SUCHET SINGH YADAV & ORS. versus UNION OF INDIA & ORS.

[2018] 2 S.C.R.

SUCHET SINGH YADAV & ORS.

UNION OF INDIA & ORS.

(Civil Appeal Nos. 770-771 of 2018)

FEBRUARY 21, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

CArmed Forces – Pensionary benefits – Claim for higher payscale – When not valid – In consequence of implementation of FifthPay Commission Report, Government Order dtd. 21.11.1997 issuedwith respect to “pay and allowances of Armed Force officers” –Relying thereon, Commissioned officers of all the three wings ofDefence Forces, i.e. Army, Air Force and Navy, who had retiredDprior to 01.01.1996, filed O.As. before Armed Forces Tribunal forgrant 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: perusal of Order dtd. 21.11.1997 indicatesthat what was conveyed by the said order was sanction of thePresident for improvement of pay scales of the Officers, w.e.f.E01.01.1996 – Word used in the order is “pay scales” of the officerswith effect from 01.01.1996, which pre-supposes that improvementof pay-scales of the Officers who are still in the establishment, hasbeen made– Order dated 21.11.1997 was not issued with regard tocommissioned officers, who had retired prior to 01.01.1996, nor itFprovides for stepping up of the pay-scale of such retiree officers, toa higher rank – Thus, those who were not in service on 01.01.1996could 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 tothose who retired prior to 01.01.1996 – Applicants-Commissionedofficers were not entitled for grant of benefit of higher pay scaleGunder Order dtd. 21.11.1997 – Orders of Tribunal extending thesaid benefit to those applicants who had already retired before01.01.1996 are set aside – Whereas, the orders of Tribunal holdingthat Armed Forces Officers, who have retired before 01.01.1996are not entitled for pensionary benefits are upheld.

Disposing of the appeals, the Court

HELD: 1.1 The Government of India, Ministry of Defencevide its Resolution dated 13.10.1997 had decided to implementthe Vth pay Commission Report w.e.f. 01.01.1996. In continuationof the above Resolution dated 13.10.1997, another order wasissued by the Ministry of Defence on 21.11.1997. perusal ofthe said order indicates that what was conveyed by the said orderwas sanction of the President for the improvement of the payscales of the Officers, w.e.f. 01.01.1996. The word used in theorder is “pay scales” of the officers with effect from 01.01.1996,which pre-supposes that improvement of the pay-scales of theOfficers 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 equivalenton or after 01.01.1996 will be granted the scale of Lt. Colonel orequivalent…..,”. The above clause specifically refers to thoseOfficers who became substantive Majors or equivalent on or after01.01.1996. This clause is clearly inapplicable with regard topresent applicants. The second part of clause (a), which is relied,is “As one time measure, however, those who becamesubstantive Majors or equivalent before 01.01.1996 will begranted the scale of Lt. Colonel or equivalent on completion of21 years of commissioned service i.e. in their 22[nd] year with therank pay of Major”. The above quoted portion refers to grant ofscale of Lt. Colonel or equivalent on completion of 21 years ofcommissioned service, i.e., in the 22[nd] year with the rank pay ofMajor. In the Government order dated 21.11.1997, the grant ofpay-scale of Lt. Col. or equivalent is contemplated. The secondpart of the clause (a) also refers to grant of pay-scale of Lt. Colonelor equivalent to Armed Forces Personnel. The grant of pay-scalein next cadre is generally in reference to existing officers. [Paras17, 18][762-B; 763-E-H; 764-A-B]1.2 The above view is fortified by subsequent order dated07.06.1999 issued by the Government, which was with regard to“implementation of Government’s decision on therecommendations of the Vth CPC relating to pensionery benefitsin respect of commissioned officers and personnel below officer

Arank”. The said order provides that with effect from 01.01.1996pension of all Armed Forces Pensioners irrespective of their dateof retirement shall not be less than 50% of the minimum pay inthe 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. Thefixation of pension thus clearly of all retirees prior to 01.01.1996Bis with regard to the rank, which was held by the pensioner. Inevent, it was intended that the benefit of Government Order dated21.11.1997 of giving one scale higher to the rank, which was heldby retiring officers at the time of retirement, the said prescriptionought to have found its way in the order dated 07.06.1999. RatherCthe prescription and requirement in the order dated 07.06.1999run counter to the interpretation put by the applicant on the orderdated 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 thethe commissioned officers of both post and pre 1996 cases, alsoDclearly indicates that 50% of the minimum of the revised payscale was introduced w.e.f. 01.01.1996 for the rank last held bythe commissioned officers at the time of his/her retirement. Thesaid provision does not bring any concept of giving higher scaleof pay to one, which was held by the commissioned officers at thetime of his retirement. Thus, plain reading of the order datedE07.06.1999 clearly indicates that the order dated 07.06.1999 wasissued relating to “pensionery benefits in respect ofcommissioned officers” while order dated 21.11.1997 was issuedwith respect to “pay and allowances of Armed Force officers.”Thus, the subject matters of both the orders were different, whichFis clear by the reading of both the orders. The order dated21.11.1997 was not issued with regard to commissioned officers,who had retired prior to 01.01.1996, nor it provides for steppingup of the pay-scale of such retiree officers, to 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]G

