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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A.No.72 of 2013

Friday, the 14th day of February 2014

THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH

(MEMBER - JUDICIAL) AND

THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)

Chellasamy Rank: Hony NB SUB

No.1043072 N

P.No.14, D.No.1/279-A2, Anbu Nagar

Malligai Street Madurai, Tamil Nadu. … Applicant

By Legal Practitioner:

Mr. J. Saravana Kumar

vs.

1. Union of India,

Rep. by its Secretary Ministry of Defence,

South Block, New Delhi.

2. The Chief of Army Staff

Integrated Headquarters Ministry of Defence (Army)

New Delhi-110 011.

3. The Secretary Dept. of Ex-Servicemen Welfare

Ministry of Defence, GOI 5A, South Block

New Delhi-110 011.

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4. Principal Controller of Defence

Accounts (Pensions) Office of the PCDA (Pensions)

Draupadi Ghat Allahabad-211 014.

5. Officer in Charge of Records

Records, Armoured Corps Ahmednagar. … Respondents

By Mr. B.Shanthakumar, SPC

ORDER

(Order of the Tribunal made by

Hon’ble Justice V. Periya Karuppiah, Member (Judicial)

1. This application has been filed by the applicant for the grant of

relief to call for the records including Letter dated 27.03.2012 in File

No.G2/II/Misc/2012 on the file of PCDA (P), Allahabad and to grant of

pension benefits as per the recommendations of VI Central Pay

Commission to the pre-1.1.2006 retirees and consequently to direct the

respondents to extend the benefits of the Letter dated 12.06.2009 to the

applicant who retired prior to 01.01.2006.

2. The factual matrix of the case of applicant as contained in the

application would be as follows:

The applicant joined the Indian Army as Sepoy on 20.08.1968 and

he was discharged in the rank of Havildar after completing 24 years of

unblemished record. Accordingly, he retired on 31.08.1992 and after his

retirement, he was conferred with the rank of Honorary Naib Subedar

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and was receiving pension on par with Honorary Naib Subedar. The

applicant was also issued Pension Payment Order No.S/019084/92 &

S/CORR/066395/93 by PCDA (Pensions), Allahabad. After retirement,

the applicant enrolled himself as a member of the Tamil Nadu Ex-

Services League bearing Registration No.116/2010, an association duly

registered under the Registration of Societies Act, 1978, for the welfare

of the retired persons from Armed Forces.

3. As per the V Central Pay Commission, the pay of the Honorary Naib

Subedars was fixed at 50% of the minimum pay of Honorary Naib

Subedars, as per the letter of Government of India, Ministry of Defence,

dated 07.06.1999 irrespective of period of retirement. Accordingly, the

recommendations of the V Central Pay Commission were enforced from

01.01.1996 and the applicant was also given the benefit. The VI Central

Pay Commission had also recommended certain benefits to the retired

Honorary Naib Subedars and it was implemented by the Government of

India through its letter dated 12.06.2009 in No.1(8)/2008-F(Pen/Policy).

The 5th respondent however interpreted that the benefit will go only to

the Honorary Naib Subedar who retired on or after 01.01.2006 and the

said benefit would not be available to pre-01.01.2006 retirees. The said

interpretation is not correct in terms of paragraph-2 of the said letter

which runs as follows:

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“2. This letter takes effect from 1st January, 2006.”

Such an interpretation is contrary to the recommendations made by VI

Central Pay Commission and is therefore not sustainable. The

requisitions made by the applicant and Ex-Service League Members were

rejected by the 4th respondent and in consequence, the 5th respondent

wrote a letter dated 27.03.2012 that the fixation as provided in Para-5 of

the Notification, dated 11.11.2008 has been clarified through letter dated

8.3.2010 by inserting Para 5.1.62 of VI Pay Commission recommendation

and also through the letter of Ministry of Defence, dated 12.06.2009. As

per the said interpretation, the benefit is applicable only to the post-

1.1.2006 retirees and not the pre-retirees, which is incorrect. The said

interpretation of the 5th respondent with regard to the benefits given

under letter of first respondent dated 12.06.2009 and the

recommendations of VI Central Pay Commission are against the intention

of those letter and recommendations. The true intention is that the pre-

retirees were also conferred with such benefits and it was decided that

such benefits be given to the applicants on their applications filed before

the Armed Forces Tribunals at Jaipur, Chandimandir and other Regional

Benches. The Chandigarh Bench in Virender Singh & Ors vs. UOI &

Ors in O.A.No.42 of 2010 considered various rules, regulations and the

contents of the letter dated 12.6.2009, and passed an order on 8.2.2010

granting the benefits to those Honorary Naib Subedars who retired prior

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to 1.1.2006 also. The Hon’ble Supreme Court of India confirmed the said

