C.W.P. No. 3312 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:- 06.03.2009. 1. C.W.P. No. 3312 of 2007 Sham Lal Sharma (Retd.) ....Petitioner. Versus Union of India and others ....Respondents. Present:- Mr. S.L. Sharma, Advocate for the petitioner. Ms. Anjali Kukar, Advocate for all the respondents. 2. C.W.P. No.4821 of 2007 Jagga Singh (retired) ....Petitioner. Versus Union of India and others ....Respondents. Present:- Mr. Sewa Singh, Advocate for the petitioner. Ms. Ranjana Shahi, Advocate for all the respondents. 3. C.W.P. No.8640 of 2007 Mohan Singh and others ....Petitioners. Versus Union of India and others ....Respondents. Present:- Mr. R.A. Sheoran, Advocate for the petitioners. Ms. Ranjana Shahi, Advocate for all the respondents. C.W.P. No. 3312 of 2007 -2- 4. C.W.P. No.10165 of 2007 Gurmail Singh (retired) and others ....Petitioners. Versus Union of India and others ....Respondents. Present:- Mr. S.L. Sharma, Advocate for the petitioners. Ms. Ranjana Shahi, Advocate for all the respondents. 5. C.W.P. No.8939 of 2007 Defence Sukhmani Society Panchkula and others ....Petitioners. Versus Union of India and another ....Respondents. Present:- Mr. Sewa Singh, Advocate for the petitioners. Ms. Ranjana Shahi, Advocate for all the respondents. 6. C.W.P. No.17863 of 2007 Gobind Ram Raghwa and others ....Petitioners. Versus Union of India and others ....Respondents. Present:- Mr. Vikram Bali, Advocate for the petitioners. Ms. Ranjana Shahi, Advocate for all the respondents. 7. C.W.P. No.14814 of 2007 J.L. Sharma and others ....Petitioners. Versus Union of India and others ....Respondents. C.W.P. No. 3312 of 2007 -3- Present:- Mr. Vikram Bali, Advocate for the petitioners. Ms. Ranjana Shahi, Advocate for all the respondents. 8. C.W.P. No.11227 of 2008 Inderjit Singh Hira and others ....Petitioners. Versus Union of India and others ....Respondents. Present:- Mr. Vikram Bali, Advocate for the petitioners. Ms. Ranjana Shahi, Advocate for all the respondents. CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JASWANT SINGH JASWANT SINGH J. This judgment shall dispose of eight writ petitions bearing numbers CWP No. 3312 of 2007, CWP No.4821 of 2007, CWP No. 8640 of 2007, CWP No.10165 of 2007, CWP No. 8939 of 2007, CWP No.17863 of 2007, CWP No.14814 of 2007 and CWP No.11227 of 2008 as they involve identical facts and common questions of law. The short question involved in these writ petitions is as to whether the petitioners, who are Ex-Armed forces personnel, are entitled to restoration of their commuted value of pension after fifteen years of the retirement or thirteen years after adding weightage of two years purchase value of commuted pension, in terms of the directions given in the judgment rendered by the Hon'ble Supreme Court in “Common Cause” As Registered Society & Others v. Union of India & Others, 1987(1) Service Law Reporter 206 (Annexure P-1). C.W.P. No. 3312 of 2007 -4- For the sake of brevity and with the consent of the counsel for the parties, the facts from CWP No.3312 of 2007 have been taken and dealt with. The petitioner joined the Indian Army as Commissioned Officer on 3rd of May, 1964 and retired as Lt. Col. on 30.11.1991. Petitioner was granted full pension for the service rendered in the Army and he has been drawing his pension from Respondent No.4-Chief Controller of Defence Accounts (Pensions), Defence Accounts Officers, Allahabad. Petitioner was issued pension payment orders (for short PPO) which contains details and particulars of pensionary benefits of the petitioner. He was granted and sanctioned full pension, based upon basic pay plus rank pay held on the date of retirement in accordance with the pension regulations. It is stated that the pension of the petitioner was determined on the principle of one half of full basic pay being drawn by the petitioner during service plus other consequential benefits of service thereto and the petitioner was also granted commutation upto 43% of full pension which was granted to him for the period of 12.35 years as he retired at the age of 52 years and in this way petitioner was granted pension @ Rs.2528/- (½ of Basic Pay) which was worked out on the full Basic Pay of Rs.5055/-. Pension of the Army personnel is governed by provisions of Pension Regulation for the Army, 1961 (amended in 1981) (for short Regulation of 1961) and the commutation of pension for the Army personnel is further described in the provisions of paras 341-344 of Regulation of 1961 (extracted at Annexure P-4 alongwith the table). It is further stated that the petitioner being Commissioned Officer was also entitled to commute a lump sum payment of portion not exceeding 43% (for C.W.P. No. 3312 of 2007 -5- officers) of his full pension as described in table appended under para 341- 