Non-Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal……………… of 2019 (@ Diary No. 10043 of 2017)

IC 29547 L  BOBBY JOSEPH .... Appellant(s)

Versus

Union of India & Ors.   …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. The Appellant was granted Short Service Commission

on 15.06.1969 and Permanent Commission on 15.06.1974.

His promotion/seniority was fixed w.e.f.  12.08.1970.   He

voluntarily proceeded for his pre-mature retirement w.e.f.

15.07.1991 in the rank of Major.  He was granted pension

by an order dated 29.07.1991, as Major.   

2. By  an  order  dated  25.09.1991,  the  Appellant  was

granted  substantive  rank  of  Lt.  Colonel.   The  Appellant

sought  for  revision  of  pension  as  he  was  entitled  for

payment of pension applicable to the rank of Lt. Colonel

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(TS) pursuant to the implementation of the 5th Central Pay

Commission.  As the request made by the Appellant was

rejected,  he  approached  the  Armed  Forces  Tribunal,

Regional Bench, Kochi, which directed the reconsideration

of the representation made by the Appellant.    

3. By way of implementation of the direction issued by

the Armed Forces Tribunal,  the Respondent reconsidered

the matter pertaining to the payment of pension applicable

to  the  rank  of  Lt.  Colonel  (TS)  to  the  Appellant.    By

observing that the Appellant did not complete 21 years of

reckonable service which was required for grant of pension

to  the  Lt.  Colonel,  as  per  the  Army  Order  dated

20.03.1990, the Respondents held that the Appellant was

not entitled for payment of pension applicable to the Lt.

Colonel  (TS).   The  Military  Secretary  Branch,  M3-8A

Integrated  Headquarters  of  Ministry  of  Defence  (Army)

South  Block,  New  Delhi  was  of  the  opinion  that  the

Appellant fell short of the requisite 21 years by a period of

30 days.  

4. Challenging the proceedings  dated 30.04.2015,  the

Appellant  filed  O.A.  No.110  of  2015  before  the  Armed

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Forces Tribunal.   The Armed Forces Tribunal dismissed the

O.A.,  dissatisfied with which,  the Appellant has filed the

above Appeal.

5. The  Tribunal  accepted  the  submissions  made  on

behalf of the Respondents that to be placed in the rank of

Lt.  Colonel  (TS),  a  person  should  have  21  years  of

reckonable  service.    In  case  of  Short  Service

Commissioned  Officers  who  were  granted  Permanent

Commission, the date of the Permanent Commission shall

be taken into account for the purpose of  promotion and

seniority.   Considering  that  the  Appellant  was  granted

permanent  Commission  w.e.f.  15.06.1974  and  seniority

from 12.08.1970, his reckonable service would be 20 years

11  months.   In  such  view  of  the  matter,  the  Tribunal

concluded that the Appellant was not entitled to the relief

claimed.   

6. After  retirement  of  the  Appellant,  an  order  for

payment of pension was issued on 29.07.1991.  His service

for the payment of pension was shown to have been 22

years 1 month and 1 day.  He was granted pension in the

rank of Major.  The Appellant has placed before us an order

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dated  15.10.1991  by  which  the  competent  authority

approved  the  promotion  of  officers  of  1970  to  the

substantive rank of Lt. Colonel by time scale.   The officers

whose names were found in the list annexed to the said

order were directed to wear the badges of the rank of Lt.

Colonel (TS).  The name of the Appellant is shown at Serial

No.11  of  the  list  that  was  annexed  to  the  order  dated

15.10.1991.

7. Having been promoted to the rank of Lt. Colonel, the

Appellant is entitled to payment of pension in the rank of

Lt. Colonel (TS).  In response to our query about the order

dated 15.10.1991, the learned Additional Solicitor General,

on  instructions  submitted  that  it  was  issued  due  to  a

mistake.  She fairly submitted that the said order has not

been withdrawn.   The reliance placed on the Army orders

to  consider  the  reckonable  service  for  the  purpose  of

promotion/seniority  as  Major  is  of  no  avail  to  the

Respondents in view of the order dated 15.10.1991.  The

Appellant cannot be denied payment of pension applicable

to the rank of Lt. Colonel (TS) on the ground that he fell

short of the reckonable service of 21 years.   The Appellant

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retired in the year 1991 and has been made to run from

pillar  to  post  to  get  his  rightful  pension.   We  deem  it

appropriate that apart from his entitlement to the pension

applicable to the post of Lt. Colonel (TS), he is also entitled

to be compensated for the avoidable litigation to which he

was unnecessarily dragged into.   

8. For the aforementioned reasons, we allow the Appeal

with costs, assessed at Rs.50,000/- (Rupees Fifty Thousand

only)  which  shall  be  payable  to  the  Appellant  within  a

period of four weeks.   

   ...............................J.                                                                    [L. NAGESWARA

RAO]

…...........................J.                                                                   [HEMANT GUPTA]

New Delhi, October 04, 2019  

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