1. This order shall dispose of the petition filed by the petitioner in the present case and by other petitioners in similar cases mentioned above.
2. Briefly stated the facts of the case are that the petitioner retired from the Army after completion of his normal tenure of service in the rank of Havildar. The petitioner was granted honorary rank of Naib Subedar after his retirement. It was alleged that though the petitioner was granted service pension in the rank of Havildar, however, he was to be paid a sum of Rs. 100/- per month in addition to his service pension as applicable in the rank of Havildar against the honorary rank of Naib Subedar.
3. It was further alleged that Government of India accepted the recommendations of 6th Centre Pay Commission for the grant of pension for all honorary ranks of Naib Subedar payable by taking his placement as a regular promotion in the higher grade vide their policy letter dated 12.06.2009. The said letter was further circulated by the Adjutant General Branch vide their letter dated 06.07.2009.
4. It was further alleged that the petitioner retired from the Army service prior to 01.01.2006 and he was granted honorary rank of Naib Subedar and he was also granted an additional amount of Rs.100/- per month in addition to his service pension in the rank of Havildar. It was alleged that the petitioner is also entitled to pension in the rank of Naib Subedar with effect from 01.01.2006 as applicable under letter dated 06.07.2009 as he was granted honorary rank of Naib Subedar after retirement.
5. The petitioners further alleged that though more than three years have passed but the authorities have not issued revised pension according to letter dated 06.07.2009.
6. It was further alleged that a similar OA No. 42 of 2010 titled as Virender Singh and others Vs. Union of India and others the relief has been allowed by a Bench of this Tribunal on 08.02.2010. It was also alleged that SLP No. 18582 of 2010 titled as Union of India and others Vs. Virender Singh and others filed by the Union of India before Honble the Supreme Court has been dismissed vide order dated 13.12.2010. The petitioner has thus claimed for release of service pension in the rank of Naib Subedar with effect from 01.01.2006 along with interest at the rate of 18% per annum.
7. In reply filed by the respondents they pleaded that the petitioner is not entitled to the relief as prayed for and it was also pleaded that the petitioner has approached this Court after more than three years claiming benefit of enhanced pensionary benefits relying upon the judgment which was rendered on 08.02.2010. Thus, the present OA is hopelessly time barred and is liable to be dismissed accordingly since the limitation period was only six months and no challenge has been made to the circular dated 12.06.2009 circulated vide letter dated 06.07.2009.
8. We have heard the learned counsel for the parties in the present case as well as all connected cases in which similar reply was filed. In some of the cases no separate reply was filed and it was pleaded that the reply filed in the connected cases be considered as reply in those cases.
9. We have heard the learned counsel for the parties at length and have gone through the record of the case.
10. We may point out that the petitioner has relied upon the judgment passed by a Bench of this Tribunal in the case referred to above as Virender Singhs case decided on 08.02.2010 in OA No. 42 of 2010. In that case a question had arisen in regard to the implementation of the orders vide which the petitioner and others who were granted honorary rank of Naib Subedar were to be entitled to a sum of Rs. 100/- per month as honorary Naib Subedars in addition to their pension as Havildars or were also entitled to the pension of a Naib Subedar. A question was raised in that case based upon the letter issued in this regard dated 03.06.2009 and it was mentioned in the said order that this letter takes effect from 01.01.2006.
11. A question was raised in that case as to whether these benefits are to be extended to Havildars granted honorary rank of Naib Subedar on or after 01.01.2006 since it had introduced serious discrepancies within the same classes and categories of individuals i.e. honorary Naib Subedars pre and post 01.01.2006. We may clarify that the said letter was sought to be interpreted as leading to the conclusion that the special pay would be payable to the persons who retired after 01.01.2006 and not before that date. It was held by the Court that this 01.01.2006 is the date when this letter came into effect and it does not mean that the persons who retired pre 01.01.2006 would not be entitled to these benefits.
12. Accordingly the above point was decided by the Bench vide its order dated 08.02.2010 in various petitions clubbed together in Virender Singh and others and it was held that the application is allowed and the respondents are directed to implement the Government instructions and release the entitled pension with effect from 01.01.2006 to honorary Naib Subedars. Thus, it is clear that it was clarified that this benefit applies to all whether they are pre-01.01.2006 retirees or post-01.01.2006 retirees. Thereafter similar orders were being passed in favour of various Havildars who approached this Tribunal for grant of pension in the honorary rank of Naib Subedars. Needless to say the petition filed against the order in Virender Singhs case was dismissed by Honble the Supreme Court as mentioned above.
