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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Thursday, the 23rd day of June 2022 / 2nd Ashadha, 1944
CONTEMPT CASE(C) NO. 739 OF 2022(S) IN OP(CAT)211/2016
PETITIONER/1ST PETITIONER IN O.P.(CAT):
LT.COL.A.A.APHRAIM (RTD.),NCC/PC/12103,AGED 82 YEARS, S/O. LATE
A.K.APHRAIM,KALIYADAN HOUSE, 94 HILL GARDENS, ANCHERY P.O., THRISSUR
- 680 006
BY ADVS.M/S.SHAJI THOMAS,JEN JAISON
RESPONDENT/1ST RESPONDENT IN O.P.(CAT):
RAJIV RANJAN,PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION),
DRAUPADI GHAT,ALLAHABAD,UTTAR PRADESH - 211 014
BY K.R.RAJKUMAR,CENTRAL GOVERNMENT COUNSEL
This Contempt of court case (civil) having come up for orders on
23.06.2022, the court on the same day passed the following:
P.T.O
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ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
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Cont. Case (C) No. 739 of 2022
[arising out of the impugned judgment dated 9.11.2021 in OP(CAT) No. 211/2016 ]
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Dated this the 23rd day of June, 2022
ORDER
Sri.K.R.Raj Kumar, learned Central Government Counsel, would submit on the basis of instructions of the respondent officer (Principal Controller of Defence Accounts (Pension), Allahabad) that the petitioner herein (the 1st petitioner in OP(CAT) No.211/2016) as well as the 2nd petitioner in Anx.A4 OP(CAT) No.211/2016, and other similarly situated persons mentioned in the letter dated 21.10.2019 issued by the respondent Principal Controller of Defence Accounts (Pension) (produced as Ext.P-15 in OP(CAT) No.211/2016), who were earlier in service as the National Cadet Corps Whole Time Officers (NCC-WTO) (Male) have already been placed in the Fitment Table as Lieutenant Colonel of the Indian Army.
2. Per contra, Sri.Shaji Thomas, learned counsel appearing for the petitioner would point out that, the petitioner and the similarly situated persons mentioned thereof were in service as NCC-WTO and was holding the post of Lieutenant Con.Case(C) No.739/2022 3 / 10 Cont. Case (C) No. 739 of 2022 ..2..
Colonel at the time of retirement, and were already drawing pay and allowances and other benefits at par with the Lieutenant Colonels of the Indian Army, and their pension claims were duly sanctioned in terms of the Army Pension Regulations. But, later, the respondent authority had taken away the said benefit on the untenable plea that the petitioner and others should be treated only as civilians, and not as retired personnel of NCC-WTO who are at par with their regular counterparts in the Indian Army. Further, the said dispute has been resolved in favour of the persons similarly situated as the petitioner, as per the final verdict rendered on 22.8.2017 by the Central Administrative Tribunal, Ernakulam Bench, in O.A. No.1053/2016 (produced as Ext.P-12 in OP(CAT) No.211/2016) whereby the impugned circular of the respondent (produced as Anx.A3 in OP(CAT) No.211/2016) was quashed, as the same was found to be in contradiction to another order of the Ministry of Defence (referred to as Anx.A2 in O.A.No.1053/2016), and it was held in the verdict by the Tribunal that Anx.A3 therein (Anx.A2 in OP(CAT) No.211/2016) cannot thus override Anx.A2 therein and consequently, the respondent authorities including the present Con.Case(C) No.739/2022 4 / 10 Cont. Case (C) No. 739 of 2022 ..3..
respondent, had been directed to continue to pay the pension as stipulated earlier to the applicants therein, and if any recoveries have been made to the applicants therein, then the same should be paid with interest thereon, at the rate applicable for General Provident Fund, etc. Whereas, the Tribunal had rendered a verdict in the O.A. filed by the present petitioner, which was prior to the verdict rendered on 22.8.2017 in O.A.No.1053/2016, and the said prior verdict in the case of the petitioner, did not grant such benefits except interdiction with the recovery. Therefore, the petitioner, being aggrieved by the verdict of the Tribunal in his case, had preferred the present OP(CAT) No.211/2016. While the present OP was pending, none other than the respondent, apprised this Court that a letter dated 21.10.2019 has been issued by the respondent Principal Controller of Defence Accounts (Pension) (produced as Ext.P-15 in OP(CAT) No.211/2016) granting benefits mentioned therein in the case of the present petitioners as well.
3. In the aforesaid letter dated 21.10.2019 (produced as Ext.P-15 in OP(CAT) No.211/2016), reference is made by the respondent to the letter dated 19.9.2019 (produced as Ext.P-13 in OP(CAT) Con.Case(C) No.739/2022 5 / 10 Cont. Case (C) No. 739 of 2022 ..4..
