Kerala High Court
T.K. Unni Madhavan Nair vs Union Of India on 10 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940
WP(C).No. 3880 of 2018
PETITIONERS:
1 T.K. UNNI MADHAVAN NAIR
NO. 1229584 X-GNR (DVR) ARTY, AGED 73 YEARS, S/O. NARAYANAN
NAIR, RESIDING AT BHAGYASREE HOUSE, PADINHATUMURI, POST
KAKKODI, KOZHIKODE - 673 611.
2 NALU PURAYIL NARAYANAN,
AGED 73 YEARS, S/O. KOMAPPAN CHETTIYAR, KAMALASSERY
HOUSE, POST CHELEBRA, KONDOTTY, MALAPPURAM - 673 634.
3 JOHN P.L.,
S/O. P.O.,LUKOSE, AGED 82 YEARS, PATTERIPARAMBIL, POST
MERIKUNNU, KOZHIKODE - 673 012.
4 P.K. GANGADHARAN,
S/O. OTHENAN P.K., PANNIAM KANDIYIL, JULIE HOUSE, POST
PUNNASSERY, KOZHIKODE - 673 585.
5 P. SREENIVASAN NAIR,
S/O. K. KRISHNA KURUP, PADINJARAYIL, POST ERANJIKKAL,
KOZHIKODE - 673 303.
6 V.M. BALAN,
S/O. NARAYANAN NAIR, MEETHALA VAYALATTU HOUSE, POST
CHEMANCHERRY, KOYILANDY, KOZHIKODE - 673 304.
7 K. KUNHIRAMAN,
S/O. KRISHNAN NAMBIAR, KOYAMBARATH HOUSE, POST
CHERANDATHUR, POST VADAKARA, KOZHIKODE - 673 541.
8 VATAKKECHALIL BHASKARAN NAIR,
S/O. CHAPPUNNI NAIR, KARINKALLIMMEL HOUSE, POST
UNNIKULAM, KOZHIKODE - 673 574.
9 C.V. KRISHNA WARRIER,
S/O. C. KRISHNA WARRIER, MANJUU NIVAS, AMBALAKUNNU, POST
AMARAMBALAM, NILAMBUR, POOKKOTTUM PADAM, MALAPPURAM
- 679 332.
10 MANAYATH GANGADHARAN NAIR,
S/O. M.K. ACHUTHAN NAIR, DEEPTHI, NAMBIER MEETHAL, POST
MEDICAL COLLEGE, KOZHIKODE - 673 008.
WP(C).No. 3880 of 2018
11 E.P. BALAN NAIR,
S/O. E.P. KUNJAN NAIR, BIJU NIVAS, POST EDAKKARA, KOZHIKODE -
673 616.
12 M. BABU,
S/O. M. APPU, MUTTENCHERRY HOUSE, POST PANTHEERANKAVU,
OLAVANNA, KOZHIKODE - 673 019.
13 EDAVANA BALAN NAIR,
S/O. KRISHNAN NAIR, KIZHKONA POYILIL, POST KUNNAMANGALAM,
KOZHIKODE - 673 517.
14 P.P. DAMODARAN,
S/O. PERACHAN, PRANAVAM HOUSE, THORAYI, POST MODAKKALUR,
KOZHIKODE - 673 315.
15 K.K.G. MARAR,
S/O. ACHUTHA MARAR, GREESHMA, KURUPPUM
KANDI,KOKKALLUR, BALUSSERY, KOZHIKODE - 673 612.
16 THEKKE VALATHANA RAJAN,
S/O. SANKARAN VAIDYAR, THEKKE VALATHANA, POST MELUR,
KOYILANDY, KOZHIKODE - 673 306.
17 THEKKE NEDUMTHODI RAMANUNNI NAIR,
S/O. KUNJUNNI NAIR, AGED 77 YEARS, SURAJ NIVAS HOUSE,
VAZHAMPATTA, MOONAMTHODI, THAMARASSERY, KOZHIKODE -
673 573.
18 K. BLAN NAIR,
S/O. CHANDU NAIR. K., KARINGALI HOUSE, POST KANNANKARA,
CHELANNUR, KOZHIKODE - 673 616.
19 THEKKAYIL GOPALAN KUTTY,
S/O. K.P. KRISHNAN NAIR, THEKKAYIL HOUSE, G.S.NIVAS,
PANTHALAYANI, KOYILANDY, KOZHIKODE - 673 305.
20 C.K.S. MENON,
S/O. VELU NAIR, CHAKKALAM PARAMBIL, TRIKKULAM, POST TIRUR,
MALAPPURAM - 676 306.
21 A. VASU,
S/O. PANAN. E, ERAKATHIL HOUSE, CHERUNGATTU PADAM, POST
OLAVANNA, KOZHIKODE - 673 025.
