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PETITIONER: NATIONAL EX-SERVICEMENCO-ORDINATION COMMITTEE ETC.ETC.

       Vs.

RESPONDENT: CONTROLLER GENERAL OF DEFENCEACCOUNTS AND OTHERS

DATE OF JUDGMENT:       09/09/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) KULDIP SINGH (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA.J.      These review  petitions were entertained on a grievance being made  that while  deciding  the  appeals  in  question reliance had  been placed  on some  documents which had been annexed along  with the  written submission  filed after the judgment was reserved, as permitted by the Court, because of which the review petitioners did not get opportunity to have their  say   on  the  applicability  and  relevance  of  the documents. 2.   During the  hearing of  the review petitions it was not disputed by either Shri Salve or Shri Tripathi appearing for some of the review petitioners that the Office Memorandum of 1.8. 1975  had been  made  applicable  by  the  Ministry  of Defence vide  their letter  dated 28.10.1975  to  the  Armed Forces pensioners  also, as  mentioned  in  para  6  of  the judgment since  reported in 1995 (2) SCC 32. What was rather contended by  Tripathi was  that the  denial of the Dearness Relief to  the service  personnel re-employed to posts under Central or  State Government,  without there being a similar provision   for   those   re-employed   in   public   sector undertakings or  nationalized banks,  is discriminatory.  We are not  impressed with  this contention as it is known that Government employees form a distinct class and their service conditions can  be different  from those who are employed in public sector undertakings or nationalized banks. 3.   To the  aforesaid submission  of  Shri  Tripathi,  Shri Salve’s booster  was that  the Ministry  of Defence’s letter dated 28.10.1975  would become  non-applicable  in  view  of Ministry of  Defences OM  No.2(1)/83/D(Civ-I) dated 8.2.1983 by which  while fixing  the pay  of  exserviceman  on    re- employment pension  drown by them was required to be ignored either fully  or upto a specified limit. Relying on this OM, the submission  made  was  that  pension  has  been  treated differently from  pay, and  so, the  Dearness Relief paid on pension should be treated different from the Dearness Relief available  after  reemployment.  According  to  the  learned

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counsel both  the reliefs can co-exist. We are not persuaded to accept this submission because the subject matter of 1983 OM is  entirely different and cannot affect the rationale of denial of  Dearness Relief  on pension  on re-employment  as mentioned in  the judgment  rendered in the appeals the same being that the Dearness Relief paid after reemployment takes care of the erosion in the value of the   money  because  of rise in  prices, which lies at the back of grant of Dearness Relief. Payment  of Dearness  Relief in  such a situation on pension would  amount to giving Dearness Relief twice, which is not visualized. 4.   The further  submission of  both Shri  Salve  and  Shri Tripathi was  that the service conditions of armed personnel being not attractive as would be apparent from many posts in the army  lying presently vacant, which is not in the larger national interest,  a case  for treating  the  ex-servicemen differently from  the re-employed civilian does exist. There appears to  be some force in this contention, but this being a matter  of policy  has to  be appropriately decided by the Government. We  do think  that the  Government would  do  so keeping  in   view  the   present  scenario   and   national perspective. 5.   A submission  was  also  made  by  Shri  Tripathi  that despite some re-employed service personnel having retired on superannuation by  now, steps  are being  taken  to  realise Dearness Relief  on pension  which had  been paid to them at one stage.  This  is  causing  hardship  to  these  persons, according to  the learned  counsel. We do find force in this submission and  would require the appropriate authorities to consider that  the realisation  of the  aforesaid amount may not be insisted. 6.   What is  left is  to deal  with the  submission of Shri Bisht advanced in Review Petition No.1039 of 1995. According to the  learned counsel, the aforesaid letter of Ministry of Defence dated  28.10.1975 by  which the Office Memorandum of 1.8.1975 was  made applicable to Armed Forced pensioners has no application  to the  personnel of naval, military and air forces. To  show the rationality of this submission, we were referred to Entry 2 of List I of the Seventh Schedule to the Constitution reading   "Naval,  military and air forces; any other armed  forces of  the Union".  The word "other" in the second part  of the  entry itself  demolishes the contention advanced, as this clearly shows that naval, military and air forces have been accepted as armed forces. Further, if these forces would  not  be  armed  forces,  it  is  difficult  to visualize which  forces would  be  so.  Thus,  there  is  no substance at  all in  this submission  of  Shri  Bisht.  His another contention  was that  instead of  issuing  aforesaid executive orders if the intention was to deny Dearness Chief to the  ex-servicemen on re-employment, appreciate amendment could have  been made to the Ex servicemen (Re-employment in Central  Civil   Services  and   Posts)  Rules,   1979.  The submission   has also no force inasmuch as it is settled law that service  conditions can be altered by issuing executive instructions where  the field  is not  occupied by statutory rules. The  non   amendment of  the Rules hes, therefore, no sequitur. 7.   No other  submission having  been made, or indeed being available, the  review petitions  are dismissed.  We  would, however, desire  the Union  of India  to apply  mind to  the question whether  ex-servicemen could be treated differently from others in so far as the matter at hand is concerned, in view of  their service conditions said to be not attractive. We   would   also   desire   the   Central   Government   to sympathetically consider  the question of non-realisation of

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amount already disbursed to re-employed ex-servicemen on the aforesaid account. Union of India & Ors. etc.etc. V. V.P. Ayyappan & Ors.                       J U D G M E N T HANSARIA.J.      Leave granted. Heard learned counsel for the parties. 2.   In view of the judgment of this Court in union of India & Ors.  V. G.  Vasudenvan Pillay  & Ors.,  1995 (2)  SSC 32, these appeals  are allowed  by setting  aside  the  impugned judgment, inasmuch  as the review petitions concerning those cases have  been dismissed today by a separate judgment. The observations made in the judgment relating to non-realistion of the  amount already  disbursed shall apply to these cases as well.