Holding

The 21 November 1997 order applies only to officers in service on 1 January 1996 and does not confer a higher pay‑scale benefit on retirees who left before that date.

Summary

The petitioners, retired commissioned officers who left service before 1 January 1996, claimed entitlement to a higher pay scale (Lt Colonel or equivalent) under the Government Order dated 21 November 1997, which implemented the Fifth Pay Commission. The Armed Forces Tribunal had given conflicting rulings, some allowing and some rejecting the claim. The Supreme Court examined the 1997 order, the subsequent 1999 and 2000 orders, and held that the 1997 order was intended only for officers in service on 1 January 1996 and did not extend to pre‑1996 retirees. Consequently, the Tribunal’s orders granting the higher scale to such retirees were set aside, while the Tribunal’s orders denying the benefit were upheld. The Court clarified that there was no discrimination between pre‑ and post‑1996 retirees under the pension scheme. Appeals by the Union of India were allowed; appeals by the petitioners were dismissed.

Issues considered

The scope of the Government Order dated 21 November 1997 regarding pay‑scale up‑gradation for officers who became substantive Majors before 1 January 1996.
Whether retired officers who left service before 1 January 1996 are entitled to the higher pay scale under that order.
Whether the differing treatment of pre‑1996 and post‑1996 retirees violates Article 14.
The correct interpretation of the subsequent orders dated 7 June 1999 and 14 January 2000 in relation to pensionary benefits.

Subjects

Armed ForcesPensionary benefitsPay scale up‑gradationFifth Pay CommissionArticle 14DiscriminationArmed Forces TribunalRetired officers

Judgment

752 [2018]REPORTS
SUPREME COURT 2 S.C.R. 752 [2018] 2 S.C.R.

A SUCHET SINGH YADAV & ORS.

v.

UNION OF INDIA & ORS.

B (Civil Appeal Nos. 770-771 of 2018)

FEBRUARY 21, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

C Armed Forces – Pensionary benefits – Claim for higher pay
scale – When not valid – In consequence of implementation of Fifth
Pay Commission Report, Government Order dtd. 21.11.1997 issued
with respect to “pay and allowances of Armed Force officers” –
Relying thereon, Commissioned officers of all the three wings of
Defence Forces, i.e. Army, Air Force and Navy, who had retired
D prior to 01.01.1996, filed O.As. before Armed Forces Tribunal for
grant of next higher scale to one held by them at the time of retirement
– Some claims were rejected while others were allowed by Tribunal
– On appeal, held: A perusal of Order dtd. 21.11.1997 indicates
that what was conveyed by the said order was sanction of the
E President for improvement of pay scales of the Officers, w.e.f.
01.01.1996 – Word used in the order is “pay scales” of the officers
with effect from 01.01.1996, which pre-supposes that improvement
of pay-scales of the Officers who are still in the establishment, has
been made– Order dated 21.11.1997 was not issued with regard to
commissioned officers, who had retired prior to 01.01.1996, nor it
F provides for stepping up of the pay-scale of such retiree officers, to
a higher rank – Thus, those who were not in service on 01.01.1996
could not claim any benefit of the order dated 21.11.1997 – Further,
even order dtd. 14.01.2000 was not issued for giving any benefit to
those who retired prior to 01.01.1996 – Applicants-Commissioned
officers were not entitled for grant of benefit of higher pay scale
G
under Order dtd. 21.11.1997 – Orders of Tribunal extending the
said benefit to those applicants who had already retired before
01.01.1996 are set aside – Whereas, the orders of Tribunal holding
that Armed Forces Officers, who have retired before 01.01.1996
are not entitled for pensionary benefits are upheld.
H
752
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 753

