High Court of KeralaSingle Judge2017-03-30Writ petition allowed and disposed of; liberty ...

T.K. Unni Madhavan Nair v Union of India and others

Case / Petition Number:WP(C).No. 25368 of 2016 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran, J.
Judgment Date: 2017-03-30
Court Decision / Holding: Writ petition allowed; the court grants liberty to the petitioner to make an appropriate representation detailing claims of discrimination before the competent Secretary of the first respondent within 30 days, and directs that such representation be considered on its merits and disposed of after hearing, not later than four months from receipt of the representation. The court has not decided the merits of the policy itself and indicates that the One Rank One Pension issue may be considered in proper perspective by the authorities.
Final Disposition: Writ petition allowed and disposed of; liberty to file representation within 30 days; representation to be considered within four months; merits of the policy remain undecided in this petition.

Parties to the Case

Appellants / Petitioners

T.K. Unni Madhavan Nair

Respondents

UNION OF INDIA, represented by the Secretary, Ministry of Defence, SOUTH BLOCK, NEW DELHI-110001
CHIEF OF ARMY STAFF, DHQ PO, INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110001
PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION), DRAUPADIGHAT, ALLAHABAD, UTTER PRADESH-211014
THE OFFICER-IN-CHARGE(RECORDS), TOPKHANA ABHILAKEH, ARTILLERY RECORDS, NASIK ROAD CAMP, 422102, APS, PIN-900482
THE OFFICER-IN-CHARGE, DEFENCE PENSION ADALATH, CONTROLLER OF DEFENCE ACCOUNTS, NO.618, ANNASALAI, TEYNAMPET, CHENNAI-600018

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R. Sudhish
• Smt. M. Manju

Counsels for Respondents

• Sri. N. Nagareesh
• Sri. A.R. Gangadas

Case Synopsis & Summary

The petitioner, a reservist pensioner, contends that Exts.P5 (2008) and P12 (2010) exclude reservist pensioners from the benefits conferred on other pensioners, thereby violating Article 14 of the Constitution. He had been receiving service pension and dearness relief up to 2006, after which the benefits were withdrawn without a justified reason. The counter-affidavit explains the evolution of pension schemes and cites Government letters and circulars (including Exts.R1 series) indicating that the policy treats reservist pensioners as a distinct class with a minimum pension framework, which allegedly does not extend the enhanced benefits to them. The petitioner argues this classification lacks intelligible differentia and has no rational basis, constituting hostile discrimination. The court, while acknowledging its constrained role in matters of executive policy (citing Tata Cellular v. UoI and Balco Employees Union v. UoI), notes that gross discrimination cannot be ignored. It orders the authorities to consider the petitioner's representation, detailing claims of unfair discrimination, before the competent Secretary within 30 days from the date of the judgment and to dispose of the representation on its merits within four months, after hearing. The court clarifies that it has not decided the merits of the policy disputes but may address One Rank One Pension issues in proper perspective. The petition is thus ordered.

Provisions of Law Cited

Article 14 of the Constitution of IndiaArticle 226 of the Constitution of India

Legal Doctrines & Maxims

Limited judicial review in matters of executive policy (policy matters are not typically subject to full court review)
Equality before law and prohibition of arbitrary classification under Article 14, requiring intelligible differentia

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that reservist pensioners were previously receiving benefits until 2006; Exts.P5 and P12 exclude them from those benefits; this exclusion is illegal, unconstitutional, and violates Article 14 by imposing hostile discrimination without intelligible differentia or any rational nexus to a legitimate objective. He seeks quashing or modification of the impugned circulars and restoration of benefits.

