$~8 & 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.09.2024
+ W.P.(C) 12842/2018
VOICE OF EX SERVICEMEN SOCIETY AND ORS.
.....Petitioners
Through: Mr.Nidhesh Gupta, Sr. Adv.
with Ms.Japneet Kaur,
Mr.Umesh Sharma &
Mr.Bikram Dwivedi, Advs.
versus
UNION OF INDIA AND ANR .....Respondents
Through: Mr.Ravi Prakash, CGSC/UOI
with Ms.Astu Khandelwal,
Mr.Taha Yasin, Mr.Yasharth
Shukla & Ms.Isha Kanth, Advs.
with Major Anish Muralidhar.
+ W.P.(C) 12903/2018
S P SINGH AND ORS. .....Petitioners
Through: Ms.Pallavi Awasthi, Mr.Ashok
Yadav & Mr.Sheesh Ram
Yadav, Advs.
versus
UNION OF INDIA AND ANR. .....Respondents
Through: Ms.Radhika Bishwajit Dubey,
CGSC/UOI with Ms.Gurleen
Kaur Waraich, Ms.Drishti
Rawal & Mr.Karan Khetani,
Advs.
Ms.Arti Bansal, Ms.Suniti
Singh & Ms.Akansha, Advs. for
UOI.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
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By:SUNIL
Signing Date:08.10.2024
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NAVIN CHAWLA, J. (ORAL)
1. These petitions have been filed primarily challenging the
differential rates of Military Services Pay (hereinafter referred
to as ‘MSP’) granted to all combatant personnel, including
Junior Commissioned Officers (JCOs), Non-Commissioned
Officers (NCOs), and Other Ranks (ORs) of all three wings of
the Armed Forces.
2. It is the case of the petitioners that though consistently
rd
from the 3 Central Pay Commission it has
(in short ‘CPC’)
been recognised that the MSP, which was earlier known as the
X factor, should be granted to the personnel of the Armed
‘ ’
Forces keeping in view the degree of hardship, turbulence,
hazards etc. inherent in the service, and as the defence forces
personnel are expected to conduct full spectrum operations in
operational environments which are characterised by extreme
complexity and may include force projection outside India’s
territorial boundaries and that they have to keep themselves
posted in modern warfare and are a symbol of national pride,
but at the same time, the CPCs have recommended varying
rates of MSP for the Officers and Military Nursing Staff, and
for the JCOs/ORs and for the non-combatants (enrolled) in the
Air Force. The petitioners challenge the differential rates as
being discriminatory keeping the object and the purpose of
MSP in mind.
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3. Mr.Nidhesh Gupta, the learned senior counsel for the
petitioner in W.P.(C) 12842/2018, and Ms.Pallavi Awasthi, the
learned counsel for the petitioner in W.P.(C) 12903/2018,
submit that keeping in view the object for providing MSP, the
differential rate of MSP that has been recommended by the
CPC, and eventually accepted by the respondents, is
discriminatory and arbitrary. They submit that if the purpose of
MSP is to compensate the officers for the hardship and
turbulence inherent in the service and for the effect of
continuous exposure to hazardous situations, isolation,
deprivation, and threat to life, there is no reason to differentiate
between the officers and the JCOs/ORs who, in fact, are more
exposed to such threats.
4. They further submit that in spite of recognizing that the
Military Nursing Staff should be given a lesser MSP, as
th
observed in the 6 CPC Recommendations, the eventual
recommendation is of a higher MSP being granted, which is
almost double to that of the JCOs and the ORs. They submit
that this also shows arbitrariness in the fixation of the MSP.
5. The learned senior counsel for the petitioners further
submits that while the petitioners meet the object of the MSP as
highlighted by the CPC, that is, shorter tenure on account of
early retirement age, separation from family, combating war,
threat to life, isolation and deprivation etc., the Military Nursing
Staff, who do not meet these criteria, have been granted higher
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MSP, which is almost double or triple to that granted to the
petitioners.
