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Judgment
Through the medium of the instant 0.A filed under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant is seeking the following reliefs:
(a) Quash the impugned letter dated 02.01.2017 vide which the respondents have rejected the representation of the applicant for grant 01 substantive
rank of Lieutenant Colonel;
(b) Direct the respondents to grant substantive rank of Lieutenant Colonel to the applicant on completion of 20 years of his commissioned service, in
terms of the Government of India letter dated 14.01.2000 on the subject as well as the order dated 29.05.2015 of this Tribunal in 0.A No. 138 of 2013
and the order dated 01.03.2016 passed by the Hon'ble Supreme Court in Civil Appeal No. 5112 of 2016;
(c) Direct the respondents to accord full consequential benefits, including the arrears thereupon and the rank and pension of Lieutenant Colonel to the
applicant.
The facts of the present case, in brief, are that, the applicant was commissioned as a Short Service Commissioned Officer in the Indian Army on
24.08.1975. He was granted permanent commission on 24.08.1980. He retired prematurely from service on 02.09.1996, after rendering 20 years, 04
months and 11 days service. At the time of retirement, the applicant was holding the rank of substantive Major with effect from 21.04.1987. As per
the Government of India (Ministry of Defence) letter dated 21.11.1997, the officers who became substantive Majors or equivalent before 01.01.1996
will be granted the scale of Lieutenant Colonel or equivalent on completion of 21 years of commissioned service. This order of the Govt granting the
pay scale of Lieutenant Colonel or equivalent to Majors after completion of 21 years of commissioned service, was further improved vide another
order dated 14.01.2000. This order dated 14.01.2000 primarily related to grant of substantive rank of Lt Col and equivalent (time scale) after
completing 20 years of commissioned service. Though the, heading of this letter clearly indicated that this letter related to implementation of Vth
Central Pay Commission recommendations, however, the letter did not mention any date of implementation. The respondents, however, implemented it
with effect from the date of issue of this letter i.e. 14.01.2000 and not from 01.01.1996 i.e. the date of Vth Central Pay Commission. In 2015, in 0.A
No. 138 of 20131 involving three Lieutenant Commanders (equivalent to Major)/ this Tribunal passed an order dated 29.05.2015, whereby this date
fixed by the respondents i.e. 14.01.2000 was set aside and the three Lieutenant Commanders of Navy were granted substantive promotion to the rank
of Commander (Time Scale) with effect from 31.01.1997 i.e the date when all the three had completed 20 years of commissioned service. This order
was subsequently upheld by Hon'ble Supreme Court in appeal vide its order dated 01.03.2016. On 04.06.2016, the applicant submitted a representation
requesting the respondents for grant of substantive rank of Lieutenant Colonel in terms of the order dated 29.05.2015 passed by this Tribunal in 0.A
No. 138 of 2013 and the order of the Hon'ble Supreme Court dated 01.03.2016 in C.A No. 5112 of 2016. The applicant gave another representation
dated 26.09.2016 for fixation of his pension in the rank of Lieutenant Colonel. However, the PCDA, vide its letter dated 17.10.2016, rejected the
request of the applicant stating that he was not drawing the pay of Lieutenant Colonel (Time Scale) at the time of .his retirement. The Colonel (Time
Scale). Finally, vide the impugned letter dated 02.01.2017 (Annexure Al), the request of the applicant for grant of substantive rank of Lieutenant
Colonel in terms of the decisions of this Tribunal was rejected. Hence the instant O.A.
The learned counsel for the applicant submitted that the case of the applicant for grant of substantive promotion to the rank of Commander (Time
Scale) after 20 years of commissioned service is covered by the Government policy letter dated 14.01.2000. He further submitted that the law on this
subject has already been settled vide the order of this Tribunal in Lt Cdr B.R. Sharma and others v. Union of India and others in 0.A No. 138 of 2015
dated 29.05.2015 and the judgment of the Hon'ble Supreme Court in C.A No. 5112 of 2016 dated 01.03.2016. He contended that the Tribunal in its
judgement has not accepted the implementation date of this letter as 14.01.2000, as claimed by respondents and had granted substantive promotion to
the applicants to the rank of Time Scale Commander (equivalent to Lt Col) with effect from 31.01.1997 i.e. on completion of 20 years of their
commissioned service. Learned counsel vehemently pleaded that the heading of the above mentioned letter is 'Implementation of Vth. Pay
Commission Recommendations' hence the implementation date has to be same as that of Vth CPC, i.e. 01.01.1996. He further submitted that this
aspect has been commented upon by this Tribunal in its above mentioned judgement. He concluded by pleading for grant of substantive promotion to
the applicant to the rank of Lt Col (Time Scale) on completion of 20 years of commissioned service in 1996.
