Jaswant Singh Vs. Union of India and Others

N.P. Gupta

This bunch of the matters, including those, listed in the Schedule, involves almost common set of facts, and does involve a common question of law, and therefore, are being decided by this common judgment.

The petitioners in all these matters are the individuals, or the widows of individuals who were ex-servicemen, and had retired or died prior to 10.10.1997 in the ranks, which at the relevant time were popularly known as “PBOR”. The one aspect of the controversy raised is that the pay scales as revised by the 5th Pay Commission being of Rs. 5620-8140 was given to such individuals who were in service as on 10.10.1997, i.e. it was given w.e.f. 10.10.1997 only and not w.e.f. 1.1.1996, which was the date, from which the recommendations of 5th Pay Commission were accepted, and this brought about the anomaly. Accordingly, this was challenged by way of writ petition before the Punjab and Haryana High Court in CWP No 15400 of 2006. It was decided on 14.01.2008, and it was held that the petitioner is entitled to the revised pay scale of Rs 5620-8140 w.e.f. 1.1.1996. This writ was titled as Jai Narayan Jakhar Vs. Union of India. Against that judgment, Union of India filed SLP which was dismissed vide the judgment dated 21.11.2008. By the way, we may notice or rather mention that Jai Narayan Jakhar himself had retired after 01.1.1996, i.e. on 31.5.1996.

After this decision in Jai Narayan Jakhars case, there had been a spate of litigation after the establishment of this Tribunal and in that sequence did come to be passed judgment dated 13.06.2010 in TA No 654 of 2010, which arose out of CWP 5064 of 2009, Lachhmi Devi Vs. Union of India, which again had come to be transferred from the Punjab and Haryana High Court. In that case, the husband of the petitioner was Naib Subedar, and had retired on completion of tenure on 22.08.1970, with applicable service pension. He expired on 10.10.1990. The petitioner therein being widow was granted Ordinary Family Pension, which was duly revised according to the rank structure. However, the grievance was raised by the petitioner therein to the effect that the individual fell in group “D”after rationalization of group “Y‘ and accordingly the scales of Naib Subedar, as amended by Anomalies Committee w.e.f. 10.10.1997, are applicable in his case, and as per the instructions issued, the pension including family pension of pre 1996 retirees shall not be less than 30% of the minimum scale fixed for that rank on 1.1.1996, the petitioner was accordingly entitled to the 30% of the minimum scale fixed for Naib Subedar in Group “D”as on 1.1.1996. It was also contended that the revision of scales and pension affected from 10.10.1997 on the recommendations of the Anomalies Committee have to be affected w.e.f 1.1.1996, and for that purpose reliance was placed on the judgment of Jai Narayan Jakhars case. This Tribunal found, that vide judgment in Jai Narayan Jakhars case the anomaly was sought to be removed w.e.f. from the date the anomaly emerged, and therefore applying that principal, that TA was also allowed, and the Family Pension of the petitioner was directed to be fixed as finally arrived at on 10.10.1997, for the rank and group applicable to the individual, to be made effective and paid w.e.f. 1.1.1996. Thereafter, the Govt. of India issued a policy letter dated 8.3.2010. This letter is available as Annexure R-1 in OA 669 of 2012. However for the sake of convenience, we may reproduce the same power which reads as under :-

“ No PC 10(1)/2009-D (Pen/Pol)

Government of India, Ministry of Defence, Deptt. of Ex-servicemen Welfare, New Delhi

Dated 8th March 2010

To,

The Chief of the Army Staff,

The Chief of the Naval Staff,

The Chief of the Air Staff,

Subject: Implementation of the Government decision on the recommendations of the Cabinet Secretary's Committee - Revision of pension in respect of Personnel Below Officer Rank (PBOR) discharged prior to 01.01.2006.

Sir,

The undersigned is directed to state that in order to consider various issues on pension of Armed Forces pensioners, the Government had setup a Committee headed by the Cabinet Secretary. The Committee in its Report have recommended the following for pre-2006 PBOR pensioners -

1.1 Pre-10.10.1997 PBOR pensioners may be brought on par with post-10.10.1997 PBOR pensioners; and

1.2 To reduce the gap between the pensions of pre and post-1.1.2006 PBOR pensioners, following principle may be followed -

1.2.1 Pension of all pre-1.1.2006 PBOR pensioners may be reckoned with reference to a notional maximum in the post-1.1.2006 revised pay structure corresponding to the maximum of pre-Sixth pay commission pay scales as per fitment table of each rank.

1.2.2 To continue with the enhanced weightages awarded by the Group of Ministers (GOM) of 2006.

2. The above recommendations of the Committee have been accepted by the Government and the President is pleased to decide that with effect from 1st July 2009, service pension/special pension/invalid pension/service element of disability pension and service element of war injury/liberalized disability pension (in release cases only) of all pre-1.1.2006 PBOR pensioners of Army, Navy and Air Force (including DSC and TA) shall be reckoned at 50% of the notional pay in the post-1.1.2006 revised pay structure corresponding to the maximum of pay scales applicable from 10.10.1997 of the rank and group continuously held for last 10 months preceding invalidment/discharge. The amount so determined shall be the pension for 33 years of reckonable qualifying service including rank weightage (except for TA personnel) as provided under this Ministry's letter No. 1(6)/98/D(Pension/Services) dated 3.2.1998 and enhanced vide this Ministry's letter No. 14(3)/2008/D(Pen/Sers)/ Vol-III dated 1.2.2006. For lesser period of qualifying service, this amount shall be proportionately reduced. The amount of pension finally arrived at shall be subject to a minimum of Rs. 3,500/- per month.

3. Following shall be taken into account for determining notional pay mentioned as at Para 2 above: -

3.1 The notional pay in the revised pay structure corresponding to the maximum of pay scale applicable from 10.10.1997 for the rank and group, shall be determined as per the fitment tables attached to SAI 1/S/2008 and corresponding instructions for Navy and Air Force, for each rank and group and shall consist of pay in the pay band plus Grade pay plus 'X' Group pay (where applicable) plus Military Service pay plus 50% of the highest classification allowance (revised rates effective from 1.9.2008), if any, of the rank and group held continuously for 10 months preceding discharge.

3.2 In pre-2006 pay structure, since classification allowance was payable to Army personnel only, the same shall not be reckoned while determining notional pay in respect of DSC, Navy and Air Force personnel.

3.3 Before arriving at the notional pay in the post-2006 revised pay structure in respect of pre-10.10.1997 retirees, the rank and group equivalent to post-10.10.1997 retirees corresponding to which one has retired shall be determined in terms of SAI 1/S/1998 and corresponding instructions for Navy and Air Force, for considering maximum of pay scales applicable with effect from 10.10.1997.

3.4 Notional pay in the revised pay structure in respect of PBOR granted pay of higher rank under Assured Career Progression (ACP) Scheme shall be determined with reference to the upgraded pay scales granted under ACP upgradation subject to condition that the upgraded pay scale was held continuously for 10 months preceding invalidment/discharge. The classification allowance shall be taken for the rank held and group in which paid.

Note - In addition to revised service pension determined under these orders, Havildar who are granted Honorary rank of Naib Subedar on retirement, shall be allowed additional pension equal to Rs. 226/-.

