Court cases in APS matters — Previous settled Judgement/Orders in favor of Department of Posts: DoP O.M. dated 10.03.2025
No. R-07/2/2025-SPG-II-DOP
Government of India
Ministry of Communications
Department of Posts
(SPG-II Section)
New Delhi, the 10th March, 2025
OFFICE MEMORANDUM
Subject: Court cases in APS matters — Previous settled Judgement/Orders in favor of Department of Posts reg.
With reference to this Department OM No.7-4/2021-SPG dated 18.07.2023, various decision have been taken in order to curb the violations of provisions of Army Instructions-Al 29/85 by temporary commissioned APS officers as it was resulting in huge pension liability & other associated post-retirement financial burden, financial anomalies etc.
2. The said decisions have been challenged by various affected Gr.‘B’ officers [ASP/IP/PS Gr.B] of this Department, who are currently on deputation to APS, before Hon’ble AFT, PB, New Delhi.
3. The main plea of these officers are related to legality of the OM dated 18.07.2023, voluntary retirement directly from the APS without repatriation etc.
4. It has been observed that:
(i) There is no provision of voluntary retirement from APS in Army Instructions No.29/85.
(ii) As per this Department letters No.X-17/1/2018-SPB-II dated 10.01.2019 & dated 24.01.2019 (copies attached) read with CCS (Pension) Rules, 2021, “all appointing authorities not to accept request for voluntary retirement directly from Army Postal Service (APS) without an official being repatriated to civil side and that such request for voluntary retirement would be considered only after repatriation of the official to the parent unit in civil side.“
(iii) As per categorical instruction No.6 of terms and conditions laid down in Annexure ‘A’ to Al 29/85 dated 01.09.1985 (copy enclosed), “For service pension, officers will be governed by civil rules.” Therefore, provision of CCS (Pension) Rules, 2021 shall be applicable in case of the temporary commissioned APS officials/officers.
(iv) Ministry of Defence vide letter No.32006/AVSC/AG/PS-2(a) dated 24.08.2006 (copy attached) states as follows:
“APS officers granted quasi-substantive ranks in the Army will hold such ranks for so long as they are serving in APS. Officers will have no claim to any benefits by virtue of holding the same on reversion to the parent cadre.”
(v) The above applicants hold lien against civil posts in this Department, there service conditions are governed by the civil rules. The basic employment of the applicant and all conditions of service i.e. Pension, vacancy, Disciplinary rules etc. attached to his employment in this Department have continued to operate as per terms and conditions for his initial appointment.
5. In addition to above rule-position in the present matter, it is apposite to state following settled law positions & legal provisions:
(i) The stand of the Gol cited on Para No.4(iv) above has already been upheld by the Hon’ble AFT (PB) New Delhi vide Order dated 10.02.2022 (copy attached) in OA No.1239/2020 (Lt. Col. Shaji Joseph [Retd.] v. Uol & ors.).
(ii) The Hon’ble AFT(PB), Delhi vide Para-33 of the Order dated 10.02.2022 also held that the Rule-67 of CCS (Pension) Rules, 1972 is applicable in the case of a government servant who ‘retires’ while on deputation. It is the case of the respondents that there is no provision of voluntary retirement in the Army and, therefore, this Rule 67 is not applicable in the case of the applicant.
(iii) The Para-35 of the Order dated 10.02.2022 of the Hon’ble Tribunal inter-alia states “…. Therefore, Department of Posts is the Competent Authority to grant pensionary benefits to the applicant and not the borrowing department t.e. APS.”
(iv) The Hon’ble Apex Court in ‘Major M.R. Penghal v. Uol’ {(1998)5SCC454} {in Civil Appeal Nos.556/1998 & 557/1998} (copy enclosed) already decided the above jurisdiction and held as under:
“…. Since the appellant was not a member of the Armed Forces and continued to work as a civilian on deputation to the Army Postal Service, his case was covered under Section 14(1)(a) of the Administrative Tribunals Act.”
(v) The above settled law was again reiterated by the Hon’ble Apex Court vide judgement dated 05.11.2019 in CA No.8139/2019 {Uol & Ors. v. Lt. Col. O M Dutt Sharma (Retd.) dead through LRS & Ors.} (copy enclosed). In the said judgement, it is also held that:
- “…. The respondents have discharged their duties as per Army Instructions issued from time to time. If they have drawn higher salaries while working in the APS than other counterparts in the Department of Posts that will not make them at par with the members of the Armed Forces. Their birth mark is with the Department of Posts which mark was never removed, when they were serving as members of APS. The Instructions provided for an option on promotion on every rank in the Army to draw either military pay and allowances or civil pay plus deputation allowances meaning thereby that they continue to hold their lien on the civil posts in the Department of Posts. Since they hold a lien in the Department of Posts they could be recalled by the Department of Posts as well as they could seek reversion to their parent Department.”
- “….In respect of pension, there is a categorical instruction that the officers would be governed by civil rules for service pension. An option is available to opt for military or civil rules in respect of disability or special family pension.”
- “… These conditions show that the members of the APS continue to hold lien in the Department of Posts though they were conferred ranks in the Army and were also entitled to certain benefits as the members of the Armed Forces but being members of the Armed Forces during the period of their Temporary Commission does not make them a pensioner of the Armed Forces…”
- “… There was never any condition in any policy decision that the members of APS will be treated as pensioners of the Armed Forces.”
- “The respondents were holders of Temporary Commission only to facilitate the grant of rank and other benefits but they cannot be called as Commissioned Officers.”
- “…It is not disputed that retirement age of a regular Commissioned Officer of the rank of Lt. Colonel is 54 years. Such fact only shows that the respondents are the holders of civil posts entitled to civil pension and are not the Ex-servicemen to which benefit of OROP was conferred.“
(v) Recently, the Hon’ble AFT, RB, Kochi vide order dated 01.07.2024 in OA No.13/2024 {Lt. Col. V C Paulose V/s Uol & Ors.} (copy enclosed) held that:
“…Indisputably, Pension Sanctioning Authority under the Department of Posts will not come under the jurisdiction of this Tribunal. Therefore, we find that this Bench of the Tribunal has no jurisdiction to entertain this Original Application.”
(vi) The Hon’ble Apex Court in the case of “Kunal Nanda vs. Uol & Anr.” reported in (2000) 5 SCC 362 (copy enclosed) has already held that “The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.”
(vii) Some temporary commissioned officials/officers of APS also raised the issue of selection “exclusively for APS appointed in the cadre of Postal Assistant/Sorting Assistant”. |n a precedent case of similarly situated persons, Hon’ble AFT, Chandigarh Bench vide order dated 23.11.2015 in OA No.4445/2013 & OA No.4449/2013 (copy attached) already held that the parent civil department of the such applicant is Department of Posts.
6. It is requested to:
(i) Render any other judgements/orders of Tribunals/High Courts/Apex Court given in favour of this Department in respect of temporary commissioned APS officials/officers to this Directorate for reference.
(ii) Render details of all such pending cases, whose subject matter already decided in above legal cases.
(iii) Defend the cases of temporary commissioned APS officers in light of above extant guidelines and settled law positions.
This has the approval of the competent authority.
Encl. As above (through India-Post website).
Digitally signed by
Rajpal
Date: 10-03-2025
(Rajpal)
Assistant Director General (SPG)
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