34 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C 1 CWP N0011227of2008 Dateofdecision 6 20090 InderjitSinghHira and others OaePetitioners Versus Union ofIndia and others 2espondents CORAM HONBLE MR JUSTICE JASBIR SINGH HONBLE MR JUSTICE JASWANT SINGH 1 Present Mr Vikram Bali Advocate for thepetitioners 0 0 Ms Ranjana Shahi Advocate for all therespondents C5 JASWANT SINGH J Z For orders see Civil Writ Petition N03312 of 2007 decided on 2 CC 032009 I 08 Il P Do JUDGE W rt 11 March 6 2009 JUDCE VJ Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 35 CW No 3312of2007 v1 4 v IN THE HIGH COURT OF PUNJAB AND 4 AT CHANDIGARH C Dateofdecisionlw 6 032009 1 CeWePeNoe 3312of2007 1 ShamLal Sharma6RetdO Petitioner r Versus 0 U Union of Indiand others Respondents 0 I Present Mr S1 SharmaAdvocate for the petitioner Z Ms AnjaliKukar Advocate for all the Lr 2e CWP NoA821 of2007 c8 JaggaSinghretiredo a ePetitioner 7 Versus Z Union oflndia andothers 2espondents Clm Present Mr SewaSinghAdvocate for thepetitioner Ms AnjaliKukar Advocate for all the 3e CeWePeNoe8640 of2007 1Z 1 1 Mohan Singhand others 3etitioners Versus Union ofIndia and others espondents Present Mr RA Sheoran Advocate for the petitioners Ms RanjanaShahi Advocate for all the Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 36 CW No 3312 of2007 2 e V 4e CWPe Noe10165of2007 GurmailSingleetiretandothers e etitionerSe Versus UnionofIndia andothers 2espondents Presentl Mr S1 SharmaAdvocate 1 for thepetitioners r Ms AnjaliKukar Advocate 0 for all the 0 X 0 5e CWeP No8939 of2007 I DefenceSukhmaniSocietyPanchkulaandothers etitioners Z Versus UnionofIndia andanother ZespondentSe r Presentl lVlr SewaSinghAdvocate I for thepetitioners c8 Ms RanjanaShahi Advocate for all the Va7 Z 6e CWPe N017863 of2007 11 Gobind Ram Raghwaand others etitioners Versus Union ofIndia andothers 1 Present Mr Vikram Bali Advocate for thepetitioners Ms AnjaliKukar Advocate for all the 7e CWP No14814 of2007 L Sharmaand others Petitioners Versus Union oflndia and others Respondents Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 37 e CW No3312of2007 3 ev V Presentl Mr Vikram Bali Advocate for the Ms AnjaliKukar Advocate for all the 8e CeWl3eNoo11227of2008 InderjitSinghHira andothers Retitioners 1 01 Versus 0 U Union ofIndiand others I 0 Presentl Mr Vikram Bali Advocate for thepetitioners Ms AnjaliKukar Advocate Z for all the 2 CORAM HONBLE MR JUSTICE JASBIR SINGH 1 HONBLE MR JUSTICE JASWANT SINGH I c8 JASWANT SINGH Je This shalldisposeof eightwnt petitionsbearing 17 Z numbers CWP No 3312of2007 CWP No4821 of2007 CWP No 8640of e 2007CWP N010165 of2007 CWP No 8939 of2007 CWP N017863 of 2007 CWP Nol4814 of2007 andCWP N011227 of2008 as theyinvolve identicalfactsand common oflaw 1 The short questioninvolved in these writ petitionslS as to whetherthe petitioners who are Exrmed forcespersonnel are entitledto restorationof their commuted value of pensionafter fifteen years of the retirementor thirteen years after addingweightage of two years purchase valueofcommuted pensionin terms ofthe directions givenin thejudgment rendered by the Honble SupremeCourt in Common Caus As Registered Societv 8c Others Ve Union of India 8c Others 1987111 Service Law Reporter206 6Annexure 1ll Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 38 CW No312of2007 4e 4 For the sakeof brevityand with the consent of the counselfor thepartiesthe factsfrom CWP N03312 of 2007havebeentakenanddealt with The petitionerjoinedthe Indian Army as Commissioned Ofllcer on 3 of May 1964 and retired as Lt Col on 30111991 Petitioner was 6111pensionfor the servicerendered in the Armyand r 0 hehasbeendrawing his pensionfrom NoAChief Controller of 0 Defence Accounts Defence Accounts Officers Allahabad I tD Petitioner was issued pensionpaymentorders or short PPOI which I containsdetailsand of pensionary benefitsof the petitionerHe Z was and sanctionedfull pensionbased upon basic pay plusrank r payheld on the date of retirement 111 accordance with the pension It is statedthat the pensionof the petitioner was determined on c8 the principleof one half of full basic pay beingdrawn by the petitioner duringservice plusother benefitsof service thereto and the Z petitioner was also granted commutationupto430Ioo111 pensionwhich Qw was to him for theperiodof 1235 years as he retiredat the ageof 52 years and in this way petitioner was grantedpensionc Rs5281 61zof BasicPaylwhich was workedout on thefull Basic PayofRs50551 1 Pension of the Armypersonnel is governedby provisionsof Pension Regulationfor the Army 1961 amended 111 19819for short of 19619and the commutation of