6. Placing reliance on the judgments of the Supreme Court
in Secretary, Finance Department v. West Bengal Registration
Service Association, 1993 Supp (1) SCC 153; Shyam Babu
Verma v. Union of India, (1994) 2 SCC 521; Federation of
Railway Officers Association v. Union of India, (2003) 4 SCC
289; Union of India v. Dineshan K.K., (2008) 1 SCC 586;
State of West Bengal v. Subhas Kumar Chatterjee, (2010) 11
SCC 694; Union of India v. S. Thakur, (2008) 13 SCC 463;
State of Madhya Pradesh v. Mala Banerjee, (2015) 7 SCC
698; Centre for Public Interest Litigation v. Union of India,
(2016) 6 SCC 408; and, State of Madhya Pradesh v. R.D.
Sharma & Anr., 2022 SCC OnLine SC 94, they submit that
though the Courts generally do not interfere with the fixation of
pay, however, it cannot be said that the Courts have no
jurisdiction over the same. Where the fixation is found to be
arbitrary or discriminatory, the Courts would intervene and
come to the aid of the person who has been discriminated
against.
7. They submit that in the present case, as there is no reason
for discriminating against the petitioners, who equally meet the
objects sought to be achieved by the grant of the MSP,
therefore, the differential rates are liable to be quashed and the
petitioners should be held entitled to similar rates of the MSP as
granted to the Officers.
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By:SUNIL
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8. On the other hand, the learned counsels for the
respondents submit that the rates of MSP have been determined
by the CPC based on the inputs received by them and after
hearing all concerned stakeholders. They submit that these are
matters of expert determination and should not be interfered
with by the Courts except in the rarest of rare cases.
th
9. They submit that in the present case, both, the 6 CPC
th
and the 7 CPC, have considered and given reasons for
recommending differential rates of MSP amongst various ranks
of officers and, in fact, the MSP is recommended only till the
rank of Brigadier and not beyond.
10. Placing reliance on the judgment of the Punjab and
Haryana High Court in Ex-Naik Harbhal Singh v. Union of
India & Anr., 2018:PHHC:003480-DB, they submit that a
similar challenge has been rejected by the High Court of Punjab
and Haryana and that the said judgment has attained finality.
11. We have considered the submissions made by the learned
counsels for the parties.
12. The object of the grant of MSP has been explained by the
th th
6 CPC and also by the 7 CPC, and even earlier. Only to quote
th
from the 7 CPC, the object of granting the same has been
explained as under:-
6.2.110 The Commission, after careful
“
consideration of the matter, notes that there
are exclusive elements that distinguish the
Defence forces personnel from all other
government employees. The intangible
aspects linked to the special conditions of
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service experienced by them set them apart
from civilian employees. Defence forces
personnel are expected to conduct full
spectrum operations in operational
environments which are characterised by
extreme complexity and may include force
projection outside
India’s territorial
boundaries. Defence forces personnel are
trained for war like situations with highly
sophisticated war machinery. They have to
keep themselves posted in modern warfare.
The military institutions are a key symbol of
national pride. Further, the superannuation
of defence personnel, particularly Other
Ranks (ORs) at a younger age, is also a
factor that has been considered. The
Commission has therefore taken a conscious
decision that the Military Service Pay, which
is a compensation for the various aspects
described above and for the edge historically
enjoyed by the Defence Forces over the
civilian scales, will be admissible to the
Defence Forces personnel only.
xxxxxx
6.2.115
MSP to be distinguished from ‘Edge’:
The V CPC, after deliberating on the issue of
Military Service Pay, did not recommend
granting it. It recommended continuance of all
existing concessions and also recommended
an edge in the starting pay scale. The VI CPC
introduced the Military Service Pay for all
Officers up to the level of Brigadiers, without
reducing the existing concessions. The VI CPC
went on to state upfront that MSP constitutes
the „edge‟ being provided to the defence forces
personnel over civilian pay scales. This
Commission taking note of the evolving pay
structure of the defence forces personnel and
what has been averred by the VI CPC is in
agreement with it and is of the view that MSP
is the ‘edge’ being provided to the defence
forces personnel.
