(Order of the Tribunal made by Justice ACA Adityan)
1. The petitioners in these petitions have challenged the common impugned order of the 3rd respondent, who had issued the corrigendum PPO No.08/14/A/Rev/0500 of 2000 (in T.A.No.128 of 2010) and corrigendum PPO No.08/14/A/Rev/0499 of 2000 (in T.A.No.129 of 2010) cancelling PPO.No.08/14/A/Rev/1853 of 1999 and PPO.No.08.14/A/Rev/2251 of 1999 respectively have approached the Honourable High Court of Andhra Pradesh for restoration of their pension as per PPO.No.08/14/A/Rev/1853 of 1999 and PPO.No.08.14/A/Rev/2251 of 1999 respectively.
2. The affidavit to the petition in T.A.No.128 of 2010 runs as follows. The petitioner in T.A.No.128 of 2010 joined Indian Air Force on 25.12.1964 as a Commissioned Officer and took premature retirement with effect from 02.10.1989 at the time when he was holding the rank of Wing Commander. The premature retirement of the petitioner was approved by the Government in the public interest and thereafter, he was absorbed permanently in Indian Airlines. The petitioners premature retirement from the Air Force was approved vide Air Head Quarters Letter No.Air HQ/21901/11815/PO3/(P) dated 05.09.1989. The petitioner was granted pension at the rate of Rs.1,813/- per month by the 3rd respondent vide proceedings dated 22.10.1990. The petitioner was allowed to commute the entire pension and thereafter, he joined in Indian Airlines. As per the V Central Pay Commissions recommendations, the Central Government had approved the revision of salary and pension for all the employees of the Government with effect from 01.01.1996.
3. The petitioner in T.A.No.129 of 2010 had joined Indian Airforce on 29.12.1968 as a Commissioned Officer and took premature retirement with effect from 02.10.1989 at the time when he was holding the rank of Wing Commander. The Government has also approved his premature retirement from Air Force in public interest as he was absorbed permanently in Indian Airlines, vide Air Headquarters letter No.Air HQ/21901/11815/PO3/(P) dated 05.09.1989. The petitioner in T.A.No.129 of 2010 was also granted a pension of Rs.1,591/- by the 3rd respondent vide proceedings dated 14.02.1990 and thereafter, he was permanently absorbed in Indian Airlines.
4. So far as the Central Government Defence Personnel are concerned, the Central Government issued order vide proceedings No.1(3)/98 D (Pens/Sers), dated 27.05.1998, bringing into force the Government decisions on the recommendations of the V Pay Commission with regard to revision of pension of defence personnel who retired prior to 1986 and those who retired prior to 1996. After issuance of several proceedings the Central Government issued proceedings No.1(1)/99D (Pens/Sers), dated 07.06.1999, wherein it was decided that all Armed Forces pensioners irrespective of their date of retirement shall be granted revised pension with effect from 01.01.1996, which shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 01.01.1996.
5. The petitioner in T.A.No.128 of 2010 was granted pension vide 3rd respondents proceedings dated 22.10.1990 and the petitioner in T.A.No.129 of 2010 was granted pension vide 3rd respondents proceedings dated 14.02.1990. For the grant of minimum pension to all defence pensioners the Government issued a corrigendum PPO No.08/14/A/Rev/1853 of 1999 through the 3rd respondent to the petitioner in T.A.No.128 of 2010 and similarly Corrigendum PPO No.08/14/A/Rev/2251 of 1999 was issued for the petitioner in T.A.No.129 of 210. Based on the decisions of the Central Government granting revised pension to all Armed Forces pensioners which shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 01.01.1996 of the rank held by the pensioner, the revised pension order was issued by the third respondent. The revised pension order issued by the 3rd respondent is very much consistent with the prevailing orders of the Central Government with regard to revision of pensions of all the Armed Forces pensioners with effect from 01.01.1996. As per the revised PPO, the petitioners were being paid revised pensions with effect from 01.01.1996 after deducting the pension granted to them at the time of their retirement due to the fact that they commuted the said pension as they got permanently absorbed in Indian Airlines in public interest.
