Remember | Register | Forgot Password?
Bookmark This Page   RSS Feeds  Follow On Twitter

 

Search for Lawyers          
    

Home > Experts > Labour & Service Law > Army pension



Please Wait ..

Army pension (Labour & Service Law)

Report Abuse
This query is : Resolved


Author : Anonymous

Posted On 30 December 2011 at 20:50

my father served in army for 10 years out of which 5 years as a short service commissioned officer. is he eligible foe pension? i read in a article in THE HINDU about a judgment of AFT in this matter. kindly advise. please tell the provisions and any judgement in this matter




Expert : Sudhir Kumar

Posted On 30 December 2011 at 21:38

Your father may be knowing his rights



Author : Anonymous

Posted On 30 December 2011 at 22:14

sir, my father left army in 1991 and then there was no such provision for pension. but there was a recent judgement of AFT regarding this matter. kindly guide me



Expert : prabhakar singh

Posted On 31 December 2011 at 15:52



O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
28
implementation order should be taken for determination of thepension has to be accepted. Had this expression not beendefined anywhere perhaps argument of learned counsel for therespondents would have been accepted. In this connection, wemay further point out that the earlier communication dated 17thDecember, 1998 in the Fifth Pay Commission, the Governmenthas clearly mentioned that pension of all pensioners irrespectiveof the date of their retirement shall not be less than 50%, theminimum pay was revised from 01.01.2006

for the last post heldby the pensioners. Had this expression been repeated, perhaps itwould carry the same interpretation. In the present case, paystructure has been revised and now all the pay scales have beencategorised in the various pay bands and in the case of Lt.Commander or equivalent fall in the Pay Band-III and minimum ofPay Band-III is 15,600/- at the entry level i.e. minimum of the payband for this rank. Had this expression used in this pay scale ofSixth Pay Commission, we would not have come to interpretationas was clarified by the Fifth Pay Commission by the GovernmentOrder dated 17
th
December, 1998. But in the present case, theexpression pay in the pay band has been defined by theGovernment in the communication dated 18
th
October, 2008 that

O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
29
puts the matter beyond any controversy. The expression whichhas been defined in the scheme of things has to be acceptedwhile interpreting all the provisions of the Pay Commission andthe Implementation Order. Here the expression

minimum of the
pay in the pay band‟
is to be taken for the purposes of decidingthe pension of pre 2006 pensioners. Therefore, one has tointerpret the provisions as exists and we have to take it minimumpay in the pay band for equivalent rank then that comes toRs.23,810/- determined by the Government in Column 7 of tableat para 4 (a) as such we have to accept the figure of 23810/-being the minimum of the pay in the pay band for Lt. Commandersand equivalent ranks. If that is taken then naturally 50% of thiswill have to be treated as a basic pension and rest of it will beadded to it as grade pay and other benefits which are given to thepersons of that rank. There is no controversy with regard to gradepay and Military Service pay and other benefits to which we arenot concerned. We are concerned with what is minimum has tobe taken for pre 2006 retirees and minimum pay scale for thepurposes of determining the pension. In our opinion as per theGovernment order for all pre retirees of Lt. Commander and otherranks their minimum of the pay has to be accepted as determined


O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
30
by the Government for the purpose of fixation of the officers in2006 i.e. Rs.23810/-. Accordingly, we direct let the pension of preretirees should be decided on the basis of minimum of the pay inthe pay band i.e. Rs.23,810/- with all other benefits and shall begiven to them. All exercise may be completed as far as possiblewithin three months. Both the petitions are allowed in view ofaforesaid terms. No order as to costs.
A.K. MATHUR(Chairperson)M.L. NAIDU(Member)New DelhiSeptember 14, 2010



Expert : prabhakar singh

Posted On 31 December 2011 at 15:54







HERE IS A VERY USEFUL JUDGEMENT BY THE SUPREME COURT.

YOU READ AND CHECK IN YOUR CIRCUMSTANCES TO GO TO COMMISSION ORDERED TO BE SET UP BY GOVERNMENT.