4. In terms of provisions contained in Para 10 and 12 of this Ministry's letter No 1(2)/97/D(Pen-C) dated 31.1.2001, service element of war-injury pension/ liberalized disability pension in respect of PBOR invalided out from service on or after 1.1.1996 has been computed with reference to emoluments drawn on the date of invalidment from service but counting service up to the date on which he would have retired in that rank in normal course including rank weightage. The said provision for calculation of service element of war injury pension was extended in respect of pre-1.1.1996 invalided out cases vide this Ministry's letter No 1(2)/97/D(Pen-C) dated 16.5.2001 and in respect of pre-1.1.1986 invalided out cases vide this Ministry's letter No. 1(2)/97/D(Pen-C) dated 28.1.2002. However, the notional pay determined in terms of Para 12 of this Ministry's letter No 1(2)/98/D(Pen/Sers) dated 14.7.1998 in respect of PBOR invalided out of service prior to 1.1.1986, has been considered as emolument last drawn. In implementation of the recommendations of Cabinet Secretary Committee as at Para 1 above, the President is also pleased to decide that service element of war injury pension/liberalized disability pension in respect of PBOR invalided out of service prior to 1.1.2006 shall be reckoned as under: 4.1 The last pay of all those PBOR who were invalided out of service prior to 10.10.1997 and were in receipt of service element of War Injury pension as on 1.7.2009, shall be fixed on a notional basis for the rank held by the PBOR at the time of his invalidment in the following manner:

4.1.1 In the case of PBOR who were invalided out prior to 1.1.1986, the notional pay fixed as on 1.1.1986 in terms of Para 12 of this Ministry's letter No. 1(2)/98/D (Pen/Sers) dated 14.7.98 shall be the basis for notional fixation of their pay as on 1.1.1996 and its further notional fixation as on 10.10.1997 (without, however, any benefit of notional increment) at the rate given to similar PBOR of the same rank and group after the revision of pay scale with effect from 1.1.1996 and 10.10.1997 under the provisions contained in SAI 1/S/1998 and corresponding instructions for equivalent ranks in Navy and Air Force.

4.1.2 In the case of PBOR who were invalided out during 1.1.1986 and 31.12.1995, the pay last drawn at the time of invalidment shall be adopted for notional fixation of their pay as on 1.1.1996 and its further fixation as on 10.10.1997 (without, however, any benefit of notional increment) at the rate given to similar PBOR of the same rank and group after the revision of pay scale with effect from 1.1.1996 and 10.10.1997 under above mentioned Services Instructions.

4.1.3 In the case of PBOR who were invalided out during 1.1.1996 and 9.10.1997, the pay last drawn at the time of invalidment shall be adopted for notional fixation of their pay as on 10.10.1997 (without, however, any benefit of notional increment) at the rate given to similar PBOR of the same rank and group after the revision of pay scale w.e.f 10.10.97 under above mentioned Services Instructions.

4.2 The notional emoluments last drawn in post-1.1.2006 revised pay structure corresponding to the notional pay determined as at 4.1 above in respect of PBOR invalided out of service prior to 10.10.1997 and corresponding to last pay drawn in case of PBOR invalided out of service after 10.10.1997 but before 31.12.2005, shall be determined in terms of the fitment tables attached to SAI 1/S/2008 and corresponding instructions for Navy and Air Force, for rank and group and shall consist of pay in the pay band plus Grade pay plus 'X' Group pay (where applicable) plus Military Service pay plus 50% of the highest classification allowance (revised rates effective from 1.9.2008), if any, of the rank and group held at the time of invalidment.

4.3 The service element of war injury pension/liberalized disability pension in respect of all PBOR invalided out of service prior to 1.1.2006 shall be notionally recomputed with effect from 1.7.2009 at 50% of the notional emoluments last drawn (determined as per 4.2 above ) in the post-1.1.2006 revised pay structure with reference to the qualifying service already admitted in terms of Government orders issued in implementation of Fifth CPC recommendations. The amount so determined shall be the pension for 33 years of reckonable qualifying service including rank weightage (except for TA personnel) as provided under this Ministry's letter No. 1(6)/98/D (Pension/Services) dated 3.2.1998 and enhanced vide this Ministry's letter No. 14(3)/2008/D(Pen/ Sers)/Vol-III dated 1.2.2006. For lesser period of qualifying service, this amount shall be proportionately reduced. The amount of pension finally arrived at shall be subject to a minimum of Rs. 3,500/- per month. The provisions as at Para 3.2 to 3.4 above along with note there under shall equally apply for determining the amount of service element of war injury pension.

NON APPLICABILITY

5.1 Prior to implementation of Government orders issued in implementation of Sixth CPC recommendations, pension of JCOs granted Honorary rank of Lieutenant and Captain was being determined at 50% of fixed pay of Rs. 10,500/- and Rs. 10,850/- respectively. With effect from 1.1.2006, pension of post 2006 retirees in these ranks is being determined at 50% of their pay in the Pay Band - 3 plus Grade pay plus MSP. In case of pre-2006 retirees Honorary Lieutenant and Captain, their revised pension is being paid with reference to minimum of Pay Band - 3 plus Grade pay plus MSP introduced from 1.1.2006 in terms of provisions contained in Para 5 of this Ministry's letter No. 17(4)/2008(1)/D(Pen/Policy) dated 11.11.2008. The same may be treated as final and no further revision shall be done in terms of these orders. 5.2 The provisions of this letter, also, do not apply to Commissioned officers and their families and to all family pensioners of PBOR. These orders also do not apply to UK/HKSRA pensioners, Pakistan and Burma Army pensioners, Reservists pensioners, pensioners in receipt of disability element only and pensioners in receipt of Ex-gratia payments.

6. The following elements shall continue to be paid as separate elements in addition to the pension revised under these orders-

6.1 Monetary allowance attached to gallantry awards viz. Param Vir Chakra, Ashok Chakra etc.,

6.2 Constant Attendance Allowance, where admissible.

7. Where the revised pension as on 1.7.2009 worked out in terms of these orders, happens to be less than the existing consolidated pension being paid w.e.f from 1.1.2006 in terms of 6th CPC Government orders, the pension shall not be revised to the disadvantage of the pensioner.

MISCELLANEOUS INSTRUCTIONS

8. No arrears on account of revision of pension based on notional fixation of pay shall be admissible for the period prior to 1.7.2009.

9. No commutation of pension will be admissible on additional amount of pension accruing as a result of revision of pension under these orders. However, the existing amount of pension, if any, that has been commuted will continue to be deducted from the revised pension.

10. Notional fixation of pay in terms of these orders will not affect the entitlement of retirement gratuity already determined and paid with reference to rules in force at the time of discharge/invalidment.

11. Any overpayment of pension coming to the notice or under process of recovery shall be adjusted in full by the Pension Disbursing Agencies against arrears becoming due on revision of pension on the basis of these orders.

PAYMENT OF LIFE TIME ARREARS (LTA)

12. If a pensioner to whom the benefit accrues under the provisions of this letter has died/dies before receiving the payment of arrears, the Life Time Arrears of pension (LTA) shall be paid in the following manner: -

12.1 If the claimant is already in receipt of Family Pension or happens to be the person in whose favour Family Pension already stands notified and the awardee has not become ineligible for any reason, the LTA under the provisions of this letter should be paid to such a claimant by the PDA on their own.

12.2 If the claimant has already received LTA in the past in respect of the deceased to whom the benefit would have accrued, the LTA under the provisions of this letter should also be paid to such a claimant by the PDA on their own.

12.3 If the claimant is a person other than the one mentioned at 12.1 and 12.2 above, payment of LTA shall be made to the legal heir/heirs as per extant Government orders.

METHODOLOGY FOR IMPLEMENTATION

13.1 All Pension Disbursing Agencies handling disbursement of pension to Defence pensioners are hereby authorized to carry out revision of service pension/special pension/ invalid pension/service element of disability pension with effect from 1.7.2009 to the affected pensioners drawing pension with 15 years or more qualifying service as on 1.7.2009 in terms of these orders with applicable rates of dearness relief without calling for any applications from the pensioners and without any further authorization from the concerned Pension Sanctioning Authorities and pay the arrears on account of such revision except in those cases mentioned at Para 14 below which are required to be referred to Pension Sanctioning Authorities for issuance of corrigendum PPO indicating revised pension.

13.2 Keeping in view the above decision and to quicken the processes of revision of service pension, special pension, invalid pension, service element of disability pension with 15 years or more qualifying service, specific tables (total 135) indicating revised pension payable with effect from 1.7.2009, have been prepared for PBOR of Regular Army, Navy, Air Force and DSC who were discharged/invalided out from service prior to 1.1.2006 and drawing pension as on 1.7.2009, and are enclosed as Appendix to this letter. The appended tables indicate the existing pension as per Fifth CPC orders, Improved rates of pension (with and without DP), Revised Consolidated pension under Sixth CPC Government orders and revised pension payable with effect from 1.7.2009. Pension Disbursing Agencies will revise the pension with reference to applicable Table for the rank and group in which the PBOR was pensioned with reference to the actual qualifying service as shown in Column-1 thereof as revised rate of pension indicated against each qualifying service is inclusive of rank weightage applicable for various ranks of PBOR. In addition, dearness relief sanction by the Government from time to time is also payable.