Disposing of the appeals, the Court A
HELD: 1.1 The Government of India, Ministry of Defence
vide its Resolution dated 13.10.1997 had decided to implement
the Vth pay Commission Report w.e.f. 01.01.1996. In continuation
of the above Resolution dated 13.10.1997, another order was
issued by the Ministry of Defence on 21.11.1997. A perusal of B
the said order indicates that what was conveyed by the said order
was sanction of the President for the improvement of the pay
scales of the Officers, w.e.f. 01.01.1996. The word used in the
order is “pay scales” of the officers with effect from 01.01.1996,
which pre-supposes that improvement of the pay-scales of the
Officers has been made, who are still in the establishment. Clause C
(a) of the order is the basis of the claim of the applicants. Clause
(a) consists of two separate provisions. The first part of clause
(a) states “Officers who become substantive Majors or equivalent
on or after 01.01.1996 will be granted the scale of Lt. Colonel or
equivalent…..,”. The above clause specifically refers to those D
Officers who became substantive Majors or equivalent on or after
01.01.1996. This clause is clearly inapplicable with regard to
present applicants. The second part of clause (a), which is relied,
is “As a one time measure, however, those who became
substantive Majors or equivalent before 01.01.1996 will be
granted the scale of Lt. Colonel or equivalent on completion of E
21 years of commissioned service i.e. in their 22nd year with the
rank pay of Major”. The above quoted portion refers to grant of
scale of Lt. Colonel or equivalent on completion of 21 years of
commissioned service, i.e., in the 22nd year with the rank pay of
Major. In the Government order dated 21.11.1997, the grant of F
pay-scale of Lt. Col. or equivalent is contemplated. The second
part of the clause (a) also refers to grant of pay-scale of Lt. Colonel
or equivalent to Armed Forces Personnel. The grant of pay-scale
in next cadre is generally in reference to existing officers. [Paras
17, 18][762-B; 763-E-H; 764-A-B]
G
1.2 The above view is fortified by subsequent order dated
07.06.1999 issued by the Government, which was with regard to
“implementation of Government’s decision on the
recommendations of the Vth CPC relating to pensionery benefits
in respect of commissioned officers and personnel below officer
H
754 SUPREME COURT REPORTS [2018] 2 S.C.R.

A rank”. The said order provides that with effect from 01.01.1996
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 w.e.f. 01.01.1996 of the rank,
and rank Group (in case of PBOR) held by the pensioners. The
fixation of pension thus clearly of all retirees prior to 01.01.1996
B
is with regard to the rank, which was held by the pensioner. In
event, it was intended that the benefit of Government Order dated
21.11.1997 of giving one scale higher to the rank, which was held
by retiring officers at the time of retirement, the said prescription
ought to have found its way in the order dated 07.06.1999. Rather
C the prescription and requirement in the order dated 07.06.1999
run counter to the interpretation put by the applicant on the order
dated 21.11.1997. [Paras 19, 20][764-C, F-H; 765-A]
1.3 Para 2.1 of the order dated 07.06.1999, relating to the
the commissioned officers of both post and pre 1996 cases, also
D clearly indicates that 50% of the minimum of the revised pay
scale was introduced w.e.f. 01.01.1996 for the rank last held by
the commissioned officers at the time of his/her retirement. The
said provision does not bring any concept of giving a higher scale
of pay to one, which was held by the commissioned officers at the
time of his retirement. Thus, a plain reading of the order dated
E 07.06.1999 clearly indicates that the order dated 07.06.1999 was
issued relating to “pensionery benefits in respect of
commissioned officers” while order dated 21.11.1997 was issued
with respect to “pay and allowances of Armed Force officers.”
Thus, the subject matters of both the orders were different, which
F is clear by the reading of both the orders. The order dated
21.11.1997 was not issued with regard to commissioned officers,
who had retired prior to 01.01.1996, nor it provides for stepping
up of the pay-scale of such retiree officers, to a higher rank, i.e.
from rank of substantive Majors or equivalent to the scale of Lt.
Colonel or equivalent. [Paras 20, 21][764-F-H; 765-D-F]
G
1.4 A reading of the order dated 14.01.2000, on which also
reliance was placed by the applicants to support their contention
that earlier prescription of 21 years has been reduced to 20 years,
indicates that revised years of service required for promotion of