344 and the amount of value of commutation of pension was determined in accordance with the table which is further considered for the number of years called as “purchase years” in the table accordingly. That prior to the year 1986 there were no provisions or rules for the restoration of full pension after the expiry of a particular period of weightage or purchase years of commuted pension for the Central Government employees including the Armed Forces, and a provision existed for converting a portion of pension into a lump sum amount and thereafter receiving only the balance amount for the rest of the life. It is not disputed that in case of the Central Government employees, the total amount of pension which could/can be commuted is upto one-third while in the case of the Defence Services upto 43% (in case of officers) and upto 45% in case of other ranks. It is only after the intervention of the Hon'ble Supreme Court in Common Cause's case (supra) that the Central Government introduced the scheme for restoration of commuted portion of the pension. Therefore, the petitioner is praying for directions to the respondents to uniformly implement the judgment dated 09.12.2006 rendered by the Hon'ble Supreme Court in “Common Cause” As Registered Society (supra) (Annexure P-1) in respect of the petitioner and to pay full commuted value of pension by granting of additional weightage @ 2 purchase years over and above the old existing value of purchase years so as to enable the petitioner to get their full pensions restored after the completion of 13 years from the date of his retirement from service and to revise commuted values of the pension from the date of his retirement with consequential service benefits and also with interest @ 18%. Further prayer is for directing the C.W.P. No. 3312 of 2007 -6- respondents to modify or amend Notification dated 5/15.03.1987 (Annexure P-5) in accordance with the Hon'ble Supreme Court judgment (Annexure P- 1) and further set aside para No.344(b) of aforesaid Regulations of 1961 (extracted at Annexure P-5). Respondents have filed short reply by way of affidavit dated 13.02.2008 of Capt. Sahil Sharma, in which, inter alia it is submitted that the petition for restoration of commuted portion of pension after 13 years is not tenable as the same can be restored only after 15 years of retirement as per Government of India letter dated 05.03.1987 (Annexure R-1), which has been issued in pursuance of Hon'ble Supreme Court judgment (Annexure P- 1) and in which no provision for 2 years weightage in respect of Army personnel has been made and the commuted portion of pension cannot be ordered to be restored after 13 years and subsequently also it has also been clarified vide clarification dated March 13, 1990 (Annexure R-2) that commuted portion is to be restored only after expiry of 15 years from the date of retirement and in the cases where the date of commutation is subsequent to the date of retirement thereby causing a time gap between two events, restoration takes place only on the expiry of 15 years from the date of commutation and not from the date of retirement. It is further submitted that no financial loss has been caused to the petitioner as there is no recovery over and above the amount of commuted pension from the petitioner and even no person has been charged excess amount than what were due. Counsel for the parties have been heard at length and record of the case has been perused. Petitioner is solely relying upon the judgment dated 09.12.1986 C.W.P. No. 3312 of 2007 -7- (Annexure P-1) to substantiate his claim. Operative part of the judgment as contained in paragraph 9 of the judgment alongwith para 8 and 10 are reproduced hereunder:- “ Para 8 – The decision of the respondent-Government contained in the above communication does not cover all classes of Defence having been of Armed the colour service prescribed for the rank (attaining the age of 37/38 years or more). In regard to those who are excluded it has been contended that the retirement is at to early an age and since a higher rate of pension as compared to civilian employees is admissible, the benefit contained in the Government order cannot be extended to that class. Previously the retiring age for the lower ranks such as sepoys, used to be after 15 years service but now it has been enhanced to 20 years service. A sepoy retiring after 20 years service is entitled to five years of weightage for his pension entitlement. Similarly a Naik retiring after 22 years of service and a Havildar after 24 years service are also given credit of five years. While a civilian employee ordinarily retires after a full term of service entitling him to full pension, it does not happen in the case of the lower ranks in the Defence Services and with the