Sunday, 20 July 2014


B.A. (Hons), LL.B. (Gold Medalist), M. Sc., LL.M.
Advocate Supreme Court of India
Former Vice-President of Supreme Court Advocates-on-Record Association
National CO-Convener, SAINIK Cell
Dear Sir,

1. I am attaching a brief regarding three important cases affecting a large number of retired and serving armed forces personnel pending before the Hon'ble Supreme Court which need to be reviewed immediately. One of the cases is coming up for hearing on 25.07.2014 and it is necessary to address this case immediately.

2. There are several other matters, most of them appeals filed by UPA government, which would also need to be reviewed in due course.

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1) We are aware of various pronouncements made by the Hon’ble Prime Minister in the run of 2014 Election and inclusion of the same in the BJP Election Manifesto. The declaration regarding implementation of "One Rank One Pension" and setting aside budgetary allotment for the same has gone very well with the Ex-Servicemen, their families and well wishers and the serving personnel of Armed Forces.

2) We are also aware that the UPA Government has been completely ignoring the various genuine issues raised by Ex-Servicemen Organizations and Service Headquarters for a longtime so much so, a large number of litigation on these issues is pending despite favourable court orders in favour of Ex-Servicemen because the UPA Govt. filed appeals in almost all cases in a routine manner. To ensure the goodwill generated by the change of government, the following important matters having effect on thousands of serving and retired service personnel need to be looked into:

a) RANK PAY CASE: Rank Pay for officers of the rank of Captain to Brigadier and equivalents was introduced with the acceptance of recommendations of IV Pay Commission w.e.f. 01.01.1986. However, while implementing the same, the government messed up the issue and deducted the amount of rank pay from the pay fixed pursuant to the acceptance of pay commission recommendations. One Major A.K. Dhanapalan fought single handedly the battle against the wrong implementation and succeeded in Writ Petition as well as Writ Appeal before the Hon'ble High Court of Kerala and the SLP of Union of India was dismissed by the Hon'ble Supreme Court on 12.07.2005. However, the government implemented the court orders only in respect of the said officer, resulting into a large scale commotion amongst the ex-servicemen leading to thousands of representation and hundreds of writ petition. The writ petitions were transferred to the Hon'ble Supreme Court in accordance with T.P. (C) No.56 of 2007 filed by Union of India. The issue of rank pay was decided by the Hon'ble Supreme Court on 08.03.2010 in favour of Ex-Servicemen. The government instead of implementing the same filed an application I.A. No.9 of 2010 seeking directions for modification/ directions and recall of order dated 08.03.2010. This was dismissed by the Hon'ble Supreme Court on 04.09.2012. While issuing the implementation order on 27.12.2012, once again serious lapses were left out and even though a part payment has been made to thousands of ex-servicemen, due to non-implementation of Supreme Court order dated 04.09.2012 by the government, a Contempt Petition No.328 of 2013 in I.A. No.9 of 2010 in T.P. (C) No.56 of 2007 was filed by the affected persons and ex-servicemen associations, wherein the Hon'ble Supreme Court issued notices on 19.11.2013. It is important to mention that despite clear opinion of learned Attorney General sought by UPA government, the order remains unimplemented in letter and spirit. As per internet information, the matter is coming up on 25.07.2014 and it will be appropriate that government law officer including learned Attorney General for India are directed to assure the Hon’ble Court that the order dated 04.09.2012 will be implemented in letter and spirit and the lapses brought out in the contempt petition will be addressed.


i). The various benches including the Principal Bench of the Armed Forces Tribunal have already held that the benefit of broad-banding of disability has to be given to all service personnel whether they superannuated from service or boarded out on account of disability. Civil Appeal No. D 874/2012 in respect of the matter Union of India & Anr. Versus Lt. Gen. Vijay Oberoi (the former Vice Chief of Army Staff) alongwith hundreds of matters affecting thousands of retired service personnel is pending.

ii). The issue remained a controversial point of litigation between disabled soldiers and the Govt. However, it was conclusively settled by the SC in Civil Appeal No 5591/2006 Capt KJS Buttar Vs Union of India decided on 31 March 2011. The Review Petition filed in the SC (Review Petition No 2688/2013) in the same case was also dismissed recently on 21 January 2014 on merits. In light of the above, it makes no sense with continuing massive litigation on the same point and all bunch/tagged appeals filed by the MoD against disabled and war disabled soldiers on this aspect need to be withdrawn in view of the decision of the SC in the above case.

iii). Prior to 2006, pre-mature voluntary retirees were not entitled to disability pension. In 2009, the Govt issued a letter entitling post-2006 voluntary retirees to disability pension but denying the same to pre-2006 retirees. The Govt even got a favourable ruling from the SC when it did not inform the Court about the issuance of the ibid letter in the year 2009. However, the said cut-off date of pre/post-2006 was later struck down and the striking down upheld by the SC thereby entitling all voluntarily retired disabled officers (pre/post-2006) for the grant of disability pension w.e.f. 01 Jan 2006. However, despite the well settled legal position, the MoD is still filing appeals in the SC against pre-2006 voluntarily retired officers who have been granted disability pension. The latest decisions of the SC in this regard, which are being ignored by the PS Directorate and the DESW, are Civil Appeal No 9827/2011 UOI Vs Gp Capt JK Kaushik decided on 03 July 2013 and Civil Appeal D No 31811/2013 UOI Vs Ex-Capt Rajesh Kumar Bhardawaj decided on 24 March 2014.

iv). In view of the foregoing, this matter which is pending for final disposal to be listed on non-miscellaneous day before the Hon'ble Supreme Court also needs to be reviewed and necessary instructions to the government law officers in the Hon'ble Supreme Court be issued.

c) LAPSES WITH REGARD TO IMPLEMENTATION OF VI PAY COMMISSION WHILE FIXING MINIMUM PAY IN THE PAY BAND IN RESPECT OF OFFICERS UPTO THE RANK OF BRIGADIER AND EQUIVALENTS: The Principal Bench of AFT and others benches have held that the fixation of pension of retired Armed Forces Officers was wrongly interpreted and implemented. The government itself has realized the mistake and implemented the same vide order dated 17.01.2013 but the same has been made effective w.e.f. 24.09.2012 instead of 01.01.2006 on which date the VI Pay Commission was given effect. This is contrary to the settled law by the Hon'ble Supreme Court regarding the cut-off date and even the merits of the case so warrant. In this connection, there is a urgent need to review Civil Appeal Nos.8875-76/2001 and numerous other connected matters pending before the Hon'ble Supreme Court awaiting final disposal.

Cdr Ravindra Waman Pathak I.N. (Retd)
Member Governing Body and Pension Cell
Indian Ex Servicemen Movement
1 Surashri,1146 Lakaki Road
Pune 411016

1 comment:

  1. What is the present status of disability pension with regard to Pre 2006 retirees in light of para(2b)(iii) above? Are they eligible to get it or still need to be decided by SC and the GOV.