”
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th
13. The 7 CPC also considered the rates at which the MSP
has to be granted and its application only to defence forces
personnel, by observing as under:-
6.2.107 The Commission has however, taking
note of the unique aspects of their role, taken a
conscious decision that that Military Service
Pay will be admissible to the Defence forces
personnel only. In Chapter 6.1 the rationale
for payment of MSP to the defence forces
personnel has been enunciated.
6.2.108 The recommendations of the
Commission regarding the rate of MSP as
applicable to the Service officers, MNS
officers and JCOs/ORs has been detailed in
Chapter 5.2. The revised rates per month
being recommended by the Commission are
₹15,500 for officers, ₹10,800 for Military
Nursing Service Officers, ₹5,200 for
JCOs/ORs and ₹3,600 for Non Combatant
(Enrolled) in the Air Force. The
recommendations of the Commission with
reference to other demands relating to MSP
are discussed in the succeeding paragraphs.
xxxxxx
6.2.116 MSP to MNS Officers: The
Commission has taken note of the proposals of
the Defence Services and has recommended a
separate rate of MSP for Military Nursing
Service Officers. The rates of MSP for
Military Nursing Service Officers have been
revised by a factor of 2.57 from the existing
month. The
₹4,200 per month to ₹10,800 per
revision factor is identical to what is being
recommended in the case of Service officers.
14. It is well settled that ordinarily the Courts will not enter
into evaluation of the pay scales; these are matters to be left to
the experts and the executive. There are various factors which
are to be considered while fixing the pay scales, in the present
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case, the MSP. These factors having been considered by the
authority charged with this duty, unless this Court finds ex facie
arbitrariness or discrimination in the same or where the same is
found to be contrary to law or as being in violation of
constitutional provision, the Court would refrain itself from
entering this field. Reference in this regard may be made to the
judgments of the Supreme Court in Secretary, Finance
Department (supra), Shyam Babu Verma (supra), Federation
of Railway Officers Association (supra), Dineshan K.K.
(supra), Subhas Kumar Chatterjee (supra), S. Thakur (supra),
Mala Banerjee (supra), and R.D. Sharma & Anr. (supra).
15. Considering the above position of law, the High Court of
Punjab and Haryana in Ex-Naik Harbhal Singh (supra) also
refused to entertain a petition on a similar challenge, observing
as under:-
4. Fixation of MSP to JCOs/ORs,
“
Commissioned Officers including Military
Nursing Officers having been gone into by the
Pay Commission and its recommendations in
respect thereto having been accepted by the
competent authority, we find no reason to
tinker with the rate of Military Service Pay
fixed for respective categories by the Pay
Commission as approved by the Government
in the absence of it being shown that the same
was made on extraneous consideration. It is
not for this Court in exercise of writ
jurisdiction to usurp the powers conferred on
any authority and fix Military Service Pay
admissible to different categories of military
personnel different from the Military Service
Pay prescribed by the competent Authority in
exercise of said powers. The equivalence of
the claim for grant of equal Military Service
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Signing Date:08.10.2024
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Pay by the petitioner i.e. an Ex Naik with a
Commissioned Officers is a matter exclusively
to be determined by an expert body like the
Pay Commission and the said body would be
the best judge to evaluate the duties
performed, nature of duties, risk etc and other
germane considerations qua the post held for
grant of MSP.
”
16. We see no reason to differ from the above view.
17. Accordingly, we find no merit in the present petitions and
the same are dismissed. This shall, however, not preclude the
petitioners from making a representation in this regard to the
concerned authority, which may consider the representation of
the petitioners remaining uninfluenced by the present order.
NAVIN CHAWLA, J
SHALINDER KAUR, J
SEPTEMBER 30, 2024/rv/DG/SJ
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Signature Not Verified
W.P.(C) 12842/2018 & W.P.(C) 12903/2018 Page 9 of 9
Digitally Signed
By:SUNIL
Signing Date:08.10.2024
10:26:13