a Whole Time Officer of NCC for any grievance with regard to the service condition or the subject matter shall have to approach the Central Administrative Tribunal.
19. Needless to say that while deciding the preliminary issues as above, if any infraction is made inadvertently on merit of the case, shall have no bearing in the proceedings Page 32 of 33 HC-NIC Page 32 of 33 Created On Sun Jul 23 18:24:54 IST 2017 C/SCA/18790/2016 CAV JUDGMENT that may be initiated by the petitioner before the first forum viz. Central Administrative Tribunal about the grievances.
20. In view of the above, petition is disposed of. Notice discharged. No order as to costs.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) SMITA Page 33 of 33 HC-NIC Page 33 of 33 Created On Sun Jul 23 18:24:54 IST 2017