Arun Kumar Singh vs Union Of India And Others

M.A No. 1210 of 2020:

The delay in filing the 0.A has been explained by the applicant. Keeping in view the averments made in the application and finding the same to be

bona fide and in the light of the decision in Union of India and others v. Tarsem Singh (2009(1) AISLJ 371), we allow the instant M.A condoning the

delay of 5,420 days in filing the O.A.

0.A No. 1060 of 2020:

The present 0.A has been filed by the applicant praying for revision of his pension in accordance with the last rank held by him before retirement,

i.e. Junior Warrant Officer (JW0) on the basis of the Government of India circular dated 09.02.2001, wherein it has been clarified that ten months'

continuous service in the last rank held is not required for grant of pension in such rank. In this regard, reference is made to orders of this Tribunal

(Principal Bench) in JWO Pramod Kumar Singh and others v. Union of India and others (0.A. No. 1166 of 2017) and JWO Ashok Kumar Tan war

and others v. Union of India and others (0.A. No. 882 of 2016). The applicant has also referred to the order of the Tribunal (Regional Bench),

Chennai in the matter of Thiagrajan Vs. Union of India and others (0.A. No. 93 of 2014), which waived off the ten months as stipulated in Para 123 of

Pension Regulations for Air Force 1961 and opined as under:

Pension cannot be deprived to an individual to a rank for which he has already rendered his service and that the applicant had earned his pension in

the rank of JWO already, and therefore, is entitled to be paid pension in the rank of JWO. Even it; for some reason, such a pension is found to be less,

the applicant is entitled to receive the highest pension he earned already. The said statutory right for pension already earned by the applicant cannot be

reduced even if an undertaking is executed by him for the receipt of any lower pension in the rank of JWO.

Though the respondents concede that the requirement of holding the last rank before retirement has been dispensed with, keeping in view the

Government of India circular dated 09.02.2001, they, however, contended that they are correct in giving pension to the applicant in the lower rank as it

is financially more beneficial.

We find that there is a catena of judgments of various Benches of the Armed Forces Tribunal on this issue. Consequently, the fact that the

applicant is entitled to pension in the last rank held by him, even if he held it for a duration of less than 10 months, stands clearly established.

On the issue of pension amount so authorised, we find that the argument that a junior promoted to a senior rank (e.g. JWO, MWO or WO) should

be pegged at a pension of his last but one rank (i.e. one rank junior to the one he retired), as proposed by the respondents is fallacious. It is also

violative of the ratio and the principles laid by the Hon'ble Supreme Court in D.S. Nakara Vs. Union of India and others (1983) 1 SCC 125. It is also

not possible, in rational calculations, to peg the pension of a PBOR, who has held the higher rank for less than ten months, to be computed a pension

for his previous and lower rank. Additionally, all future pay revisions due to new Pay Commission and five yearly OROP revision are primarily based

on two factors i.e. last rank held and years of service, hence reflection of a lower rank in PPO as compared to the actual higher rank (held for less

than 10 months) is bound to reduce future upgradation and revision of pension.

On the exact method of calculation, we find that in a judgment of the Tribunal, Regional Bench, Chennai in MO P. Gopalakrishnan v. Union of India

and others (0.A. No. 62 of 2014 decided on 13.02.2015), the complete import and implication of the circular dated 02.02.2009, Regulations for the Air

Force Part I and the GoI MoD letter dated 22.11.1983 has been explained. The Government policy letters dated 07.06.1999, 09.02.2001 and

17.12.2008 have been considered. Most significantly, the recommendations of the 6thCPC, accepted by the Government of India through its letter

dated 11.11.2008 and the circular dated 02.02.2009, have also been considered. We find that the specific letter number being identical, in all

probability, the date of Government of India communication is 12.11.2008 and not 11.11.2008.

In consideration of all these issues as well as the circulars, the Tribunal, in that case, came to the conclusion that the basis of calculation being

pursued in the instant case was detrimental for the pension of petitioner. To this end, we would like to quote Paragraph 14 of the order in the case of

_IWO P. Gopalakrishnan (supra), which reads as under:

For appreciating the rival contentions, we have gone through the Tables annexed with Circular 430 issued in pursuance of the policy letters

dated 11.11.2008 by the Government of India. As per the Circular 430 in Table 116, we find the revised pension of Sergeant rank who has

completed 20 years of service and retired after 01.04.2004 was fixed at A's. 3,694/-. The submission of the learned Central Government

Standing Counsel as to the pension of Sergeants who retired on 01.05.2005 shall be Rs. 3,694/- is found correct to that extent. However,

when we go through the service pension payable to a IWO in Table 116 of Circular 430 having 20 years of service and retired after

01.04.2004 would be Rs.4,711/-and not Rs.3,358/- as put forth by the respondents. Therefore, the pension payable to the applicant as on 13

01.2005 in accordance with the policy letters of the Government of India dated 0706.1999 and 09.02.2001 would be Rs. 4,711/- and not Ps.

3,694/-. Similarly, the benefits conferred upon the JWO as per the VI Central Pay Commission recommendations as tabulated in Table 116

of Circular 430 for 20 years of service, we see that the pension payable to the applicant with effect from 01.01.2006 would be R5.7,100/-

and the revised pension with effect from 01.072009 would be Ps. 8,720/-. When the benefits conferred upon the Armed Forces personnel on

the changed policies have been clearly laid down in the Circular 430 containing several Tables, it ought to have been issued by the

respondents without any request from the applicant. However, we find that the applicant had sought for payment of pension in the last held

rank on several occasions and it was not heeded. The claim for pension is a statutory right and the respondents ought to have granted the

entitled pension, admittedly, even without issuing any corrigendum in the PPO. This has been reiterated in various communications of the

Government. Therefore, the respondents are under the obligation to revise the pension when it is brought to their notice of any defect in

granting the pension. However, in this case, the respondents have not acceded to the plea of the applicant even when it was raised

immediately after his retirement.

We find that the respondents need to implement the calculation of pension for the applicant as mentioned above, as he is similarly placed to the

applicant in JWO R Gopalakrishnan (supra).

Accordingly, subject to verification, the instant 0.A is allowed. The respondents are directed as under:

(i) Calculate the pension of the applicant based on the last held rank by him before retirement i.e. MO and in consonance with the principles of

calculation that have been upheld in JWO Gopalakrishnan (supra) in this regard; and

(ii) The applicant will be accordingly issued a fresh corrigendum PPO in the last rank held by him within three months and arrears paid accordingly,

failing which, it shall carry interest @ 6% till actual payment.

No order as to costs.