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OA 3222 of 2013.Pdf 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 3222 of 2013 Daulat Kaushal …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Mr RK Mankotia , Advocate For the Respondent(s) : Mr Vibhor Bansal, CGC Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. -.- JUDGMENT 25.02.2014 -.- 1. By this petition, the petitioner prays for grant of pension in the rank of Hony Lieutenant from the date of discharge/retirement i.e. 30.9.2009 with all other benefits as per rules with interest. 2. As per the averments of the petitioner, he was enrolled in the Army on 25.4.1979 and discharged as Havildar on 30.4.2003 after rendering 24 years 6 days service. After few months, the petitioner was re-enrolled in the Territorial Army and on completion of 6 years and 19 days of service in the TA, he was discharged on 30.9.2009. During this tenure he was promoted to the rank of Subedar and Hony Lieutenant. He was further granted the rank of Hony Capt after retirement. At present he is getting the pension in Subedar‟s rank in spite of his entitlement as per the 6th Central Pay Commission. 3. The petitioner‟s representation for grant of pension in the rank of Hony Lieutenant, which was granted before his retirement, along with allied benefits and arrears was turned down by the authorities. Hence the petition. 4. The respondents in their written reply bring out that as per para 136 of Pension Regulation for the Army, 1961 (Part-I), the applicant was granted service pension w.e.f. 1st May, 2003 at the rate of 2 Rs.2275/- per month for life for the rank of Havildar vide PCDA(P) Allahabad Pension Payment Order No. S/056607/2002 (Army) dated 14 Feb 2003 and after surrendering all the benefits and pension by the applicant, the original PCDA(P) Allahabad PPO dated 14 Feb 2003 was cancelled vide PPO No. S/Corr/028248/2009 (Army) dated 12 May 2009. Thereafter, the applicant was granted service pension w.e.f. 1st Oct 2009 at the rate of Rs.9515/- per month for life for the rank of Subedar vide PCDA(P) Allahabad PPO dated 1st September, 2009. Thereafter service pension of the applicant has been revised to Rs.11970/- per month vide PCDA(P) Allahabad PPO dated 6th Jul 2011. 5. It is further pleaded by the respondents that as per correction slip NO. 1/2011 issued as amendment to para 172 (c ) of TA regulations, 1948 (revised) 1976 vide MoD/Fin Diary No. 710/Fin/GS/11 dated 08 Jul 2011 „Junior Commissioned Officers granted honorary commission of Captain and Lieutenants while in service will continue to be entitled to same pay and allowances that is paid to their equivalent Honorary Commissioned Officer in Regular Army. However, junior Lieutenants on retirement will be paid in accordance with the rank they held prior to being granted the honorary rank. Consequent upon issuance of the above amendment to TA Regulations 1948 (Rev 1976), this establishment sought clarification from PAO (OR) The Dogra Regt vide letter dated 31st January, 2012 to confirm whether Corr LPC cum Data Sheet in respect of all affected cases of the Regt are required to be processed or otherwise. In response to above letter, PAO (OR) the Dogra Regt vide their letter no. Re/Tech/Hony TA dated 06 Mar 2012 asked this establishment to forward Corr LPC cum Data Sheet of such cases having effect on and after 08 Jul 2011. Accordingly two cases of his Regt (TA JCOs granted Honorary Commission after 8th Jul 2011) were processed which were accepted by PAO (OR), The Dogra Regiment and revised PPOs were accordingly issued by PCDA(P) Allahabad. However that being the first ever case of this Regt, this establishment also sought necessary clarification from ADG TA vide letter dated 9th September, 2013 with regard to applicability of the provisions of 3 amendment. In response to our letter it has now been clarified by TA Directorate vide their signal No. 348058/TA-3 dated 27th Sep 2013 that the amendment is applicable to those TA JCOs who were granted Hony rank while in service w.e.f. 8th Jul 2011 and there was no retrospective effect to the amendment 172 ( c) of TA Regulations. 6. In the instant case, the applicant was enrolled in the Regular Army as Recruit on 25 April, 1979 and transferred to pension establishment with effect from 30 April, 2003 (afternoon) as Havildar on completion of period of his service under Item III(i)(a) of the table annexed to Rule 13(3) of Army Rules, 1954 on struck of strength (SOS) from 1st May 2003 after rendering 24 years, 6 days of service. After few months, on 14th Sep 2003 the applicant surrendered all the benefits of former service and re-enrolled in Territorial Army i.e. 153 Inf Bn (TA) as direct JCO Commission to the rank of Nb Sub and transferred to Pension Establishment with effect from 30 Sep 2009 as Sub Hony Lt on active list after 06 years and 19 days of service. He was granted Hony Commission as Hony Lt on 15 Aug 2009 while in service. The petitioner is receiving service pension of the rank of Subedar @ Rs.11,970/- per month. 