What is the next remedy
mahendrakumar
(Querist) 30 July 2016
This query is : Resolved
based on a sc judgment on rounding of service so as to make a person eligible for service pension,a similarly placed person,requested the same central govt,ie,indian Navy for granting him too the pension.however,Navy has rejected his claim stating that,the sc judgment is applicable only to that person,who secured the judgment. Now what are the options.
1) can he approach the HC of his jurisdiction quoting the sc judgment,for pension
2) should he also approach the sc,stating that,he is also similarly placed,same dept and same period of service?
the person is at present ,71 years old and met me as a social worker for guidance.
expecting some guidance from experts on the above,including any other easy/speedy solution
Kumar Doab
(Expert) 30 July 2016
Request the authority in writing under proper acknowledgment.
If declined in writing, and without appreciation of facts, approach a very able counsel and court for relief.
mahendrakumar
(Querist) 30 July 2016
the authority was approached through a registered letter and the reply was that the quoted judgment is applicable to that one person alone,as mentioned inmy post.
as such i requested guidance from expert,whether should approach sc or HC ?
Guest
(Expert) 30 July 2016
The authorities have rightly advised. Judgment applied only in personal case of the concerned individual litigant, not to anyone else.
By the way, what will be the total benefit v/s the expected expenditure for litigation, if desired to be launched against the employer?
Kumar Doab
(Expert) 30 July 2016
The cause posted in your query is good.
You want to help a senior citizen and a past employee.
I am sending some inputs to you.
In your first post it is not mentioned that the employer has stated in writing.
Hence this point was raised.
It is guessed from your second post that employer has probably declined without appreciation of facts and without stating that employee is not identically placed and does not have has similar situation.
Although as per your post the applicant is identically placed and has similar situation.
Hope applicant has narrated and zeroed down his appeal to that he is identically placed and has similar situation.
Employers are known to decline without appreciation of facts, application of mind, without admitting that applicant is identically placed and has similar situation.
Although employer has legal cells/lawyers/Law Firms/Legally Trained mind by its side.
It is expected from (same central govt,ie,indian Navy ) Govt that it shall be Model Employer and won't invite burden of litigation on it and cause it on applicant.
Employer can assess and determine on its own that applicant is identically placed and has similar situation.
The point is : Under what circumstances a benefit can be extended and what are the reasons for denying the same.
Apparently the employer has not quoted reasons for denying the same and has not appreciated circumstances under which the benefit appealed, can be extended.
In such case the applicant can certainly approach court of law...............Courts including apex court have passed Orders::::: granting the same benefit are in tune with the constitutional mandate enshrined in Article 14 of the Constitution of India.
Employee can escalate in hierarchy to employer and appeal that he is identically placed and has similar situation.
The applicant is a senior citizen and can pray for speedy disposal.
All said and done you may suggest that employee in question may show all docs on record to a very able counsel specializing in service matters for a considered opinion. The counsel that has examined all docs and inputs can advise the best.
The counsel can guide further on all points that you or employee may have.
adv.bharat @ PUNE
(Expert) 30 July 2016
You will be benefited by expert advice do follow it.
mahendrakumar
(Querist) 30 July 2016
thanks
can he approach the HC quoting the sc judgment or
he should approach SC only? the person is aged as well as with lot of health problems too.
as such ,he is not in a position to file a case at the sc level.
Kumar Doab
(Expert) 30 July 2016
I have already sent the comprehensive input to you, by PM, and made some suggestions in the thread as well.
As per you the employee has limitations.
Employee in question may show all docs on record to a very able counsel specializing in service matters for a considered opinion. The counsel that has examined all docs and inputs can advise the best.
The counsel can guide further on all points that you or employee may have.
You may wait for the advise from other experts.
Dr J C Vashista
(Expert) 31 July 2016
@ Mahender Kumar,
You are stating yourself to be a "social worker" whereas the petitioner/pensioner is a naval personnel as well as a Senior Citizen, is it correct?
The pensioner, being an ex-naval personnel, 71 years old, known laws/rules applicable in his case, much better than a youngster self-proclaimed social worker, I presume.
If so, the pensioner is better aware of the fact that Parliament of India has already enacted and established Armed Forces Tribunals (since 2007) to settle the disputes exclusively for service matters concerning armed forces personnel.
The judgment passed by Hon'ble Supreme Court is based on the facts and circumstances in a particular case and no other case can be same. However, ratio of judgment can be emphasized by the lawyers in similar case(s), which is binding on lower judiciary.
The pensioner may be informed to consult a local lawyer practicing in AFT.
mahendrakumar
(Querist) 31 July 2016
thanks sir for the input.
i had advised him to approach aft.
but,since there is sc judgment exactly on a similar case,he had sought my opinion regarding approaching hc,because,generally,aft judgements are not being honored by Mod .(I being an ex serviceman,i had some association on similar field).