13.3 The initial Pension Payment Order (PPO) or its Corrigendum PPO (Corr PPO) indicates rank, group and qualifying service for which the individual has been pensioned. These information are available with Pension Disbursing Agencies as they have revised pension of all such pensioners in the recent past in terms of Government orders issued on Improvement in pension and on Sixth CPC recommendations. In case, however, any information regarding qualifying service, rank, group etc., is not available with Pension Disbursing Agencies, such cases may be referred to Pension Sanctioning Authority concerned on the proforma enclosed as Annexure-A. The Pension Sanctioning Authorities concerned will provide the requisite information from the available records within 30 days of the receipt of request from the Pension Disbursing Agencies.

CASES REQUIRES REVISION FROM PSAs

14.1 Pension of PBOR pensioners who are in receipt of Special Pension, Invalid Pension and service element of Disability Pension for less than 15 years of qualifying service would also need to be revised in terms of these orders. Specific tables for the purpose have not been prepared for the reason that each of such cases will be unique one as rank, group and qualifying service will differ from case to case and hence standard tables cannot be prepared. Pension Disbursing Agencies shall refer such cases directly to the Pension Sanctioning Authorities concerned in the format enclosed as Annexure-A to this letter.

14.2 Specific tables for revision of pension in respect of pre-1.1.2006 Territorial Army pensioners have also not been prepared as Pension Disbursing Agencies could not revise such case due to non applicability of weightage in qualifying service and provision for reduction in pension in respect of TA pensioners who have completed 15 years or more but less than 20 years of aggregate embodied service. Such cases may also be referred by Pension Disbursing Agencies directly to the Pension Sanctioning Authorities concerned in the format enclosed as Annexure-A to this letter.

14.3 Similarly, revision of service element of war injury pension/liberalized disability pension in all cases of PBOR irrespective of the qualifying service shall also required to be done by the Pension Sanctioning Authorities concerned for the reason that the crucial information relating to last pay drawn and the maximum terms of engagement to the specific rank for which pension would need to be verified with reference to the original records held by the Pension Sanctioning Authorities. Such cases shall also be forwarded by the Pension Disbursing Agencies to the Pension Sanctioning Authorities concerned through respective Record office in the prescribed proforma enclosed as Annexure-B to this letter.

METHODOLOGY FOR REPORTING

15. An intimation regarding disbursement of revised pension shall be sent by the Pension Disbursing Agencies to the Office of the PCDA(P) Allahabad on monthly basis in the format prescribed as Annexure-C to these orders. A copy of the said Annexure - C may invariably be provided by the Pension Disbursing Agencies to the pensioners concerned for their information. Those Public Sector Banks who are disbursing Defence pension through Central Pension Processing Centers (CPPC), the monthly progress report may be furnished by the CPPC of the bank directly to the office of the PCDA (Pensions) Allahabad.

16. This issues with the concurrence of Finance Division of this Ministry vide their UO No 502/Fin/Pen/2010 date 08.03.2010.

Hindi version of these orders will follow”

By this letter, pre 10.10.1997, PBOR pensioners were brought on par with post 10.10.1997 pensioners, at the same time to reduce the gap between the pension of pre and post 1.1.2006 PBOR pensioners, principals were laid down and then in para 2, this was made applicable from 01.07.2009. This letter dated 08.3.2010 did come to be challenged in OA No 45 of 2011, Bhim Singh Vs Union of India, and it was noticed that in Lachmi Devis case and in Dharampals case (judgment in Dharampal‘s case was filed in Bhim Singh‘s case as Annexure A-6) the letter dated 03.08.2009, produced as Annexure A-7 was challenged, and it was noticed that Lachmi Devi case and Dharampal‘s case , this letter dated 03.8.2009 stood set aside by virtue of the judgment of Jai Narayan Jakhars case, and therefore, vide judgment dated 14.1.2011 passed in Bhim Singhs case this letter Annexure A-7 therein, being dated 03.8.2009 was quashed, so as to result into entitlement of the petitioners therein to revision of pension, as claimed w.e.f. 01.01.1996. At the same time, as a consequence of quashing Annexure A-7 therein, a general directions was also given to the respondents to grant similar reliefs to all the similarly situate persons without making them to litigate individually over and again, so as to encumber this Tribunal with number of cases, and at the same time to burden the coffers of the Government by incurring litigation costs. It was directed, that needful be done i.e. calculations of arrears and actual payment be made within three months from the receipt of certified copy of that order by the learned counsel for the respondents, failing which the accumulated amount of arrears and interest will carry further interest @ 10% per annum.

It is thereafter, rather in the interregnum period, that Govt. also issued a policy letter dated 08.3.2010 giving the same relief, being pre 10.10.1997 and post 10.10.97 PBOR pensioners were brought at par, and the principals were laid down to reduce the gap between the pensioners of pre and post 01.01.2006 PBOR pensioners, and this was to be w.e.f. 01.07.2009.

It is in the background of the above factual position, and the position of various judgments rendered by the High Court of Punjab and Haryana, Hon‘ble the Supreme Court, this Tribunal, and the different policies issued by the Govt. of India, that this bunch of litigation has come up with the prayer to grant identical reliefs as granted in the case of Jai Narayan Jakhar.

In some of the matters, the respondents raised objection about the petition being barred by time, and strong reliance was placed on the provision of Section 22 of the Armed Forces Tribunal Act, to contend, that the limitation prescribed is six months, and even if computed from, any of the dates of the judgments, or the policy letters mentioned above, the petitions are barred by time, and therefore cannot be entertained. Since the objection was raised in some matters only, and the spate of petition was coming, leading case was fixed on particular date, and then the matter came up thereafter were ordered to be tagged up, and in that sequence, the matter did come up for hearing on 04.5.2012, on which date bunch consisting of 118 matters was heard for the whole day, and the hearing continued, it was therefore fixed for further hearing on 06.8.2012. On 06.08.2012, due to some personal difficulty of one of the members constituting the Bench, the matters could not be taken up, and have accordingly come up today, by which time the size of the bunch has increased from 118 to 250 cases. Be that as it may.

On 04th May, broadly the facts were recapitulated, and much stress was laid on the aspect that vide policy letter dated 08.3.2010 no arrears are admissible for the period prior to 01.07.2009. It was also submitted that the judgment in Jai Narayan Jakhars case does not take into account the aspect of pre 1996 retirees, and therefore the petitions which relate to the individuals who are pre 1996 retirees, do not stand at par with retirees between 01.01.1996 and 10.10.1997. Then arguing the petitions, it was submitted on the side of the petitioners that limitation is three years, according to the Article 137 of the Limitation Act, read with Article 58 thereof. Then regarding the starting point of limitation, as to from which date this period of three years is to be computed, strong reliance was placed on the judgment of this Tribunal dated 26.12.2011, passed in bunch of matters led by OA No. 1370 of 2011 Labh Singh Vs Union of India, and it was contended that the matter was decided by the Hon‘ble Supreme Court on 21.11.2008, and therefore, the limitation, at the earliest, should start from that date apart from the fact, that thereafter the Govt. itself has issued the policy letters mentioned above, being 03.08.2009 and 08.3.2010, which brought post 10.10.97 and pre 10.10.97 PBOR pensioners at par, and therefore, that should be taken to be the starting point of limitation. A submission was also made, that not only that, the petitioners are also entitled to claim 14.1.2011 also to be the starting point of limitation, on which date the judgment in Bhim Singhs case was rendered, adjudicating upon the policy letter dated 03.08.2009. In other words, according to the petitioner, finally on the logic laid down by this Tribunal in Labh Singhs case, the rights of the petitioner did finally come to be recognized vide judgment in Bhim Singhs case, being dated 14.10.2011, more particularly, in view of the fact that by that judgment general directions were given to the respondents to grant similar relief to all similarly situate persons, without making them to litigate individually over again, and if the period of three years is computed from this date, all the petitions, are clearly within time, and the objection raised by the respondents regarding limitation should be turned down.