No.211/2016 and as Anx.A1 in the present Contempt Case) , whereby it is stated that notional fixation of pension w.e.f. 1.1.2006 in respect of NCC-WTOs shall be done at par with regular army officers of equivalent rank, as recommended by the Director General of NCC. By the said letter dated 21.10.2019, it has been further ordered that in the light of the abovesaid directive of the Government of India rendered on 19.9.2019, necessary instructions have been issued to all pension disbursing agencies, i.e. Bank, DPDO, Treasury, etc vide the respondent's Circular dated 25.9.2019, to revise the minimum guaranteed pension & family pension in respect of pre-2006 pensioners/family pensioners who retired as NCC-WTO (Male) in the rank of Lieutenant, Captain, Major and Lt.Colonel up to 1.1.2006 (produced as Ext.P-14 in OP(CAT) No.211/2016 and as Anx.A2 in the present Contempt Case). In the light of these aspects, Sri.Shaji Thomas, learned counsel appearing for the petitioner would urge that the respondent officer cannot wash his hands off, by saying that the petitioner has already been treated in the Fitment Table as Lt.Colonel of the Indian Army, and the actual monetary benefits flowing from the aforementioned documents Con.Case(C) No.739/2022 6 / 10 Cont. Case (C) No. 739 of 2022 ..5..
should be disbursed to him. That, the present attitute of the respondent officer in stating that Anx.A4 verdict of this Court has been complied, is only a paper compliance, and is only to highly mislead this Court, and the said misleading submission made by the respondent officer, who is in the rank of Principal Controller of Defence Accounts, should be viewed very seriously by this Court.
4. We have given various opportunities to the respondent officer to file an affidavit and explain the position to this Court. Every time, the respondent officer is making submissions through the learned Central Government Counsel that he wants time and now, a submission is made as if the Anx.A4 verdict is complied with by him inasmuch as the formal Fitment has been granted by placing him as Lt.Colonel in the Indian Army.
5. We cannot appreciate the abovesaid conduct of the respondent officer. Certainly, Sri.K.R.Raj Kumar, learned Central Government Counsel, has taken a very fair and proactive approach in trying to resolve the stalemate, which can be seen from the various submissions made by him on the previous occasions in this Contempt case pleading for time, and that he would advise the Con.Case(C) No.739/2022 7 / 10 Cont. Case (C) No. 739 of 2022 ..6..
respondent officer to strictly comply with the directions in Anx.A4 verdict. We appreciate the fair stand taken by Sri.K.R.Raj Kumar, learned Central Government Counsel.
6. Now, the respondent officer would also apprise us that the since the petitioner retired as NCC-WTO, his pension would be regulated by the CCS (Pension) Rules and not by the Army Pension Regulations.
7. Sri.Shaji Thomas, learned counsel appearing for the petitioner would submit that the pension claims of persons like the petitioner, who retired as NCC-WTO have been regulated and granted in terms of the Army Pension Regulations, by treating them at par with their regular counterparts in the Indian Army.
8. We need not now bother about the technicalities of the respondent officer in actually sanctioning and disbursing the monetary benefits due to the petitioner. Such technical difficulties, if any, of the respondent officer will have to be resolved by him. The Anx.A4 verdict has been rendered on the basis of the submissions of the respondent officer. Now, the respondent officer cannot shirk from his responsibility and say that a paper benefit Con.Case(C) No.739/2022 8 / 10 Cont. Case (C) No. 739 of 2022 ..7..
has been given to the petitioner, and that he has nothing more to do. If the said attitude is continued by the respondent officer, then this Court will be constrained to proceed further with the Contempt of Court proceedings. The petitioner is an elderly senior citizen aged more than 83 years, and he cannot be subjected to any further agony in this litigative proceedings on account of the above conduct of the respondent officer.
9. Sri.K.R.Raj Kumar, learned Central Government Counsel, would plead for one last opportunity to ensure that stalemate is resolved, and also to ensure that the verdict of this Court as per Anx.A4 is enforced and complied with in letter and spirit. Sri.K.R.Raj Kumar, learned Central Government Counsel, will forward copies of this order not only to the respondent officer, but also to the Secretary to the Government of India in the Union Ministry of Defence of the Department concerned, for apprising the latter about the non compliance of the directions rendered by this Court as per the concluded verdict in terms of Anx.A4.
10. The petitioner may also file an affidavit/statement giving the facts and figures in relation to the balance dues to be Con.Case(C) No.739/2022 9 / 10 Cont. Case (C) No. 739 of 2022 ..8..
sanctioned and disbursed by the respondent officer, as referred to in para 5 of this Contempt case.
11. The Registry will place the original case papers/Judge's papers in relation to the disposed Anx.A4 OP(CAT) No.211/2016 in this case file, for the perusal of this Court.
List on 18.7.2022.
H/O.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE
MMG
23-06-2022 /True Copy/ Assistant Registrar
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APPENDIX OF CON.CASE(C) 739/2022
Annexure A1 TRUE PHOTOCOPY OF THE LETTER DATED 19.09.2019 ISSUED BY
THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE ADDRESSED TO THE DIRECTOR GENERAL, NCC Annexure A2 TRUE PHOTOCOPY OF THE CIRCULAR NO. C-203 DATED 25.09.2019 ISSUED BY THE RESPONDENT Annexure A4 CERTIFIED COPY OF THE JUDGMENT DATED 09.11.2021 IN O.P (CAT) NO. 211/2016 Exhibit P12 TRUE PHOTOCOPY OF THE ORDER DATED 22/08/2017 IN O.A.NO.1053/2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM.
Exhibit P15 TRUE PHOTOCOPY OF THE LETTER DATED 21/10/2019 ISSUED BY THE 1ST RESPONDENT Annexure A2 TRUE COPY OF THE LETTER NO.17(4)/2008(1)/D(PEN/POLICY) DATED 21.05.2009 OF THE 3RD RESPONDENT Annexure A3 TRUE COPY OF THE CIRCULAR NO.144 DATED 27.01.2010 OF THE 2ND RESPONDENT