1 in the Armed Forces Tribunal, Regional Bench

IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A.No.85 of 2018

Wednesday, the 16th day of January 2019

THE HONOURABLE JUSTICE V.S.RAVI (MEMBER-J) and THE HONOURABLE LT GEN C A KRISHNAN (MEMBER – A)

S.No.260446-R Ex-Sgt V Venugopal, 73 years s/o Late Ramaswamy Venkataraman R/o No.9/146, Pension Line North Street Gugai, Salem, Tamil Nadu 636 006 ...… Applicant

By Legal Practitioner: M/s M K Sikdar & AQ Choudhury

vs. 1. Union of India Rep. by the Secretary Ministry of Defence New Delhi- 110 011.

2. The Chief of the Air Staff Air Head Quarters Rafi Marg, New Delhi- 110 011.

3. Directorate of Air Veterans Air Headquarters Subroto Park, New Delhi 110 010

4. The Principal Controller of Defence Accounts (Pensions) Draupadi Ghat, Allahabad Uttar Pradesh -211014 …….. Respondents

By: Shri M.Arvind Kumar, Central Govt Senior Panel Counsel

ORDER

LT GEN C.A.KRISHNAN, MEMBER (A)

1. The Original Application has been filed by Ex Sgt V Venugopal, praying for directions to recall the impugned order No.Air

HQ/99798/23/RP/Pre-06/DAV dated 20.04.2017 passed by the

3rd respondent and to direct the respondents to grant him pension for the last held rank of Sergeant (Group-I) w.e.f. 11.11.1980 with all consequential benefits.

2. The Learned Counsel for the applicant submits that the applicant was enrolled in the Indian Air Force on 29.08.1963 in Radar Fitter

Trade (Group-1) and was promoted to the rank of Sergeant (Sgt) on

21.01.1980. The applicant was discharged from service on

11.11.1980 while serving in the rank of Sergeant on „completion of

Regular Service‟. He further submits that the applicant has served in the rank of Sergeant for a period of 09 months and 22 days rendering a total qualifying service of 17 years 02 months and 14 days. The applicant was granted service pension for the rank of Corporal (Cpl) w.e.f 11.11.1980 but he was denied pension in the rank of Sergeant which was the last rank held by him. The learned counsel for the applicant submits that prior to 01.04.1979, the rules were that an individual has to serve for 24 months in a particular rank to get pension for the rank which was subsequently relaxed to 10 months 3 w.e.f. 01.04.1979. He further submits that as per para 123 of

Pension Regulations for Air Force, 1961 (Part I),

“A Competent Authority may condone deficiency of service in a particular rank not exceeding three months, except on voluntary retirement” and that the above mentioned provision is superseded by

GOI, MOD letter No.B/39013/AG/PS-4(a&c)/131/A/D(Pen/Sers) dated

09.02.2001. The learned counsel for applicant submits that the cumulative effect of the above Rules/Provisions/Orders is that holding rank even for a day entitle the rank pension for the last rank held. He further submits that the applicant is entitled for the benefits under

GoI, MoD letter No.1(2)/2016-D(Pen/Pol) dated 30.09.2016 and

PCDA(P), Allahabad Circular No.568 dated 13.10.2016 – “Revision of pension of pre-2006 pensioners (JCOs/OR & Commissioned Officers ) – delinking of qualifying service of 33 years for revised pension w.e.f.

01.01.2006”. The learned counsel for the applicant further argues that since the applicant was discharged from service on 11.11.1980, his case is covered by the above rules/provisions/orders and hence, he is entitled for the pension in the last held rank/post pension w.e.f.

11.11.1980 with applicable benefits and prays for the same.

3. The learned counsel for the respondents admit that the applicant was enrolled in the Indian Air Force on 29.8.1963 and after

17 years, 74 days of total qualifying service was discharged on

10.11.1980 in the rank of Sergeant (Group-I). As the individual held this rank only for a period of 9 months and 9 days w.e.f. 01.02.1980 4 before being discharged, he was sanctioned service pension only in the rank of Corporal. The learned counsel clarifies that prior to

1.4.1979, an individual had to serve for a period of 2 years in a particular rank to earn pension in the same rank. The period is reduced to 10 months by the Government which is applicable to those retired prior and post 1.4.1979. However, for the financial effect of the 10 month formula, the cut off date was set as 1.4.1979. He further submits that in terms of Para 122 of Pension Regulations for the Air Force 1961 (Part-I) and GOI MOD Lr.No.1(4)/82/D

(Pension/Sers) dated 22 Nov 1983, an individual‟s pension is assessed in the lowest acting paid rank or substantive rank and lowest group held by him during the last 10 months of his service qualifying for pension and as per Para 123 of Pension Regulations for the Air Force

1961 (Part-I), a competent authority can condone a deficiency of service in a particular rank not exceeding three months except on voluntary retirement. The learned counsel submits that the case of applicant was taken up with the 4th respondent, by providing copy of

OA No.85 of 2018 for issue of calculation sheet. The calculation sheet is still awaited from the 4th respondent and in view of the aforesaid reasons, prayed that the OA be dismissed.