pension for the Army personnel 1S further described in the provisionsof paras 341344 of of 1961 at Annexure P4 alongwiththe tablel It 1S further stated that the petitionerbeingCommissionedOfficer was also entitledto commute a lumpsum paymentofportionnot exceeding 430Io or Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 39 CvWPNo 3312of2007 5 offtcersl of his fullpensionas describedin table underpara341 344 andthe amount of value of commutationof pension was detemined 111 accordanceiviththe table which is further consideredfor the numberof called as purchase years in thetable Thatpriorto theyear1986therewere no provisions or rules for IX the restorationof full pensionafter the expiryof a particularperiodof 0 or years of commuted pensionfor the Central U Govemment includingthe Anned Forces and a provision 0 existedfor converting a portionof pension into a lumpsum amount and I receivingonlythebalanceamount for the rest of thelife It is not Z that in case ofthe CentralCvernment employees the totalamount r which couldlcanbe coted is uptoone4hirdwhile in thecase oftheDefenceServicesupto43010 1 case ofofficers andupto45Io ln case c8 of other ranks It is onlyafter the interventionof the Honble Supreme mm Court in CommonCauses case supralthat the Central Government Z the schemefor restorationof commutedportionof thepension t1m Therefore the petitioner is prayingfor directionsto the to implementthe judgment dated 0922006 renderedby the HonbleSupremeCourt in Common Cause As RegisteredSocietv suprain respectof the petitionerand to pay full commutedvalue of penslOnbygrantingof additionaIweightage 2 purchase years over and abovethe old existing value of purchase yearsso as to enablethe petitioner to gettheir full pensionsrestoredafter the completion of 13 years from the dateof his retirement from service Further prayer 1S for directingthe to modifyor amendNotification dated 511503987 6Annexure Pe59 in accordancewith the Honble Supreme Court judgmentAnnexure Pm Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 40 CMVPNo 3312of2007 W 9r 19and further set aside para No3440b9of aforesaidRegulations of 1961 extractedat Annexure P41 have filed short replyby way of affidavit dated 1302008 of Capt Sahil Sharma in which inter alia it is submittedthat Q1 thepetitionfor restorationof commutedportionof pensionafter 13 years1S 0 not tenable as the same can be restoredonlyafter 15 years of retirementas perGovernmentofIndia letterdated05031987 Rmllwhich has 0 beenissuedin pursuanceof Honble Supreme Court judgment6Annexure P Z 19and in which no provisionfor 2 yearsweightage in respectof Army Z has been madeand the commutedportionof pensioncannot be C4 orderedto be restored afler 13 yearsand also it has also been clarifiedvide clarification dated March 13 1990 6AnnexureRv29that c8 commutedportion1S to be restoredonlyafter expiryof 15 years from the 17 date of retirementand in the caseswhere the date of commutation is Z to thedate ofretirementtherebycausing a time gap betweentwo m eventsrestorationtakesplaceonlyon the expiryof 15 yearsfrom the date ofcommutationand not from the date ofretirement It is furthersubmittedthat no flnancial loss hasbeencausedto the petitioneras there is no recovery over and above the amount of commutedpensionfrom the petitioner and even no person has been charged excessamount than what were due Counselfor the partieshave beenheard at lengthand record of thecase has been perused Petitioneris solelyrelyingupon thejudgment dated 092986 Pall to substantiatehis claim Operative part of thejudgment as Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 41 CWP No 3312of2007 a vV 0 containedln 9 alongwithpara 8 and 10 are hereunderl 44 Para8 The decisionof the in the abovecommunication doesnot cover all 1r classes of Defence havingbeen of Armed the colour 0 service for therank6attaining the ageof37138 U yearsor In regard to thosewho are excludedit I 0 hasbeen contendedthat the retirement is at to earlyan I ageand since a higherrate of pension as to Z civilian is admissible thebenefit containedin 2 r theGovemmentorder cannot be extendedto that ClaSS the retiringage for the lower ranks such as c8 used to be after 15 yearsservice but now it has 7 beenenhancedto 20yearsservice A sepoyretiringafter Z 20years serviceis entitledto five yearsof weightage for C hispensionentitlement Similarlya Naik retiringafter 22yearsof serviceand a Havildar after 24 yearsservice are alsogivencredit of five years While a civilian ordinarilyretiresafter a full term of service him to full pensionit does not happenin the e caseof the lower ranks in the DefenceServicesand