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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24th DAY OF MARCH, 2015

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

WRIT PETITION NO.24848/2002

C/W

WRIT PETITION NO. 32816/2002 (S-R)

WRIT PETITION NO.24848/2002

BETWEEN: 1. ARMED FORCES MEDICAL DENTAL AND VETERINARY OFFICERS PENSIONERS’ ASSOCIATION REP. BY ITS GENERAL SECRETARY HAVING ITS OFFICE AT NO.458, 9TH MAIN, 2ND CROSS, H.A.L II STAGE INDIRANAGAR BENGALURU-560 008. 2. MRS. CHOWDRANI MAHADEVAN W/O LATE MAJ. GEN.

BHASKAR MAHADEVAN MAJOR R/AT NO.187, DEFENCE COLONY INDIRANANGAR BENGALURU-560 038. 3. WG. CDR. (RETD.) V. RAMANAN S/O LATE SRI RAO SAHIB T.D.

NARAYANAN IYAR AGED ABOUT 78 YEARS R/AT NO.37/16 ULSOOR ROAD BENGALURU-560 042.

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4. LT. COL. (RETD.) S.N. KARUR S/O SRI NEELARADDI AGED ABOUT 60 YEARS R/AT VILLAGE AND POST: BINKADKATTY DISTRICT GADAG PIN 582 101. 5. GP. CAPT. (RETD). A.B. RAO S/O LATE SRI. N. SADASHIVAYYA AGED ABOUT 62 YEARS R/AT NO.311, 7TH ‘A’ MAIN H.R.B.R. 1ST BLOCK KALYAN NAGAR BENGALURU-560 043. 6. COL. (RETD.) P.R.D. MATH S/O SRI. RUDRAYYA AGED ABOUT 55 YEARS R/AT “SHUBHAM” NO.141-A, VIJAYANAGAR HULBI-580 032. 7. LT. COL. (RETD.) R NAGENDRA S/O LATE DR. S.A. RAJA RAO AGED ABOUT 66 YEARS R/AT NO.649/77, 6TH CROSS, (BETWEEN 8TH MAIN

& 9TH MAIN), R.P.C. LAYOUT VIJAYANAGAR 2ND STAGE BENGALURU-560 040.

... PETITIONERS (BY SRI B.D. KUTTAPPA, ADVOCATE) AND:

1. THE UNION OF INDIA

REP. BY THE SECRETARY TO GOVERNMENT MINISTRY OF DEFENCE NEW DELHI.

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2. THE CHIEF OF THE ARMY STAFF NEW DELHI. 3. THE CHIEF OF THE NAVAL STAFF NEW DELHI. 4. THE CHIEF OF THE AIR STAFF NEW DELHI. 5. THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS NEW DELHI. 6. THE CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) ALLAHABAD. 7. THE BRANCH MANAGER CANARA BANK INDIRANAGAR BRANCH BENGALURU-560 038. 8. THE D.P.D.O., DICKENSON ROAD BENGALURU-560 042. 9. THE BRANCH MANAGER STATE BANK OF INDIA GADAG MAIN BRANCH A.P.M.C. YARD GADAG. 10. THE BRANCH MANAGER CANARA BANK KALYAN NAGAR BRANCH BENGALURU-560 043. 11. THE BRANCH MANAGER STATE BANK OF INDIA RAJ NAGAR BRANCH

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HUBLI-580 032. 12. THE BRANCH MANAGER STATE BANK OF INDIA S.P.P.B BRANCH ST. MARK’S ROAD BENGALURU-560 001. ....RESPONDENTS

(BY SRI. KRISHNA S. DIXIT, ASG FOR R-1 TO R-6 AND R-8; R-9 TO R-12 ARE SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE LETTER BEARING NO.1 (1)/99/D (PENSION SERVICE) DATED 11.9.2001 ISSUED BY THE MINISTRY OF DEFENCE, GOVERNMENT OF INDIA VIDE ANN-F AS THE SAID DECISION IS ARBITRARY, CAPRICIOUS, IRRATIONAL AND UNJUST APART FROM BEING VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE PETITIONERS AND ARTICLES 14, 16, 21, 41, 42 AND 43 OF THE CONSTITUTION OF INDIA. WRIT PETITION NO.32816/2002

BETWEEN: 1. ARMED FORCES MEDICAL DENTAL AND VETERINARY OFFICERS PENSIONERS’ ASSOCIATION REP. BY ITS GENERAL SECRETARY HAVING ITS OFFICE AT NO.458, 9TH MAIN, 2ND CROSS, H.A.L II STAGE INDIRANAGAR BENGALURU-560 008. 2. MAJ. LOPES ALPHONSE

MARSHALL (RETD.) S/O LATE APOLINAIR LOPES

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AGED ABOUT 93 YEARS R/AT NO. 67, RICHMOND ROAD, BENGALURU-560 025. 3. LT. COL. STEPHEN THOMAS (RETD.) S/O LATE C.O. THOMAS AGED ABOUT 66 YEARS R/AT NO.1677 3RD ‘A’ CORSS, 5TH MAIN HRBR LAYOUT, 2ND BLOCK BENGALURU-560 043. ..PETITIONERS (BY SRI B.D. KUTTAPPA, ADVOCATE) AND:

1. THE UNION OF INDIA

REP. BY THE SECRETARY TO GOVERNMENT MINISTRY OF DEFENCE NEW DELHI.

2. THE CHIEF OF THE ARMY STAFF NEW DELHI. 3. THE CHIEF OF THE AIR STAFF NEW DELHI. 4. THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS NEW DELHI. 5. THE CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) ALLAHABAD (U.P). 6. THE D.P.D.O., DICKENSON ROAD BENGALURU-560 042.

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7. THE BRANCH MANAGER STATE BANK OF INDIA S.P.P.B BRANCH ST. MARK’S ROAD BENGALURU-560 001. 8. THE BRANCH MANAGER STATE BANK OF TRAVANCORE COX TOWN BENGALURU-560 005. ....RESPONDENTS

(BY SRI. KRISHNA S. DIXIT, ASG FOR R-1 TO R-6 SRI. A.VENKATACHALAIAH, ADVOCATE FOR R-7; SRI. SUNDAR SWAMY RAMDAS AND SRI. ANAND, ADVOCATES FOR R-7 AND R-8)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE LETTER DATED 11.9.2001 ISSUED BY THE MINISTRY OF DEFENCE, GOVERNMENT OF INDIA VIDE ANN-F AS THE SAID DECISION IS ARBITRARY, CAPRICIOUS, IRRATIONAL AND UNJUST APART FROM BEING VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE PETITIONERS AND ARTICLES 14, 16, 21, 41, 42 AND 43 OF THE CONSTITUTION OF INDIA.

THESE PETITIONS ARE COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

In these writ petitions, petitioners are seeking for

quashing of the letter bearing No. 1(1)/99/D dated

11.09.2001 (Annexure-F) issued by first respondent

whereunder it is clarified that “Non Practising Allowance

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– (NPA)” is not to be taken into consideration after re-

fixation of pay on notional basis on 01.01.1986.

Petitioners are also seeking for a mandamus to

respondents to grant the petitioners all consequential

benefits upon quashing of communication dated

11.09.2001 (Annexure-F).

2. Perusal of the grounds urged in the writ

petitions would indicate that petitioners are working

either as practicing Doctors or Dentists or Veterinary

Surgeons in the three wings of the Armed Forces.

Petitioners were being paid allowance called as “Non

Practising Allowance” which was on a slab system on

the basis of recommendations made by 4th Pay

Commission. Their grievance in these writ petitions is

that Non Practising Allowance has been excluded in the

element of ‘pay’ and there is reduction in their pension,

as such, they have sought for inclusion of Non

Practising Allowance to the component or element of

‘pay’ and for recomputation of pension.

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3. Proceedings of these writ petitions had been

stayed by Hon’ble Apex Court in view of several similar

writ petitions were pending before various High Courts

and also the fact that issue was seized by Hon’ble Apex

Court itself. Subsequently, by order dated 22.04.2014

transfer petitions came to be disposed of as having

become infructuous by Hon’ble Apex Court. It has been

observed by the Hon’ble Apex Court that contentions

raised by respective learned Advocates which was to the

effect that issue involved in the writ petitions have

already been resolved. For the purpose of convenience,

order passed by Hon’ble Apex Court is extracted herein

below:

“2. Shri Qadri, learned counsel appearing for the petitioners would submit that the prayers sought for in the Writ Petitions do not survive for consideration by the respective High Courts for the reason that the aforesaid issue has been decided by this Court in the case of Col.B.J.Akkara (Retd.) v. Government of India & Ors.,

(2006)11 SCC 709. However, Shri Dipak Kumar Jena, learned counsel appearing for the respondent(s) would contend that the issue raised and considered is squarely covered by the decision in the case of

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K.C.Bajaj & Ors. vs. Union of India & Ors., Civil Appeal Nos.10640-46 of 2013 etc. decided on November 27, 2013 and submit that the Writ Petitions filed by the petitioners before the various High Courts require to be decided in light of the principles enunciated by this Court in the case of K.C.Bajaj & Ors. (supra).

3. We do not intend to enter into the merits of contentions canvassed by the learned counsel appearing for the parties to the lis. In our considered opinion, instead

of accepting the prayers made by the petitioner(s) for transferring the several cases pending before various High Courts, it would be sufficient if we request the respective High Court (s) to consider whether the prayers made in the Writ Petitions be decided in the light of the principles laid down by this Court in the case of Col.B.J.Akkara’s case (supra) or

in accordance with the principles laid down by this Court in the case of K.C.Bajaj (supra).

4. Accordingly, we remand the matter back to the respective High Court (s) with a request to the High Court (s) to consider that whether the prayers made in the Writ Petitions be decided in the light of the principles laid down by this Court in the case of Col.B.J.Akkara’s case (supra) or in

accordance with the principles laid down by this Court in the case of K.C.Bajaj (supra)

and thereafter, decide the prayers sought for by the petitioners therein. 5. All the contentions of both the parties are left open.”

(emphasis supplied)

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4. In this background, the only issue which

requires to be examined by this Court is as to whether

dicta laid down by Hon’ble Apex Court in

COL.B.J.AKKARA (RETD) vs GOVERNMENT OF

INDIA AND OTHERS reported in (2006)11 SCC 709

would be applicable or the dicta laid down by Hon’ble

Apex Court in K.C.BAJAJ & OTHERS vs UNION OF

INDIA & OTHERS reported in (2014)3 SCC 777 would

be applicable to the facts on hand or not?

5. The issues involved in K.C.BAJAJ’s case

before Hon’ble Apex Court were as under:

(i) Whether the final result of a case filed by a public servant with regard to his service conditions is dependent on the arbitrary choice of the State and/or its agencies/instrumentalities to prosecute the matter before the higher courts; and

(ii) whether non-practising

allowance (NPA) payable to the doctors employed in Central Health Services, the Railways and other departments of the Central Government, who retired from service prior to 1-1-1996 is to be added to their basic pay for the calculation of pension payable to them.

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Said issues came to be examined and held in favour of

appellants. It has been observed by Hon’ble Apex Court

in K.C.BAJAJ’s case that principles laid down in

AKKARA’s case cannot be applied to appellants’ case

on account of the fact that circulars which fell for

interpretation in that case (AKKARA’s case) and those

under consideration in the appellants in BAJAJ’s case

are different in material aspect. It has been held by

the Hon’ble Apex Court as under:

“29. The judgment in B.J.Akkara

case (2006) 11 SCC 709 cannot be applied to the appellants’ case because the circulars which fell for interpretation in that case and those under consideration in these appeals

are different in material aspect. By Circular dated 7-6-1999, the Ministry of Defence conveyed the decision of the President that “with effect from 1-1-1996, pension of all armed forces pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1-1-1996 of the rank, held by the pensioner”. The circular provided that the revision of pension should be

undertaken as follows in case of commissioned officers (both post- and

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pre-1-1-1996 retirees): (B.J.Akkara case, SCC p. 717, para 5)

“5. … ‘(i) Pension shall

continue to be calculated at 50% of the average emoluments in all cases and shall be subject to a minimum of Rs.1275 p.m. and a maximum of up to 50% of the highest pay applicable to armed forces personnel but the full pension in no case shall be less than 50% of the minimum of the revised scale of pay introduced w.e.f. 1-1-1996 for the rank last held by the commissioned officer

at the time of his/her retirement. However, such pension shall be reduced pro rata, where the pensioner has less than the maximum required service for full pension. (Vide Clause 2.1(a).

(ii) Where the revised and

consolidated pension of pre- 1-1-1996 pensioners are not beneficial to him/her under these orders and is either equal to or less than existing consolidated pension under this Ministry’s Letters dated 24-11-1997, 27-5-1998 and 14-7-1998, as the case may be, his/her pension will not be revised to the

disadvantage of the pensioner (vide Clause 4).”

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6. Thus, it has to be examined as to whether

the circulars relied upon by the petitioners in the

instant writ petitions would fall within the parameters

laid down in BAJAJ’s case or AKKARA’s case.

Undisputedly, petitioners herein were Doctors working

in Three Armed Forces and the circulars which have

been referred to in AKKARA’s case relates to circulars

issued by the Ministry of Defence dated 07-06-1999 and

11-09-2001. Very same Circulars dated 07.06.1999 and

11.09.2001 (Annexures-E and F) referred to in

AKKARA’s case are questioned in the present writ

petitions and petitioners have sought for quashing of

communication dated 11.09.2001. Hon’ble Apex Court

in AKKARA’s case having examined the differences

arising in respect of retirees of a particular rank fall

under one class, has laid down the following principles

which read as under:

“20. The principles relating to pension relevant to the issue are well settled. They are:

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a) In regard to pensioners

forming a class, computation of pension cannot be by different formula thereby applying an

unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation,

the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the

aforesaid additional benefit was conferred.

b) But all retirees retiring with a particular rank do not form a

single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups

of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group

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whose reckonable emolument was higher. In other words, pensioners who retire with the same rank need not be given

identical pension, where their average reckonable emoluments at the time of their retirement were different, in view of the difference in pay, or in view of different pay scales being in force.

c) When two sets of employees of the same rank retire at different points of time, it is not discrimination if:

(i) When one set retired,

there was no pension scheme and when the other

set retired, a pension scheme was in force;

(ii) when one set retired, a voluntary retirement

scheme was in force and when the other set retired, such a scheme was not in force; or

(iii) when one set retired, a

PF scheme was applicable and when the other set retired, a pension scheme was in place.

One set cannot claim the benefit

extended to the other set on the ground that they are similarly situated. Though they retired with the same

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rank, they are not of the “same class” or “homogeneous group”. The employer can validly fix a cut-off date for introducing any new pension/

retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut off date arbitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment.”

It has been specifically held in AKKARA’s case that

circular dated 11.09.2001 was only clarificatory in

nature and did not amend or modify the circular dated

07.06.1999 which merely stepped up the pension and

also held that if pension is determined by taking into

account NPA as part of pay, was less than 50% of the

minimum pay in the revised scale of pay as in the case

of pre-1996 retirees, pension would be stepped up to

that extent in terms of circular dated 07.06.1999. it

has been specifically held that ‘minimum pay’ in the

context meant initial pay in the revised scale of pay and

‘scale of pay’ would not comprehend pay plus NPA. It

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has been further held that it is only those whose

pension which was determined with reference to old

scales of pay and not revised higher scale of pay, who

require the benefit of the stepping up and as such,

contention that pre-1996 retirees and post-1996 retirees

being treated discriminatory by the Government came to

be considered and rejected as untenable by the Hon’ble

Apex Court. It has been held in this context by Hon’ble

Apex Court while examining the circular dated

07.06.1999 as under:

“21. As noticed earlier, pension is

determined with reference to the applicable rules/orders governing pension. The Ministry's Circular dated 7.6.1999 comes in, only to step up the pension from 1.1.1996, if the pension calculated in accordance with the rules/orders is less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996. There is no need to step up

the pension of those who retired on or after 1.1.1996, as their pension will be more than or in no event less than the minimum provided under the circular dated 7.6.1999. The stepping up is required only to those who retired prior to 1.1.1996 as their pension was lower

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on account of the fact that their reckonable emoluments for purpose of calculation of pension, was based on the old scales of pay. Let us take the

case of a medical officer of the rank Lt. General, with 33 years of service, who retired in the year 1998 after getting two increments in the revised pay scale. As the applicable pay scale is Rs.22,400-525-24,500, his basic pay would have been Rs.23,450/- at the time of retirement. 25% thereof, namely, Rs.5,863/- would be the NPA. If the reckonable emolument was Rs.29,313/-, pension will be 50% thereof, namely, Rs.14,656/-. As the

pension under the Rules (Rs.14,656/-) was more than 50% of the minimum of revised pay scale (Rs.11,200/-) assured under the circular dated 7.6.1999, the benefit of stepping up is not required in his case. It is only those whose pension

was determined with reference to old scales of pay, and not the revised higher scale of pay, who require the benefit of the stepping up. Therefore, the contention that pre- 1996 retirees and post 1.1.1996 retirees are being treated differently, is untenable. They are treated similarly. But the fact that post 1.1.1996 retirees do not require the benefit of stepping up, cannot by any stretch of imagination, give rise to a contention that the benefit given to

pre- 1996 retirees by way of stepping up, amounts to discrimination.

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However, to salvage the situation, Hon’ble Apex Court

has clarified that payment already made shall not be

recovered on the ground of pensioners being in

disadvantageous position when compared to in-service

employees and directed that respondent should not

recover any excess payments towards pension pursuant

to the circular dated 07.06.1999 till the issue of

clarificatory circular dated 11.09.2001 and held as

under:

“29. On the same principle, pensioners can also seek a direction that wrong payments should not be

recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the

view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7.6.1999 till the issue of the clarificatory circular dated

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11.9.2001. Insofar as any excess payment made after the circular dated 11.9.2001, obviously the Union of India will be entitled to recover the

excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.”

7. Thus, as could be seen from the above dicta

laid down by Hon’ble Apex Court, petitioners herein

being similarly placed and all the petitioners being pre-

1996 retirees, the conclusion which has to be drawn in

these writ petitions is that dicta laid down in

COL.B.J.AKKARA’s case would be squarely applicable

to the facts on hand and as such, contentions raised by

petitioners in these writ petitions cannot be accepted

and stand rejected.

8. In view of the succor extended by the

Hon’ble Apex Court as observed herein above to those of

the petitioners who have already been paid, not to be

recovered till issue of clarifications Circular dated

11.9.2001 would equally extend to the present

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petitioners who were pursuing their grievance before

this Court in the event of they having been paid such

pension subsequent to 11.09.2001. Accordingly, writ

petitions stand disposed of.

Ordered accordingly.

Sd/- JUDGE

*sp