6. The arrears of pension of the petitioner in T.A.No.128 of 2010 was deposited in his SB A/c.No.6176 maintained with the 6th respondent â Bank. The arrears of pension of the petitioner in T.A.No.129 of 2010 was deposited in his SB A/c.No.6129 maintained with the 6th respondent-Bank. Another corrigendum PPO No.01/14/A/Rev/0500 of 2000 was issued by the 3rd respondent for the petitioner in T.A.No.128 of 2010 and similarly, another corrigendum PPO No.08/14/A/Rev/0499 of 2000 was issued by the 3rd respondent in respect of the petitioner in T.A.No.129 of 2010 stating that the PPO No.08/14/A/Rev/1853 of 1999 in respect of the petitioner in T.A.No.128 of 2010 and PPO No.08/14/A/Rev/2251 of 1999 in respect of the petitioner in T.A.No.129 of 2010 were to be treated as cancelled. The said corrigendum PPOs were followed by an intimation letter dated 2.3.2000 (in both the cases) from the 3rd respondent to the 6th respondent informing that the pension order of 1999 (in both the cases) were erroneously issued and hence, they are liable to be cancelled and the entire pension amounts disbursed with effect from 01.01.1996 are to be recovered from both the petitioners in lump sum.
7. Even though the petitioners were paid 100% of commuted value of their pension, which were authorised at the time of retirement, the petitioners were entitled to the revision of their respective pensions by virtue of modification of orders concerning revised pay and pensions with effect from 01.01.1996 vide Government of India proceedings dated 07.06.1999. As per those orders, every Armed Forces pensioner irrespective of his date of retirement is entitled to the revised pension with effect from 01.01.1996, which shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 01.01.1996 on the basis of the rank they held at the time of retirement
8. It is pertinent to note that the 6th respondent in his letter dated 02.03.2000 in the case of the petitioner in T.A.No.128 of 2010 and letter dated 03.02.2000 in the case of the petitioner in T.A.No.139 of 2010 admitted that the wife of the petitioner is entitled for family pension, which comes to Rs.4,500/- in the case of the petitioner in T.A.No.128 of 2010 and Rs.4,530/- in the case of the petitioner in T.A.No.129 of 2010. After the issuance of the corrigendum PPO, the respondents 5 and 6 have stopped paying the pension to the petitioners and the amounts in SB A/c No.6176 and SB A/c No.6129 were also freezed by the Bank authorities. The Bank authorities after intimating the petitioners have stopped crediting the pension in their respective SB Accounts referred to above. Hence, the petitioner in T.A.No.128 of 2010 challenging the Corrigendum PPO No.08/14/A/Rev/0500 of 2000 and the petitioner in T.A.No.129 of 2010 challenging the corrigendum PPO No.08/14/A/Rev/0499 of 2000 respectively have filed these petitions before the Honourable High Court of Andhra Pradesh, which have subsequently been transferred to this Regional Bench of the Armed Forces Tribunal under Section 34(2) of the Armed Forces Tribunal Act, 2007.
9. The respondents 1 to 3 in their common counter would contend that the petitioner in T.A.No.128 of 2010 was granted Rs.1,813/- towards his monthly pension and that the petitioner had commuted his 100% pension and received the commuted amount of Rs.3,18,508/- and after retiring voluntarily he had joined Indian Airlines with effect from the date of the retirement from the Indian Air Force. The petitioner in T.A.No.129 of 2010 was granted pro rata pension of Rs.1,591/- from his date of premature retirement on 02.10.1989 vide PPO No.08/14/A/0116 of 1990 and he had commuted 100% of the pension amounting to Rs.2,79,507/- as per the said PPO. His family pension was also notified in the same PPO.
