Central Administrative Tribunal - Ernakulam
Lt. Col. A.A. Aphraim (Rtd.) vs Principal Controller Of Defence ... on 17 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00418/2014
Tuesday, this the 17th day of May, 2016
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
1. Lt. Col. A.A. Aphraim (Rtd.), NCC/PC/12103,
Kaliyadan House, 94 Hill Garden, Anchery PO,
Thrissur - 680 006.
2. Cdr. Jacob John Malayattu (Rtd.), NCC/NPC/11817,
Malayattu Mangalathu, T.C. No. TC-10C-2760,
(SP 12/399), JMM Lane, Mannanthala PO.,
Thiruvananthapuram - 695 015. .... Applicants
(By Advocate : Mr. Shaji Thomas)
Versus
1. Principal Controller of Defence Accounts (Pension),
Draupadi Ghat, Allahabad - 211 014, U.P.
2. Deputy Controller of Defence Accounts (P),
Draupadi Ghat, Allahabad - 211 014, U.P.
3. Director Pension Policy, Government of India,
Ministry of Defence, Department of Ex-Servicemen Welfare,
New Delhi - 110 011.
4. Director General NCC, West Block,
R.K. Puram, New Delhi - 110 066.
5. Union of India, represented by Secretary to
Ministry of Defence, South Block, New Delhi - 110 011.
6. Manager, State Bank of India, Thrissur Branch,
Dharmaodyam Building, Round East, Thrissur - 680 001.
7. Manager, State Bank of India, Mannanthala Branch,
Sahadevan Complex, Mannanthala PO,
Thiruvananthapuram - 695 015. . . . . Respondents
[By Advocate : Mr. N. Anilkumar, Sr. PCGC(R) (R1-5)
Mr. P.V. Surendranath (R6-7) - Not present]
This application having been heard on 22.03.2016, the Tribunal on
17.05.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicants are retired whole time National Cadet Corps (NCC) officers who were granted permanent commission. Earlier they were commissioned in the Indian Army during the emergency of Chinese aggression. They have also taken part in the Indo-Pak. war of 1965. After the emergency applicants and others were granted the NCC permanent commission. According to them even in the NCC commission applicants and other similarly situated officers were paid from the defence estimates and were governed by Special Army Instructions( for short, SAI) 9/S/74. Applicants retired from service in 1994. Subsequently, as the NCC commissioned officers were not dealt with by the VIth Central Pay Commission, the rank of Lt. Colonel was recommended to be put in pay band-3. Ultimately by Annexure A2 order the Government decided to place the Lt. Colonel and equivalent officers in Navy and Air Force in the pay band-4 Rs. 37,400-67,000/- with Grade Pay of Rs. 8,000/-. But respondent No. 2 issued the impugned Annexure A3 communication to the pension disbursing authorities indicating that Annexure A2 communication is not applicable to the NCC whole time officers and officers of Military Nursing Services (MNS). Accordingly, respondents Nos. 6 & 7 the pension disbursing banks took steps to freeze the accounts of the applicants for the purpose of recovery of excess payments received by the applicants. The applicants contend that the aforesaid acts of the respondents are highly illegal, arbitrary, discriminatory and offending to Articles 14 & 16 of the Constitution of India. It is also contended by the applicants that Regulation 95 of Pension Regulation of Army, 2008 mandates that over payment of pension due to error of law shall not be recovered and therefore the recovery of pension is in violation of the aforesaid regulations. The applicants state that they have not been given any notice regarding recovery of their pension. Freezing of their bank accounts is in violation of banking laws and the ethics relating to bank/customer relations. Therefore, applicants seek:
'i) To call for the records leading to and set aside Ann. A3-Circular No. 144 dated 27.01.2010 of the 2nd respondent;
ii) To declare that the Lt. Colonels and Commanders in NCC are entitled to be considered at par with their counterpart Lieutenant Colonels / Commanders in defence services and to be placed in Pay Band-4;
iii) To declare that Ann. A3-Circular issued by the 2 nd respondent is in contravention of Ann. A2-order of the Ministry of Defence and Ann. A3 cannot override Ann. A2;
iv) To direct the respondents 1 to 5 not to reduce the pension of the applicants retrospectively and to continue to pay pension to the applicants treating them as eligible to be placed in Pay Band-4;
v) To direct the respondents 1 to 5 not to reduce or recover from pension of the applicants any amount without giving notice to the applicants and without adhering to the principles of natural justice;
vi) To direct the respondents 6 and 7 to defreeze the bank accounts of the applicants forthwith;
vii) To issue such other appropriate orders or direction this Hon'ble Court may deem fit, just and proper in the circumstances of the case;
and/or
viii) To grant the costs of this Original Application.'
