V.P. Shantha Kumar vs Union Of India And Others

Heard.Admit.

Issue Notice. Notice is accepted by Mr. S.D. Windlesh, counsel for the respondents.

Counsel for the applicant submits that this case is squarely covered by number of judgments. Counsel for the respondents does not dispute the same

and submits that subject to verification, appropriate orders may be passed.

Vide separate order, OA stands disposed of.

M.A. No. 2699 of 2019:

By virtue of this application, the applicant seeks condonation of delay of 4875 days in filing the accompanying OA. In view of the reasons carved out

in the instant application and the principles laid down by the Hon'ble Supreme Court in Union of India & Ors. Vs. Tarsem Singh [2008 (8) SCC 648,]

delay in filing OA is condoned.

Accordingly, M.A. No. 2699 of 2019 stands disposed of.

O.A. No. 1817 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. 11G6 of 2017) and JIM 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 & Ors. (0.A. No. 93 of 2014), which waived-off the ten months as stip ated 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 hi:: 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 1251. 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, Ifence 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 ,rwo 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 GoI MoD letter dated 22.11.1983 has been explained. The Government Policy letters dated

07.06.1999,09.02.2001and17.12.2008havebeen 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 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 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 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 JWOin 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 Rs.3,694/-. Similarly, the benefits conferred upon the JW0 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 01.072009 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. 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.

8.We find that the respondents need to implement the calculation of revised pension for the applicant w.e.f. 01.01.2006 as mentioned above, as he is

similarly placed as the applicant in JWO P. Gopalakrishnan (supra).

Accordingly, the instant OA is allowed. The respondents are directed as under:

(i)To calculate the pension of the applicant based on the last held rank by him be for retirement i.e. JWO,and inconsonance 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.