Andhra HC (Pre-Telangana)
Major S. Ravi And Others vs Union Of India And Others on 29 August, 2001
Equivalent citations: 2001(5)ALD839, 2001(6)ALT202, 93(2001)DLT647
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER
1. The petitioners, who are Armed Forces Personnel working in Survey of India - known as Corps of Engineering Officers, question the impugned proceedings issued by the second and third respondents, in not granting general approval for drawing of technical pay to the petitioners as per the instructions issued by the first respondent through proceedings No. 30/(10)/81/D (Pay/ Service) dated 6-11-1984, as illegal, void and consequently to direct the respondents to grant General Approval to the petitioners to draw the technical pay as per the instructions as well as rules issued by the first respondent from time to time.
2. The petitioners were originally recruited in Armed Forces known as Corps Engineer Officers thereafter seconded to Survey of India in different capacities i.e., the 3rd respondent organisation. It is stated that though they are working in the 3rd respondent organisation and that the Survey of India is having the rules known as Survey of India (Recruitment of Corps Engineer Officers) Rules, 1950, issued by the President of India under Article 309 of the Constitution, but they are governed by the Service Conditions of the Army Act. Therefore, the Rules, Regulations and Instructions that are applicable to the Defence Officers are applicable to the petitioners also. According to the petitioners, the first respondent in pursuance of the recommendations made by the 3rd Pay Commission, promulgated a scheme which is called as Qualification Pay prior to 1975 to the Corps of Engineer Officers under Army Instruction No. 5/S/76 dated 26-5-1976. According to the scheme, the Corps Engineer Officers are entitled to draw the Qualification Pay at Rs. 75/- per month, in partial modification of the Army Instructions No. 5/S/62 effective from 1-4-1975 have fixed a lump sum grant of Rs. 6,000/- on successful completion of Long Survey Course and they have drawn the said lump sum amount. Thereafter, the scheme was further clarified through proceedings No. 30/(10)/81/D (Pay/Service) dated 6-11-1984 and under item 11 it is specifically mentioned that the Technical Pay @ Rs. 250/- per month is admissible to an Officer, if a Post-Graduate Degree/ Diploma or its equivalent is acquired, after undergoing the course of training of not less than two academic years or four semesters duration commencing prior to July, 1983, and 1-1/2 year or three semesters commencing from July, 1983, onwards. The above instructions were given retrospective effect from 1-9-1981, which was subsequently enhanced to Rs. 375/- per month with effect from 1-1-1986. As per the Army Instruction dated 6-11-1984, the Surbey Engineering Course is also menlioned and the petitioners who have successfully completed the said course and working prior to 1982 in the 3rd respondent organisation are entitled for the Technical Pay. Accordingly, some of the petitioners have not drawn the Technical Pay of Rs. 250/- per month but other petitioners have not drawn. Therefore, they made representation to the third respondent to permit them to draw the same, but the permission was not granted.