judgment in SLP No.36534 of 2010 and the appeal preferred by the

respondents was also dismissed. Similar applications were filed before

Circuit Bench at Simla, Lucknow Benches and those applications were

also allowed in the lines of judgment made in Virender Singh. The

impugned order was made in the letter dated 27.03.2012, a reply to the

representation of the Tamil Nadu Ex-Services League dated 12.3.2012,

by stating that no general order can be passed following the said

decisions on the request of the applicant and it was required for a

specific Court Order for the grant of benefits to the applicant given under

the VI Central Pay Commission and the letter of the Government dated

12.06.2009. Therefore, the applicant has filed the application before this

Tribunal for the aforesaid relief and application may thus be allowed.

4. The objections raised on behalf of the respondents in the reply-

statement would be as follows:

The applicant was enrolled in the Indian Army MEG on 20.08.1968 and

was discharged from service on 31.8.1992 afternoon after fulfilling the

conditions of enrolment. The applicant was granted Honorary rank of

Naib Subedar after retirement with effect from 1.9.1992 and the service

pension granted to him with effect from 1.9.1992 was for the rank of

Havildar. The notional pay fixation of Honorary ranks for the purpose of

pension under GOI, MOD (Department of Ex-Servicemen Welfare) letter

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No.1(8()/2008D (Pen/Policy) dated 12th June 2009 is applicable to

Honorary Naib Subedars who were discharged from service on or after

1.1.2006 and hence, the applicant is not entitled to the benefits of such

letter. The entire recommendations of the Central Pay Commission were

not taken into account by the Government of India for implementation.

Considering the financial constraints, one of the various parameters of

pay revisions are given with cut-off dates. The Hon’ble Apex Court

observed in the Civil Appeal D.No.13139 of 2011 between Union of

India & Ors and Sohan Lal Bawa & Ors against the order passed by

Armed Forces Tribunal, Chandigarh in O.A.No.337 of 2010 dated

8.7.2010 that,

“ It needs, however, to be clarified that the decision of

the Armed Forces Tribunal shall relate only to the case of

Havildars who, before their retirement, were granted

honorary promotion to the rank of Naib Subedar and shall

not be used as a precedent in case of other ranks.”

Since Honorary ranks of Naib Subedar is granted to Havildar only on

retirement and not before retirement, a Review Petition (Civil) No.365 of

2013 was filed for curation. In the meantime, the ADG PS, AG’s Branch,

IHQ of MOD notified the instructions, vide letter

No.B/39022/Misc/AG/PS-4 (L) dated 29th February 2012 to clarify the

letter dated 12.6.2009 that the benefit of service pension of Naib

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Subedar rank was extended to the Havildars who were granted Honorary

rank of Naib Subedars on retirement. The said Review Petition preferred

before the Hon’ble Apex Court was dismissed on the ground of limitation

and merit. Therefore, the said confusion still persists. The JAG

Department/Legal Officer (Def), the IHQ of MOD (Army), ADG PS issued

a letter No.B/39022/Misc/AG/PS-4 (L) dated 23.4.2013 cancelling the

letter dated 29th February 2012 and also stated that pre-2006 Honorary

Naib Subedar cannot be admitted to the pension of Naib Subedar with

effect from 1.1.2006. These provisions in the letter dated 12.6.2009 are

applicable to those Havildars who were granted such Honorary rank post-

2006, Since the Hon’ble Armed Forces Tribunals interpreted cut-off date

of 1.1.2006 as applicable for the grant of financial benefits irrespective of

the date of retirement had led to a spate of litigation on this issue. For

the reasons stated above, the application may be dismissed as devoid of

merit.

5. The submissions made by the applicant in the Rejoinder would be

as follows:

While reiterating allegations made in the application, the applicant

denied the stand taken by the respondents that the conferment of

benefits of the letter dated 12.6.2009 to the post-1.1.2006 retirees only.

