Armed Forces – Pensionary benefits – Claim for higher pay scale – When not valid – In consequence of implementation of Fifth Pay Commission Report, Government Order dtd. 21.11.1997 issued with respect to “pay and allowances of Armed Force officers” – Relying thereon, Commissioned officers of all the three wings of Defence Forces, i.e. Army, Air Force and Navy, who had retired prior to 01.01.1996, filed O.As. before Armed Forces Tribunal for grant of next higher scale to one held by them at the time of retirement – Some claims were rejected while others were allowed by Tribunal – On appeal, held: A perusal of Order dtd. 21.11.1997 indicates that what was conveyed by the said order was sanction of the President for improvement of pay scales of the Officers, w.e.f. 01.01.1996 – Word used in the order is “pay scales” of the officers with effect from 01.01.1996, which pre-supposes that improvement of pay-scales of the Officers who are still in the establishment, has been made– Order dated 21.11.1997 was not issued with regard to commissioned officers, who had retired prior to 01.01.1996, nor it provides for stepping up of the pay-scale of such retiree officers, to a higher rank – Thus, those who were not in service on 01.01.1996 could not claim any benefit of the order dated 21.11.1997 – Further, even order dtd. 14.01.2000 was not issued for giving any benefit to those who retired prior to 01.01.1996 – Applicants-Commissioned officers were not entitled for grant of benefit of higher pay scale under Order dtd. 21.11.1997 – Orders of Tribunal extending the said benefit to those applicants who had already retired before 01.01.1996 are set aside – Whereas, the orders of Tribunal holding that Armed Forces Officers, who have retired before 01.01.1996 are not entitled for pensionary benefits are upheld. Disposing of the appeals, the Court
HELD: 1.1 The Government of India, Ministry of Defence vide its Resolution dated 13.10.1997 had decided to implement the Vth pay Commission Report w.e.f. 01.01.1996. In continuation of the above Resolution dated 13.10.1997, another order was issued by the Ministry of Defence on 21.11.1997. A perusal of the said order indicates that what was conveyed by the said order was sanction of the President for the improvement of the pay scales of the Officers, w.e.f. 01.01.1996. The word used in the order is “pay scales” of the officers with effect from 01.01.1996, which pre-supposes that improvement of the pay-scales of the Officers has been made, who are still in the establishment. Clause
(a) of the order is the basis of the claim of the applicants. Clause
(a) consists of two separate provisions. The first part of clause
(a) states “Officers who become substantive Majors or equivalent on or after 01.01.1996 will be granted the scale of Lt. Colonel or equivalent…..,”. The above clause specifically refers to those Officers who became substantive Majors or equivalent on or after 01.01.1996. This clause is clearly inapplicable with regard to present applicants. The second part of clause (a), which is relied, is “As a one time measure, however, those who became substantive Majors or equivalent before 01.01.1996 will be granted the scale of Lt. Colonel or equivalent on completion of
21 years of commissioned service i.e. in their 22nd year with the rank pay of Major”. The above quoted portion refers to grant of scale of Lt. Colonel or equivalent on completion of 21 years of commissioned service, i.e., in the 22nd year with the rank pay of Major. In the Government order dated 21.11.1997, the grant of pay-scale of Lt. Col. or equivalent is contemplated. The second part of the clause (a) also refers to grant of pay-scale of Lt. Colonel or equivalent to Armed Forces Personnel. The grant of pay-scale in next cadre is generally in reference to existing officers. [Paras 17, 18][762-B; 763-E-H; 764-A-B]
1.2 The above view is fortified by subsequent order dated 07.06.1999 issued by the Government, which was with regard to “implementation of Government’s decision on the recommendations of the Vth CPC relating to pensionery benefits in respect of commissioned officers and personnel below officer rank”. The said order provides that with effect from 01.01.1996 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 w.e.f. 01.01.1996 of the rank, and rank Group (in case of PBOR) held by the pensioners. The fixation of pension thus clearly of all retirees prior to 01.01.1996 is with regard to the rank, which was held by the pensioner. In event, it was intended that the benefit of Government Order dated 21.11.1997 of giving one scale higher to the rank, which was held by retiring officers at the time of retirement, the said prescription ought to have found its way in the order dated 07.06.1999. Rather the prescription and requirement in the order dated 07.06.1999 run counter to the interpretation put by the applicant on the order dated 21.11.1997. [Paras 19, 20][764-C, F-H; 765-A]
