Amiya Bhadra vs Union Of India And Others

M.A No. 816 of 2020:

Heard learned counsel for the parties on the question of delay.

The delay in filing the 0.A has been explained by the applicant. Keeping in view the averments made in the application and finding the same to be

bona fide and in the light of the decision in Union of India and others v. Tarsem Singh (2009(1) AISLJ 371), we allow the instant M.A and condone

the delay of 9325 days in filing the O.A.

0.A No. 692 of 2020:

The present 0.A has been filed by the applicant praying for revision of his pension in accordance with the last rank of Naik held by him before early

discharge under Army Rule 13(3)(III)(v) on the basis of the Government of India circular dated 09.02.2001, wherein it has been clarified that ten

months' continuous service in the last rank held is not required for grant of pension in such rank. In this regard, reference is made to orders of this

Tribunal (Principal Bench) in _IWO Pramod Kumar Singh and others v. Union of India and others (0.A. No. 1166 of 2017) and JWO Ashok Kumar

Tanwar and others v. Union of India and others (0.A. No. 882 of 2016). The applicant has also referred to the order of the Tribunal (Regional Bench),

Chennai in the matter of Thiagrajan Vs. Union of India and others (0.A. No. 93 of 2014), which waived off the ten months as stipulated in Para 123 of

Pension Regulations for Air Force 1961 and opined that ""pension cannot be deprived to an individual to a rank for which he has already rendered his

service and that the applicant had earned his pension in the rank of JWO already, and therefore, is entitled to be paid pension in the rank of JWO.

Even if, for some reason, such a pension is found to be less, the applicant is entitled to receive the highest pension he earned already. The said

statutory right for pension already earned by the applicant cannot be reduced even if an undertaking is executed by him for the receipt of any lower

pension in the rank of JWCT.

Though the respondents concede that the requirement of holding the last rank before retirement has been dispensed with, keeping in view the

Government of India circular dated 09.02.2001, they, however, contended that they are correct in giving pension to the applicant in the lower rank as it

is financially more beneficial.

We find that there is a catena of judgments of various Benches of the Armed Forces Tribunal on this issue. Consequently, the fact that the

applicant is entitled to pension in the last rank held by him, even if he held it for a duration of less than 10 months, stands clearly established.

On the issue of pension amount so authorised, we find that the argument that a junior promoted to a senior rank (e.g. Nk, Hay, Nb Sub) should be

pegged at a pension of his last but one rank (i.e. one rank junior to the one he retired), as proposed by the respondents is fallacious. It is also violative

of the ratio and the principles laid by the Hon'ble Supreme Court in D.S. Nakara Vs. Union of India and others(1983) 1 SCC 125. It is also not

possible, in rational calculations, to peg the pension of a PBOR, who has held the higher rank for less than ten months, to be computed a pension for

his previous and lower rank. Additionally, all future pay revisions due to new Pay Commission and five yearly CROP revision are primarily based on

two factors i.e. last rank held and years of service, hence reflection of a lower rank in PPO as compared to the actual higher rank (held for less than

10 months) is bound to reduce future upgradation and revision of pension.

On the exact method of calculation, we find that in a judgment of the Tribunal, Regional Bench, Chennai in IWO P. Gopalakrishnan v. Union of

India and others (0.A. No. 62 of 2014 decided on 13.02.2015), the complete import and implication of the circular dated 02.02.2009, Regulations for

the Air Force Part I and the GoI MoD letter dated 22.11.1983 has been explained. The Government policy letters dated 07.06.1999, 09.02.2001 and

17.12.2008 have been considered. Most significantly, the recommendations of the 6th CPC, accepted by the Government of India through its letter

dated 11.11.2008 and the circular dated 02.02.2009, have also been considered. We find that the specific letter number being identical, in all

probability, the date of Government of India communication is 12.11.2008 and not 11.11.2008.

We find that the respondents need to implement the calculation of pension in the rank of Naik for the applicant as mentioned above, as he is

similarly placed to the applicant in _IWO P. Gopalakrishnan (supra).

Accordingly, the instant 0.A is allowed. The respondents are directed as under:

(i) calculate the pension of the applicant based on the last held rank by him before retirement i.e. Naik and in consonance with the principles of

calculation that have been upheld in _IWO Gopalakrishnan (supra) in this regard; and

(ii) The applicant will be accordingly issued a fresh corrigendum PPO in the last rank held by him, subject to verification, within a period of three

months and arrears paid accordingly, failing which, it shall carry interest @ 6% till actual payment.

No order as to costs.