It is submitted by the applicant that the grant of pension benefits as per

VI Central Pay Commission and the letter dated 12.6.2009 are applicable

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to Pre-1.1.2006 retirees and it was also confirmed by the Hon’ble Apex

Court in SLP No.36534 of 2010 in between UOI vs. Virender Singh and

through the subsequent judgments delivered by various Armed Forces

Tribunal Benches and the Principal Bench and therefore, the application

filed by the applicant has to be allowed.

6. On the above pleadings, the following points were framed for

consideration:

(1) Whether the Honorary Naib Subedars retired prior to 1.1.2006 are

entitled to the benefits given under the letter of GOI MOD dated

12.06.2009?

(2) Whether the applicant is entitled to the benefits as recommended

by VI Central Pay Commission to the Honorary Naib Subedars and the

letter issued by GOI, MOD (Department of Ex-Servicemen Welfare)

No.1(8)/2008D (Pen/Policy) dated 12th June 2009?

3) To what relief the applicant is entitled to?

7. Heard Mr. J. Saravana Kumar, learned counsel for the applicant and

B.Shanthakumar, learned Senior Panel Counsel assisted by Captain

Vaibhav Kumar, learned Assistant JAG Officer appearing for the

respondents.

8. Point Nos.1 and 2: The indisputable facts in this case would be that

the applicant was enrolled in the army on 20.8.1968 and was discharged,

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after completing 24 years of service, on 31.08.1992. The applicant was

conferred with the rank of Honorary Naib Subedar and the service

pension was granted in the rank of Havildar with effect from 1.9.1992.

9. The applicant has produced his PPO as Annexure-I in Compilation-II

along with Corrigendum issued in his favour. In the Corrigendum, the

rank last held by the applicant was corrected as Honorary Naib Subedar

instead of Havildar. Similarly, the rank for pension was corrected as

Honorary Naib Subedar. The other Corrigendum referred to the quantum

of pension and others. The said Corrigendum was issued on 31.3.1993

and therefore, it could be found that the applicant was receiving pension,

in accordance with the recommendations of V Central Pay Commission.

The said fact that the applicant was conferred with the benefit of pension

as recommended by V Central Pay Commission has not been disputed by

the respondents. The applicant has now come forward with this

application for the grant of benefits as recommended by VI Central Pay

Commission towards the revision of pension to the Honorary Naib

Subedar on par with the rank of Subedar. The said claim is based on a

letter dated 12.06.2009 issued by the Government of India in

No.1(8)/2008D (Pen/Policy). According to the said letter of Government

dated 12.06.2009 produced as Annexure-R1, we could see as follows:

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“ I am directed to say that in pursuance of Governments

decision on the recommendations of the Sixth Central Pay

Commission contained in Para 5.1.62 of Chapter V of the

Report, the President is pleased to decide that Honorary

rank of Naib Subedar granted to Havildars will be notionally

considered as a promotion to the higher grade of Naib

Subedar and benefit of fitment in the pay band and the

higher grade pay will be allowed notionally for the purpose

of fixation of pension only. Accordingly, additional element

of pension of Rs.100/- pm payable to Havildars granted

Hony rank of Naib Subedar as per Regn. 137 of Pension

Regulations for the Army Part-I (1961), amended vide this

Ministry’s letter No.1(1)/88/D(Pen/Sers) dated 6.11.1991

will cease to be payable. The notional fixation of pay in the

rank of Naib Subedar will not be taken into account for

payment of retirement gratuity, encashment of leave,

composite transfer grant etc.

2. This letter takes effect from 1st January, 2006.

3. This issues with the concurrence of Finance Division

of this Ministry vide their UO No.2351/Finance/Pension

dated 3.6.2009.”

10. The learned Senior Panel Counsel submitted his arguments on the

basis that the benefit of the aforesaid Government letter dated

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12.06.2009 would be available to Honorary Naib Subedar retired on and

after 1.1.2006 and the pre-1.1.2006 retirees of Honorary Naib Subedar

are not entitled to such benefits. Furthermore, he would argue that the

judgments rendered by Armed Forces Tribunal, Chandigarh Bench in

Virender Singh vs. UOI and Sohan Lal Bawa vs. UOI & ors. cannot

be followed in view of the observation made by the Hon’ble Apex Court in

Civil Appeal No.13139 of 2011 against the judgments filed against

Sohan Lal Bawa case. It was further argued by the learned Senior

Panel Counsel, that the Hon’ble Supreme Court, while dismissing the

appeal preferred by the respondents, commented upon entitlement of

the benefits to the Havildars who were granted honorary promotion to

the rank of Naib Subedars before their retirement and it shall not be

used as a precedent in the case of other ranks. His further contention

would be that the Review Application filed by the respondents in RP(Civil)

No.365 of 2013 in Civil Appeal No.5476 of 2011 was also dismissed on

the basis of limitation and merits and he would further submit that the

case of the applicant that he is entitled to the benefits of 12.6.2009 letter

cannot be considered and the stalemate continues. He would therefore,

request that the application may be dismissed.