Submission was also made on the side of the petitioners that, since in Bhim Singhs case, a general direction has been given, the respondents are bound to comply with those directions, and therefore, rather all the OAs are required to be converted into contempt applications, and in view of the provision of Rule 25 of the Armed Forces Tribunal(Procedure) Rules, in order to prevent the abuse of process, and to secure the ends of justice, the respondents should be simply compelled to “comply with”the directions in Bhim Singhs case, and the pain of being punished for contempt. Reliance was also placed on Section 29 of the Armed Forces Tribunal Act, which confers powers of execution of the order of the Tribunal by submitting that, in its own terms, the judgment in Bhim Singhs case is an executable judgment, and therefore it should be executed. When observation was made by the Court about the provision of limitation being there, under section 20 of the Contempt of Courts Act, and the petitions having been filed beyond the period of limitation prescribed under Section 20 of the Contempt of Courts Act 1971, and none of these OAs having been filed with the prayer for execution, the submission was not carried further.

The submission was then made, that since the respondents are at fault, in view of the judgment in Bhim Singhs case, they cannot raise the objection of limitation, and in any case, they cannot ask for even for restricting arrears to any period of time.

It was also submitted that restricting arrears will make the litigation purposeless, as the petitioners would practically not get any relief. Then the Govt. Directions dated 22.2.2012, and the judgment of the Principal Bench dated 02.4.2012 in OA No. 640 of 2010; Dalip Singh Vs. Union of India was relied upon, wherein relying upon judgment of Hon‘ble the Supreme Court dated 22.2.2012, passed in Civil Appeal No 2942 of 2009 Union of India Vs. Hoshiar Singh, Hon‘ble the Supreme Court did grant the benefits of Service Element to all pre 1973 retirees w.e.f. 1.1.1973, and did allow OA No. 640 of 2010, and granted service element of disability pension w.e.f. 1.1.1973 alongwith interest @ 12%. The Govt. letter dated 22.2.2012 was pressed into service for the purpose, that a policy decision has been taken not to oppose such litigations and to concede.

It was submitted that the right to claim pension is a recurring, and continuous cause of action, and it is therefore no hit by the vice of getting time barred. Mr. Samarveer appearing for one of the petitioners submitted that if arrears are restricted, that will have affect of resurrecting the anomaly, which was directed to be removed, and made ineffective by the judgment in Jai Narayan Jakhars case. Mr. Sehgal submitted that the judgment in Jai Narayan Jakhars case has become final, and this Tribunal is and has been following it consistently, as well as, and there is no question of restricting arrears to any period of time. In his submission, if the arrears are restricted, it will again create a separation of classes from within homogeneous class, and will bring about discrimination. He also submitted that in Bhim Singhs case, the letter dated 03.08.2009 was completely quashed, and general direction was given. Consequently, if the benefits are not given to the individuals, the individuals are not to be blamed for it, and consequently, question of limitation does not come in. He also submitted that Section 21 and 22 of the Armed Forces Tribunal Act, are not applicable to the order passed regarding, or under Pay Commissions, or order passed by the Govt,, as those orders are not under the Army Act or the Air Force Act, or the Navy Act, and therefore also, in his submission, the objection of limitation was clearly misplaced.

When the matter was taken up today, Mr Samarveer Singh reiterated the submission, that in Bhim Singhs judgment, a general direction had been given, and therefore the question of restricting arrears to three years does not arise, as even if three years limitation is taken, the petitions can be filed up to 14.01.2014. He also placed reliance upon the judgment of Hon‘ble the Supreme Court, in State of Bihar Vs. Kameshwar Prasad Singh reported in J.T. 2000 (5) S.C. 389. Then Mr. RS Panghal submitted that, in view of the provision of explanation (iv) appended to Section 11 of CPC, the objection of limitation, as raised by respondents is barred by the principals of constructive res-judicata, as during all these number of years, this objection was never raised, at any point of time in any case, which might and ought to have been raised. When his attention was invited to the bare language to section 11, being that for attracting the bar of res-judicata, the earlier suit (litigation), inter-alia, should be between the same parties, or between the parties under whom they, or any of them, claim to be litigating under the same title, the learned counsel submitted that all ex-soldiers, for this purpose, are required to be treated as a one larger litigant, albeit a litigating segment, being aggrieved lot of ex-servicemen, who are deprived of benefits flowing from even directions of general nature given in Bhim Singhs case.

Then Mr. Navdeep Singh invited our attention to the judgment of Hon‘ble Supreme Court Union of India Vs. RK Bishnoi, decided on 21.05.2010, which had followed the judgment in Jai Narayan Jakhars case. Then he referred to the Govt. order dated 08.3.2010, and submitted it to be unsustainable, so far as it restricts the applicability from 1.7.2009, and stipulates that no arrears shall be payable. Then on the aspect of limitation, he submitted that, Section 21 and 22 of the Armed Forces Tribunal Act do not comprehend within their purview the pensioners matters, as according to the learned counsel, Section 22 applies to the matters covered by section 21, and section 21 provides for availing remedies available under Army Act , Navy Act or the Air Force Act, and since remedies available under these Acts are available only to “in service”personnel, and no remedy is available to the ex-servicemen for pensionary matters, and therefore, the bar is not attracted. Then he read to us the provisions of Section 21 of the Administrative Tribunals Act, wherein in section 21(b) being analogues to the provision of section 22(1)(b) of the Armed Forces Tribunal Act, another cap of one year was enacted to be the outer limit for filing any application before the Tribunal, while no such cap is available in the provision of section 22(1)(b) of the Armed Forces Tribunal Act, and the omission cannot be brushed aside on any ground whatever, and therefore also period of six months cannot be said to be applicable, as the limitation period, for maintaining the present OAs.

He then relied upon the judgment of Hon‘ble the Supreme Court in KT Virappa and others Vs State of Karnataka and Ors. being CA No 1216-1256 of 2003 decided on 12.4.2006, to contend that when a decision is rendered in a litigation by the competent court, then all other persons entitled to identical benefits should not be denied on the ground of their being not party to the earlier litigation, so as to make them litigate over again. He then relied upon another judgment of Punjab and Haryana High Court in CWP No. 1070 of 2007, Nirmal Jeet Singh Vs. Punjab State Electricity Board, decided on 11.12.2007, where also it was held that once an issue has been settled by the Court, and relief has been granted to persons who have approached the court, then the same benefits ought to have been granted to all similarly situated persons and they should not be forced to approach the court, time and again, for grant of the same relief. He then relied upon another judgment of Madras High Court dated 28.11.2005, passed in bunch of matter led by writ petition No 6944 of 2001, PV Dharamraj Vs. Union of India to content that in that case the direction given by the Administrative Tribunal restricting the arrears to a period of one year prior to the date of filing of the respective Original Applications is bad, and was not sustained, on the ground that similar reliefs have been granted in respect of similarly placed other applicants, and the Tribunal having followed the earlier orders, passed by the Tribunal, as well as Hon‘ble Supreme Court, and granted relief in favour of the applicants, there is no justification for restricting arrears only to the period of one year prior to date of filing of respective original application. He then relied upon another judgment of Hon‘ble Supreme Court in SR Bhanrale Vs Union of India being CA No 9489 of 1996 decided on 19.07.1996, wherein it was held, that the retiral benefits including encashment of earned leave, increment arrears, special pay due, LTC etc. remained unsettled, numerous representation to the department also evoked, no response. Amounts were found to have been wrongfully withheld from the appellant for more than 12 years, it was found to ill behove the Union of India to plead bar of limitation, and the petitioner thereon was awarded a sum of Rs. 2 Lacs towards interest, compensation, litigation expenses, in addition the claim amount already paid to him. Similarly reliance was also placed on the judgment of Honble Supreme Court in General Manager North East Frontier Railway Vs. Sachindra Nath Sen, being Civil Appeal No 1839 of 1969 decided on 22.08.1969 wherein despite the provision Rule 148(3) and 149(3) of Indian Railway Establishment Code having been held invalid by the Hon‘ble Supreme Court, vide judgment dated 05.12.1963, the Railway Board declined to set aside termination on ground, that vide letter dated 07.12.1964 it was clarified by the Railway Board that the claim for reinstatement of the ex employees, whose services were terminated in terms of Rules 148/149 within a period of six years prior to 05.12.1963, and whose representation is pending is only to be considered, while the petitioner therein had been terminated on 02.12.1957, and Hon‘ble Supreme Court interfered therein. Reliance was then placed on the judgment of Hon‘ble the Supreme Court in Union of India Vs Madras Telephone SC and ST Social Welfare Association, being Civil Appeal No 4339 of 1995 decided on 28.09.2006, again holding that when in the earlier judgment in Parmanands case and subsequent similar cases, promotions were protected because of subsequent different interpretation given to the rule, once promotion is protected by a judgment of the court, seniority is consequence of it, and is to be protected irrespective of the fact as to whether they were before the court or not, and relief cannot be rejected on ground of delay. Then he also relied upon one more judgment of Hon‘ble the Supreme Court in Union of India Vs. CS Sidhu, being Civil Appeal No 4474 of 2005 decided on 31.03.2010, wherein Hon‘ble Supreme Court directed to count the entire period of service from 22.06.1968 to 23.06.1978, as qualifying Commissioned service, to be reckoned for disability pension in accordance with pension scales as on 23.6.1978, and directed to give all benefits flowing therefrom, alongwith interest @ 8% per annum.