1.3 Para 2.1 of the order dated 07.06.1999, relating to the the commissioned officers of both post and pre 1996 cases, also clearly indicates that 50% of the minimum of the revised pay scale was introduced w.e.f. 01.01.1996 for the rank last held by the commissioned officers at the time of his/her retirement. The said provision does not bring any concept of giving a higher scale of pay to one, which was held by the commissioned officers at the time of his retirement. Thus, a plain reading of the order dated 07.06.1999 clearly indicates that the order dated 07.06.1999 was issued relating to “pensionery benefits in respect of commissioned officers” while order dated 21.11.1997 was issued with respect to “pay and allowances of Armed Force officers.” Thus, the subject matters of both the orders were different, which is clear by the reading of both the orders. The order dated 21.11.1997 was not issued with regard to commissioned officers, who had retired prior to 01.01.1996, nor it provides for stepping up of the pay-scale of such retiree officers, to a higher rank, i.e. from rank of substantive Majors or equivalent to the scale of Lt. Colonel or equivalent. [Paras 20, 21][764-F-H; 765-D-F]
1.4 A reading of the order dated 14.01.2000, on which also reliance was placed by the applicants to support their contention that earlier prescription of 21 years has been reduced to 20 years, indicates that revised years of service required for promotion of substantive cadres were provided for. The promotion to substantive cadres, which was specifically referred to in the Government order was clearly with regard to officers, who were in service on 01.01.1996, which was the date for implementation of Vth Pay Commission recommendations. The said order dated 14.01.2000 was not issued for giving any benefit to those who retired prior to 01.01.1996. [Paras 22, 23][765-G-H; 767-A-B]
1.5 It is well settled that pensioners for the purposes of pension benefit form a class and the schemes which classify pensioners into two classes on the basis of cut off date have always been frowned by this Court. There cannot be any dispute to propositions that the State cannot arbitrarily pick and choose from amongst similarly situated persons, a cut off date for extension of benefits especially pensionery benefits, there has to be a classification founded on some rational principle when similarly situated class is differentiated for grant of any benefit. However, present is not a case where there is any discrimination in pensionery benefits of pre 01.01.1996 and post 01.01.1996 retirees. Para 2.1 of the order dated 07.06.1999, provides for same principle or formula for computation of pension of both “post and pre 01.01.1996 cases”. The applicants, based their claims on the order of the Government of India dated 21.11.1997 and it is already held that those who were not in service on 01.01.1996 could not claim any benefit of the order dated 21.11.1997. Order dated 21.11.1997 was issued in reference to pay and allowances of Armed Forces Officers, which pre-supposes that these officers were in the establishment on 01.01.1996. Thus, applicants were clearly not entitled for grant of benefit of higher pay scale under the order dated 21.11.1997. The orders of the Armed Forces Tribunal extending the said benefit to those applicants who had already retired before 01.01.1996 are set aside whereas the orders of the Armed Forces Tribunal which have taken the view that Armed Forces Officers, who have retired before 01.01.1996 are not entitled for pensionery benefits are upheld. [Paras 30, 31 and 34][770-G-H; 773-B-F]
Maj. K.G. Thomas v. Union of India & Ors. [Judgment dated 19.12.2012 passed by Armed Forces Tribunal, Principal Bench, New Delhi in O.A. No. 256 of 2011] – distinguished.
Col. B.J. Akkara (Retd.) v. Government of India and Others. (2006) 11 SCC 709: [2006] 7 Suppl. SCR 58 ; D.S. Nakara & Ors. v. Union of India (1983) 1 SCC
305 : [1983] 2 SCR 165 ; K.C. Bajaj & Ors. v. Union of India & Ors. (2014) 3 SCC 777 : [2013] 14 SCR 1100 ; V. Kasturi v. Managing Director, State Bank of India (1998) 8 SCC 30 : [1998] 2 Suppl. SCR 269 ; Union of India & Anr. v. SPS Vains (Retd.) & Ors. (2008)
12 SCALE 360 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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