Lt. Col. A.A. Aphraim (Retd) vs Principal Controller Of Defence
2021 Latest Caselaw 22338 Ker

OP (CAT) NO. 211 OF 2016              1


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                  &
               THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                       OP (CAT) NO. 211 OF 2016
   AGAINST THE ORDER/JUDGMENT IN R.A.NO.180/00037/2016 IN OA
NO.180/00418/2014 DATED 13.07.2016 AND AGAINST THE ORDER DATED
         17.05.2016 IN O.A.NO.180/00418/2014 OF THE CENTRAL
              ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH,
PETITIONERS/APPLICANTS:

     1      LT. COL. A.A. APHRAIM (RETD),
            AGED 75 YEARS,
            NCC/PC/12103, KALIYADAN HOUSE,94 HILL GARDENS,
            ANCHERY P.O.,THRISSUR - 680 006.

     2      CDR. JACOB JOHN MALAYATTU (RTD),
            NCC/NPC/11817, MALAYATTU MANGALATHU,T.C. NO. 10C-
            2760, (SP 12/399)JMM LANE, MANNANTHALA
            P.O.,THIRUVANANTHAPURAM-695015.

            BY ADVS.
            SRI.SHAJI THOMAS
            SRI.H.KIRAN



RESPONDENTS/RESPONDENTS:

     1      PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS(PENSION)
            DRAUPAID GHAT, ALAHABAD - 210014 (UP)

     2      DEPUTY CONTROLLER OF DEFENCE ACCOUNTS (P)
            DRAUPADI GHAT, ALLAHABAD- 211014(UP)
 OP (CAT) NO. 211 OF 2016           2

     3      DIRECTOR PENSOIN POLICY,
            GOVERNMENT OF INDIA,MINISTRY OF DEFENCE,DEPARTMNENT
            OF EX-SERVICEMEN WELFARE,NEW DELHI - 110 011.

     4      DIRECTOR GENERAL NCC,
            WEST BLOCK, R.K. PURAM, NEW DELHI - 110066.

     5      UNION OF INDIA
            REPRESENTED BY SECRETARY TOMINISTRY OF DEFENCE,SOUTH
            BLOCK,NEW DELHI - 110 011.

     6      MANAGER,
            STATE BANK OF INDIA,THRISSUR BRANCH, DHARMODAYAM
            BUILDING, ROUND EAST, THRISSUR-680001.

     7      MANAGER,
            STATE BANK OF INDIA,MANNANTHALA BRANCH,SAHADEVAN
            COMPLEX,MANNANTHALA P.O.,THIRUVANANTHAPURAM-695015.

            BY ADVS.
            SRI.K.R.RAJKUMAR, C.G.C.
            SMT.BINDUMOL JOSEPH
            SRI.B.S.SYAMANTHAK




      THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 09.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 211 OF 2016                          3


      ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
    =========================================
                           O.P (CAT) No.211 of 2016
         [Arising out of impugned order dated 13.7.2016 in R.A.No.180/00037/2016 in
O.A.No.180/00418/2014 and the order dated 17.5.2016 in O.A.No.180/00418/2014 on the file of the
                                      CAT, EKM Bench]
    =========================================
                      Dated this the 9th day of November, 2021

                                    JUDGMENT

Alexander Thomas, J.

The petitioners herein had filed the instant Ext.P1 original

application in OA No.418 of 2014 before the Central Administrative

Tribunal, Ernakulam Bench with the following prayers [see page Nos.26 &

27 of the paper book of the O.P] :

"(i) To call for the records leading to and set aside Ann.A3- Circular No.144 dated 27.01.2010 of the 2 respondent;

nd

(ii) To declare that the Lt. Colonels and Commanders in NCC are entitled to be considered at par with their counterpart Lieutenant Colonels/Commanders in Defence Service and to be placed in Pay Band-4;

(iii) To declare that Ann.A3-Circular issued by the 2 nd respondent is in contravention of Ann.A2-Order of the Ministry of Defence and Ann.A3 cannot override Ann.A2.

(iv) To direct the respondents 1 to 5 not to reduce the pension of the applicants retrospectively and to continue to pay pension to the applicants treating them as eligible to be placed in Pay Band-4;

(v) To direct the respondents 1 to 5 not to reduce or recover from pension of the applicants any amount without giving notice to the applicants and without adhering to the principles of natural justice;

(vi) To direct the respondents 6 and 7 to defreeze the bank accounts of the applicants forthwith;

(vii) To issue such other appropriate orders or directions this Hon'ble Court may deem fit, just and proper in the circumstances of the case; ' and/or

(viii) To grant the costs of this Original Application.