extra-advantage by the addition of years of credit, the benefit in terms of money works out in the range of about 75% to 6%. It has to be remembered that more than 50% of the Defence belong to the lowest rank and about 81% C.W.P. No. 3312 of 2007 -8- in all retire early. The weightage factor relied upon by the respondent to treat the Defence differently is not a tenable feature. Undoubtedly the Defence are a class by themselves. In their case, retirement takes effect in certain classes as justified by the exigencies of the service rather early. Weightage, if any, is intended to cover this so that an equation for other purposes could be established. There is really no merit in the stand of the respondent that the early age of retirement is fully compensated by the higher rate of pension. Para 9 - In the dealing with the matter of this nature, it is not appropriate to be guide by the example of Life insurance; equally unjust it would be adopt the interest basis. On the other hand, the conclusion should be evolved by relating it to the 'years of purchase' years. An addition of two years to the period necessary for the recovery on the basis of years of purchase justifies the adoption of the 15 years rule. That may be that this would give rise to an additional burden on the exchequer but it would be heavy and after all it would bring some relief to those who have served the cause of the Nation at great sacrifice. We are, therefore, of the view that no separate period need be fixed for the Armed forces and they should also be entitled to restoration of the commuted portion of the pension on the expiry of 15 years as is conceded in the case of civil pensioners. C.W.P. No. 3312 of 2007 -9- And for them too the effective date should be from 01.04.1985. Para 10 - We direct the respondent-Government to five effect to this within a period of three months from now. We place on record our appreciation of the consideration shown by the Union of India to ameliorate that hardship of the pensioners. There will be no order as to costs. “ Perusal of para 3 of the O.M. dated 15th March, 1987 (Annexure P-5/R-1) issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions (Department of Pension and P.W.), in compliance of the directions by the Hon'ble Supreme Court given in its judgment dated 09.12.1986 (Annexure P-1), prescribes that only such Central Government pensioners (including the pensioners from the Armed Forces), who have commuted a portion of their pension and on 01.04.1985 or thereafter have completed or will complete 15 years from their respective dates of retirement will have their commuted portion of pension restored. Office of the Chief Controller, Defence Accounts (Pensions), issued clarification dated March 13, 1990 in pursuance of judgment of the Hon'ble Supreme Court (ibid) and has clarified as under:- “Pensioner would be entitled to have the commuted portion of pension restored to them on the expiry of 15 years from the date of retirement only if the commutation was simultaneous with their retirement. In other cases where the date of commutation is subsequent to the date of retirement thereby causing time gap between these two C.W.P. No. 3312 of 2007 -10- events, restoration would take place only on the expiry of 15 years from the date of commutation and not from the date of retirement.” And further clarified that cases involving restoration of commutation of pension will be regulated in the light of above clarification. A bare reading of the notification dated 15.03.1986 (Annexure P-5/R-1) and the clarification dated March 13, 1990 make it amply clear that the same were issued in the purported compliance of the directions passed by the Hon'ble Supreme Court in Common Cause's case (supra) (Annexure P-1); language of above referred two letters/clarification is clear and unambiguous that the restoration of commuted portion of the pension is only after fifteen years from the respective date of retirement. The contention on behalf of the petitioner that the commuted portion of the pension of the petitioner/Armed Forces personnel is liable to be restored back after 13 years instead of 15 years by granting an additional weightage of two years, as directed by the Hon'ble Supreme Court in its judgement “Common Cause” As Registered Society (supra) is wholly misplaced and thus deserves to be rejected. It is not disputed that prior to the filing of the public interest litigation in Common Cause's case (supra) in the year 1983, the benefit of restoration of the commuted portion of the pension was not available to the pensioners of the Central Government. It appears that during the pendency of the aforesaid PIL, in view of various State Governments having taken the decision/changed the rules to restore full pension to their pensioners, who