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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
O.A.No.72 of 2013
Friday, the 14th day of February 2014
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH
(MEMBER - JUDICIAL) AND
THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)
Chellasamy Rank: Hony NB SUB
No.1043072 N
P.No.14, D.No.1/279-A2, Anbu Nagar
Malligai Street Madurai, Tamil Nadu. … Applicant
By Legal Practitioner:
Mr. J. Saravana Kumar
vs.
1. Union of India,
Rep. by its Secretary Ministry of Defence,
South Block, New Delhi.
2. The Chief of Army Staff
Integrated Headquarters Ministry of Defence (Army)
New Delhi-110 011.
3. The Secretary Dept. of Ex-Servicemen Welfare
Ministry of Defence, GOI 5A, South Block
New Delhi-110 011.
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4. Principal Controller of Defence
Accounts (Pensions) Office of the PCDA (Pensions)
Draupadi Ghat Allahabad-211 014.
5. Officer in Charge of Records
Records, Armoured Corps Ahmednagar. … Respondents
By Mr. B.Shanthakumar, SPC
ORDER
(Order of the Tribunal made by
Hon’ble Justice V. Periya Karuppiah, Member (Judicial)
1. This application has been filed by the applicant for the grant of
relief to call for the records including Letter dated 27.03.2012 in File
No.G2/II/Misc/2012 on the file of PCDA (P), Allahabad and to grant of
pension benefits as per the recommendations of VI Central Pay
Commission to the pre-1.1.2006 retirees and consequently to direct the
respondents to extend the benefits of the Letter dated 12.06.2009 to the
applicant who retired prior to 01.01.2006.
2. The factual matrix of the case of applicant as contained in the
application would be as follows:
The applicant joined the Indian Army as Sepoy on 20.08.1968 and
he was discharged in the rank of Havildar after completing 24 years of
unblemished record. Accordingly, he retired on 31.08.1992 and after his
retirement, he was conferred with the rank of Honorary Naib Subedar
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and was receiving pension on par with Honorary Naib Subedar. The
applicant was also issued Pension Payment Order No.S/019084/92 &
S/CORR/066395/93 by PCDA (Pensions), Allahabad. After retirement,
the applicant enrolled himself as a member of the Tamil Nadu Ex-
Services League bearing Registration No.116/2010, an association duly
registered under the Registration of Societies Act, 1978, for the welfare
of the retired persons from Armed Forces.
3. As per the V Central Pay Commission, the pay of the Honorary Naib
Subedars was fixed at 50% of the minimum pay of Honorary Naib
Subedars, as per the letter of Government of India, Ministry of Defence,
dated 07.06.1999 irrespective of period of retirement. Accordingly, the
recommendations of the V Central Pay Commission were enforced from
01.01.1996 and the applicant was also given the benefit. The VI Central
Pay Commission had also recommended certain benefits to the retired
Honorary Naib Subedars and it was implemented by the Government of
India through its letter dated 12.06.2009 in No.1(8)/2008-F(Pen/Policy).
The 5th respondent however interpreted that the benefit will go only to
the Honorary Naib Subedar who retired on or after 01.01.2006 and the
said benefit would not be available to pre-01.01.2006 retirees. The said
interpretation is not correct in terms of paragraph-2 of the said letter
which runs as follows:
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“2. This letter takes effect from 1st January, 2006.”