9(a) As per the Ministry of defence letter No.1(3)/98/D/(Pen/Sers) dated 27.05.1998, the Armed Forces personnel who have drawn one time terminal benefits in lumpsum equivalent to 100% of their pension are entitled for restoration of 43% of commuted portion of pension. As per para 4 of the Government of India, Department of P and PW letter No.4/3/86-P and PW (O), dated 30.09.1996, the petitioners were not entitled for any revision of pension, but only their family pension would be revised under the V Pay Commission recommendations vide Ministry of Defence letter No.1(1)/99/D (Pen/Services), dated 07.06.1999.
9(b) The petitioner in T.A.No.128 of 2010 in his application dated 22.2.1999 had applied for revision of ordinary family pension post 1986 only and not his service pension. This would clearly indicate that the petitioner knew that he was not entitled for revision of his service pension in as much as he was not drawing any monthly service pension since October 1989 onwards. The petitioner in T.A.No.128 of 2010 was erroneously granted service pension by mistake due to heavy work load. The third respondent worked out the revised pension of the petitioner based on Vth Pay Commission recommendations and mentioned Rs.7,322/- as the monthly pension based upon the Vth Pay Commission recommendations. The PPO gave effect to the revised pension of the petitioner erroneously from 01.01.1996 to December 1999 for a sum of Rs.3,51,456/- which was deposited in the Syndicate Bank, Hyderabad. The petitioner withdrew the amount of Rs.3,22,428/- from the Syndicate Bank, Hyderabad pursuant to the interim orders of the High Court dated 23.03.2000. The petitioner knowing fully well that he was not entitled to any revised service pension withdrew the said amount from the Bank and derived unlawful benefit of the Government money. It is true that Corrigendum PPO No.08/14/A/Rev/1853 of 1999 notifying his pension as well as family pension was issued by the 3rd respondent erroneously and forwarded to the Syndicate Bank, Hyderabad in November 1999. Later on his case file was reviewed and it was noted that the petitioner was entitled for revision of family pension only and not for service pension and accordingly PPO NO.08/14/A/Rev/0500 of 2000 was issued by the 3rd respondent. The Syndicate Bank, Hyderabad, and Respondents 4 and 5 were requested to return the Corrigendum PPO No.08/14/A/Rev/1853 of 1999 in original. Further, the matter was pursued with the respondents 4 and 5 as well as with the petitioner to refund the whole over paid amount vide the letter No.DCA/PEN/O/9124, dated 02.03.2000. The Manager, Syndicate Bank, Hyderabad, and Air Force Station Begumpet Branch of Syndicate Bank, Hyderabad, by his letter dated 15.03.2000, had sought certain clarification which was sent to him vide Office letter No.DCA/PEN/AF/O/11839, dated 16.03.2000 by the third respondent. The 3rd respondent vide letter dated 30.03.2000 requested the Syndicate Bank, Hyderabad, to take up the matter with the petitioner for the refund of amount over paid to him by mistake. The petitioner knowing fully well that he was not entitled to any revision of the service pension, instead of refunding the over paid amount had approached the High Court of Andhra Pradesh and obtained interim orders in the writ petition to operate his bank account. The Corrigendum PPO No.08/14/A/Rev/1853 of 1999 which was erroneously issued was cancelled by the pension sanctioning authority by correcting its mistake.
