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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: K.T. SHASTRI

DATE OF JUDGMENT12/01/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA RANGNATH RAMASWAMY, K.

CITATION:  1990 AIR  598            1990 SCR  (1)  20  1990 SCC  (1) 509        JT 1990 (1)    15  1990 SCALE  (1)7

ACT:     Constitution  of  India,  1950.’  Article  16.’  Service Law--Defence   Research  Service--Three  units--Benefit   of enhanced   superannuation   age  to  the  members   of   one unit--Denial to members of other units-Held discriminatory.

HEADNOTE:     Respondent was recruited as a Senior Scientific  Officer in  the Defence Science Service which was subsequently  tri- furcated and reconstituted.     The Government of India enhanced the superannuation  age of  Scientific and Technical personnel of one of  the  newly constituted   units  upto  60  years  by  an   order   dated 24.12.1985.     The respondent who was working in one of the other units of  the reconstituted service, filed an application  in  the Central Administrative Tribunal seeking a direction that  he was  entitled to the benefit of enhanced age of  superannua- tion  upto  60 years as made applicable to  the  other  unit which  allowed  the application. Hence this  appeal  by  the Union of India. Dismissing the appeal, this Court,     HELD: 1. In view of Rule 12 of the Defence  Aeronautical Quality  Assurance  Service Rules, 1979 the benefit  of  en- hanced  age  of superannuation given to the members  of  one unit  was  also available to the members of the  other  unit since  the said condition of service was not expressly  pro- vided  for in the Service Rules. At the time of  reconstitu- tion  of  the service no option was given to  the  employees working  in the different units to opt for one or the  other of  the units. Those who were already working in  either  of the  three  units were deemed to belong  to  the  respective newly  constituted service. Therefore their  service  condi- tions will have to run parallel and no discrimination can be made  between them by an unilateral action. The  classifica- tion made between them further has no rational basis and  no nexus of such classification to 21 the  object  sought to be achieved has been  shown.  In  the circumstances,  the  denial of the benefit of  the  enhanced

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superannuation age to the members of one unit while the same is  granted  to the members of the other  units  amounts  to discrimination, violative of Article 16 of the Constitution. [23A, F, G, H, 24A]     2.  The  decision  of the Tribunal is  both  proper  and valid. The appellants are directed to reinstate the respond- ent  in service, who would continue in service till  he  at- tains the age of 60 years. [24A, C-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4284  of 1988.     From the Judgment and Order dated 30.3.88 of the Central Admn. Tribunal Hyderabad in O.A. No. 575 of 1987.     A.D. Singh, A. Subba Rao, C.V.S. Rao and P. Parmeshwaran for the Appellants. K.T. Shastri Respondent-in-person. The Judgment of the Court was delivered by     SAWANT, J. The appellants, Union of India and the Direc- tor, Technical Development and Production (Air), Ministry of Defence, have preferred this appeal against the decision  of the Central Administrative Tribunal, Hyderabad Bench,  hold- ing  that respondent K.T. Shastry was entitled to remain  in service upto the superannuation age of 60 years and was  not liable to be retired at the alleged superannuation age of 58 years.     2.  The relevant admitted facts are that the  respondent was recruited as a Senior Scientific Officer on October  12, 1966  in the Defence Science Service. He was posted  in  the Directorate  of Technical Development and Production  (Air), briefly  called DTD & P. at the relevant time,  the  Defence Science Service had three units under it, namely, 1) Defence Research  and Development Organisation (DRDO), 2)  Director- ate-General of Inspection (DGI) and 3) Directorate of  Tech- nical Development and Production (Air) (DTD & P).     The  recruitment  when made was always  to  the  Defence Science  Service,  and after the recruitment,  the  recruits were posted according to the exigency of the service, in any of the said three units. Their 22 services  were inter-changeable and  inter-transferable  be- tween  the three units. All, the service conditions  of  the persons working in the three units including scales of  pay, superannuation age, etc. were the same and were regulated by the same set of Rules, viz. Defence Science Service Rules.     3.  In  the year 1979, the Defence Science  Service  was trifurcated and reconstituted as follows.     (1) Defence Research and Development Organisation (DRDO) was reconstituted as Defence Research and Development  Serv- ice  (DRDS).  (2) Directorate of Technical  Development  and Production  (Air)  (DTD & P) was  reconstituted  as  Defence Aeronautical  Quality  Assurance Service  (DAQAS),  and  (3) Directorate General of Inspection (DGI) was reconstituted as Defence Quality Assurance Service (DQAS). The appellant  who was  working in DTD & P became a member of DAQAS.  When  the trifurcation was made, the Service Rules governing the three units had a common Rule which was Rule 12 in DAQAS and DQAS, and Rule 13 in DRDS which reads as follows: "Other conditions of service:            (1)  The conditions of service of the members  of the service in respect of matters not expressly provided for in  these Rules, shall mutatis mutandis and subject  to  any special  orders issued by the Government in respect  of  the