11. We have considered his submissions and also the submissions of

the learned counsel of the applicant. The order passed by the Armed

Forces Tribunal Regional Bench Chandigarh Bench in Virender Singh

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case was confirmed by the Hon’ble Apex Court and it became final. The

respondents do not dispute the position. In the said judgment of

Virender Singh, the applicant being a pre-1.1.2006 retiree was granted

pension in the rank of Honorary Naib Subedar as per the letter dated

12.6.2009.

12. It is also an indisputable fact that every Havildar who was selected

for the conferment of Naib Subedar was given with the Honorary Naib

Subedar rank at the time of his retirement and not before the retirement

of any Havildar. The learned counsel for the applicant would submit that

the Havildars who retired after 1.1.2006 were also granted Honorary

rank of Naib Subedar only at the time of retirement and not before their

retirement. He would also rely upon the judgment of Sohan Lal Bawa

vs. UOI rendered by the Armed Forces Tribunal Regional Bench,

Chandigarh following the principles laid down in Virender Singh case.

13. In the appeal preferred by the respondents against the order of

Chandigarh Bench in Sohan Lal Bawa case, the Hon’ble Apex Court

dismissed the appeal and confirmed the benefit given to Sohan Lal Bawa.

However, in the subsequent paragraph, the Hon’ble Apex Court

mentioned that the grant of benefits to the Havildars who were conferred

with the Honorary Naib Subedars before their retirement and that should

not be followed as a precedent in the case of other ranks. The learned

counsel for the applicant would interpret that other ranks means the

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Honorary rank conferred on the other personnel like Havildar at the time

of their retirement. According to the learned counsel for the applicant,

the said reference of Honourable Apex Court was taken advantage by the

respondents and they issued a letter to the effect that the pre-1.1.2006

retirees are not eligible for the benefits/recommendations of VI Central

Pay Commission and the letter of MOD dated 12.6.2009. He would

further refer to various judgments of Chandigarh Bench, Circuit Bench of

Simla, Jaipur Bench of Armed Forces Tribunal and Principal Bench, New

Delhi in support of his arguments that the pre-1.1.2006 retirees are

entitled to the benefits of VI Central Pay Commission as incorporated in

the letter dated 12.06.2009. He would also cite a judgment of Armed

Forces Tribunal, Kochi Bench made in O.A.No.100-125 of 2012 dated

21.8.2012 and an order passed by the Principal Bench, New Delhi in

M.A.No.243 of 2013 in O.A.No.400 of 2012 dated 10.05.2013. He would

also submit that the judgments of Armed Forces Tribunal, Kochi and

Principal Bench, New Delhi, were rendered after the Hon’ble Apex Court

has passed the order in Civil Appeal D.No.13130 of 2011, dated

7.7.2011. Therefore, he would submit that the judgments made by the

Hon’ble Apex Court in Virender Singh case is holding the field and the

applicant may be granted the benefits as sought for.

14. When we consider the submissions of the learned counsel for the

applicant and also the Senior Panel Counsel appearing for the

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respondents, we have to firstly see whether the Government letter dated

12.6.2009 issued on the recommendations contained in Para 5.1.62 of

Chapter V of the VI Central Pay Commission is not benefitting the pre-

1.1.2006 retiree Havildars conferred with Honorary Naib Subedar ranks.

For understanding the crux of the case, it has become necessary to

subscribe the said paragraph 5.1.62 of VI Central Pay Commission

recommendation which runs as follows:

“5.1.62. Presently, Havaldars on getting the rank of Honorary

Naib Subedar are given an additional pension of Rs.100. As

against this, JCOs after becoming Honorary officers get

pension as per the existing formula on the basis of pay

attached to the post of Honorary officer. Defence Forces have

proposed that the pension of Honorary Naib Subedars may

also be fixed, accordingly, on the basis of pay attached to the

rank. The proposal is inherent in the revised scheme of pay

bands being proposed. A Havaldar, on promotion as Honorary

Naib Subedar will be eligible for pension with reference to the

salary drawn/drawable in the rank of Naib Subedar. Further,

pension is now payable with reference to either 10 months

average emoluments or the last pay drawn, whichever is

beneficial. In light of these changes being recommended,

pension for all Honorary ranks of Naib Subedar will henceforth

be payable by taking this placement as a regular promotion to

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the higher grade wherein benefit of fitment in the pay band

and the higher grade pay will be taken into account for

purposes of fixation of pension”.