9(c) In respect of the petitioner in T.A.No.129 of 2010, the Corrigendum PPO No.08/14/A/Rev/2251 of 1999 notifying his pension as well as his family pension was issued by the respondents office and forwarded to the Bank in November 1999. When the file was reviewed and it was noted that the petitioner was entitled for revision of only his family pension and not for service pension. As such a Corrigendum PPO No.08/14/A/Rev/0499 of 2000 was issued by the respondents Office and the Bank was requested to return the Corrigendum PPO No.08/14/A/Rev/2251 of 1999 in original without taking any action. The matter was also taken up with the Bank link branch as well as paying branch and with the petitioner to refund the amount which was over paid vide office letter No.DCA/Pen/O/11839 dated 02.03.2000. After receiving the clarifications which were sent to him vide Office Letter No.DCA/PEN/AF/O/11839 dated 16.03.2000, the Manager Syndicate Bank, Central Accounts Office, Nampally, Hyderabad, vide his letter No.3026/228/Pen/Dy/2000 dated 16.03.2000 forwarded the Original PPO bearing No.08/14/Rev/2251 of 1999 duly paid. The 3rd respondent vide letter No.DCA/Pen/I/AF/11839 dated 30.3.2000 requested the Bank to take up the matter with the concerned Officer for refund of whole over paid amount. After knowing the mistake, a fresh Corrigendum PPO No.08/14/A/Rev/0499 of 2000 was issued for cancellation and return of original Corrigendum PPO bearing No.08/14/A/Rev/2251 of 1999. Subsequently a letter No.DCA/Pen/O/11839 dated 02.03.2000 was also sent to the Manager Syndicate Bank Central Accounts Office Mijhani Road, Hyderabad, by speed post with a copy to the Manager, Syndicate Bank, Air Force Station, Begumpet and a copy to the petitioner for refund of whole overpaid amount in lump sum. As per Ministry of Defence letter No.1(3)/98/D (Pen/Ser) dated 27.05.1998 vide para 26(a), cases of the Armed Forces personnel who have drawn one time terminal benefit in lump sum equal to 100% of their pensions, are entitled to the restoration of 43% of commuted portion of pension as per Para 4 of Government of India Department of P and PW letter No.4/3/86/P and PW (O) dated 30.09.1996, shall not however covered by these orders. Accordingly, the petitioner is not entitled for any revision of pension, but only his family pension is required to be revised. Under the V CPC vide Ministry of Defence letter dated 07.06.1999, the petitioner is not entitled to the relief asked for. The Corrigendum PPO which has subsequently been cancelled by the impugned order was passed only in order to rectify the mistake committed by the 3rd respondent and instead of revising the family pension, the service pension was revised by the 3rd respondent in the Corrigendum PPO, which was subsequently rectified by passing the impugned orders, where are under challenge. The interim stay orders granted in W.P.M.P.No.6104 of 2000 and W.P.M.P.No.6105 of 2000 in W.P.No.4606 of 2000 are liable to be vacated. Hence, these petitions are liable to be dismissed.
10. The reply statements were filed by the petitioners denying the contentions raised by the respondents in this counter.
10(a). We heard the learned counsel appearing for the petitioners and also the learned Senior Central Government Standing Counsel appearing for the respondents and considered their respective submissions.
11. Now the common point for determination in these petitions is whether the impugned orders of the respondents issued in Corrigendum PPO No.08/14/A/Rev/0500 of 2000 cancelling PPO.No.08/14/A/Rev/1853 of 1999 in respect of the petitioner in T.A.No.128 of 2010 and corrigendum PPO No.08/14/A/Rev/0499 of 2000 cancelling PPO.No.08/14/A/Rev/2251 of 1999 in respect of the petitioner in T.A.No.129 of 2010 are liable to be set aside for the reasons stated in the respective affidavits of the petitioners filed along with their petitions?