3. According to the proceedings No. E1/10799/1198-A dated 14-3-1985 of the 2nd respondent, the Technical Pay of Rs. 250/- may not be drawn by the petitioners, who are Corps Engineer Officers seconded to the' Survey of India until further instructions are issued. The third respondent in pursuance of the instructions issued by the second respondent and in consequence of the said proceedings of the third respondent, the petitioners are deprived of drawing the Technical Pay. Accordingly, they have submitted representation to the respondents 1 and 3 and requested them for the grant of approval for drawing the Technical Pay as per the scheme laid down prior to 1975 and modified instructions were given by the first respondent from time to time. It is alleged that the second respondent has not taken any decision upon the representation made by the petitioners. Thereupon, once again another representation was submitted to the 3rd respondent in the year 1987. Pending consideration of the representation made by the petitioners to the 3rd respondent, the 3rd respondent addressed letter No. E1-5004/1198-A dated 10-4-1987 to the 2nd respondent for grant of general approval, as all the petitioners being Corps Engineer Officers in the 3rd respondent organisation and they are entitled for the Technical Pay based on their qualifications actually possessed by them and it was further mentioned that each petitioner is entitled to draw the Technical Pay with effect from 1-9-1981. But so far the 2nd respondent did not approve the recommendations made by the 3rd respondent. Even the Engineer-in-Chief, who is the head of the Corps Engineer Officers, has recommended to the 1st respondent to take up the matter with the 2nd respondent for the earliest release of payment of Technical Pay to the petitioners through his letter No. 90800/EIA dated 19-6-1987. Though recommendations were made by the 1st and 3rd respondents to the second respondent, the second respondent, who is under obligation to grant general approval for drawal of the Technical Pay to the petitioners, for reasons best known to him, has neither approved nor rejected their request and the matter is lodging since longtime. Therefore, they filed the writ petition seeking the above relief on the ground that as per the rules and instructions issued from time to time by the first respondent, all the petitioners being Corps Engineer Officers are entitled to draw Technical Pay. Therefore, depriving the same to the petitioners by the second respondent is illegal, arbitrary and prejudicial to the interest of the petitioners. The second respondent should have granted general approval as recommended by the Engineer-in-chief, 1st and 3rd respondents to draw the Technical Pay as per rules and conditions. Further the petitioners are having qualifications to draw the same under the Rules and Instructions. Therefore, the instructions issued by the 2nd respondent to the 3rd respondent is offending Articles 14, 16 and 21 of the Constitution of India.
4. In reply to the above averments made by the petitioners, the respondents have filed their counter-affidavit taking objection that the writ petition is not maintainable for the reason that the petitioners are working in Group 'A' Cadre of Survey of India, they are composed of two elements, one is the military component and the other is civil component. It is further stated that depending upon the seniority and rank, the officers belonging to those components are given the positions of Deputy Superintending Surveyor, Superintending Surveyor, Deputy Director, Director and Surveyor General of India, in the Survey of India Department. It is also stated that for allotment of quarter and other benefits, they have approached the Central Administrative Tribunal, Hyderabad, by way of filing OA No. 571 of 1986 and OA No. 45 of 1988 with regard to the seniority and thus submitted to the jurisdiction of the Central Administrative Tribunal, Hyderabad, and therefore, the present writ petition is not maintainable.
5. Insofar as the payment of Technical Pay is concerned, it is contended that the Military Officers seconded to Survey of India are recruited from the Corps Engineer Officers which is the part and parcel of the Indian Army and these officers are recruited into Survey of India and are governed by the Survey of India (Recruitment of Corps Engineer Officers) Rules, 1950, issued by the President of India under Article 309 of the Constitution and these rules differ with the Army Act in many aspects especially with respect to retirement age, promotion, seniority, pay rank, civil Government accommodation. The above rules are made to govern service conditions of the military personnel in Survey of India and obviously they will prevail over the provisions of the Army Act insofar as such officers who have been recruited into Survey of India from the Corps Engineer Officers. These Officers are governed by the CCA Rules and they are paid from the Civil Estimates of the Consolidated Fund of India. It is further submitted that an officer in civil employment is not under the jurisdiction of the Commander-in-Chief, Indian Army and so, he is not entitled to use his military rank to exercise the authority due to his rank. It is further submitted that the nature of their service is in conformity with the nature of work defined in CCS (CC&A) Rules which makes the CCS (CC&A) Rules applicable to the conditions of service of these military officers. Therefore, the reasons stated supra when once the petitioners are seconded to work as Corps Engineer Officers in Survey of India, they are no more in the service of Armed Forces and they are governed by the Army Act, but their service conditions are governed by the Survey of India (Recruitment of Corps Engineer Officers) Rules, 1950, subsequently amended. Therefore, they are not entitled to draw the Technical Pay.