1.4 reading of the order dated 14.01.2000, on which alsoreliance was placed by the applicants to support their contentionthat 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 tosubstantive cadres, which was specifically referred to in theGovernment order was clearly with regard to officers, who werein service on 01.01.1996, which was the date for implementationof Vth Pay Commission recommendations. The said order dated14.01.2000 was not issued for giving any benefit to those whoretired 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 ofpension benefit form class and the schemes which classifypensioners into two classes on the basis of cut off date have alwaysbeen frowned by this Court. There cannot be any dispute topropositions that the State cannot arbitrarily pick and choose fromamongst similarly situated persons, cut off date for extensionof benefits especially pensionery benefits, there has to be aclassification founded on some rational principle when similarlysituated class is differentiated for grant of any benefit. However,present is not case where there is any discrimination inpensionery benefits of pre 01.01.1996 and post 01.01.1996retirees. Para 2.1 of the order dated 07.06.1999, provides forsame principle or formula for computation of pension of both “postand pre 01.01.1996 cases”. The applicants, based their claimson the order of the Government of India dated 21.11.1997 and itis already held that those who were not in service on 01.01.1996could not claim any benefit of the order dated 21.11.1997. Orderdated 21.11.1997 was issued in reference to pay and allowancesof Armed Forces Officers, which pre-supposes that these officerswere in the establishment on 01.01.1996. Thus, applicants wereclearly not entitled for grant of benefit of higher pay scale underthe order dated 21.11.1997. The orders of the Armed ForcesTribunal extending the said benefit to those applicants who hadalready retired before 01.01.1996 are set aside whereas theorders of the Armed Forces Tribunal which have taken the viewthat Armed Forces Officers, who have retired before 01.01.1996are not entitled for pensionery benefits are upheld. [Paras 30, 31and 34][770-G-H; 773-B-F]

Maj. K.G. Thomas v. Union of India & Ors. [Judgmentdated 19.12.2012 passed by Armed Forces Tribunal,Principal Bench, New Delhi in O.A. No. 256 of 2011]– distinguished.

ACol. B.J. Akkara (Retd.) v. Government of India andOthers. (2006) 11 SCC 709: [2006] 7 Suppl. SCR 58 ;D.S. Nakara & Ors. v. Union of India (1983) 1 SCC305 : [1983] 2 SCR 165 ; K.C. Bajaj & Ors. v. Unionof India & Ors. (2014) 3 SCC 777 : [2013] 14 SCR1100 ; V. Kasturi v. Managing Director, State Bank ofBIndia (1998) 8 SCC 30 : [1998] 2 Suppl. SCR 269 ;Union of India & Anr. v. SPS Vains (Retd.) & Ors. (2008)12 SCALE 360 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 770-E771 of 2018.

From the Judgment and Order dated 29.12.2015 of the ArmedForces Tribunal, Principal Bench, New Delhi in O. A. No. 666 of 2014,and Order dated 06.04.2016 in Review Application No. 4/2016 in O. A.No. 666 of 2014/Order dated 29.06.2016 in M. A. No. 431 of 2016 in R.FA. No. 4/2016 in O. A. No. 666 of 2014

WITH

Civil Appeal No. 7989 of 2015, Civil Appeal No. 7917 of 2016 andCivil Appeal Nos. 773-774, 2368 and 2369 of 2018.G

Sukhjinder Singh, Alok Gupta, R. Balasubramanian, Ms. AartiSharma, Prabhas Bajaj, Akshay Amritanshu, S.S. Ray, P. K. Mullick,Mukesh Kumar Maroria, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J. 1. Delay condoned.

2. These appeals relate to claim of commissioned officers of allthe three wings of the Defence Forces, i.e. Army, Air Force and Navy,who retired prior to 01.01.1996 for grant of next higher scale to onewhich was held by them at the time of retirement, on the strength of theGovernment of India’s Order dated 21.11.1997 issued in consequenceof implementation of Fifth Pay Commission Report.

3. These appeals were heard in two groups. First group consistingof Civil Appeal(arising out of Civil Appeal Diary No. 26259 of 2016) –Suchet Singh Yadav & Ors. Vs. Union of India & Ors. and CivilAppeal(arising out of Civil Appeal Diary No. 25429 of 2017) – Union ofIndia & Ors. Vs. Lt. Cdr. C.M. Mittal & Ors., which was heard on16.01.2018. Second group of the appeals consisting of Civil Appeal No.7989 of 2015 – Lt. Cdr. Gurmukh Singh Vs. Union of India & ors., CivilAppeal No. 7917 of 2016 – V.K. Mehta Vs. Union of India & Ors., CivilAppeal (arising out of Civil Appeal Diary No. 7231 of 2016) – Union ofIndia & Ors. Vs. Lt. Cdr. Bhisham Kumar (Retd.) & Ors. and CivilAppeal (arising out of Civil Appeal Diary No. 22257 of 2017) – Unionof India & Ors. Vs. Sqn. Ldr. Jai Kumar & Ors., was heard on02.02.2018.

4. The appeals have been filed both by the Defence Officerswhose claims have been rejected by Armed Forces Tribunal and byUnion of India where the claims were allowed by the Armed ForcesTribunal. The judgments delivered by Armed Forces Tribunal, PrincipalBench, New Delhi as well as the other Regional Benches have ondifferent occasions expressed divergent views on the same issue.

