ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

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1 ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO.97 of 2015 WEDNESDAY, THE 17TH DAY OF FEBRUARY,2016/28TH MAGHA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) 1.T.GEORGE, EX AAW II, NO A VALIPLACKAL HOUSE, CHOTTANIKKARA.P.O., ERNAKULAM, KERALA APPLICANTS: 2.P.R.SUBRAMANIAN, EX EAAR II, NO , PAZHAMPILLY HOUSE, EDAVANAKKAD.P.O., ERNAKULAM DISTRICT, KERALA K.M.SHAMSUDDIN, EX ERA II, NO A, KATTUTHANIPARAMBIL, NETTOOR.P.O., ERNAKULAM DISTRICT, KERALA BY ADV.MR.V.K.SATHYANATHAN. Versus RESPONDENTS: 1.UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI THE CHIEF OF NAVAL STAFF, INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (NAVY) NEW DELHI THE COMMODORE, BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), OFFICE OF THE P.C.D.A.(P), DRAUPADI GHAT, ALLAHABAD, UP BY ADV.SHRI P.J.PHILIP, CENTRAL GOVT. COUNSEL.

2 OA No. 97 of 2015 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed jointly by three applicants for rectification of alleged anomalies in fixation of their pension. 2. Applicant No.1, T.George, Ex AAW II, No A was enrolled in the Navy on 27 January 1968 as Artificer Apprentice and was discharged from service on 31 January 1982 on completion of engagement period after serving 14 years and 04 days. Applicant, No.2 PR Subramanian, Ex EAAR II, No was enrolled in the Navy on 30 January 1965 as Artificer Apprentice and was discharged from service on 31 January 1979 on completion of engagement period with a service of 14 years. Applicant No.3, KM Shamsuddin, Ex ERA II, No A was enrolled in the Indian Navy on 28 January 1967 as an Artificer

3 OA No. 97 of 2015 : 3 : Apprentice and was discharged from service on 31 January 1981 on completion of engagement period with a service of 14 years and 03 days. 3. While the applicants were initially not sanctioned pension as they had less than 15 years of service, post the Apex Court decision in Anuj Kumar Dey & anr vs. Union of India & ors., (1997) 1 SCC 366, training period was included as service towards pensionary benefits and accordingly pension was granted to all three applicants. Applicant No.1 was granted service pension vide PPO No.N/S/512/2004 dated 15 October 2004 with effect from 01 February 1982 for AA II rank, (Annexure A1). Applicant No.2 was granted service pension vide PPO.No.N/S/65/2005 dated 23 February 2005 with effect from 01 February 1979 for EAAR II rank (Annexure A2). Applicant No.3 was granted service pension vide PPO. No.N/S/372/2005 dated 15 July 2005 with effect from 01 February 1981 for ERA II rank (Annexure A3).

4 OA No. 97 of 2015 : 4 : 4. Sri V.K.Sathyanathan, the learned counsel for the applicants submitted that Naib Subedar of the Army and Junior Warrant Officer of the Air Force are equivalent to Chief Petty Officer, Mech III/Artificer III, Art-II/Mech-II, Art- I/Mech-I of Navy. This has been brought out in Appendix A to PCDA(P) Circular No.397 dated 18 November 2008 (Annexure A4) implying that pension of Chief Petty Officer, Art-I, Art-II and Art-III are to be one and the same and should be on par with their equivalents in other services. 5. Pension for 15 years of service in respect of Naib Subedar/Chief Petty Officer/Mech III/Artificer III, Art- II/Mech-II, Art-I/Mech-I of Navy was fixed at Rs.5122/- with effect from 01 January 2006 ie, after the implementation of VIth Central Pay Commission (VI CPC). The pension of Junior Warrant Officers was slightly more, ie, Rs.5330/-. However, the learned counsel submitted that, based on the Government decision to bridge the gap between pre-2006 and post-2006 retirees, directions were issued vide Letter