Such an interpretation is contrary to the recommendations made by VI
Central Pay Commission and is therefore not sustainable. The
requisitions made by the applicant and Ex-Service League Members were
rejected by the 4th respondent and in consequence, the 5th respondent
wrote a letter dated 27.03.2012 that the fixation as provided in Para-5 of
the Notification, dated 11.11.2008 has been clarified through letter dated
8.3.2010 by inserting Para 5.1.62 of VI Pay Commission recommendation
and also through the letter of Ministry of Defence, dated 12.06.2009. As
per the said interpretation, the benefit is applicable only to the post-
1.1.2006 retirees and not the pre-retirees, which is incorrect. The said
interpretation of the 5th respondent with regard to the benefits given
under letter of first respondent dated 12.06.2009 and the
recommendations of VI Central Pay Commission are against the intention
of those letter and recommendations. The true intention is that the pre-
retirees were also conferred with such benefits and it was decided that
such benefits be given to the applicants on their applications filed before
the Armed Forces Tribunals at Jaipur, Chandimandir and other Regional
Benches. The Chandigarh Bench in Virender Singh & Ors vs. UOI &
Ors in O.A.No.42 of 2010 considered various rules, regulations and the
contents of the letter dated 12.6.2009, and passed an order on 8.2.2010
granting the benefits to those Honorary Naib Subedars who retired prior
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to 1.1.2006 also. The Hon’ble Supreme Court of India confirmed the said
judgment in SLP No.36534 of 2010 and the appeal preferred by the
respondents was also dismissed. Similar applications were filed before
Circuit Bench at Simla, Lucknow Benches and those applications were
also allowed in the lines of judgment made in Virender Singh. The
impugned order was made in the letter dated 27.03.2012, a reply to the
representation of the Tamil Nadu Ex-Services League dated 12.3.2012,
by stating that no general order can be passed following the said
decisions on the request of the applicant and it was required for a
specific Court Order for the grant of benefits to the applicant given under
the VI Central Pay Commission and the letter of the Government dated
12.06.2009. Therefore, the applicant has filed the application before this
Tribunal for the aforesaid relief and application may thus be allowed.
4. The objections raised on behalf of the respondents in the reply-
statement would be as follows:
The applicant was enrolled in the Indian Army MEG on 20.08.1968 and
was discharged from service on 31.8.1992 afternoon after fulfilling the
conditions of enrolment. The applicant was granted Honorary rank of
Naib Subedar after retirement with effect from 1.9.1992 and the service
pension granted to him with effect from 1.9.1992 was for the rank of
Havildar. The notional pay fixation of Honorary ranks for the purpose of
pension under GOI, MOD (Department of Ex-Servicemen Welfare) letter
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No.1(8()/2008D (Pen/Policy) dated 12th June 2009 is applicable to
Honorary Naib Subedars who were discharged from service on or after
1.1.2006 and hence, the applicant is not entitled to the benefits of such
letter. The entire recommendations of the Central Pay Commission were
not taken into account by the Government of India for implementation.
Considering the financial constraints, one of the various parameters of
pay revisions are given with cut-off dates. The Hon’ble Apex Court
observed in the Civil Appeal D.No.13139 of 2011 between Union of
India & Ors and Sohan Lal Bawa & Ors against the order passed by
Armed Forces Tribunal, Chandigarh in O.A.No.337 of 2010 dated
8.7.2010 that,
“ It needs, however, to be clarified that the decision of
the Armed Forces Tribunal shall relate only to the case of
Havildars who, before their retirement, were granted
honorary promotion to the rank of Naib Subedar and shall
not be used as a precedent in case of other ranks.”
Since Honorary ranks of Naib Subedar is granted to Havildar only on
retirement and not before retirement, a Review Petition (Civil) No.365 of
2013 was filed for curation. In the meantime, the ADG PS, AG’s Branch,
IHQ of MOD notified the instructions, vide letter
No.B/39022/Misc/AG/PS-4 (L) dated 29th February 2012 to clarify the
letter dated 12.6.2009 that the benefit of service pension of Naib
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Subedar rank was extended to the Havildars who were granted Honorary
rank of Naib Subedars on retirement. The said Review Petition preferred
before the Hon’ble Apex Court was dismissed on the ground of limitation
and merit. Therefore, the said confusion still persists. The JAG
Department/Legal Officer (Def), the IHQ of MOD (Army), ADG PS issued
a letter No.B/39022/Misc/AG/PS-4 (L) dated 23.4.2013 cancelling the
letter dated 29th February 2012 and also stated that pre-2006 Honorary
Naib Subedar cannot be admitted to the pension of Naib Subedar with
effect from 1.1.2006. These provisions in the letter dated 12.6.2009 are
applicable to those Havildars who were granted such Honorary rank post-
2006, Since the Hon’ble Armed Forces Tribunals interpreted cut-off date
of 1.1.2006 as applicable for the grant of financial benefits irrespective of
the date of retirement had led to a spate of litigation on this issue. For
the reasons stated above, the application may be dismissed as devoid of
merit.