7. Heard the learned counsel for the parties and gone through the record of the case. 8. It is not in dispute that the petitioner was enrolled in the Army on 25th April, 1979 and transferred to pension establishment on 30th April, 2003 and was granted pension. However, the petitioner joined the Territorial Army as direct JCO in the rank of Nb Subedar and promoted to the rank of Hony Lieutenant while in service. He retired on 30th April, 2003 and was further granted rank of Hony Captain after retirement. 9. The learned counsel for the petitioner has invited our attention to the Correction Slip No. 1/2011 in respect of amendment to Territorial Army Regulations, 1948 (revised 1976) which reads as under: 4 “AMENDMENT TO TERRITORIAL ARMY REGULATIONS 1948 (REVISED 1976 C.S.No. 1/2011 1. Regulations for the Territorial Army 1948 (1976 Edition) are amended as under: In Para 172 (c ) FOR Junior Commissioned Officers holding Honorary ranks of Captains and Lieutenants will be paid in accordance with the rank they held prior to being granted the Honorary ranks.” READ Junior Commissioned Officers granted honorary commission of Captain and Lieutenants while in service will continue to be entitled to same pay and allowance that is paid to their equivalent Honorary Commissioned Officers in Regular Army. However, junior commissioned Officers granted honorary ranks of Captain and Lieutenants on retirement will be paid in accordance with the rank they held prior to being granted the Honorary rank. Case No. 47144/GS/TA-3/561/US/(GS-iii)/2011 This issues with the approval of MoD/Fin diary No. 710/Fin/GS/11 dt 8.7.2011 (V Rajaram) Under Secretary to the Government of India.” 10. Learned counsel for the petitioner argued that the pension for the rank of Honorary Lieutenant may be allowed after the above said amendment. It has also been contended that the said amended dated 08.07.2011 is a liberalization of existing scheme hence all the pensioners should be treated equally. 11. The learned counsel for the petitioner relied upon the judgment of the Principal Bench in OA No. 64 of 2010 “Sub Maj J.S.Pundhir v. Union of India & Ors” decided on 19th July, 2012, and argued that in that case the petitioner was commissioned as Naib Subedar in the Territorial Army and during service became Subedar Major. He was granted the rank of Honorary Lieutenant and thereafter the rank of Honorary Captain and retired on 31.01.2005. However, he was getting the pension of Subedar Major . He filed the said OA for grant of pension of Honorary Captain. The prayer was allowed and it was ordered by the Principal Bench that the petitioner of that case be given the pension of the rank of Honorary Captain from the date of his retirement. 12. Learned counsel for the respondents, on the other hand, argued that it is not the liberalization of any existing scheme but is an introduction of a new benefit to the individuals in service and consequential retiral benefits and as such the same benefits cannot be extended to those who retired prior to its introduction. 5 13. We have considered over the respective arguments. It has to be noted that Para 172 of Regulations for the Territorial Army, 1948 (1976 Edition) is applicable to pay and allowances. Para 172 (before amendment) which comes under the heading “Pay and Allowances of Territorial Army Officers and other Ranks” as is relevant for our purpose, is as under: 172 Junior Commissioned Officers- (a)………..xx……..xx…… (b) ….xx…xx…xx…xx (c) Junior Commissioned Officers holding Honorary ranks of Captains and Lieutenants will be paid in accordance with the rank they held prior to being granted the Honorary ranks. (d) …xxx…xxx…xxx…xxx.. (e) ..xx..xx..xx..xx..xx..xx…x.. 14. It is clear that prior to this amendment the Junior Commissioned Officers holding honorary ranks of Captains and Lieutenants were getting pay and allowances of the rank which they were holding prior to the grant of Honorary ranks (Subedar in the present case). Naturally the pension was also being granted for the ranks which such JCOs were holding before the grant of honorary rank.
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