15. According to the tenor of the recommendations of VI Central Pay

Commission, the JCOs after becoming Honorary officers used to get

pension on the basis of the pay attached to the post of Honorary Officer.

Accordingly, the proposals submitted by the Defence Forces that the

pension of Naib Subedar may also be fixed on the basis of the pay

attached to their rank, was considered by the VI Pay Commission and a

recommendation was made in the said paragraph. In the said

recommendation, pension for all honorary ranks of Naib Subedar will

simultaneously be payable by taking this placement as a regular

promotion to the higher grade wherein benefit of fitment in the pay band

and the higher grade pay will be taken into account for purposes of

fixation of pension only. It would make us clear that the

recommendation of Pay Commission was that the benefits shall be

available to all the ranks of Naib Subedars without any reservation or

exception and due to this intention, the expression, ‘all Honorary ranks of

Naib Subedars’ has been used in the above paragraph of the

recommendations. No doubt the Government letter dated 12.06.2009

was based upon the recommendation of the VI Central Pay Commission,

where the pre-1.1.2006 retirees were not excluded from getting the

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benefits. The Government letter dated 12.6.2009 issued can be thus

understood that the benefits have been conferred on all the Honorary

Naib Subedars. For better understanding, we have to once again peruse

the contents of the letter dated 12.6.2009. In the said letter, it is

categorically mentioned that the additional element of pension of

Rs.100/- per month payable to Havildars granted to the Honorary rank of

Naib Subedars as per Regulation 137 of Pension Regulations for the Army

Part-I (1961) and the MOD letter dated 6.11.1991 will cease to be paid

with effect from 1.1.2006. That means that the pre-1.1.2006 retirees,

who were given benefit of the revision of pension at the Honorary Naib

Subedar rank, as per V Central Pay Commission and the letter dated

6.11.1991 would cease to get the payment of Rs.100/- in lieu of the

benefit given under VI Central Pay Commission and the GOI MOD letter

dated 12.6.2009. Therefore, we are of the considered view that the pre-

1.1.2006 retirees cannot be left from getting the benefit of the letter of

Government of India MOD (Department of Ex-Servicemen Welfare) letter

No.1(8)/2008D (Pen/Policy) dated 12th June 2009. It was also argued by

the learned Senior Panel Counsel that para-2 of the said letter indicates

that the said letter takes effect from 1.1.2006 means that the benefits

shall be conferred only upon the retirees who retired on or after

1.1.2006. In our view, the said para means that the benefits shall be

given with effect from 1.1.2006 and not otherwise.

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16. There is no dispute that the judgment of Chandigarh Bench made

in Virender Singh vs. UOI (O.A.No.42 of 2010) was confirmed by the

Hon’ble Apex Court in the order passed in SLP Civil No.18582 of 2010,

dated 13.12.2010. The said order is produced as Annexure-1 in the

citations produced by the applicant. In the order of Chandigarh Bench,

the reliefs sought for by the applicant, a pre-1.1.2006 retiree were

granted. The said decision of Chandigarh Bench has been upheld by the

Hon’ble Apex Court, as aforesaid. Similarly, various judgments were

rendered by Chandigarh Bench in O.A.616 of 2011, dated 6.5.2011, in

O.A.712 of 2011, dated 26.5.2011, in O.A.816 of 2011, dated 4.7.2011

by following the principles laid down in Virender Singh’s case. The

Lucknow Bench in O.A.No.272 of 2011, dated 28.9.2013 in between

Ram Pyare & Ors vs. UOI & Ors and the Jaipur Bench in O.A.No.232

of 2012, dated 2.4.2012 arrived to a similar conclusion by granting the

benefits of Government letter dated 12.06.2009 to Havildars who were

conferred Honorary rank of Naib Subedar, retired prior to 1.1.2006.

