1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3349 OF 2004 WRIT PETITION NO. 3349 OF 2004 WRIT PETITION NO. 3349 OF 2004 Sq.Ldr. A.S. Bakshi (Retd.), 7A, Summer Palace, 61 Nargis Dutt Road, Mumbai 400 050. ... Petitioner Versus 1. Chief Controller, Defence Accounts (Pensions), Dhrupdi Ghat, Allahabad 211 014 (UP). 2. Director (Pensions), Ministry of Defence, Sena Bhavan, Balaji Marg, New Delhi 110 001. 3. Controller General of Defence Accounts, Ministry of Defence, West Block, R.K. Puram, New Delhi 110 066. 4. Union of India, through its office at Advocates for the Union of India, Ayakar Bhavan, Mumbai 400 020. ... Respondents Mr. C.U. Singh, Sr. Counsel with Mr. Mahesh Londhe i/by Sanjay Udeshi & Co. for Petitioner. Mr. S.S. Pakale with Mr. Kiran Kanpile for Respondents. CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED: NOVEMBER 12, 2008 DATED: NOVEMBER 12, 2008 DATED: NOVEMBER 12, 2008 ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.): . Rule. Heard forthwith. . The Petitioner had applied for an interim relief 2 at the stage of admission. While admitting the matter, the learned Division Bench of this Court by its order dated 19.1.2000 by way of an interim order, directed the respondents to restore the monthly pension of the petitioner which was Rs.5,528/- with effect from 1st January, 2005. Statement on behalf of the Petitioner was recorded that in the event that note (1) of paragraph 5(b) of the Central Government’s letter dated 30th October, 2007 is held to be applicable to the petitioner, Petitioner would refund those amounts to the Union of India. The respondents aggrieved preferred special Leave Petition before the Supreme Court. The Appeal being C.A. No. 3780 of 2006 was heard and the interim order of this court was set aside with a further direction to dispose of the petition. . At the hearing of the appeal on behalf of the Respondents herein, attention of the Hon’ble Supreme Court was drawn to the judgment of Union of India Vs. A.S. Ganguli & Ors. (2007) 6 SCC 196 to contend that the grievance raised in the petition would be covered by the said judgment. The Hon’ble Supreme Court did not answer the said contention and left the issue open for consideration before this court. 2. This matter was placed before this Bench for the 3 first time for hearing on 10.11.2008. With the consent of the parties, the matter was heard on 11.11.2008 and 12.11.2008, when the judgment was pronounced. 3. A few relevant facts may now be set out. The Petitioner joined the Indian Air force and was commissioned as an Officer in 1946 and served the Air Force with distinction for over 20 years. Petitioner was an extremely distinguished sportsman, having won an Olympic Gold Medal for hockey in 1956 and Asian Games Gold Medal in Athletics in 1951. In 1965, Air India requested the Indian Air Force to release some of its pilots in the Public interest to be inducted in Air India. The Petitioner along with 10 other officers of the General Duties (Pilots) Branch was recommended by Air Headquarters and selected by Air India for an initial deputation of one year effective from 1st December, 1965 vide letter dated 21.11.1966. The Petitioner along with other officers subsequently were absorbed in Air India. They were permitted to retire prematurely as on 1.12.1966 from the Air Force. . Petitioners contend that they are entitled to full benefits of their past service but there was no carry forward of the seniority or other benefit in Air India as their absorption into Air India did not 4 come under the purview of the orders governing absorption of Government officers or Permanent Civil Servants in Public undertakings. Petitioner having served for 20 years and 7 months in the Indian Air Force was accordingly entitled to and given proportionate pension against full qualifying service of 22 years. The in built weightage element of service pension was confirmed vide Ministry of Defence letter No. 32(1)/77/D (Pensions/Services) dated 10th April, 1978 to those officers who had 20 years or more of qualifying service and retired before 10th April, 1978. 4. The relevant para of policy regarding deputation officers of defence service and their absorption dated 10th April, 1978 reads as under : "This will have effect from 8th November, 1968, subject to the condition that no deduction on account of weightage element would be made from the standard rates of pension of these Officers who have been permanently absorbed after 20 years qualifying service, in the Civil Public Sector Undertakings prior to the date of issue of this letter." 5 5. The Government of India, thereafter issued notification dated 30.10.1987. The said notification read "Implementation of the Government decisions on the recommendations of the Fourth Central Pay Commission regarding pensionary benefits for the Armed Forces officers and personnel below officer rank retiring or dying in harness on or after 1.1.1986". . Para 2.1 of the same reads asunder : "2.1. The provisions of this letter shall apply to the Armed Forces personnel who were in service as on 1.1.1986 or joined/join service thereafter. 2.2. Where pension has been sanctioned provisionally in cases occurring on or after 1.1.1986, the same should be revised in terms of these orders. In cases where pension has been finally sanctioned under the pre-revised orders and if it happens to be more beneficial than the pension becoming due under these orders, the pension already sanctioned shall not be revised to the disadvantage of the pensioners." 