5. Civil Appeal(arising out of Civil Appeal Diary No. 26259 of2016) – Suchet Singh Yadav & Ors. Vs. Union of India & Ors. and CivilAppeal(arising out of Civil Appeal Diary No. 25429 of 2017) – Union ofIndia & Ors. Vs. Lt. Cdr. C.M. Mittal & Ors. have arisen against thesame judgment of the Armed Forces Tribunal, Principal Bench, NewDelhi dated 29.12.2015 and 06.04.2016, arising out of O.A. No. 666 of2014 filed by Sqn. Ldr. Suchet Singh Yadav & Ors. Reference of factsand pleadings in the Civil Appeal filed by Sqn. Ldr. Suchet Singh Yadavshall be sufficient to decide all these appeals, which raises commonquestions of facts and law.

ACivil Appeal(arising out of Civil Appeal Diary No. 26259 of 2016)– Suchet Singh Yadav & Ors. Vs. Union of India & Ors.

6. Sqn. Ldr. Suchet Singh Yadav was commissioned on 27.03.1965and he retired on 14.08.1985 while holding the rank of Sqn. Ldr. in theAir Force. The report of Fifth Pay Commission was submitted onB30.01.1997 pertaining to structure of emoluments, allowances andconditions of service of Armed Forces Personnel. The CentralGovernment issued order dated 13.10.1997 implementing therecommendations with certain modification w.e.f. 01.01.1996. On21.11.1997, the Government of India, Ministry of Defence issued anorder regarding pay and allowances of Armed Forces Officers. OnC07.06.1999, the Government issued an order regarding implementationof Government’s decision on the recommendations of the Vth CPCrelating to pensionery benefits in respect of commissioned officers andpersonnel below officer rank. On 14.01.2000, another order implementingVth Pay Commission recommendations – Para 147.21 “conditionsDregarding grant of substantive rank to officers of Army, Air Force andNavy” was issued. The appellant Suchet Singh Yadav and other fourteenArmed Forces Officials, who held the rank of Sqn. Ldr./Major/Lt. Cdr.respectively claim that they were entitled to fixation of their pay/pensionin the next pay-scale of Lt. Col. or equivalent in pursuance of theGovernment Order dated 21.11.1997, which has been denied to them.EConsequently, Sqn. Ldr. Suchet Singh Yadav and fourteen other ArmedForces Officials filed O.A. No. 666 of 2014 in the Armed Forces Tribunal,Principal Bench, New Delhi. In the Original Application, the applicantsclaimed following reliefs:-(a) The petitioner be granted pension of the rank of WingFCommander (Time Scale) and equivalent ranks with effect from01.01.1996 with consequential benefits in pursuance ofimplementation of 5[th] CPC recommendations (Para 147.21), asapproved vide Govt. of India letter dated 14.01.2000 at Annexure-P-3 by quashing respondents communications dated 02.09.2014Gand other such communications/orders as and when issued atminimum level in terms of Govt. of India letter dated 21.11.1997,read with Govt. of India letter dated 07.06.1999 and09.02.2001(granting modified parity) and Govt. of India letter dated14.01.2000 with 12% interest.

(b) The above prayers may also kindly be applied simultaneouslyto other fourteen petitioners herein, as they have joined togetherto file single petition;

(c) Pass any other relief(s), which this Hon’ble Tribunal maydeem fit appropriate, just and proper in the interest of justice andin the facts and circumstances of the case may also be granted tothe petitioners.

7. Counter Affidavit on behalf of the respondents in O.A. wasfiled pleading that letters of Ministry of Defence dated 21.11.1997 and14.01.2000 are not applicable in respect of applicants, who had retiredprior to 01.01.1996. Armed Forces Tribunal after hearing the partiesvide judgment dated 29.12.2015 dismissed the O.A. The Tribunal heldthat the claim cannot be extended prior to 01.01.1996 and further theydid not complete the necessary service, which was necessary for grantof higher pension. An application for review was filed before the Tribunalbeing R.A. No. 4 of 2016. In the Review Application, it was contendedthat although some of the applicants had completed 20 years but majorityof them had completed 21 years of service prior to 01.01.1996, hence,they would be covered by judgment of the Tribunal dated 19.12.2012 inMaj. K.G. Thomas Vs. Union of India & Ors., O.A. No. 256 of 2011,which judgment was also upheld by this Court. The Tribunal vide itsjudgment and order dated 06.04.2016 allowed the review application ofall the applicants except Sqn. Ldr. Suchet Singh Yadav, who was at Sl.No.1 and those, who were mentioned at Sl. No. 11, 12 and 14. SuchetSingh Yadav and three others, namely, Maj. H.R.Y.Rajan, Lt. Cdr. I.N.(Retd.) R.E. Balasubramanian and Maj. Ashok Kumar Choudhary havefiled civil appeal questioning the judgments dated 29.12.2015 and06.04.2016. The Union of India aggrieved by the judgments of theTribunal dated 29.12.2015 and 06.04.2016 has filed appeal.

–Civil Appeal No. 7989 of 2015 Lt. Cdr. Gurmukh Singh Vs.

Union of India & ors.,

8. This appeal has been filed by Lt. Cdr. Gurmukh Singh aggrievedby the judgment of the Armed Forces Tribunal, Principal Bench dated11.01.2012 by which claim of the appellant on the basis of the Governmentorder dated 21.11.1997 to give the benefit of time scale promotion in thescale of Commander has been rejected. The appellant had retired fromthe post of Lt. Cdr. on 01.10.1992.