commuted a part of their pension after a lapse of fifteen years, the Central Government also agreed to restore commuted portion of the pension in C.W.P. No. 3312 of 2007 -11- regard to all civilian employees at the age of seventeen years or after fifteen years, whichever is later and agreed to make this effective from April 1986. This decision of the Government was conveyed to the Hon'ble Supreme Court in the pending Common Cause's case (supra) vide letter dated 20.03.1986. The contents of this letter are reproduced in para 3 of the judgment (Annexure P-1) in Common Cause's (supra), For ready reference relevant Clause VI is reproduced as under:- “ Clause VI - The formulation will apply to all civilian pensioner in whose case the age of retirement of superannuation is 58 years and of Armed Forces in whose case the retirement age varies in accordance with the colour service prescribed for the rank (attaining the age of 37/38 years or more). It is further noted that this distinction has been made in the case of Defence employees on the ground that retirement in their case is at an early age and merely with lapse of a period of fifteen years full pension could not be restored. It has also been pointed out that the Defence personnel receive in consideration of the exigencies of the service a higher rate of pension as compared to civilian employees. A conjoint reading of paras 8 and 9 of the judgment (reproduced hereabove) clearly reveals that since the decision of the Central Government in view of Clause VI (reproduced hereabove), did not cover all classes of Armed Forces as those retiring at young age and being compensated by higher rate of pension were excluded, the Hon'ble Court by referring to the weightage factor/purchase years held that all defence personnel had to be treated equally in the matter of entitlement of C.W.P. No. 3312 of 2007 -12- restoration of commuted portion of their pension after fifteen years. Thus, providing for grant of similar treatment to those pensioners of the Armed Forces were sought to be excluded. A bare reading of last five lines of para 9 further make it amply clear that no separate period was required to be fixed for the pensioners of the Armed Forces. All the pensioners of the Central Government (from Civil and Armed Forces) were held to be entitled to restoration at fifteen years. Accordingly, in compliance of the directions passed by the Hon'ble Supreme Court, the Central Government issued instructions/notification dated 15.03.1986 granting the aforesaid relief to the Civil and Armed Forces pensioners. In our considered opinion, the directions passed by the Hon'ble Supreme Court stand fully complied. Therefore, the contentions raised on behalf of the petitioner is rejected and it is held that the petitioner(s) are not entitled to restoration of their commuted value of pension after thirteen years by adding weightage of two years of purchase value. Prayer of the petitioner that direction may be issued to the respondents to modify/amend the notification dated 5th March, 1987 (Annexure P-5) is not legally sustainable as the petitioners have failed to substantiate that the same is contrary to the judgment of the Hon'ble Supreme Court. No direction can be issued to modify or amend the instructions dated March 5, 1987 as that is the function of the executive and this Court can not give direction to modify or amend a circular or notification particularly when the same is not contrary to any legal provision. Prayer of the petitioner to set aside para 344(b) of the Pension Regulations is also not tenable and para 344(b) is reproduced hereunder:- C.W.P. No. 3312 of 2007 -13- “344(b) The age of the officer shall be taken as being the age he will attain on the next birthday following the date on which the commutation shall become absolute, subject to such addition of years of age in the case of impaired life, as may be recommended by the medical board.” Perusal of para 344(b) of Pension Regulations of the Pension Regulations reveals that 'age of the official shall be taken as being the age he will attain on the next birthday following the date on which the commutation shall become absolute, subject to such addition of years of age in the case of impaired life, as may be recommended by the medical board' and the same does not seem to be illegal or unreasonable and has further stood the test of time. No basis has been laid down in the petition to show that the same is liable to be set aside as being arbitrary. Therefore, the prayer for setting aside the para 344(b) is also without any merit and hence, rejected. In view of the aforesaid discussion, we find no merit in this petition and the same is dismissed with no order as to costs. (JASWANT SINGH) JUDGE March 06, 2009. (JASBIR SINGH) vj JUDGE