with the bythe addition of years of credit the benefttin terms ofmoneyworks out in the range ofabout 75Ioto 6Io It has to be rememberedthat more than 50Io ofthe Defencebelongto the lowest rank and about 81Io Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 42 CW No 3312of2007 8 e ee in all retireearlyThe factor relied upon by the to treat the DefencedifferentlylS not a tenablefeature the Defence are a classby themselvesIn their case retirementtakes effect in certain classes as justifledby the exigenciesof the 1m servicerather early if any is intendedto C4 0 coverthis so that an equationfor otherpurposescould be U established There is reallyno merit in the standof the 0 that the early age of retirement is fully bythehigherrate ofpension Z Para 9 In the dealingwith the matterof this nature it 2 C4 1S not appropriate to be guideby the example of Life I lnsurance equallyunjustit would be adoptthe interest c8 basis On the other hand the conclusion should be evolvedbyrelatingit to the years ofpurchaseyears An m7 Z addition of two years to the periodnecessary for the on the basisof yearsof purchasejustifiesthe adoption of the 15 years rule That may be that this would giverise to an additionalburden on theexchequer but it would be heavyand afterall it would bringsome reliefto those who have served the cause ofthe Nation at greatsacrifice We are therefore of the view that no separateperiodneed be fixed for the Armed forces and theyshould also be entitled to restoration of the commuted portionof the pensionon the expiryof 15 yearsas is conceded in the case of civil pensioners Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 43 Il oJ CW No 3312of2007 e9 e And for them too the effective date should be from 01041985 Para 10 We direct the to flve effect to this within a periodof three monthsfrom now We placeon record our appreciationof the W considerationshown bythe Union of India to ameliorate Q 0 thathardship ofthe pensionersTherewill be no orderas 0 to costs 46 0 Perusal of para 3 of the 0M dated 15 March 1987 I P51R9 issued by the Government of India Ministryof Z Personnel Public Grievances c Pensions of Pension and C4 PW in compliance of the directions bythe Honble Supreme Coun given I in itsjudgment dated09121986 Annexure P19 prescribes thatonlysuch c8 Central Government pensionerslcludingthe pensioners from the Arined 03 mw Forceslwho have commuteda portionof their pensionand on 01041985 Z or thereafterhave completed or will complete 15 yearsfrom their respective 11 datesofretirementwill havetheir commutedportionofpension restored Office of the Chief Controller Defence Accounts 6PensionsJ issuedclariflcation datedMarch 13 1990in pursuanceofjudgmentof the Honble Supreme Court 6ibicandhasclariOedas underl Pensioner would be entitled to have the commuted portionof pensionrestored to them on the expiryof 15 yearsfrom the dateofretirementonlyifthe commutation was simultaneous with their retirement In other cases wherethe date of coutation is subsequent to the date ofretirementtherebycausingtime gap between thesetwo Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 44 CWPNo3312of2007 a10 1 r eventsrestorationwould takeplaceonlyon theexpiryof 15yearsfrom the date of commutationand not from the dateofretirement And Slrther clarified that cases involvingrestoration of ofpension will be in thelightofabove clarification 1 A bare reading of the notificationdated15031986 6Annexure 0 0 Pe51R19 and the claritlcation datedMarch 13 1990 makeit amplyclear U that the same were issuedin the of the directions Z tD passed by the Honble Supreme Court in Common Causes case 6supra AnnexureP language of abovereferredtwo letterslclarificationis clear Z and that therestorationofcommutedportionof the pensionis 111 onlyafterfifteenyears from therespective dateofretirement The contentionon behalf of the petitionerthat the commuted c8 portion of thepensionof the Forces personnel is liable to r0 be restoredback after 13 years ihsteadof 15 years bygranting an additional V7 Z weightage of two years as directedby the Honble Supreme Court lll ltS Ll Common Cause As RegisteredSocietv lpral is wholly andthusdeservesto berejected It is not disputedthat priorto the fllingof the publicinterest litigation in Common Causes case lpralin theyear 1983 the benefit of restorationof the commuted portionof the pensionwas not availableto the pensioners of the Central Government It appearsthat duringthe pendency ofthe aforesaid PIL in view ofvarious StateGovernmentshavingtaken the the rules to restore full pensionto their pensionerswho commuteda part of their pensionaRer a lapseof fifleen years the Central Govemment also agreedto restore commuted portionof the pensionlIl Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 45 CW N 3312of2007 41 pap vr to all civilian employees at theageofseventeenyearsor afterfifte6n years whicheveris laterandagreed to makethis effectivefrom April 1986 This decision of the Governmentwas conveyedto the Honble Supreme Court in the pendingCommon Causes case supra9vide letter dated 2003 1986 The contents of this letter are reproduced in para 30f the a t Annexure P in Common Causes ipral For readyreference 0 relevantClauseVI is as under U 66 Clause VI The formulation will applyto all 0 civilian pensioner in whose case the ageof retirementof 1S 58 years and of Armed Forces in Z whose case the retirement age variesin accordancewith r the colour service prescribed for the rank attainingthe ageof37138years or morel c8 It is further notedthat this distinction has been made in the m7 caseof Defenceemployees on thegroundthat retirementin their case is at Z an earlyageand merelywith lapseof a periodof Ofteenyears8111pension Ll could not be restored It has also been pointedout that the Defence personnel receive in considerationof theexigencies of the serVlCe a higher 1 rateofpension as compared to civilian employees A conjointreadingof paras 8 and 9 of the judgment reproducedhereabovel clearlyrevealsthat since the decision of the Central Govemmentin view of Clause VI hereabovel did not cover all classes of Anned Forces as those retiringat young age and being by higherrate ofpensionwere excluded the Honble Court by referringto the weightage years held that all defence personnelhad to be treated equallyin the matter of entitlement of Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 46 CWR No 3312of2007 12 1 1 r restoration of commutedportionof their pensionafter flfteenyears Thus for grantof similar treatment to those of the Armed Forceswere sought to be excIuded A barereadingof last flve linesof para 9 furthermake it amplyclear that no separateperiodwas required to be flxed for the pensioners of the Armed Forces All the pensioners of the m CentralGovernment rom Civil andArmedForceso were held to be entitled 0 to restorationat flfteen years Accordinglyin compliance of the directions U passed by the Honble SupremeCourt the Central Government issued tD dated 15031986 grantingthe aforesaidreliefto X theCivil and Armed Forces pensionersIn our consideredopinion the Z directions passed by the Honble SupremeCourt stand 61llycomplied r Thereforethecontentionsraisedon behalf of thepetitioner is rejectedand it 1S held that the are not entitled to restoration of their c8 commuted valueof pensionafterthirteen years byadding of two years value m7 Z Prayerof the petitionerthat direction may be issued to the 0e to the notiflcation dated 5 March 1987 1 6Annexure Pw511Snot legallysustainableas the petitioners have failed to substantiatethat the same is contraryto the judgmentof the HonbIe Court No direction can be issued to modi or amend the instructions dated March 5 1987 as thatis the functionofthe executive and this Court can not give direction to modifyor amend a circular or notification particularlywhen the same 1S not contrary to any legal prOVlSlOIl Prayerof the petitioner to set asidepara 34 of the Pension Regulations is also not tenableandpara 3446b1 is reproduced hereunder Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 47 CW No 3312of2007 13 r 3446bl The ageofthe offlcer shall be takenas being the age he will attain on the next birthdayfollowing the date on which the commutationshall becomeabsolute subject to such addition of years of age in the case of impaired life as may be recommendedby the medical m board C4 0 Perusal of para 3446b9 of Pension Regulations of the Pension U reveals that age of the official shall be takenas beingthe age r 0 he will attain on the next birthdayfollowingthe date on which the commutationshall becomeabsolutesubjectto such additionofyearsofage Z 111the case of impairedlife as may be recommended by the medical board 2 r and the same does not seem to be illegalor unreasonableand has further I stoodthe test oftime No basishasbeenlaid down in thepetitiontoIshow a that the same is liable to be set aside as beingarbitraryTherefore the prayerfor settingasidethe para344001 is alsowithout any merit andhence 7 Z rejected tl In view of the aforesaiddiscussion we flnd no merit in this petition andthesame is dismissedwith no orderas to costs JUDGE A March 2009 VJ 19 0OoQ tr te S 1 Suresh Kumar 2014.01.30 11: 27 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document