ACivil Appeal No. 7917 of 2016 – V.K. Mehta Vs. Union of India &Ors.

9. This appeal is filed against the judgment dated 18.10.2011refusing the claim of the appellant to grant time scale of Commander.The appellant had also retired as Lt. Cdr. on 30.12.1995. The TribunalBhas rejected the claim.

Civil Appeal(arising out of Civil Appeal Diary No. 7231 of 2016)– Union of India & Ors. Vs. Lt. Cdr. Bhisham Kumar (Retd.) &

Ors.

10. The Union of India is in appeal against the order datedC25.02.2015 passed by the Armed Forces Tribunal by which the claim ofthe respondents was allowed relying on earlier judgment of the sameTribunal in Maj. K.G. Thomas Vs. Union of India & Ors., O.A. No.256 of 2011 decided on 19.12.2012. The respondents had also retired on30.09.1993 as Lt. Cdr.

DCivil Appeal(arising out of Civil Appeal Diary No. 22257 of 2017)– Union of India & Ors. Vs. Sqn. Ldr. Jai Kumar & Ors.

11. The appeal has been filed against the judgment of the ArmedForces Tribunal dated 14.10.2016 by which judgment the claim of therespondents was allowed following the earlier judgment of the TribunalEin Maj. K.G. Thomas Vs. Union of India & Ors., O.A. No. 256 of2011. The respondents had also retired in July, 1993 as Sqn. Ldr.

12. We have heard the learned counsel appearing for the ArmedForces Personnel, who are appellants before us as well as learned counselfor the Union of India. Parties are being referred to as described in theFOriginal Application before the Armed Forces Tribunal, i.e., the applicantsand the respondents.

13. Learned counsel for the applicants submitted that Governmentorder dated 21.11.1997 granted the benefit to those who becamesubstantive Majors or equivalent before 01.01.1996, the scale of Lt.GCol. or equivalent on completion of 21 years of commissioned servicei.e. in their 22[nd] year with the rank pay of Major. The learned counselfor the applicants submitted that prescription of 21 years was subsequentlyreduced to 20 years by order dated 14.01.2000. The applicants, whohave completed 21/20 years of commissioned service, were entitled toscale of pay of Lt. Col. or equivalent. The stand of the respondents thatH

the benefit of the order dated 21.11.1997 was not available to those,who retired prior to 01.01.1996 is incorrect and unjustified. There cannotbe any discrimination with regard to benefits of homogeneous class ofretirees on the basis of cut off date, i.e. 01.01.1996. All those, whoretired prior to 01.01.1996 or who shall retire after 01.01.1996 are entitledfor the same benefit, i.e., stepping up of one higher scale on completionof 21/20 years of commissioned service.

14. It is submitted that Armed Forces Tribunal Principal Benchhas allowed the similar claim in Maj. K.G. Thomas Vs. Union of India& Ors., O.A. No. 256 of 2011 vide its judgment dated 19.12.2012, whichjudgment has also received affirmation of this Court vide its order dated06.02.2015 in Civil Appeal No.1843-1844 of 2015 (arising out of DiaryNo. 12209 of 2014), all the applicants are also entitled for the samebenefit. Learned counsel for the appellants has relied on various orderspassed by different benches of Armed Forces Tribunal accepting theclaim as well as on few judgments of this court, which shall be referredto while considering the submissions in detail.15. Learned counsel for the Union of India refuting the submissionscontended that the applicants are not entitled to any benefit under theorder dated 21.11.1997. The order dated 21.11.1997 was issued withregard to pay and allowances of the Armed Forces Personnel. Theorder dated 21.11.1997 pre-supposes that officers are in service on01.01.1996. He submits that with regard to pensionery benefits to those,who had retired prior to 01.01.1996, the Government issued anotherorder on 07.06.1999. The applicants, thus, are covered by the Governmentorder dated 07.06.1999, which had also revised their pension by steppingup the pension in accordance with the terms and conditions of the order.He submits that order of the Armed Forces Tribunal in Maj. K.G. ThomasVs. Union of India & Ors., O.A. No. 256 of 2011, which is relied bythe applicants was confined to the facts of the said case and this Court’sorder while dismissing the appeal made it clear that judgment was limitedto the facts of that case. It is submitted that no such ratio can be readfrom the order of this Court dated 06.02.2015 dismissing the appeal ofthe Union of India against the judgment of Armed Forces Tribunal inMaj. K.G. Thomas case, which may help the applicants in the presentcase. It is submitted that the argument of discrimination in extending thepensionery benefits to those, who retired prior to 01.01.1996 and those,who were in service after 01.01.1996 is wholly misconceived and hasbeen founded on misconception.

A16. We have considered the submissions of the learned counselfor the parties and have perused the records.

17. The Government of India, Ministry of Defence vide itsResolution dated 13.10.1997 had decided to implement the Vth payCommission Report w.e.f. 01.01.1996. In continuation of the aboveBResolution dated 13.10.1997, another order was issued by the Ministryof Defence on 21.11.1997, which is the sheet anchor of the claim of theapplicants. It is useful to extract the entire order dated 21.11.1997, whichfalls for consideration in the present batch of appeals. The order dated21.11.1997 is to the following effect:-

“No. 1(5)/97/D(Pay/Services) GOVERNMENT OF INDIA,

MINISTRY OF DEFENCE,NEW DELHI, 21st November 1997.