22 REJI MENZIL,
S/O. MANZIL, KURUPANANGADI PARAMBA, POST PUTHIYARA,
KOZHIKODE - 673 004.
23 THOMAS,
S/O. THOMAS, PARAPPALLIL HOUSE, CHAMAL POST,
THAMARASSERY, KOZHIKODE - 673 573.
24 K.T. BALAN,
S/O. RAMUTTI K.K., AGED 76 YEARS, KAKKATTUVAYAL, POST
EDAKKAD, KOZHIKODE - 673 005.
WP(C).No. 3880 of 2018
25 GANGADHARAN NAIR. E.M.,
S/O. MADHAVAN PILLAI, KARTHIKEYAM HOUSE, PRRA - 16, PARAYIL
ROAD, ELAMAKKARA, ERNAKULAM - 683026.
26 K. YOHANNAN,
S/O. KURIAN, ACHERI MADATHIL HOUSE, KONTHURUTHI, POST
THEVARA, ERNAKULAM - 682 013.
27 A.O. JOSEPH,
S/O. ONNANKUTTY, ADAYANNOOR HOUSE, CHUTTUPADU KARA,
POST EDAPPALLY, PONEKKARA, ERBAKULAM - 682 024.
28 KUMARAN KANNATIL,
S/O. NARAYANAN EZHUTHACHAN, AMBADI, SHOBHA ROAD,
EDAPPALLY TOLL, POST EDAPPALLY - 682 024.
29 E.D. PAULO,
S/O. DEVASSYA, ELAMKUNNAPUZHA HOUSE, POST ASOKAPURAM,
ALUVA, ERNAKULAM - 683 801.
30 K.K. VENU KUMAR,
AGED 75 YEARS, S/O. K.P. KAMALAKSHAN, KANDATHIPARAMBIL,
MURAVANTHURUTH, POST VADAKKEKARA, ERNAKULAM - 683 522.
31 SUDHEENDRAN,
S/O. K. PADMANABHAN, THURUTHIYIL HOUSE,
KANIYAMKULANGARA POST, ALAPPUZHA - 690 572.
32 SOMAN K.K.,
AGED 75 YEARS, S/O. KUNJU, KALATHIL, EDAKOCHI, ERNAKULAM -
682 010.
33 T.K. DAMODARA KURUP,
S/O. T.K. GOVINDA KURUP, SUBHA NIVAS, POST KEEZHAL,
VATAKARA, KOZHIKODE - 673 104.
34 K. DAMODARAN,
S/O. KUTTIPERAVAN, VALAPPIL HOUSE, POST THUVAKKODE,
CHEMANCHERRY, KOZHIKODE - 673 804.
35 PUTHALATH KUNHIRAMAN NAIR,
S/O. RAMAR ADIYODI, PARACHALIL HOUSE, KARANDONE,
KUTTIADI, VATAKARA, KOZHIKODE - 673 508.
36 N.K. PRABHAKARAN,
S/O. KELA N.K., AGED 75 YEARS, SAVITHA BHAVAN,
NEELEESWARAM, KALADY, ERNAKULAM - 683 574.
37 K. RAMACHANDRAN,
S/O. V.K.K. KUNJU, KANDATHIL HOUSE, KALAVAMKODAM,
CHERTHALA, ALAPPUZHA - 686 524.
38 S.E. ANTONY,
S/O. S.V. CHACKO, SANKOORIKAL HOUSE, NAZARETH ROAD,
NJARAKKAL, ERNAKULAM - 683 101.
WP(C).No. 3880 of 2018
39 K. GANGADHARAN MARAR,
AGED 72 YEARS, S/O. ACHUTHA MARAR, RESIDING AT 'GREESHMA',
KURUPUMKANDY PANAYIL VILLAGE, POST KOKKALLUR,
KOZHIKODE - 673 612.
40 BALAMANIYAMMA,
W/O. K.GOPALAN NAIR, CHEREDATH HOUSE, KIZHAKKUM MURI,
KAKKODI, KOZHIKODE - 673 611.
41 SANTHAKUMARI, W/O. LATE VELLAKKATTU SREEDHARAN, SREYAS, POST
PERUVAYAL, KOZHIKODE - 673 008.
42 E.P. RADHAMANI,
W/O. LATE P.M. RAJAGOPALAN NAIR, POST KOTTAM PARAMBA,
KOZHIKODE - 673 008.
43 JAYALAKSHMI,
W/O. LATE GOPINATHAN NAIR, GOKULAM, KOTTAM PARAMBA
POST, KOZHIKODE - 673 008.