5 OA No. 97 of 2015 : 5 : No.PC 10(1)/2009-D(Pen-Pol) dated 08 March In consonance with this policy letter, PCDA (P) issued circular No.430 with pension payable to each rank appended in tables. The learned counsel further submitted that for Naib Subedar Group A of the Army, pension for 15 years of service was fixed at Rs.6976/- (Table No.31-Annexure A5). In case of Junior Warrant Officer Group X of the Air Force for similar length of service, similar pension was fixed ie, Rs.6976/- (Table No.116-Annexure A6). In case of Naval Artificers III to I, pension was to be in accordance with Tables 66 to 68. In all the cases, pension of 15 years service was fixed at Rs.6076/- (Annexures A7 to A9). 6. The learned counsel submitted that, fixation of pension is not made as per the decision of the Government of India. While Naib Subedars and Junior Warrant Officers have been granted equal pension, CPO, Art I, Art II and Art III of the Navy are getting lesser pension. Further there is also difference in pension between CPO and Art I III

6 OA No. 97 of 2015 : 6 : where the Artificers are getting lesser pension. 7. Applicant No.1 noticing the disparity had appealed to Commodore Bureau of Sailors (CABS) for rectification of the anomaly (Annexure A10). However the same was rejected by CABS on the premise that the applicant was not promoted to CPO rank (A11). While Applicants No.2 and 3 also made similar requests (Annexures A12, A13), no response has been received till date. 8. The learned counsel submitted that as Naib Subedar of the Army and the Junior Warrant officer of the Air Force are equivalent to Chief Petty Officer/Mech III/Artificer III, Art-II/Mech-II, Art-I/Mech-I of Navy, there cannot be any justification for fixing different pensions for them. The learned counsel therefore prayed that direction be given to the respondents to equalise the pension of Naib Subedar of Army and JWO of Air Force and Chief Petty Officer/Mech III, Art-III, Art-II/Mech-II, Art-I/Mech-I of Navy and revise

7 OA No. 97 of 2015 : 7 : the pension of the applicants with effect from 01 July Sri P.J.Philip, learned Central Government Counsel for the respondents submitted that the applicants were discharged from service from the basic rank of Artificer II ie, AA II, EAAR II and ERA II respectively and were not promoted to Chief Artificer rank, which is equivalent to the rank of CPO. They were therefore sanctioned service pension as per their last rank held. Learned counsel submitted that their claim for equivalence with Naib Subedar of the Army and JWO of the Air Force arose from the Appendix to Circular No.397 wherein CPO/Mech III-I/Art III-I have been equated with Naib Subedar of the Army and JWO of the Air Force. 10. The learned counsel submitted that in the Government resolution of 30 th August 2008, accepting the recommendations of VI CPC, Art I, II and III were bunched together as Art III-I. Their grade pay was fixed at

8 OA No. 97 of 2015 : 8 : Rs.3400/- which was above that of a Petty Officer/Art IV which was at Rs.2800/-; but below that of a CPO/Ch Art which was at Rs.4200/-. Therefore Art III I rank below a Chief Petty Officer. Artificers come into the grade pay of CPO only when they are promoted to the rank of Chief Artificer, who draws the same grade pay as a CPO ie, Rs.4200/-. This was also in keeping with Regulation 247 of Regulations for the Navy, Part III, which specifies that Chief Artificers shall rank and command over Art I-III. 11. The learned counsel submitted that Circular No.397 of PCDA (P) was intended as Instructions on the Government policy letter dated 11 November 2008 post acceptance of the recommendations of the VI CPC by the Government. It could not make any changes on the gazette notification issued on the subject. The Appendix attached to Circular No.397 indicates a rank equivalence which is erroneous. However, the Circular as such does not contain any specific paragraph or provision equating pay scales of