I am not that young as you presume sir .I am 60.
i only wanted to know regarding the feasibility of approaching HC in this case. if someone could advise on this,it would be nice
Kumar Doab
(Expert) 31 July 2016
"generally,aft judgements are not being honored by Mod ."
Why the MOD is defiant?
The Ex.servicemen had united in many occasions and got relief.
" there is sc judgment exactly on a similar case"
In other words; Applicant is identically placed and has similar situation.
Once again the question arises why MOD is defiant?
You may wait for the advise from other experts.
Employee in question may show all docs on record to a very able counsel specializing in service matters for a considered opinion. The counsel that has examined all docs and inputs can advise the best.
The counsel can guide further on all points that you or employee may have.
Dr J C Vashista
(Expert) 01 August 2016
Has the applicant/appellant (in AFT) moved in contempt petition before the concerned AFT for defiance of orders passed by them?
It is a strange statement made by you, "...generally AFT judgments are not been honoured by Ministry of Defence"?? After inception of AFTs in 2007, High Courts have "NO" jurisdiction over the subject matters concerning armed forces personnel service matters. Please update yourself under the guidance of an able and prudent local lawyer.
Does being an ESM @ 60 certify that your version is acceptable to experts? Sorry, you are sadly mistaken.
Guest
(Expert) 01 August 2016
What is the basis of your assumption that the AFT judgements are not being honored by Mod? If that is your belief, what is the untility of the AFT and what for that has been established?
Kumar Doab
(Expert) 01 August 2016
The cause posted in your query is good.
You want to help a senior citizen and a past employee.
That is why I have sent some inputs to you, by PM.These are more than sufficient to decide, next course.
Still there were queries.
I have not answered some of the queries sent by repeated PM's and have pointed out that '
Employee in question may show all docs on record to a very able counsel specializing in service matters for a considered opinion. The counsel that has examined all docs and inputs can advise the best.
The counsel can guide further on all points that you or employee may have.'
Subsequent to latest posts from Expert Dr. Vashista, Mr. Dhingra you may take the employee to a very able counsel specializing in service matters.
mahendrakumar
(Querist) 02 August 2016
my intention of this post of mine and further queries,were in no way,intended to have a debate with the learned experts here.
However,our experience so far with AFTs(i do associate with ex servicemen issues at all india level)were not good. It seems that they had no power to implement their orders like other civil courts. Further,most of the aft judgments are being challenged at SC level by mod.
if some one could addresss the main technical issue,we would be thankful. Based on the feasibility of either approaching SC or HC,we could approach,concerned lawyers practising at the appropriate forum,with all documents
Dr J C Vashista
(Expert) 03 August 2016
Which AFT lawyers have you confronted/came across who were unable to get the orders passed and non-executed, I am practicing in AFT/CAT/RCT Principal Bench, High Court of Delhi and Supreme Court New Delhi, can you send your brief for re-appreciation?
Dr. (Maj) J C Vashista, Advocate,
Ch. NO 647, 6th Floor,
Lawyer's Chamber Block,
Dwarka Courts Complex, Sector 10, Dwarka,
New Delhi-110075
Cell# +91 9891152939
email: majjagdish@yahoo.com
Sudhir Kumar, Advocate
(Expert) 03 August 2016
what soever arguments may be given the views expressed by Dr Vasishta cannot in any way be ignored.
You seem to be having tendancy to put a problem on every solution suggested.
what so ever be your personal the views and experience, the remedy lies in AFT and AFT alone. That too if the matter is within limitation.
The Sr citizen can be advised to go to high court if he has a lot of extra money to squander.
Sudhir Kumar, Advocate
(Expert) 03 August 2016
You have to be thankful to the experts for devoting so much time to this query despite the fact that you do not even know the facts of the case or atleast do not want to share them with the forum.
Sudhir Kumar, Advocate
(Expert) 03 August 2016
" It seems that they had no power to implement their orders like other civil courts. Further,most of the aft judgments are being challenged at SC level by mod."
That does not give you justification to move to any other court lacking jurisdiction.
Sudhir Kumar, Advocate
(Expert) 03 August 2016
you asked
"HC quoting the sc judgment or he should approach SC only?"
High court has no jurisdiction.
Supreme court once having laid down a principle is having no time to adjudicate on each and every similar case.
AFT you do not trust.
So better the Sr Citizen not waste money.
You cannot prevail upon the experts of this forum to agree to approach a wrong forum.
Kumar Doab
(Expert) 03 August 2016
Dr. Vashista has offered to help you/employee.
You can benefit from his counsel.
Kumar Doab
(Expert) 03 August 2016
Armed Forces is a huge establishment.
There can be instances of heartburn.
The personnel associated with associations/Ex-servicemen might have come across some/many instances.
The active personnel associated with associations/Ex-servicemen, may attempt to know the very able counsels that can assess and counsel the needs.
