1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5383/2002. : : Ex. Sergeant Dharampal Jyotishi Vs. Union of India & Ors. : : Date of Order 6.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. N.S.Chouhan for the petitioner. Mr. Ramgopal Choudhary for the respondents. Heard learned counsel for the parties. 2. This writ petition has been filed with the prayer that respondents be directed to revise/modify the pension payment order giving him benefit of rank of Sergeant and on that basis calculate his pension treating him to have been promoted w.e.f. 1.12.2000. 3. According to learned counsel for petitioner, petitioner was appointed as an Airman in the trade of Equipment Assistant on 7.6.1986 with initial term of engagement being 20 years. He was given first rank of an Air Crafts Man on 13.7.1987 and then was posted at different 2 places. He was promoted to the rank of Corporal w.e.f. 7.6.1991. He was thereafter promoted on the post of Sergeant w.e.f. 1.12.2000 as per his seniority and merit under instructions of respondents dated 31.10.2000. Since petitioner was detailed for undergoing service course (143 Civil Defence Instructors Course) at National Civil Defence College, Nagpur w.e.f. 30.10.2000, he could not immediately join the rank of Sergeant on 1.12.2000. He was granted this rank after he rejoined in Unit No.1 Rajasthan Air Squadron NCC on 18.12.2000. His promotion was delayed by 17 days due to no fault of his. He was not intimated that he was promoted on 1.12.2000. He came to know of the same when he returned back to his unit. At that time, an Air Force Order No.4/95 was issued by Chief of Air Staff, Air Chief Marshal Shri S.K.Kaul, PVSM, MVC, ADC titled as “Discharge from service on compassionate grounds Airmen and NCE”. On compassionate ground stated therein, an Airman could be discharged before his term of engagement. Petitioner submitted an application through his Commanding Officer to discharge his services on compassionate ground as per the aforesaid Air Force Order. His application was forwarded to Air Force Record Officer and was ultimately approved by competent authority at Air Headquarter level, which directed 3 the parent unit of the petitioner to discharge him within 14 days. Since the said order was received by parent unit on 24.8.2001, petitioner was discharged on 6.9.2001. Learned counsel has cited order dated 3.2.1998 issued by Government of India, Ministry of Finance and submitted that according to aforesaid order in the case of personnel below other rank would mean that maximum pay of pay scale including 50% of the highest classification allowance if any, of the rank held and group in which, paid. It was in the pay, which the petitioner was lastly receiving, i.e. retiring/service/invalid pension could be calculated. The respondents have granted him benefit of gratuity on the basis of pay last drawn on the post of Sergeant. They have granted him pension and pensionary benefits in the lower pay scale of the post of Corporal. Learned counsel cited letter of the Government of India, Ministry of Defence dated 9.2.2001 addressed to Chief of the Army Staff, New Delhi stating therein that w.e.f. 1.1.1996 pension of all Armed Force Pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the revised scale of pay introduced w.e.f. 1.1.1996. It was stated that PCDA (P), Allahabad has not been giving the benefit of revision of pension under modified parity to those officers who have not 4 held their rank for last 10 months before retirement as per prevailing rules. There is no such stipulation in the Government order. Learned counsel submitted that Government of India in the said letter clarified that pension of these pre 96 retiree Armed Forces Personnel will be revised on the basis of rank/group last held by the individual and the revised pay scale connected thereto, even if the rank/group was held for less than 10 years before retirement. 4. Shri Ramgopal Choudhary, learned counsel for the respondents argued that as per Pension Regulations for Air Force, 1961, minimum 10 months of service was required to be served by the petitioner to claim benefit of pension in the scale on the post of Sergeant. Since the petitioner served only for 8 months and 20 days, therefore, according to Para 122 of Pension Regulations (supra) he could not be granted such benefit. Learned counsel submitted that as per Para 123 of Regulations, the maximum period for which deficiency could be condoned was three months, but there was an exception that such deficiency would not be made in the case of voluntary retirement. Since the petitioner has sought voluntary discharge from service he is not entitled to relaxation. 5 5. Having heard learned counsel for the parties and perused the material on record, I find that plea of respondents now in subsequent clarifications issued by Government of India, Ministry of Defence in their letter dated 9.2.2001 has been rendered untenable. The relevant portion of aforesaid letter is reproduced as under :- “I am directed to refer to this Ministry’s letter No.1 (1)/99/D (Pen/Sers) dated 7.6.1999 as amended wherein Government had decided that w.e.f. 1.1.1995 pension of all Armed Force Pensioners, irrespective of their date of retirement shall not be less than 50% of the minimum of the revised scale of pay introduced w.e.f. 1.1.96. PCDA (P), Allahabad has not been giving the benefit of revision of pension under modified parity to those officers who have not held their rank for last 10 months before retirement as per prevailing rules. However, there is no such stipulation in the Government Order under reference. The matter has been reconsidered in consultation with O/o CGDA. It is clarified that pension of all pre-96 retiree Armed Forces Personnel will be revised on the basis of the rank/group last held by the individual and the revised pay scale connected thereto, even if the rank/group was held for less than 10 year before 6 retirement. Such pension will be reduced proportionately if the qualifying service is less than 33 years. Other conditions to earn pension will continue to apply. This issues with the concurrence of Ministry of Defence (Finance/Pension) vide their U.O.No.143/Pen/01 dated 12.1.2001.” Moreover, the petitioner was detailed on to undergo of 143 Civil Defence Instructor course and on return wherefrom, he could resume duties on 18.12.2000, therefore, he could not be denied benefit of rank of Sergeant w.e.f 1.12.2000 for the intervening period. At this stage, learned counsel for the petitioner informed that respondents have granted the petitioner seniority but actual benefit was not paid. In the result, this writ petition is allowed. The respondents are directed to revise pension of the petitioner in the pay scale of Sergeant and also grant him actual emoluments and arrears thereof with interest @ 6% per annum in implementing the aforesaid direction within a period of three months from the date copy of this judgment is produced before them. (MOHAMMAD RAFIQ)J. A.Arora/-Item No.34.