JUDGMENT

HANSARIA, J.—This conglomeration of appeals (some of which arise because of leave already granted and some came into existence because of leave being granted) require us to decide three questions:

(1) Whether the decision of the Union of India not to allow Dearness Relief (DR) on pension to the ex-servicemen on their re-employment in a civil post is in accordance with law or not;

(2) Whether denial of DR on family pension on employment of dependants like widows of the ex-servicemen is justified or not; and

(3) Reduction of pay equivalent to enhanced pension of those ex-servicemen who were holding civil posts on 1-1-1986, following their re-employment, is permissible or not.

We would examine these questions seriatim. Disallowing of DR on pension on re-employment

2. To answer the above question involved in some of the appeals, the background leading to the aforesaid decision may be briefly noted. To start with there was no provision for payment of DR to the pensioners. Various representations were made to the Third Pay Commission seeking some recommendations in this regard for protecting the pension of the government employees from erosion on account of possible increases in the cost of living in future. The Commission considered this matter and also the question regarding the manner in which some relief could be provided to the future pensioners. After having noted the various suggestions which the Commission received in reply to its questionnaire, it recommended that all future pensioners, irrespective of the amount of pension drawn by them, should be given relief @ 5% of their pension subject to a minimum of Rs 5 per mensem and maximum of Rs 25. The Commission further recommended that the relief should be given as and when there is a 16-point rise in the 12monthly average of the All-India Working Class Consumer Price Index. This recommendation of the Commission was accepted by the Central Government vide its Office Memorandum of even number dated 6-4-1974, making the relief available to those employees belonging to Classes II, III and IV, who retired from service prior to 1-1-1973, as well as those who retired afterwards.

3. A decision was, however, taken subsequently not to pay DR to re-employed pensioners. This was made applicable to those ex-servicemen who had come to be re-employed in civil posts. Various writ petitions and original applications were filed in different legal fora of the country, which came to be decided either by upholding the validity of the decision or by taking a contrary view. The parties who lost have preferred these appeals.

4. The learned Additional Solicitor General appearing for the Union of India submits that the decision merits our acceptance because of what has been stated in clause (ii) of Rule 55-A of Central Civil Services (Pension) Rules, 1972, as amended in 1991. We are, however, of the view that the decision cannot be so supported for the reason that the aforesaid rules have application to the persons who were members of Central Civil Services. The ex-servicemen having apparently not been members of such Services, what has been provided in Rule 55-A(ii) cannot be invoked to deny DR on pension/family pension to the ex-servicemen on their re-employment.

5. Had the aforesaid been the only provision pressed into service to deny DR to the ex-servicemen, we would have had no difficulty in striking down the decision inasmuch as the ex-servicemen having been allowed pension and DR on it in accordance with the conditions of service governing defence personnel, the provision contained in the aforesaid rule governing service condition of altogether different class of servicemen could not have impinged on their right to get DR on the pension. Learned Additional Solicitor General, however, advances an alternative submission and the same is that there are even army instructions which, read with office memoranda of Ministry of Finance, will show that Dearness Relief on pension cannot be paid even to e