5. The submissions made by the applicant in the Rejoinder would be
as follows:
While reiterating allegations made in the application, the applicant
denied the stand taken by the respondents that the conferment of
benefits of the letter dated 12.6.2009 to the post-1.1.2006 retirees only.
It is submitted by the applicant that the grant of pension benefits as per
VI Central Pay Commission and the letter dated 12.6.2009 are applicable
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to Pre-1.1.2006 retirees and it was also confirmed by the Hon’ble Apex
Court in SLP No.36534 of 2010 in between UOI vs. Virender Singh and
through the subsequent judgments delivered by various Armed Forces
Tribunal Benches and the Principal Bench and therefore, the application
filed by the applicant has to be allowed.
6. On the above pleadings, the following points were framed for
consideration:
(1) Whether the Honorary Naib Subedars retired prior to 1.1.2006 are
entitled to the benefits given under the letter of GOI MOD dated
12.06.2009?
(2) Whether the applicant is entitled to the benefits as recommended
by VI Central Pay Commission to the Honorary Naib Subedars and the
letter issued by GOI, MOD (Department of Ex-Servicemen Welfare)
No.1(8)/2008D (Pen/Policy) dated 12th June 2009?
3) To what relief the applicant is entitled to?
7. Heard Mr. J. Saravana Kumar, learned counsel for the applicant and
B.Shanthakumar, learned Senior Panel Counsel assisted by Captain
Vaibhav Kumar, learned Assistant JAG Officer appearing for the
respondents.
8. Point Nos.1 and 2: The indisputable facts in this case would be that
the applicant was enrolled in the army on 20.8.1968 and was discharged,
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after completing 24 years of service, on 31.08.1992. The applicant was
conferred with the rank of Honorary Naib Subedar and the service
pension was granted in the rank of Havildar with effect from 1.9.1992.
9. The applicant has produced his PPO as Annexure-I in Compilation-II
along with Corrigendum issued in his favour. In the Corrigendum, the
rank last held by the applicant was corrected as Honorary Naib Subedar
instead of Havildar. Similarly, the rank for pension was corrected as
Honorary Naib Subedar. The other Corrigendum referred to the quantum
of pension and others. The said Corrigendum was issued on 31.3.1993
and therefore, it could be found that the applicant was receiving pension,
in accordance with the recommendations of V Central Pay Commission.
The said fact that the applicant was conferred with the benefit of pension
as recommended by V Central Pay Commission has not been disputed by
the respondents. The applicant has now come forward with this
application for the grant of benefits as recommended by VI Central Pay
Commission towards the revision of pension to the Honorary Naib
Subedar on par with the rank of Subedar. The said claim is based on a
letter dated 12.06.2009 issued by the Government of India in
No.1(8)/2008D (Pen/Policy). According to the said letter of Government
dated 12.06.2009 produced as Annexure-R1, we could see as follows:
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“ I am directed to say that in pursuance of Governments
decision on the recommendations of the Sixth Central Pay
Commission contained in Para 5.1.62 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 6.11.1991
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 1st January, 2006.
3. This issues with the concurrence of Finance Division
of this Ministry vide their UO No.2351/Finance/Pension
dated 3.6.2009.”
10. The learned Senior Panel Counsel submitted his arguments on the
basis that the benefit of the aforesaid Government letter dated
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12.06.2009 would be available to Honorary Naib Subedar retired on and
after 1.1.2006 and the pre-1.1.2006 retirees of Honorary Naib Subedar
are not entitled to such benefits. Furthermore, he would argue that the
judgments rendered by Armed Forces Tribunal, Chandigarh Bench in
Virender Singh vs. UOI and Sohan Lal Bawa vs. UOI & ors. cannot
be followed in view of the observation made by the Hon’ble Apex Court in
Civil Appeal No.13139 of 2011 against the judgments filed against
Sohan Lal Bawa case. It was further argued by the learned Senior
Panel Counsel, that the Hon’ble Supreme Court, while dismissing the
appeal preferred by the respondents, commented upon entitlement of
the benefits to the Havildars who were granted honorary promotion to
the rank of Naib Subedars before their retirement and it shall not be
used as a precedent in the case of other ranks. His further contention
would be that the Review Application filed by the respondents in RP(Civil)
No.365 of 2013 in Civil Appeal No.5476 of 2011 was also dismissed on
the basis of limitation and merits and he would further submit that the
case of the applicant that he is entitled to the benefits of 12.6.2009 letter
cannot be considered and the stalemate continues. He would therefore,
request that the application may be dismissed.
