Lt Gen (Retd) S.PATTABHIRAMAN]
The applicant in this application, has filed W.P.No.2082 of 2009 before the Honourable High Court, Andhra Pradesh, which has subsequently been transferred to this Tribunal, after the formation of Armed Forces Tribunal under Armed Forces Tribunal Act 2007 and renumbered as T.A.No.116 of 2009.
2. The petitioner Major General G.K.Sahney (Retd) has in the petition challenged the action of the 5th respondent in taking his salary of October, November and December, 1995, falling under the IV Central Pay Commission while calculating the average emoluments notifying the petitioners pension less than 50% of the minimum of revised scale of pay fixed/revised for his Rank with effect from 1.1.1996 in violation of Para 2.1(a) of the Government proceedings No.1(1)/99D (Pen/Services) dated 7.6.1999 (impugned letter), which is operational with effect from 1.1.1996. The petitioner was commissioned in the Army on 18.12.1960 and retired in the Rank of Major General on 31.07.1996. Consequent to modified provisions introduced for grant of pension/family pension in respect of civilians Government servants, the President of India was pleased to decide that with effect from 1.1.1996 the pension of all Armed Forces Pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996 of the rank held at the time of retirement. The petitioner had retired from service on 31.07.1996, much before the impugned circular dated 7.6.1999. As per the directions issued vide Para 2.1(e) of Government letter dated 7.6.1999, the 5th respondent was made responsible to take action to revise pension of post 1.1.1996 retiree cases as per the terms in the said letter. The petitioners pension has not been modified as per the impugned letter nor his representations considered, as a result of which, he had served a legal notice to the respondents on 7.12.2008. On receipt of the notice, the 2nd respondent has modified Para 6.1(b) of Ministry of Defence letter dated 12.11.2008 by substituting:
â6.1(b) Retiring pension to the Commissioned Officers retired/invalided out during 1.1.2006 to 1.9.2008 will also be calculated at 50% of emoluments last drawn or average of reckonable emoluments drawn during the last 10 months whichever is more beneficial. The amount so determined will be the retiring pension for 33 years of reckonable service including weight age as defined in Para 5 of this Ministrys letter No. dated 3.2.1999â¦â.
(This Tribunal would make a note that it relates to VI Central Pay Commission recommendations/implementation instructions). The petitioner would submit that the relevant position with regard to the V Central Pay Commission is Para 2.1(a) of the Government Letter dated 7.6.1999, which reads as :
âCommissioned Officers post and pre 1.1.1996 cases Pension shall continue to be calculated at 50% of the average emoluents in all cases and shall be subject to a minimum of Rs.1275/- per month and a maximum of up to 50% of the highest pay applicable to Armed Forces Personnel, but the full pension in no case shall be less than 50% of the minimum of the revised scale of pay introduced with effect from 1.1.1996 for the rank held by the Commissioned Officer at the time of his/her retirementâ¦.â
Further submitting the definition of âRevised Scaleâ as per Para 2(d) of SAI No.2/S/1998, the petitioner would say â REVISED SCALE, in relation to officers of all Arms and Services including MNS Officers, means the respective pay scale of that rank whether fixed or otherwise specified against each rank in paragraph 3 of this Instructionsâ. The petitioner would say that the 3rd respondent without application of mind and omitting the statutory provision laid down in the Government letter dated 7.6.1999, has fixed his pension even less than the Brigadiers pension, in support of which the petitioner would say that his Pension Pay Order No.M/CORR/ 007705/1999 shows his pension as Rs.9,550/- per month, but one Brigadier A.G.Krishnaiah PPO No.M/CORR/00765/99 shows his pension as Rs.9,775/- per month. Petitioners pay was revised and fixed at Rs.19,900/- + Rs.100/- with effect from 1.1.1996 as received from 6th respondent vide letter No.Arch/24/104536 dated 27.01.2009, whereas his pension ought to have been fixed at Rs.10,000/- per month, which is 50% of revised pay ie. Rs.19,900/- + Rs.100/- = Rs.20,000/-, but due to the negligence of 5th respondent his pension was fixed at Rs.9,550/- per month. The petitioner would submit that the 5th respondent while calculating 50% of the average emoluments in terms of the impugned letter have exceeded their jurisdiction and gone into 4th Central Pay Commission to take the salary drawn by the petitioner in the months of October, November and December 1995 to cover the salary drawn in the last 10 months, as he had retired on 31.07.1996. The working of the 5th respondent is shown below_
(a)Basic Pay for Oct, Nov and Dec 95 @ Rs.13610/- + Rs.100 pm x 3 months = Rs.41,130/-
(b)Basic Pay for Jan to Jul 96 @ Rs.19,900/- + Rs.100/- pm X 7 = Rs.1,40,000/-
(c)Total of (a) + (b) = Rs.1,81,130/-
(d)Average emoluments ie., Rs.1,81,130/-
divided by 10 = Rs.18,143/- pm
(e)50% of 16(d) above = Rs.9071.50 pm
(f)Stepped upto = Rs.9,550/- pm
The petitioner would therefore submit that the action of the 5th respondent taking his salary of October, November and December 1995, while calculating the average emoluments, notifying his pension less than 50% of minimum of revised scale of pay fixed for his rank with effect from 1.1.1996 is in violation of the impugned letter, therefore, illegal and arbitrary and is challenged. The petitioner would also make a reference to a settled law that a senior officer shall not be given lesser pension than that being enjoyed by his junior officer [as held in Civil Appeal No.5566 of 2008, between UOI Vs. SPS Vains (retd) and others : SC]
3.In their counter the respondents admitting to basic facts of the case would have the following to say:- The petitioner, who retired on 31.07.1996 and drawing the pension at Rs.3,430/- granted with effect from 1.8.1996 in his favour vide PPO No.003569/96, had his pension revised by CDA (O) Pune under V Central Pay Commission and furnished with the same with amendments as under_
(a) 01.10.1995 to 30.11.1995 - Rs.13,590/-
(b) 01.12.1995 to 31.12.1995 - Rs.13,610/-
(c) 01.01.1996 to 31.07.1996 - Rs.19,900/-.
As per the above pay details Officers pension was revised to Rs.9,015/- vide PPO No.M/Corr/008381/98. It was further revised to Rs.9,200/- vide PPO No.M/Corr/007094/99 and once again revised to Rs.9,550/- vide PPO No.M/Corr/7705/99 under the provision of the impugned letter. According to Para 2.1(a) of the impugned letter, âPension shall continue to be calculated at 50% of the average emoluments in all case and shall be subject to a minimum of Rs.1,275/- and a maximum of upto 50% of the highest pay applicable to armed forces personnel, but the full pension in no case shall be less than 50% of the minimum of the revised scale of pay introduced with effect from 1.1.1996 for the rank last held by the commissioned officer at the time of his/her retirementâ. Since the rank last held by the Officer/petitioner herein was Major General and the pay scale introduced with effect from 1.1.1996 for the rank as per Para 3(b) of SAI 2/S/98 is 18400-500-22400, taking into minimum of pay scale as per the impugned letter ie., 18,400/-, the pension worked out to Rs.9,200/-. However, the Government letter dated 03.02.1998 has provided the protection in note under Para 6.1(c) wherein it is stated âThe retiring pension of an officer of rank of Lt Col (TS), Brigadier or Major General and equivalent, shall not be less than the pension which would have been admissible to him/her as a Major, Colonel or a Brigadier and equivalent as the case may be, had he/she not been promoted to the higher rankâ. The pay scale introduced with effect from 1.1.1996 for the rank of Brigadier as per Para 3(a) of SAI 2/S/98 is 16700-450-18050 and a rank pay is Rs.2400/-. The pension taking into account minimum of scale i.e., Rs.16700/- and rank pay of Rs.2400/- has been worked out as Rs.9550/- and was notified vide PPO No.M/Corr/7705/99 as stated above. The revision of pension under Government letter No.39046/Anormalies/AG/PS4 (A and C) 242/A/D (Pen/Sers) dated 31.03.2000 was not beneficial as notified in Corr PPO No.M/Corr/6878/2000. The pension revised vide PPO No.M/Corr/7705/99 is correct and needs no revision. The pensionary benefits of Officers retired on or after 1.1.1996 are governed by Government of India letter No.1(6)/98/D (Pen/Sers) dated 3.2.1998. The details of pension granted and later on revised vide Corr. PPO are given below-
(a)Maj Gen GK Sahney retired on 31.07.1996 and pension @ Rs.3430/- was granted with effect from 1.8.1996 in his favour vide PPO No.M/003569/96.