2. The Tribunal, after hearing both sides, has rendered the

impugned Ext.P6 final order dated 17.5.2016 has dismissed O.A.No.418

of 2014 and has thus refused the main prayer of the petitioner for

quashment of the impugned Annexure-A3 Circular No.144 dated

27.1.2010 issued by the 2nd respondent Deputy Controller of Defence

Accounts(P), Allahabad.

3. Aggrieved by Ext.P6 final order of the Tribunal, the

petitioners herein/original applicant had filed Ext.P7 review application,

RA No.37/2016 to impugne Ext.P6 final order of the Tribunal in the OA.

The Tribunal after hearing both sides, has rendered the impugned

Ext.P8 order dated 13.7.2016, whereby Review Application No.37/2016

has been dismissed.

4. Being aggrieved by the impugned Ext.P6 final order

rendered by the Tribunal on 17.5.2016 , dismissing the above O.A and as

confirmed by Ext.P8 order dated 13.7.2016 rendered by the Tribunal

dismissing the review application, etc., the petitioner herein has

preferred the instant original petition under Articles 226 & 227 of the

Constitution of India with the following prayers:

"For facts and reasons stated in the Original Petition, it is most respectfully prayed that this Honourable Court may be pleased to set aside Exhibit P6 & P8 orders passed by the Hon'ble Central Administrative Tribunal Ernakulam Bench, set aside the Circular No.144 dated 27.01.2010 of the 2nd respondent (Annexure A3 in O.A) and direct the respondents 1 to 5 not to reduce the existing pension of the petitioners and to continue to pay pension to the petitioners treating them as eligible to be paced in pay Band IV and to allow the above Original Petition, in the interest of justice."

5. Heard Shri.Shaji Thomas, the learned counsel appearing for

the petitioners in the O.P/applicants in the O.A, and Shri.K.R.Rajkumar,

the learned Central Government Counsel appearing for official

respondents 1 to 5 and Smt.Bindumol Joseph, the learned Standing

Counsel for the State Bank of India (SBI) appearing for R6 and R7.

6. In the instant case, the Tribunal as per the impugned Ext.P6

and P8 orders in the O.A and R.A, have refused to grant the main prayer

of the petitioners in the above O.A, for quashment of the impugned

Annexure-A3 circular No.144 dated 27.1.2020 issued by the 2 nd

respondent Deputy Controller of Defence Accounts(P). However, the

Tribunal in another case, O.A.No.1053 of 2016 has allowed the very

same prayer for quashment of the very same impugned Annexure-A3

proceedings herein (marked as Annexure-A3 therein also), and has

rendered as Ext.P12 final order dated 22.8.2017 in O.A.No.1053 of 2016

filed by a similarly situated retired employee and has quashed the

impugned Annexure-A3 circular, as the same is in contradiction to

another order of the Ministry of Defence marked as Annexure-A2

therein, and has held that Annexure-A3 therein (Annexure-A2 herein)

cannot thus override Annexure-A2 therein and consequently, the

respondents in the O.A have been directed to continue to pay the

pension as stipulated earlier to the applicant and if any recoveries made

to the applicants within two months and without any further delay,

interest shall be paid to the applicants therein at the rate applicable for

General Provident Fund Etc.. Copy of the above final verdict of the

Tribunal rendered on 22.8.2017 in O.A.No.1053 of 2016 filed by a

similarly situated pensioner, has been produced Ext.P12 in I.A.No.1 of

2019 in the above O.P. Further, it appears that the competent authority

of the Government of India in the Ministry of Defence has by Ext.P13

letter dated 19.9.2019 has decided to grant pension to the NCC whole

time officers who have retired from service prior to 2006 treating them

at par with their counterpart in the Army/Navy/Air force and fixing

their pension in pay Band - IV w.e.f 1.1.2006. It appears that Ext.P13 is

in tune with the considered verdict rendered by the Tribunal in Ext.P12.