2. Respondents filed a reply statement contending that the applicants cannot be treated as officials equivalent corresponding to their ranks in the Army and they are not eligible to receive the same salary and emoluments as received by the regular Army officials in the defence Departments.
3. An additional reply statement also was filed by the respondents pointing out that the NCC whole time officers are governed by Special Army Instructions(SAI) for the purpose of pay and allowances.
4. A rejoinder was filed by the applicants pointing out that they are posted in the posts tenable to Army Officers bearing the same rank of Lt. Colonel, drawing the same rank pay and that they are paid from the Army budget.
5. Heard both sides. Mr. Shaji Thomas appeared for the applicants and Mr. N. Anilkumar, Sr. Panel Central Government Counsel (Retainer) appeared for the respondents. Perused the record.
6. The controversy in this case is centred around the applicability of Annexure A2 decision of Department of Ex-Servicemen Welfare, Ministry of Defence, Government of India informing that Lt. Colonel and equivalent officers in Navy and Air Force have been placed in pay band-4 i.e. 37,400- 67,000/- with Grade Pay of Rs. 8,000/- per month. The aforesaid Annexure A2 communication was issued as a result of the Government's disagreement with the VIth CPC - placing the officials in the rank of Lt. Colonel in PB-3. It appears that after much deliberations within the Government it has been decided to place such officials in pay band-4. According to the applicants as they also are in the rank list of Lt. Colonel when they were granted permanent commission in NCC as whole time officers they are entitled to the salary and allowances of Lt. Colonel in the pay band-4 with Grade pay of Rs. 8,000/- and the corresponding quantum of pension.
7. Annexure A1 is the terms and conditions of service of NCC whole time officers who were granted NCC permanent commission. The relevant portion of the terms of pay and allowances of such officers in Annexure A1 reads :
'6. Pay and Allowances
(a) These officers will be governed by SAI/9/S/74 for the purpose of pay and allowances subject to deduction of Rs. 50/- p.m. due to abolition of special disturbance allowances with effect from 1 Jan 73.
(b) Kit maintenance allowance will be admissible at the rate of Rs. 50/- per month.
(c) High altitude and Un congenial Climate Allowance as laid down in SAI 9/4/74, will not be admissible to these officers.
d) Out fit allowance will be admissible to these officers.'
8. Relying on paragraph 7 of Annexure A1 terms and conditions the applicants contend that they are performing the duties and are having the powers of the armed forces officers posted in NCC units/formations. Paragraph 7 of Annexure A1 reads:
'7. Duties and powers of command The duties assigned to these officers will be the same as for Armed Forces Officers, posted in NCC Units/formations. These officers will exercise command and control, as provided for under NCC Act and Rules, as amended from time to time. These officers will be junior to the Regular Service Officers of the same rank and will service under them, when so posted, but senior to all part Time Officers of the same rank irrespective of the length of service.'
9. Applicants further rely on Annexure A8 - an affidavit filed by the Union of India before the Apex Court in SLP No. 11385-86 of 1991 where it is stated:
'3. ............
The Respondents, therefore, cannot be treated as civilians working with the Ministry of Defence. This is a Special Cadre created for those emergency and Short Service Commissioned Officers, who were not found suitable for Armed Forces. The respondents like Armed Forces personnel in NCC, take active part in adventure activities viz para-sailing, trekking, para-trooping, live ammunition training at firing ranges etc. . . . . . . . . . . '
10. The aforesaid SLP was later converted by the Apex Court as Civil Appeal Nos. 2449-50 of 1992 (Union of India & Anr. v. Lt. Colonel Komal Charan & Ors. 1992 Supp. (3) SCC 186). In that case the issue before the apex court was whether NCC whole time officers are entitled to continue in service till they attain the age of 58 years in accordance with the Fundamental Rule 56-A. The court examined whether the Fundamental Rule is applicable to NCC whole time officers and it was held that Fundamental Rule cannot be made applicable to NCC whole time officers in the absence of any special provisions in the National Cadet Corps Act, 1948 or the rules framed thereunder. The court held that in the absence of a rule to the contrary the Central Government is fully authorised to fix the age which it has done and which was accepted voluntarily by the respondents in the aforesaid case.