The respondents have contested the case by filing a counter affidavit and stated that since the applicant retired prematurely without completion of
21 years of service, he is not eligible for grant of scale of Lieutenant Colonel and the rank pay of Major in terms of the letter dated 21.11.1997.
Further, the letter dated 14.01.2000 issued by the Government provided that on completion of 20 years of reckonable commissioned service, promotion
to the substantive rank of Lieutenant Colonel (Time Scale) ,or equivalent is to be granted to Major or equivalent. This letter was effective from the
date of issue i.e. 14.01 2000. Since the applicant retired prematurely on 02.09.199 6 before the issue of the letter dated 14.01.2000, hence he was not
eligible for grant of substantive rank of Lieutenant Colonel (TS) in terms of the letter /bid. The learned counsel for respondents further submitted that
the case law of Lt Cdr B.R. Sharma (supra) cited by the applicant is specific to his case and is not relevant to the applicant. Additionally, he pointed
out that in this judgement, the benefit of prpmotion has been extended with effect from 31.01.1997, hence the applicant, who prematurely retired from
service in 1996, is not eligible for the same. He pleaded for the 0.A to be dismissed.
Having heard the learned counsel for both the parties and perused the record, the only question which we need to answer is straight and simple i.e
what is the cut-off date for implementation of the Government order dated 14.01.2000 for grant of substantive rank of Colonel (Time Scale)?
We have found that this question has been answered to a large extent i ti4 in the case Lt Cdr BR Sharma (supra). Following extracts of this
judgement indicate the thought process of the Bench:
We have heard the learned counsels at length and analysed the legal postulations laid by the Honble High Court of Punjab and the
Honible Supreme Court. In the facts presented before us, it is evident that this is not a case where the relevant pay commission
recommendation was not accepted by the Government. Nor is it a case of additional benefits given by the Govt. at a later date over and
above the pay commission recommendations. The Govt. order issued on 14.01.2000 dearly stipulates that the subject of the order issued by
the Govt. is ""implementation of Vth Pay Commission Recommendations - Para 147.21 conditions regarding grant of substantive rank to
officers of Army, Air Force and Navy."" In respect of promotion to substantive cadres of Lt. Col (TS) and equivalent, the years of service
required has been stipulated as 20 years of commissioned service. This order does not stipulate any specific date of implementation. The
respondents were not able to present before us any valid ground such as financial constraints etc. .to justify an effective date other than
31.01.1997 for implementation of the relevant recommendations of 5th CPC as applicable to the petitioners consequent to the issue of
Gazette notification on 13.10.1997 and the orders of the Govt. on Pay & allowances of Armed Forces Tribunal dated 21.11.1997
17 As discussed, a similar issue on facts and law was decided in favour of the petitioner by the Honlble AfTin Maj KG Thomas Vs UOI CA
256/2011 which has been upheld by the Honible Supreme Court in Civil Appeal No.12209/2014 wherein the officer had been relieved from
the Army on 31.05.1988. Yet, he was found entitled to the benefits given by the Govt. orders dated 21.11.1997 since he had completed the
requisite number of years of service as on the date he had been relieved.
The reduction of years of service from 21 years to 20 years would amount to be benevolent legislation and denial of the same to the
petitioner would amount to gross injustice. It will be relevant to point out, that in matters of pension, the role of the state as benevolent
employer is exemplified by the provisions contained in the pension regulations providing for waiver of upto one year of qualifying service
by the competent authorities.
It is thus clear that the Tribunal in the above case has rejected the contention of the respondents that this letter is to be implemented with effect
from 14.01.2000. However, we have noticed that the Tribunal has expressed views indicating that the letter should be implemented from the date of
implementation of Vth Pay Commission i.e. 01.01.1996 without expressly saying so and has restricted itself to providing relief limited to the extent of
the prayer of the applicants i.e. to grant substantive promotion to the rank of Commander (Time Scale) on completion of 20 years of commissioned
service. Since all the three applicants in this 0.A were completing 20 years of commissioned service on 31.01.1997, hence this date has been reflected
in the judgement for grant of substantive promotion to Commander (Time Scale). Now the respondents are contending that since the applicant has
completed 20 years of commissioned service in the year 1996 and the above mentioned judgement has cleared promotion with effect from 31.01.1997,
hence the applicant is not eligible for promotion to the rank of Lt Col (Time Scale).