H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 755

substantive cadres were provided for. The promotion to A
substantive cadres, which was specifically referred to in the
Government order was clearly with regard to officers, who were
in service on 01.01.1996, which was the date for implementation
of Vth Pay Commission recommendations. The said order dated
14.01.2000 was not issued for giving any benefit to those who
B
retired prior to 01.01.1996. [Paras 22, 23][765-G-H; 767-A-B]
1.5 It is well settled that pensioners for the purposes of
pension benefit form a class and the schemes which classify
pensioners into two classes on the basis of cut off date have always
been frowned by this Court. There cannot be any dispute to
propositions that the State cannot arbitrarily pick and choose from C
amongst similarly situated persons, a cut off date for extension
of benefits especially pensionery benefits, there has to be a
classification founded on some rational principle when similarly
situated class is differentiated for grant of any benefit. However,
present is not a case where there is any discrimination in D
pensionery benefits of pre 01.01.1996 and post 01.01.1996
retirees. Para 2.1 of the order dated 07.06.1999, provides for
same principle or formula for computation of pension of both “post
and pre 01.01.1996 cases”. The applicants, based their claims
on the order of the Government of India dated 21.11.1997 and it
is already held that those who were not in service on 01.01.1996 E
could not claim any benefit of the order dated 21.11.1997. Order
dated 21.11.1997 was issued in reference to pay and allowances
of Armed Forces Officers, which pre-supposes that these officers
were in the establishment on 01.01.1996. Thus, applicants were
clearly not entitled for grant of benefit of higher pay scale under F
the order dated 21.11.1997. The orders of the Armed Forces
Tribunal extending the said benefit to those applicants who had
already retired before 01.01.1996 are set aside whereas the
orders of the Armed Forces Tribunal which have taken the view
that Armed Forces Officers, who have retired before 01.01.1996
are not entitled for pensionery benefits are upheld. [Paras 30, 31 G
and 34][770-G-H; 773-B-F]
Maj. K.G. Thomas v. Union of India & Ors. [Judgment
dated 19.12.2012 passed by Armed Forces Tribunal,
Principal Bench, New Delhi in O.A. No. 256 of 2011]
– distinguished. H
756 SUPREME COURT REPORTS [2018] 2 S.C.R.

A Col. B.J. Akkara (Retd.) v. Government of India and
Others. (2006) 11 SCC 709: [2006] 7 Suppl. SCR 58 ;
D.S. Nakara & Ors. v. Union of India (1983) 1 SCC
305 : [1983] 2 SCR 165 ; K.C. Bajaj & Ors. v. Union
of India & Ors. (2014) 3 SCC 777 : [2013] 14 SCR
1100 ; V. Kasturi v. Managing Director, State Bank of
B
India (1998) 8 SCC 30 : [1998] 2 Suppl. SCR 269 ;
Union of India & Anr. v. SPS Vains (Retd.) & Ors. (2008)
12 SCALE 360 – referred to.

Case Law Reference
C
[2006] 7 Suppl. SCR 58 referred to Para 30

[1983] 2 SCR 165 referred to Para 31

[2013] 14 SCR 1100 referred to Para 33
D
[1998] 2 Suppl. SCR 269 referred to Para 33

(2008) 12 SCALE 360 referred to Para 33

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 770-
E 771 of 2018.

From the Judgment and Order dated 29.12.2015 of the Armed
Forces Tribunal, Principal Bench, New Delhi in O. A. No. 666 of 2014,
and Order dated 06.04.2016 in Review Application No. 4/2016 in O. A.
No. 666 of 2014/Order dated 29.06.2016 in M. A. No. 431 of 2016 in R.
F A. No. 4/2016 in O. A. No. 666 of 2014

WITH

Civil Appeal No. 7989 of 2015, Civil Appeal No. 7917 of 2016 and
Civil Appeal Nos. 773-774, 2368 and 2369 of 2018.
G
Sukhjinder Singh, Alok Gupta, R. Balasubramanian, Ms. Aarti
Sharma, Prabhas Bajaj, Akshay Amritanshu, S.S. Ray, P. K. Mullick,
Mukesh Kumar Maroria, Advs. for the appearing parties.

