ARMED FORCES TRIBUNAL CHANDIGARH : JUDGEMENT ORDER

ARMED FORCES TRIBUNAL CHANDIGARH : JUDGEMENT ORDER 28.04.2011

                                                                                                                   OA 345 of 2010

RC 330 Y Capt Gurdas Singh

RC 303P   Capt Ram Nath

RC 025      Capt Sukhwant Singh

RC 318      Capt Jagar Singh

RC 335     Capt Parkash Chand

RC 211     Capt Karnail Singh

RC 223     Capt Kesar Singh

RC 506     Capt Devinder Singh Randhawa

RC 101     Capt Nachhatter Singh

RC 353     Capt Samar Singh Nahar

RC 046     Capt Tehal Sigh

RC 172     Capt Kaur Singh

RC 14456 Flt Lt Surjit Sigh Azad

RC 151     Capt  Swarnjit Singh

RC 199    Capt Baljinder Singh

                                 

                                                         VERSUS

•        The Union of India , Ministry of Defence

•        The Directors ( Pensions: Dep of Pen, Govt of India

•        The Director, Addl Directorate Gen, Pers Services

•        The Directors ( Pensions) Min of Defence , Sena Bhawan

•         The Chief Defence Acct Officer ( Pension) PCDA       ……………….               Respondents

                 ARMED FORCES TRIBUNAL CHANDIGARH REGIONAL BENCH CHANDIGARH

                      OA 345 of 2010 – OA 216 of 2011 – OA 884 of 2010 – OA 149 of 2010 – Petitioners

                                                                         Vs

      Union of India                                                                                                - Respodents

                                                         ORDER – 28 APR 2011

Coram:                      Justice Ghanshayam Prasad     - Judicial Member

                                  Lt Gen (Retd) NS Brar            - Adm Member

For the petitioners:                    Mr Shyam Lal Sharma             - Advocate

                                                   Ms Anju Arora                       - Advocate

For the respondents:                 Mr Gurpreet Singh,              Sr PC

                                                  Ms Renu Bala                       CGC

                                                  Mr Suveer Sheokand             CGC

                                                 Mr SK Sharma                       Sr PC

LT GEN NS BRAR ( RETD)

                         These petitioners relate to a common question of fixing of pension of similarly placed persons and are therefore taken up together for disposal by a common order.

                          All the petitioners are retired commissioned officers of the rank of captains and equivalent ranks of the other two services and retired prior to 01.01.2006. These officers were commissioned through different schemes being short service commissioned ( having previous services in the ranks and thus drawing pension of a captains ), Special List Commission or Regimental Commission. Briefly stated that  contention of the petitioners is that while implementing the recommendations of the 6^th CPC, their pension has been wrongly fixed resulting in Junior Commission officers (JCOs) granted the honorary rank of Captain drawing much more pension than these commissioned officers. Directions are therefore sought to be fix the pension of the petitioners to remove the anomaly.

           The issue raised by the petitioners is that  they all are commissioned officers holding the Gazetted class I rank of Captain or equivalent at the time of retirement. On the other hand  JCOs, who are subordinate to commissioned officers, and even when granted honorary rank, take rank and precedence below commissioned officers, have been fixed in the pay scale and consequently pension, which  are higher than these commissioned officers. This aspect of status rank and precedence is embodied in Regulation 178 of the Defence Services Regulations, Regulations for the Army  1986 which reads as under :-

•       The status of a JCO as such is not affected by the grant  to him the honorary rank of Lieutenant and Captain, nor does the commission granting him that rank conferred any additional powers of command.

•       Such Honorary Commissioned officers will take rank according to their junior commissioned rank and will accordingly be junior to all officers. No promotion open to or in the cadre of JCOs will be made in the place of a  JCO granted a commission as an Honorary Commission.

•       Similarly the seniority of a Naib Subedar Head Clerk will not be affected by the grant of Honorary rank of Risaldar or Subedar.

           It is contended that  JCOs and JCOs granted Honorary rank are subordinate to and under the command of commissioned officers. Under these facts and conditions of military services ,the pension of such JCO even when granted Honorary Ranks could not be more than the commissioned officers. However, through various orders and instructions related to implementation of the  6^th CPC, this subordinate class has been granted much higher pension than their superiors.

           It is further contended that while implementing the 5thCPC the Govt Of India, MOD vide letter No 1(1)/99/D( Pensions/Services) dated on 07 .06.1999 had notified that the pension of pre 01.01.1996 retirees could not be less than 50% of the minimum of the new scales introduced on 01.01.1996. The 6^th CPC introduced the concept of Pay Band wherein, the existing pay scales were emerged and grouped into Pay Band and accordingly, Lieutenant, Captains and Majors were placed in the PB-3. Besides the in the pay band, specified grade pay (GP) corresponding to the ranks was to be added and thereafter Rs 6000/- was to be added as Military Service Pay (MSP). The minimum pay scale for these ranks thus arrived at and notified vide Special Army Instruction 1/S/2008 of 11.10.2008 was to be as under:-

Lieutenant                      15600( Min Pay)+ 5400 (GP) + 6000(MSP)

Captain                           15600 (Min Pay)+ 6100 (GP) + 6000(MSP)

Major                             15600 (Min Pay)+ 6600 (GP) = 6000(MSP)

         Continuing  with the concept of “ modified parity” the 6thCPC recommended that pension of all pre 2006 retirees would be not less than 50% of the sum of the minimum pay in the pay band plus GP plus MSP as applicable to the rank at which  the person had retired. However, while implementing the same the authorities have interpreted the above to mean that the pension of all pre 2006 retirees of the ranks of Lieutenants, Captains and Majors would be calculated by taking the minimum of PB-3,ie; 50% of Rs 27000/- , which is the pension of a Lieutenant. Resultantly higher rank have been placed at a disadvantage by faulty application of the concept of modified parity. On the other hand Honorary Captains serving on 01.01.2006 and accordingly their pension arrived at was Rs 16145/- and are drawing higher pension than the commissioned officers.

