ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 3222 of 2013

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1 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR OA 3222 of 2013 Daulat Kaushal Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr RK Mankotia, Advocate For the Respondent(s) : Mr Vibhor Bansal, CGC Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. JUDGMENT By this petition, the petitioner prays for grant of pension in the rank of Hony Lieutenant from the date of discharge/retirement i.e with all other benefits as per rules with interest. 2. As per the averments of the petitioner, he was enrolled in the Army on and discharged as Havildar on after rendering 24 years 6 days service. After few months, the petitioner was re-enrolled in the Territorial Army and on completion of 6 years and 19 days of service in the TA, he was discharged on During this tenure he was promoted to the rank of Subedar and Hony Lieutenant. He was further granted the rank of Hony Capt after retirement. At present he is getting the pension in Subedar s rank in spite of his entitlement as per the 6 th Central Pay Commission. 3. The petitioner s representation for grant of pension in the rank of Hony Lieutenant, which was granted before his retirement, along with allied benefits and arrears was turned down by the authorities. Hence the petition. 4. The respondents in their written reply bring out that as per para 136 of Pension Regulation for the Army, 1961 (Part-I), the applicant was granted service pension w.e.f. 1 st May, 2003 at the rate of

2 2 Rs.2275/- per month for life for the rank of Havildar vide PCDA(P) Allahabad Pension Payment Order No. S/056607/2002 (Army) dated 14 Feb 2003 and after surrendering all the benefits and pension by the applicant, the original PCDA(P) Allahabad PPO dated 14 Feb 2003 was cancelled vide PPO No. S/Corr/028248/2009 (Army) dated 12 May Thereafter, the applicant was granted service pension w.e.f. 1 st Oct 2009 at the rate of Rs.9515/- per month for life for the rank of Subedar vide PCDA(P) Allahabad PPO dated 1 st September, Thereafter service pension of the applicant has been revised to Rs.11970/- per month vide PCDA(P) Allahabad PPO dated 6 th Jul It is further pleaded by the respondents that as per correction slip NO. 1/2011 issued as amendment to para 172 (c ) of TA regulations, 1948 (revised) 1976 vide MoD/Fin Diary No. 710/Fin/GS/11 dated 08 Jul 2011 Junior Commissioned Officers granted honorary commission of Captain and Lieutenants while in service will continue to be entitled to same pay and allowances that is paid to their equivalent Honorary Commissioned Officer in Regular Army. However, junior Lieutenants on retirement will be paid in accordance with the rank they held prior to being granted the honorary rank. Consequent upon issuance of the above amendment to TA Regulations 1948 (Rev 1976), this establishment sought clarification from PAO (OR) The Dogra Regt vide letter dated 31 st January, 2012 to confirm whether Corr LPC cum Data Sheet in respect of all affected cases of the Regt are required to be processed or otherwise. In response to above letter, PAO (OR) the Dogra Regt vide their letter no. Re/Tech/Hony TA dated 06 Mar 2012 asked this establishment to forward Corr LPC cum Data Sheet of such cases having effect on and after 08 Jul Accordingly two cases of his Regt (TA JCOs granted Honorary Commission after 8 th Jul 2011) were processed which were accepted by PAO (OR), The Dogra Regiment and revised PPOs were accordingly issued by PCDA(P) Allahabad. However that being the first ever case of this Regt, this establishment also sought necessary clarification from ADG TA vide letter dated 9 th September, 2013 with regard to applicability of the provisions of