6. Mr. V. Venkataramana, the learned Counsel appearing on behalf of the petitioners has taken me to the various aspects of the case to establish his contentions by way of material papers filed by the petitioners. He submitted that the Central Administrative Tribunal, Bangalore Bench in OA No. 1111 of 1989 (F) after elaborate discussion vide its dated 7-1-1991 held that the Survey of India cannot be held to be an Armed Force of the Union and the finding to the contrary of the Central Administrative Tribunal of Hyderabad Bench is not correct. It further held that even through the Army Engineers seconded permanently or otherwise to that organisation continue to be members of the Armed Force so long as they are governed by the Army Act, the civilian employees unless drafted for active service or otherwise brought under the Army Act are not members of the Armed Force. Since this judgment of the Bangalore Bench was accepted by the respondents, High Court has got power to entertain the writ petition, as the petitioners are working in Survey of India and continued to be members of the Armed Forces.
7. This controversy, in my considered view, is no more res integra having regard to the above submissions and the unchallenged finding of the Central Administrative Tribunal, Bangalore Bench. Therefore, I have no hesitation in holding that the writ petition is maintainable in High Court.
8. The learned Counsel for the petitioner next contended that though the petitioners are originally recruited in the Armed Forces and seconded to Survey of India and are governed by the Service Rules made by the 2nd respondent under Article 309 of the Constitution of India, yet their pay is protected under the Army Act, 1950. Further in view of the rule position, they can even be repatriated to the Armed Forces, whenever the 3rd respondent feels necessary. He further contends that though the petitioners are designated, basing upon their qualifications and experience, yet their pay would be dealt with by the grant of a suitable personal pay to enable the officers to volunteer for service in the Survey of India without any great immediate loss of emoluments and the difference of emoluments in each will be determined by the Surveyor General in consultation with the Engineer-in-Chief, on the basis of the average of emoluments of two officers above and two officers below the officer volunteering for the Survey of India. He further contends that similarly situated officers who are working in Armed Forces and some of the petitioners were also allowed to draw the Technical Pay for sometime, but as a consequence of the order passed by the 2nd respondent on erroneous reasons, the petitioners were made lose the Technical Pay, which is in financial prejudice to the petitioners and discriminatory offending Article 14 of the Constitution of India.
9. For the purpose of this writ petition, after going through the entire material placed before me, I am of the considered view that it is needless to deal with each and every aspect of the matter. Suffice it to elaborate and understand the import of Section 25 of the Army Act, 1950 and Rule 7 of the Survey of India (Recruitment from Corps of Engineer Officers), Rules, 1950.
10. Section 2 of the Army Act categorises the persons subject to the Act and they shall remain as such until they retire, discharged, released, removed, dismissed or cashiered from the service. Section 2(1)(xviii) of the Army Act defines officer to mean a person commissioned, gazetted or in pay as an officer in the Regular Army.
11. Section 25 of the Army Act mandates that every person, subject to the Act, shall be paid due to him, as such under any regulation for the time being in force, without any deduction other than the deductions authorised by or under the Army Act or any other Act. Under the Army Act, Pay means the rate of pay with increases, if any, for the length of service to which a person subject to the Army Act, is entitled by reason of his rank, appointment, trade group or trade classification and includes additional remuneration such as qualification pay, proficiency pay and the various forms of additional pay. All other emoluments are "allowances" which are purely discretionary and may be withdrawn at any time.
12. A reading of the above provision, makes it clear that the Armed Forces personnel who are seconded and working elsewhere than Army, which are regulated by any regulation for the time being in force, shall be paid without any deduction other than the deduction authorised by or under any other Act. The term pay includes Qualification Pay - Technical Pay and, certainly, it is not an allowance. Therefore, the Armed Personnel wherever they work, their pay is protected under Section 25 of the Army Act. That apart, Rule 7 of the rules makes it clear that the pay of the Army Officers now coming into the Survey of India would be dealt with by the grant of a suitable personal pay to enable the officers to volunteer for service in the Survey of India, without any great immediate loss of emoluments, and this concession will be held out till such time as the Army Scales of pay and the Survey of India Scales of pay get mutually adjusted to attract the officers in normal course. It further reads that the difference of emoluments in each will be determined by the Surveyor General in consultation with the Engineer-in-Chief, on the basis of the average of emoluments of two officers above and two officers below the officer volunteering for the Survey of India. This rule also permits an officer in the Survey of India, who is a substantive Lt. Col. or above in rank can draw civil pay or the pay of his military, whichever is higher.