9 OA No. 97 of 2015 : 9 : Art III-I to that of Naib Subedar of the Army/JWO of the Air Force. Art III-I were created to meet functional requirements of the Navy and there are no equivalent ranks in the other services. 12. The learned counsel further submitted that a Table indicating correct equivalence of rank has been promulgated as Appendix to PCDA (P) Circular 501 dated 17 January 2013 for guidance of pension disbursing authorities wherein it is clearly shown that Art III-I of Navy are not equivalent to Naib Subedar of the Army or JWO of Air Force and they form a separate group. Further, in Circular No.512 of 26 January 2013 it has been clarified that equivalence in ranks is as in Circular 501. In respect of Art III-I it has been amplified that they have a grade pay of Rs.3400/- and there are no equivalents in the Army/Air Force. The applicants were entitled to service pension of Rs.5122/- with effect from 01 January 2006 and as per Table 67 to Circular 430, this was enhanced with effect from 01 July 2009 to

10 OA No. 97 of 2015 : 10 : Rs.6076/- and further enhanced as per Table 13 to Circular No.501 (Annexure R1) to Rs.6374/- with effect from 24 September Mr.P.J.Philip further submitted that the aspect of equivalence of ranks between Art III to I with that of CPO and re-fixation of grade pay had been considered by the Principal Bench of the Armed Forces Tribunal at New Delhi in TA.No.588/2010, Manish Kumar Rai vs. Union of India & Ors., (transferred WP(C).No of 2009 from Hon'ble Bombay High Court). The Tribunal observing that Art III to I though given a higher grade pay than that of Art IV/PO, were placed below that of a Chief Art/CPO held that no injustice had been done to the applicants therein as relative status in rank had been correctly fixed. Learned counsel further submitted that Review Application No.4/2001 preferred against the orders had been dismissed holding that there was no apparent error on the face of record. Further, the orders in the TA had been challenged in the

11 OA No. 97 of 2015 : 11 : Hon'ble Apex Court as Civil Appeal No /2015 and the issue is pending consideration. Learned counsel submitted that no injustice has been done to the applicants and their pension has been correctly fixed. 14. Heard rival submissions and perused records. 15. It is not disputed that the applicants were granted pension post the decision of the Hon'ble Apex Court in Anuj Kumar Dey (supra) wherein training period was to be reckoned for pensionable service. It is also not disputed that all the three applicants retired in the rank of Art II. Their claim for equivalence in pension to that of Nb Subs/JWO/CPO is based on Circular No The Government of India gazette notification dated 30 August 2008 promulgating acceptance of recommendations of the VI CPC for Defence Personnel indicates the grade pay of Naib Subedar of the Army at

12 OA No. 97 of 2015 : 12 : Rs.4200/- which is the same as that of the JWO of the Air Force and that of Chief Artificer and Chief Petty Officer of the Navy. Art IV and Petty Officer of the Navy have been given grade pay of Rs.2800/- which is equivalent to that of the Havildar in the Army and Sergeant in the Air Force. It is further observed that Art III to I of the Navy have been given a grade pay of Rs.3400/-. There are no equivalents of such grade pay either in the Army or in the Air Force. It implies that Art III-I are ranked above Art IV/PO but below Chief Art/CPO. It is further observed from the existing pay scales prior to the VI CPC of Personnel Below Officers Rank attached at Annexure II to the gazette notification that as such Art III I were placed below Chief Art/CPO. Art III-I have in fact been bracketed along with Petty Officers/Art IV and were placed higher than them only post VI CPC. 17. Since the gazette notification indicated Art III-I to be in a lower grade pay than that of a Naib Subedar/JWO, Appendix to Circular No.397 indicating Naib Subedar and

