ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O A No. 46 OF 2011

THURSDAY, THE 6TH DAY OF FEBRUARY, 2014/17TH MAGHA, 1935

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

APPLICANT:

LT. COL. E.V. KRISHNAN, VSM (RETD.) I.C.23138,AGED 68, “POORNAM', V.C. VALLERY APARTMENTS,CSEZ P.O., KAKKANAD, COCHIN -37, KERALA STATE.

BY ADV. M/S. N. SUKUMARAN (SENIOR), S. SHYAM, N.K. KARNIS & ARUN R.

versus

RESPONDENTS:

1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110011.

2. CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSION)ALLAHABAD. PIN 14.

3. CONTROLLER OF DEFENCE ACCOUNTS (OFFICERS)GOLIBAR MAIDAN, PUNE 411001.

4. ADDL. DTE GEN OF MANPOWER (POLICY AND PLANNING),MP5 (6), ADJUTANT GENERAL'S BRANCH,INTEGRATED HQ OF MOI, (ARMY) WING NO.3,GROUND FLOOR, WEST BLOCK III – R.K. PURAM,NEW DELHI – 110 066.

BY ADV. SRI. S. KRISHNAMOORTHY, SENIOR PANEL COUNSEL.

O.A.No. 46 OF 2011 - 2 -

ORDER

Shrikant Tripathi, Member (J):

The applicant Lt. Col. E.V. Krishnan, VSM (Retd.), I.C.No. 23138

filed the instant Original Application for quashing the orders,

Annexures A14 and A15, and also for a direction to the respondents

to sanction him pensionary benefits of the rank of Lieutenant Colonel

with effect from the date of voluntary retirement.

2. We have heard Mr.N. Sukumaran, Senior counsel for the

applicant and Shri. S. Krishnamoorthy, counsel for the respondents

and perused the records.

3. The relevant facts are that, the applicant was in the Indian

Army in the rank of Major in 1985. He went on deputation on 2nd

September, 1985. Later on, while he was on deputation, he opted for

a premature discharge from the Army with effect from 10 th October,

1988 for being absorbed in the Sports Authority of India. Accordingly

the respondents accepted his request and allowed him to be

discharged. In due course, the applicant was paid not only

pensionary benefits but also other retiral benefits admissible to the

rank of Major. The applicant contended that he was considered for

O.A.No. 46 OF 2011 - 3 -

promotion to the rank of Lieutenant Colonel by No.4 Selection Board

and was ultimately found fit and was accordingly granted promotion,

before he proceeded for the deputation. In this connection, he relied

upon the Meritorious Service Certificate given by His Excellency the

President of India to him, in which his designation was disclosed as

Lieutenant Colonel. The applicant was disclosed as Lieutenant

Colonel even in the Gazette of India dated 28th September, 1985 with

regard to the publication of the order, whereby he was sent on

deputation. Even the Chief of the Army Staff vide commendation

card, Annexure A10, had indicated his rank as Lieutenant Colonel.

Despite all these material aspects of the matter, the respondents did

not agree with the applicant's contention, so they declined to

sanction him pension and other benefits of the rank of Lieutenant

Colonel.

4. The applicant, therefore, filed O.P. No. 24386 of 2001 (C) in

the Hon'ble High Court of Kerala, which was finally disposed of on

24th August 2004 with the direction to the first respondent therein to

consider Ext.P7 representation therein of the applicant after affording

him an opportunity of hearing. The Hon'ble High Court further

directed that the respondents will consider all the relevant materials

on record, including service records of the applicant, before passing

O.A.No. 46 OF 2011 - 4 -

any final order.

5. In compliance of the aforesaid order of the Hon'ble High

Court of Kerala, the respondent No.1, i.e. the Government of India,

Ministry of Defence, Department of Ex-Servicemen Welfare,

reconsidered the matter and passed the order dated 12th July, 2005

(Annexure A15), which has been impugned in the instant Original

Application. It also appears that the applicant moved another petition

dated 23rd December, 2010 (Annexure A13) to the President of India,

which was given due consideration, but the respondents did not find

any reason to modify the order dated 12th July, 2005 (Annexure

A15). Accordingly, the said petition dated 23rd December, 2010 was

rejected. The rejection order was communicated to the applicant

vide Communication No. 12656/IC-23138/T-6/MP 5 (b) dated 14th

Feb,2011 (Annexure A14), which has also been impugned in the

present matter.

6. The main contention to oppose the applicant's claim raised

on behalf of the respondents was that the applicant's case for

promotion could not be given due consideration because he was on

deputation. His case for promotion could be considered only after he

had returned to the Army from the deputation post. Since he,

O.A.No. 46 OF 2011 - 5 -

instead of coming back to the Army, continued on deputation post

and during such continuance he opted for discharge from the Army,

which was ultimately allowed, so there was no question of any

promotion to be given to him to the rank of Lieutenant Colonel.

7. In paragraph 3.2 of the order dated 12th July, 2005

(Annexure A15), the respondents stated that the applicant was

considered for promotion by a Selection Board in March/April, 1988 to

the rank of Acting Lieutenant Colonel and was found fit for

promotion. But according to para 4(i) of the said order he was never

actually promoted to the rank of Lieutenant Colonel and the Selection

Board's recommendation only amounted to declaring him eligible for

promotion. The actual promotion could be effected by a Government

notification, but no such notification was issued.

8. During the course of the hearing, an interim order dated

23rd January, 2013 was rendered directing the respondents to clarify

the following queries involved in the matter :

“1. Was there any substantive vacancy in the cadre of

Colonel in the parent department for the applicant before his

voluntary retirement.

2. Whether junior next to him was granted promotion to the

substantive rank of Colonel before his voluntary retirement (with

full details).

O.A.No. 46 OF 2011 - 6 -

3. Whether there was any rule/regulation prohibiting

grant of promotion during the continuance of the deputation.

4. If the applicant was a Major on the date of

deputation, as to how and under what circumstances he was

shown as Lt. Colonel in the gazette notification dated

September 28, 1985 (Annexure A9), letter No.32301/INF/8/

SB/23138/MS 4C (I) dated 13th July 1988 (Annexure A11)

and Pension Payment Orders (Annexures A1 and A2).”

9. In response to the aforesaid queries, the respondents filed

additional reply statement dated 17th June, 2013 stating wherein that

the applicant was considered for promotion, by No.4 Selection Board,

to the rank of Lieutenant Colonel during February, 1986, but his

matter was deferred. He was again considered by the No.4 Selection

Board during November/December, 1986. The Selection Board found

him fit for promotion. The recommendations of the Selection Board

were approved by the Chief of the Army Staff and the result was

declassified during March, 1987. The respondents further stated that

the applicant was to be promoted after Major Rajendra Prasad, who

was approved for promotion by No.4 Selection Board in February,

1986. But Major Rajendra Prasad was granted substantive rank of

Lieutenant Colonel on 1st December, 1990. In this view of the matter,

the applicant could be granted substantive promotion only after 1st

O.A.No. 46 OF 2011 - 7 -

December, 1990. But in view of the fact that he had already

proceeded on voluntary retirement with effect from 10th October

1988, he was not entitled to be considered in any vacancy occurring

on or after 1st December, 1990.

10. With regard to query No.2, the respondents stated that

Major T.D. Prasad, who was next junior to the applicant, was

approved for promotion to the rank of Lieutenant Colonel with effect

from 1st December, 1990, much after the premature retirement of the

applicant.

11. With regard to query No.3, the respondents very clearly

stated that according to the Government of India, Ministry of Defence

Order No.4(15)58/1991 D(MS) dated 25th February, 1970 (Annexure

R1) regarding deputation of Service Officers for civil employment

under the Central, a State Government or a Public Sector

Undertaking, grant of promotion during continuance of deputation

was not permissible. In this connection paragraph 8 of the said order

was referred to, according to which, the officers will not be entitled

for promotion to higher ranks during the period of deputation

except on Government order.

O.A.No. 46 OF 2011 - 8 -

12. With regard to the aforesaid query No.4, the respondents

stated in the additional reply statement that the Government

Notification dated 28th September 1985 was in respect of deputation

of the applicant with the Department of Personnel and Training.

They further stated that the disclosure of the rank as Lieutenant

Colonel in the said notification was not in any way authoritative

pronouncement of his promotion to the rank of Acting Lieutenant

Colonel.

13. The Bench passed one more interim order dated 3rd July,

2013, calling for the respondents to clarify their stand with regard to

the following questions, particularly in view of the averments made

by them in paragraphs 2 and 3 of the additional reply statement:

“ 1. Whether Major Rajendra Prasad No.IC 23137,

and Major T.D. Prasad, No. IC 23147, had been graned any

acting promotion prior to their promotion in the substantive

capacity? If so, the dates of the promotions.

2. If any person is granted any acting rank and retires

as such, whether he is entitled to pension of the acting rank

or not?

3. Whether there is any order/regulation/rule with

regard to grant of notional promotion to the person on

O.A.No. 46 OF 2011 - 9 -

deputation in civil employment on the principle of 'next

below rank'?

14. In order to answer the aforesaid queries, the respondents

filed the supplementary reply statement dated 19th August, 2013. In

paragraph 2 thereof, they clarified query No.1 and stated that Major

Rajendra Prasad was promoted to the rank of Acting Lieutenant

Colonel on 9th June, 1986 and Major T.D. Prasad was promoted to

the rank of Acting Lieutenant Colonel on 6th August, 1986. The

respondents further stated that promotion to the Acting rank takes

place only on assumption of the appointment in the higher rank. In

this connection the respondents referred to paragraph No.1 of

Appendix A to the Special Army Instruction 1/S/1974 (Annexure R5),

according to which, an officer selected for grant of acting promotion

will be granted appropriate acting rank from the date he actually

assumes and performs the duties of the appointment.

15. With regard to query No.2 the respondents stated in

paragraph 3 of the supplementary reply statement that in accordance

with paragraph 28 of the Pension Regulations for the Army, 1961,

pension was payable on the substantive rank held by an officer on

his retirement.

O.A.No. 46 OF 2011 - 10 -

16. With regard to query No.3, the respondents stated in

paragraph 4 of the supplementary reply statement that there was no

provision for grant of notional promotion to the person on

deputation in civil employment. The respondents then stated that for

promotion, the officer is required to come back to the parent

organisation and the promotion is effected only on physical

assumption of appointment in higher rank.

17. The pleadings of the parties and the materials filed in

support thereof clearly show that the applicant was only a Major

when he was sent on deputation. He could not file any order or

notification to show that he had been promoted to the rank of

Lieutenant Colonel before he proceeded on deputation. In absence

of any such specific order, he cannot be held to be in the rank of

Lieutenant Colonel at that point of time only on the basis of the

Meritorious Service Certificate (Annexure A8), the Gazette Notification

dated 28th September, 1985 (Annexure A9) and the Commendation

Card (Annexure A10), as there is no independent materials on which

basis the rank of Lieutenant Colonel was disclosed in these

documents.

O.A.No. 46 OF 2011 - 11 -

18. Major T.D. Prasad was admittedly next junior in rank to

the applicant, who was promoted to the rank of Acting Lieutenant

Colonel with effect from 6th August 1986 and to the rank of

Substantive Lieutenant Colonel with effect from 1st December, 1990.

It is also significant to state that the applicant's immediate senior

Major Rajendra Prasad was granted the acting rank of Lieutenant

Colonel with effect from 9th June 1986 and substantive rank of

Lieutenant Colonel with effect from 1st December, 1990. So utmost

the applicant could get the rank of Acting Lieutenant Colonel with

effect from 6th August, 1986 and substantive rank of Lieutenant

Colonel with effect from 1st December, 1990 only, because, according

to the respondents, the applicant could not get any vacancy in the

rank of Lieutenant Colonel prior these two dates.

19. The main contention raised on behalf of the respondents is

that the applicant was not entitled to seek promotion in the Army

even as acting Lieutenant Colonel with effect from 6th August, 1986

due to the simple reason that he had already proceeded on

deputation in the year 1985 and so long as he was on deputation he

was not entitled to be considered for promotion. The next contention

on behalf of the respondents was that the applicant had voluntarily

retired with effect from 10th October, 1988, much before the

O.A.No. 46 OF 2011 - 12 -

availability of substantive vacancy to him. So, in no way he was

entitled to be promoted to the substantive rank of Lieutenant Colonel.

20. In reply to the aforesaid submissions, Mr.N. Sukumaran,

appearing for the applicant, submitted that the applicant was

entitled to be given the notional rank of acting Lieutenant Colonel

with effect from the date his next junior was granted the rank,

notwithstanding that he was on deputation. He next contended that

for granting service pension to the applicant, it was obligatory on

the part of the respondents to fix the presumptive/notional pay

admissible to the applicant of the rank of acting Lieutenant Colonel

on the date of his retirement and to determine his pension

accordingly. Mr. S. Krishnamoorthy, however, contended that no

pension was payable with regard to the acting rank of Lieutenant

Colonel due to the specific bar provided in Regulation 28 of the

Pension Regulations for the Army, 1961. In reply to this submission,

Mr.Sukumaran, Senior counsel, argued that the policy of sanctioning

service pension was duly modified by the Government on the basis of

the recommendations of the IV Central Pay Commission, as per the

Government of India, Ministry of Defence Letter No. 1(5)/87/D

(Pensions/Services) dated 30th October, 1987, and on the basis of this

letter the applicant's pay was required to be notionally fixed in the

O.A.No. 46 OF 2011 - 13 -

rank of acting Lieutenant Colonel on the date of his voluntary

retirement, so, according to him, the rank substantive or acting had

no relevance.

21. In order to appreciate the aforesaid submissions of the

learned counsel for the parties, we have to examine the true import

of the aforesaid Government letter dated 30th October, 1987. The

said Government letter was issued with regard to the implementation

of the Government decisions on the recommendations of the IV

Central Pay Commission regarding pensionary benefits for the Armed

Forces officers and personnel below the officer rank retiring or dying

in harness on or after 1st January, 1986. In view of the fact that

the applicant took premature retirement with effect from 10th

October, 1988, the said Government letter dated 30th October, 1987

is applicable with regard to his pension matters.

22. Para 3.1 of the letter dated 30th October, 1987 defines

“reckonable emoluments”, inter alia, for retiring/service pension, and

according to which, in the matter of officers, average of the pay,

Non-practising allowance and rank pay, if any, drawn by the officer

during the last ten months of his service were required to be taken

into account for calculating the “reckonable emoluments”. Note 5 of

O.A.No. 46 OF 2011 - 14 -

para 3.3, being relied upon by the learned counsel for the applicant,

is reproduced as follows:

Note 5: Where an officer is serving in an

organisation other than the Armed Forces, the actual pay

and allowances drawn during such service shall not be

treated as emoluments, but the basic pay (plus NPA and

the rank pay, if any) which he/she would have drawn in

the Armed Forces, had he/she not been on such service

shall alone be treated as emoluments reckonable for

pensionary benefits.”

23. Para 4.1 of the Government letter provides for “average

emoluments”, according to which, in the matter of officers, average

emoluments were required to be determined with reference to the

emoluments drawn by him during the last ten months of his service.

Para 4.2 of the letter provides for the procedure as to how average

pay for ten months' period preceding retirement was to be

calculated. It is also relevant to state that according to Note 5 of

para 3.3 of the letter, the officers, who were on deputation and

opted for premature retirement for being permanently absorbed in

Public Sector Undertaking and Autonomous Bodies, were not entitled

to any weightage.

O.A.No. 46 OF 2011 - 15 -

24. Note 5 of para 3.3 of the aforesaid letter dated 30 th

October, 1987, as extracted herein before, clearly provides that the

pay and allowances drawn by the officer on the deputation post will

not be taken into account for deciding the reckonable emoluments.

To put it otherwise, an officer who was serving in an Organization on

deputation, the pay and allowances paid to him in that Organization

had no relevancy for sanctioning him service pension of the Armed

Forces service. In such matter, what is required for the authorities is

to determine the pay, NPA, if any, and the rank pay, if any, of the

officer in the Armed Forces at the time of his retirement/voluntary

retirement. The said Note 5 further provides as to how the basic

pay, NPA and rank pay, if any, are to be determined on the date of

retirement/voluntary retirement, according to which, the authorities

have to see what would have been drawn by the officer in the Armed

Forces, if he had not gone on deputation. In this way, it is crystal

clear that a notional exercise was required to be done to find out the

notional pay of the officer on the date of his retirement/voluntary

retirement, treating as if he had been throughout in the service of the

Armed Forces and had not gone on deputation. While making any

such exercise, the authorities had to see whether the officer would

have earned any promotion or not during the period he was on

deputation. So, while deciding as to what would have been drawn by

O.A.No. 46 OF 2011 - 16 -

the officer in the Armed Force if he had not gone on deputation, the

principle of 'next below rule' was required to be applied. In our

view, the theme of the aforesaid Note 5 cannot be restricted to the

rank, which the officer held on the date of proceeding on deputation.

In fact the rank or post he would have occupied, had he not

proceeded on deputation was also required to be taken into

consideration.

25. It is also relevant to mention that the applicant had

proceeded on deputation in the year 1985 and he was found fit for

promotion to the rank of Acting Lieutenant Colonel by the IV

Selection Board during November/December, 1986. The

recommendations of the Selection Board were approved even by the

Chief of the Army Staff. The stand of the respondents is that the

applicant was not entitled to be promoted on the basis of the

aforesaid selection due to the simple reason that he was on

deputation. In our view, it is well settled that while an officer or

employee is sent on deputation, his lien in the parent department

continues, so it is obligatory on the part of the authorities in the

parent department to intimate the officer/employee when the

selection process for the higher post was/is undertaken, if he comes

within the zone of consideration. In our view, what was required

O.A.No. 46 OF 2011 - 17 -

from the respondents was to intimate the applicant to resume the

duty of Acting Lieutenant Colonel and return back to the Armed

Forces. If the respondents had done so, they were fully justified in

saying that the applicant was not promoted because he was on

deputation and was not willing to come back. But when the

respondents did not intimate the applicant regarding his selection for

higher rank of Lieutenant Colonel and not even required him to come

back to the Armed Forces, how they could be said to be justified in

saying that they were fully justified in not providing promotion to the

applicant.

26. In order to apply Note 5 of para 3.3 of the aforesaid

Government letter dated 30th October, 1987 for sanctioning service

pension payable to the applicant on voluntary retirement from the

Army with effect from 10th October, 1988, the respondents were

required to determine notionally the pay, NPA and rank pay, if any, of

the applicant on the date of his premature retirement. In doing so,

they were further required to see whether or not the applicant would

have been entitled to the rank of Acting Lieutenant Colonel, if he had

not proceeded on deputation. In our view, merely determining the

pay/rank pay/NPA, if any, of the applicant of the rank of Major for

sanctioning service pension to him without the benefit of notional

O.A.No. 46 OF 2011 - 18 -

promotion earned by him in the mean time was contrary to the true

import of the aforesaid Note 5. In our view the respondents had to

give a broader look of Note 5, instead of adopting a very narrow

approach by fixing the applicant's pay and rank pay of the rank of

Major only. In our view, the deemed entitlement as per the

aforesaid Note 5 of para 3.3 of the Government letter dated 30th

October, 1987 will not be complete unless the promotion accrued to

the officer during his deputation tenure is not extended to him

notionally due to the simple reason that if he had not gone on

deputation he would have earned not only annual increments, but

also promotion to the higher rank with higher scale of pay and rank

pay. So any interpretation of the aforesaid Note 5 depriving the

officer to get notional benefit of promotion would result not only in

causing grave injustice to him, but also will be against the true

objects behind the Note.

27. It is also significant to state that the applicant's immediate

junior, Major T.D. Prasad, was promoted to the rank of Acting

Lieutenant Colonel with effect from 6th August, 1986. So if the

applicant had continued in the Armed Forces and had not gone on

deputation, he would have been promoted to the rank of Acting

Lieutenant Colonel atleast with effect from 6th August, 1986. It is also

O.A.No. 46 OF 2011 - 19 -

significant to state that the applicant's matter was allegedly deferred,

for the reasons not known, by the IV Selection Board held in

February, 1986. But he was, however, selected for promotion to the

rank of Acting Lieutenant Colonel not only by the IV Selection Board

in November/ December, 1986, but also was duly approved by the

Chief of the Army Staff. So, in the matter of the applicant, only a

formal order for promotion was required to be passed, but as he was

on deputation, no such order was issued. When his matter

regarding his pay, rank pay and NPA, if any, payable to him on the

date of his voluntary retirement came up before the Authorities for

the purpose of determining his pension and other retiral benefits, the

Authorities were required to see whether the applicant was entitled to

be treated notionally as Acting Lieutenant Colonel atleast with effect

from 6th August, 1986. In case, he was not so entitled on that

date, in that eventuality, the authorities were required to see as to

what was the relevant date, where from he was required to be

treated notionally in the rank of Acting Lieutenant Colonel. Since the

respondents have not disclosed any other date nor provided any

materials to enable us to decide the relevant date, so we consider it

just and expedient to fix 6th August, 1986 as the relevant date for

notionally treating the applicant in the rank of Acting Lieutenant

Colonel, because that is the date where from his immediate junior

O.A.No. 46 OF 2011 - 20 -

was given the rank of Acting Lieutenant Colonel.

28. Mr. Krishnamoorthy, appearing for the respondents,

submitted that no pension was payable with regard to the service as

Acting Lieutenant Colonel, so the applicant could not get any pension

of that rank unless he had been promoted to the substantive rank of

Lieutenant Colonel. In this connection he referred to Regulation 28

of the Pension Regulations for the Army, 1961. In our view, after the

implementation of the aforesaid Government letter dated 30th October

1987, Regulation 28 had become redundant. The Government

letter provided the concept of “reckonable emoluments” for pension

purposes, which was the average of the pay, NPA and rank pay, if

any, drawn by the officer during the last ten months of his service.

In our view, for applying the Government letter dated 30th October,

1987, it was not required to see whether the officer concerned was

holding substantive rank or acting rank. What was required to be

seen is the pay, NPA and rank pay, if any, drawn by him during the

last ten months of his service. So the contention that only the

substantive rank of Lieutenant Colonel was entitled to pension of the

rank of Lieutenant Colonel does not appear to be correct.

O.A.No. 46 OF 2011 - 21 -

29. Mr. Krishnamoorthy next contended that the Original

Application was liable to be dismissed on the ground of laches. He

contended that the applicant was discharged from the Army Service

on 10th October, 1988, but he filed Original Petition, O.P. No. 24386

of 2001 (C), in the Hon'ble High Court of Kerala after a gap of 13

years. So the matter had already become barred by limitation before

the Hon'ble High Court. In our view, this contention has no

substance in view of the fact that the Hon'ble High Court entertained

the Original Petition and disposed of the same on 24th August, 2004

with the direction to the first respondent therein to reconsider the

matter. In this view of the matter, the delay of 13 years as

contended by Mr.Krishnamoorthy lost its significance. The

Government of India, after reconsidering the matter in compliance of

the Hon'ble High Court's order, passed the final order on 12 th July,

2005 (Annexure A15). So the applicant got a fresh limitation on

receiving the information regarding the order Annexure A15 and as

such any delay that occurred prior thereto lost its significance. But

the applicant, instead of filing the Original Application within three

years from the date of receiving the order dated 12th July, 2005

(Annexure A15), wasted another five year. He after the expiry of the

said five year, instead of filing any Original Application preferred one

more petition, Annexure A13, which was ultimately rejected vide the

O.A.No. 46 OF 2011 - 22 -

order dated 14th February 2011, (Annexure A14) and ultimately filed

the instant Original Application on 6th April, 2011, after more than one

year of the subsequent rejection order dated 14 th February, 2011

(Annexure A14). But only on account of such laches on the part of

the applicant, the Original Application cannot be dismissed due to

the simple reason that the cause of action pertaining to pension

matters is a recurring cause of action accruing every month and in

such matters, according to the principles laid down by the Apex

Court in Union of India and Others v. Tarsem Singh ((2008)

8 SCC 648), the relief can be restricted to the period of three years

prior to the filing of the Original Application. As such the dismissal of

the petition on the ground of delay does not appear to be proper.

But it would be just and expedient to restrict the benefit of arrears to

the period of three years before the institution of the Original

Application. In view of the above, we do not agree with the

submissions of the learned counsel for the respondents so far as the

question of limitation is concerned.

30. For the reasons stated above, the Original Application is

allowed. The respondents are directed to sanction and pay service

pension and other retiral benefits to the applicant by notionally fixing

his pay, NPA and rank pay, if any, of the rank of Acting Lieutenant

O.A.No. 46 OF 2011 - 23 -

Colonel admissible on the date of his voluntary retirement, as per the

guidelines laid down by the Government of India, Ministry of Defence

letter No. 1(5)/87/DF (Pension/Services) dated 30th October, 1987.

They are further directed to pay the entire arrears of pension and

other retiral benefits to the applicant, within four months from the

date of receipt of a copy of this order, failing which the unpaid

amount will carry a simple interest at the rate of 8% per annum. It

is, however, made clear that the arrears of pension payable to

applicant determined in the aforesaid manner will be restricted to

the period of three years immediately before filing of the Original

Application.

31. There will be no order as to costs.

32. Issue free copy of this order to both sides.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

O.A.No. 46 OF 2011 - 24 -

33. The counsel for the respondents submitted that the

respondents may be granted leave to appeal to the Supreme Court.

In our view, no substantial question of law of general public

importance is involved in the decision, therefore, the leave prayed for

is refused.

Sd/- Sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)

tm.

/true copy/

Prl. Private Secretary