44 AMRITHA VALLI,
W/O. LATE CHELLATHINKAL BALAN NAIR, KIZHAKOTTIL HOUSE,
POST PADINTHATTU MURI, KAKKODI, KOZHIKODE - 673 611.
BY ADVS.SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENT(S):
1. UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH
BLOCK, NEW DELHI - 110 001.
2. CHIEF OF ARMY STAFF,
DHQ PO, INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI - 110 001.
3. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION)
DRAUPADIGHAT, ALLAHABAD, UTTER PRADESH - 211 014.
4. THE OFFICER-IN-CHARGE (RECORDS)
TOPKHANA ABHILAKEH, ARTILLERY RECORDS, NASIK ROAD, CAMP,
422 102, APS PIN - 900 482.
5. THE OFFICER-IN-CHARGE,
DEFENCE PENSION ADALATH, CONTROLLER OF DEFENCE
ACCOUNTS, NO. 618, ANNASALAI, TEYNAMPERT, CHENNAI - 600 018.
R1-R5 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS
WP(C).No. 3880 of 2018
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1 COPY OF THE CIRCULAR NO. 430 DATED 10.03.2010
ISSUED BY THE PRINCIPAL CONTROLLER OF DEFENCE
ACCOUNTS (PENSION) ALLAHABAD.
EXHIBIT P2 COPY OF THE LETTER NO. PC 10 (1)/2009 -
D(PENSION/POL) GOVERNMENT OF INDIA, MINISTRY OF
DEFENCE, DEPARTMENT OF EX-SERVICEMEN WELFARE,
NEW DELHI DATED 08.03.2010.
EXHIBIT P3 COPY OF THE APPLICATION DATED 31.12.2010 ALONG
WITH PROFORMA FORWARDED BY THE 1ST PETITIONER
TO THE 5TH RESPONDENT.
EXHIBIT P4 COPY OF THE LETTER NO. PA/CLT/219 ISSUED BY THE
DEFENCE PENSION ADALATH, THE 5TH RESPONDENT
DATED 07.01.2011 ADDRESSED TO THE PETITIONER.
EXHIBIT P5 COPY OF THE JUDGMENT IN O.A.NO. 37 OF 2011 OF THE
ARMED FORCES TRIBUNAL DATED 29.05.2013.
EXHIBIT P6 COPY OF THE CIRCULAR NO. 12(1)/2014/D(PEN/POLICY)
PART II OF THE 1ST RESPONDENT DATED 03.02.2016.
EXHIBIT P7 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT
IN W.P.(C) NO. 25368 OF 2016 DATED 30.03.2017.
EXHIBIT P8 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT
DATED 27.09.2017.
RESPONDENT(S)' EXHIBITS:
EXHIBIT R1(a): TRUE COPY OF THE PCDA(P), ALLAHABAD PENSION
PAYMENT ORDER NO.S/47816/79/74 DATED 09/07/1999
EXHIBIT R1(b): TRUE COPY OF THE PCDA(P), ALLAHABAD PENSION
PAYMENT ORDER NO.S/R/4295/1983 DATED 14/07/1983
EXHIBIT R1(c): TRUE COPY OF THE LETTER
NO.17(4)/2008(1)/D(PEN/POLICY) DATED 11/11/2009
EXHIBIT R1(d): TRUE COPY OF THE PCDA(P), ALLAHABAD CIRCULAR
NO.397 DATED 18/11/2018
EXHIBIT R1(e): TRUE COPY OF THE LETTER NO.B/38174/PS-5/D (PEN-POL)
DATED 03/09/2009
EXHIBIT R1(f): TRUE COPY OF THE LETTER NO.PA/CLT/219 DATED
07/01/2011
WP(C).No. 3880 of 2018
EXHIBIT R1(g): TRUE COPY OF THE ORDER DATED 29/05/2013
EXHIBIT R1(h): TRUE COPY OF THE SPEAKING ORDER DATED 27/09/2017.
/TRUE COPY/
P.A. TO JUDGE
AS
P.V.ASHA J.
------------------------------------
W.P.(C).No.3880 of 2018
-------------------------------------
Dated this the 4th day of May, 2018
J U D G M E N T
Reservist pensioners are aggrieved by the denial of the benefit of revision of pension ordered in Exts.P2 and P6.