2010 STPL(Web) 936 SC
[2010(12) SCALE 64]
SUPREME COURT OF INDIA
(MARKANDEY KATJU & GYAN SUDHA MISRA, JJ.)
PUSHPA VANTI
Petitioner
VERSUS
UNION OF INDIA & OTHERS
Respondent
Writ Petition (Civil)) No. 291 of 2010-Decided on 15-11-2010.
Armed Forces Grievances Redressal Commission.
ORDER
1. In this case we had issued notice to the respondents on 17.9.2010 but no counter affidavit has
been filed.
2. The petitioner before us in the present case is a widow Pushpa Vanti, whose husband was an
army major who had fought in three wars (in 1948, 1962 and 1965) and was decorated with
fourteen medals. However, the petitioner is getting only Rs.80/- per month as pension, in these
days when a kilogram of arhar dal costs that amount. She has prayed for fixation of her correct
pension and arrears.
3. The Indian armed forces are bravely defending the borders of the country, often standing on
guard at a height of 20,000 feet and in minus 30oC temperature, day and night so that the people
of India can live, work and sleep in peace.
4. However, there is widespread discontent among the serving and former members of the armed
forces (by which we mean the Army, Navy and Air Force) and their widows and family members
regarding their service conditions e.g. pay scales, allowances, anomalies regarding pensions,
inadequate pension (particularly to those disabled while in service), widows benefits, promotion
matters (including promotion policy and process) etc.. They have a feeling that the bureaucrats do
not care for them and do not properly address their grievances. As a result, thousands of ex-
armed forces personnel have returned their medals, and some have even burnt their artificial
limbs.
5. These grievances include the grievances relating to pay, allowances, one rank one pension,
other pension matters, suitable benefits to be granted to war veterans, war widows, promotion
matters, rehabilitation of soldiers who are discharged at a young age, etc.
6. In a recent panel discussion `We The People' on NDTV channel some of these grievances were
highlighted.
Supreme Court Judgements @ www.stpl-india.in2010 STPL(Web) 936 SC 2
Pushpa Vanti Vs. Union of India
7. Our courts of law are flooded with cases relating to members, both serving and retired, of the
armed forces e.g. cases relating to pension, promotion, etc and the obvious reason is that the
armed forces personnel have a feeling that their grievances are not being properly addressed.
8. The great Prime Minister of Magadha, Chanakya, told Emperor Chandragupta Maurya :
"Pataliputra rests each night in peaceful comfort, O King, secure in the belief that the
distant borders of Magadha are inviolate and the interiors are safe and secure, thanks only
to the Mauryan Army standing vigil with naked swords and eyes peeled for action, day
and night, in weather fair and foul, all eight praharas (i.e. round the clock), quite
unmindful of personal discomfort and hardship, all through the year, year after year.
To this man, O Rajadhiraja, you owe a debt: please, therefore, see to it, suo motu, that the
soldier continuously gets his dues in every form and respect, be they his needs or his
wants, for he is not likely to ask for them himself.
The day the soldier has to demand his dues will be a sad day for Magadha; for then, on
that day, you will have lost all moral sanction to be king!"
9. Today our ex-soldiers have not only been demanding but are agitating to get their legitimate
dues. They were compelled to resort to public protests and even return their War-medals and burn
their artificial limbs, as was done by Capt. C.S. Sidhu whose right arm was amputated while
serving at the front but was getting a pittance as pension (see judgment of this Court in Union of
India & Anr. vs. C.S. Sidhu in Civil Appeal No.4474 of 2005 dated 31st March, 2010). This, in
our opinion, is not good for the nation. The armed forces personnel should have a feeling that
their grievances are heard by an independent body. Even if some of their demands are not
accepted, they will have a feeling that they were given a proper hearing.
10. We, therefore, direct the Central Government to set up within two months from today a
Commission which shall be called the Armed Forces Grievances Redressal Commission.
11. This Commission will look into any grievances (sent to them in writing or by e-mail) by
serving or former members of the armed forces (i.e. Army, Navy and Air Force) or their widows
or family members and make suitable recommendations expeditiously to the Central Government
in this connection.
12. The Commission will also frame and recommend to the Central Government a scheme for
proper rehabilitation of discharged soldiers. At present the position is that a soldier is ordinarily
recruited at the age of about 18 years, and if he does not rise above the rank of Jawan he is
discharged after 15 years of service. If he is promoted, his tenure is extended on each promotion.
Thus, if he reaches the rank of Havildar but no further he will retire after 22 years of service, i.e.
at the age of 40. Thus a soldier is retired when he is in the prime of life. During his service he
spends only about 2 months per year with his family. There is no doubt a Resettlement
Directorate in the Army Headquarters, but we are informed that it is not a very effective body. If
a soldier is discharged between the age of 35-45 how will he support his family ? At that age he is
likely to have a wife and children. Hence he should be given alternative employment so that he
can support his family. The Commission will go into this matter also in detail and suggest
appropriate schemes for rehabilitation of ex-armed forces personnel who are retired at a relatively
young age.
13. The aforesaid Commission shall consist of the following members :
Supreme Court Judgements @ www.stpl-india.in2010 STPL(Web) 936 SC 3
Pushpa Vanti Vs. Union of India
1. A retired Judge of the Supreme Court of India as the Chairman of the Commission.
The first Chairman shall be Hon'ble Mr. Justice Kuldip Singh, former Judge, Supreme
Court.
2. A former Chief Justice of the High Court as the Vice Chairman of the Commission.
The Vice Chairman will officiate as the Chairman in absence of the Chairman. The first
Vice Chairman shall be Hon'ble Mr. Justice S.S. Sodhi, retired Chief Justice of the
Allahabad High Court.
3. A retired Chief of Army staff as a Member of the Commission. We appoint General
V.P. Malik, retired Chief of Army staff, to be a Member of the Commission.
4. Any retired Chief or Vice Chief or Deputy Chief of the Army, Navy or Air Force as a
Member of the Commission. In the first Commission we appoint Lt. General Vijay
Oberoi, retired Vice Chief of Army Staff, to be a Member of the Commission(General
Oberoi is the Douglas Bader of the Indian Armed Forces, his one foot having been shot
and later amputated due to a burst of machine gun fire in the 1965 Indo-Pak war, when he
was a young Captain. Despite this he rose to become a Lt. General and Vice Chief of the
Army).
5. A civil servant, whether serving or retired, as a Member of the Commission, to be
appointed by the Central Government, at its discretion.
14. The term of the first Commission will be for two years from the date of its constitution but it
will be renewable at the option of the Central Government. The subsequent Commission
members (after the two year term of the first Commission has expired) shall be appointed by the
Central Government.
15. Since most of the aforesaid members in the first Commission are based in Chandigarh hence
we direct that the headquarters of the Commission shall be at Chandigarh. For this purpose a
suitable building will be allotted at the earliest at Chandigarh by the Union Territory of
Chandigarh in consultation with the Central Government which will be used as the office-cumsecretariat of the Commission.
This building must have sufficient rooms to provide an office for each member of the
Commission. The Central Government will allot adequate secretarial and other staff and
infrastructure and equipment (including computers, telephones etc.) for the office and members of
the Commission as desired by the Chairman.
16. In addition to the headquarters of the Commission at Chandigarh there will also be set-up
offices of the Commission at Delhi and such other places as the Chairman of the Commission
may direct. The Central Government and concerned State Governments/Union Territories will
provide the necessary staff and infrastructure as the Chairman may direct for this purpose.
17. All the members of the Commission shall sit together whenever issues of general importance
are to be considered. However, in any matter relating to individuals or a few persons only the
Chairman can appoint a smaller Committee consisting of one or more members as he decides.
18. The first four members of the Commission will be given the same salaries, benefits and
allowances which they were getting on the last day when they were in service. They will also be
Supreme Court Judgements @ www.stpl-india.in2010 STPL(Web) 936 SC 4
Pushpa Vanti Vs. Union of India
given traveling and such other allowances as the Chairman decides if they have to travel to other
places away from Chandigarh. The fifth member, if a retired person, will also get the same.
19. We make it clear that this Commission is different from the Armed Forces Tribunal in the
following ways :
1. The Commission is only a recommendatory body and not an adjudicatory body. Hence
it is open to the Central Government to accept or not to accept its recommendations,
though of course since such recommendations will be coming from a high powered body
the Central Government must give due weight to the same.
2. Whereas the Armed Forces Tribunal can only decide cases in accordance with the
rules, the Commission can recommend even change of the rules where it feels that the
same are defective or inadequate. In other words, the Commission is not confined to
following the relevant rules relating to service conditions, pension, etc. but it can
recommend change of the same where it feels that the same are defective or inadequate.
20. We further direct all authorities in India, Civil or Military (including the Secretary, Defence,
Union of India, and the Chiefs of the Army, Navy and Air Staffs) to extend all cooperation to the
Commission to enable it to discharge its functions effectively.
21. The notification constituting the Commission as provided above will be issued by the Central
government forthwith.
22. The claim of the petitioner in this case shall stand referred to the Commission. The Registry
of this Court shall send copies of the papers of this case forthwith to the members of the
Commission nominated by us, and the petitioner's claim shall be considered expeditiously.
Claims of other armed forces personnel (serving or retired) should also be considered
expeditiously.
23. List this case again on 7.2.2011.











You can get entire text on below given address:

http://www.scribd.com/doc/60461569/AFT-Judgement-of-14-September-2010

also visit http://www.aftdelhi.nic.in/

http://reportmysignal.blogspot.com/2011/07/aft-judgement-on-majors-pension.html


also visit

http://www.indianmilitary.info/



Expert : prabhakar singh

Posted On 31 December 2011 at 16:02

OA No.25/2010

Wednesday, the Ninth day of March, 2011
THE HONOURABLE JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
(MEMBER – JUDICIAL)
AND
THE HONOURABLE LT GEN (RETD) S PATTABHIRAMAN
(MEMBER – ADMINISTRATIVE)
Ex- Sepoy M Sundaram (No.2547740)
S Thoppur Village
Kariapatti (Post & Taluk)
Virudhunagar (District)
Tamil Nadu ……. Applicant
By Legal Practitioners M/s A Soundararaj &
R Ratnarengasamy
Vs
1. The Chief Record Officer
For OIC Records,
Records, The Madras Regiment
Pin : 900458
C/o 56 APO ……… Respondent

By MrV Balasubramanian, SCGSC
Along with JAG Officer Lt Col Sandeep Kumar
O R D E R
(Order of the Tribunal made by Lt Gen (Retd) S Pattabhiraman)
The case pertains to a septuagenarian applicant, an ex-sepoy from
The Madras Regiment, who, by way of Original Application No.25/2010,
has approached the Tribunal seeking relief of Disability Pension and for
setting aside the impugned order of the respondent denying him the
same.
12. The short facts of the application, sans irrelevant
particulars, are as follows :
2(a) The applicant was enrolled in the Indian Army on
26.06.1958 and discharged on 29.10.1963 after a service of 5 years and 4
months. He was discharged under Army Rule 13 (3) III (iii) as ‘medically
unfit’. The applicant would stress on the fact that such a medical
discharge, as per Army Rule 13 (3) III (iii) would be required to be carried
out only on the recommendation of an Invaliding Medical Board (IMB).
The applicant would say that he was 100 per cent fit when he was
enrolled and was also ready to serve in alternate duties but was invalided
out for reasons of being medically unfit. The applicant would say that he
had neither been subjected to any Medical Board nor been informed of the
detailed causes of being pronounced ‘medically unfit’. The applicant is
unaware of the recommendations of the IMB as also what type of
disability was he suffering from and whether the disability was attributed
to or aggravated by military service. To his queries regarding the above
particulars, all he got as reply to was that the service documents,
including the medical documents have been destroyed as per rules and
hence the impugned order No.03195/DP/Gen/23/PG-3 dated 09.04.2010.
The applicant would say at least IAFK 1172 could not have been destroyed
and it should be available.
2(b) The applicant would say that since he was prematurely
discharged after five years and four months of service at a young age of
25 years, it would indicate that the disease would not have been
constitutional in nature and would have been contracted as a result of
continued exposure to hostile work environment. The applicant would
2refer to Government of India, Ministry of Defence letter
No.1(2)/97/D(Pen-C) dated 31.01.2001 on the subject matter of
implementation of the Government’s decisions on the recommendations of
the V CPC in regard to disability pension for the Armed Forces personnel
retiring, invaliding or dying in harness on or after 01.01.1996. This letter
classifies various categories of disabilities in categories A to E. Seeking
benefit of doubt based on this letter, the applicant would claim to be
placed in Category B, i.e., diseases having been contracted due to
continued exposure to hostile environment subject to extreme weather
conditions or occupational hazards resulting in such diseases being
accepted as ‘attributable to or aggravated by military service’ and thereby
entitling the applicant for disability pension.
2(c ) The applicant would also cite the example of restoration
of disability pension to one ex-Sapper Mavilpatti Krishnasami Alagirisamy
after a gap of 29 years in favour of his case for grant of disability pension
irrespective of inordinate delay in making the claim. He would also cite a
recent judgment of the Chandigarh Bench of the AFT in granting disability
pension to an applicant after 44 years of discharge. The other examples
quoted by the applicant are in respect of an ex-sepoy S Ramaraj of AMC
Records as also one Narang Singh in a judgment rendered by Justice
Pramod Kohli of the Punjab & Haryana High Court, got his service pension
after 60 years.
2(d) The applicant would say that he referred his case on
09.04.2001 and thereafter on 18.05.2002 to the Army Headquarters for
grant of disability pension and the same was referred to the respondent.
The applicant also made a representation to the Addl Directorate General
3Personnel Services (PS4(d) Adjutant General’s Branch, Army
Headquarters on 09.08.2005. He also made a representation to His
Excellency the President of India on 05.03.2007 which was turned down
on 14.05.2007. The applicant’s plea for disability pension was also
rejected by the respondent on 26.06.2007 and lastly by way of letter
No.2547740/DP/1172/PG-3 dated 11.06.2009 stating that service /
medical documents were destroyed during the year 1990, he being a nonpensioner. The applicant would cite two more letters of rejection – one by
the respondent by way of letter No.03195/DP/Gen/125/PG-3 dated
22.10.2009 and No.03195/DP/Gen/23/PG-3 dated 09.04.2010 on similar
grounds and hence the application.
3. In the counter affidavit, the respondent would say at the
outset that the application, coming after 47 years of retirement, is
hopelessly time-barred. The applicant could not expect the department to
keep the records after 25 years. The earliest communication received,
was on 18.05.2002 and was replied on 19.09.2002. The applicant was
not eligible for service pension as he had put in only 4 years, 9 months
and 15 days of service against an eligibility of 15 years. As per available
records, i.e., IAFK-1172 (Long Roll), ex-sepoy M Sundaram was enrolled
in The Madras Regiment on 26.06.1959 and discharged from service w.e.f.
29.10.1963 under Army Rule 13 (3) (III) (iii) being medically unfit after
rendering 5 years and 126 days of service including 58 days nonqualifying service. He was not granted any type of pension, being
ineligible for the same. In the absence of service and medical documents
of the applicant, which have been weeded out on 20.06.1990 having
outlived the stipulated period of retention in terms of para 595
4Regulations for the Army 1987 (revised), it is not possible to ascertain
the disability for which the applicant had been declared medically unfit for
further service. Since the disability pension was not granted, it would be
reasonable to presume that the disability due to which he had been
declared medically unfit would have had no causal connection to military
service. The applicant’s contention that he was medically fit prior to
service and thereafter would have contracted the disease which made him
medically unfit due to continued exposure to hostile work environment is
not acceptable and liable to be rejected. The contention of the petitioner
that he had been invalided out without a properly constituted Invaliding
Medical Board/Release Medical Board is false, frivolous and strongly
contested. Citing the relevant Pension Regulations, i.e., paragraph 173 of
the Pension Regulations for the Army 1961 (Part-I), wherein the primary
conditions for the grant of disability pension would be ‘attributability to or
aggravation due to military service ‘ and assessed at 20 per cent or more
and for want of any documents, having been destroyed as per regulations,
the respondent would express that it is not feasible to ascertain the
disability for which the applicant was declared medically unfit and
invalided out without any disability pension. The respondent would state
that all the queries after 2002 of the applicant have been suitably replied
expressing inability to throw any light on the causes of disability due to
the service and medical documents having been destroyed, being beyond
retention period.
3(a) Citing Rule 7 of the Entitlement Rules (included as
Exhibit R-2), i.e., Entitlement Rules for Casualty Pensionary Awards to
5Armed Forces Personnel, 2008, the respondent would rely that the onus of
proof is squarely on the applicant. Rule No.7 is extracted below :
“ 7. Onus of Proof :
Ordinarily the claimant will not be called upon to prove the
condition of entitlement. However, where the claim is preferred
after 15 years of discharge / retirement / invalidment / release by
which time the service documents of the claimant are destroyed
after the prescribed retention period, the onus to prove the
entitlement would lie on the claimant.”
The application is therefore liable to be dismissed.
4. In the additional counter-affidavit, the respondent has also
produced the Form IAFK – 1172 pertaining to the particulars of the
applicant from the particulars of non-effective JCOs/ORs/NCsE (on
destruction of Sheet Roll over 25 years old for whom Long Rolls do not
exist).
5. We have heard the spirited arguments advanced on
behalf of the applicant from the learned counsel for the applicant.
6. The point for consideration therefore, in the applicant’s
case is, for want of the medical board documents, does the applicant have
a case for consideration and award of disability pension as prayed for?
7. THE POINT : Admitted fact is that the
respondents have discharged the applicant under the provisions of
relevant rules, i.e., Army Rule 13 (3) (III) (iii) on medical grounds. It is
also admitted that there has been an inordinate delay on the part of the
applicant to approach the respondent for reconsideration and of not
informing him of the disability which entitled his discharge. It is also an
admitted fact that prior to 2005, there has been no provision for the
personnel being invalided out to be provided with a copy of the IMB
6proceedings. This has further contributed to the applicant continuing to
be unaware of the detailed reasons for his discharge on medical grounds.
7(a) Unfortunately, at this stage, there is no other document
to rely on, except the IAFK – 1172. However, since the respondent has
referred to Rule No.7 of Entitlement Rules for Casualty Pensionary Awards
to Armed Forces Personnel, 2008, wherein the onus of proof has been
rightly placed on the applicant, we feel that an opportunity can be
provided even at this belated stage for the applicant to be reviewed by a
duly constituted Medical Board to reconsider the circumstances of his
discharge and reconsider the issue of a reasons which caused the
disability which in turn, caused his invalidment out of service and whether
the same was attributable to or aggravated by military service.
7(b) The learned counsel would also mention that at the
time of discharge, the applicant was posted in Along, erstwhile NEFA,
(today’s Arunachal Pradesh). However, he was not able to produce any
document in support of the same even though the applicant was present
in person. We have also heard the learned senior Central Government
counsel and the learned JAG officer who would contest the claim for
disability pension very strongly on the grounds of latches. In support of
the same, citing (2008) 10 SCC 115 in the case of C Jacob Vs
Director of Geology and Mining, the respondent would say that in the
case cited, the petitioner had kept quiet for 18 years and a stage was
reached when no record was available regarding his previous service. The
Single Judge who held in favour of the petitioner had dealt with the matter
as if the petitioner had approached the Court immediately after the
termination, based on an innocuous prayer to ‘consider’ the
7representation relating to a stale issue. The applicant’s case, however,
apart from the issue of delay in filing the application, would differ since it
is a case of disability pension for which records pertaining to the disability
under which the applicant has been discharged has, unfortunately, been
destroyed by the respondent and not available with the applicant.
7(c ) There is, in the documents placed on the side of the
applicant, a petition dated 05.03.2007 to His Excellency President of
India, wherein in vernacular (in Tamil), the applicant has referred to his
suffering from a form of mental illness, i.e., ‘Psychosis’( ).
This would provide some input to the Board of Officers who would
examine the applicant.
8. In fine, the applicant is directed to appear before a
Review Medical Board, to be constituted by the respondent within two
months from today and if the opinion of the Review Medical Board is
against the interest of the petitioner, he is at liberty to approach this
Tribunal thereafter. With this observation, the application is disposed of.
No costs.
Sd/- sd/-
Justice ACA Adityan Lt Gen (Retd) S.Pattabhiraman
M(J) M(A)
09.03.2011
//TRUE COPY//



Expert : Devajyoti Barman

Posted On 31 December 2011 at 16:06

Mr Singh has done really a good job.