The Chief of the Army StaffThe Chief of the Naval StaffThe Chief of the Air StaffSub :- PAY AND ALLOWANCES OF ARMED FORCESOFFICERS.

Sir,

In continuation of this Ministry’s Resolution No, 1(3)/97/D(Pay/Services) dated 13th October 1997 notified in the Gazette ofIndia dated 16th October 1997 regarding implementation of payand allowances etc. of the Armed Forces Officers as result ofthe recommendations of the Fifth Central Pay Commission, I amdirected to convey the sanction of the President for the followingimprovement of the pay scales of the officers with effect from1-1-1996 :-

(a) Majors and equivalentG

Officers who become substantive Majors or equivalent on orafter 1-1- 1996 will be granted the scale of Lt. Colonel orequivalent on their stagnation for one year in the revised scale ofMajor or equivalent. Such officers will, however, continue to drawthe rank pay for Majors or equivalent.

As one time measure, however, those who become substantiveMajors or equivalent before 1-1-1996, will be granted the scale ofLt. Colonel or equivalent on completion of 21 years ofcommissioned service i.e. in their 22nd year with the rank pay ofMajor.

(b) Officers under training

The existing stipend of Rs. 8,000/- given to officer trainees maybe converted to ‘Pay’ for all purposes on successful completionof training. However, the period of training will not be treated ascommissioned service.

2. This issues with the concurrence of the Ministry ofDefence(Finance) vide their U.O No. 1151/PA Gp, dated21.11.1997.

Yours faithfully,

Sd/- x x x( M.S. SOKHANDA)Joint Secretary to theGovernment of India.

Copy to all concerned.”

18. perusal of the above order indicates that what was conveyedby the said order was sanction of the President for the improvement ofthe pay scales of the Officers, w.e.f. 01.01.1996. The word used in theorder is “pay scales” of the officers with effect from 01.01.1996, whichpre-supposes that improvement of the pay-scales of the Officers hasbeen made, who are still in the establishment. Clause (a) of the order isthe basis of the claim of the applicants. Clause (a) consists of twoseparate provisions, (the first part of clause (a) states “Officers whobecome substantive Majors or equivalent on or after 01.01.1996 will begranted the scale of Lt. Colonel or equivalent….., the above clausespecifically refers to those Officers who became substantive Majors orequivalent on or after 01.01.1996. This clause is clearly inapplicablewith regard to present applicants. The second part of clause (a), whichis relied, is “As one time measure, however, those who becamesubstantive Majors or equivalent before 01.01.1996 will be granted thescale of Lt. Colonel or equivalent on completion of 21 years of

Acommissioned service i.e. in their 22[nd] year with the rank pay of Major”.The above quoted portion refers to grant of scale of Lt. Colonel orequivalent on completion of 21 years of commissioned service, i.e., inthe 22[nd] year with the rank pay of Major. In the Government orderdated 21.11.1997, the grant of pay-scale of Lt. Col. or equivalent iscontemplated. The second part of the clause (a) also refers to grant ofBpay-scale of Lt. Colonel or equivalent to Armed Forces Personnel. Thegrant of pay-scale in next cadre is generally in reference to existingofficers.

19. Our above view is fortified by subsequent order dated07.06.1999 issued by the Government, which was with regard toC“implementation of Government’s decision on the recommendations ofthe Vth CPC relating to pensionery benefits in respect of commissionedofficers and personnel below officer rank”. The opening paragraph ofthe Government Order provides :-

“Consequent on issue of Ministry of Personnel, Public GrievancesDand Pensions, Department of Pension & Pensioners’ welfare OMNo. 45/10/98- P&PW (A) dated 17.12.1998 regarding modifiedprovisions on grant of pension / family pension in respect of civil-ians, the undersigned is directed to say that the President is pleasedto decide that w.e.f. 1.1.96 pension of all Armed Forces pension-Eers irrespective of their date of retirement shall not be less than50% of the minimum pay in the revised scale of pay introducedwef 1.1.96 of the rank, and rank Group (in case of PBOR) allheld by the pensioner……..”

20. The above order provides that with effect from 01.01.1996Fpension of all Armed Forces Pensioners irrespective of their date ofretirement shall not be less than 50% of the minimum pay in the revisedscale 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 thusclearly is 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 theGbenefit of Government Order dated 21.11.1997 of giving one scale higherto the rank, which was held by retiring officers at the time of retirement,the said prescription ought to have been found its way in the order dated07.06.1999. Rather the prescription and requirement in the order dated07.06.1999 run counter to the interpretation put by the applicant on the

order dated 21.11.1997. Para 2.1 relates to the commissioned officersof both post and pre 1996 cases, which is as follows:-

“2.1 COMMISSIONED OFFICERS

POST & PRE - 1.1.96 CASES

(a) Pension shall continue to be calculated at 50% of the averageemoluments in all cases and shall be subject to minimum ofRs. 1275/- p.m. and maximum of upto 50% of the highest payapplicable to Armed Forces personnel but the full pension in nocase shall be less than 50% of the minimum of the revised scaleof pay introduced w.e.f. 1.1.96 for the rank last held by thecommission officer at the time of his / her retirement. Howeversuch pension shall be reduced pro-rata, where the pensioner hasless than the maximum required service for full pension.”