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service, be the same as those applicable to officers (Civil- ians) of corresponding status in similar scientific institu- tions/organisations under the Government of India."      4.  At the time the present controversy arose  and  the respondent  approached the Administrative Tribunal,  he  was holding  the post of Deputy Chief Scientific Officer. By  an Office Memorandum No. 7(3)/ 85-D(R & D) of the Government of India, Ministry of Defence, Department of Defence Research & Development dated 24.12.1985, the decision of the  President was  conveyed  whereby Scientific  and  Technical  personnel (gazetted)  of D.R. and D.S. in the grade of  Scientist  ’E’ and above, would retire at the age of 60 years and those  in the lower grade for which flexible complementing scheme  was applicable would also retire at the age of 60 years provided they  had been promoted to the grades they were  holding  at the time of attaining the age of 58 years within the preced- ing  five  years. Subsequently by OM No. 7(3)/85-D (R  &  D) dated 10.2.86, the said decision was extended to all 23 Scientific and technical personnel of the DRDO i.e. DRDS  as listed  in the Appendix ’A’ of that Memo. By virtue of  Rule 12  quoted above, this benefit given to the members of  DRDS was  also available to the members of DAQAS, since the  said condition  of service was not expressly provided for in  the Service  Rules. The Tribunal, therefore, held that  the  re- spondent was not liable to be retired at the age of 58 years his  superannuation age being deemed to have been  increased to  60 years in view of the OM dated 24.12.85 read  with  OM dated 10.2.86 referred to above.     5. It is this decision which is challenged before us  by the appellants. Mr. Subba Rao, learned counsel appearing for the appellants contended that the Government had a right  to prescribe  different conditions of service for  the  members belonging  to  the different units, and merely  because  the superannuation age of the members of the DRDS was increased, it  could  not be held that the respondent who  belonged  to another unit, viz. DAQAS, was entitled to the said  benefit. There  is no dispute that the Government has power  to  vary the  service conditions of the members of the services  from time  to time. The question involved in the  present  appeal is, however, not whether the Government had such power.  The question is whether the respondent was also entitled to  the benefit  of the power so exercised in the facts and  circum- stances  of  the case. The admitted facts are that  in  1966 when  the  respondent was recruited to the  Defence  Science Service,  the three units belonged to the said  Service  and the  employees were recruited initially to that service  and then sent to different units. The service conditions of  the employees  belonging  to the three units were the  same  and their  services  were  inter-changeable  between  the  three units.  The  Service Rules which applied to  all  the  three units were also common, viz. Defence Science Service  Rules. The three units, therefore, belonged to and constituted  one single  service.  It  is later in the year  1979,  that  the Defence  Research Service was reconstituted into three  dif- ferent  services  as stated above. However,  at  that  time, admittedly  no option was given to the employees working  in the  different  units  to opt for one or the  other  of  the units.  It  appears that those who were already  working  in either  of  the  three units were deemed to  belong  to  the respective  newly constituted service. This being so,  their service conditions will have to run parallel and no discrim- ination  can be made between them by an  unilateral  action. The classification made between them further has no rational basis  and  no nexus of such classification  to  the  object

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sought to be achieved has been shown to us by Mr. Subba  Rao appearing  for  the appellants. In  the  circumstances,  the denial of the benefit of the enhanced superannuation age  to the members of one 24 unit  while the same is granted to the members of the  other unit  amounts to discrimination, violative of Article 16  of the  Constitution.  We are, therefore,  satisfied  that  the decision of the Tribunal is both proper and valid, and there is no substance in the present appeal. The appeal is, there- fore, dismissed.     6. We are informed that in spite of the decision of  the Tribunal  and  even  pending this appeal when  no  stay  was granted, the Appellant-Union of India retired the respondent at  the age of 58 years. We have been unable  to  understand this  indefensible action on the part of the  Appellant  nor could  the learned counsel for the Appellants explain it  to us.  We, therefore, direct the Appellants to  reinstate  the respondent  in service within one week of this Order and  to pay to him all his emoluments from the date of his arbitrary retirement till the date of his re-instatement in service as if he had not been retired. We further direct that he  would continue  in  service till he attains the age of  60  years, unless  of course for some other legal reasons,  it  becomes necessary to discontinue his services before that date.     7. We also understand that in the meanwhile the respond- ent was paid all his retirement benefits. The Appellant will not recover any amount so paid to the respondent. The appeal is accordingly dismissed with aforesaid directions and  with costs. T.N.A.                                         Appeal   dis- missed. 25