11. We have considered his submissions and also the submissions of
the learned counsel of the applicant. The order passed by the Armed
Forces Tribunal Regional Bench Chandigarh Bench in Virender Singh
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case was confirmed by the Hon’ble Apex Court and it became final. The
respondents do not dispute the position. In the said judgment of
Virender Singh, the applicant being a pre-1.1.2006 retiree was granted
pension in the rank of Honorary Naib Subedar as per the letter dated
12.6.2009.
12. It is also an indisputable fact that every Havildar who was selected
for the conferment of Naib Subedar was given with the Honorary Naib
Subedar rank at the time of his retirement and not before the retirement
of any Havildar. The learned counsel for the applicant would submit that
the Havildars who retired after 1.1.2006 were also granted Honorary
rank of Naib Subedar only at the time of retirement and not before their
retirement. He would also rely upon the judgment of Sohan Lal Bawa
vs. UOI rendered by the Armed Forces Tribunal Regional Bench,
Chandigarh following the principles laid down in Virender Singh case.
13. In the appeal preferred by the respondents against the order of
Chandigarh Bench in Sohan Lal Bawa case, the Hon’ble Apex Court
dismissed the appeal and confirmed the benefit given to Sohan Lal Bawa.
However, in the subsequent paragraph, the Hon’ble Apex Court
mentioned that the grant of benefits to the Havildars who were conferred
with the Honorary Naib Subedars before their retirement and that should
not be followed as a precedent in the case of other ranks. The learned
counsel for the applicant would interpret that other ranks means the
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Honorary rank conferred on the other personnel like Havildar at the time
of their retirement. According to the learned counsel for the applicant,
the said reference of Honourable Apex Court was taken advantage by the
respondents and they issued a letter to the effect that the pre-1.1.2006
retirees are not eligible for the benefits/recommendations of VI Central
Pay Commission and the letter of MOD dated 12.6.2009. He would
further refer to various judgments of Chandigarh Bench, Circuit Bench of
Simla, Jaipur Bench of Armed Forces Tribunal and Principal Bench, New
Delhi in support of his arguments that the pre-1.1.2006 retirees are
entitled to the benefits of VI Central Pay Commission as incorporated in
the letter dated 12.06.2009. He would also cite a judgment of Armed
Forces Tribunal, Kochi Bench made in O.A.No.100-125 of 2012 dated
21.8.2012 and an order passed by the Principal Bench, New Delhi in
M.A.No.243 of 2013 in O.A.No.400 of 2012 dated 10.05.2013. He would
also submit that the judgments of Armed Forces Tribunal, Kochi and
Principal Bench, New Delhi, were rendered after the Hon’ble Apex Court
has passed the order in Civil Appeal D.No.13130 of 2011, dated
7.7.2011. Therefore, he would submit that the judgments made by the
Hon’ble Apex Court in Virender Singh case is holding the field and the
applicant may be granted the benefits as sought for.
14. When we consider the submissions of the learned counsel for the
applicant and also the Senior Panel Counsel appearing for the
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respondents, we have to firstly see whether the Government letter dated
12.6.2009 issued on the recommendations contained in Para 5.1.62 of
Chapter V of the VI Central Pay Commission is not benefitting the pre-
1.1.2006 retiree Havildars conferred with Honorary Naib Subedar ranks.
For understanding the crux of the case, it has become necessary to
subscribe the said paragraph 5.1.62 of VI Central Pay Commission
recommendation which runs as follows:
“5.1.62. Presently, Havaldars on getting the rank of Honorary
Naib Subedar are given an additional pension of Rs.100. As
against this, JCOs after becoming Honorary officers get
pension as per the existing formula on the basis of pay
attached to the post of Honorary officer. Defence Forces have
proposed that the pension of Honorary Naib Subedars may
also be fixed, accordingly, on the basis of pay attached to the
rank. The proposal is inherent in the revised scheme of pay
bands being proposed. A Havaldar, on promotion as Honorary
Naib Subedar will be eligible for pension with reference to the
salary drawn/drawable in the rank of Naib Subedar. Further,
pension is now payable with reference to either 10 months
average emoluments or the last pay drawn, whichever is
beneficial. In light of these changes being recommended,
pension for all Honorary ranks of Naib Subedar will henceforth
be payable by taking this placement as a regular promotion to
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the higher grade wherein benefit of fitment in the pay band
and the higher grade pay will be taken into account for
purposes of fixation of pension”.