Further, the 1st respondent has issued Ext.P4 circular dated 25.9.2019

directed that the all pension disbursing authorities shall revise

pension/family pension and to refund recovery, if any, made from the

pension account of NCC whole time officers w.e.f 1.1.2006. Further, the

1st respondent by Ext.P15 letter dated 21.10.2019 has informed the 4 th

respondent that in the light of Ext.P13 letter dated 19.9.2019 and

Ext.P14 circular dated 25.9.2019, necessary instructions were issued to

the pension disbursing agency to revise the minimum guaranteed

pension and family pension, in respect of pre-2006 pensioners/family

pensioners who retired as NCC whole time officers (male) in the rank of

Lieutenant Captain, Major and Lieutenant Colonel w.e.f 1.1.2006. Thus,

it appears from a reading of Exts.P13, P14 and P15 proceedings that

none other than the official respondents 1 to 5 have decided to grant

pension benefits to the pensioners to the similarly situated as the

petitioners herein by treating them at par with their counter part in the

Army by fixing their pension at Pay Band-IV, etc.

7. Further, a reading of Ext.P15 letter dated 21.10.2019 would

also make it clear that the case of the present petitioners in the present

OP(CAT) No.211 of 2016 (arising out the present O.A.No.418 of 2014)

filed at the instance of the present petitioners/original applicants,

Ext.P15 letter dated 21.10.2019 issued by the 1st respondent-Principal

Controller of Defence Accounts (Pension) addressed to the 4 th

respondent - Director General NCC, referring to the present OP(KAT)

211/2016, reads as follows:

"In this connection, it is stated that Govt. of India, Min. of Defence vide their letter No.8/23/2018-D(GS-VI) dated 19.09.2019 interalia (sic) decided that notional fixation of pension, w.e.f 01.01.2006 in r/o NCC WTOs be done or par with regular Army Officers of Equivalent rank as recommended by DGNCC.

2. In the light of aforesaid directive of Govt. of India, necessary instructions have been issued to all Pension Disbursing Agencies i.e. Bank, DPDO, treasury etc. vide this office important circular No.C-203 dated 25.09.2019 (copy enclosed) to revise the minimum guaranteed pension & family pension in r/o pre-2006 pensioners/family pensioners who retired as NCC whole time officers (Male) in the rank of Lieutenant, Captain, Major and Lt. Colonel w.e.f 01.01.2006.

3. The PDA has also been directed to payment/recovery made w.e.f.01.01.2006 will be adjusted and/or returned as the case may be, against the arrears now being paid.

4. It is requested that the aforesaid may please be apprised to the Hon'ble Court through CGSC."

This it can be seen from a reading of Ext.P15, necessary reliefs have also

been ordered in favour of the present petitioners in this case, as per the

proceedings issued by none other than the official respondents 1 to 5,

presumably in tune with Ext.P12 verdict of the Tribunal rendered on

22.8.2017 in a similar case. Further, it is also apprised to us, that the

official respondents have complied with the verdict of the Tribunal at

Ext.P12 and had not challenge the same in the manner known to law

and that Ext.P12 has become final and conclusive and further the relief

thereon has also been granted in favour of the present petitioners as can

be seen from Ext.P15. Hence, all what remains is that the verdict of the

Tribunal as per Exts.P6 and P8 will have to be interdicted. In that view

of the matter, it is ordered that the impugned Ext.P6 final order dated

17.5.2016 rendered by Central Administrative Tribunal, Ernakulam

Bench in O.A.No.418 of 2014 and Ext.P8 final order dated 13.7.2016

rendered by the said Tribunal in Review Application No.37 of 2016

arising out of the present O.A.No.418 of 2014, will stand set aside.

Consequently, it is also ordered that all consequential steps by way of

necessary reliefs should also be granted by the official respondents 1 to 5

in favour of the present petitioners in pursuance of Ext.P12 verdict of the

Tribunal and Ext.P15 letter issued by the 1st respondent, if the same has

not been granted, without any further delay, at any rate, within a period

of two months, if the same have not been granted so far.

With these observations and directions, the above Original

Petition will stand finally disposed of.

sd/-

ALEXANDER THOMAS, JUDGE

sd/-

VIJU ABRAHAM, JUDGE pm

APPENDIX OF OP (CAT) 211/2016

PETITIONER ANNEXURE

ANNEXURE A3 TRUE COPY OF THE CIRCULAR NO.144 DATED27.01.2010 OF THE 2ND RESPONDENT

ANNEXURE A1 TRUE COPY OF THE GOVERNMENT OF INDIA LETTER 5431/DGNCC/PC/TCS/MS(B)/1130/A/D(GS-VI) DATED 23.05.1980

ANNEXURE A2 TRUE COPY OF THE LETTER NO. 17(4) / 2008(1)/D(PEN/POLICY) DATED 21.05.2009 OF THE 3RD RESPONDENT.