            It is also pointed out that when the concept of running pay band was introduced in the 4^th CPC the minimum pay of each rank was taken as the base for fixing the pension and hence there was no clubbing of different ranks at the bottom of running pay band.

             It is also contended by the petitioners that it was a well established principle that the pay of a person junior or subordinate to an individual cannot be fixed higher than his senior and superior in ranks. Thus the pay and consequently pension of JCOs granted honorary ranks cannot be fixed higher than commissioned officers.

           In support of their argument the petitioners have relied upon the judgement of the Principal Bench of this Tribunal in the case of Squadron Leader VK Jain vs Union of India ( OA 270 of 2010 decided on 14.09.2010) where the fixation of pay and consequently pension of Squadron Leaders an equivalent ranks in the Navy and Army being Lieutenant Commander and Majors, came up for consideration and it was held that the minimum in the pay band has to be taken as the minimum determined for officers of the same ranks on 01.01.2006. Reliance was also placed on the judgement of this bench in the case of Squadron Leader SS Matharu and others vs Union of India (OA 552 of 2010 decided on 25.11.2010) wherein a similar view was taken. The fixation for Majors and equivalent ranks , inPB 3 having been decided the same concept and analogy should apply for Captains and Lieutenants in the same pay band.

            Reliance has also been placed on the judgement of the Delhi High Court in the case of Capt Jangbir Singh vs Union of India ( CWP No 2513/2001 decided on 31.01.2002) wherein it was held that the pay of an officer holding the rank of Captain could not be fixed below that of junior commissioned officers holding honorary rank of Captain. Similarly the decision of Hon’able Supreme Court in the case of Union of India vs Maj Gen SPS Vains (2008(4)SCT 453) has also been quote where the anomaly of Brigadier’s pension being more than Major General was order to be removed. Judgement of this bench in the case of Babu Ran Dhiman vs Union of India (OA 15 of 2010 decided on 03.03.2010) has also been highlighted.

           Written statement has been filed by the respondents  in OA 149 of 2010. The respondents through their response to petitions, reply to legal notice and written statement have maintained the stance that the fixation of pay and pension is a matter of policy and the Govt has to take into account various factors in arriving at such fixation. It is also maintained that the terms and conditions of services ,total services rendered and grant of honorary rank to JCOs are different from those of the petitioners granted commission and such no comparison could be drawn.

           We have heard the learned counsels for the parties at length  and perused  the various Govt orders and  instructions.

           From the claim of the petitioners two main issue emerge. Firstly, the correctness  and legality of fixation of pre 01.01.2006 retirees according to their rank in PB 3. Secondly, whether the pay and consequent pension of commissioned officers can be fixed lower than the JCOs granted honorary commission.

           On the first aspect we need not burden ourselves on the details and linkage of various circulars and instructions issued by the Govt of India and the Ministry of Defence as also the various arguments put forth by the respondents  as these have been dealt with in details 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 the 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  rank  as defined in Special Navy Instructions 2/S/2008 dated 18.10.2008 ( corresponding Special Army Instruction 1/S/2008 dated 11.10.2008). Suffice it to say that the fixation pay and consequently pension of pre 2006 retired Lieutenants , Captains and Majors ( and equivalent rank in the Navy and Air Forces), has to be done by taking the minimum pay fixed for similar  ranks on 01.01.2006. The offending instructions have been struck down by the judgement of the Principal Bench. We fully agree with the decision of the Principal Bench.

             The second issue related to the fixation of pay and pension of officers below that of JCOs granted honorary commission cannot also be supported as it goes against the grain of rank, chain of command and functional hierarchy  of Armed Forces. It also militates the concept of natural justice and violates the principles already laid down by various courts and specially the Apex Court in the case of Union of India vs Maj Gen SPS Vains. A similar view was also taken by this bench in the case of Babu Ram Dhiman vs UOI ( OA 15 of 2010 decided on 03.03.3010).

             In view of the above facts and circumstances these petitions are allowed. The wrong fixation and consequent anomaly in pension created due to misinterpretation of the accepted recommendations of the 6^th CPC, the respondents are directed to fix/ re-fix the minimum pay correspondingly the pension of pre 01.01.2006 retired Captains ( equivalents ranks in the Navy and Air Forces), including the petitioners by taking the minimum of the fixed for Captains as on 01.01.2006. Such fixation shall not in any case be less than that granted to JCOs holding honorary commission of Captains.

            The above directions be implemented within four months of receipt of copy of the order.

            These petitions are  accordingly disposed off.

                                         Sd/-   Justice Ghanshyam Prasad

                                         Sd/    Lt Gen NS Brar (Retd)