ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1045 of 2014

Transcription

1 -1- ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1045 of 2014 Col (Retd) Tejinder Singh Petitioner(s) Vs Union of India and others Respondent(s) -.- For the Petitioner (s) : Mr. K.L.Kohli, Advocate For the Respondent(s) : Maj Tushar Singh, OIC Legal Cell (AFT) Coram: Justice Prakash Krishna, Judicial Member. Lt Gen (Retd) Sanjiv Chachra, Administrative Member -.- ORDER The present petition has been filed under Section 14 of the Armed Forces Tribunal Act, The relevant facts are not much in dispute and are admitted to the parties. 2. The petitioner, who was holding the rank of Colonel (Time Scale) w.e.f. 16 th December, 2004, has reached the age of superannuation on 31 st December, The grievance of the petitioner is that his pension and other retiral benefits have not been fixed correctly in terms of the recommendations of Sixth Central Pay Commission (Sixth CPC), which have come into existence wef 1 st January, In the Pension Payment Order dated 13 th December, 2005, issued to the petitioner, the

2 -2- average emoluments for last 10 months have been shown as Rs.28425/- and, thus, pension has been fixed at Rs.14213/-. The PPO further mentions that the petitioner is a pensioner w.e.f. 1 st January, Further, a corrigendum PPO dated 4 th January, 2006 was issued bifurcating pension of Rs.14213/- into two parts - commuted Rs.6111/- and residual Rs.8102/-. The petitioner s disability pension 50% for life is evident vide letter dated 17 th November, The respondent No.3 also issued a PPO dated 8 th February, 2007 granting disability pension of Rs.1950/- per month w.e.f. 1 st January, 2006 for life. 4. The dispute in the present case centers around the correct fixation of last salary of the petitioner for the purposes of pension in terms of the recommendations of Sixth Central Pay Commission. The recommendations of Sixth Central Pay Commission have been accepted by the Central Government as well as by the Ministry of Defence. The Office Memorandum dated 1 st September, 2008, issued by respondent No.1, contains the sanction of the President to the Regulation of Pension of pre-2006 pensioners, and therein it has been provided that separate order will be issued by the Ministry of Defence in regard to Armed Forces pensioners. Therein existing pensioner means a pensioner who was drawing/entitled to pension/family pension on 31 st December, It further provides that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in

3 -3- the Pay Band plus the Grade Pay corresponding to the pre-revised pay scale from which date, pensioner had retired. The submission is that the said Office Memorandum is in variance with the Resolution dated 29 th August, The petitioner has referred to other documents which will be duly considered at the appropriate stage in the judgment. 5 The respondents in their written statement have come out with the case that the petitioner had retired on 31 st December, 2005, therefore, for the purposes of pensionary benefits, he is pre-2006 retiree, and thus the pay, pension fixation, gratuity, commutation of pension and disability pension are governed as per recommendations of Fifth CPC and not as per recommendations of Sixth CPC. No prejudice has been caused to the petitioner for fixing these allowances in terms of Fifth CPC. The impression gathered by the petitioner that he is entitled for benefits granted to post-2006 retirees and computation should be made accordingly is not sustainable in the eyes of law. Reliance placed on Annexure A-3 by the petitioner is misplaced one. Further, the contention that he is entitled to pension at the rate of Rs.29700/- per month, is not correct and his pension has been correctly fixed at Rs.26050/- as per Government of India letter No. 17(4)2008(1)/D(Pen/Policy) dated

4 -4-6. Heard the learned counsel for the parties and perused the documents referred by them. 7. We find that the following two points are mooted for consideration in this petition:- 1) Whether the petitioner who retired on 31 st December, 2005 is to be considered as pre-2006 retiree as alleged by the respondents or he shall be considered to have retired on 1 st January, 2006 ie on the date the Sixth CPC had commenced? 2) Whether the pension of the petitioner has been rightly fixed or not? 8. Taking the first point first, we find that admittedly the petitioner retired on 31 st December, 2005, meaning thereby that the petitioner was on the strength of the Army upto that date. From the PPO itself, it is evident that the petitioner became pensioner wef 1 st January, The contention of the respondents that the petitioner having retired on 31 st December, 2005, therefore, he should be treated as pre-2006 retiree is not well founded. There appears to be no justification for treating the petitioner as pre-2006 retiree as he was in the service upto 31 st December, Our above view is further fortified by the Division