In view of the above, we have given our anxious consideration to the original question, as to what is the implementation date of the Government
letter dated 14.01.2000, which basically authorises substantive promotion from Major and equivalent to Colonel (Time Scale) and equivalent after
completion of 20 years of commissioned service. In this respect, after considering all the relevant issues and the earlier judgements of this Tribunal
and the Hon'ble Supreme Court, we are of the opinion that this date is 01.01.1996 i.e. the date of implementation of Vth Pay Commission. Our
reasons for reaching this conclusion are as follows:
(a) The above mentioned Government letter dated 14.01.2000 is silent on the effective date of its implementation, but its heading reads as
Implementation of VthPay Commission RecommendationsPara147.21 Conditions Regarding Grant of Substantive Rank to Officers of Army, Air
Force and Navy"" and the implementation date of Vth Pay Commission is 01.01.1996.
(b) The letter primarily being a welfare and morale boosting letter for officers cadre of the Arrned Forces, therefore, it could not have been the
intention of the Government to give Vth Pay commission promotion benefits in parts, i.e. only to those Majors who completed 20 years commissioned
service on 14.01.2000 and leave other Majors affected by Vth Pay Commission i.e. between 01.01.1996 and 14.01.2000 at a disadvantage.
(c) The intention of the Government to provide relief to Majors is clearly visible in its letter dated 21.11.1997 where by all Majors and equivalent who
had completed 21 years of commissioned service before 01.01.1996, were granted pay scales of Lt Col. Thus, this new Government order dated
14.01.2000, which was an improvement over the previous order dated 21.11.1997, by all logic and rationale, had to be implemented with effect from
01.01.1996.
(d) There are a catena of judgements by the High Courts and the Hon'ble Supreme court on the issue of rejecting an unreasonable differentiation
between similar class of people and since Majors who had completed 20 years of service in Vth Pay Commission i.e. with effect from 01.01.1996 are
similar class of people, their artificial segregation after 14.01.2000 is bad in law.
(e) Similarly, there are a number of judgements by the High Courts and the Hon'ble Supreme court on the issue of effective dates for implementation
of recommendation of a pay commission. In this context, it would be appropriate if we refer to Para 7 of the judgement in the case of Lt Cdr B.R.
Sharma's case (supra), which is reproduced as under:
On the issue of dates, in the case of ic3 Narayan Takkar Vs 1101 Division Bench of the Hon tile High Court of Punjab and Haryana WP
15400/2006 has held, ""It was during the implementation of 5th CPC it was found by the respondents that there is anomaly in the pay scales.
Once the anomaly in the pay scales is found and sought to be removed then it has to be removed from the implementation of the
recommendation of the Pay Commission i.e. 01.01.1996. There is no explanation as to why the said anomaly is sought to be removed from
10.10.1997 In the absence of any explanation of removal of anomaly from 10.10.1997, we do not find the action of the respondents fixing
such dates as justified.
Thus, in view of our above mentioned observations, we make it clear that the new Government policy dated 14.01.2000 is to-be deemed to be
operative from 01.01.1996. Thus, according to that policy, an officer had to complete 20 years' service as commissioned officer, in the substantive
rank of Major for grant of promotion to the higher rank of Lt Colonel (TS), which the applicant has completed a few months before his premature
retirement on 02.09.1996.
Resultantly, we direct that the applicant be deemed to have been promoted to the rank of Lt Colonel (Time Scale) with effect from the date he
completed 20 years of service in 1996, with consequential benefits as per the provisions of the Government of India letter dated 14.01.2000. However,
since the applicant has approached this Tribunal after a huge delay, his financial benefits and arrears, will be restricted to a period of three years
before filing of this OA in terms of the law settled by Hon'ble Supreme Court in the case of Union of India and others v. Tarsem Singh (C.A No.
5151-5152 of 2008 decided on 13.08.2008). The date of filing this OA is 06.03.2017. The respondents shall implement this order within four months
from the date of receipt of a copy of this order, failing which the amount shall carry interest at the rate of 6% per annum from the date of this order till
actual payment.
The 0.A is allowed, as above. No order as to costs.
Pronounced in open Court on this the 17th day of February 2020.