Darvinder Ambardar vs Union Of India And Others

By way of the present OA. the applicant claims revision of his pension on the basis of last rank held, i.e., Junior Warrant Officer from 01 10.2003.

Counsel for the applicant submits that case of the applicant is duly covered by number of judgments rendered by this Tribunal and affirmed by the

Honble Supreme Court.

Heard.

Issue notice to the respondents in the OA.

Counsel for the respondents submits that subject to verification, appropriate orders may be passed. As such, vide separate order. OA stands disposed

of.

MA 2396/2019

Applicant seeks condonation of delay of 355 days in filing the OA.

In view of the averments made in the application, delay of 355 days in filing the OA is condoned. Same is taken on the record. MA stands disposed

off.

OA 1477/2019

Heard learned counsel for the parties

2 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 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.

Reference is made to orders of this Tribunal (Principal Bench) in OA 1166/2017 JWO Pramod Kumar Singh & Ors. Vs. Union of India and OA

882/2016 JWO Ashok Kumar Tan war & Ors. Vs. UOI The applicants have also referred to the order of the Tribunal (Regional Bench) Chennai in

the matter of Thiagrajan Vs Union of India in OA No. 93/2014 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 Ilk sc,rvice and that the

applicant had earned his pension in the rank of J1/\/0 already. and therefore. is entitled to be paid pension in the rank of J1/VO. 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 of ten months before retirement has been dispensed with in keeping

with Govt. of India circular dated 09.02.2001 however. they contend that they are correct in giving pension to the applicants in the lower rank as it is

financially more beneficial.

We find that there al 3z c7itena of judgments of various benches of the Armed Forces Tribunal on this issue. Consequently. the fact that he

applicant is entitled to pension in the last rank held by him, even ii they held it for a duration less than ten months, stands clearly stablished.

On the issue of pension amount so authorized, we find that the argument that a junior promoted to a senior rank (e.g. JVVO. 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 de Supreme Court in D.S. Nakara Vs. Union of India report in 1983 (1) SCC 30 5It is also not possible in

rational caculations, to peg the pension of a PBOR who has held the higher rink for less than ten months to be computed less than his pension in his

previous rank (junior rank).

On the exact method calculation, we find that in a judgment of AFT Chennai in OA 62/2014 delivered on 13.02.2015 in the case of JVVO .

Gopalakrishnan Vs. Union of India & Others, the con., Ae import and implication of Circular 430 dated 02.02.2009 Regulations for the Air Force Part

I; GO! MoD letter dated 2. .11.1983 has been explained. Government Policy letters dated 07.06.1999. 09.02.2001 and 17.12.2008 have been cons

Hered. Most significantly, the recommendations of the 6 1h CPC accepted by Government of India through its letter date.. 1.11.2008 and Circular 430

have also been considered. V\if' that the specific letter number being identical, in all probability the date of GOI communication is 12.11.2008 and not

11.11.2008

In consideration of a!! ic e issues as well as Circulars, the Tribunal, in that case, C31I1C3 to the conclusion that the basis of calculation being

pursued in the instant case was detrimental for the pension of petitioner To ihis 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

letter 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 Rs.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 JWO in Table 116 of Circular 430 having 20 years of service and retired

after 01.04.2004 would he Rs.4,711/- and not Rs. 3.358/- as put fon?) by the respondents. Therefore, the pension payable to the applicant

as on 13 01.2005 in accordance with thepolicy letters of the Government of India dated 07.06.1999 and 09.02 2001 would he Rs 4,711/-

and not Rs.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

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 PRO 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 applicant is entitled to revised pension from the date of discharge in the rank last held by him on that date in accordance with Govt.

of India (MoD) letters dated 07.06.1999 and 09.02.2001. Similarly, the respondents need to implement the calculation of revised pension for the

applicants w.e.f. 01.01.2006 as per Govt. letter dated 12.11.2008 and Table 116 in Circular 430 was ordered by AFT Chennai in OA 62/2014. in the

case of JWO P Gopalakrishnan (supra).

Accordingly, the OA is allowed. Subject to verification, the respondents are directed as under

(i) To calculate the pension of the applicant based on the last held rank by him before retirement. and in consonance with the principles of calculation

that have been upheld in the judgment of JWO Gopalakrishnan (supra) in this regard,

(ii) Applicant will be accordingly issued a fresh Corrigendum PPO in the last rank held within a period of four months and arrears paid accordingly,

failing which, he will be entitled to interest © 8% per annum.

No order as to costs

O.A. is disposed of accordingly .