5 -5- Bench judgment of Punjab and Haryana High Court in CWP No.7794 of 2013 Nirmal Singh v. Union of India and others decided on 15 th July, In this case, the individual had retired from service on 31 st December, It was held that the individual has become entitled to draw pension wef 1 st January, Resultantly, the petitioner would be entitled to receive all pensionary benefits as are admissible to a person who become a pensioner on 1 st January, 2006, or thereafter, in terms of Sixth CPC. Consequently, we feel that all the benefits which flow from treating the petitioner as pensioner w.e.f. 1 st January, 2006 will flow to him. From the pleadings of the parties, we find that all other pensionary benefits that accrue to a pensioner shall be calculated accordingly. For instance, the petitioner has been paid Rs.3.5 lacs as maximum gratuity as admissible under the Fifth CPC. Under Sixth CPC, the maximum gratuity allowance is Rs.10 lacs. Therefore, the petitioner is entitled to get balance of the gratuity amount. Similarly in the petition we find that the petitioner has raised certain other claims, but it is not necessary for us to discuss them individually. That appears to be the reason for the learned counsel for the petitioner, that he did not advance any argument separately and felt himself satisfied by making the submission that the petitioner has become pensioner w.e.f. 1 st January, This point is decided accordingly.

6 -6-9. Now we take up the second point regarding fixation of pay of the petitioner for the purpose of calculation of his pension. Evidently, the petitioner was holding the rank of Colonel (Time Scale) and his last basic pay drawn was Rs.17350/- as per PPO filed as Annexure A-4, wherein it is also mentioned that the average emolument for last ten months is Rs.28425/-. The contention of the learned counsel for the petitioner is that for the purposes of calculating pension, his salary should be fixed as per revised pay scale of Sixth CPC. Our attention was drawn to the following chart wherein Pre-Revised Scale, Revised Pay Band have been provided. For the sake of convenience, said chart is reproduced below: Rank Colonel Revised Pay band PB-4+ GP + MSP Pre-revised scale PB-4 Rs Rs.8700+Rs Pre-revised. Revised Pay Basic Pay Rank Pay Pay in the Pay Grade Pay Military service Total revised pay Band pay Elaborating the argument, the learned counsel submitted that as against the basic pay of Rs /-, under the revised pay band, the pay in the pay band is Rs.44700/-. The submission is that accordingly the total revised pay comes to Rs.59400/- including Grade Pay (GP) and Military Service Pay (MSP). The total revised pay comes to

7 -7- Rs.59400/- and half of it comes to Rs.29700/-. The pension should be fixed accordingly. 11. In reply, the contention of the learned counsel for the respondents is that the said interpretation given by the petitioner regarding pay band or last pay is not correct. The expression minimum of pay in the pay band should only mean that minimum of the scale in the pay band should be taken as determinative factor for the determination of the pension and not the minimum of the pay in the pay band. The submission is that revised pay band, as applicable to the rank of Colonel, the minimum comes to Rs GP MSP 6000 total Rs /- and the pension of the petitioner has been fixed accordingly. Elaborating the argument, it was also submitted that as the petitioner was not on the strength of the Army on 1 st January, 2006, he cannot claim fixation of pay under the Sixth CPC. 12. On careful consideration of the respective submissions of the learned counsel for the parties, we find that Principal Bench of the Armed Forces Tribunal, New Delhi had an occasion to consider these points in detail in OA No. 270 of 2010 Sq Ldr Vinod Kumar Jain and others v. Union of India and others decided on Therefore, it is not necessary for us to burden this judgment. There, the Principal Bench has taken into consideration the Special Naval

