Borkar Shankar Laxman vs Union Of India And Others

Even though this case was listed before Court No 2 but on account of non-availability of learned Member (Judicial) and at the request of the

learned counsel for the applicant, on orders of the Chairperson, the matter stands transferred to this Court.

M.A. No. 1771 of 2019:

Vide this MA, respondents seek condonation of delay of 42 days' delay in filing the counter affidavit. As sufficient cause has been shown in the

application, delay is condoned. Counter affidavit is taken on record.

M.A. No. 1771 of 2019 stands disposed of accordingly.

O.A. No. 270 of 2019:

The present OA 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 (JWO) on the basis of Govt. 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 & Ors. Vs. Union of India (0.A. No. 1166 of 2017) and JWO Ashok Kumar Tanwar & Ors. Vs. Union of

India & Ors. (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 & 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 that ""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 if, 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

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 duration of less than 10 months, stands clearly established.

On the issue of pension amount so authorized, 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 principles laid by the Hon'ble Supreme Court in D.S. Nakara Vs. Union of India [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 JWO P. Gopalakrishnan Vs. Union of

India & Others(0.A. No. 62 of 2014 decided on 13.02.2015), the complete import and implication of Circular dated 02.02.2009, Regulations for the Air

Force Part I and the Gol 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 6th CPC, accepted by Government of India through its letter dated

11.11.2008 and Circular dated 02.02.2009, have also been I considered. We fmd 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 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 para 14 of the order in the case of JWO 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 after01.04.2004 was fixed at Rs.3,694/-.Thesubmission ofthe 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 ..JWO in Table 116 of Circular 430 having 20 years of service and retired after 01.04.2004 would be the respondents. Therefore, the

pension payable to the applicant as on 13 01.2005 in accordance with the policy letters of the 09.02.2001 would be Rs.4,711/- and not Rs.316941.

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 Rs.7,100/- and the revised pension with

effect from 01.07.2009 would be Rs.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. 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 P. Gopalakrishnan (supra).

Accordingly, the instant OA 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. JWO, 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.