At, Armed Forces Tribunal Principal Bench New Delhi
By, THE HONOURABLE MR. JUSTICE AMAR SARAN
By, JUDICIAL MEMBER & THE HONOURABLE MR. D.C. KUMARIA
By, ADMINISTRATIVE MEMBER
For the Petitioner: V.S. Kadian, Advocate. For the Respondents: BarkhaBabbar, Advocate.
1. Heard the learned counsel for the applicant and the learned counsel for the respondents.
2. Having heard the learned counsel for the parties and upon consideration of the averments made in the application, we are of the opinion that since the claim for broad banding of the disability element of pension is based on a continuing cause of action, delay needs to be condoned with the observation that in the event the applicant is found to be entitled to the benefit of broad banding, the arrears would be restricted for a period of 3 years. Ordered accordingly.
3. The applicant, who was discharged from the Indian Army in the rank of Havildar and subsequently granted the honorary rank of Naib Subedar on 15.08.1992, seeks a direction to the respondents to implement the Government of India circular dated 12.06.2009 (Annexure3) and to revise his pension in the rank of NbSubedar with effect from 01.01.2006, in the light of the judgment dated 08.02.2010 passed by the Chandigarh Bench of this Tribunal in O.A No.42 of 2010, which was upheld by the Hon’ble Supreme Court as also in OA No.1546/2016 passed by this Bench on 16.03.2017.
4. By Annexure3, Havildars who were conferred honorary rank of Naib Subedar had been granted regular pension with effect from 01.01.2006 giving them notional promotion of higher grade of Naib Subedar. The relevant portion of Annexure3 reads as follows.
'........ the President is pleased to decide that Honorary rank of Naib Subedar granted to Havildars 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/- p.m payable to Havildars granted Hony rank of Naib Subediar as per Regulation 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 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.'
5. According to the learned counsel for the applicant, though the applicant was discharged from the rank of Havildar on 31.03.1992, as he was conferred the honorary rank of Naib Subediar subsequently, he is entitled to have his pension re-fixed in the honorary rank of Naib Subedar with effect from 01.01.2006, on the basis of Annexure3. The learned counsel for the respondents, on the other hand, has contended that since the applicant retired from service prior to 01.01.2006, he is not entitled to the benefit of Annexure3.
6. The issue involved in the case is no longer res integra as the same has already been resolved by a catena of judgments by various Benches of this Tribunal, by holding that pre-2006 retirees who were granted honorary rank of Naib Subedar after retirement are also entitled to the benefit with effect from 01.01.2006.
7. Therefore, we are of the view that the applicant is entitled to the benefit of Annexure A3 dated 12.06.2009 with effect from 01.01.2006 subject to the condition that the sum of Rs.100/- per month paid to him after 01.01.2006 in terms of Government order No. 1(1)/88/D (Pen/Ser) dated 06.11.1991 has to be adjusted against the amount due on re-fixation of his pension.
8. The O.A is disposed of directing the respondents to re-fix the pension with effect from 01.01.2006, including arrears with effect from 01.01.2006, subject to verification of fact, within three months from today. We make it clear that the amount of Rs.100/- per month, which has already been paid to the applicant after 01.01.2006 in terms of the Government letter dated 06
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.11.1991, shall be adjusted against the due amount as per this order and the payment of that amount of Rs.100/- shall be discontinued. 9. No order as to costs. 10. The learned counsel appearing for the respondents makes an oral prayer to grant leave to appeal before the Hon’ble Supreme Court, which has been rejected since no question of law of general public importance is involved in this case.