8 -8- Instructions No. 2/S/08 New Delhi 18 th day of October, 2008, which is reproduced below: No. 2/S/08 New Delhi 18 th day of October, /S/08 REVISION OF PAY SCALES, FIXATION OF INITIAL PAY IN THE REVISED PAY BANDS, GRADE PAY AND MILITARY SERVICE PAY, REGULATIONS OF PAY ON PROMOTION- FOR OFFICERS OF ALL BRANCHES AND MIDSHIPMEN/CADETS OF THE NAVY (EXCLUDING MEDICAL AND DENTAL BRANCHES) CONSEQUENT UPON THE IMPLEMENTATION OF THE DECISION OF THE GOVERNMENT WITH RESPECT THE RECOMMENDATION OF THE SIXTH CENTRAL PAY COMMISSION. SECTION 1- GENERAL 1. In pursuance of the recommendations of the Sixth Central Pay Commission and the Government decision thereon, the existing scales of pay admissible to naval officers will be revised with effect from 1 st January, 2006 and pay fixed in the revised pay bands, grade pay and military service pay in accordance with provisions of this instruction. The provisions of this navy Instruction will apply to all officers including Special Duties List and Midshipmen/cadets who were on the effective strength of the Navy as on 1 st January, 2006 and those who join the Navy thereafter and to under trainee officers who were undergoing pre-commission training on 1 st January, 2006 and trainee officers who join after that date. In these Navy Instructions Rule 3 is definition clause and in Definition Clause pay in the pay band has been described as under:- 3.(e) PAY IN THE PAY BAND Means the pay drawn in the running pay bands specified in Column 6 of Table given at para 4 (a) below: (f) GRADE PAY is the fixed amount corresponding to a pre-revised pay scale/rank as specified in Col 7 of table at para 4 (a) below. 13. After reproducing the above, the Principal Bench held that the contention of the respondents that the expression minimum pay in the pay band should only mean that the minimum of the scale in the pay band should be taken as determinative factor for the determination of the pension and not the minimum of the pay in the pay band has not been

9 -9- accepted in view of the aforesaid Naval Special Order. For the sake of convenience, paragraph 9 of the judgment is reproduced below: As regards this, learned counsel for the respondents has strenuously urged before us that the expression minimum pay in the pay band should only mean that the minimum of the scale in the pay band should be taken as determinative factor for the determination of the pension and not the minimum of the pay in the pay band. We would have readily accepted the contention of learned counsel for the respondents but for the fact that the Naval Special Order which defines the expression pay band and had already given a table below that what shall be the minimum pay for the Lt Commander in the Sixth Pay Commission of the existing Lt Commanders. Therefore, we cannot add or subtract anything beyond what have already been defined by the respondents. Had this distinction not been there perhaps the example which the respondents have shown from the various documents and the Circulars issued by the Comptroller General of Defence Accounts could have been readily accepted. But the fact that the Government by the Special Order dated 18th October, 2008 themselves have defined the pay in the pay band, therefore, we have to accept the definition given by them and then reading this expression the minimum of the pay in the pay band along with the recommendations of the Pay Commission and the implementation order should be taken for determination of the pension has to be accepted. Had this expression not been defined anywhere perhaps argument of learned counsel for the respondents would have been accepted. In this connection, we may further point out that the earlier communication dated 17th December, 1998 in the Fifth Pay Commission; the Government has clearly mentioned that pension of all pensioners irrespective of the date of their retirement shall not be less than 50%, the minimum pay was revised from for the last post held by the pensioners. Had this expression been repeated, perhaps it would carry the same interpretation. In the present case, pay structure has been revised and now all the pay scales have been categorized in the various pay bands and in the case of Lt. Commander or equivalent fall in the Pay Band-III and minimum of Pay Band-III is 15,600/- at the entry level i.e. minimum of the pay band for this rank. Had this expression used in this pay scale of Sixth Pay Commission, we would not have come to interpretation as was clarified by the Fifth Pay Commission by the Government Order dated 17th December, But in the present case, the expression pay in the pay band has been defined by the Government in the communication dated 18th October, 2008 that puts the matter beyond any controversy. The expression which has been defined in the scheme of things has to be accepted while interpreting all the provisions of the Pay Commission and the Implementation Order. Here the expression minimum of the pay in the pay band is to be taken for the purposes of deciding the pension of pre 2006 pensioners. Therefore, one has to interpret the provisions as exists and we have to take it minimum pay in the pay band for equivalent rank then that comes to Rs.23,810/- determined by the Government in Column 7 of table at para 4 (a) as such we have to accept the figure of 23810/- being the minimum of the pay in the pay band for Lt. Commanders and equivalent ranks. If that is taken then naturally 50% of this will have to be treated as a basic pension and rest of it will be added to it as grade pay and other benefits which are