15. According to the tenor of the recommendations of VI Central Pay
Commission, the JCOs after becoming Honorary officers used to get
pension on the basis of the pay attached to the post of Honorary Officer.
Accordingly, the proposals submitted by the Defence Forces that the
pension of Naib Subedar may also be fixed on the basis of the pay
attached to their rank, was considered by the VI Pay Commission and a
recommendation was made in the said paragraph. In the said
recommendation, pension for all honorary ranks of Naib Subedar will
simultaneously be payable by taking this placement as a regular
promotion to the higher grade wherein benefit of fitment in the pay band
and the higher grade pay will be taken into account for purposes of
fixation of pension only. It would make us clear that the
recommendation of Pay Commission was that the benefits shall be
available to all the ranks of Naib Subedars without any reservation or
exception and due to this intention, the expression, ‘all Honorary ranks of
Naib Subedars’ has been used in the above paragraph of the
recommendations. No doubt the Government letter dated 12.06.2009
was based upon the recommendation of the VI Central Pay Commission,
where the pre-1.1.2006 retirees were not excluded from getting the
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benefits. The Government letter dated 12.6.2009 issued can be thus
understood that the benefits have been conferred on all the Honorary
Naib Subedars. For better understanding, we have to once again peruse
the contents of the letter dated 12.6.2009. In the said letter, it is
categorically mentioned that the additional element of pension of
Rs.100/- per month payable to Havildars granted to the Honorary rank of
Naib Subedars as per Regulation 137 of Pension Regulations for the Army
Part-I (1961) and the MOD letter dated 6.11.1991 will cease to be paid
with effect from 1.1.2006. That means that the pre-1.1.2006 retirees,
who were given benefit of the revision of pension at the Honorary Naib
Subedar rank, as per V Central Pay Commission and the letter dated
6.11.1991 would cease to get the payment of Rs.100/- in lieu of the
benefit given under VI Central Pay Commission and the GOI MOD letter
dated 12.6.2009. Therefore, we are of the considered view that the pre-
1.1.2006 retirees cannot be left from getting the benefit of the letter of
Government of India MOD (Department of Ex-Servicemen Welfare) letter
No.1(8)/2008D (Pen/Policy) dated 12th June 2009. It was also argued by
the learned Senior Panel Counsel that para-2 of the said letter indicates
that the said letter takes effect from 1.1.2006 means that the benefits
shall be conferred only upon the retirees who retired on or after
1.1.2006. In our view, the said para means that the benefits shall be
given with effect from 1.1.2006 and not otherwise.
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16. There is no dispute that the judgment of Chandigarh Bench made
in Virender Singh vs. UOI (O.A.No.42 of 2010) was confirmed by the
Hon’ble Apex Court in the order passed in SLP Civil No.18582 of 2010,
dated 13.12.2010. The said order is produced as Annexure-1 in the
citations produced by the applicant. In the order of Chandigarh Bench,
the reliefs sought for by the applicant, a pre-1.1.2006 retiree were
granted. The said decision of Chandigarh Bench has been upheld by the
Hon’ble Apex Court, as aforesaid. Similarly, various judgments were
rendered by Chandigarh Bench in O.A.616 of 2011, dated 6.5.2011, in
O.A.712 of 2011, dated 26.5.2011, in O.A.816 of 2011, dated 4.7.2011
by following the principles laid down in Virender Singh’s case. The
Lucknow Bench in O.A.No.272 of 2011, dated 28.9.2013 in between
Ram Pyare & Ors vs. UOI & Ors and the Jaipur Bench in O.A.No.232
of 2012, dated 2.4.2012 arrived to a similar conclusion by granting the
benefits of Government letter dated 12.06.2009 to Havildars who were
conferred Honorary rank of Naib Subedar, retired prior to 1.1.2006.