4. We have heard Shri M.K.Sikdar, learned counsel appearing for the applicant and Shri M. Arvind Kumar, learned Central Government

Senior Panel Counsel appearing for respondents and perused the documents placed on record. 5

5. It is not disputed that the applicant was enrolled into Air

Force on 29.08.1963 and was discharged from service on 11.11.1980 after serving 17 years, 2 months and 14 days. It is also not denied that the applicant served in the rank of Sergeant for a period of 9 months, 22 days prior to being discharged but he has been granted pension only in the rank of Corporal on the grounds that he did not have the length of service required in the rank of sergeant, the last rank held by him, to earn pension in that rank.

6. We find that the Government letter No. B/39013/AG/PS-4

(a&c)/131/A/D (Pension/Services) dated 9.2.2001 is applicable in the applicant‟s case which reads as follows:

“I am directed to refer to this Ministry’s letter No.1(1)/99/D(Pen/Sers) dated 7.6.1999 as amended wherein Government had decided that w.e.f. 1.1.96 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 w.e.f. 1.1.96. PCDA(P), Allahabad has not ben 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.

The matter has been reconsidered in consultation with O/o CGDA. It is clarified that pension of all pre-96 retiree Armed Forces Personnel will be revised on the basis of the rank/group last held by the individual and the revised pay scale connected thereto, even if the rank/group was held for less than 10 months 6

before retirement. Such pension will be reduced proportionately if the qualifying service is less than 33 years. Other conditions to earn pension will continue to apply. This issues with the concurrence of Ministry of Defence (Finance/Pension) vide their U.O.No.143/Pen/01 dated 12.01.2001.” We find that the provisions of GoI letter No.1(2)/2016-D(Pen/Pol) dated 30.09 2016 and order dated 17.04.2017 passed by the passed by the Principal Bench, AFT in Ex JWO Ashok Kumar Tanwar & Ors Vs

Union of India &Ors in OA No.882 of 2016 as well as by the order dated 13.02.2015 passed by this Bench in JWO P.Gopalakrishnan Vs

Union of India & Ors in O.A.No.62 of 2014 and order dated 23.3.2018 in O.A. No.96 of 2016 are also applicable to the applicant‟s case.

7. Para 6 of the Government letter No. letter No.1(2)/2016-

D(Pen/Pol) dated 30.09.2016 states as follows:

“The provisions of this letter shall take effect from 01.01.2006 and arrears, if any, shall be payable from 01.01.2006. Further, the pension/family pension of the Armed Force Personnel has been revised a number of times in past vide various letters issued by this Ministry, therefore, if pension already revised w.e.f. 01.01.2006,01.07.2009, 24.09.2012 & 01.07.2014 (OROP) under respective Government orders happens to be more than this amount, then Retiring/Service and Family Pension as per above orders will continue to be paid as basic pension during that period.”

8. In the light of the revised Government policy letters issued and the judgements discussed above, it is evident that the issue is no more res integra and that the applicant is entitled to pension in the rank of

Sergeant, the rank last held by him, with effect from 1.1.1996. The respondents are directed as follows:-

(i) Issue a fresh corrigendum PPO to the applicant clearly indicating details of revised service pension with effect from 1.1.1996 and as revised subsequently from time to time in consonance with later revisions ordered by the Government. (ii) Corrigendum PPO will be issued and revised pension paid to the applicant as ordered herein, within three months from the date of receipt of this order. In default, the respondents are directed to pay arrears with 8% interest p.a. till it is fully paid.

9. The OA is disposed of accordingly.

10. Learned counsel for the respondents requested leave to appeal before the Hon‟ble Supreme Court u/s 31 of AFT Act, 2007. In our opinion, we find no point of law of general public importance involved in the order rendered by this Tribunal. Hence, the leave requested for is not granted.

Sd/- Sd/-

LT GEN C.A.KRISHNAN JUSTICE V.S.RAVI MEMBER (A) MEMBER (J) bc

//True Copy// 16.01.2019 8

1. M/s M.K.Sikdar and AQ Choudhary, Counsel for the applicant

2. Shri M.Arvind Kumar, Central Govt Senior Panel Counsel for respondents

3. OIC, Legal Cell, Dakshin Bharath Area, Chennai

4. Library, AFT, RB, Chennai

HON’BLE JUSTICE V.S.RAVI (MEMBER-J) AND HON’BLE LT GEN C.A.KRISHNAN (MEMBER–A)

O.A.No.85 of 2018

Dated: 16.01.2019