12. THE POINT:- The Corrigendum PPO No.08/14/A/Rev/0500 of 2000 in respect of the petitioner in T.A.No.128 of 2010 and corrigendum PPO No.08/14/A/Rev/0499 of 2000 in respect of the petitioner in T.A.No.129 of 2010 were issued by the 3rd respondent on the basis of the Government of India Ministry of Defence order No.1(3)/98/ D (Pen/Services), dated 27.05.1998. It is the definite case of the contesting respondents that the said Corrigendum PPOs were issued on the wrong belief that the said Government Order dated 27.05.1998 was passed in consonance with the Vth Central Pay Commission recommendations both in respect of service pension as well as family pension. After realizing the mistake committed by the 3rd respondent that the said Government Order dated 27.05.1998 referred to above will be applicable only to the family pension and not to service pension of the Armed Forces personnel, the respective impugned orders were issued vide Corrigendum PPO No.08/14/A/Rev/0500 of 2000 in respect of the petitioner in T.A.No.128 of 2010 and corrigendum PPO No.08/14/A/Rev/0499 of 2000 in respect of the petitioner in T.A.No.129 of 2010. The mistake was realized by the 3rd respondent, which necessitated the 3rd respondent to issue the respective Corrigendum PPOs referred to above. Para 26(a) of the Government of India Ministry of Defence order No.1(3)/98/ D (Pen/Services), dated 27.05.1998, reads as follows:-
â26. The cases of Armed Forces Offices who have been permanently absorbed in Public Sector Undertaking/Autonomous bodies will be regulated as follows:-
(a) Where the Armed Forces Officers on permanent absorption in Public Sector Undertaking/Autonomous bodies continue to draw pension separately from the Government the Pension of such absorbers will also be updated in terms of these orders. Cases of the Armed Forces Personnel who have drawn one time terminal benefits in lump sum, equal to 100% of their pensions and are entitled to the restoration of 43% of commuted portion of pension as per para 4 of Government of India, Department of P and PW letter No.48/86 â P and PW (O) dated 30th September 1996, shall not, however, be covered by this orders. Separate orders in this regard to have been issued by DP and PW under their office Memorandum dated 13.01.1998.â
12(a) The learned Senior Central Government Standing counsel appearing for the respondents along with the typed set of papers furnished the Government Order No.4/3/86 â P and PW (O) dated 13.01.1998, which deals with restoration of one-third commuted portion of pension in respect of Government servants who had drawn lump sum payment on absorption in a Public Sector Undertaking/Autonomous Body in implementation of the Supreme Court Judgment dated 15.12.1995 in Writ Petition (C).No.11855 of 1985. There is absolutely no material placed before us to show that under Government Order No.4/3/86 â P and PW (O), dated 13.01.1998, the benefits conferred under Government Order No.1(3)/98/ D (Pen / Services), dated 27.05.1998 have been extended to the Armed Forces personnel. So, the impugned orders challenged by the petitioner under these petitions have been emanated from the 3rd respondent only on the basis of the Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998, particularly as per para 26(a) of the said Government Order. Unless and until Para 26(a) to Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998, is erased or removed by way of any subsequent Government Orders or amendments, the impugned orders under question in these two petitions cannot be challenged in any manner.
12(b) The learned counsel appearing for the petitioner would contend that the petitioners in both the petitions have filed these petitions under Article 226 of the Constitution of India before the High Court of Andhra Pradesh and hence, this Tribunal itself can pass suitable orders in a way to remove Para 26(a) from the said Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998. This Tribunal has been specifically barred from exercising the power under Articles 226 and 227 of the Constitution of India under section 14 of the Armed Forces Tribunal Act, 2007. Under such circumstances, even though the petitioners have filed these petitions under Article 226 of the Constitution of India before the Honourable High Court of Andhra Pradesh, this Tribunal cannot exercise the power conferred under Article 226 of the Indian Constitution, which can be exercised only by the High Court of Andhra Pradesh under Article 226 of the Constitution of India or under Article 32 by the Honourable Supreme Court of India. So, it is left to the petitioners to challenge Para 26(a) in Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998, before the appropriate forum. It is further represented that the petitioner in T.A.No.128 of 2010 has subsequently been paid with 43% commuted portion of the Pension, which has been restored as per the latest Government Orders. As We have already observed that since the impugned orders have been passed only on the basis of the Para 26(a) of the Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998, We are of the considered view that the impugned orders cannot be set aside by this Tribunal as long as Para 26(a) is in Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998. Point is answered accordingly.
13. In fine, both the T.A.No.128 and 129 of 2010 are dismissed as devoid of merit. It is left to the petitioners to challenge the Government Order No.1(3)/98 D (Pen / Services), dated 27.05.1998, (particularly Para 26(a)), if so advised, before the appropriate forum. There is no order as to costs.