11. Annexure A1 terms and conditions specifically state that the NCC whole time officers will be governed by Central Civil Services (Pension) Rules 1972. Since the applicants are retired officers and they are governed by the CCS (Pension) Rules 1972, they come within the jurisdiction of this Tribunal under the provisions of the Administrative Tribunals Act, 1985.
12. By the impugned Annexure A3 communication respondent No. 2 has decided that Annexure A2 Government decision to place the Lt. Colonel and equivalent officers in other branches of the Armed Forces in PB-3 is not applicable to the NCC officers and MNS who are granted pension through respondents Nos. 1 to 3 and the pension disbursing authorities. This is challenged by the applicants contending that they are in all respects equivalent to the Lt. Colonel and other officials with the equal rank in the Armed Forces in the matter of pay and other allowances.
13. As seen above, the pay and allowances for NCC Officers are governed by paragraph 6 of Annexure A1 terms and conditions which states that they will be governed by SAI 9/S/74 for the purposes of pay and allowances subject to deduction of Rs. 50/- per month and plus kit maintenance allowance at the rate of Rs. 50/- per month. Since the aforesaid Special Army Instruction is relied on by both sides, the governing instrument for regulating the pay and allowances of the applicants, this Tribunal directed the parties to produce a copy of the said instructions. Accordingly, a copy of the SAI. 9/S/74 was produced by the applicants as Annexure A9. But paragraph 14 of the above said Army Instructions takes NCC officers out side the purview of it. Paragraph 14 of Annexure A/9 reads:
'14. The provisions of this A.I. Do not apply to NCC officers, officers of the Regular Service, TA officers and re-employed officers for whom separate instructions will be issued.' It is worth noticing that the aforesaid Army instructions (SAI 9/S/74) were issued in connection with the revision of pay and allowances pursuant to the recommendations of the IIIrd Pay Commission. Though Annexure A1 terms and conditions applicable to the whole time NCC officers state that their pay and allowances will be governed by SAI 9/S/74, as paragraph 14 of the aforesaid Army instructions specifically excludes the NCC officers, they cannot be treated as the beneficiaries of SAI 9/S/74. There is nothing in record to show that any other SAI was issued to regulate the pay and allowances of full-time NCC Commissioned officers. Therefore, this Tribunal is of the view that respondent No. 2 was quite justified in issuing the impugned Annexure A3 communication directing the pension disbursing authorities not to make Annexure A2 Government of India decision applicable to the NCC Officers.
14. Learned counsel for the applicants produced Annexure A5 copy of the interim order of the Co-ordinate Bench of this Tribunal at Lucknow where by the operation of Annexure A3 order herein was stayed. It was not informed by either of the parties as to what was the final outcome of the aforesaid case before the Lucknow Bench. Nevertheless it appears to this Tribunal that as Annexure A/9 Special Army Instructions has excluded NCC officers from the purview of such instructions, it is difficult to hold that Annexure A2 communication issued after the VIth Pay Commission, giving benefit of higher pay to Lt. Colonel and equivalent rank is applicable to the NCC officers unless there is a specific mention in Annexure A2 that the benefits would be applicable to the NCC officers as well.
15. It was pointed out by the learned counsel for the applicants that NCC officers appointed in terms of Annexure A1 are a vanishing category and that there are hardly 200 such pensioners including family pensioners belonging to this category. However, such a situation is not a ground for equating the applicants and similarly situated persons to the regular defence personnel of Lt. Colonel and equivalent ranks in the armed forces in the matter of pay revision and the consequential pensionary benefits. This Tribunal is of the view that this is a matter within the province of the Government of India to decide as a policy matter.
16. The next question to be considered is whether the recovery of the alleged excess payments is permissible under law. It is now settled law in State of Punjab & Ors. v. Rafiq Masih (White Washer) - AIR 2015 SC 696 that recovery of excess payments is not permissible in law in the case of pensioners.
17. Therefore, this Tribunal disposes of this OA with a direction to the respondents not to effect any recovery of excess payment from the applicants. This Tribunal further directs the respondents Nos. 6 & 7 to lift the freezing of the accounts of the applicants though which they are being paid pension. Respondents 1 to 5 are directed to issue an appropriate revised pension payment order in respect of the applicants, based on the current revised salary applicable to them, and family pension for the applicants. This exercise shall be completed within 45 days from the date of receipt of a copy of this order. No order as to costs.
(Dated, this the 17th May, 2016) (U. SARATHCHANDRAN) JUDICIAL MEMBER SA