Therefore, we are of the firm view that the applicant is also entitled to
the benefit conferred in the Government letter MOD (Department of Ex-
Servicemen Welfare) No.1(8)/2008D (Pen/Policy) dated 12.6.2009.
17. The second objection raised by the learned Senior Panel Counsel in
respect of the orders passed by the Hon’ble Apex Court in Union of
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India & Ors. vs. Sohan Lal Bawa & Ors. (Civil Appeal D.No.13139
of 2011) has to be considered. The judgments rendered by Armed
Forces Tribunal, Kochi Bench in O.A.100-125 of 2012, dated 21.8.2012
is also helpful to clear the doubt raised during the submission of the
learned Senior Panel Counsel while interpreting the order passed by the
Hon’ble Apex Court in the Civil Appeal D.No.13139 of 2011, dated
7.7.2011 between UOI & Ors. vs. Sohan Lal Bawa. The relevant
passage in the judgment of Armed Forces Tribunal, Kochi Bench, would
run as follows:
“ 10. The learned counsel appearing for the respondents submitted
that in the matter of Union of India vs. Sohan Lal Bawa (Civil
Appeal D.No.13139 of 2011), the Apex Court has held that the
benefit is available to those who were granted Honorary promotion
to the rank of Naib Subedar before their retirement. Therefore, the
applicants who were conferred Honorary Rank after the retirement
were not entitled for the benefit.
11. In our opinion, the Apex Court in fact extended the benefit to
only those who were granted Honorary promotion to the rank of
Naib Subedar and pointed out that the said principle will not be
followed as a precedent in the case of other ranks. In other words,
the Apex Court made a distinction between the Havildars granted
Honorary rank of Naib Subedar and other ranks, and allowed the
benefits to Havildars only. During the course of hearing, the
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counsel for the parties conceded that there is not a single case in
which Havildar was granted Honorary rank of Naib Subedar before
retirement. They further clarified that the Honorary rank of Naib
Subedar is ordinarily granted to Havildars after retirement. In this
view of the matter, the aforesaid submission of the learned counsel
for the respondents has no merit.
Similarly, a judgment of the Hon’ble Principal Bench made in
M.A.No.243 of 2013 in O.A.No.400 of 2012, dated 10.5.2013 in
between Ex Hav (Hony NB Sub) Ram Kanwar vs. UOI & Ors would
also be helpful to solve the issue. The relevant passage would be as
follows:
“ There is reservation in the minds of respondents in
execution of order and implementation of Government order dated
12.06.2009 on account of subsequent order of Hon’ble Supreme
Court. Hon’ble Supreme Court in the case of Union of India vs.
Sohan Lal Bawa, while dismissing the petition of Union of India on
the basis of earlier order in the case of Union of India vs. Virender
Singh, their Lordships made following observation:
It needs, however, to be clarified that the decision of the
Armed Forces Tribunal shall relate only to the cases of Havildars
who, before their retirement, were granted honorary promotion to
the rank of Naib Subedar and shall not be used as a precedent in
case of other ranks.
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It appears that the attention of the Hon’ble Supreme Court
was not properly invited to the fact that honorary ranks are
normally granted only after the retirement. A Review Application
was filed before the Hon’ble Supreme Court by the Union of India
and this matter again came up before the Hon’ble Supreme Court,
however, same was dismissed on 06.03.2013 on the ground of
limitation and on merit. Therefore, this confusion still persists.
4. As far as the execution of this order is concerned we
don’t find any impediment in granting pension to all the Honorary
Nb Subedars since they have been granted the rank of Honorary
Nb Subedar after their retirement in accordance with Govt. letter
of 12.06.2009. The order dated 12.06.2009 is very clear that this
benefit of Honorary Nb Subedar will be available to them only for
the purposes of fixation of pension. Since pension is only
admissible to the Havildars after they have retired it is evident
that they will be entitled to such post-retirement increase in
pension. Similarly, Para 28 of Govt. of India, Integrated
Headquarters, Ministry of Defence Order dated 16.05.2008 clarifies
the position that the rank of Nb Subedar and Naib Risaldar is
granted on retirement or within one year of their becoming non-
effective immediately after retirement. As such we don’t see any
difficulty in directing the respondents to implement the order
dated 12.06.2009. This position is accordingly disposed off.