13. A bare reading of this rule makes it clear that the concession was given to attract the Corps Engineer Officers by fixing their pay scales, if not on par with their counter parts in the Armed Forces, an assurance was given that without any great immediate loss of emoluments, suitable persona! pay will be granted and the difference will be determined by the Surveyor General in consultation with the Engineer-in-chief of the basis of the average of emoluments of two officers above and two officers below the officer volunteering for the Survey of India. The implementation of this rule, can be evidenced by the proceedings No. E1-3222/1198-A dated 13-6-2000 passed by the Surveyor General, Dehardun in respect of Lt. Col. Anil Kumar, Superintending Surveyor in Survey of India fixing his total emoluments at Rs. 20,330/-. When the pay protection is given to encourage the Corps Engineer Officers volunteering to work in Survey of India, and when similarly situated officers working in Army are drawing Qualification Pay -Technical Pay, it cannot be gainsaid that the petitioners, just because they are seconded to Survey of India and governed by the above said rules, are not entitled to draw the said pay.
14. I am unable to appreciate the contention that the rules framed under Article 309 of the Constitution of India prevail over the Army Act. It is a settled principle of law that no rule can have the overriding effect over an Act. When Section 25 of the Act provides Pay Protection to the Corps Engineer Officers wherever they work, the second respondent has no jurisdiction or power to reduce their pay, Qualification (Technical) Pay, which is a part and parcel of the pay of the petitioners. That apart, some of the petitioners have already drawn for sometime and abrupt discontinuance of the same, by the 2nd respondent tantamount to arbitrariness and is illegal.
15. Evidently, the 3rd respondent has already submitted proposal to the 2nd respondent for the grant of general approval to draw the Technical Pay, therefore, in letter and spirit, the 2nd respondent should have granted general approval for the drawal of the Qualification Pay in terms of Section 25 of the Act and Rule 7 of the rules, more particularly having regard to the fact that the petitioners are seconded -volunteered to work in Survey of India.
16. It is very much relevant, in this context, to add that though the petitioners are seconded to work in Survey of India, their cases are considered for promotion whenever due under the Army Act and if fail to pass a promotional test, within the grace period allowed by the Department, they can even be reverted or discharged from the service. Thus, when their pay is protected and promotional channel is also kept alive, it is too irrational to say that they can only draw the salary as fixed by the rules framed by the Survey of India. For all practical purposes, they are governed by the Army Act and for internal administration alone, the rules are made applicable and the ranking is also suitably designated as Deputy Superintending Surveyor, Superintending Surveyor, Deputy Director, Director and Surveyor General of India, in the Survey of India Department and they are even liable to be repatriated to the Army Services, whenever it is felt necessary.
17. Therefore, for the forgoing reasons it can safely be held that the inaction on the part of the 2nd respondent in not according approval to the proposals submitted by the 3rd respondent for payment Qualification Pay - Technical Pay to the petitioners is arbitrary, illegal and a cause for prejudice to the petitioners. Therefore, I have no hesitation in holding that the petitioners are entitled to draw Qualification Pay - Technical Pay with effect from 1-9-1981 in pursuance of the proceedings No. 30/(10)/ 81/D (Pay/Service), dated 6-11-1984 issued by the first respondent consequent upon the acceptance of the 3rd Pay Commission Report.
18. The writ petition is accordingly allowed. No order as to costs.