Expert : prabhakar singh

Posted On 31 December 2011 at 16:10

O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT
NEW DELHI
O.A. No. 270/2010
With
O.A. No. 24/2010
Sq. Ldr. Vinod Kumar Jain & Others .........Applicant
Versus
Union of India & Others .......Respondents
[With Lt. Cdr. Avtar Singh & Ors. Vs. Union of India & Ors.]
For applicant: Cmde (Retd.) Sukhjinder Singh, Advocate.
For respondents: Ms. Jyoti Singh, Advocate.
CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. M.L. NAIDU, MEMBER.
O R D E R
14.09.2010
1. Both the cases involve identical question of law one
from the Navy and other from the Air Force, therefore, they are
disposed by the common order.
2. In the case of Sqn. Ldr. Vinod Kumar Jain, this petition
has been filed by Sq. Ldr. Vinod Kumar Jain along with other
applicants having equivalent ranks i.e. Major from the Army and O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
2
some of the Lt. Commanders from the Navy who have since
retired. In the case of Lt. Cdr. Avtar Singh, a joint petition has
been filed by all the retired Lt. Commanders of the Navy. Both
these petitions are espousing the case of officers of equivalent
ranks from all three Forces i.e. Army, Air Force and Navy i.e.
Majors in the Indian Army, Sqn. Leaders from Air Force and Lt.
Commanders from Navy. The grievance in both the petitions is
with regard of pension. The Sixth Pay Commission came into
force w.e.f. 01.01.2006 and in implementation of that Ministry of
Defence has passed various orders from time to time. The issue
before us is limited one that how the persons of these rank and
other equivalent rank in the other forces should be fixed in the
Sixth Pay Commission. Joint grievance of all the petitioners is
that their fixation has not been done in accordance with the
recommendation of the Sixth Pay Commission and the
implementation order issued by the Ministry of Defence from time
to time. It has been prayed that the letter issued by the Ministry of
Defence dated 03
rd
October, 2008 and Government of India‟s
letter dated 11
th
November, 2008 may be quashed to the extent of
methodology on fixation of pension of pre 2006 retirees and has
further sought a relief that respondents may be directed to amend O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
3
para 4.2 of OM dated 01.09.2008 as per its wording reproduced in
OM dated 03
rd
October, 2008 and direct the respondents for
fixation of pension in terms of the judgment given in the case of
Union of India SPS Vains – 2008 (12) SCALE 360.
3. The first order in sequence of is dated 01.09.2008 by
which the Ministry of Defence has implemented the Government
decision on the recommendations of the Sixth Pay Commission
and the revision of the pension of the pre 2006 pensioners and
family pensioners etc. which reads as under :-
“F. No. 38/37/08-P&PW (A)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Pension & Pensioners‟ Welfare
Lok Nayak Bhawan, New Delhi
Dated the 01
st
September, 2008
OFFICE MEMORANDUM
Sub: Implementation of Government‟s decision on
the recommendations of the Sixth Central Pay
Commission – Revision of penson of pre-2006
pensioners/family pensioners etc.
1. The undersigned is directed to say that in pursuance of
Government‟s decision on the recommendations of Sixth
Central Pay Commission, sanction of the President is hereby
accorded to the regulation, with effect from 1.1.2006, of
pension/family pension of all the pre-2006 pensioners/family
pensioners in the manner indicated in the succeeding O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
4
paragraphs. Separate orders will be issued in respect of
employees who retired/died on or after 1.1.2006.
2.1 These orders apply to all pensioners/family pensioners
who were drawing pension/family pension on 1.1.2006 under
the Central Civil Services (Pension) rules, 1972, CCS
(Extraordinary Pension) rules and the corresponding rules
applicable to Railway pensioners and pensioners of All India
Services, including officers of the Indian Civil Service retired
from service on or after 1.1.1973.
2.2Separate orders will be issued by the Ministry of Defence
in regard to Armed Forces pensioners/family pensioners.
2.3 These orders do not also apply to retired High Court and
Supreme Court Judges and other Constitutional/Statutory
Authorities whose pension etc. is governed by separate
rules/orders.
3.1 In these orders:
a. Existing pensioner or Existing Family pensioner means a
pensioner who was drawing/entitled to pension/family
pension on 31.12.2005.
b. Existing pension means the basic pension inclusive of
commuted portion, if any, due on 31.12.2005. It covers all
classes of pension under the CCS (Pension) rules, 1972 as
also Disability Pension under the CCS (Extraordinary
Pension) Rules and the corresponding rules applicable to
Railway employees and Members of All India Services.
c. Existing family pension means the basic family pension
drawn on 31.122.005 under the CCS (Pension) Rules and the
corresponding rules applicable to Railway employees and the
Members of All India Services.
4.1 The pension/family pension of existing pre-2006
pensioners/family pensioners will be consolidated with effect
from 1.1.2006 by adding together:-
i. The existing pension/family pension.
ii. Dearness Pension, where applicableO.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
5
iii. Dearness Relief upto AICPI (IW) average index 536 (Base
year 1982=100) I.E. @ 24% OF Basic Pension/Basic family
pension plus dearness pension as admissible vide this
Department‟s O.M. No.42/2/2006-P&PW (G) dated 5.4.2006.
iv. Fitment weightage @ 40% of the existing pension/family
pension.
Where the existing pension in (i) above includes the effect of
merger of 50% of dearness relief w.e.f. 1.4.2004, the existing
pension for the purpose of fitment weightage will be recalculated after excluding the merged dearness relief of 50%
from the pension.
The amount so arrived at will be regarded as consolidated
pension/family pension with effect from 1.1.2006.
4.2 The fixation of pension will be subject to the provision that
the revised pension, in no case, shall be lower than fifty
percent of the minimum of the play in the pay band plus the
grade pay corresponding to the pre-revised pay scale from
which the pensioner had retired. In the case of HAG+ and
above scale, this will be fifty percent of the minimum of the
revised pay scale.
4.3Since the consolidate pension will be inclusive of
commuted portion of pension, if any, the commuted portion
will be deducted from the said amount while making monthly
disbursements.
4.4 The upper ceiling on pension/family pension laid down in
the Department of Pension and Pensioner‟s Welfare Office
Memorandum No. 45/86/97-P&PW (A) (Part-I) dated
27.10.1997 has been increased from Rs.15000/- and
Rs.9000 to 50% and 30% respectively of the highest pay in
the Government (the highest pay in the Government is
Rs.90,000 since 1.1.2006)
4.5 The quantum of pension/family pension available to the
old pensioners/family pensioners shall be increased as
follows:-
Age of pensioner/family
pensioner
Additional quantum of
pension
From 80 years to less than 85 20% of revised basic O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
6
years. pension/family pension.
From 85 years to less than 90
years.
30% of revised basic
pension/family pension.
From 90 years to less than 95
years.
40% of revised basic
pension/family pension.
From 95 years to less than
100 years.
50% of revised basic
pension/family pension.
100 years or more 100% of revised basic
pension/family pension
The amount of additional pension will be shown distinctly in
the pension payment order. For example, in case where a
pensioner is more than 80 years of age and his/her
consolidated pension in terms para 4.1 and 4.2 above is
Rs.10,000 pm, the pension will be shown as (i) Basic pennon
= Rs.10,000 and (ii) Additional pension = 2000 pm. The
pension on his/her attaining the age of 85 years will be shown
as (i) Basic Pension = Rs.10,000 and (ii) additional pension =
Rs.3,000 pm.
4.6Some of the existing pensioners who retired between
31.3.1985 and 31.12.1985 are in receipt of personal pension.
The said personal pension will continue to be granted as a
separate element and will not be merged into the pension as
consolidated above.
4.7Since the consolidated pension/family pension arrived at
as per paragraph 4.1. includes dearness relief upto average
index level 536 (Base year 1982=100) in accordance with the
revised scheme of dearness relief for which orders are being
issued separately. The four instalments of dearness relief
sanctioned earlier from 1.7.2006, 1.7.2007 and 1.1.2008 in
this Department‟s Office Memorandum No. 42/2/2006-P&PW
(G) dated the 15.9.2006, Office Memorandum No. 42/2/2006-
P&PW (G) dated 23.3.2007, Office Memorandum No.
42/2/2006-P&PW (G) dated the 18.9.2007 and Office
Memorandum No. 42/2/2006-P&PW dated the 19.3.2008
respectively shall be adjusted against revised Dearness
Relief becoming due on the consolidated pension/family
pension.O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
7
5.1Where the consolidated pension/family in terms of
paragraph 4 above works out to an amount less than
Rs.3500/- the same shall be stepped upto Rs.3500/-. This
will be regarded as pension/family pension with effect from
1.1.2006. In the case of pensioners who are in receipt of
more than one pension, the floor ceiling of Rs.3500/- will
apply to the total of all pensions taken together.
5.2Where the disability pension under the CCS (EOP) Rules,
is drawn in addition to invalid pension under the CCS
(Pension) rules, 1972, the minimum limit of Rs.3500 will apply
to total of two pensions as indicated in paragraph 5.1. Where
the disability pensions drawn in isolation, the minimum limit of
Rs.3500/-will apply for 100% disability. For lesser degree of
disability the minimum limit will be proportionately less.
6. The employed/re-employed pensioners/family pensioners
are not getting dearness relief on pension at present under
the extant orders. In their case the notional dearness relief
which would have been admissible to them but for their
employment/re-employment will be taken into account for
consolidation of their pension in terms of pargraph 4.1 above
as if they were drawing the dearness relief. Their pay will be
re-fixed w.e.f. 1.1.2006 with reference to consolidated
pension becoming admissible to them. Dearness relief
beyond 1.1.2006 will, however, not be admissible to them
during the period of employment/reemployment.
7. The cases of Central Government employees who have
been permanently absorbed in public sector
undertakings/autonomous bodies will be regulated as
follows:-
(a) PENSION
Where the Government servants on permanent absorption in
public sector undertakings/autonomous bodies continue to
draw pension separately from the Government, the pension
of such absorbees will be updated in terms of these orders.
In cases where the Government servants have drawn one
time lump sum terminal benefits equal to 100% of their
pensions and have become entitled to the restoration of onethird commuted portion of pension as per Supreme Court O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
8
judgment dated 15.12.1995, their cases will not be covered
by these orders.
(b) FAMILY PENSION
In cases where, on permanent absorption in public sector
undertaking/autonomous bodies, the terms of absorption
permit grant of family pension under the CCS (Pension) rules,
1972 or the corresponding rules applicable to Railway
employees/members of All India Service, the family pension
being drawn by family pensioners will be updated in
accordance with these orders.
8. All Pension Disbursing Authorities including Public Sector
Banks handling disbursement of pension to the Central
Government pensioners are hereby authorised to pay
pension/family pension to existing pensioners/family
pensioners at the consolidated rates in terms of para 4.1
above without any further authorisation from the concerned
Accounts Officers/Head of Office etc. A table indicating the
existing basic pension/family pension without Dearness
Pension, the basic pension/family pension with dearness
pension and the revised consolidated pension/family pension
is enclosed for ready reference. (Annexure I). This table
may be used where the pensioners is in receipt of a single
pension only. Where a pensioner is in receipt of more than
one pension, consolidation may be done separately in terms
of pargraph 4.1 and as indicated in pargraph 5 floor ceiling of
Rs.3500/- may be applied to total pension from all sources
taken together. Wherever the age of pensioner/family
pensioner is available on the pension payment order, the
additional pension/family pension in terms of para 4.5 above
may also be paid by the pension disbursing authorities
immediately without any further authorisation from the
concerned Account Officer/Head of Office, etc. A suitable
entry regarding the revised consolidated pension shall be
recorded by the pension Disbursing Authorities in both halves
of the Pension Payment Order. An intimation regarding
disbursement of revised pension may be sent by the pension
disbursing authorities to he office of CPAO and Accounts
Officer which had issued the PPO in the form given at
Annexure-II so that the latter can update the Pension O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
9
payment Order Register maintained by him. An
acknowledgement shall be obtained by the Pension
Disbursing Authorities from Office of CPAO and the
respective Accounts Officers in this behalf.
9. The consolidated pension/family pension as worked
out in accordance with provisions of para 4.1 above shall be
treated as final „Basic Pension‟ with effect from 1.1.2006 and
shall qualify for grant of Dearness Relief sanctioned
thereafter.
10. 40% of the arrears of pension will be paid in the
year 2008-09 and the remaining 60% in the year 2009-10.
11. It shall be the responsibility of the Head of the
Department of the Ministry, Department, Office, etc. from
which the government servant had retired or where he was
working prior to his demise to revise the pension/family
pension of all pensioners/family pensioners with effect from
1
st
January 2006 in accordance with the provisions
mentioned in para 4.1 and 4.2 above and to issue revised
Pension Payment Order (PPOs). Action to revise
pension/family pension in terms of these provisions shall be
initiated suo moto by the concerned Heads of Departments.
In the case of the Defence Civilian Employees, however, the
procedure prescribed in this regard by the Ministry of
Defence shall be followed. It is emphasised that the Pension
Sanctioning Authority, in no case, will ask the
pensioner/family pensioners to surrender his/her original
Pension Payment Order (PPO) for issuing revised authority.
In case, however, the age of pensioner/family pensioner is
not available on the PPO/office records, the same shall be
obtained from the pensioner/family pensioner and indicated in
the revised PPO. The authenticity of the age declared by the
pensioner/family pensioner shall be verified by the pension
sanctioning authority. It may also be ensured that a copy of
the revised PPO should be invariably endorsed to the
pensioner/family pensioner.
12. It is considered desirable that the benefit of these
orders should reach the pensioners as expeditiously as
possible. To achieve this objective it is desired that all
Pension Disbursing Authorities should ensure that the revised O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
10
pension and the first instalment of arrears due to the
pensioners in terms of para 4.1 and para 4.5 above is paid to
the pensioners or credit to their account by 30
th
September,
2008 or before positively. Instructions regarding release of
second instalment of arrears will be issued later. Concerted
efforts should be made by all the authorities concerned to
ensure that the revised PPO‟s are issued, wherever
necessary, with the utmost expedition in terms of para 4.1,
4.2 and 4.5 above and arrears are paid in terms of para 10
above within two months from the date of issue of this O.M.
13. In their application to the persons belonging to
Indian Audit and Accounts Department these orders issue in
consultation with the Comptroller and Auditor General of
India.
14. Ministry of Agriculture etc. are requested to bring
the contents of these orders to the notice of Controller of
Accounts/Pay and Accounts Officers and Attached and
subordinate Offices under them on a top priority basis. All
pension disbursing offices are also advised to prominently
display these orders on their notice boards for the benefit of
pensioners.
15. Hindi version will follow.
Sd/-
(Rajni Razdan)
Secretary to the Government of India
To
All Ministries/Department of Government of India
Copy to : as per mailing list.”
4. The highlight of this order is that a separate order will
be issued by the Ministry of Defence with regard to Armed Forces
pensioners and family pensioners. The guideline was given in
para 4.1 that the pension and family pension of existing pre-2006 O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
11
pensioners and family pensioners will be consolidated with effect
from 01.01.2006 by adding together existing pension, family
pension, dearness pension where applicable, dearness relief,
fitment weightage @ 40% of the existing pension and family
pension. Para 4.2 further says that the fixation of pension will be
subject to the provision that the revised pension, in no case, shall
be lower than 50% of the minimum of the pay in the pay band plus
the grade pay corresponding to the pre-revised pay scale from
which the pensioner had retired. In the case of HAG+ and above
scales, this will be fifty percent of the minimum of the revised pay
scale. Thereafter, on 03
rd
October, 2008 certain clarifications
have been issued. It says that in pursuance to the Government
decision on recommendations of the Sixth Pay Commission,
sanction of the President was accorded to the regulation with
effect from 01.01.2006, of pension and family pension of all the
pre-2006 pensioners and family pensioners in the manner
indicated in the order dated 01.09.2008. A number of references
has been received seeking clarifications, therefore, a consolidated
clarification was given to all the queries which have arisen. Order
of 03
rd
October, 2008 reads as under :-O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
12
“F. No. 38/37/08-P&PW (A). Pt. 1
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Pension & Pensioners‟ Welfare
Lok Nayak Bhawan, New Delhi
Dated the 3
rd
October, 2008
OFFICE MEMORANDUM
Sub: Implementation of Government‟s decision on
the recommendations of the Sixth Central Pay
Commission – Revision of pension of pre-2006
pensioners/family pensioners etc.
The undersigned is directed to say that in pursuance of
Government‟s decision on the recommendations of Sixth Central
Pay Commission, sanction of the President is hereby accorded to
the regulation, with effect from 1.1.2006, of pension/family
pension of all the pre-2006 pensioners/family pensioners in the
manner indicated in this Department‟s O.M. No. 38/37/08-P&PW
(A) dated 1.9.2008. A number of references are being received in
this Department seeking clarification in regard to various
provisions of the aforesaid O.M. the matter has been considered
in consultation with the Ministry of Finance, Department of
Expenditure and the following clarifications/modifications are
made in regard to the aforesaid O.M. dated 1.9.2008:
Provision in the OM No. 38/37/08-
P&PW (A) dated 1.9.2008
Clarification/modification
3.1 In these orders:
a. Existing pensioner or Existing
Family pensioner means a
pensioners who was
drawing/entitled to
pension/family pension on
31.12.2005.
b. Existing pension means the
basic pension inclusive of
commuted portion, if any, due on
The „existing pensioner or
existing family pensioner‟ would
include a pensioner/family
pensioner who became entitled
to pension/family pension w.e.f.
1.1.2006 consequent on
retirement/death of
Government servant on
31.12.2005.
Similarly, „existing pension or O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
13
31.12.2005. It covers all classes
of pension under the CCS
(Pension) Rules, 1972 as also
Disability Pension under the
CCS (Extraordinary Pension)
Rules and the corresponding
rules applicable to Railway
employees and Members of All
India Services.
c. Existing family pension means
the basic family pension drawn
on 31.12.2005 under the CCS
(Pension) Rules and the
corresponding rules applicable
to Railway employees and
Members of All India Services.
existing family pension‟ would
include a pension/family
pension which became due
w.e.f. 1.1.2006 consequent on
retirement/death of
Government servant on
31.12.2005.
4.2 The fixation of pension will be
subject to the provision that the
revised pension, in no case, shall be
lower than fifty percent of the sum of
the minimum of the pay in the pay
band and the grade pay thereon
corresponding to the pre-revised pay
scale from which the pensioner had
retired.
The pension calculated at 50%
of the minimum of pay in teh
pay band plus grade pay would
be calculated (i) at the
minimum of the pay in the pay
band (irrespective of the prerevised scale of pay) plus the
grade pay corresponding to the
pre-revised pay scale. For
example, if a pensioner had
retired in the pre-revised scale
of pay of Rs.18400-22400, the
corresponding pay band being
Rs.37,400-67000 and the
corresponding grade pay being
Rs.10,000 p.m., his minimum
guaranteed pension would be
50% of Rs.37,400+ Rs.10,000
(i.e. Rs.23,700). A statement
indicating the minimum pension
corresponding to each of the
pre-2006 scales of pay is
enclosed at Annexure.
The pension will be reduced
pro-rata, where the pensioner O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
14
had less than the maximum
required service for full pension
as per rule 49 of the CCS
(Pension) Rules, 1972 as
applicable on 01.01.2006 and
in no case it will be less than
Rs.3500/- p.m.
In case the pension
consolidated as per para 4.1 of
O.M. No. 38/37/08-P&PW (A)
dated 1.9.2008 is higher than
the pension calculated in the
manner indicated above, the
same (higher consolidated
pension) will be treated as
Basic Pension.
The fixation of family pension
will be subject to the provision
that the revised family pension,
in no case, shall be lower than
thirty per cent of the sum of the
minimum of the pay in the pay
band and the grade pay
thereon corresponding to the
pre-revised pay scale in which
the pensioner/deceased
Government servant had last
worked. In case the family
pension consolidated as per
para 4.1 of OM No. 38/37/08-
P&PW (A) dated 1.9.2008 is
higher than the family pension
calculated in the manner
indicated above, the same
(higher consolidated family
pension) will be treated as
Basic family Pension.
4.5 The quantum
of family pension
of family pension
available to the
(i) The additional quantum of
pension/family pension, on O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
15
old pensioners/
shall be increased
Age of
pensioner/Family
pensioner
From 80 years to
less than 85 years
From 85 years to
less than 90 years
From 90 years to
less than 95 years
From 95 years to
less than 100
years
100 years or more
family pensioners
as follows
Additional
quantum of
pension
20% of revised
basic pension/
family pension
30% of revised
basic pension/
family pension
40% of revised
basic pension/
family pension
50% of revised
basic pension/
family pension
100% of the
revised basic
pension/family
pension
attaining the age of 80 years
and above, would be
admissible from the 1
st
day of
the month in which date of birth
falls. For example, if a
pensioner/family pensioner
completes age of 80 years on
any date in the month of
August, 2008, he will be entitled
to additional pension/family
pension w.e.f. 1.8.2008. those
pensioners/family pensioners
whose date of birth is 1
st
August, will also be entitled to
additional pension/family
pension w.e.f. 1.8.2008 on
attaining the age of 80 years
and above.
5. Thereafter on 11.011.2008, Ministry of Defence has
issued the order for implementation of the Government decision
on the recommendations of the Sixth Pay Commission - Revision
of pension of Pre 2006 Armed Forces Pensioners/Family
Pensioners. The relevant portion of the said order reads as
under:-.
“2. Applicability
2.1 These orders shall apply to all the Armed Forces
Pensioners/Family Pensioners who were drawing O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
16
pension/family Pension as on 1.1.2006 under the Pension
Regulations of the three Services/State Forces and
various Government orders issued from time to time.
2.2. The provisions of this letter do not apply to the
following categories :
(i)Gallantry awardees drawing monetary allowance
attached to the award, such as Param Vir Chakra, Ashok
Chakra, etc.
(ii) UK/HKSRA Pensioners.
(iii) Persons in receipt of Compassionate Allowance,
Guzara, Reservist allowance or any other allowance on
which dearness relief is not admissible.
(iv) Reservists in receipt of Exgratia payment at
Rs.600/- per month covered by Govt. of India, Ministry of
Defence letter No. B/39042/AG/PS-4 (a&c)/1331/C/D
(Pen/Sers) dated 29
th
Dec 2000.
(v) Families of the deceased reservists in receipt of
Ex-gratia family pension at Rs.605/- per month covered by
Govt. of India, Ministry of Defence letter No.
B/40029/AG/PS-4 (d)/1/B/D (Pension/Services) dated
7.1.1999.
(Separate orders will be issued in respect of (iv) and (v)
above)
3. Definitions
(a) „Existing Pensioner‟ or „Existing Family Pensioner‟
means a pensioner who was entitled to/drawing
pension/family pension on 31.12.2005. This will also
include a pensioner/family pensioner who became entitled
to pension/family pension with effect from 1.1.2006
consequent upon retirement/discharge/death of Armed
Force personnel on 31.12.2005. For the purpose of family
pension, it also covers members of family tothose who
retired/discharged prior to 1.1.2006 and in whose case O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
17
family pension had not commenced as the pensioner was
alive on 31.12.2005.
(b) „Existing Pension‟ means the basic pension
exclusive of Dearness Pension but inclusive of commuted
portion of pension, if any due on 31.12.2005 and covers
all kinds of pension viz.
Retiring/service/special/reservist/invalid/disability/liberalise
d disability and war injury pension. This will also include
pension/family pension, which became due with effect
from 1.1.2006 consequent on retirement/discharge/death
of a Armed force personnel on 31.12.2005.
In the case of PBOR under the three services, the
„Existing Pension‟ would mean the revised pension fixed
as on 1.1.2006 in terms of the provisions contained in this
Ministry‟s letter No. 14 (3)/2004-D (Pen/Sers)/Vol-III dated
1.2.2006 and No. 14 (3)/2004-D (Pen/Sers) Col-V dated
2.5.2006. This also includes additional pension
sanctioned to Havildar granted Honorary Rank of Naib
Subedar. It will, however, not include Adhoc Ex-gratia
payment, if any.
(c) „Existing Family Pension‟ means the basic
family pension drawn on 31.12.2005 exclusive of
Dearness pension under the Pension Regulations of the
three Services/State forces and other orders issued on
the subject from time to time. It also covers Liberalied
and Special Family Pension and Dependent Pension
sanctioned in battle and non-battle casualty cases.
(d) „Existing Dearness Relief‟ means the dearness
relief due to pensioners/family pensioners upto average
AICPI (IW) 536 (Base year 1982=100) as on 1.1.2006 at
the rate of 24% of Basic Pension/Basic Family pension
plus Dearness penson as admissible vide Government of
India, Ministry of Personnel Public Grievances and
Pension, Department of Pension and Pensioners‟ Welfare
Office Memorandum No. 42/2/2006-P&PW (G) dated
5.4.2006.O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
18
(e) „Dearness Pension‟ means Dearness Pension
as admissible vide Ministry of Finance, Deptt. Of
expenditure OM No. 105/1/2004/IC dated 01.03.2004.
(f)„Pension Disbursing Agency‟ (PDA) means Treasury,
Post Office, Pay and Accounts Office, Defence Pension
Disbursing Office (DPDO), Indian Embassy Nepal and
authorised Public/Private Sector Banks.
(g) „Pension Sanctioning Authority‟ (PSA) means
PCDA (Pension) Allahabad, PCDA (Navy) Mumbai and
CDA (AF) Delhi as the case may be.
4. Consolidation of Pension
4.1 The Pension/Family Pension of existing Pre-
1.1.2006 pensioners/family pensioners will be consolidate
with effect from 1.1.2006 by adding together:
(i) The Existing Pension (including commuted portion of
pension, if any)/Existing Family Pension
(ii) Dearness Pension, if any, as applicable from
1.4.2004 to those retired/died prior to 1.4.2004.
(iii) Dearness Relief upto AI CPI (IW) 536 i.e. 24% of
basic pension/family pension plus dearness pension.
(iv) Fitment weightage @ 40% of the Existing
Pension/Existing Family Pension. Where the amount of
fitment weightage works out in fraction of a rupee, it will
be rounded off to the next higher rupee.
NOTE : Where the Existing Pension/Existing Family
Pension includes the effect of merger of 50% of Dearness
Pay in respect of those retired/died on or after 1.4.2004,
the existing pension/family pension for the purpose of
fitment weightage will be re-calculated after excluding the
merged Dearness Pay of 50% from emoluments for
computation of existing pension/existing family pension.
This will be in line with the definition of “Existing Pension”
and “Existing Family Pension” given in Para 3 of these
orders. O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
19
4.2 The amount so arrived at in terms of Para 4.1
above will be regarded as consolidated pension/family
pension with effect from 1.1.2006. Since the
consolidated pension will be inclusive of commuted
portion of pension, if any, the amount of pension
commuted will be deducted from the said amount
while making monthly disbursements.
5. The consolidation of pension will further be subject to
the provision that the consolidated pension, in no case
shall be lower than fifty per cent of the minimum of the
pay in the pay band plus the grade pay corresponding to
the pre revised scale from which the pensioner had
retired/discharged including Military Service Pay and „X‟
Group pay where applicable. For example, if a pensioner
had retired in the pre-revised scale of pay 6600 – 170 –
9320, the corresponding pay band being 9300 – 34800
and the corresponding grade pay the Military Service Pay
being Rs.4,600/- and Rs. 2,000 respectively, his minimum
guaranteed pension would be 50% of Rs. 9300 + Rs.4600
+ 2000 i.e. Rs.7,950 for 33 years of qualifying service.
The pension so calculated will be reduced pro-rata, where
the pensioner had less than the maximum required
service of 33 years for full pension and in no case it will be
less than Rs.3,500/-. In case the pension consolidated as
per Para 4.1 above in higher than the pension calculated
in the manner indicated above, the same (higher
consolidated pension) will be treated as Basic Pension
with effect from 1.1.2006.
The consolidation of family pension will be subject to the
provision that the consolidated family pension, in no case,
shall be lower than thirty percent of the sum of the
minimum of the pay in the pay band and the grade pay
thereon corresponding to the pre-revised pay scale in
which the petitioner/deceased Armed Force personnel
had retired/died including Military Service Pay and „X‟
Group pay where applicable. In case the family pension
consolidated as per Para 4.1 above is higher than the
family pension calculated in the manner indicated above,
the same (higher consolidated family pension) will be
treated as Basic family pension with effect from 1.1.2006.”O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
20
6. Ministry of Defence also issued another order dated
30
th
August, 2008 reiterating same recommendations and
implementation in consequent thereof and there is Anneuxre-I
Part B, para 5.1.46 and 5.1.47 which are relevant for our purpose
reads as under :-
“Past pensioners - analysis of changes made in the past
and recommendations - 5.1.46 The main demands of
past pensioners related to grant of one rank one pension
both for civilian as well as Defence Forces retirees and
better medical facilities. In case of Defence Forces, the
issue of one rank one pension was conceded partially when
one time increase was granted to Defence Forces
pensioners in 1992 that reduced the gap between past and
present pensioners in Forces. The Fifth CPC extended full
parity between pre and post 1/1/1986 pensioners and a
modified parity between pre and post 1/1/1996 pensioners.
In modified parity, it was provided that pension could, in no
case, be less than 50% of the minimum of the
corresponding Firth CPC revised pay scale from which the
pensioner had retired.
Fitment benefit to the past pensioners - 5.1.47 The
Commission notes that modified parity has already been
conceded between pre and post 1/1/1996 pensioners.
Further, full neutralisation of price rise on or after 1/1/1996
has also been extended to all the pensioners. Accordingly,
no further changes in the extant rules are necessary.
However, in order to maintain the existing modified parity
between present and future retirees, it will be necessary to
allow the same fitment benefit as is being recommended for
the existing Government employees. The Commission,
accordingly, recommends that all past pensioners should be
allowed fitment benefit equal to 40% of the pension
excluding the effect of merger of 50% dearness
allowance/dearness relief as pension (in respect of
pensioners retiring on or after 1/4/2004) and dearness O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
21
pension (for other pensioners) respectively. The increase
will be allowed by subsuming the effect of conversion of
50% of dearness relief/dearness allowance as dearness
pension/dearness pay. Consequently, dearness relief at the
rate of 74% on pension (excluding the effect of merger) has
been taken for the purposes of computing revised pension
as on 1/1/2006. This is consistent with the fitment benefit
being allowed in case of the existing employees. A table
(Annexure 5.1.1.) showing fixation of the pension of the
existing pensioners in the revised dispensation consequent
to implementation of the recommendations of this
Commission has been prepared and should be used for
fixing the revised pension of the existing pensioners. The
fixation as per this table will be subject to the provision that
the revised pension, in no case, shall be lower than fifty
percent of the sum of the minimum of the pay in the pay
band and the grade pay thereon corresponding to the prerevised pay scale from which the pensioner had retired. To
this extent, a change would need to be allowed from the
fitment shown in the fitment table.”
Para 5.1.46 says that the main demands of past pensioners
related to grant of one rank one pension both for civilian as well as
Defence Forces retirees and better medical facilities. In case of
Defence Forces, the issue of one rank one pension was conceded
partially when one time increase was granted to Defence Forces
pensioners in 1992 that reduced the gap between past and
present pensioners in Forces. The Firth Central Pay Commission
extended full parity between pre and post 01.01.1986 pensioners
and a modified parity between pre and post 01.01.1996
pensioners. In modified parity, it was provided that pension could, O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
22
in no case, be less than 50% of the minimum of the corresponding
Fifth CPC revised pay scale from which the pensioner had retired.
Para 5.1.47 says that the Commission notes that modified parity
has already been conceded between pre and post 01.01.1996
pensioners. Further, full neutralisation of price rise on or after
01.01.1996 has also been extended to all the pensioners.
Accordingly, no further changes in the extant rules are necessary.
That shows that the norms which was accepted in the Fifth Pay
Commission has also been adopted under the Sixth Pay
Commission, therefore, there is no distinction between pre and
post 01.01.1996 retirees. It further says that in order to maintain
the existing modified parity between present and future retirees, it
will be necessary to allow the same fitment benefit as is being
recommended for the existing Government employees. The
Commission, accordingly, recommended that all past pensioners
should be allowed fitment benefit equal to 40% of the pension
excluding the effect of merger of 50% dearness allowance and
dearness etc. It further clarifies which is relevant and crucial in
the matter that the fixation as per this table will be subject to the
provision that the revised pension, in no case, shall be lower than
50% of the sum of the minimum of the pay in the pay band and O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
23
the grade pay thereon corresponding to the pre-revised pay scale
from which the pensioner had retired. To this extent, a change
would be need to be allowed from the fitment shown in the fitment
table. The expression “the minimum” of pay in the pay band is
crucial in this case.
7. Learned counsel for the applicant has emphasised
that the minimum of the pay in the pay band for the equivalent
rank should be taken into consideration for determination of the
pension of the retirees. This is not contested by learned counsel
for the respondents. In this connection, our attention was also
invited to the Special Navy Instructions which was issued on 18
th