Therefore, we are of the firm view that the applicant is also entitled to

the benefit conferred in the Government letter MOD (Department of Ex-

Servicemen Welfare) No.1(8)/2008D (Pen/Policy) dated 12.6.2009.

17. The second objection raised by the learned Senior Panel Counsel in

respect of the orders passed by the Hon’ble Apex Court in Union of

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India & Ors. vs. Sohan Lal Bawa & Ors. (Civil Appeal D.No.13139

of 2011) has to be considered. The judgments rendered by Armed

Forces Tribunal, Kochi Bench in O.A.100-125 of 2012, dated 21.8.2012

is also helpful to clear the doubt raised during the submission of the

learned Senior Panel Counsel while interpreting the order passed by the

Hon’ble Apex Court in the Civil Appeal D.No.13139 of 2011, dated

7.7.2011 between UOI & Ors. vs. Sohan Lal Bawa. The relevant

passage in the judgment of Armed Forces Tribunal, Kochi Bench, would

run as follows:

“ 10. The learned counsel appearing for the respondents submitted

that in the matter of Union of India vs. Sohan Lal Bawa (Civil

Appeal D.No.13139 of 2011), the Apex Court has held that the

benefit is available to those who were granted Honorary promotion

to the rank of Naib Subedar before their retirement. Therefore, the

applicants who were conferred Honorary Rank after the retirement

were not entitled for the benefit.

11. In our opinion, the Apex Court in fact extended the benefit to

only those who were granted Honorary promotion to the rank of

Naib Subedar and pointed out that the said principle will not be

followed as a precedent in the case of other ranks. In other words,

the Apex Court made a distinction between the Havildars granted

Honorary rank of Naib Subedar and other ranks, and allowed the

benefits to Havildars only. During the course of hearing, the

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counsel for the parties conceded that there is not a single case in

which Havildar was granted Honorary rank of Naib Subedar before

retirement. They further clarified that the Honorary rank of Naib

Subedar is ordinarily granted to Havildars after retirement. In this

view of the matter, the aforesaid submission of the learned counsel

for the respondents has no merit.

Similarly, a judgment of the Hon’ble Principal Bench made in

M.A.No.243 of 2013 in O.A.No.400 of 2012, dated 10.5.2013 in

between Ex Hav (Hony NB Sub) Ram Kanwar vs. UOI & Ors would

also be helpful to solve the issue. The relevant passage would be as

follows:

“ There is reservation in the minds of respondents in

execution of order and implementation of Government order dated

12.06.2009 on account of subsequent order of Hon’ble Supreme

Court. Hon’ble Supreme Court in the case of Union of India vs.

Sohan Lal Bawa, while dismissing the petition of Union of India on

the basis of earlier order in the case of Union of India vs. Virender

Singh, their Lordships made following observation:

It needs, however, to be clarified that the decision of the

Armed Forces Tribunal shall relate only to the cases of Havildars

who, before their retirement, were granted honorary promotion to

the rank of Naib Subedar and shall not be used as a precedent in

case of other ranks.

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It appears that the attention of the Hon’ble Supreme Court

was not properly invited to the fact that honorary ranks are

normally granted only after the retirement. A Review Application

was filed before the Hon’ble Supreme Court by the Union of India

and this matter again came up before the Hon’ble Supreme Court,

however, same was dismissed on 06.03.2013 on the ground of

limitation and on merit. Therefore, this confusion still persists.

4. As far as the execution of this order is concerned we

don’t find any impediment in granting pension to all the Honorary

Nb Subedars since they have been granted the rank of Honorary

Nb Subedar after their retirement in accordance with Govt. letter

of 12.06.2009. The order dated 12.06.2009 is very clear that this

benefit of Honorary Nb Subedar will be available to them only for

the purposes of fixation of pension. Since pension is only

admissible to the Havildars after they have retired it is evident

that they will be entitled to such post-retirement increase in

pension. Similarly, Para 28 of Govt. of India, Integrated

Headquarters, Ministry of Defence Order dated 16.05.2008 clarifies

the position that the rank of Nb Subedar and Naib Risaldar is

granted on retirement or within one year of their becoming non-

effective immediately after retirement. As such we don’t see any

difficulty in directing the respondents to implement the order

dated 12.06.2009. This position is accordingly disposed off.