13. Thereafter challenging the said order passed in Virender Singhs case which was also relied upon by a Bench of this Tribunal in Raj Kumar Singroha Vs. Union of India and others, a review petition was filed before this Court for a review of the order in Virender Singhs case. The said review petition was filed by the Union of India and a Co-ordinate Bench of this Tribunal vide its order dated 29.08.2013 dismissed the said review petition and, therefore, the said question is not open as to whether the said judgment deserves to be reviewed in Virender Singhs case, which plea was also taken though not specifically in the reply filed by the respondents. Therefore, the said question stands determined and the order passed in Virender Singhs case is not liable to be reviewed.
14. The only question raised in this petition which deserves to be decided is as to whether the petitioners are entitled to the amount as granted in their favour with effect from 01.01.2006 or the arrears as claimed by the petitioners can be restricted to three years or 38 months as sought to be argued by the learned counsel for the Union of India.
15. The plea taken by the respondents is that since the petitioners approached this Tribunal more than three years after the passing of the order in Virender Singhs case, they are not entitled to the arrears prior to three years from the date of filing of the petition. To substantiate their above submissions no case law was cited by the counsel representing the Union of India.
16. However, learned counsel for the petitioners in these cases had placed reliance upon a number of decisions to substantiate their plea that the arrears cannot be restricted to three years prior to the filing of the petition. Reliance was placed upon the following decisions in support of their submissions.
17. The first case relied upon by the learned counsel for the petitioners is S.R.Bhanrale Vs. Union of India, 1997 AIR (SC) 27 = 1996(10) SCC 172, Civil Appeal No. 9489 of 1996, decided on 19.07.1996 wherein it was observed that the petitioner had claimed retiral benefits including encashment of earned leave, increment arrears, special pay due, LTC etc. which remained unsettled. His numerous representations to the department also evoked no response. It was held that it amounts to wrongfully withholding the amount from the appellant for more than 12 years. It was also observed that in the circumstances it ill behoved the Union of India to plead bar of limitation against the dues of appellant and the appellant was also held entitled to a sum of Rs. Two lacs towards interest, compensation, litigation expenses for amounts wrongfully withheld in addition to the claim amount already paid.
18. The next decision relied upon was S.K.Mastan Bee Vs. The General Manager, South Central Railway, 2003(1) SCC 184 = 2002(7) SLR 1, Civil Appeal No. 8089 of 2002, decided on 04.12.2002. It was held therein that the delay in claiming family pension was restricted to 38 months only preceding the filing of the writ petition. It was held that it was not justified since it is the mandatory duty and obligation of the employer to compute and disburse the family pension available to the dependents of deceased employee. It was held that the claim of the petitioners cannot be restricted for the fault of the employer itself.
19. The next case decision relied upon was a Division Bench decision of Punjab and Haryana High Court in Nirmaljit Singh and others Vs. Punjab State Electricity Board, 2008(1) SCT 494 = 2008 (3) SLR 542, CWP No. 1070 of 2007, decided on 11.12.2007. It was observed that the Board had restricted benefits to those who approached the Court on the contention that the claim is barred by limitation. It was held that the question of limitation would not arise because of anomaly in pay scale is a recurring cause of action. In view of the order passed in Smt. Om Pati Vs. State of Haryana, 2007(1) SCT 294 (PandH), the concerned authorities are duty bound to implement judicial pronouncements not only qua those who approached Court but in every case where similar fact situation is involved to avoid unnecessary rush in courts and discourage apathy on the part of bureaucracy. The observations made in Smt. Om Patis case are relevant and are being reproduced as under:-
âIt has become fashion of the day for the respondent State to force the litigant to approach the Court in every case without caring to examine the controversy which has been settled by the judicial pronouncements. It poses a question for the respondents to answer as to whether the principles of law in similar facts are to be every time reiterated by the Court or such principles should serve the respondent State as guidelines for deciding the issues raised before it...â
20. Further, reference was made to a judgment of Delhi High Court in Sanjeev Prabhakar and others Vs. Union of India and others, W.P.(C) 5795 of 2012, decided on 02.04.201. The observations made in Paras 8 to 11 are relevant and are being reproduced below:-
â8. Vide impugned decision dated November 19, 2011, the Tribunal has found favour with the claim made by the applicants but has restricted the ACP benefit to a period of one year preceding when Original Application was filed.
9. It is this part of the impugned order, which restricts the benefit with reference to the date whereof the ACP benefit has to be granted, which is under challenge before us.
10. Suffice would it be to state that where an issue of policy is raised before Judicial Foras, upon verdict being rendered, the same has to be treated in rem and not in personam. Law draws a distinction between claims which are based on facts personal to the claimants vis-a-vis claims which relate to the interpretation of the law. Whereas the former would be in personam, the latter would be in rem.
11. Accordingly, we dispose of the writ petition modifying the direction issued by the Tribunal as per its order dated December 19, 2011. We direct that all respondents would be entitled to the ACP benefit of being placed in the pay scale of Rs.6500 â 10500/- from the date they became entitled to the ACP benefit.â
21. A perusal of the decision of High Court of Delhi in Ex NK. Singheswar Singh Vs. Union of India and others, WP (C) No. 9186 of 2009, decided on 28.08.2009 shows that the observations made in para 7 are relevant and are reproduced below:-
â...The approach of the respondents is that even if there is a legal principle settled, each person must approach the court to get relief. There can be no basis for such an attitude since the cases are not turning on their own facts but are based on one common principle and thus the attitude of the respondents is almost contemptuous apart from unnecessary burdening the dockets of the court.â
22. A reference can be made to the decision of Kerala High Court in K.Venkittaraman Vs. Indian Air Force Benevolent Fund association, WA No. 1002 of 2010, decided on 12.11.2010, wherein the appellant, a nonagenarian and a participant in 2nd World War, was medically invalidated on 29.09.1945, shortly after joining the service on 05.04.1943. The factual position as to the eligibility of the writ petitioner to obtain the benefit under the monthly maintenance scheme, it was observed, stands concluded, in so far as the verdict passed by the learned Single Judge has not been subjected to challenge from the part of the respondents. The only question left to be considered was whether the appellant/writ petitioner is entitled to have the benefit only with effect from January, 2007 when he applied or from the date of the commencement of the said Scheme. The observations made in Para 6 are relevant and are being reproduced below:-
â It is the admitted case that, the writ petitioner could not submit the necessary application immediately when the Scheme was introduced; more so since he was finding it very difficult to make the both ends meet, by virtue of his advanced age (having crossed 80 years when the Scheme was notified in the year 2000)and the ailments, being a person medically invalidated from the service. Further, it is stated that there was no adequate publicity with regard to the said Scheme. The Scheme itself is an enabling provision to grant the benefits as a part of âwelfare measureâ to the soldiers/ participants in the 2nd World War, who are having no pension at all. As such, the eligibility to the said Scheme ought to have been interpreted in a larger and liberal manner. That apart, since the eligibility stands settled, the amount payable w.e.f. the date of introduction of the Scheme was lying at the hands of the respondents till date, generating interest. The lapses on the part of the writ petitioner in applying for and obtaining the benefit on time has in fact adversely effected only him, who had to lead a miserable life, without any support. Since, the Scheme for monthly maintenance came into operation w.e.f. 01.01.2000, we find it fit and proper to extend the benefit under the said Scheme to the appellant w.e.f. the said date itself. However, we hold that the respondents shall never be mulcted with any liability to pay interest in respect of the arrears.
In the above circumstances, we declare that, the appellant is entitled to get the benefit of monthly maintenance w.e.f. 01.01.2000. The eligible extent of dues in this regard shall be worked out and disbursed to the appellant, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment and continue to effect payment of the monthly maintenance in terms of the Scheme.â
23. The submissions made by Shri B.S.Sehgal, Advocate, in other connected cases were in addition to these above submissions made by Shri Navdeep Singh, Advocate, in the above mentioned cases. Shri B.S. Sehgal, Advocate, had referred to some letter in the discussion in the meeting of Standing Committee (SCORA) under the chairmanship of Honble MOS. Copies of the office memorandum and other circulars issued in this regard are not relevant for disposal of the present issue. He has also referred to a letter issued by the Director, Pensions dated 12.06.2009 to Chief of Army Staff and also placed reliance upon a judgment of Punjab and Haryana High Court in the case of All India Ex-Servicemen Welfare Association Vs. Union of India and others, CWP No. 19912 of 2010, decided by a Division Bench on 05.09.2011. It was pertaining to a petition filed for issuance of a direction to the respondents for publication of new addition of Army Pension Regulations, which is not relevant for the present issue.
24. The submissions made by the learned Central Government Counsel for the Union of India were that the limitation for filing such petitions is within six months from the date of order under Section 22 of the Act, which were not filed by the petitioners well in time. It was also submitted that the petitioners are not entitled to arrears prior to three years of filing of the petitions at the most and the order allowing the petitions should be restricted to three years prior to the filing of the petition. The contention put forward in support of the above submissions was that the judgment in Virender Singhs case (supra) was passed on 09.02.2010 and the petitioners had the cause of action to file petitions and claim arrears within three years only and prior to three years they are not entitled to the pension claimed by them.
25. We have considered the submissions in the light of the judgments referred to above and we are of the view that the petitioners in these petitions have not challenged the notification issued by the Ministry of Defence dated 06.09.2009 (Annexure A-1 in Virender Singhs case) and the said letter was interpreted to mean that the said letter takes effect from 01.01.2006 and it does not discriminate between the pre-01.01.2006 retirees or post-01.01.2006 retirees. The date for the implementation of the order was from 01.01.2006 and not that it distinguished between honorary Naib Subedars of pre and post 01.01.2006. The validity of the said letter and its interpretation was affirmed by the judgment in Virender Singhs case (supra). The said orders are not being challenged by the present petitioners in these cases, but they have relied upon Virender Singhs case (supra) to hold that the entitlement to the pension of Naib Subedar had only been clarified or reiterated from the date of the judgment i.e. 08.02.2010 and they had not challenged any order of the Union of India to hold that the same should have been challenged within six months from the date of the order. The validity of the said order dated 03.06.2009 has already been affirmed by the Bench of this Court in Virender Singhs case (supra) and that is not an issue before us.
26. The petitioners had not challenged any order and, therefore, the limitation of six months was not applicable to the case of the petitioners.
27. The question arises as to whether the petitioners could claim the arrears prior to three years after the passing of the order dated 08.02.2010 which had given a cause of action to the petitioners to claim this amount.
28. The claim of the petitioners who are similarly placed as the petitioners in Virender Singhs case (supra) has already been settled and all such persons placed in the same category have been held to be entitled to the pension of Naib Subedar with effect from 01.01.2006 as per the Government order dated 03.06.2009. The claim is not being sought to be settled by these petitioners who are only seeking implementation of the order passed in Virender Singhs case (supra).
29. No cause is sought to be determined by this Court in favour of the petitioners in deciding these petitions who placed reliance upon the judgment in Virender Singhs case (supra) in support of their petitions. The judgment passed in Virender Singhs case (supra) was not in persona but judgment in rem and was applicable to all such persons who are placed similarly. This clearly means that all the Havildars who were granted the honorary rank of Naib Subedars after retirement were entitled to be paid the pension of Naib Subedar. A perusal of the judgment passed in Virender Singhs case (supra) will show that the directions were issued in the following manner:-
âIn case these benefits were to be extended to havildars granted honorary rank of naib subedar on or after 01.01.2006, it would introduce serious disparities within the same class and category of individuals i.e. honorary naib subedars of pre and post 01.01.2006. This would be arbitrary and discriminatory.
In view of the facts and circumstances of the case the application is allowed. Respondents No. 1 to 6 are directed to implement the government instructions and release the entitled pension with arrears wef 01.01.2006 to honorary naib subedars within three months of the receipt of the order.â
30. It is, therefore, clear that not only the case of the petitioners in Virender Singhs case (supra) was allowed but the respondents were also directed to implement the Government instructions and to release the entitled pension with arrears w.e.f. 01.01.2006 to honorary Naib Subedars as per the Government instructions. This clearly shows that the directions were specifically issued to grant such arrears to honorary Naib Subedars and the directions were not restricted to the petitioners only. The said order has been affirmed by Honble the Supreme Court when Their Lordships dismissed the Special Leave Petition against the said order as mentioned above.
31. We may once again point out that in the judgment in Ex. NK Singheswar Singhs case (supra) it was clearly observed that there is no basis for such an attitude since the cases are not turning on their own facts but are based on one common principle and thus the attitude of the respondents is almost contemptuous apart from unnecessary burdening the dockets of the Court.
32. In Smt. Om Patis case (supra) it was reaffirmed by Honble the Punjab and Haryana High Court that the principles of law in similar facts should serve the respondent-State as guidelines for deciding the issues raised before it. In the above case it was also observed that the concerned authorities are duty bound to implement judicial pronouncements not only qua those who approached Court but in every case where similar fact situation is involved, to avoid unnecessary rush in Courts and discourage apathy on part of bureaucracy.
33. It follows from above discussion that once the general directions were issued in Virender Singhs case (supra) and the judgment was judgment in rem and the said judgment had been affirmed by Honble the Supreme Court, the respondents were required to implement the instructions in regard to all honorary Naib Subedars and not only to those who approached the Tribunal relying upon Virender Singhs case (supra). From the date the said order was passed on 08.02.2010 all those persons similarly placed as petitioners in Virender Singhs case (supra) were entitled to the pension of Naib Subedar and it was not necessary for them to approach the Court for the relief. Therefore, it is clear that once the issue had been settled, it was not open and the directions in general having been issued, made the respondents liable to pay the revised pension to every such person and they cannot claim that they must approach the Court and then only they will be entitled to the relief. A right had accrued to such persons similarly placed and they were entitled to the benefit and revised pension ought to have been issued which could not be denied to them that they have approached the Court after three years and, therefore, the arrears could be restricted to three years only. Once a right had accrued to them and the respondents were required to issue the revised pension order, no limitation can be placed holding that the petitioners who approached the Court will be entitled to arrears for a period of three years only.
34. In view of the above discussion we accordingly hold that all such petitioners who are similarly placed as in Virender Singhs case (supra), are entitled to the revised pension with effect from 01.01.2006 as directed in Virender Singhs case (supra), and no restriction can be placed upon their entitlement for three years only and all such objections taken by the respondents in this regard are liable to be rejected, which are rejected accordingly.
35. Learned counsel for the respondents argued that in CA No. 5476 of 2011 Union of India Vs. Sohan Lal Bawa, Honble the Apex Court had made an observation that the decision in Virender Singhs case (supra) relates only to the case of Havildars who were granted honorary rank of Naib Subedars before retirement. It has further been argued that the application filed by the Union of India for the review of that order (Review Petition No. 365 of 2013 in Civil Appeal No. 5476 of 2011) has also been dismissed by the Honble Apex Court on 06.03.2013 and thus this observation has been affirmed that only those Havildars are entitled for honorary rank of Naib Subedar to whom this was granted before retirement.
36. We have considered over this submission and feel that it is devoid of merits. When Civil Appeal No. 5476 of 2011 Union of India Versus Sohan Lal Bawa was decided by Honble the Supreme Court with the above said observations, similar objection was raised in several petitions and that controversy was considered by this Bench in a bunch of cases led by OA No. 1327 of 2011 Raghubir Singh and others Vs. Union of India decided on 21.10.2011 and submissions of the learned counsel for the respondents Union of India and others were rejected. There is nothing on record to show that the respondents filed any appeal before Honble the Apex Court against the judgment passed in Raghubir Singhs case. Now the dismissal of Review Petition No. 365 of 2013 for the review of judgment in Civil Appeal No. 5476 of 2011, Union of India Vs. Sohan Lal Bawa does not change the legal position and therefore, is not of any consequence.
37. We may once again reiterate our views detailed in the case of Raghubir Singh. In that case, after considering the Honble Apex Courts order in the case of Sohan Lal Bawa, we found that the Honorary Rank of Naib Subedar is granted to Havildars only after retirement. As such there was or is no change in the legal position arrived at in the case of Virender Singh which applies in this case also. The SLP in Virender Singhs case (supra) was also dismissed by Honble the Apex Court.
38. In view of the above discussion it is held that in all such cases the petitions deserve to be allowed relying upon the judgment of Virender Singhs case (supra) and the said judgment shall be implemented in cases of all the petitioners without any discrimination. However, the question of grant of interest in appropriate cases shall be considered in case the petitioners/ similarly placed persons are not issued the revised PPOs in spite of these directions. The respondents shall take steps to make payment to all these such petitioners. In case of other similarly placed persons we are not fixing any time limit to make payment within three months since the number of such persons may be sufficiently large and it may take time to issue revised pension orders for them, but steps shall be taken to issue the revised pension orders as early as possible.
39. The petitions are allowed accordingly in all such cases.
40. At the conclusion of the arguments the learned counsel for the respondents stated that the question of restricting arrears to six months in accordance with the provisions of the Armed Forces Tribunal Act, 2007 or to 36 months in consonance with the Limitation Act was adjudicated and settled by this Tribunal in a bunch of cases led by Jaswant Singh Vs. Union of India (OA 1111 of 2012, decided on 28.08.2012) and notwithstanding a recurring right like pension, delay by the claimant would result in restricting the arrears as per law. It was also stated that since the issue involved a large number of defence pensioners and was of general public importance, the respondents be granted leave to appeal to the Honble Supreme Court in accordance with Section 31 of the Armed Forces Tribunal Act, 2007.
41. Perusal of the judgment in the case of Jaswant Singh (supra) and the fact that a large number of pensioners are affected thereby, we are of the view that the matter is of general public importance. We find merit in the prayer of the respondents and accordingly grant leave to appeal to the Honble Supreme Court in accordance with Section 31 of the Armed Forces Tribunal Act, 2007.
42. Attested copy of this order be placed on the record of each case.