On the other hand, submissions were made on the side of respondents to the effect that the present petitions are barred by time and, therefore, need not be entertained. Then, elaborating the arguments, when the arguments were tried to be made on the aspect as to what is the scope of Jai Narayan Jakhars judgment, and as to whether the present petitioners are covered thereby or not, though arguments were not allowed to be made, for the reason that we are not concerned with the controversy as to what is the scope of the judgment in Jai Narayan Jakhars case, as in view of the judgments rendered even thereafter, being Lachhmi Devis case, Bhim Singhs case and Dharam Pals case and many more, that the claim raised by the present petitioners is covered by Jai Narayan Jakhars case. It was reiterated to the learned counsel for the respondents that the petitioners base their claim in this bunch of matters also only on the basis that the report of the Anomaly Committee which removed anomaly with effect from 10.10.1997, should be given with effect from 01.01.1996 instead of 10.10.1997. Then the learned counsel for the respondents referred to the letter dated 08.03.2010 (quoted above) and submitted, that letter clearly provides that no arrears shall be payable prior to 01.07.2009, and that letter, obviously, is not under challenge, except that in one of the matters, in a passing way, a prayer has been made for setting aside this letter dated 08.03.2010 also, without comprehending as to what are the consequences of, or what will be the consequences of setting aside the letter dated 08.03.2010. It was then submitted that in Jai Narayan Jakhars case, interest and arrears were not granted, and that in any of the aforesaid judgments, the letter dated 08.03.2010 was not brought to the notice of the Court.

True it is that in Jai Narayan Jakhars case interest was not granted and there is nothing to show that arrears were not granted, and at the same time it is also true that in any of these judgments, letter dated 08.03.2010 was not brought to the notice of the Court.

Learned counsel for the respondents then relied upon the judgment of Hon‘ble the Supreme Court in Col B.J. Akkara Vs.Union of India, reported in 2006 (11) SCC 709, specially Paras 20 and 25 thereof to contend, that simply because earlier judgments rendered were not challenged by the Union of India, it does not operate as estoppel. Then, an argument was sought to be raised that if some benefits are wrongly given to some persons, then others cannot claim the same benefits on the ground of discrimination, as that would tantamount to practicing negative discrimination, which is not permissible. On this proposition also, there is no dispute.

Then coming to the precise question of limitation, learned counsel for the respondents submitted, that earlier by virtue of Articles 158 and 138, the limitation was three years. However, now by virtue of the provisions of Section 22, the period of limitation has been provided to be six months, which is to be computed from 08.03.2010, or at the most latest from 14.01.2011. Relying upon the judgment of Hon‘ble the Supreme Court reported in AIR 1960 Supreme Court 335, it was sought to be contended that successive denials does not give rise to fresh period of limitation, and the principle recognized by this Tribunal in the bunch of cases led by OA No. 1370 of 2011, decided on 22.12.2011, Labh Singh Vs. Union of India, was also relied upon. Col. Jaswal relied upon a judgment of Delhi High Court dated 08.02.2008 in bunch of cases led by Baldev Singh and others Vs. Union of India, and produced a computer printed copy thereof, which does not give the case number etc. thereof. However, at this place we may immediately observe that that judgment cannot be said to be holding good, in view of the subsequent judgment of Hon‘ble the Supreme Court in K.J.S.Butters case (supra).

Then replying the arguments made on the side of the petitioners, Mr. Bansal read to us the provisions of Sections 21, 22, Section 3(b), Section 14(2) and Section 3(o) of the Armed Forces Tribunal Act. He also read the provisions of Section 21 and submitted that Section 22 comprehends limitation to be applicable to an application, Section 3(b) was read to us to show that it defines “application”, to mean an application made under Section 14(2) of the Act. Then Section 14(2) was read to show, that there-under a person aggrieved by an order pertaining to any “service matter” may make an application to the Tribunal, the section 3(o) was read to show the definition of “Service Matter”. Then Section 21 was read to show that the provision contemplates requirement of availing alternative remedy, not only under Army Act, Navy Act or Air Force Act, but also under the respective rules and regulations made there-under, and submitted that the pension matters, firstly, are covered by the definition of “service matter”, and secondly the pension regulations have been framed under the different relevant Acts being Army Act, Air Force Act and Navy Act, and alternatively it was also submitted that if the provisions of Section 21 and 22 are not applicable, then as a matter of fact, all these O.As are also not maintainable.

Thus, it was submitted that the limitation for filing of O.A before this Tribunal is, as per the provisions of Section 22 of the Act.

Different counsels on both the sides cited various judgments before us, including those referred to above, and gave photo stat copies thereof, which we now propose to deal with, one by one.

To start with, we take up the judgment of Punjab and Haryana High Court, being in Gurdeep Singh Vs. Union of India, reported in 1997(3) SCT 414. This relates to the powers of the Pension Sanctioning Authority to interfere in the opinion of the competent medical authority, and as to how the question of attributability or aggravation is to be considered. The claim petition had been dismissed. Thus this judgment has no bearing on the controversy in hand.

The next judgment relied upon is of the Principal Bench dated 02.04.2012 in O.A. No. 640 of 2010, Dalip Singh Vs. Union of India. Of course, in this case arrears of service element were given from 01.01.1973, but then, a look at the judgment shows, that this judgment only followed the judgment of Hon‘ble the Supreme Court dated 22.02.2012 passed in Civil Appeal no. 2942 of 2009, Union of India Vs. Hoshiar Singh, and it may recapitulated that it was on 22.02.2012 that the Government of India had issued a letter granting service element to all pre-01.01.1973 retirees, irrespective of the length of service put in by them, and with effect from 01.01.1973. As such, this judgment does not affect the cases in hand either ways on the aspect of limitation.

The next judgment relied upon is in State of Orissa Vs. Arun Kumar Patnaik, reported in AIR 1976 SC 1639. It would suffice to say that, that judgment is on altogether different aspect(s), about entitlement to regularization. Of course, in Para 14 it was observed, that the writ petitions had been filed after long delay, and the contention of the State Government to dismiss the petitions on the ground of laches was not countenanced by upholding that Krishna Murti‘s appointment was Gazetted on 14.03.1962 and on 15.11.1968, they were all confirmed as Assistant Engineers by common Gazette notification, and till May 29, 1973, according to the Government, the petitioners did not do anything except filing representations. However, Hon‘ble the Supreme Court expressed its concern, that extra ordinary should have been exercised in such an abject disregard of consequences, and in favour of persons who were unmindful of their so called rights for many long years. Thus, so far abstract principle is concerned, in a way to the extent the judgment supports the petitioners. However, the fact also does remain that the predominant consideration which appears to have worked with Hon‘ble the Supreme Court was, that the persons were wholly unmindful of their rights for many long years, and on merits they were found to be suffering from the vice of discrimination.