2. All the petitioners/their deceased husbands retired from service while working in the reserve establishment of Indian Army. It is their case that whenever there was a revision in pension to the Army pensioners, their pension was also being revised. However when Ext.P2 letter was issued on 08.03.2010, in implementation of the revision of pension in respect of Personnel Below Officer Rank (PBOR) W.P.(C).No.3880 of 2018 2 discharged prior to 01.01.2006, there was a specific provision in paragraph 5.2 which excluded the reservist pensioners from its applicability along with certain other categories of pensioners like Pakistan and Burma Army pensioners/UK/HKSR pensioners. Similarly when Ext.P6 was issued on 03.02.2016 with respect to One Rank One Pension to the Defence Forces Personnel also the reservist pensioners were excluded as per paragraph 4.1 of that letter. The claim of the petitioners is that whenever there was a revision of pension corresponding revision was being made till Exts.P2 and P6 orders were issued in the year 2010. Aggrieved by this, petitioners had approached this Court in W.P.(C). No.25368 of 2016, when this Court by Ext.P7 judgment, observing that no reason was stated for excluding the category of reservist pensioners, permitted them to W.P.(C).No.3880 of 2018 3 make appropriate representation before the first respondent and directing the first respondent to pass orders on their claim after affording them an opportunity of hearing, taking into account the purpose behind the circular dated 03.02.2016-Ext.P6. In Ext.P8 order passed thereafter, which is under challenge in this writ petition, the first respondent stated that the minimum qualifying service for earning service pension for Personnel Below Officer Rank is 15 years as per regulation 47. In the case of reservist pensioners the qualifying service is less than 15 years and they are granted pension on completion of the prescribed combined qualifying active service and reserve qualifying service of not less than 15 years and a reservist pension equal to 2 /3rd of the lowest pension admissible to a Sepoy is given which should be not less than Rs.375/- per W.P.(C).No.3880 of 2018 4 month which was the minimum pension under the 4 th Central Pay Commission. It is stated that the minimum pension got revised to Rs.1275/-, Rs.3500/- and Rs.9000/- per month under the 5th CPC. It is stated that the policy of the Government was not to give 2/3rd of the lowest pension given to a Sepoy to the reservist pensioners. When the minimum pension was raised to Rs.3500/- in the case of a Sepoy in order to protect the minimum pension, the reservists were granted Rs.1275/- per month in the 6 th CPC. It is stated that the reservist who has put in less than 15 years of actual qualifying service is not entitled for service pension admissible to a Sepoy who has put in 15 years of actual active service. The first respondent has stated that no parity is provided to reservist pensioners with service pensioners and hence their plea for revision of reservist pension W.P.(C).No.3880 of 2018 5 cannot be accepted. It is stated that the reservist pensioners are receiving a minimum pension of Rs.3500/- and it is being protected even when there is no parity. However it is stated that the matter has been referred to a One Member Judicial Committee on OROP and a decision would be taken after examination of the report as and when it is submitted.
3. The respondents have filed a counter affidavit reiterating the stand in Ext.P8 order. It is stated that the Regulation 132 of Pension Regulation for the Army 1961 (Part-I) which is the revised Regulation 47 of Pension Regulation for the Army 2008, the minimum qualifying service for earning service pension for Personnel Below Officer Rank is 15 years. When a Sepoy is getting service pension only after he puts in 15 years of qualifying service, W.P.(C).No.3880 of 2018 6 reservists get pension after serving a particular period in active Army and thereafter remaining term in reserve till they are recalled in the event of emergency. Therefore reservists are getting pension without actual active service of 15 years. Reservist pension is fixed equal to 2 /3rd of the lowest pension admissible to a Sepoy which should be not less than Rs.375/- per month under the 4 th CPC and this pension is revised Rs.1275/- per month and Rs.3500/- per month and thereafter Rs.9000/- per month under the 5th, 6th and 7th CPC. When the lowest pension of a Sepoy of regular army with 15 years of actual qualifying service is enhanced to Rs.4603/- per month from Rs.3500/- per month under the 6 th CPC with effect from 01.07.2009, the revised pension of reservist would be Rs.3069/- if it is calculated as 2 /3rd of Rs.4603/-.
At the same time they are getting the minimum pension W.P.(C).No.3880 of 2018 7 of Rs.3500/- per month under the 6 th CPC and it was protected as it is more beneficial to them. Ext.R1(c) letter dated 11.11.2008 and Ext.R1(d) Circular dated 18.11.2008 and Government of India letter dated 03.09.2008 provides for such protection taking into account the consolidated pension which works out to Rs.3500/- per month.
4. Learned CGC also points out that the Regulation 155 of Pension Regulation for the Army 1961 (Part-I) provides that the reservist pensioners would be eligible for 2 /3rd of the lowest pension admissible to a Sepoy and that the reservists are already getting more than the 2 /3rd of the lowest pension admissible to a Sepoy getting service pension, the Government found that further revision is not necessary. Till 2009 the pension admissible to them was less than 2 /3rd and accordingly revision was W.P.(C).No.3880 of 2018 8 being granted.
5. Having heard the contentions on both sides, it is necessary to examine the relevant provisions in Army Pension Regulations, 1961 (b