(b)The CDA (O) Pune revised the pay of the officer under V CPC and furnished same to the office vide amendment No.1 of the LPC CDS as under :-
(i) 1.10.1995 to 30.11.1995 - Rs.13590/-
(ii) 1.12.1995 to 31.12.1995 - Rs.13610/-
(iii)1.1.1996 to 31.07.1996 - Rs.19900/-
As per the above pay details officers pension was revised to Rs.9015/- vide PPO No.M/Corr/008381/98.
(c)The Officers pension was further revised to Rs.9200/- vide PPO No.M/Corr/007094/99.
(d)The pension once again revised to Rs.9550/- vide PPO No.M/Corr/7705/99 under the provision of Govt of India, Ministry of Defence letter No.1(i)/99/D(Pen/Sers) dated 7.6.1999.
The respondents would say that the pensionary benefits of the petitioner were calculated on the basis of the last 10 months emoluments drawn by the Officer, since the petitioner has drawn emoluments for three months at pre revised scale and for last seven months at revised scale under V CPC. Therefore, the Officers pension worked out on the basis of the 10 months basic emoluments was not beneficial, instead the pension under the impugned letter was beneficial and notified in favour of the officer and the same continued to be paid to the petitioner. In comparison Brig AG Krishnaiah drew the last 10 months pay at the revised scale and retired on 30.11.1996, therefore his pension worked out more than that of the petitioner. It is further submitted that the personal pay of Rs.100/- as mentioned in the PPO was not to be included for calculation of pension as the same is not defined as reckonable pension. The provisions of the impugned letter mentioned were strictly applied in the case of the petitioner and his pension has correctly been revised, as such his prayer is to be dismissed.
4.Now the point for determination in this petition is whether the pension fixed for the petitioner as per the impugned letter is sustainable?
5.POINT:- The relevant rule position as contained in Para 2.1(a) of the impugned letter reads as under_
â2.1 Commissioned Officer _ Post and Pre 1.1.1996
cases
Pension shall continue to be calculated at 50% of the average emoluments in all cases and shall be subject to a minimum of Rs.1275/- pm and a maximum of upto 50% of the highest pay applicable to Armed Forces Personnel but the full pension in no case shall be less thatn 50% of the minimum of the revised scale of pay introduced with effect from 1.1.1996 for the rank last held by the Commissioned Officer at the time of his/her retirement. However, such pension shall be the reduced pro-rate, where the pensioner has less than the maximum required service for full pension.â
A deliberate reading of this provision would unmistakably aver to the minimum of the revised scale of pay for the rank of Maj Gen introduced with effect from 1.1.1996 being the lowest for that scale ie., 18,400/-, in his case. Another point which the learned counsel for the petitioner would rely on was the applicability of the average of the 10 months of emoluments for calculation of the pension and in this connection he brought in the reference of the VI CPC; once again the rule position with regard to the calculation of average of last 10 months for pension for all government servants in the case of the V Pay Commission awardees has not changed and the VI CPC ruling which emphasises on the last pay drawn and not on the average of 10 months cannot be applied retrospectively. In the case of the petitioner he has relied on taking for calculation his basic pay with increments and compared it with similarly placed Maj Gen in the V CPC which is against the rule position with regard to the minimum of the scale for the rank taken for fixation of pension. Similarly, the reliance on the last pay drawn based on the VI CPC recommendations is also faulty.
5(a)With regard to the comparison with the pension being received by Brig AG Krishnaiah, this Tribunal would cite the recent judgment repoted in 106 (2008) CLT 794 SC between Union of India and anr Vs. SPS Vains (Retd) and ors. The citation referred to the disparity in pay and pension scales of Major General viz-a-viz Brigadier rank officers and the issue has been settled in favour of the principle of a senior officer getting more pay and pension. Brigadier Krishnaiah retired on 1.2.1996 whereas the impugned order was passed on 1.1.1996 and his pay was initially fixed as Rs.18,900/- in the scale of pay of Rs.18,400-500-22400 which was refixed at Rs.19900 + Rs.100 (PP) with reference to IC- 4060A Maj. Gen H.S.T.Gang A/c.No.1077783, whereas the Brig AG Krishaiah was drawing a pay of Rs.17150 + 2400 (Rank Pay) on the date of his retirement, which is less than the pay drawn by the petitioner. That is why, Brig AG Krishnaiahs pension was fixed higher than the pension of the petitioner. Point is answered accordingly.
6. In fine, the petition does not deserve any merit and the same is dismissed, but without costs.