Contentions of Respondents

The respondents contend that the 2008–2010 letters and related circulars were intended to revise pension policy for reservist pensioners and that the policy does not extend the benefits under Exts.P5 and P12 to reservists. They cite government communications and circulars (R1 series) showing the evolution of service pension and the stance that the reservist category was treated separately, with minimum pension considerations. They maintain that the policy is a legitimate executive decision and that any review of such policy lies within the reserved domain of the executive, subject to lawful guidance and eventual adjustment.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Tata Cellular v. Union of India	AIR 1996 SC 11	Positive	Cited as binding precedent establishing the principle that courts exercise limited review in matters of executive policy.
Balco Employees Union v. Union of India	(2002) 2 SCC 333	Positive	Cited to support the doctrine of restrained judicial review in policy matters.
O.A.37 of 2011, Armed Forces Tribunal	O.A.37 of 2011	Mentioned Only	Referenced as an exhibit (Exhibit P11); not relied upon as binding authority for the court’s decision in this petition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 30TH DAY OF MARCH 2017/9TH CHAITHRA, 1939** **WP(C).No. 25368 of 2016 (U)** **---------------------------** **PETITIONER:** **-----------** **T.K.UNNI MADHAVAN NAIR NO.1229584 X-GNR(DVR)ARTY, S/O.K.NARAYANAN NAIR, AGED 73 YEARS, RESIDING AT BHAGYASREE HOUSE, PADINHATUMURI, POST KAKKODI, KOZHIKODE-673611.** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU** **RESPONDENTS:** **------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110001.** **2. CHIEF OF ARMY STAFF, DHQ PO, INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE, SOUTH BLOCK,NEW DELHI-110001.** **3. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION), DRAUPADIGHAT, ALLAHABAD, UTTER PRADESH-211014.** **4. THE OFFICER-IN-CHARGE(RECORDS), TOPKHANA ABHILAKEH, ARTILLERY RECORDS, NASIK ROAD CAMP, 422102, APS, PIN-900482.** **5. THE OFFICER-IN-CHARGE, DEFENCE PENSION ADALATH, CONTROLLER OF DEFENCE ACCOUNTS,NO.618, ANNASALAI,TEYNAMPET,CHENNAI-600018.** - **BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SRI.A.R.GANGADAS, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 25368 of 2016 (U) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: COPY OF THE CERTIFICATE OF SERVICE OF THE PETITIONER.** **EXHIBIT P2: COPY OF THE RELEVANT PORTION OF PENSION CERTIFICATE OF THE PETITIONER. EXHIBIT P3: COPY OF THE LETTER NO.1229584/SP-38621/NE DATED 6TH AUGUST, 1979 ISSUED BY THE ARTILLERY RECORDS, NASIK ROAD CAMP. EXHIBIT P4: COPY OF THE CIRCULAR NO.430 DATED 10.3.2010 ISSUED BY THE PRINCIPAL CONTROLLER OF DEFENSE ACCOUNT(PENSION)ALLAHABAD. EXHIBIT P5: COPY OF THE LETTER NO.PC 10(1)/2009-D (PENSION/POL)GOVERNMENT OF INDIA,MINISTRY OF DEFENCE, DEPARTMENT OF EX-SERVICEMEN WELFARE, NEW DELHI DATED 8.3.2010. EXHIBIT P6: COPY OF THE APPLICATION DATED 4.10.2010 SUBMITTED BY THE APPLICANT TO THE CANARA BANK, KAKKODI BRANCH.** **EXHIBIT P7: COPY OF THE COMPLAINT SENT THROUGH E-MAIL BY THE PETITIONER ON 25.10.2010.** **EXHIBIT P8: COPY OF THE LETTER NO.AT-PSB/VI/KOZHIKODE/KERALA DATED 15.11.2010 ISSUED BY THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNT(PENSION), ALLAHABAD. EXHIBIT P9: COPY OF THE APPLICATION DATED 31.12.2010 ALONG WITH PROFORMA FORWARDED BY THE PETITIONER TO THE 5TH RESPONDENT. EXHIBIT P10: COPY OF THE LETTER NO.PA/CLT/219 ISSUED BY THE DEFENCE PENSION ADALATH,THE 5TH RESPONDENT DATED 7.1.2011 ADDRESSED TO THE PETITIONER. EXHIBIT P11: COPY OF THE JUDGMENT IN O.A.37 OF 2011 OF THE ARMED FORCES TRIBUNAL DATED 29.5.2013. EXHIBIT P12: COPY OF THE CIRCULAR NO.12(1)/2014/D(PEN/POLICY) PART II OF THE 1ST RESPONDENT DATED 3.2.2016. EXHIBIT P13: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE PRIME MINISTER OF INDIA DATED 22.3.2016. --2--** **--2--** ## **WP(C).No. 25368 of 2016 (U)** **---------------------------** ## **RESPONDENTS' EXHIBITS:** |**EXT. R1A:**|**TRUE COPY OF PCDA (P), ALLAHABAD PENSION PAYMENT**| |---|---| ||**ORDER NO.S/47816/79 DATED 09 JUL 1979.**| |**EXT. R1B:**|**TRUE COPY OF PCDA (P), ALLAHABAD PENSION PAYMENT**| ||**ORDER NO.S/R/4295/1983 DATED 14 JUL 1983.**| |**EXT. R1C:**|**TRUE COPY OF GOVT. OF INDIA, MINISTRY OF**| ||**DEFENCE, DEPARTMENT OF EX-SERVICEMEN WELFARE**| ||**LETTER NO.17(4)/2008(I)/D(PEN POLICY) DATED 11**| ||**NOV 2008.**| |**EXT. R1D:**|**TRUE COPY OF GOVT OF INDIA, MINISTRY OF DEFENCE,**| ||**DEPARTMENT OF EX-SERVICEMEN WELFARE LETTER**| ||**NO.B/38174/PS-5/D(PEN-POL) DATED 03 SEP 2009.**| |**EXT. R1E:**|**TRUE COPY OF DEFENCE PENSION ADALAT VIDE THEIR**| ||**LETTER NO.PA/CLT/219 DATED 07 JAN 2011.**| **//TRUE COPY// P.S. TO JUDGE** **mbr/** ## DEVAN RAMACHANDRAN, J. .................................................................... WP(C) No.25368 of 2016 .................................................................... Dated this the 30[th] day of March, 2017. ## J U D G M E N T 1. The petitioner claims to be a reservist pensioner after his superannuation from the Indian Army. According to him, he was getting all the benefits, including pension and allowances until 2006, when Exts.P5 and P12 circulars were issued under which reservist pensioners were excluded from the grant of benefits. The petitioner points to clause 5.2 of Ext.P5 and clause 4.1 of Ext.P12 and says that the exclusion of reservist pensioners from the benefits granted under these orders is illegal, unconstitutional and violative of Article 14 of the Constitution of India. He has, therefore, impugned these circulars in this writ petition. 2. I have heard the learned counsel for the petitioner, Mr.R.Sudhish, and the learned Central Government Standing Counsel, Mr.A.R.Gangadas. 3. I notice that the primary contention of the petitioner is that the WPC25368/16 -2- exclusion of reservist pensioners from the benefits granted under Exts.P5 and P12, is illegal and unconstitutional because they have been discriminated in a hostile manner. According to the learned counsel appearing for the petitioner, the classification of reservist pensioners as a class, for exclusion from the benefits of Exts.P5 and P12 orders, is not based on any intelligible differentia, and that, there is no purpose discernible, that is sought to be achieved by such classification. He, vehemently, asserts that his client was receiving all benefits until 2006 without any such discrimination and that therefore, the discrimination brought in through Exts.P5 and P12 are without any reason and without any logic. 4. I have examined these two orders, which are impugned in this writ petition. It is true that they merely says that reservist pensioners would not obtain the benefits under them. They do not offer any explanation as to why exclusion was required and mandated when those orders were issued. To that extent, I think the petitioner is justified in feeling aggrieved. This is more so because, he was obtained all the benefits until the year 2006. That WPC25368/16 -3- was abruptly stopped, according to him, without assigning any valid reason. 5. I see that a counter affidavit has been filed on behalf of the respondents, wherein they explain the situation as under : “4. In the above case, the petitioner was granted service pension @ Rs.50/- per month for life plus dearness relief from time to time vide PCDA(P) Allahabad Pension Payment Order No.S/47816/79 dated 09 Jul 1979. A true copy of the Pension Payment Order No.S/47816/79 dated 09 Jul 1979 is produced herewith and marked as Exhibit R1(A). The same was further revised to @ Rs.70/- per month plus dearness relief from time to time vide PCDA (P) Allahabad Pension Payment Order No.S/R/4295/1983 dated 14 Jul 1983. A true copy of the Pension Payment Order No.S/R/4295/1983 dated 14 Jul 1983 is produced herewith and marked as Exhibit R1(B). The same has been further revised from time to time. 5. As regards to Para 4 to 14. As per Govt. of WPC25368/16 -4- India, Ministry of Defence, Department of ExServicemen welfare letter No.17 (4)/2008 (1)/D (Pen/Policy) dated 11 Nov 2008. A true copy of Govt. of India, Ministry of Defence, Department of Ex-Servicemen welfare letter No.17(4)/2008(1)/D (Pen/Policy) dated 11 Nov 2008 is produced herewith and marked as Exhibit R1(C). As per ibid Govt of India Ministry of Defence letter and PCDA (P) Allahabad Circular No.397 dated 18 Nov 2008, service pension in respect of reservists pensioner has been revised to Rs.3500/- pm plus dearness as admissible from time to time wef 01 Jan 2006. 6. Further, as per Para 5.2 of Govt. of India, Ministry of Defence, Department of ExServicemen Welfare letter No.PC10(1)/2009-D (Pen/Pol) dated 08 Mar 2010 circulated vide PCDA (P), Allahabad Circular No.430 dated 10 Mar 2010, Govt. of India, Ministry of Defence, Department of Ex-Servicemen letter No.1(13)/ 2012/D (Pension/Policy) dated 17 Jan 2013 circulated vide PCDA (P) Allahabad Circular No.501 dated 17 Jan 2013 and Govt of India, Ministry of Defence, Department of ExServicemen 12 (1) 2014/D (Pen/Policy)-Part II WPC25368/16 -5- dated 03 Feb 2016 circulated vide PCDA (P) Allahabad Circular No.555 dated 04 Feb 2016, the provision of said Govt. letters, PCDA(P), Allahabad Circulars, do not apply to Reservist Pensioners. 7. It is submitted that as per Para 8 of Govt. of India, Min of Defence, department of ExServicemen Welfare, letter No.17(4)/2008(1)/D (Pen/Policy) dated 11 Nov 2008, PCDA(P), Allahabad Circular No.397 dated 18 Nov 2008 and Govt. of India, Ministry of Defence, Department of Ex-Servicemen Welfare letter No.B/38174/PS-5/D (Pen-Pol) dated 03 Sep 2009; a true copy of the Govt of India, Ministry of Defence, Department of Ex-Servicemen welfare letter No.B/38174/PS-5/D (Pen-Pol) dated 03 Sep 2009 is produced herewith and marked as Exhibit R1(D); where the consolidated pension works out to an amount less than Rs.3,500/- per month, the same will be stepped up to Rs.3,500/- per month with effect from 01 Jan 2006 and further revised the service pension @ Rs.3,500/- from 24 Sep 2012. However, no further revision has been carried out by the competent authority so far for reservist WPC25368/16 -6- pensioners.” 6. A reading of these statements would indicate that the reservist pensioners were kept as a separate class and not granted the benefits, because it was a Policy of the Government to make sure that they had a minimum pension of Rs.3,500/- and nothing more. However, even a close scrutiny of these statements in the counter affidavit would not explain why this classification was adopted and why this Policy was put into place. I am aware that this Court acting under Article 226 of the Constitution of India, is constrained jurisdictionally, while deciding matters of executive policy conclusively, because it is within the province of the competent Authorities, including the Government, to formulate such Policies as are best suited to the citizenry. I know that my jurisdiction is completely constrained by binding precedents like Tata Cellular v. Union of India [AIR 1996 (SC) 11], Balco Employees Union v. Union of India [(2002) 2 SCC 333], etc., where the Honourable Supreme Court has declared the law without exception that in matters of Policy, the jurisdiction of this Court is barricaded to a WPC25368/16 -7- large extent. 7. However, that does not mean that this Court can be completely purblind to gross discrimination, when it is alleged by the parties. Remaining within the circumference of the jurisdiction vested in me, under the authority of Article 226 of the Constitution of India, I deem it necessary that the Authorities consider the petitioner's case and take a decision as to why persons like the petitioner are required to be discriminated or held as a separate class not worthy of the benefits granted in Exts.P5 and P12. This is the least that the Authorities can do to redress the genuine grievance of the persons like the petitioner. 8. In such circumstance, I order this writ petition granting liberty to the petitioner to make an appropriate representation detailing all his claims, including the allegation that persons like him have been unfairly discriminated, before the competent Secretary of the first respondent, Union of India, within a period of 30 days from the date of receipt of a copy of this judgment. If such a representation is WPC25368/16 -8- received by the competent Secretary within the time granted herein, he shall consider the same on its merits and dispose it of after affording an opportunity of being heard to the petitioner or his representative, as expeditiously as possible, but not later than four months from the date on which such representation is received from the petitioner in terms of this judgment. 9. I clarify that I have not considered the merits of this case in detail, because I deem it necessary that these issues should first gain attention of the competent Authorities. However, the issue as to whether the petitioner would be entitled to any benefit under the One Rank One Pension would also be an issue that the petitioner may raise, which the Authority will have to consider in its proper perspective, taking into account the purpose behind Ext.P12 order. This writ petition is thus ordered. (DEVAN RAMACHANDRAN, JUDGE) jg-1/4