21. The above provision also clearly indicates that 50% of theminimum of the revised pay scale was introduced w.e.f. 01.01.1996 forthe rank last held by the commissioned officers at the time of his/herretirement. The above provision does not bring any concept of giving ahigher scale of pay to one, which was held by the commissioned officersat the time of his retirement. Thus, plain reading of the order dated07.06.1999 clearly indicates that the order dated 07.06.1999 was issuedrelating to “pensionery benefits in respect of commissioned officers”while order dated 21.11.1997 was issued with respect to “pay andallowances of Armed Force officers.” Thus, the subject matters of boththe orders were different, which is clear by the reading of both theorders. The order dated 21.11.1997 was not issued with regard tocommissioned officers, who had retired prior to 01.01.1996, nor it providesfor stepping up of the pay-scale of such retiree officers, to higher rank,i.e. from rank of substantive Majors or equivalent to the scale of Lt.Colonel or equivalent.

22. The order dated 14.01.2000, on which also reliance has beenplaced by the applicants to support their contention that earlier prescriptionof 21 years has been reduced to 20 years also needs comment. Theorder dated 14.01.2000 issued by the Ministry of Defence was to thefollowing effect:-

“No. 14(1)/98/D(AG)Government of India,Ministry of Defence,New Delhi, the 14th January, 2000.

Chief of the Army Staff

Chief of the Naval Staff

Chief of the Air Staff

Subject : Implementation of Vth Pay CommissionRecommendations – Para 147.21 Conditions regardinggrant of substantive rank to officers of Army, Air Forceand Navy.

Sir,

In supersession of the existing orders on the grant ofsubstantive promotion to officers of Army, Air Force andNavy, the President is pleased to sanction the followingrevised years of service required for promotion to substantivecadres of the following services/Corps :-

Arms/Service/Lt. & Equiv.Capt. Major Lt.Col. Corps & & (TS) Equiv. Equiv. & Equiv. (Years) (Years) (Years) (i) Officers On 4 10 20 of Services completion other than of AMC, ADC, training MNS, RVC, SCO, MF, SL, SD List Officers (Navy) & RCO Officers …………………………………………………………………. …………. ……. …… ……

23. reading of the aforesaid order indicates that revised yearsof service required for promotion of substantive cadres were providedfor. The promotion to substantive cadres, which was specifically referredto in the Government order was clearly with regard to officers, whowere in service on 01.01.1996, which was the date for implementationof Vth Pay Commission recommendations. The said order dated14.01.2000 was not issued for giving any benefit to those who retiredprior to 01.01.1996.

24. Much reliance has been placed by the appellant on the orderspassed by the Armed Forces Tribunal in Maj. K.G. Thomas Vs. Unionof India & Ors., O.A. No. 256 of 2011, against which order, the appealwas also dismissed by this Court. Maj. K.G. Thomas was also an officer,who was holding the rank of substantive Major at the time of retirementon 31.05.1988. O.A. No. 256 of 2011 was filed by him claiming thegrant of pay-scale of Lt. Colonel (Time Scale) in pursuance of the orderdated 21.11.1997. The Tribunal vide its judgment dated 19.12.2012allowed the claim. Para 3, 4 and 5 of the judgment, which are relevant,are quoted as below:-

“3. Therefore, the grievance of the petitioner is that, either hemay be given the rank of Lt Col (TS) or in the alternative heshould be given monetary benefit as he has put in more that 21years of service as substantive major. It appears that so far asfirst relief is concerned, the same is not possible. The alternativerelief for grant of pay scale of Lt Col (TS) without giving him therank of Lt Col has been acceded to by the respondents in theirreply. As per para 4.12 and para 5.8. In para 4.12 they havestated that “as per MoD letter dated 21 Nov 1997, officersholding the rank of substantive Major before 01 Jan 1996 are tobe granted the scale (but not the rank) of Lt Col with rank pay ofMajor on completion of 21 years of commissioned service”.Similarly, in para 5.8, they have admitted the same position thatthe petitioner is eligible for grant of scale (not rank) of Lt Col(TS) with grade pay of Major on completion of 22 years ofservice after accounting 01 year of forfeiture of service in termsof guidelines given in the MoD letter dated 21.11.1997.

4. Therefore, there is no difficulty in granting this relief to thepetitioner. Learned counsel for the respondents very fairly

conceded that he deserves this benefit. However, he submittedthat the petitioner has approached this Tribunal belatedly and hasfiled the present OA on 06.07.2011. Therefore, relief may berestricted to three years only.

5. This objection of learned counsel for the respondents is upheld.The petitioner is held entitled to the arrears of benefit from thethree years preceding the date of filing of the petition (26.07.2011).The respondents are directed to calculate the amount of arrearsof the petitioner and same shall be paid to him within three monthswith 12% interest. The petition is allowed in part. No order as tocosts.”

25. perusal of the above judgment indicates that the said judgmentwas based on the concession, which was specially recorded in Para 4.After the said judgment, the Union of India has immediately filed review.In the review, it was pleaded by the Union of India that benefit of theupgradation as per the letter of the Government of India, Ministry ofDDefence dated 21.11.1997, was only to be given to those officers in therank of Major, who were in service on 01.01.1996. The review applicationwas dismissed on 09.10.2013 by Armed Forces Tribunal.

26. Taking the view that none of the contentions were raised whenO.A. No. 256 of 2011 was decided, the Tribunal held that pleas taken byEthe Union of India do not fall in the scope of review. The review wasrejected by making following observations in Para 7 of the Order :-

“7. We are of the considered opinion that the Tribunal has decidedOA 256/2011 according to the very specific admissions by theUOI in the counter affidavit and the scope of the review is limitedthat that is whether there is an error apparent on the face of therecord or not. None of the contentions which have been raisedbefore us today in the review were raised before the Tribunalwhen OA 256/2011 was decided and nor those documents wereproduced and therefore, we are of considered opinion that thepleas taken by the applicant UOI do not fall in the scope of thereview of the order 19.12.2012. Order can be reviewed onlywhen error is apparent on the face of the record and can befound without deep analysis of legal debatable issue. Hence,the review application No.25/2013 is dismissed. No orderas to costs.”

27. Union of India filed an appeal against the aforesaid two orders,which appeal was dismissed on ground of delay and also on merits byorder dated 06.02.2015. It is useful to extract the entire order passed bythis Court on 06.02.2015, which is to the following effect:-

“IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2015(D. NO. 12209 OF 2014)

UNION OF INDIA & ORS.

Appellant (s)

VERSUS

K. G. THOMAS

Respondent(s)

Heard learned counsel for the parties.

Besides inordinate delay, we find no merit in the appeals.

Accordingly, the appeals are dismissed on the ground of delay asalso on merits.

However, it is made clear that the order of the Armed ForcesTribunal shall be limited to the facts of the present case, sinceaccording to the appellants, full facts were not brought to thenotice of the Tribunal.

It is made clear that it will be open to the appellants to bring thefull facts to the notice of the Tribunal in appropriate cases.

.................. J.(KURIAN JOSEPH)

New Delhi;February 06, 2015.”

..................... J.(R.K. AGRAWAL)

A28. This Court clearly had mentioned in its order dated 06.02.2015that order of the Armed Forces Tribunal shall be limited to the facts ofthe said case, since according to the Union of India, full facts were notbrought to the notice of the Tribunal. Further, this Court clarified that itwill be open to the Union of India to bring the full facts to the notice ofthe Armed Forces Tribunal in appropriate cases. The order of this CourtBdated 06.02.2015 thus cannot be read as laying down any ratio in favourof the applicants, which can be relied by them in the present case. In thecase of Sqn. Ldr. Suchet Singh Yadav and others, all materials werebrought on the record including filing of counter affidavit by the Union ofIndia. As noted above, the Armed Forces Tribunal in case of Lt. Cdr.CGurmukh Singh and V.K. Mehta has rejected their claim accepting thecase of the Union of India.

29. We thus are of the opinion that order of the Armed ForcesTribunal in Maj. K.G. Thomas case is confined to that case alone andcannot be read as any precedent, as clarified by this Court itself in itsDorder dated 06.02.2015. Thus, reliance by the learned counsel for theapplicants on the case of Maj. K.G. Thomas (supra) and order of thisCourt dated 06.02.2015 is misplaced.

30. As noted above, present is not case where any discriminationhas been made by Union of India in payment of pension to those, whoEretired prior to 01.01.1996 and those, who retired after 01.01.1996. Wehave already extracted Para 2.1 of the order dated 07.06.1999, whichprovides for same principle or formula for computation of pension ofboth “post and pre 01.01.1996 cases” This Court in the case of Col.B.J. Akkara (Retd.) Versus Government of India and Others., (2006)11 SCC 709 while considering the question of revision of pension ofFboth pre and post 01.01.1996 retirees had observed that both have beentreated similarly, although, said observations were made by this Courtwhile considering the computation of pension in context of Non PracticingAllowance of officers working in the Army Medical Corps, DentalMedical Corps and Veterinary Medical Corps.G

31. It is well settled that pensioners for the purposes of pensionbenefit form class and the schemes which classify pensioners into twoclasses on the basis of cut off date have always been frowned by thisCourt. In this context, reference is made to Para 42 of judgment of D.S.Nakara & Ors. Vs. Union of India, (1983) 1 SCC 305, which is toHthe following effect:-

“42. If it appears to be undisputable, as it does to us that thepensioners for the purpose of pension benefits form class, wouldits upward revision permit homogeneous class to be divided byarbitrarily fixing an eligibility criteria unrelated to purpose ofrevision, and would such classification be founded on some rationalprinciple? The classification has to be based, as is well settled, onsome rational principle and the rational principle must have nexusto the objects sought to be achieved. We have set out the objectsunderlying the payment of pension. If the State considered itnecessary to liberalise the pension scheme, we find no rationalprinciple behind it for granting these benefits only to those whoretired subsequent to that date simultaneously denying the sameto those who retired prior to that date. If the liberalisation wasconsidered necessary for augmenting social security in old age togovernment servants then those who, retired earlier cannot beworst off than those who retire later. Therefore, this division whichclassified pensioners into two classes is not based on any rationalprinciple and if the rational principle is the one of dividing pensionerswith view to giving something more to persons otherwise equallyplaced, it would be discriminatory. To illustrate, take two persons,one retired just day prior and another day just succeeding thespecified date. Both were in the same pay bracket, the averageemolument was the same and both had put in equal number ofyears of service. How does fortuitous circumstance of retiringa day earlier or day later will permit totally unequal treatment inthe matter of pension? One retiring day earlier will have to besubject to ceiling of Rs 8100 p.a. and average emolument to beworked out on 36 months’ salary while the other will have ceilingof Rs 12,000 p.a. and average emolument will be computed onthe basis of last 10 months’ average. The artificial division staresinto face and is unrelated to any principle and whatever principle,if there be any, has absolutely no nexus to the objects sought to beachieved by liberalising the pension scheme. In fact this arbitrarydivision has not only no nexus to the liberalised pension schemebut it is counter-productive and runs counter to the whole gamutof pension scheme. The equal treatment guaranteed in Article 14is wholly violated inasmuch as the pension rules being statutory incharacter, since the specified date, the rules accord differentialand discriminatory treatment to equals in the matter of commutation

ABC

772SUPREME COURT REPORTS

of pension. 48 hours’ difference in matter of retirement wouldhave traumatic effect. Division is thus both arbitrary andunprincipled. Therefore, the classification does not stand the testof Article 14.”