6 . It will also be relevant to refer to Para 5(b) and note (1) which reads as under : "Weightage for the purpose of calculation of pension of Commissioned Officers will be as given below: (1) Service Officers (other than MNS). Rank (ARMY) RANK (NAVY) RANK (AIR Weightage FORCE) in years ----------- ----------- ------------ --------- Subaltern Sub Lt. Plt.Offr/Flg 9 Offr. Captain Lt. Flt. Lt. 9 Major Lt.Cdr. Sqn.Ldr. 8 Lt.Col (TS) Cdr.(TS) Wg.Cdr.(TS) 5 Lt. Col.(S) Captain Gp. Capt. 7 (With less than 3 years 10 months service). Brig. Capt.(With Air Cmde 5 7 3 years 10 months service & more) Maj.Gen. Rear Admiral AVM 3 Lt.Gen. Vice Admiral Air Marshal 3 Lt.Gen (Army) Vice Air Marshal 3 Commander/V Admiral (AOC-In- COAS) (FOC-in C/VCAS) C/VCNS) COAS CNS CAS 3 (II) MNS OFFICERS Captain 7 Major 6 Lt. Col. 5 Col. 5 Brig. 5 Man. Gen. 3 -------------------------------------------- Notes : (1) There will be no weightage for officers and personnel below officer rank who retire 8 prematurely for permanent absorption in public sector undertakings and autonomous bodies." . Based on this letter of 30.10.1987 the Petitioner was informed by communication dated 9.10.2001 as under : "While revising your pension under VTH CPC in terms of Govt. letter dtd. 27.5.98 and 7.6.99, rank weightage was inadvertently added to your actual Q.S. which is not admissible to you, as per Para 5(b) Note (1) to Govt. letter No. 1(5)/87/D(Pen/Serv) dt. 30.10.87. No rank weightage is admissible to those officers who were retired prematurely for permanent absorption in PSU or Autonomous bodies. Your pension is being further revised after taking into account your actual Q.S. without weighting Necessary amendment is being issued." 6. By a separate communication dated 9.10.2001, the Petitioner’s pension was reduced from Rs.5528/- to Rs.4152/- with a further direction that the over payment may be recovered 1/3rd of retiring pension 9 plus full relief till liquidation. The Petitioner thereafter made various representations and disputed the action of the Respondents. The Petitioner also drew attention of the Respondent to the judgment of this court in the case of Group Captain A.S.Ganguli Vs. Union of India in Writ Petition No. 2973 of 1984 decided on 14.3.2001 reported in 2001(3) ALL M.R. 535. As noted earlier, interim relief was granted to the Petitioner by this Hon’ble Court. 7. Reply has been filed on behalf of the Respondents contending that the Petitioner is not entitled to any relief. It is their case that the petitioner joined as an Officer in the Indian Armed Forces on 29.4.1946 and took pre-premature retirement on 01.12.1966 and sought permanent absorption in Air India a PSU. Petitioner has superannuated from the Air India, a PSU and thus is entitled to receive pension from the Air India. Petitioner being an officer of Air India, is entitled to receive/claim pension from his employer (i.e. Air India) and is not entitled to get any weightage for the services rendered by him with the Indian Air Force. Next reliance is placed on the communication dated 30.10.1987. We may point out that it is not necessary for us to consider various other contentions as sought to be raised in the affidavit filed by the respondents. The only ground 10 on which weightage was denied in the rank of Squarden Leader, was based on the letter dated 30.10.1987. 8. In the case of Group Captain A.S. Ganguli and Ors. (supra) the pension of the Petitioners was reduced in terms of the decision contained in the letter dated 30.10.1987. The Petitioners there had sought premature retirement for joining a public sector undertaking, Vayudoot. By order dated 6.5.1987, the respondents there approved their application for premature retirement from I.A.F. in public interest from 18.5.1987. Before this Court it was contended that Para 1 of the note appended to communication dated 30.10.1987 which deprives the Petitioners of weightage of 7 years for pension and weightage of 5 years in the matter of retirement gratuity as per communication dated 30.10.1987 was discriminatory. A learned Bench of this court on considering the various contentions was pleased to hold that Note (1) appended to Para 5 of communication dated 30.10.1987 deserves to be declared inoperative being violative of Article 14 of the Constitution of India. In the Leave Petition filed, by judgment in Union of India Vs. A.S. Ganguli and Ors. the Supreme Court was pleased to reverse the said judgment. The learned Supreme Court was pleased to hold that as the case relates 11 to denial of service weightage of the officers a class by themselves and as long as valid and reasonable there is no discrimination the respondents can have no grievance. 9. At the hearing of this petition, on behalf of the Petitioner, their learned counsel submits that the letter dated 30.10.1987 only applies to Officers retiring or dying in harness on or after 1.1.1986. A correct consideration of the terms of the communication dated 30th October, 1987, it is contended would support the petitioner’s contention. The Judgment in A.S. Ganguli (supra) it is submitted would not apply and it is clearly distinguishable as the petitioners there had sought retirement and were granted premature retirement from 18.5.1987 i.e. on or after 1.1.1986. . On the other hand, on behalf of the Respondents, their learned counsel contends that the action was in conformity with the communication of 30.10.1987 and this court ought not to interfere in the exercise of its extra ordinary jurisdiction. 10. On hearing counsel, we are clearly of the opinion that on a proper reading of the various paragraphs of the communication of 30.10.1987, will make it clear that it applies only to Armed Force 12 Personnel who were in service as on 1.1.1986 or joined services thereafter. The said letter itself speaks about those retiring or dying in harness after 1.1.1986. The Petitioner herein was allowed to retire prematurely from service with effect from 1.12.1966. . Para 2.1 as stated earlier, makes it clear that it applies to those who were in service on 1.1.1986 and retired subsequently. In other words, it will not be applicable to those who had retired previous to 1.1.1986. Apart from that Para 2.2 of the said communication further supports the view that we are taking. Para 2.2 sets out that in cases where pension had been finally sanctioned under the pre-revised orders and if it happens to be more beneficial than the pension become due under the present order, the pension already sanctioned shall not be revised to the disadvantage of the Petitioners. On the contrary if pension was only provisionally sanctioned, then it will be finalised under these orders. It is thus clear that in all cases where pension had been finally sanctioned and if it was more beneficial than the pension to be fixed in terms of communication of 30.10.1987, then such pensioner would be entitled to draw pension under the pre-revised orders if they are more 13 beneficial. Admittedly, the pension in favour of the Petitioner before its revision under the communication of 30.10.1987 was more beneficial. 11. The law as settled by a catena of judgments of the Supreme Court and now judicially recognised is that the Respondent authorities are bound to consider the case of an applicant in terms of the communication or order as it stands, in the absence of the challenge to the communication on the ground of arbitrariness or being ultra vires. Secondly a person who was drawing a pension in terms of the pension rules as it then stood, would not by a subsequent communication even if the first order based on which the pension was finalized for some reason was held to be illegal, have his pension reduced without giving him a hearing. Reduction of pension amounts to affecting his civil rights. The Respondents were therefore, bound to give notice before reducing his pension. The right to be heard is a right against arbitrariness and part of the principle of fair play. Article 14 would then be attracted. The Respondents action therefore, both on the ground of failure to consider the Petitioners case in terms of at least Para 2.2 of the communication dated 30.10.1987 would be violative of his legitimate expectations. See Jitendra Kumar Vs. State of Haryana (208) 2 S.C.C. 161. Also denial 14 of an opportunity before reducing the pension would be violative of principles of non-arbitrariness enshrined in Article 14. The order on both these counts must be set aside. 12. The only question thereafter is whether the judgment of the Supreme Court in A.S. Ganguli (supra) would apply to the facts of this case. In A.S.Ganguli and Others (supra), the Petitioners before this court and in that case had retired on or after 1.1.1986. The communication specifically covered the said cases. Before this court note (1) of the letter was declared as inoperative being in violation of Article 14 of the Constitution of India and it is in these circumstances that the Group Captain Mr. A.S. Ganguli was held to be eligible to draw pension with weightage. The Supreme Court held that those retirees constitute a class by itself in view of the special benefits extended to them and the exclusion is for valid reasons and reasonable and there is no discrimination. The ratio has to be discovered firstly from the facts in issue. The communication did not cover those who had prematurely retired before 1.1.1986.The ratio of the judgment would therefore, be confined to those who have prematurely retired on or after 1.1.1986. That judgment would not be applicable to the case of 15 the Petitioner who had prematurely retired with effect from 1.12.1966 and was allowed to draw pension with service weightage in terms of rules then existing. . In the light of the above, this petition will have to be allowed and consequently rule made absolute in terms of Prayer Clause (b). . The Petitioner has also claimed interest at the rate of 12% p.a. The Petitioner is also drawing pension from the P.S.U. apart from service pension. The ends of justice will be met if we decline the relief of interest with a direction to the respondents to forthwith refix the pension and to refund all deductions within twelve weeks from today. If the amount deducted is not refixed and released, then the amount deducted and or delayed payment will carry interest at the rate of 12% p.a. from the date of first deduction till it is finally paid. . Rule made absolute accordingly. There shall be no order as to costs. 16 (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.)