Learned counsel for respondents prays for leave to appeal to the
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Hon’ble Supreme Court. There is no question of law of public
importance involved in this matter and we have decided the
matter on the basis of Government Orders. As such, we don’t
think it is a fit case to grant leave to appeal before the Hon’ble
Supreme Court as it does not involve any question of public
importance. Therefore, the oral application for leave to appeal is
rejected. “
18. On a careful understanding of the aforesaid judgments, we could see
that those judgments were pronounced after the judgment in Civil appeal
D.No.13139 of 2011 was delivered by the Hon’ble Apex Court on
7.7.2011. Both judgments have considered the facts and circumstances
and had given a candid explanation as extracted above. Accordingly, the
pension benefit available to those who were granted promotion to the
rank of Naib Subedar before their retirement was extended to those who
were granted Honorary promotion to the rank of Naib Subedars. It was
also opined in the said judgments that the Havildars who were granted
Honorary rank of Naib Subedars were distinguished with other ranks and
the benefit allowed to the Havildars cannot be a precedent to other
ranks.
19. We entirely concur with the opinion of the Kochi Bench since the
post-1.1.2006 retirees of Havildars are also granted Honorary Naib
Subedar ranks at the time of retirement, and not before their retirement.
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The respondents are under the obligation to treat the pre-1.1.2006
retirees who were given Honorary Naib Subedar rank at the time of
retirement, in par with the post-1.1.2006 retirees who are not granted
the Honorary Naib Subedar rank before their retirement. The Hon’ble
Principal Bench has also come to a conclusion that the Honorary Naib
Subedar rank are ordinarily given at the time of retirement for the
purposes of fixation of pension. Para-28 of Government of India
Integrated HQ MOD Order dated 16.5.2008 clarifies the position that the
rank of Naib Subedar and Naib Risaldar is granted on retirement or even
within one year of their becoming non-effective immediately after their
retirement, would go to show that the Honorary rank would be given
normally at the time of retirement or even one year before becoming
non-effective as stated in para-28 of the order dated 16.5.2008. The
reasoning given by the Hon’ble Principal bench in the order made in M.A.
243 of 2013 in O.A.No.400 of 2012 dated 10.05.2013 is also in tune with
the decision of the Kochi Bench. We therefore concur with the views
taken by both the Kochi Bench and Hon’ble Principal Bench of New Delhi,
in this regard.
20. In the said circumstances, we are of the opinion that the applicant
is entitled to the benefits of the Government letter dated 12.6.2009
issued in pursuance of VI Central Pay Commission recommendation.
Accordingly, both the points are decided in favour of the applicant.
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21. Point No.3: For the reasons stated in the above points, the reliefs
as sought for by the applicant are liable to be ordered and accordingly,
the application is allowed. The applicant shall be granted the benefit of
the letter of Government of India MOD (Department of Ex-Servicemen
Welfare) No.1(8)/2008D (Pen/Policy) dated 12.6.2009 with effect from
1.1.2006 with all consequential benefits. The respondents are directed
to make the payment of arrears amount payable to the applicant within
three months and also to make corrigendum in the PPO. The amount of
Rs.100/- per month which had already been paid to the applicant after
1.1.2006 in terms of Ministry’s letter No.1(1)/88/D(Pen/Sers) dated
6.11.1991 shall be adjusted against the arrears of amount and the said
payment of Rs.100/- shall cease.
22. In the result, the application is ordered as indicated above. No
order as to costs.
Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH
MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)
14.02.2014 (True copy)
Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No
VS
24
To:
1. The Secretary
Ministry of Defence, South Block, New Delhi.
2. The Chief of Army Staff
Integrated Headquarters Ministry of Defence (Army)
New Delhi-110 011.
3. The Secretary Dept. of Ex-Servicemen Welfare
Ministry of Defence, GOI 5A, South Block
New Delhi-110 011.
4. Principal Controller of Defence
Accounts (Pensions) Office of the PCDA (Pensions)
Draupadi Ghat Allahabad-211 014.
5. Officer in Charge of Records
Records, Armoured Corps Ahmednagar.
6. Mr. J. Saravana Kumar
Counsel for applicant.
7. Mr. B. Shanthakumar, SPC
Counsel for respondents.
8. OIC, Legal Cell, ATNK & K Area, Chennai.
9. Library, AFT, Chennai.