10 -10- given to the persons of that rank. There is no controversy with regard to grade pay and Military Service pay and other benefits to which we are not concerned. We are concerned with what is minimum has to be taken for pre 2006 retirees and minimum pay scale for the purposes of determining the pension. In our opinion as per the Government order for all pre retirees of Lt. Commander and other ranks their minimum of the pay has to be accepted as determined by the Government for the purpose of fixation of the officers in 2006 i.e. Rs.23810/-. Accordingly, we direct let the pension of pre retirees should be decided on the basis of minimum of the pay in the pay band i.e. Rs.23,810/- with all other benefits and shall be given to them. All exercise may be completed as far as possible within three months. Both the petitions are allowed in view of aforesaid terms. No order as to costs. 14. The aforesaid decision has been followed by this Tribunal in OA No. 345 of 2010 Captain Gurdas Singh and others v. Union of India and others decided on 28 th April, The relevant portion from the said judgment is reproduced below: On the first aspect we need not burden ourselves on the details and linkage of the various circulars and instructions issued by the Government of India and the Ministry of Defence as also the various arguments put forth by the respondents as these have been dealt with in detail by the Principal Bench of this Tribunal in the case of Squadron Leader VK Jain. In that case it was held that the expression minimum of pay in the pay band for the purpose of deciding the pension of pre-2006 pensioners has to be taken to mean the minimum pay in the pay band for equivalent ranks as defined in Special Navy Instruction 2/S/08 dated (corresponding Special Army Instruction 1/S/2008 dated ). Suffice it to say that the fixation of pay, and consequently pension, of pre retired Lieutenants, Captains and Majors (and equivalent ranks in the Navy and Air Force), has to be done by taking the minimum pay fixed for similar ranks on The offending instructions have been struck down by the judgment of the Principal Bench. We fully agree with the decision of the Principal Bench. 15. It has been laid down in these cases that the fixation of pay for the purposes of determination of pension has to be done by taking the minimum pay fixed for similar ranks on

11 In nut-shell, we find that the pension of the petitioner has not been correctly fixed and the contention of the respondents that the petitioner is pre-2006 retiree is also not legally tenable. 17. In view of the above, the petition is allowed. The wrong fixation and the consequent anomaly in pension having been created due to misinterpretation of the accepted recommendations of the Sixth Central Pay Commission, the respondents are directed to fix/re-fix the minimum pay and correspondingly the pension of the petitioner wef 1 st January, 2006 in the light of this judgment. The arrears, if any, be paid to the petitioner, preferable within a period of three months from the date of receipt of certified copy of this order by the respondents, failing which the respondents shall be liable to pay interest at the rate of 8% per annum from the date of order. No order as to cost. 18. Leave to appeal to the Supreme Court is granted as the decision involves question of law of general public importance. (Lt Gen (Retd) Sanjiv Chachra) (Justice Prakash Krishna) raghav Whether the judgment for reference is to be put on internet? Yes / No.