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Judgment
N.K. Patil, J.—Petitioner in this petition has sought for setting aside the court speaking order dated 29th October 2005 of DSC records vide Annexure B. Further, petitioner has sought for a direction, directing the respondents to follow the circular dated 23rd October 2003 and also Vth Pay Commission pension tables and pay the individual a monthly pension of Rs. 1468+3015 = Rs. 4483/- with effect from 1st April 2001 and also the arrears with 6% simple interest.
It is undisputed that, petitioner herein had earlier filed a writ petition in W.P. No. 31955/2003 before this Court seeking a direction to respondents to pay the petitioner''s dues from the date of his retirement i.e. 1st April 2001 and revised PPO to the individual, as the individual is not getting his due pension of Rs. 4483/- for the month vide Annexure J and F1 therein and arrears with minimum interest as may be decided by this Court.
The said writ petition had come up for consideration before this Court on 16th June 2005 and the writ petition filed by petitioner stood disposed of with a direction to respondents to finalize the pension claim of the petitioner in the light of annexure G therein and also in the light of the subsequent circular dated 23rd October 2003, if applicable to the petitioner and pass orders within three months from the date of receipt of a copy of the said order. After disposal of the said writ petition, the respondents took up the matter for consideration and passed a ''speaking order'' dated 29th October 2005 vide Annexure B, holding that petitioner is getting former service pension @ Rs. 1468/- per month with effect from 1st January 1996 and second spell of service pension @ Rs. 1976/- per month within the framework of rules on the subject and therefore, petitioner is not entitled to get the higher rate of pension as pleaded by him in the legal notice and earlier writ petition No. 31955/2003. Being aggrieved by the impugned ''speaking order'' passed by the competent authority, petitioner herein felt necessitated to present the instant writ petition, seeking appropriate reliefs as stated supra.
The principal submission canvassed by learned Counsel appearing for petitioner is that, the impugned ''speaking order'' by second respondent is unsustainable and is liable to be set aside for the reason that, the same is passed contrary to the relevant material available on file. To substantiate the said submission, he has taken me through Annexure D to MOD letter No. 1(6)98/D(Pens/Sers) dated 3rd February 1998 consisting of the Rates of Service Pension of Personnel Below Officer Rank of the DSC (excluding Honorary Commissioned Officers) who retired/retire on or after 10th October 1997 on revised scales of pay, copy of which is enclosed as Annexure C the writ petition. Further, he drew my attention to Annexure D dated 9th February 2001 which is a communication from the Ministry of Defence to the Chief of the Army Staff, New Delhi regarding the implementation of Government''s decision on the recommendation of the 5th Central Pay Commission relating to pensionary benefits in respect of commissioned Officers and Personal Below Officer Rank. Further, learned Counsel appearing for petitioner also placed reliance on Annexure E, which is the corrigendum issued by the Office of the Principal C.D.A. (Pensions), Allahabad bearing Corrigendum P.P.P.No. S/005599/2001 wherein it is specifically mentioned "for Rank last held: NB/SUB Read: SUBEDAR and For last Basic pay drawn Rs. 5575, Read: Rs. 6,170/-." These three vital aspects have not been looked into by the second respondent while passing the impugned speaking order vide Annexure B. Further in substantiation of the case of petitioner, learned Counsel appearing for petitioner also placed reliance on the judgment of the Apex Court reported in AIR 2007 SCW 77 and submitted that, petitioner is entitled to 50% of the pension on the last drawn salary. Therefore, he submitted that, the impugned ''speaking order'' passed by second respondent cannot be sustained.
Per contra, learned Counsel appearing for respondents, inter alia, contended and substantiated the impugned speaking order passed by second respondent stating that, the same is passed in strict compliance of the relevant provisions and no error or illegality as such has been committed in passing the same. He submitted that, a speaking order has been passed by the competent authority, by taking into consideration all the aspects of the matter as the made out by petitioner and the earlier order passed by this Court in the writ petition. To substantiate the said submission, he submitted that, the competent authority has specifically observed that, since the petitioner has not completed the minimum qualifying service of ten months in the rank of Sub you have were granted second spell of service pension as admissible in the rank of Nb Sub within the frame work of rules on the subject and granted the second spell of service pension amount as mentioned in the speaking order. In the instant case, petitioner has not held the post for the last ten months of service, namely in the rank of Nb Subedar. Therefore, petitioner is not entitled to the benefit claimed by him. Therefore, he submitted the, petitioner has not made out any good grounds to interfere in the impugned speaking order passed by the competent authority.