Then we take up the judgment in C. Mohammad Unus Vs. Unnissa and others reported in AIR 1961 SC 808. In that case, the question of limitation was considered for the purpose of a civil suit, and dealing with Article 120 of the Limitation Act, it was held, that in a suit for declaration with a right of injunction against the defendant, starting point of limitation was taken to be the date on which the right to sue accrues on infringement, or threat of infringement of the right. It was held that until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right, the period of limitation would not start running against the plaintiff. In our view there is no dispute on the legal proposition. This aspect has already been followed by this bench in Labh Singh‘s case (Supra)

The judgment of Hon‘ble the Supreme Court in Bala Krishan Saval Ram Pujari Waghmare Vs. Dhyaneshwar Maharaj Sansthan reported in AIR 1959 SC 798 was relied upon to show as to what constitutes a continuing wrong, and on reading of that judgment we find, that therein distinction was drawn between a continuing wrong and continuing effect of the wrong. When injury caused by wrongful act continues, then the act was held to be constituting a continuing wrong; and when resulting injury is complete then and there, it cannot be said to be a continuing wrong, so as to attract Section 22 of the Limitation Act. On this proposition, there is no dispute, apart from the fact, that in the present case, the parties are not at issue, on the aspect of the claim of the petitioners, to be constituting a continuing wrong, hence we need not detain ourselves on this judgment.

The judgment of Division Bench of Delhi High Court in K.K. Dheer Vs. Union of India, reported in 2006(135) DLT 300, has been relied upon, wherein it has been held, that if subsequent representation is decided on merits, it gives rise to fresh cause of action, as once the Government re-considered the case on merits, instead of rejecting the representation on the ground of delay, or being barred by prior decision, the plea of limitation does not arise. Again, this aspect is not involved in the present case, therefore, we need not detain ourselves, on this issue.

Then judgment of Hon‘ble the Supreme Court in M.R. Gupta Vs. Union of india and others reported in AIR 1996 SC 669 has been relied upon. In our view also, this judgment has a very material bearing on the controversy, and we better like to quote Paras No.5 and 8 thereof, which read as under:-

“5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant‘s grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant‘s claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc to disentitle him to those reliefs, the pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.”

“8. For the aforesaid reasons, this appeal has to be allowed. We make it clear that the merits of the appellants claim have to be examined and the only point concluded by this decision is the one decided above. The question of limitation with regard to the consequential and other reliefs including the arrears, if any, has to be considered and decided in accordance with law in due course by the Tribunal. The matter is remitted to the Tribunal for consideration of the application and its decision afresh on merits in accordance with law.”

Then another judgment of Hon‘ble the Supreme Court in Shiv Dass Vs. Union of India reported in 2007(9) SCC 274, has been relied upon, wherein also the aspect of limitation was considered, and arrears were ordered to be restricted to three years. We may observe here that both these judgments have been dealt with rather have been followed by us, after discussing at length, in Labh Singhs case (supra), to which we shall advert in the later part of the judgment.

Another judgment relied upon is in Union of India Vs. Tarsem Singh, reported in 2008(8) SCC 648. In this case also, arrears were restricted to three years, and this judgment has also been dealt with in detail, and followed by us in Labh Singhs case (supra), and, therefore, we need not detain ourselves on this judgment.

Then another judgment relied upon is of Single Bench of Delhi High Court in Dr. Shakuntla Gupta Vs. Municipal Corporation of Delhi and others, reported in 2004 (112) DLT 797, which holds that right to pension is a continuing right, and never becomes stale. Since we have already dealt with the aspect of right to pension being a continuing right, and have dealt with it in detail in Labh Singhs case (supra), we are not inclined to follow the view taken in Dr. Shakuntla Guptas case, more so in view of the judgments of Hon‘ble the Supreme Court in M.R. Gupta‘s case, Shiv Dass‘ case and Tarsem Singh‘s case.

Then, a Single Bench judgment of Allahabad High Court in Kunwar Singh Kannaujiya Vs. State of U.P, reported in 2007(4) SCT 14, has been relied upon. However, in view of the judgment in Labh Singhs case (supra), we need not detain ourselves on this judgment, so also on the Single Bench judgment of Punjab and Haryana High Court in Sohan Singh Vs. State of Punjab, reported in 2006(4) SCT 452, and other judgments of the High Courts.

Now we take up the judgment of Hon‘ble the Supreme Court in Kameshwar Prasad Singhs case (supra). It would suffice to say that, that was a case on an entirely different aspect. In that case, the petitioner concerned being Kameshwar Prasad Singh, had filed writ petition for direction to claim seniority over Brij Bihari Prasad Singh, claiming to have been appointed in 1966. On 17th and 18th of August, 1978, both of them were declared as fit for officiating promotion on the higher post of Inspector of Police, and were promoted, however, the petitioner could not join till 31.03.1981. Both of them were confirmed on 01.04.1982, and in the seniority list published on 18.05.1988, Kameshwar Prasad Singh was shown senior. Then writ petition was filed by Brij Bihari Prasad Singh without impleading Kameshwar Prasad Singh as party. That writ was allowed on 03.07.1997. It is in that background, that Hon‘ble the Supreme Court was dealing with the aspect of condoning delay in the filing SLP before Hon‘ble the Supreme Court, and was not dealing with the aspect of limitation for filing a writ petition, or the O.A. like the present ones, or a civil suit in the Civil Court.

Then we take up the judgment of the Regional Bench of Jaipur in Capt. K.L.Bhatia Vs. Union of India, decided on 05.03.2010. In that case, the Tribunal was only deciding the aspect of entitlement to broad-banding, and did not address itself, nor was it called upon to address on the aspect of limitation, or on the aspect of restricting the arrears, and, therefore, that judgment is of no help to us in deciding the controversy involved in the present case.

Then coming to the judgment of Principal Bench dated 07.10.2010 in Umed Singh Vs. Union of India, again, the Principal Bench interfered with the assessment of disability made by the Re-Survey Medical Board on 11.03.2003 and pertained to 2006, and found that the Re-survey was not warranted, and the petitioner therein was held entitled to the benefit of broad-banding. Thus this judgment also has no bearing on the controversy in hand.

Then, we take up the judgment of Hon‘ble the Supreme Court in K.T. Veerappa Vs. State of Karnataka, being Civil Appeals No. 1216-1256 of 2003, decided on 12.04.2006. This judgment again can be said to be having no bearing on the controversy in hand, for the simple reason, that Hon‘ble the Supreme Court was more concerned with the aspect of, confining the benefits of the judgment to the persons who had filed litigation before the Court, and interfered with the refusal to give benefit to other similarly situate persons. Suffice it to say, that in the spirit of this judgment, general directions were already given by this Bench in Bhim Singhs case. Then, the judgment of Hon‘ble the Supreme Court in Haryana State Minor Irrigation and Tube Wells Corporation Vs. G.S. Uppal, appeal Civil No. 9244 of 2003 decided on 16.04.2008, also need not detain us for the same reason, apart from the fact, that predominantly in that judgment Hon‘ble the Supreme Court held, that financial constraints cannot be a ground to practice discrimination.

So far as the judgment of Punjab and Haryana High Court in Nirmaljit Singh Vs. Punjab State Electricity Board, being CWP No. 1070 of 2007, decided on 11.12.2007, is concerned, suffice it to say, that in Bhim Singhs case (supra), we have already given a general direction.

Then we take up the judgment of MadrasHigh court in Dharam Rajs case, Supra wherein the Division Bench of Madras High Court interfered with the order of the Central Administrative Tribunal, restricting the arrears for a period of one year from the date of filing of the application. Seemingly, from the head note that judgment does support the case of the petitioners, but on a bare reading of that judgment the things are revealed otherwise, inasmuch as, it transpires that the Tribunal had considered the decision of Honble the Supreme Court in K.C. Sharma V/S U.O.I. reported in A.I.R. 1997 S.C. 3588, and the Full Bench decision of the Tribunal dt.16.12.1993 which was subsequently affirmed, and following the above orders the OAs were allowed. The Tribunal restricted the arrear to one year, and the Madras High Court noticed that it is not in dispute that no such restriction was imposed in other cases of persons who were similarly situate, inasmuch as the Tribunal itself had condoned the delay, and applied the law laid down by the Supreme Court, as well as the earlier orders of the Tribunal, and therefore the direction to restrict the arrears was set side. Obviously the judgment is distinguishable on facts.

Then the judgment of Delhi High Court in Kailash Chand Sharma V/S U.O.I is again on different factual aspects and involves a different question of law.

Then so far judgment of Hon‘ble the Supreme Court in S.K. Mastan Bees case (Supra) is concerned, that had already been discussed in detail by us in the judgment in Labh Singhs case, obviously we shall deal with Labh Singhs judgment in the later part of this judgment.