Learned counsel for respondents prays for leave to appeal to the

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Hon’ble Supreme Court. There is no question of law of public

importance involved in this matter and we have decided the

matter on the basis of Government Orders. As such, we don’t

think it is a fit case to grant leave to appeal before the Hon’ble

Supreme Court as it does not involve any question of public

importance. Therefore, the oral application for leave to appeal is

rejected. “

18. On a careful understanding of the aforesaid judgments, we could see

that those judgments were pronounced after the judgment in Civil appeal

D.No.13139 of 2011 was delivered by the Hon’ble Apex Court on

7.7.2011. Both judgments have considered the facts and circumstances

and had given a candid explanation as extracted above. Accordingly, the

pension benefit available to those who were granted promotion to the

rank of Naib Subedar before their retirement was extended to those who

were granted Honorary promotion to the rank of Naib Subedars. It was

also opined in the said judgments that the Havildars who were granted

Honorary rank of Naib Subedars were distinguished with other ranks and

the benefit allowed to the Havildars cannot be a precedent to other

ranks.

19. We entirely concur with the opinion of the Kochi Bench since the

post-1.1.2006 retirees of Havildars are also granted Honorary Naib

Subedar ranks at the time of retirement, and not before their retirement.

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The respondents are under the obligation to treat the pre-1.1.2006

retirees who were given Honorary Naib Subedar rank at the time of

retirement, in par with the post-1.1.2006 retirees who are not granted

the Honorary Naib Subedar rank before their retirement. The Hon’ble

Principal Bench has also come to a conclusion that the Honorary Naib

Subedar rank are ordinarily given at the time of retirement for the

purposes of fixation of pension. Para-28 of Government of India

Integrated HQ MOD Order dated 16.5.2008 clarifies the position that the

rank of Naib Subedar and Naib Risaldar is granted on retirement or even

within one year of their becoming non-effective immediately after their

retirement, would go to show that the Honorary rank would be given

normally at the time of retirement or even one year before becoming

non-effective as stated in para-28 of the order dated 16.5.2008. The

reasoning given by the Hon’ble Principal bench in the order made in M.A.

243 of 2013 in O.A.No.400 of 2012 dated 10.05.2013 is also in tune with

the decision of the Kochi Bench. We therefore concur with the views

taken by both the Kochi Bench and Hon’ble Principal Bench of New Delhi,

in this regard.

20. In the said circumstances, we are of the opinion that the applicant

is entitled to the benefits of the Government letter dated 12.6.2009

issued in pursuance of VI Central Pay Commission recommendation.

Accordingly, both the points are decided in favour of the applicant.

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21. Point No.3: For the reasons stated in the above points, the reliefs

as sought for by the applicant are liable to be ordered and accordingly,

the application is allowed. The applicant shall be granted the benefit of

the letter of Government of India MOD (Department of Ex-Servicemen

Welfare) No.1(8)/2008D (Pen/Policy) dated 12.6.2009 with effect from

1.1.2006 with all consequential benefits. The respondents are directed

to make the payment of arrears amount payable to the applicant within

three months and also to make corrigendum in the PPO. The amount of

Rs.100/- per month which had already been paid to the applicant after

1.1.2006 in terms of Ministry’s letter No.1(1)/88/D(Pen/Sers) dated

6.11.1991 shall be adjusted against the arrears of amount and the said

payment of Rs.100/- shall cease.

22. In the result, the application is ordered as indicated above. No

order as to costs.

Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH

MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

14.02.2014 (True copy)

Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No

VS

24

To:

1. The Secretary

Ministry of Defence, South Block, New Delhi.

2. The Chief of Army Staff

Integrated Headquarters Ministry of Defence (Army)

New Delhi-110 011.

3. The Secretary Dept. of Ex-Servicemen Welfare

Ministry of Defence, GOI 5A, South Block

New Delhi-110 011.

4. Principal Controller of Defence

Accounts (Pensions) Office of the PCDA (Pensions)

Draupadi Ghat Allahabad-211 014.

5. Officer in Charge of Records

Records, Armoured Corps Ahmednagar.

6. Mr. J. Saravana Kumar

Counsel for applicant.

7. Mr. B. Shanthakumar, SPC

Counsel for respondents.

8. OIC, Legal Cell, ATNK & K Area, Chennai.

9. Library, AFT, Chennai.

25

HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH

MEMBER (JUDICIAL)

AND

HON’BLE LT GEN K. SURENDRA NATH

MEMBER (ADMINISTRATIVE)

O.A.No.72 of 2013

Dt: 14.02.2014