32. In judgment of this Court in Col. B.J. Akkara (Retd.) VersusBGovernment of India and Others., (2006) 11 SCC 709 the circulardated 07.06.1999 was considered and it was observed that circular putsthose who retired on or after 01.01.1986 and Pre-1986 retirees on par.Paragraph 11 is to the following effect:-

C“11. We may first refer to the intent and purport of the circulardated 7-6-1999. The circular dated 7-6-1999 neither prescribesthe requirements/qualifications for entitlement to pension nor themethod of determination of pension. It only effectuates thePresident’s decision that the pension (which has already beendetermined in accordance with the applicable rules/orders)Dirrespective of the date of retirement, shall not be less than 50%of the minimum pay in the revised scales of pay introduced witheffect from 1-1-1996. Pension is determined as per relevant rules/orders, by calculating the average of reckonable emoluments(basic pay, rank pay and NPA) drawn during the last 10 monthsEof service and then taking 50% thereof as the retiring pensionapplicable to retirees with 33 years of qualifying service, withproportionate reduction for retirees with lesser period of qualifyingservice. The basis for calculating the pension in respect of thosewho retired prior to 1-1-1996, and those who retired on or after 1-1-1996 happens to be the same. The retiring pension is 50% ofFthe average reckonable emoluments for retirees with 33 years ofqualifying service, with proportionate reduction for those with lesseryears of qualifying service. The President’s decision given effectby the circular dated 7-6-1999 only extends to all pre-1996 retirees,who did not have the benefit of fixation of pension with referenceGto the revised pay scales which came into effect on 1-1-1996, thebenefit of the said revised pay scales, albeit in limited manner.In so doing, it also puts those who retired on or after 1-1-1986 andpre-1986 retirees on par and on common platform, removingthe disparity, if any, in their pensions.”

33. Learned counsel for the appellant has also referred to judgmentsof this Court in K.C. Bajaj & ors. Vs. Union of India & Ors., (2014)3 SCC 777; V. Kasturi Vs. Managing Director, State Bank of India,(1988) 8 SCC 30; Union of India & Anr. Vs. SPS Vains (Retd.) &Ors., (2008) 12 SCALE 360.

34. There cannot be any dispute to propositions laid down in abovementioned cases of this Court where this Court has laid down that theState cannot arbitrarily pick and choose from amongst similarly situatedpersons, cut off date for extension of benefits especially pensionerybenefits, there has to be classification founded on some rational principlewhen similarly situated class is differentiated for grant of any benefit.As noted above, present is not case where there is any discriminationin pensionery benefits of pre 01.01.1996 and post 01.01.1996 retirees.The applicants, base their claims on the order of the Government ofIndia dated 21.11.1997 and we have already held that those who werenot in service on 01.01.1996 could not claim any benefit of the orderdated 21.11.1997. Thus, present is not case of any kind of discriminationand differentiation in pensionery benefits of pre and post 01.01.1996retirees. We have already noticed above that order dated 21.11.1997was issued in reference to pay and allowances of Armed Forces Officers,which pre-supposes that these officers were in the establishment on01.01.1996. We thus are of the view that applicants were clearly notentitled for grant of benefit of higher pay scale under the order dated21.11.1997. The orders of the Armed Forces Tribunal extending thesaid benefit to those applicants who had already retired before 01.01.1996are set aside whereas the orders of the Armed Forces Tribunal whichhave taken the view that Armed Forces Officers, who have retired before01.01.1996 are not entitled for pensionery benefits are upheld.Consequently, the appeals filed by the Union of India, i.e. CivilAppeal(arising out of Civil Appeal Diary No. 25429 of 2017) – Union ofIndia & Ors. Vs. Lt. Cdr. C.M. Mittal & Ors.; Civil Appeal(arising outof Civil Appeal Diary No. 7231 of 2016) – Union of India & Ors. Vs. Lt.Cdr. Bhisham Kumar (Retd.) & Ors. and Civil Appeal(arising out ofCivil Appeal Diary No. 22257 of 2017) – Union of India & Ors. Vs.Sqn. Ldr. Jai Kumar & Ors. are allowed and those of the applicants i.e.Civil Appeal(arising out of Civil Appeal Diary No. 26259 of 2016) –Suchet Singh Yadav & Ors. Vs. Union of India & Ors.; Civil Appeal

[2018] 2 S.C.R.

ANo. 7989 of 2015 – Lt. Cdr. Gurmukh Singh Vs. Union of India & ors.;and Civil Appeal No. 7917 of 2016 – V.K. Mehta Vs. Union of India &Ors., are dismissed.

Divya Pandey

Appeals disposed of.