I have heard learned Counsel appearing for petitioner and learned Counsel appearing for respondents.
After careful perusal of the material available on record and the rival contentions urged by both parties, it emerges that, second respondent has committed grave error much less material irregularity in proceeding to pass the impugned speaking order contrary to the relevant material available on record. It is significant to note, as rightly pointed out by learned Counsel for petitioner that, the Official Memorandum has been issued by the competent authority viz. the Deputy Secretary to Government of India, Ministry of Defence on 9th February 2001 wherein, it is specifically clarified that, as per the amended communication dated 7th June 1999, the Government has decided that, with effect from 1st January 1996, pension of all armed force Pensioners, irrespective of their date of retirement shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 1st January 1996. PCDA(P), Allahabad has not been giving the benefit of revision of pension under modified to those officers who have not held their rank for last 10 months before retirement as per prevailing rules. However, there is no such stipulation in the Government Order under reference. Further, it emerges that, the officer of the Principal C.D.A. (Pensions), Allahabad, has issued a corrigendum bearing PPO No. S/005599/2001, notifying pensionary awards in respect of petitioner to the effect that, "For last basic pay drawn Rs. 5575/-, Read Rs. 6170/-". When such is the case, the second respondent ought not to have proceeded and fixed the pensionary benefits in second spell on the ground that, petitioner has not held the rank for the last ten months before retirement. The said reasoning given by the said authority cannot be sustained, in view of the Official Memorandum dated 9th February 2001 issued by the competent authority vide Annexure D, wherein it has been specifically clarified that, PCDA(P), Allahabad has not been giving the benefit of revision of pension under modified parity to those Officers who have not held their rank for last 10 months before retirement as per prevailing rules. However, there is no such stipulation in the Government Order under reference. If that is so, the second respondent ought not to have proceeded and passed the order without reference to the relevant direction issued by the competent authority and the corrigendum issued by the competent authority.
Further, it is pertinent to note that, recently, the Apex Court in the of K.S. Krishanaswamy etc. v. Union of India and Anr. reported in 2007 AIR SCW 77 has dealt with the same question. The relevant portion of the said judgment reads thus:
The aforesaid Policy Resolution was farther clarified by Executive Instructions in the form of Office Memorandum dated 17.12.1998, the substance of which reads as under.
The President is now pleased to decide that w.e.f. 1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of introduced w.e.f. 1.1.1966 of the post last held by the pensioner.
After going through the extraction of the aforesaid judgment, I am of the considered view that, the second respondent ought not to have proceeded to pass the impugned speaking order without reference to the clarification vide Annexure D referred by the Apex Court in the aforesaid judgment, as above.
Therefore, I am of the considered view that, the impugned ''speaking order'' passed by the second respondents dated 29th October 2005 vide Annexure B is unsustainable and the matter requires reconsideration and to take appropriate decision in the light of the observations made above, within the reasonable time that may be fixed by this Court.
Having regard to the facts and circumstances of the case as started above, the writ petition filed by petitioner is disposed of with the following directions:
I] The writ petition filed by petitioner is allowed in part;
II] The impugned ''speaking order'' dated 29th October 2005 bearing No. NER/JC-840380/LC-2/145 vide Annexure B issued by second respondent is hereby set aside;
III] Matter stands remitted back to second respondent to reconsider the matter afresh and to take appropriate decision in accordance with law, in the light of the Official Memorandum dated 9th February 2001 vide Annexure D and the corrigendum issued vide Annexure E, referred above in detail as well as in the light of the aforesaid judgment of the Apex court and dispose of the same, in accordance with law as expeditiously as possible, at any rate within four months from the date of receipt of a copy of the order.