13 OA No. 97 of 2015 : 13 : JWO as equivalent to Art III-I was, in our view, clearly erroneous. The subsequent Circular viz., No.501 dated 17 January 2013 has evidently corrected the issue, wherein the equivalence of ranks in the three services indicates that Art III-I do not have any equivalence in the Army or the Air Force. They are placed above a Petty Officer/Mech IV/Art IV, but below CPO/Chief Art/Chief Mech. The Petty Officer is shown equivalent to a Havildar/Dafadar in the Army and Sergeant in the Air Force, whereas CPO is at par with Naib Subedar/Nb Risaldar/Jamadar in the Army and JWO in the Air Force. We observe that this is in keeping with the Government decision on fixation of pay post VI CPC. This has been further amplified in Circular No.512 of 26 June 2013 issued by the PCDA (P). Para 3 of the Circular being relevant is re-produced below: 3. Equivalent rank of three Armed Forces-- The Equivalent rank of three services are shown Appendix Y to the circular No.501 dated Some of PDAs queried about equivalent rank of Artificer III I in Navy. It is hereby clarified that Artificer III I rank have

14 OA No. 97 of 2015 : 14 : Grade pay of 3400/-, therefore, no equivalent rank in Army/Air Force exists. It is also clarified that Mechanician and Artificer are equivalent rank in Navy. In this office circular No.501 only Art III to I and Chief Art has been mentioned in table No.13 (Navy). The Service pension of Mech III I and Chief mechanician may also to be revised as for Art III I and Chief Artificer respectively. 18. The above Circular is in keeping with the decision of the Principal Bench of this Tribunal in T.A.No.588/2010 and relevant Paragraphs from the order are re-produced below: 14. Having heard both the parties at length and having examined the documents, we are of the opinion that the correct equivalence of rank is between Chief Artificer and Chief Petty Officer (non-technical). This equivalence is appropriate because only the Chief Artificer and Chief Petty Officer (non-technical) are eligible for promotion to the Master Chief Artificer II and Master Chief Petty Officer I which are Junior Commissioned Ranks. While an Artificer III to I has to first get promoted to Chief Artificer before qualifying to

15 OA No. 97 of 2015 : 15 : the Master Chief Artificer II category. 15. Appendix II of the Government of India Notification dated lists out the Existing Pay Scales (Prior to Sixth Central Pay Commission). In that table Artificer III to I are termed equivalent to Petty Officer i.e. Group X is Rs , Group Y is Rs , Group Z is Rs Since the Sixth Central Pay Commission award, Artificer III to I have been granted PB-2 i.e. Rs with grade pay as Rs.3400/-, while Petty Officer (nontechnical) have been pegged at PB-1 i.e. Rs with grade pay Rs As such, the award has been more than fair with no monetary loss vis-a-vis existing (pre-sixth Central Pay Commission award) pay scales while the relative status in rank has been correctly fixed as that below the Chief Artificer, the Chief Artificer being equivalent to the Chief Petty Officer (nontechnical). 19. We do not have any reasons to disagree with the decision of the Principal Bench of this Tribunal. It is further observed that even in the recent policy of the Government granting one rank one pension to Defence Personnel, vide letter No.12(1)/2014/D(Pen-Pol)-Part II dated 03 February

16 OA No. 97 of 2015 : 16 : 2016 in Table No.7, which promulgates the rate of service pension under the OROP Scheme for JCO and other ranks and equivalents of three services, Art III-I has been shown as Navy only ie, a distinct rank for Navy alone, with no equivalents in other services. They are also placed lower in rank to Naib Subedar and equivalent. Therefore, in our view, Art III-I like the applicants, can in no way claim equivalence with Naib Subedar or Junior Warrant Officer or CPO/Chief Artificer. 20. In view of the foregoing we do not find any merit in the Original Application and it is accordingly dismissed. 21. There will be no order as to costs. 22. Issue free copy to the parties. Sd/- VICE ADMIRAL M.P. MURALIDHARAN, MEMBER (A) an. (true copy) sd/- JUSTICE S.S.SATHEESACHANDRAN MEMBER (J) Prl.Pvt.Secretary

ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 163 of 2014 THURSDAY, THE 10TH DAY OF DECEMBER 2015/19TH AGRAHAYANA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL