Punjab-Haryana High Court
Jagdish Singh vs Union Of India And Others on 18 January, 2025
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2025:PHHC:007325-DB
CWP-31879-2024 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 31879 of 2024
Reserved on: 18.12.2024
Pronounced on: 18.01.2025
Jagdish Singh
.....Petitioner
Versus
Union of India and others
....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Bhim Sen Sehgal, Advocate
for the petitioner.
Ms. Bhavana Datta, Sr. Panel Counsel
for the respondents-UOI.
****
SURESHWAR THAKUR, J.
1. The petitioner herein becomes aggrieved from the order
rendered by the Ld. Armed Forces Tribunal, Chandigarh, on 09.10.2024
upon, O.A. No.1414 of 2021, whereby the said O.A., has been
dismissed, and, the relief qua grant of benefit of one rank one pension
has been declined, rather on the ground that benefit of one rank one
pension would be received by the Honorary Naib Subedars, as and
when, the revision is made vis-a-vis the minimum pension payable to
the regular Naib Subedars, operative paragraph whereof becomes
extracted hereinafter.
"Pension Tables issued vide notification dated
21.02.2022 have been upheld and grant of benefit of one rank
one pension has been refused on the ground that benefit of one
rank one pension would be received by the Honorary Naib
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Subedars as and when the minimum pension payable to a
regular Naib Subedar is revised.
In view of the above, the issue is covered by the judgment
aforementioned and this Bench has no jurisdiction to review the
same.
Accordingly, all these cases are disposed of in terms of
Ex. Hony Nb Sub Ram Kishan's case (supra)."
BRIEF FACTS OF THE CASE
2. The petitioner whose date of birth is 15.11.1957 was
enrolled in the Army on 22.03.1977 and he was discharged on
31.03.2001 after rendering a total service of 24 years against the rank of
Havildar. However, he was granted the Honorary Rank of Naib
Subedar, at the time of retirement and this was to be considered only as
Notional Promotion(s), thus only for the purpose of fixation of his
pension. The above was done in terms of the recommendations of Sixth
Central Pay Commission. Moreover, the Ministry of Defence Govt of
India issued circular dated 12 June 2009 which however was to take
effect from 01 January 2006, relevant portion whereof becomes
extracted hereinafter.
"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 Havildar 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 of Havildars granted Hony rank of Naib Subedars 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
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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 Ist 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."
3. The hereinabove underlined portion of the (supra) circular
thus makes graphic underscorings, qua excepting endowments upon the
Hony Rank of Naib Subedars, rather becoming notionally considered as
promotion thereto, besides also notionally becoming considered for the
purpose of fixation of pension only, thus the said conferment of the
Hony Rank of Naib Subedar, but was not to result in payment of
retirement gratuity, encashment of leave, composite transfer grant etc.,
to the individuals concerned.
4. That a large number of Havaldars who had been granted
Hony Naib Subedar Rank prior to 01.01.2006, had also desired that they
should be given benefits from the date they attained rank of Hony Naib
Subedar. Ultimately a petition bearing O.A. No.42 of 2010 became filed
by five persons seeking therebys the grant of benefits to them (i.e. pre
01.01.2006) alike the ones as become endowed to the soldiers post
01.01.2006. The said O.A. was allowed, wherebys irrespective of the
date of retirement, thus of/from the Hony. Rank of Naib Subedar, yet
therebys the latter became endowed the benefit of the (supra) circular.
5. The operative part of the said decision made, on
08.02.2010, upon O.A. No.42 of 2010, becomes extracted hereinafter.
"In view of the facts and circumstances of the case the
application is allowed. Respondents No.1 to 6 are directed to
implement the government instructions and release the entitled
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pension with arrears w.e.f. 01.01.2006 to honorary Naib
Subedar within three months of the receipt of this order."
6. The apposite Special Leave petition, as become filed
thereagainst, by the Union of India became dismissed on 13.12.2010,
whereupons all concerned, became eligible besides became entitled to
receive the grant of service pension vis-a-vis the rank of Naib Subedar
w.e.f. 01.01.2006, thus irrespective of the date of retirement.
7. Thereafter, a case was filed to get further benefits whenever
the pension was revised and this was allowed by the Bench of the AFT
to the extent that as and when the pension become revised, thereupons,
the benefit thereofs becoming assigned to the soldiers concerned.
However, subsequently, the Government of India brought into being the
policy of One Rank One Pension, but the benefit of the said policy was
not given to these persons, which resulted in the filing of case bearing
O.A. No.1414 of 2021, for the grant of One Rank one Pension from
01.07.2014, 01.07.2019 and then from 01.07.2024. However, the said
O.A. became dismissed, through a verdict becoming rendered on
09.10.2024 (Annexure P-1). The reason for making an order of
dismissal upon the O.A. (supra) by the Chandigarh bench of AFT,
becomes anchored upon the judgment of the Full Bench of the Principal
Bench, AFT, New Delhi, which is argued to be not applicable to the
petitioner category of persons. In other words, the impugned dismissal
order (supra), as made upon O.A. No.1414 of 2021, and as become
banked upon the verdict as made by the Full Bench of the Principal
Bench, AFT, New Delhi, is however stated to be not applicable to the
facts at hand. Resultantly, a prayer is made that the said impugned
verdict drawn by the AFT concerned, be nullified.
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8. Therefores, the hereinafter formulated substantial questions
of law are required to be answered by this Court;
a) whether the denial through the impugned verdict to the
present petitioner qua the policy promulgated by the
Government of India, wherebys contemplations were made for
bestowing to the superannuated defence personnel the benefit of
one rank one pension becomes well founded upon the judgment
rendered by the Full Bench of the Principal Bench of the
Principal Bench, AFT, New Delhi.
b) whether the conferment of hony rank of Naib Suedar upon
the petitioner, thus also endowing an entitlement upon the
aforesaid to also become entitled to be construed to become
promoted to the rank of regular Naib Subedar.
Answers to the (supra) questions of law
9. Regulation No.180 of the Regulations for the Army - 1987,
provides for, on the apposite retirement, thus the grant of Hony Rank of
Naib Subedar, to the Havaldars, provisions whereof becomes extracted
hereinafter.
"180. Hony Rank of Naib Subedar on Retirement; - The
following are eligible for the grant of honorary rank of Naib
Subedar, on retirement:-
(a) Dafadar and Havildar Clerks (including those employed in
recruiting offices) with twenty eight years pensionable service.
(b) Dafedars and Havildars (other than clerks) who have not
less than 21 years meritorious pensionable service and have
served for two years in the rank of Dafedar/Havildar in
substantive capacity.
(c) Individuals in (a) and (b) above whose pensionable service
is not sufficient to qualify under those clauses but who have
rendered specially meritorious service."
10. For the reasons to be assigned hereinafter, the decision
rendered by the Full Bench of the Principal Bench, AFT, New Delhi,
became well applied by the learned AFT concerned, in its making
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dependence thereons.
11. The judgment of the Full Bench of the Principal Bench,
AFT, New Delhi, became rendered on the apposite reference. The
formulated reference for an answer becoming meted thereto by the Full
Bench of the Principal Bench, AFT, New Delhi, becomes extracted
hereinafter.
"(a) The calculation of pension for pre-2006 Hony Nb Sub @
Rs.7,750/- w.e.f. 1.01.2006 as allowed by the Hon'ble Supreme
Court was held to be valid.
(b) That the benefit of revision of pension undertaken by the
CCS had not been extended to the Hony Nb Sub who had retired
prior to 01.01.2006.
(c) The tables annexed with the MoD letters dated 08.03.2010
and 17.01.2013 were quashed and the Union of India was
directed to work out the requisite tables afresh.
(d) That the benefit should be reckoned based on a notional
minimum in the post-2006 revised pay scale s per the fitment
table, corresponding to the maximum of the pre 6th CPC pay
scale."
12. The answers rendered thereons become embodied in
paragraph 84 of the verdict (supra), paragraph whereof becomes
extracted hereinafter.
"(a) A pre-2006 retiree Hony Nb Sub is entitled to the pension
of a Hony Nb Sub as promulgated vide MoD notification dated
21.02.2010 and implementation instructions issued vide
PCDA(P) Circular No.631 dated 05.03.2020.
(b) The individual is not entitled to be pension of a regular Nb
Sub as he is only entitled to the pension of a Hony Nb Sub which
is calculated based on a notional promotion to the rank of a
regular Nb Sub at the minimum of the pay band, including the
grade pay, MSP and group pay as applicable.
(c) This pension will be reckoned with reference to a notional
maximum in the post 01.01.2006 revised pay structure
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corresponding to the maximum of the previous pay scales as per
the fitment table for each rank, determined on the basis of
notional maximum for the rank and group across the three
Services, as applicable in fixing the pension of all pre-2006
retirees."
13. The crystallized position of law as become declared in the
above extracted paragraph, as carried in the verdict (supra), is that;
a) All pre 2006 retirees from the Hony rank of Naib Subedars,
becoming entitled to the pension of regular Naib Subedar, in
terms of MoD notification dated 21.02.2020 and
implementation instructions issued vide PCDA(P) Circular
No.631 dated 05.03.2020.
b) Any individual become declared to not become entitled to the
benefit of a regular Naib Subedar but he is only entitled to the
pension of a Hony Naib Subedar, which is to be calculated on
the base of the said calculation through endowing qua him a
notional promotion to the rank of a regular Naib Subedar at the
minimum of the pay band, including the grade pay, MSP and
group pay as applicable.
c) The said pension was reckoned with reference to a notional
maximum in the post 01.01.2006 revised pay structure
corresponding to the maximum of the previous pay scales as per
the fitment table for each rank, determined on the basis of
notional maximum for the rank and group across the three
services, as applicable in fixing the pension of all pre-2006
retirees.
14. As such the conferment of hony rank of Naib Subear, upon
the Havaldars in contemporaneity to their superannuation taking place,
does not make the conferment of the said hony rank, rather to be a
promotion to the regular rank of Naib Subedar, but is only notional as
such, besides is only for the purpose of endowment of benefits of
pension, which however, is to be calculated at the minimum of the pay
band, including the grade pay, MSP, and group pay as applicable to the
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regular Naib Subedars. In addition, as and when the revision takes place
in the pension payable to regular Naib Subedars, therebys there is to be
a consequent endowment of escalation even to the hony rank of Naib
Subedars.
15. Pursuant to the affirmation being made by the Apex Court
to the verdict made on 08.02.2010, upon O.A. No.42 of 2010, the
present petitioners filed OA No. 1414 of 2021, before the AFT,
Chandigarh. However, the said OA became dismissed, thus through the
making of the impugned order.
16. Consequently, since the basis of the verdict of dismissal, as
made by the learned AFT concerned, becomes anchored upon the
rendition of judgment (supra) by the Full Bench of the Principal Bench,
AFT, New Delhi. Resultantly, this Court is required to discern the
gravamen of the impugned order. The relevant paragraphs, as become
carried in the judgment made by the Full Bench of the Principal Bench,
AFT, New Delhi, which become depended upon in the impugned order,
are embodied in paragraph Nos.29, 46 and 82, paragraph whereofs
become extracted hereinafter.
"29. Mr. S.M. Dalal, learned counsel for the applicant in OA
589/2019 then concluded that a Hony Nb Sub was entitled to the
same scale of pension as is fixed for a regular Nb Sub of the same
Group. He emphasised that there cannot be a class of employees,
wherein, pension was being calculated on different scales; the
pension of pre-2006 retirees being calculated based on the pay scale
of a Hav while the pension of post-2006 retirees being calculated
based on the scale of a regular Nb Sub. He further added that the
pension of a Hony Nb Sub in Group-Y with the length of service of 24
years was thus entitled to pension @ Rs.9,382/- w.e.f 01.07.2009/-;
@ Rs.9429/- w.e.f 01.07.2014 (OROP) and Rs.24,233/- w.e.f
01.01.2016 in the 7th CPC. Similarly, the Hony Nb Sub in Group-X
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was entitled to have his pension fixed at Rs.10,115/- w.e.f 01.01.2016
to 30.06.2014, after which he would draw a pension based on OROP.
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46. Referring to the query regarding the disparity in the OROP table,
the counsel emphatically stated that the fixation of pension in the
cases at hand had no connection with OROP. Не emphasized that
once the pension was fixed as per the letter dated
21.02.2020/Circular No.631, it would automatically be assimilated
by OROP as per the policy in vogue. Thus, the contention of the
applicant that different parameters, had been adopted for fixing the
pension of Hony Nb Sub in Group-X and Group-Y w.e.f. 01.07.2014
in the OROP table was incorrect The counsel stated that in preparing
the OROP table applicable from 01.07.2014, the same principles and
policies have been adopted for all ranks (Officers and JCOS/ORS).
Elaborating on the principles of OROP, the counsel stated that
pension was to be re- fixed for all pensioners based on the average of
minimum and maximum pension of retired personnel as per the live
data of 2013 for OROP-I w.e.f. 01.07.2014 and as per the live data of
2018 for OROP-II w.e.f. 01.07.2019 in the same rank/group and with
the same length of service. He further elaborated that wherever, the
rates of higher qualifying service in a rank were lower than the rates
of lower qualifying service in the same rank/group, or where data
is/are blank for higher qualifying service, then the same has been
protected by the higher rate of lower qualifying service in the same
group. Thus, due to this, many rates in the same column appear
equal. He further added that similarly, wherever the revised rate of
pension under OROP is lower in the higher rank than the rate in the
lower rank in the same qualifying service, then the same has been
protected with higher rates of lower rank resulting in similar rate i
two adjacent columns for certain qualifying service.
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82. As regards the observations on the OROP Table, the counsel for
the respondents has explained the rationale. We have no hesitation in
upholding the fact that once the pension of pre-2006 Hony Nb Subs
are re-fixed as per the Tables given in the notification dated
21.02.2020, their pension under OROP will be automatically scaled.
We do not wish to examine the OROP issue any further as this is
beyond the issue in Reference to this Large Bench."