Then coming to the judgment in S.R. Bhanrale V/S U.O.I reported in AIR 1997 S.C. 27, in this case we were tried to be impressed about the fact that the amounts of retiral benefits including encashment of earned leave, increment arrears, special pay dues L.T.C. etc. remained unsettled, and were wrongly withheld detained for more than twelve years, however as we get from a reading of the judgment, shows that petitioner therein was superannuated on 31.07.1984 and he was paid the amount of pension on 11.09.1984. The petitioner thereafter served a legal notice, and filed O.A. before Central Administrative Tribunal in 1987, where the claim remained un-rebutted, but then the tribunal rejected the claim, and it awarded a lump sum of Rs. 200/- by way of interest on delayed payment of DCRG and GPF, as full compensation, which DCRG and GPF was paid to him on 10.12.1984, and 01.02.1985 respectively. Thus the Tribunal had negatived the claim on merits, and the question of limitation was not involved. The order of the tribunal was precisely under challenge before Hon‘ble the Supreme Court, and was set aside. Thus this judgment does not help the cause of the petitioners.

So far the judgment in Maharaj Krishna Bhatt V/S State of Jammu and Kashmir is concerned, that also in our view does not have any bearing on the question involved in the case before us, as in that judgment similar relief was given to similarly situate persons.

Then we come to the judgment in General Manager North East Frontier Railway V/S Sachindra Nath Sen. In that case again the controversy involved was different, inasmuch as in that case the provisions of Rule 148(3) and 149(3) of the Indian Railway Establishment Code were held by Hon‘ble the Supreme Court to be invalid. This was done by Hon‘ble Supreme Court vide judgment dt. 05.12.1963. The employee in that case made representation thereafter in 1964, to consider his case of termination, in the light of the law declared by Hon‘ble the Supreme Court, and that was denied on the ground, that after judgment of the Hon‘ble the Supreme Court another letter had been issued by the Railways to the effect, that only those cases would be considered who had been terminated in terms of Rule 148/149 within a period of six years prior to the date of judgment of the Hon‘ble Supreme Court, and whose representation is still pending. Hon‘ble the Supreme Court struck down this stipulation of 6 years. Thus this judgment also does not have any material bearing on the controversy in hand.

Then coming to the judgment of Hon‘ble Supreme Court in U.O.I. V/S Madras Telephone S.C. and S.T. Social Welfare Association, that judgment again is entirely on a different aspect about protection of seniority likely to be disturbed consequent upon adjudication of some litigation by the court.

Then we take up the judgment of Hon‘ble the Supreme Court in U.O.I. V/S C.S. Siddhu, Civil Appeal No. 4474 of 2005 decided on 31.03.2010, wherein Hon‘ble the Supreme Court directed to count the entire period of full pay Commissioned Service from 22.06.1968 to 23.06.1978 as qualifying service, and to calculate disability pension in accordance with the pension scales as on 23.06.1978 and give all other benefits enuring therefrom. It is not clear from the judgment, as to when the individual in that case was discharged, and when did he initiate litigation, before Punjab and Haryana High Court, and in any case Hon‘ble the Supreme Court has not gone into the aspect, nor was it called upon to go into the aspect, which is precisely in controversy in this bunch of cases.

Then so far the judgment of Jaipur Regional bench of this Tribunal dated 01.09.2010 in T.A. No. 42 of 2010 Smt. Jyana Devi V/S U.O.I. is concerned all that has been said in that judgment is that claim regarding pension is a recurring cause of action. And therefore the objection of limitation was turned down, but then the aspect as to whether the arrears are required to be restricted to any period of time was not gone into. Similar is the position of the judgment of Principal Bench dated 24.11.2011 in O.A. No. 569 of 2010 Jai Bhagwan Vs. Union of India.

Now we take up the judgment of Hon‘ble the Supreme Court in Civil Appeal No. 4370 of 2006, Bharat Sanchar Nigam Limited Vs. Ghansham Dass and others, decided on 17.02.2011. In that case a circular issued by the department did came to be challenged, and relief was granted expressly directing that it is given only to the effected parties who approached the Court, and fence-sitters who did not approach the Court, cannot claim such relief should be extended to them, thereby upsetting or interfering with the rights, which had accrued to others, and in that case, since the respondents (employees) preferred to sleep over their rights, they were held to be not entitled to the reliefs, as claimed. Firstly, thereby on the aspect of delay, the relief was not granted, and secondly, granting of relief would have resulted into a big unending upheaval in the seniority of the employees.

Then, we take up another judgment of Hon‘ble the Supreme Court dated 08.03.2007, passed in Civil Appeal No. 1214 of 2007, New Delhi Municipal Corporation Vs. Paan Singh and others. There the pay scales of Meter Readers, as also Shift In-charge, were in controversy, inasmuch as the posts of Meter Readers were to be filled up by direct recruitment. However, 17 senior-most Shift In-charge opted to become Meter Readers, and as they were working in the higher scale of pay, their pay was protected by specific order dated 10.02.1982. Hon‘ble the Supreme Court referring to and relying upon the judgments in Chairman, U.P. Jal Nigam Vs. Jaswant Singh, 2006 (12) SCALE 347; Shiv Dasss case (supra) and various other judgments held, that representations would not be adequate explanation to take care of the delay and though in case of pension the cause of action actually continues from month to month, but that, however, cannot be a ground to over-look delay in filing petitions. It was held that it would depend on facts of each case, and if the petition is filed beyond reasonable period, say three years, normally the Court would reject the same, or restrict the relief, which could be granted to reasonable period of about three years. Accordingly, the judgment of the High Court was interfered with; whereby the High Court had granted relief to the employees.

Then, so far, the judgment of Hon‘ble the Supreme Court dated 11.08.2005 in Civil Appeal No. 129 of 2003, State of Punjab Vs. Amar Nath Goyal is concerned, thereby a bunch of cases was decided, and in that case also, the employees, who had retired prior to 01.04.1995, applied for getting additional benefit of increased quantum of DCRG, their claims were rejected in some cases, and in other cases, the Central Administrative Tribunal and the High Court took the view that such of the employees, who had retired between 01.07.1993 and 31.03.1995, were also eligible for the afore-said benefit. These findings were challenged before Hon‘ble the Supreme Court by both the sides, and the cut-off date was up-held by Hon‘ble the Supreme Court, finding it to be on a very valid ground, and was found to be neither arbitrary, nor irrational, nor offending Article 14. Thus, in a way, this judgment is also not relevant for the controversy in hand.

Similar is the position of the judgment of Hon‘ble the Supreme Court in Hari Ram Vs. State of U.P., decided on 22.07.1998, where again validity of cut-off date was up-held.

So far, the judgment of Principal Bench dated 26.07.2012 in O.A. No. 94 of 2012, Ex. Naik Parmanand Singh Vs. Union of India, is concerned, therein prayer was made for issuing directions to grant revised rates of service pension with effect from 30.06.1996, till date, as per judgment in Jai Narayan Jakhars case (supra), with consequential benefits and arrears. The Principal Bench, relying upon the provisions of Section 22 of the Armed Forces Tribunal Act held, that the Tribunal cannot entertain the petition beyond six months, and, therefore, declined to issue the directions as prayed for. However, then relying upon the judgments of Hon‘ble the Supreme Court in K.C. Sharma Vs. Union of India, reported in 1997 (6) SCC 721 and Bombay Telephone Canteen Employees Association Vs. Union of India, reported in 1997 (6) SCC 723, it was directed that since the petitioners had made representations for revision of service pension on 09.07.2010, followed with reminder dated 28.03.2011, which had not been disposed of, a direction was given to dispose of the representation within a time frame. Thus this judgment rather in a way supports the contention of the respondents.

Col. B.J. Akkaras judgment again is regarding the aspect of entitlement of Government to fix cut-off date, and examines the aspect as to whether in the particular case, the cut-off date fixed, was valid or not. As observed above, we are not concerned with that controversy in the present case, in view of the fact that the judgment in Jai Narayan Jakhars case (supra) has become final.

