Delhi High Court Govind Kumar Srivastava vs Union Of India & Ors. on 9 January, 2019 Equivalent citations: AIRONLINE 2019 DEL 78 $~7 * + W.P.(C) 10026/2016 GOVIND KUMAR SRIVASTAVA ..... Petitioner Through: Ms. Pallavi Aswasthi, Advocate. versus UNION OF INDIA & ORS. ..... Respondents Through: Ms. Suparna Srivastava and Ms. Sanjna Dua, Advocates for R1 to R5. JUSTICE S.MURALIDHAR JUSTICE SANJEEV NARULA ORDER % 09.01.2019 Dr. S. Muralidhar, J.: 1. As far as the preliminary objection of the Respondents to the maintainability of the present petition is concerned, the learned counsel for the Petitioner has placed before the Court an order dated 31st July 2018 passed by the Armed Forces Tribunal (AFT) Principal Bench which inter alia holds that the challenge to the circulars cannot be entertained by the AFT in terms of Section 14 of the Armed Forces Tribunal Act, 2017 (AFT Act) as it "does not give power of issuance of writ" to the AFT. 2. Counsel for the Respondents, on the other hand, relied upon the judgment in L. Chandra Kumar v. Union of India (1997) 3 SCC 261 and in particular W.P.(C) 10026/2016 Page 1 of 9 the observation in para 93, whereby, the Supreme Court recognized the power of the Central Administrative Tribunals (CATs) "to test the virus of subordinate registrations and rules." 3. As far as the present case is concerned, challenge is laid to a letter/circular No. 8 (386)/AFT (Pension/Services) dated 19th February 1987 issued by the Ministry of Defence (MoD) to the effect that it grants the benefit of pro rata pension only to the Commissioned Officers of the Defence Services and not to the Non Commissioned Officers (NCOs)/Persons Below Officer Rank (PBOR) of the Defence Services. The challenge is, therefore, not to any subordinate legislation as such. Going by the order dated 31 st July 2018 of the AFT such a challenge would not be entertained by it. 4. Consequently, the preliminary objection raised by the Respondents to the maintainability of the present petition is hereby rejected. 5. Turning to the merits, the background facts are that the Petitioner was enrolled with Indian Air Force (IAF) as Airman on 19th June 1998. In 2003, he was promoted to the rank of Corporal. Pursuant to an advertisement issued by Air India, the Petitioner applied for the post of Technical Officer on 10th January 2007. On 4th July 2008 a No Objection Certificate (NOC) was issued by the IAF permitting the Petitioner to take up employment with Air India which at the relevant time was a Public Sector Undertaking (PSU). 6. The Petitioner was discharged from the IAF by an order issued by the Air India Headquarters on 21st July 2008. As a result the Petitioner served in the IAF for ten years and one month. On 8th August 2008 he joined Air India as W.P.(C) 10026/2016 Page 2 of 9 a Technical Officer and has continued there ever since. 7. The Petitioner applied to the IAF on 29th April 2016 for grant of prorata pension. This was rejected by the Respondents by letter dated 6th June 2016. A further representation made by the Petitioner was rejected again by the Ministry of Defence (MOD) by a letter dated 26th July 2016. Thereafter the present petition was filed. 8. The case of the Petitioner is that the discrimination mated to PBORs/NCOs like the Petitioner in the matter of grant of prorata pension is violative of Article 14 of the Constitution as it is not based on any rational criteria or principle. In other words, while the Commissioned Officers of the IAF are granted such prorata pension that benefit is not available to the PBOR/ NCOs in terms of letter/circular dated 19th February 1987 issued by the MoD. That circular/letter states that prorata pension will be available only to Commissioned Officers of the Defence Services on their absorption/appointment in the Central Public Enterprises under the control of the MoD. The eligibility for receiving such prorata pension is the completion of ten years of qualifying services in the Defence Services. 9. The Petitioner points out in the case of certain other PBORs/NCOs, the benefit of prorata pension has been allowed. In particular, reference is made to the order passed by this Court on 12th September 1996 in Writ Petition No. 3471/1996 (ExCorporal Swarup Singh Kalan v. Union of India) where a direction was issued to the Respondents to consider the Petitioner‟s representation date