M.A 1764/2022
1. Heard learned counsel for the parties on the point of delay. The delay of 8,913 days in filing the 0.A has been explained by
the applicant. Keeping in view the averments made in the M.A and finding the same to be bona fide and in the light of the decision
in Union of India and others Vs. Tarsem Sinsh (2009(1) AISLJ 371), we allow the instant M.A and condone the delay in
filing the O.A.
0.A 1301/2022
2.  The present 0.A has been filed by the applicant praying for revision of his pension in accordance with the last rank held by him beforeÂ
retirement, i.e. CHELR on the basis of the Government of India circular dated 9th February,.2001, wherein it has been clarified that
ten months' continuous service in the last rank held is not required for grant of pension in such rank.
In this regard, reference is made to orders of this Tribunal (Principal Bench) in JWO Framod Kumar Singh and others Vs. Union of India and
others (0.A. No. 1166 of 2017) and JWO Ashok Kumar Tan war and others Vs. Union of India and other s(0.A. No. 882 of 2016). The
applicant has also referred to the order of the Tribunal (Regional Bench), Chennai in the matter of Thiagrajan Vs. Union of India and others
(0.A. No. 93 of 2014), which waived off the ten months as stipulated in Para 123 of Pension Regulations for Air Force 1961 and opined that p""ension
cannot be deprived to an individual to a rank for which he has already rendered his service and that the applicant had
earned his pension in the rank of JWO already, and therefore, is entitled to be paid pension in the rank ofJ WO. Even if, for some reason,
such a pension is found to be less, the applicant is entitled to receive the highest pension he earned already. The said statutory right for
pension already earned by the applicant cannot be reduced even if an undertaking is executed by him for the receipt of any lower pension
in the rank ofI WO"".
3.  Though the respondents concede that the requirement of holding the last rank before retirement has been dispensed with, keeping in view the
Government of India circular dated 9th February, 2001, they, however, contended that they are correct in giving pension to the applicant in the lower
rank as it is financially more beneficial.
4. We find that there is a catena of judgments of various Benches  of the  Armed  Forces Tribunal  on  this  issue. Consequently, the fact
that the applicant is entitled to pension in the last rank held by him, even if he held it for duration of less than ten months, stands clearly established.
5. Â On the issue of pension amount so authorised, we find that the argument that a junior promoted to a senior rank (e.g. JWO, MWO or WO)
should be pegged at a pension of his last but one rank (i.e. one rank junior to the one he retired), as proposed by the respondents is fallacious. It is also
violative of the ratio and the principles laid by the Hon'ble Supreme Court in D.S. Nakara Vs. Union of India and others (1983) I SCC 12.5 It is
also not possible, in rational calculations, to peg the pension of a PBOR, who has held the higher rank for less than ten months, to be computed a
pension for his previous and lower rank. Additionally, all future pay revisions due to new Pay Commission and five yearly OROP revision are
primarily based on two factors i.e. last rank held and years of service, hence reflection of a lower rank in PPO as compared to the actual higher rank
(held for less than ten months) is bound to reduce future upgradation and revision of pension.
6. Â On the exact method of calculation, we find that in a judgment of the Tribunal, Regional Bench, Chennai inJ WO P Gopalakrisbnan Union of
India and others (0.A. No. 62 of 2014 decided on 13.02.2015), the complete import and implication of  the  circular  dated 2nd February,
2009, Regulations for the Air Force Part I and the GoIMoD letter dated 22nd November, 1983 has been explained.  The Government policy
letters dated 7t1iJune, 1999, 9th February, 2001and 17th December, 2008 have been considered. Â Most significantly, the recommendations of the 6th
CPC, accepted by the Government of India through its letter dated llth November, 2008 and the circular dated 2nd February, 2009, have also been
considered. We find that the specific letter number being identical, in all probability, the date of Government of India communication is
12th November, 2008 and not 1 1t1 November, 2008.
7. Â In consideration of all these issues as well as the circulars, the Tribunal, in that case, came to the conclusion that the basis of calculation being
pursued in the instant case was detrimental for the pension of petitioner.  To this end, we would like to quote Paragraph 14 of the orderÂ
in the case of JWO F. Gopalakris.hnan (supra), which reads as under:
For appreciating the rival contentions, we have gone through the Tables annexed with Circular 430 issued in pursuance of the policy letters dated 11.11.2008 by
the Government of India. As per the Circular 430 in Table 116, we find the revised pension of Sergeant rank who has completed 20 years of service and retired
after 01.04.2004 was fixed at Rs.3,694/-. The submission of the learned Central Government Standing Counsel as to the pension of Sergeants who retired on
01.05.2005 shall be Rs.3,694/- is found correct to that extent. However, when we go through the service pension payable to a IWO in Table 116 of Circular 430
having 20 years of service and retired after 01.04.2004 would be 1?s.4,711/- and not Rs.3,358/- as put forth by the respondents.
Therefore, the pension payable to the applicant as on 13 01.2005 in accordance with the policy letters of the Government of India dated 07.06.1999 and
09.02.2001 would be Rs.4,711/- and not Rs.3,694/-. Similarly, the benefits conferred upon the IWO as per the W Central Fay Commission recommendations as
tabulated in Table 116 of Circular 430 for 20 years of service, we see that the pension payable to the applicant with effect from 01.01.2006 would be Rs.7,100/-
and the revised pension with effect from 01.07.2009 would be Rs.8,720/-. When the benefits conferred upon the Armed Forces personnel on the changed policies
have been clearly laid down in the Circular 430 containing several Tables, it ought to have been issued by the respondents without any request from the
applicant. However, we find that the applicant had sought for payment ofp ension in the last held rank on several occasions and it was not heeded. The claim
for pension is a statutory right and the respondents ought to have granted the entitled pension, admittedly, even without  issuing  any corrigendum in the
ITO. This has been reiterated in various communications of the Government. Therefore, the respondents are under the obligation to revise the pension when it
is brought to their notice of any defect in granting the pension. However, in this case, the respondents have not acceded to the plea of the applicant even when
it was raised immediately after his retirement.
8.  We find that the respondents need to implement the calculation of pension for the applicant as mentioned above, as he is
similarly placed to the applicant in JWO P. Gopalalaishnan (supra).
9. Â Accordingly, the instant OA is allowed. The respondents are directed as under:-
(i) Â calculate the pension of the applicant based on the last held rank by him before retirement, i.e., CHELR and in consonance with the principles of calculation
that have been upheld in JWO Gopalakrishnan (supra) in this regard;
(ii) The applicant will be issued a fresh corrigendum FPO, subject to verification, in the last rank of CHELR held within a period of three months
and arrears paid accordingly, failing which, it shall carry interest at the rate of six per cent till payment.
10. No order as to costs.