ANNEXURE A4 TRUE COPY OF THE STATEMENT OF CASE FOR REVISION OF PRE-01.01.2006 NCC WHILE -TIME PENSIONERS

ANNEXURE A5 TRUE COPY OF THE INTERIM ORDER DATED 13.12.2013 IN O.A. NO.537/2013 OF THE LUCKNOW BENCH OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL

ANNEXURE A6 TRUE EXTRACT OF THE STATEMENT OF BANK ACCOUNT IN RESPECT OF THE 1ST APPLICANT

ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 30.05.2014 OF THE 1ST APPLICANT.

ANNEXURE R1A TRUE COPY OF THE ORDER DATED 23.05.1980

ANNEXURE R1B TRUE COPY OF THE ORDER DATED 23.05.1980

ANNEXURE R2(C) TRUE COPY OF THE CIRCULAR NO.144 DATED 27.01.2010

ANNEXURE A8 TRUE COPY OF THE AFFIDAVIT DULY SWORN TO BY SHIR.J.C. SHARMA, UNDER SECRETARY TO GOVT. OF INDIA AS REPLY TO THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN SLP(CIVIL ) NO. 11385-86 OF 1991 BEFORE

THE HON'BLE SUPREME COURT OF INDIA

ANNEXURE A9 TRUE COPY OF SPECIAL ARMY INSTRUCTION NO.9/S/74 DATED 19.12.74 ISSUED BY THE GOVERNMENT OF INDIA

ANNEXURE A10 TRUE COPY OF SPECIAL INSTRUCTION DATED 16.01.1976 ISSUED BY THE GOVERNMENT OF INDIA

ANNEXURE A11 TRUE COPY OF THE LETTER DATED 24.09.2009 OF THE DY.CDA(AT) ADDRESSED TO THE DIRECTORATE GENERAL OF NCC

P1 TRUE COPY OF THE O.A 418/2014 DATED 15/06/2014 FILED BY THE PETITIONERS

P2 TRUE COPY OF THE REPLY STATEMENT DATED 18/03/2015 FILED ON 15/05/2015 BY RESPONDENTS 1,2 AND 5 IN O.A 418/2014

P3 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 08/12/2015 IN O.S 418/2014

P4 TRUE COPY OF THE REJOINDER DATED 31/07/2015 IN O.A 418/2014 FILED BY THE PETITIONERS

P5 TRUE COPY OF THE M.A 241/2016 IN O.A 418/2014 DATED 16/02/2016 ALONG WITH THE DOCUMENTS

P6 TRUE COPY OF THE ORDER DATED 17/05/2016 IN O.A 418/2014 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

P7 TRUE COPY OF THE REVIEW APPLICATION NO.

37/2016 IN O.A 418/2014 DATED 08/06/2016 (WITHOTU COPY OF THE ORIGINAL ORDER)

P8 TRUE COPY OF THE ORDER DATED 13/07/2016 IN REVIEW APPLICATION NO. 37/2016 IN O.A 418/2014

EXHIBIT R4 B TRUE COPY OF LETTER NO. 5431/NCC/PMS (D) 775-III/D(GS-III( DATED 21 DECEMBER 1963

EXHIBIT R4 C TRUE COPY OF CIRCULAR NO. 57 NO.

G1/C/0198/VOL-1 TECH DATED 17.09.2008.

EXHIBIT R4 D TRUE COPY OF LETTER OF GOVERNMENT OF INDIA 1794) 2008(1) D (PEN/POLICY) DATED 11.11.2008

EXHIBIT R4 E TRUE COPY OF LETTER NO. AT/TECH VI CPC/349 DATED 27.01 2010

EXHIBIT R4 (F) TRUE COPY OF LETTER NO.

NCC/IPC/11629/NCCHQ/MS(B) 1329 D(GS-VI) DATED 13.01.2014

EXHIBIT R4 G

EXHIBIT R4 G TRUE COPY OF CIRCULAR NO. RBI/2015-16/343 DATED 17.03.2016

EXHIBIT R4 A TRUE COPY OF LETTER NO. 5431/NCC/PMS (D) 775-IIID(GS-III) DATED 21 DECEMBER 1963

EXHIBIT P12: TRUE PHOTOCOPY OF THE ORDER DATED 22/08/2017 IN O.A.NO.1053/2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM.

EXHIBIT P13: TRUE PHOTOCOPY OF THE LETTER DATED 19/09/2019 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE.

EXHIBIT P14: TRUE PHOTOCOPY OF THE CIRCULAR NO.C-203 DATED 25/09/2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P15: TRUE PHOTOCOPY OF THE LETTER DATED 21/10/2019 ISSUED BY THE 1ST RESPONDENT.