October, 2008 and the extract of these Navy Instructions reads as
under :-
“SPECIAL NAVY INSTRUCTIONS
No. 2/S/08 New Delhi 18
th
day of October, 2008
2/S/08 REVISION OF PAY SCALES, FIXATON OF
INITIAL PAY IN THE REVISED PAY BANDS, GRADE
PAY AND MILITARY SERVICE PAY, REGULATIONS OF
PAY ON PROMOTION – FOR OFFICERS OF ALL
BRANCHES AND MIDSHIPMEN/CADETS OF THE NAVY
(EXCLUDING MEDICAL AND DENTIAL BRANCHES)
CONSEQUENT UPON THE IMPLEMENTATON OF THE
DECISON OF THE GOVERNMENT WITH RESPECT OT O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
24
THE RECOMMEDNATISON OF THE SIXT CENTRAL
PAY COMMISSION.
SECTION I – GENERAL
1. In pursuance of the recommendations of the Sixth
Central Pay Commission and the Government decision
thereon, the existing scales of pay admissible to naval
Officers will be revised with effect from 01 January, 2006
and pay fixed in the revised pay bands, grade pay and
Military Service Pay in accordance with the provisions of
this Instruction. The provisions of this Navy Instruction will
apply to all officers including Special Duties List and
Midshipmen/Cadets who were on the effective strength of
the Navy as on 01 Jan 2006 and those who join the Navy
thereafter and to under trainee offices who were
undergoing pre-commission training on 01 January 2006
and t trainee officers who join after that date.”
In these Navy Instructions, Rule 3 is definition clause and in
Definition Clause pay in the pay band has been described as
under :-
“3.(e) “Pay in the pay band” means the pay drawn in the
running pay bands specified in Column 6 of Table given at
para 4 (a) below.
(f) “Grade Pay” is the fixed amount corresponding to a prerevised pay scale/rank as specified in col 7 of table at para 4
(a) below.
This definition Clause says that the pay in the pay band means
pay drawn in running pay and grade pay is the fixed amount
corresponding to a pre-revised pay scale/rank as specified in
column 7 of table at para 4 (a) below. This table reads as under :-O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
25
Revised Pay Structure
Corresponding
S.
N.
Rank Existing Pay
Band/
Scale
Pay Bands/Scales GP MSP
(1) (2) (3) (4) (5) (6) (7) (8)
1. Sub Lt. 8250-300-
10050
0 PB-3 15600-39100 5400 6000
2. Lieutenant 9600-300-
11400
400 PB-3 15600-39100 6100 6000
3. Lieutenant
Commander
11600-
325-
14850
1200 PB-3 15600-39100 6600 6000
4. Commander 13500-
400-
17100
1600 PB-3 15600-39100 7600 6000
5. Captain (with
less than
three years
service in the
rank)
15100-
450-
17350
2000 PB-4 37400-67000 8700 6000
6. Captain (with
3 yrs or more
service in the
rank)/Comm.
16700-
450-
18050
2400 PB-4 37400-67000 8900 6000
7. Rear Admiral 18400-
500-
22400
- PB-4 37400-67000 10000 NIL
8. Vice Admiral 22400-
525-
24500
- PB-4 37400-67000 12000 NIL
9. VCNS/FOCin-Cs of
Naval
Commands
26000 - Apex
Scale
80,000 (fixed) NIL NIL
10. Chief of the
Naval Staff
30,000 - Chief
of
Naval
Staff
90000 (fixed) NIL NIL
8. In this revised pay structure according to the applicant
the basic pay of in pre revised scale for the rank of Lt.
Commander and equivalent rank was Rs.11,600/- and rank pay
was 1200 x 1.86 and Rs. 23,810/- has been worked out as
minimum pay in the pay band for the rank of Lt. Commander in
the Sixth Pay Commission. Therefore, contention of learned O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
26
counsel for the applicant is that this is the pay in the pay band of
this revised pay scale for Lt. Commander and learned counsel for
the applicant submitted that the expression used in the
implementation order and in the recommendations of the Sixth
Pay Commission is that incumbent shall get 50% of the minimum
of the pay in the pay band. Therefore, learned counsel for the
applicant submits that Rs.23810/- is the minimum pay in the pay
band for Lt. Commander and it should be taken up for
consideration of the pension of the pre retirees. Learned counsel
for the applicant submits that since distinction of pre and post has
been done away in the Fifth Pay Commission which has also
been accepted under the Sixth Pay Commission that means a
person who retires on 01.01.2006 as a Lt. Commander and the
persons who have already retired prior to 01.01.2006, there will be
no distinction for them for pension. In the present case, as per the
definition of the pay in the pay band by the Naval Special Order
which has to be read as wherever the expression appears would
mean that Rs.23810/- will be minimum pay in the pay band for the
Lt. Commanders and equivalent rank.O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
27
9. As against this, learned counsel for the respondents
has strenuously urged before us that the expression „minimum
pay in the pay band‟ should only mean that the minimum of the
scale in the pay band should be taken as determinative factor for
the determination of the pension and not the minimum of the pay
in the pay band. We would have readily accepted the contention
of learned counsel for the respondents but for the fact that the
Naval Special Order which defines the expression pay band and
had already given a table below that what shall be the minimum
pay for the Lt. Commander in the Sixth Pay Commission of the
existing Lt. Commanders. Therefore, we cannot add or subtract
anything beyond what have already been defined by the
respondents. Had this distinction not been there perhaps the
example which the respondents have shown from the various
documents and the Circulars issued by the Comptroller General of
Defence Accounts could have been readily accepted. But the fact
that the Government by the Special Order dated 18
th
October,
2008 themselves have defined the pay in the pay band, therefore,
we have to accept the definition given by them and then reading
this expression „the minimum of the pay in the pay band‟ along
with the recommendations of the Pay Commission and the O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
28
implementation order should be taken for determination of the
pension has to be accepted. Had this expression not been
defined anywhere perhaps argument of learned counsel for the
respondents would have been accepted. In this connection, we
may further point out that the earlier communication dated 17th
December, 1998 in the Fifth Pay Commission, the Government
has clearly mentioned that pension of all pensioners irrespective
of the date of their retirement shall not be less than 50%, the
minimum pay was revised from 01.01.2006 for the last post held
by the pensioners. Had this expression been repeated, perhaps it
would carry the same interpretation. In the present case, pay
structure has been revised and now all the pay scales have been
categorised in the various pay bands and in the case of Lt.
Commander or equivalent fall in the Pay Band-III and minimum of
Pay Band-III is 15,600/- at the entry level i.e. minimum of the pay
band for this rank. Had this expression used in this pay scale of
Sixth Pay Commission, we would not have come to interpretation
as was clarified by the Fifth Pay Commission by the Government
Order dated 17
th
December, 1998. But in the present case, the
expression pay in the pay band has been defined by the
Government in the communication dated 18
th
October, 2008 that O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
29
puts the matter beyond any controversy. The expression which
has been defined in the scheme of things has to be accepted
while interpreting all the provisions of the Pay Commission and
the Implementation Order. Here the expression „minimum of the
pay in the pay band‟ is to be taken for the purposes of deciding
the pension of pre 2006 pensioners. Therefore, one has to
interpret the provisions as exists and we have to take it minimum
pay in the pay band for equivalent rank then that comes to
Rs.23,810/- determined by the Government in Column 7 of table
at para 4 (a) as such we have to accept the figure of 23810/-
being the minimum of the pay in the pay band for Lt. Commanders
and equivalent ranks. If that is taken then naturally 50% of this
will have to be treated as a basic pension and rest of it will be
added to it as grade pay and other benefits which are given to the
persons of that rank. There is no controversy with regard to grade
pay and Military Service pay and other benefits to which we are
not concerned. We are concerned with what is minimum has to
be taken for pre 2006 retirees and minimum pay scale for the
purposes of determining the pension. In our opinion as per the
Government order for all pre retirees of Lt. Commander and other
ranks their minimum of the pay has to be accepted as determined O.A. No. 270/2010
Sq. Ldr. Vinod Kumar Jain & Others vs. Union of India & Ors.
30
by the Government for the purpose of fixation of the officers in
2006 i.e. Rs.23810/-. Accordingly, we direct let the pension of pre
retirees should be decided on the basis of minimum of the pay in
the pay band i.e. Rs.23,810/- with all other benefits and shall be
given to them. All exercise may be completed as far as possible
within three months. Both the petitions are allowed in view of
aforesaid terms. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
September 14, 2010.


Previous

Next

You need to be the querist or approved Lawyersclubindia expert to take part in this query .


Click here to login ( Members Login ) now







Similar Queries :










Quick Links



Browse By Category



Subscribe to Experts Feed
Enter your email to receive Experts Updates: