4. The Officer in charge, Madras Engineer Group Record Office Madras Engineering Group Sivanchetty Garden (PO) Post Box No.4201, Bangalore

Transcription

1 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI (Circuit Bench at Hyderabad) O.A. No.41 of 2018 Tuesday, the 20th day of March, 2018 THE HONOURABLE MR.JUSTICE V.S.RAVI (MEMBER J ) AND THE HONOURABLE LT GEN C.A.KRISHNAN (MEMBER A ) No K. Ex. Hav. (Hony. Nb. Sub.) T.Ranganayakulu Aged 56 years, S/o Late T.Rosanna MEG Records, Village & Post : Yadavalli Mandal : Racheria, Dist: Prakasam Andhra Pradesh PIN By Legal Practitioner: M/s M.Selvaraj & P.Rajagopal vs. Applicant 1. Union of India Represented by its Secretary Ministry of Defence South Block, New Delhi Chief of Army Staff Army Head Quarters (AHQ) Defence Head Quarters (DHQ) Integrated Head Quarters (IHQ) New Delhi The Principal Controller of Defence Accounts(Pensions), Office of the PCDA (P) Draupadi Ghat, Allahabad, U.P The Officer in charge, Madras Engineer Group Record Office Madras Engineering Group Sivanchetty Garden (PO) Post Box No.4201, Bangalore Respondents Mrs.S.Sivakumari Central Government Counsel

2 2 ORDER HON BLE LT. GEN. C.A.KRISHNAN, (MEMBER-A) 1. This Original Application has been filed by Shri T.Ranganayakulu, Ex. Havildar and Hony. Naib Subedar No K, who was discharged from the Indian Army with effect from , praying to direct the 4 th respondent to dispose of his representation dated and to grant pension benefits as per the recommendations of the VI Central Pay Commission to the pre Havildar retirees who were conferred with Honourary Naib Subedar and release the applicant s pension arrears of Honourary Naib Subedar with interest, with effect from The applicant submits that he was discharged from the Indian Army with effect from , after 24 years of service. After his discharge, he was granted the rank of Hony. Naib Subedar on The learned Counsel for the applicant submitted that, vide representation dated to the 4 th Respondent, the applicant has claimed benefit under letter No.1(8)/2008-D(Pen/Policy) dated 12th June, 2009 issued by the Government of India, Ministry of

3 3 Defence (Department of Ex-servicemen Welfare), New Delhi vide which Havildars who have been conferred honorary rank of Naib Subedar have been granted regular pension as applicable for the rank of Naib Subedar with effect from providing them notional promotion to higher grade of Naib Subedar. He submitted that the Government of India letter dated (supra) reads as follows: I am directed to say that in pursuance of Government decision on the recommendations of the Sixth Central Pay Commission contained in Para of Chapter V of the Report, the President is pleased to decide that Honorary rank of Naib Subedar granted to Havildars will be notionally considered as a promotion to the higher grade of Naib Subedar and benefit of fitment in the pay band and the higher grade pay will be allowed notionally for the purpose of fixation of pension only. Accordingly, additional element of pension of Rs.100/- pm payable to Havildars granted Hony rank of Naib Subedar as per Regn. 137 of Pension Regulations for the Army Part-I (1961), amended vide this Ministry's letter No.1(1)/88/D(Pen/Sers) dated will cease to be payable. The notional fixation of pay in the rank of Naib Subedar will not be taken into account for payment of retirement gratuity, encashment of leave, composite transfer grant etc. 2. This letter takes effect from 1 st January, This issues with the concurrence of the Finance Division of this Ministry vide their U.O.No.2351/Finance/Pension dated The learned Counsel for the applicant submitted that though the applicant had retired from the Army in the rank of Havildar on