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17. However, though in the relevant paragraph 82, as carried in
the judgment rendered by the Full Bench of the Principal Bench, AFT,
New Delhi, the learned Full Bench concerned, proceeded to
unhesitatingly uphold, the fact that once the pension of pre-2006 Hony.
Naib Subdars, are re-fixed as per the tables given in the notification
dated 21.02.2020, thereupons the pension of the (supra) under OROP
scheme, thus become automatically scaled. However, in the last
sentence of the said paragraph, the Full Bench of the Principal Bench,
AFT, New Delhi, declared that it does not intend to examine the OROP
issue any further as this is beyond the issue in reference to the Full
Bench concerned.
18. Though, the learned counsel for the petitioner argues, that
the (supra) last sentence which occurs in paragraph 82 of the verdict
pronounced by the Full Bench of the Principal Bench, AFT, New Delhi,
thus makes the prior thereto observations relating to the upholdings of
the quantum of pension endowed vis-a-vis pre-2006 Hony. Naib
Subdars, which is declared to become calculated in consonance with the
table given in the notification dated 21.02.2020, besides with the further
declaration therein, that therebys the pension under OROP would
become automatically scaled, rather to be of no consequence, given the
same being orbiter dicta. In other words, he submits that since therebys
the earlier thereto apposite upholdings, thus also becomes obiter dicta,
as the (supra) last sentence makes them, to be so construed.
19. However, the (supra) argument is mis-founded inter alia for
the following reasons:-
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a) Unless the upholdings (supra) become reversed by the
Apex Court through a SLP becoming successfully made
thereagainst by the aggrieved-petitioners, thereby the said
upholding holds force.
b) Needless to state that (supra) last sentence which occurs
in paragraph 82, wherebys the Full Bench of the Principal
Bench, AFT, New Delhi, proceeded to not further dilate
upon the issue relating to OROP, on the ground, that the
same is beyond the issue in reference to the Full Bench
concerned, thus cannot dilute the strength of the upholdings
(supra), as occur in the prior thereto sentence, especially
when the said sentence acquires binding and conclusive
force, given the same remaining unsuccessfully challenged
before the Apex Court, in the apposite SLP, rather as reared
at the instance of the soldiers concerned.
c) It is further needless to state that the said last sentence, is
neither obiter dicta nor it overshadows the effective impact
of the prior thereto binding and conclusive upholdings of
notification dated 21.02.2020 nor does it eclipse the
effective binding decision made thereins, qua the pension
of the retirees under the OROP, thus becoming
automatically become scaled but only upon the makings of
revision of the pensions of the regular Naib Subedars.
d) The aforesaid penultimate sentence which as stated
(supra), acquires complete effectivity, thus is also in
alignment with the apposite bestowment made through
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letter dated 12.06.2009, wherebys vis-a-vis the hony. Rank
of Naib Subedar, a declaration is made that the said
conferred hony. Rank, will be only a notional promotion to
the higher grade of Naib Subedar and only for the benefit
of computation of pension.
e) Since the answers (supra), as made to the (supra)
reference by the Full Bench of the Principal Bench, AFT,
New Delhi, also pronounced the relevant reckoners' for
calculating the pension vis-a-vis the Hony. Naib Subedars,
inasmuch, as the said reckoner becoming grooved on
calculations of pension to the Hony. Naib Subedars, rather
being made at the minimum of the pay band, including the
grade pay, MSP and group pay as applicable to the regular
Naib Subedars. Moreover, with the corresponding revision
taking place in the pension to be endowed to the regular
Naib Subedars, therebys the benefits of the said escalations
becoming also concomitantly endowed to the Hony Naib
Subedars, thus is in consonance with the circular (supra),
wherebys there is no breach to the principle of OROP.
20. Consequently, the argument raised before this Court by the
learned counsel for the petitioner, that the said last sentence, is merely
obiter dicta and nor therebys any reliance was amenable to be placed on
the prior thereto sentence, which occurs in paragraph 82 of the verdict
rendered by the Full Bench of the Principal Bench, AFT, New Delhi,
but is legally unworthwhile, and, as such, is rejected.
21. In consequence, the revision of pension as claimed by the
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present petitioner in terms of OROP is a pre mature claim and would
become bestowed upon him only upon the happening of revisions in the
pension payable to a regular Naib Subedar. The said reason is thus
completely in alignment with the (supra) extracted answers, as become
meted to the relevant reference, thus by the Full Bench of the Principal
Bench, AFT, New Delhi, especially when the said decision became in
toto affirmed by the Apex Court in SLP (supra).
22. In aftermath, this Court finds no merit in the instant writ
petition and with the observation(s) aforesaid, the same is dismissed.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
January 18th, 2025
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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