3 3 amendment. In response to our letter it has now been clarified by TA Directorate vide their signal No /TA-3 dated 27 th Sep 2013 that the amendment is applicable to those TA JCOs who were granted Hony rank while in service w.e.f. 8 th Jul 2011 and there was no retrospective effect to the amendment 172 ( c) of TA Regulations. 6. In the instant case, the applicant was enrolled in the Regular Army as Recruit on 25 April, 1979 and transferred to pension establishment with effect from 30 April, 2003 (afternoon) as Havildar on completion of period of his service under Item III(i)(a) of the table annexed to Rule 13(3) of Army Rules, 1954 on struck of strength (SOS) from 1 st May 2003 after rendering 24 years, 6 days of service. After few months, on 14 th Sep 2003 the applicant surrendered all the benefits of former service and re-enrolled in Territorial Army i.e. 153 Inf Bn (TA) as direct JCO Commission to the rank of Nb Sub and transferred to Pension Establishment with effect from 30 Sep 2009 as Sub Hony Lt on active list after 06 years and 19 days of service. He was granted Hony Commission as Hony Lt on 15 Aug 2009 while in service. The petitioner is receiving service pension of the rank of Rs.11,970/- per month. 7. Heard the learned counsel for the parties and gone through the record of the case. 8. It is not in dispute that the petitioner was enrolled in the Army on 25 th April, 1979 and transferred to pension establishment on 30 th April, 2003 and was granted pension. However, the petitioner joined the Territorial Army as direct JCO in the rank of Nb Subedar and promoted to the rank of Hony Lieutenant while in service. He retired on 30 th April, 2003 and was further granted rank of Hony Captain after retirement. 9. The learned counsel for the petitioner has invited our attention to the Correction Slip No. 1/2011 in respect of amendment to Territorial Army Regulations, 1948 (revised 1976) which reads as under:

4 4 AMENDMENT TO TERRITORIAL ARMY REGULATIONS 1948 (REVISED 1976 C.S.No. 1/ Regulations for the Territorial Army 1948 (1976 Edition) are amended as under: In Para 172 (c ) FOR Junior Commissioned Officers holding Honorary ranks of Captains and Lieutenants will be paid in accordance with the rank they held prior to being granted the Honorary ranks. READ Junior Commissioned Officers granted honorary commission of Captain and Lieutenants while in service will continue to be entitled to same pay and allowance that is paid to their equivalent Honorary Commissioned Officers in Regular Army. However, junior commissioned Officers granted honorary ranks of Captain and Lieutenants on retirement will be paid in accordance with the rank they held prior to being granted the Honorary rank. Case No /GS/TA-3/561/US/(GS-iii)/2011 This issues with the approval of MoD/Fin diary No. 710/Fin/GS/11 dt (V Rajaram) Under Secretary to the Government of India. 10. Learned counsel for the petitioner argued that the pension for the rank of Honorary Lieutenant may be allowed after the above said amendment. It has also been contended that the said amended dated is a liberalization of existing scheme hence all the pensioners should be treated equally. 11. The learned counsel for the petitioner relied upon the judgment of the Principal Bench in OA No. 64 of 2010 Sub Maj J.S.Pundhir v. Union of India & Ors decided on 19 th July, 2012, and argued that in that case the petitioner was commissioned as Naib Subedar in the Territorial Army and during service became Subedar Major. He was granted the rank of Honorary Lieutenant and thereafter the rank of Honorary Captain and retired on However, he was getting the pension of Subedar Major. He filed the said OA for grant of pension of Honorary Captain. The prayer was allowed and it was ordered by the Principal Bench that the petitioner of that case be given the pension of the rank of Honorary Captain from the date of his retirement. 12. Learned counsel for the respondents, on the other hand, argued that it is not the liberalization of any existing scheme but is an introduction of a new benefit to the individuals in service and consequential retiral benefits and as such the same benefits cannot be extended to those who retired prior to its introduction.

5 5 13. We have considered over the respective arguments. It has to be noted that Para 172 of Regulations for the Territorial Army, 1948 (1976 Edition) is applicable to pay and allowances. Para 172 (before amendment) which comes under the heading Pay and Allowances of Territorial Army Officers and other Ranks as is relevant for our purpose, is as under: 172 Junior Commissioned Officers- (a)..xx..xx (b).xx xx xx xx (c) Junior Commissioned Officers holding Honorary ranks of Captains and Lieutenants will be paid in accordance with the rank they held prior to being granted the Honorary ranks. (d) xxx xxx xxx xxx.. (e)..xx..xx..xx..xx..xx..xx x It is clear that prior to this amendment the Junior Commissioned Officers holding honorary ranks of Captains and Lieutenants were getting pay and allowances of the rank which they were holding prior to the grant of Honorary ranks (Subedar in the present case). Naturally the pension was also being granted for the ranks which such JCOs were holding before the grant of honorary rank. Now by this amendment it has been provided that all the Junior Commissioned Officers (JCOs) granted the honorary rank of Captains and Lieutenants while in service will continue to be entitled to same pay and allowance that is paid to their equivalent Honorary Commissioned Officers in regular Army. Meaning thereby, after this amendment all the JCOs granted Honorary ranks of Captains and Lieutenants while in service were allowed the pay and allowances of those honorary ranks which were conferred during service, which was not the position before this amendment. Natural consequence is that when these JCOs, granted Honorary ranks of Captain and Lieutenant, retire, they get the pension of Honorary Captain or Lieutenant as the case may be.

6 6 15. The case of the petitioner cannot be equated with the case of those JCOs who were granted the rank of Honorary Captain or Lieutenant during service and were getting the pay and allowance of that honorary rank. The petitioner although was granted the honorary rank of Lieutenant while in service but as per the rules existing at that time he was getting the pay of the rank (Subedar) which he was holding before grant of honorary rank in service. These two categories are totally different. One category is of those JCOs, who although granted the ranks of Honorary Captains and Lieutenants during service, were allowed the pay of the rank which they were holding prior to the grant of such Honorary ranks. The second category after the amendment in said Para 172 is of those JCOs who were granted the honorary ranks of Captains and Lieutenants during service and were drawing the pay and allowances of those Honorary ranks. The two categories do not form a homogeneous class. Under this amendment in Regulation 172 no revision of pay of earlier retiree has been made. Naturally the personnel of those above two categories are getting pension as per the pay of the rank held during service. 16. We can elaborate the above by observing that if all the personnel holding the Honorary ranks of Captains and Lieutenants during service and not drawing the pay and allowances of those honorary ranks were allowed the pension of the Honorary ranks by any amendment in Rules or by issuing any letter, no differentiation could have been made between pre and post retirees after such amendment or letter. But in the case at hand, the petitioner though granted the Honorary rank of Lieutenant in service was getting the pay of the rank of Subedar which he was holding prior to the grant of Honorary rank and also the pension of the same rank. The amendment covers those cases where the personnel granted Honorary ranks of Captains and Lieutenants during service are also getting the pay and allowances of that honorary rank and as a consequence the pension of that honorary rank. It is not the case of liberalization of existing scheme but a new benefit allowed to those JCOs, who have been granted the honorary ranks of Captains and Lieutenants during service and are getting the pay and allowances of the same honorary ranks.

7 7 17. The Constitution Bench of Hon ble the Apex Court in D.S.Nakara and others v. Union of India and others, AIR 1983 SC 130 has observed and held that if it is not a new scheme but the revision of existing scheme, then all the pensioners are entitled to have the benefit of that scheme. But if it is wholly a new concept, a new reitral benefit, those who had already retired, could not expect it. 18. Similarly, Hon ble the Apex Court in the State of Punjab v. Justice S.S.Dewan (1997) 4 SCC 569 held that if it is a liberalization of an existing scheme, all pensioners are to be treated equally but if it is introduction of a new retiral benefits, its benefits will not be available to those who stood retired prior to its introduction. This judgment has also been referred in a subsequent judgment of the Apex Court in KJS Buttar v. Union of India and another, Civil Appeal No of 2006 decided on In view of the above, it is clear that the amendment in Regulation 172 brings a new benefit to the Junior Commissioned Officers granted Honorary Commission of Lieutenant and Captain while in service and the same cannot be granted to those who had retired prior to the introduction of said amendment. 20. So far as the judgment of Hon ble the Principal Bench in OA No. 64 of 2010 Sub Major JS Pundir s case (supra) is concerned, we may respectfully say that the distinction was not brought to the notice of the Principal Bench that the amendment in Regulation 172 is not of liberalization of any existing scheme but a new benefit to those in service. The petitioner does not get any benefit from the said judgment of the Principal Bench. 21. In view of the above the petitioner is not entitled to any relief. The petition is accordingly dismissed. (Justice Rajesh Chandra) raghav (Air Marshal (Retd) SC Mukul) Whether the judgment for reference is to be put on internet? Yes / No.

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