4 , since he was conferred the rank of Hony. Naib Subedar on , he was entitled to have his pension refixed in the rank of Hony. Naib Subedar with effect from in terms of Ministry of Defence letter No.1(8)/2008-D(Pen/Policy) dated 12th June, He further argued that the Ministry of Defence, in their letter dated 12th June, 2009(supra) have not specifically stated that the benefit of revision of pension is available only to those who retired after and therefore it deserves a more beneficial interpretation. The learned Counsel further submitted that in the case of D.S.Nakara & Ors. Vs. Union of India(1983) 1 SCC 305 decided on , the Hon ble Apex Court held that pensioners form a single class and that they cannot be discriminated based on a cut off date of retirement. He argued that the stand of the respondents to deny the revision and fixation of pension of the applicant in the rank of Naib Subedar for the reason that he retired prior to is totally incorrect and fallacious and hence liable to be set aside as unconstitutional. 5. The learned Counsel for the respondent, on the other hand, contend that the benefits under letter No.1(8)/2008-D(Pen/Policy) dated 12th June, 2009 issued by the Government of India, Ministry of Defence (Department of Ex-servicemen Welfare), New Delhi is

5 5 available only to those who retired on or after He submitted that the applicant was discharged from service on , much prior to , and therefore, is not entitled to have his pension revised in the rank of Hony. Naib Subedar which was conferred on him subsequent to his retirement. 6. Heard rival submissions and perused the documents placed before the Tribunal. 7. The issue involved in this case is no longer res integra as is evident from the Hon ble Supreme Court Judgment in D.S.Nakara & Ors. Vs. Union of India (supra) and orders passed by this Regional Bench in O.A.No.72 and O.A.No.141 of 2013, O.A.No.126 of 2016 and the Kochi Regional Bench in O.A.No.100 of 2012, O.A.No.84 of 2015 and O.A.No.239 of 2017, wherein similarly placed personnel claimed the benefit of revision of pension bestowed by letter No.1(8)/2008- D(Pen/Policy) dated 12th June, 2009 issued by the Government of India, Ministry of Defence (Department of Ex-servicemen Welfare), New Delhi. By the orders of various Benches of the Armed Forces Tribunal, it was held that pre-2006 retiree Havildars who had been granted the rank of Honourary Rank of Naib Subedar were also

6 6 entitled to the benefit of the Ministry of Defence letter dated 12th June, 2009(supra). 8. Analyzing the Sixth Central Pay Commission recommendations which forms the basis of the letter dated 12th June, 2009 of Ministry of Defence, the various Benches of Armed Forces Tribunal expressed the view that neither the Commission nor the Government made any distinction between Havildars of pre-2006 retirees and post-2006 Havildar retirees in the refixation of their pension in the Honorary Naib Subedar rank w.e.f In view of the foregoing, the Original Application is allowed declaring that the applicant is entitled to the benefit of the Government letter dated 12th June, 2009(supra). The respondents are hereby directed to grant the benefits of notional promotion and fitment in the Pay Band and Grade Pay of Naib Subedar to the applicant as per Ministry of Defence Order dated (supra) and to fix their pension in the rank of Honorary Naib Subedar and revise the pension of the applicant with effect from and pay the entire amount including the arrears due to him within a period of four months from the date of receipt of a copy of this Order.

7 7 If, Rs.100/- per month has already been paid to the applicant in terms of Government letter No.1(1)/88/D(Pen/Sers) dated , it shall be adjusted against the amount due to the applicant as per this Order, and payment of the amount of Rs.100/- to him shall be discontinued. 10. The O.A. is accordingly disposed of. There will no order as to costs. Issue free copy of this order to both sides. 11. Learned counsel for the respondents/union of India made oral prayer for grant of leave to appeal before the Hon ble Supreme Court. We are of the considered opinion that no ground is made out for grant of leave to appeal as there is no question of law of public importance involved in this case. Hence the oral prayer, made by the learned counsel for the respondents is rejected. Sd/-. LT GEN C.A.KRISHNAN MEMBER (A ) Sd/-. JUSTICE V.S.RAVI MEMBER (J ) (True Copy) Member (J) Index : Yes/No Member (A) Index : Yes/No Internet : Yes/No Internet : Yes/No CAK/sun

8 8 1. Mrs.S.Sivakumari, Central Government Counsel for Respondents 2. M/s M.Selvaraj & P.Rajagopal, Counsels for Applicant 3. OIC, Legal Cell (Army), Telangana & Andhra Sub Area, Secunderabad, A.P 4. Library, AFT, RBC, Chennai.

9 9 HON BLE MR. JUSTICE V.S.RAVI (MEMBER- J ) AND HON BLE LT GEN C.A.KRISHNAN (MEMBER A ) O.A.No. 41 of