Col. Jaswal also relied upon the judgment of Hon‘ble the Supreme Court in Subrata Sen Vs. Union of India, reported in AIR 2001 SC 3634. In our view, it would suffice to say that, that is a judgment on the aspect of up-holding the power of the Government to fix a cut-off date in certain circumstances, which, in that case, was found to be not hit by the principles propounded by Hon‘ble the Supreme Court in D.S. Nakaras case. Since that is not the controversy in the present case, we need not detain ourselves on that.

This is all regarding the judgments cited on either side.

Taking up the submission made on the side of the petitioners, about the difference in the language in Section 21 of the Administrative Tribunals Act, 1985, and Section 22 of the Armed Forces Tribunal Act, on the basis of which it was sought to be contended that under Section 21(2)(b) of the Administrative Tribunals Act an outer cap has been prescribed, which is absent in Section 22 of the Armed Forces Tribunal Act. In order to avoid all confusion, we may better reproduce the two provisions sequentially. Section 21 of the Administrative Tribunals Act reads as under:-

“21. Limitation – (1) A Tribunal shall not admit an application –

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and the period of six months had expired thereafter without such final order having been made within one year from the date of expiry of the said period of six months;

(2) Notwithstanding anything contained in sub section (1) where –

(a) where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which jurisdiction, powers and authority of the Tribunal became exercisable under this Act, in respect of the matter to which such order relates; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court.

The application shall be entertained by the Tribunal if it is made within the period referred to in Clause (a), or, as the case may be, Clause (b), of sub-section (1) of within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of sub-section (1), or as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.”

While, Section 22 of the Armed Forces Tribunal Act reads as under:-

“22. Limitation – (1) The Tribunal shall not admit an application-

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 21 has been made unless the application is made within six months from the date on which such final order has been made;

(b) in a case where a petition or a representation such as is mentioned in clause (b) of sub-section (2) of section 21 has been made and the period of six months has expired thereafter without such final order having been made;

(c) in a case where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which jurisdiction, powers and authority of the Tribunal became exercisable under this Act, in respect of the matter to which such order relates and no proceedings for the redressal of such grievance had been commenced before the said date before the High Court.

(2) Notwithstanding anything contained in sub-section (1), the Tribunal may admit an application after the period of six months referred to in clause (a) or clause (b) of sub-section (1), as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal is satisfied that the applicant had sufficient cause for not making the application within such period.”

A collective reading of the two provisions, in our humble view, makes it clear that there is literally no difference between the language of the two sections, except that in the Administrative Tribunals Act the limitation prescribed is one year, while in the Armed Forces Tribunal Act the limitation prescribed is six months. In that view of the matter, that objection also cannot be up-held.

After noticing the respective submissions of the parties; and after reviewing the various judgments cited by learned counsel for the either side; having considered all aspects of the matter, now we proceed to discuss the core question.

A collective reading of the provisions of Section 22, Section 21, Section 14(2) and sub-sections (b) and (o) of Section 3, there is no manner of doubt that the present O.As have been filed under Section 14(2), being raising grievance claiming to be service matters, and to such applications, the provisions of Section 21 and Section 22 very much apply.

All said and done, the judgments cited on either side, mostly being judgments of Hon‘ble the Supreme Court, were matters arising out of the writ petitions, for which no period of limitation as such, is prescribed, except those matters which arose from out of the orders of the Central Administrative Tribunal, but in those cases, the aspect of limitation in filing the O.A before the Tribunal as such, was not gone into.

Limitation Act, as such, inherently has Legislative Policy and a Public Policy, and Section 3 thereof is couched in a negative form, casting a mandate on the Court to dismiss the suit or application, if it is not filed within the time prescribed by the Limitation Act, even if no objection in that regard is raised by the side opposite. For ready reference, we may reproduce Section 3 of the Limitation Act, which reads as under:-

“3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act---

(a) a suit is instituted—

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim is made in court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.”

Then a perusal of the Schedule appended to the Limitation Act shows, that it does not prescribe any limitation for filing any O.A before the Armed Forces Tribunal, or for that matter, Central Administrative Tribunal, and till enactment of the two Acts of 1985 and 2007 respectively, the matter rested in the realm of a Schedule to the Limitation Act. It is a different story, that till enactment of these two limitations, mostly the matters were litigated by way of writ petitions, and as observed above, for filing writ petition(s) as such, no specific period of limitation was prescribed.

In that view of the matter, we have to read Section 29(2) of the Limitation Act, which reads as under:-

“29. Savings. --- (1) xx xx xx

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

(3) xx xx xx

(4) xx xx xx”

A reading of this Section 29(2) does show that by its own force it bodily incorporates the provisions of Section 21 of the Administrative Tribunal Act, so also Section 22 of the Armed Forces Tribunal Act in the Schedule, and deems the limitation prescribed in the aforesaid two provisions to be the limitation prescribed by the Limitation Act, as such. That being the position, the matter has to be examined from the stand point of Limitation Act. Obviously, the Limitation Act also does contain Section 22, which provides for cases where there is a continuing cause of action.

In that view of the matter, we may first of all, straightway, come to the judgment of this Tribunal in Labh Singhs case (supra), where the aspect of starting point of limitation was gone into, thread-bare. The controversy in that case was about entitlement to the benefit of broad-banding, in view of Government of India letters dated 31.01.2001 and 19.02.2010, and the various judgments rendered by this Tribunal being in Balbir Singh Vs. Union of India and others, OA No. 516 of 2010, decided on 31.3.2011, Jai Singhs case and the judgment of Hon‘ble the Supreme Court passed in K.J.S. Bhuttar‘s case. The judgments of Hon‘ble the Supreme Court in S.K. Mastan Bee Vs. General Manager South-Western Raiways, reported in 2003 (1) SCC 184, and Savitri Devi Mehta Vs. Union of India, reported in 2005 (10) SCC 325 were considered, so also the judgments of Hon‘ble the Supreme Court in Shiv Dasss case (supra) and Tarsem Singhs case (supra) were also considered, where Hon‘ble Supreme Court laid down the principle of continuing cause of action, continuing wrong, and continuance of injury. Likewise, the judgment in M.R. Guptas case (supra) was also considered and followed, and it was concluded, that the starting point of limitation was the date, when the controversy was set at rest by Hon‘ble Supreme Court in KJS Bhuttars case (supra) and this Tribunal in Balbir Singhs case (supra). Incidentally both the judgments were rendered on the same date being 31.03.2011 and it was held, that it is on this date, that the respondents came under obligation to give benefit of broad-banding to pre-1996 retirees also, and this was held to be the starting point of cause of action to pre-1996 retirees also. Following that principle, in the present cases, the controversy was adjudicated.

We may recall that the judgment in Jai Narayan Jakhars case (supra) was rendered by the Punjab and Haryana High Court on 14.01.2008. Then Special Leave Petition was filed, challenging it before Hon‘ble the Supreme Court, and Hon‘ble the Supreme Court dismissed that SLP vide judgment dated 22.11.2008, and, therefore, this is required to be taken as a starting point of limitation giving cause of action to the affected individuals whose rights had been recognized judicially and finally by these judgments.

We may at this place also refer to and rely upon the recent judgment of the Principal Bench being dated 17.02.2012 passed in OA No. 55 of 2012, Rakesh Kumar Vs. Union of India. In that case precise objection of delay was taken, inasmuch as the order impugned was passed on 23.04.2004, and claim was regarding disability pension (broad-banding). The petitioner therein filed writ petition before Delhi High Court being CWP No. 3746 of 2000, which was decided on 15.11.2002, whereby, it appears, that a direction was given to decide the representation afresh, which was accordingly decided vide order dated 23.04.2004 by de-novo examining the case of the petitioner therein, and it was found that the disability was neither attributable to nor aggravated by Military service. The Principal Bench referred to and relied upon a recent judgment of Hon‘ble the Supreme Court in the case of D.C.S. Negi Vs. Union of India, being SLP (civil) No. 3709 of 2011, decided on 07.03.2011, wherein judgment of the Central Administrative Tribunal was challenged before Hon‘ble the Supreme Court, and the observations made by Hon‘ble the Supreme Court were quoted in inverted comas by the Principal Bench, which we also gainfully quote and are as under:-

“A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of Page 3 of 6 sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3). In the present, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact an objection of limitation is not raised by the respondent/non applicant is not at all relevant.”

Then relying upon that judgment, it was held by t