H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 757

The Judgment of the Court was delivered by A
ASHOK BHUSHAN, J. 1. Delay condoned.
2. These appeals relate to claim of commissioned officers of all
the three wings of the Defence Forces, i.e. Army, Air Force and Navy,
who retired prior to 01.01.1996 for grant of next higher scale to one
which was held by them at the time of retirement, on the strength of the B
Government of India’s Order dated 21.11.1997 issued in consequence
of implementation of Fifth Pay Commission Report.
3. These appeals were heard in two groups. First group consisting
of Civil Appeal(arising out of Civil Appeal Diary No. 26259 of 2016) –
Suchet Singh Yadav & Ors. Vs. Union of India & Ors. and Civil C
Appeal(arising out of Civil Appeal Diary No. 25429 of 2017) – Union of
India & Ors. Vs. Lt. Cdr. C.M. Mittal & Ors., which was heard on
16.01.2018. Second group of the appeals consisting of Civil Appeal No.
7989 of 2015 – Lt. Cdr. Gurmukh Singh Vs. Union of India & ors., Civil
Appeal No. 7917 of 2016 – V.K. Mehta Vs. Union of India & Ors., Civil D
Appeal (arising out of Civil Appeal Diary No. 7231 of 2016) – Union of
India & Ors. Vs. Lt. Cdr. Bhisham Kumar (Retd.) & Ors. and Civil
Appeal (arising out of Civil Appeal Diary No. 22257 of 2017) – Union
of India & Ors. Vs. Sqn. Ldr. Jai Kumar & Ors., was heard on
02.02.2018.
E
4. The appeals have been filed both by the Defence Officers
whose claims have been rejected by Armed Forces Tribunal and by
Union of India where the claims were allowed by the Armed Forces
Tribunal. The judgments delivered by Armed Forces Tribunal, Principal
Bench, New Delhi as well as the other Regional Benches have on
different occasions expressed divergent views on the same issue. F
5. Civil Appeal(arising out of Civil Appeal Diary No. 26259 of
2016) – Suchet Singh Yadav & Ors. Vs. Union of India & Ors. and Civil
Appeal(arising out of Civil Appeal Diary No. 25429 of 2017) – Union of
India & Ors. Vs. Lt. Cdr. C.M. Mittal & Ors. have arisen against the
same judgment of the Armed Forces Tribunal, Principal Bench, New G
Delhi dated 29.12.2015 and 06.04.2016, arising out of O.A. No. 666 of
2014 filed by Sqn. Ldr. Suchet Singh Yadav & Ors. Reference of facts
and pleadings in the Civil Appeal filed by Sqn. Ldr. Suchet Singh Yadav
shall be sufficient to decide all these appeals, which raises common
questions of facts and law.
H
758 SUPREME COURT REPORTS [2018] 2 S.C.R.

A Civil Appeal(arising out of Civil Appeal Diary No. 26259 of 2016)
– Suchet Singh Yadav & Ors. Vs. Union of India & Ors.
6. Sqn. Ldr. Suchet Singh Yadav was commissioned on 27.03.1965
and he retired on 14.08.1985 while holding the rank of Sqn. Ldr. in the
Air Force. The report of Fifth Pay Commission was submitted on
B 30.01.1997 pertaining to structure of emoluments, allowances and
conditions of service of Armed Forces Personnel. The Central
Government issued order dated 13.10.1997 implementing the
recommendations with certain modification w.e.f. 01.01.1996. On
21.11.1997, the Government of India, Ministry of Defence issued an
order regarding pay and allowances of Armed Forces Officers. On
C 07.06.1999, the Government issued an order regarding implementation
of Government’s decision on the recommendations of the Vth CPC
relating to pensionery benefits in respect of commissioned officers and
personnel below officer rank. On 14.01.2000, another order implementing
Vth Pay Commission recommendations – Para 147.21 “conditions
D regarding grant of substantive rank to officers of Army, Air Force and
Navy” was issued. The appellant Suchet Singh Yadav and other fourteen
Armed Forces Officials, who held the rank of Sqn. Ldr./Major/Lt. Cdr.
respectively claim that they were entitled to fixation of their pay/pension
in the next pay-scale of Lt. Col. or equivalent in pursuance of the
Government Order dated 21.11.1997, which has been denied to them.
E Consequently, Sqn. Ldr. Suchet Singh Yadav and fourteen other Armed
Forces Officials filed O.A. No. 666 of 2014 in the Armed Forces Tribunal,
Principal Bench, New Delhi. In the Original Application, the applicants
claimed following reliefs:-
(a) The petitioner be granted pension of the rank of Wing
F Commander (Time Scale) and equivalent ranks with effect from
01.01.1996 with consequential benefits in pursuance of
implementation of 5th CPC recommendations (Para 147.21), as
approved vide Govt. of India letter dated 14.01.2000 at Annexure-
P-3 by quashing respondents communications dated 02.09.2014
G and other such communications/orders as and when issued at
minimum level in terms of Govt. of India letter dated 21.11.1997,
read with Govt. of India letter dated 07.06.1999 and
09.02.2001(granting modified parity) and Govt. of India letter dated
14.01.2000 with 12% interest.

H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 759
[ASHOK BHUSHAN, J.]

(b) The above prayers may also kindly be applied simultaneously A
to other fourteen petitioners herein, as they have joined together
to file a single petition;
(c) Pass any other relief(s), which this Hon’ble Tribunal may
deem fit appropriate, just and proper in the interest of justice and
in the facts and circumstances of the case may also be granted to B
the petitioners.
7. A Counter Affidavit on behalf of the respondents in O.A. was
filed pleading that letters of Ministry of Defence dated 21.11.1997 and
14.01.2000 are not applicable in respect of applicants, who had retired
prior to 01.01.1996. Armed Forces Tribunal after hearing the parties C
vide judgment dated 29.12.2015 dismissed the O.A. The Tribunal held
that the claim cannot be extended prior to 01.01.1996 and further they
did not complete the necessary service, which was necessary for grant
of higher pension. An application for review was filed before the Tribunal
being R.A. No. 4 of 2016. In the Review Application, it was contended
that although some of the applicants had completed 20 years but majority D
of them had completed 21 years of service prior to 01.01.1996, hence,
they would be covered by judgment of the Tribunal dated 19.12.2012 in
Maj. K.G. Thomas Vs. Union of India & Ors., O.A. No. 256 of 2011,
which judgment was also upheld by this Court. The Tribunal vide its
judgment and order dated 06.04.2016 allowed the review application of E
all the applicants except Sqn. Ldr. Suchet Singh Yadav, who was at Sl.
No.1 and those, who were mentioned at Sl. No. 11, 12 and 14. Suchet
Singh Yadav and three others, namely, Maj. H.R.Y.Rajan, Lt. Cdr. I.N.
(Retd.) R.E. Balasubramanian and Maj. Ashok Kumar Choudhary have
filed civil appeal questioning the judgments dated 29.12.2015 and
06.04.2016. The Union of India aggrieved by the judgments of the F
Tribunal dated 29.12.2015 and 06.04.2016 has filed appeal.
Civil Appeal No. 7989 of 2015 – Lt. Cdr. Gurmukh Singh Vs.
Union of India & ors.,
8. This appeal has been filed by Lt. Cdr. Gurmukh Singh aggrieved G
by the judgment of the Armed Forces Tribunal, Principal Bench dated
11.01.2012 by which claim of the appellant on the basis of the Government
order dated 21.11.1997 to give the benefit of time scale promotion in the
scale of Commander has been rejected. The appellant had retired from
the post of Lt. Cdr. on 01.10.1992.
H
760 SUPREME COURT REPORTS [2018] 2 S.C.R.

A Civil Appeal No. 7917 of 2016 – V.K. Mehta Vs. Union of India &
Ors.
9. This appeal is filed against the judgment dated 18.10.2011
refusing the claim of the appellant to grant time scale of Commander.
The appellant had also retired as Lt. Cdr. on 30.12.1995. The Tribunal
B has rejected the claim.
Civil Appeal(arising out of Civil Appeal Diary No. 7231 of 2016)
– Union of India & Ors. Vs. Lt. Cdr. Bhisham Kumar (Retd.) &
Ors.
10. The Union of India is in appeal against the order dated
C 25.02.2015 passed by the Armed Forces Tribunal by which the claim of
the respondents was allowed relying on earlier judgment of the same
Tribunal in Maj. K.G. Thomas Vs. Union of India & Ors., O.A. No.
256 of 2011 decided on 19.12.2012. The respondents had also retired on
30.09.1993 as Lt. Cdr.
D Civil Appeal(arising out of Civil Appeal Diary No. 22257 of 2017)
– Union of India & Ors. Vs. Sqn. Ldr. Jai Kumar & Ors.
11. The appeal has been filed against the judgment of the Armed
Forces Tribunal dated 14.10.2016 by which judgment the claim of the
respondents was allowed following the earlier judgment of the Tribunal
E in Maj. K.G. Thomas Vs. Union of India & Ors., O.A. No. 256 of
2011. The respondents had also retired in July, 1993 as Sqn. Ldr.
12. We have heard the learned counsel appearing for the Armed
Forces Personnel, who are appellants before us as well as learned counsel
for the Union of India. Parties are being referred to as described in the
F Original Application before the Armed Forces Tribunal, i.e., the applicants
and the respondents.
13. Learned counsel for the applicants submitted that Government
order dated 21.11.1997 granted the benefit to those who became
substantive Majors or equivalent before 01.01.1996, the scale of Lt.
G Col. or equivalent on completion of 21 years of commissioned service
i.e. in their 22nd year with the rank pay of Major. The learned counsel
for the applicants submitted that prescription of 21 years was subsequently
reduced to 20 years by order dated 14.01.2000. The applicants, who
have completed 21/20 years of commissioned service, were entitled to
scale of pay of Lt. Col. or equivalent. The stand of the respondents that
H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 761
[ASHOK BHUSHAN, J.]

the benefit of the order dated 21.11.1997 was not available to those, A
who retired prior to 01.01.1996 is incorrect and unjustified. There cannot
be any discrimination with regard to benefits of a homogeneous class of
retirees on the basis of cut off date, i.e. 01.01.1996. All those, who
retired prior to 01.01.1996 or who shall retire after 01.01.1996 are entitled
for the same benefit, i.e., stepping up of one higher scale on completion
B
of 21/20 years of commissioned service.
14. It is submitted that Armed Forces Tribunal Principal Bench
has allowed the similar claim in Maj. K.G. Thomas Vs. Union of India
& Ors., O.A. No. 256 of 2011 vide its judgment dated 19.12.2012, which
judgment has also received affirmation of this Court vide its order dated
06.02.2015 in Civil Appeal No.1843-1844 of 2015 (arising out of Diary C
No. 12209 of 2014), all the applicants are also entitled for the same
benefit. Learned counsel for the appellants has relied on various orders
passed by different benches of Armed Forces Tribunal accepting the
claim as well as on few judgments of this court, which shall be referred
to while considering the submissions in detail. D
15. Learned counsel for the Union of India refuting the submissions
contended that the applicants are not entitled to any benefit under the
order dated 21.11.1997. The order dated 21.11.1997 was issued with
regard to pay and allowances of the Armed Forces Personnel. The
order dated 21.11.1997 pre-supposes that officers are in service on E
01.01.1996. He submits that with regard to pensionery benefits to those,
who had retired prior to 01.01.1996, the Government issued another
order on 07.06.1999. The applicants, thus, are covered by the Government
order dated 07.06.1999, which had also revised their pension by stepping
up the pension in accordance with the terms and conditions of the order.
He submits that order of the Armed Forces Tribunal in Maj. K.G. Thomas F
Vs. Union of India & Ors., O.A. No. 256 of 2011, which is relied by
the applicants was confined to the facts of the said case and this Court’s
order while dismissing the appeal made it clear that judgment was limited
to the facts of that case. It is submitted that no such ratio can be read
from the order of this Court dated 06.02.2015 dismissing the appeal of G
the Union of India against the judgment of Armed Forces Tribunal in
Maj. K.G. Thomas case, which may help the applicants in the present
case. It is submitted that the argument of discrimination in extending the
pensionery benefits to those, who retired prior to 01.01.1996 and those,
who were in service after 01.01.1996 is wholly misconceived and has
been founded on misconception. H
762 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 16. We have considered the submissions of the learned counsel
for the parties and have perused the records.
17. The Government of India, Ministry of Defence vide its
Resolution dated 13.10.1997 had decided to implement the Vth pay
Commission Report w.e.f. 01.01.1996. In continuation of the above
B Resolution dated 13.10.1997, another order was issued by the Ministry
of Defence on 21.11.1997, which is the sheet anchor of the claim of the
applicants. It is useful to extract the entire order dated 21.11.1997, which
falls for consideration in the present batch of appeals. The order dated
21.11.1997 is to the following effect:-
C
“No. 1(5)/97/D(Pay/Services) GOVERNMENT OF INDIA,
MINISTRY OF DEFENCE,
NEW DELHI, 21st November 1997.

To
D
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Sub :- PAY AND ALLOWANCES OF ARMED FORCES
OFFICERS.
E
Sir,
In continuation of this Ministry’s Resolution No, 1(3)/97/D(Pay/
Services) dated 13th October 1997 notified in the Gazette of
India dated 16th October 1997 regarding implementation of pay
F and allowances etc. of the Armed Forces Officers as a result of
the recommendations of the Fifth Central Pay Commission, I am
directed to convey the sanction of the President for the following
improvement of the pay scales of the officers with effect from
1-1-1996 :-
(a) Majors and equivalent
G
Officers who become substantive Majors or equivalent on or
after 1-1- 1996 will be granted the scale of Lt. Colonel or
equivalent on their stagnation for one year in the revised scale of
Major or equivalent. Such officers will, however, continue to draw
the rank pay for Majors or equivalent.
H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 763
[ASHOK BHUSHAN, J.]

As a one time measure, however, those who become substantive A
Majors or equivalent before 1-1-1996, will be granted the scale of
Lt. Colonel or equivalent on completion of 21 years of
commissioned service i.e. in their 22nd year with the rank pay of
Major.
(b) Officers under training B
The existing stipend of Rs. 8,000/- given to officer trainees may
be converted to ‘Pay’ for all purposes on successful completion
of training. However, the period of training will not be treated as
commissioned service.
2. This issues with the concurrence of the Ministry of C
Defence(Finance) vide their U.O No. 1151/PA Gp, dated
21.11.1997.
Yours faithfully,

D
Sd/- x x x
( M.S. SOKHANDA)
Joint Secretary to the
Government of India.
Copy to all concerned.”
E
18. A perusal of the above order indicates that what was conveyed
by the said order was sanction of the President for the improvement of
the pay scales of the Officers, w.e.f. 01.01.1996. The word used in the
order is “pay scales” of the officers with effect from 01.01.1996, which
pre-supposes that improvement of the pay-scales of the Officers has
been made, who are still in the establishment. Clause (a) of the order is F
the basis of the claim of the applicants. Clause (a) consists of two
separate provisions, (the first part of clause (a) states “Officers who
become substantive Majors or equivalent on or after 01.01.1996 will be
granted the scale of Lt. Colonel or equivalent….., the above clause
specifically refers to those Officers who became substantive Majors or
G
equivalent on or after 01.01.1996. This clause is clearly inapplicable
with regard to present applicants. The second part of clause (a), which
is relied, is “As a one time measure, however, those who became
substantive Majors or equivalent before 01.01.1996 will be granted the
scale of Lt. Colonel or equivalent on completion of 21 years of
H
764 SUPREME COURT REPORTS [2018] 2 S.C.R.

A commissioned service i.e. in their 22nd year with the rank pay of Major”.
The above quoted portion refers to grant of scale of Lt. Colonel or
equivalent on completion of 21 years of commissioned service, i.e., in
the 22nd year with the rank pay of Major. In the Government order
dated 21.11.1997, the grant of pay-scale of Lt. Col. or equivalent is
contemplated. The second part of the clause (a) also refers to grant of
B
pay-scale of Lt. Colonel or equivalent to Armed Forces Personnel. The
grant of pay-scale in next cadre is generally in reference to existing
officers.
19. Our above view is fortified by subsequent order dated
07.06.1999 issued by the Government, which was with regard to
C “implementation of Government’s decision on the recommendations of
the Vth CPC relating to pensionery benefits in respect of commissioned
officers and personnel below officer rank”. The opening paragraph of
the Government Order provides :-
“Consequent on issue of Ministry of Personnel, Public Grievances
D and Pensions, Department of Pension & Pensioners’ welfare OM
No. 45/10/98- P&PW (A) dated 17.12.1998 regarding modified
provisions on grant of pension / family pension in respect of civil-
ians, the undersigned is directed to say that the President is pleased
to decide that w.e.f. 1.1.96 pension of all Armed Forces pension-
E ers irrespective of their date of retirement shall not be less than
50% of the minimum pay in the revised scale of pay introduced
wef 1.1.96 of the rank, and rank Group (in case of PBOR) all
held by the pensioner……..”
20. The above order provides that with effect from 01.01.1996
F 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 w.e.f. 01.01.1996 of the rank, and rank Group
(in case of PBOR) held by the pensioners. The fixation of pension thus
clearly is of all retirees prior to 01.01.1996 is with regard to the rank,
which was held by the pensioner, in event, it was intended that the
G benefit of Government Order dated 21.11.1997 of giving one scale higher
to the rank, which was held by retiring officers at the time of retirement,
the said prescription ought to have been found its way in the order dated
07.06.1999. Rather the prescription and requirement in the order dated
07.06.1999 run counter to the interpretation put by the applicant on the
H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 765
[ASHOK BHUSHAN, J.]

order dated 21.11.1997. Para 2.1 relates to the commissioned officers A
of both post and pre 1996 cases, which is as follows:-
“2.1 COMMISSIONED OFFICERS

POST & PRE - 1.1.96 CASES
B
(a) 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 upto 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
C
of pay introduced w.e.f. 1.1.96 for the rank last held by the
commission 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.”

21. The above provision also clearly indicates that 50% of the D
minimum of the revised pay scale was introduced w.e.f. 01.01.1996 for
the rank last held by the commissioned officers at the time of his/her
retirement. The above provision does not bring any concept of giving a
higher scale of pay to one, which was held by the commissioned officers
at the time of his retirement. Thus, a plain reading of the order dated
07.06.1999 clearly indicates that the order dated 07.06.1999 was issued E
relating to “pensionery benefits in respect of commissioned officers”
while order dated 21.11.1997 was issued with respect to “pay and
allowances of Armed Force officers.” Thus, the subject matters of both
the orders were different, which is clear by the reading of both the
orders. The order dated 21.11.1997 was not issued with regard to F
commissioned officers, who had retired prior to 01.01.1996, nor it provides
for stepping up of the pay-scale of such retiree officers, to a higher rank,
i.e. from rank of substantive Majors or equivalent to the scale of Lt.
Colonel or equivalent.

22. The order dated 14.01.2000, on which also reliance has been G
placed by the applicants to support their contention that earlier prescription
of 21 years has been reduced to 20 years also needs a comment. The
order dated 14.01.2000 issued by the Ministry of Defence was to the
following effect:-
H
766 SUPREME COURT REPORTS [2018] 2 S.C.R.

A “No. 14(1)/98/D(AG)
Government of India,
Ministry of Defence,
New Delhi, the 14th January, 2000.
To
B
Chief of the Army Staff
Chief of the Naval Staff
Chief of the Air Staff

Subject : Implementation of Vth Pay Commission
C Recommendations – Para 147.21 Conditions regarding
grant of substantive rank to officers of Army, Air Force
and Navy.

Sir,
D
In supersession of the existing orders on the grant of
substantive promotion to officers of Army, Air Force and
Navy, the President is pleased to sanction the following
revised years of service required for promotion to substantive
cadres of the following services/Corps :-
E Arms/Service/ Lt. & Equiv. Capt. Major Lt.Col.
Corps & & (TS)
Equiv. Equiv. & Equiv.
(Years) (Years) (Years)

(i) Officers On 4 10 20
F of Services completion
other than of
AMC, ADC, training
MNS, RVC,
SCO, MF, SL,
SD List
G Officers
(Navy) &
RCO Officers
……………… …………… ……… ……… …………
…………. …………. ……. …… ……

H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 767
[ASHOK BHUSHAN, J.]

23. A reading of the aforesaid order indicates that revised years A
of service required for promotion of substantive cadres were provided
for. The promotion to substantive cadres, which was specifically referred
to in the Government order was clearly with regard to officers, who
were in service on 01.01.1996, which was the date for implementation
of Vth Pay Commission recommendations. The said order dated
B
14.01.2000 was not issued for giving any benefit to those who retired
prior to 01.01.1996.
24. Much reliance has been placed by the appellant on the orders
passed by the Armed Forces Tribunal in Maj. K.G. Thomas Vs. Union
of India & Ors., O.A. No. 256 of 2011, against which order, the appeal
was also dismissed by this Court. Maj. K.G. Thomas was also an officer, C
who was holding the rank of substantive Major at the time of retirement
on 31.05.1988. O.A. No. 256 of 2011 was filed by him claiming the
grant of pay-scale of Lt. Colonel (Time Scale) in pursuance of the order
dated 21.11.1997. The Tribunal vide its judgment dated 19.12.2012
allowed the claim. Para 3, 4 and 5 of the judgment, which are relevant, D
are quoted as below:-
“3. Therefore, the grievance of the petitioner is that, either he
may be given the rank of Lt Col (TS) or in the alternative he
should be given monetary benefit as he has put in more that 21
years of service as a substantive major. It appears that so far as E
first relief is concerned, the same is not possible. The alternative
relief for grant of pay scale of Lt Col (TS) without giving him the
v.
rank of Lt Col has been acceded to by the respondents in their
reply. As per para 4.12 and para 5.8. In para 4.12 they have
stated that “as per MoD letter dated 21 Nov 1997, officers
holding the rank of substantive Major before 01 Jan 1996 are to F
be granted the scale (but not the rank) of Lt Col with rank pay of
Major on completion of 21 years of commissioned service”.
Similarly, in para 5.8, they have admitted the same position that
the petitioner is eligible for grant of scale (not rank) of Lt Col
(TS) with grade pay of Major on completion of 22 years of G
service after accounting 01 year of forfeiture of service in terms
of guidelines given in the MoD letter dated 21.11.1997.
… 4. Therefore, there is no difficulty in granting this relief to the
petitioner. Learned counsel for the respondents very fairly
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768 SUPREME COURT REPORTS [2018] 2 S.C.R.

A conceded that he deserves this benefit. However, he submitted
that the petitioner has approached this Tribunal belatedly and has
filed the present OA on 06.07.2011. Therefore, relief may be
restricted to three years only.
5. This objection of learned counsel for the respondents is upheld.
B The petitioner is held entitled to the arrears of benefit from the
three years preceding the date of filing of the petition (26.07.2011).
The respondents are directed to calculate the amount of arrears
of the petitioner and same shall be paid to him within three months
with 12% interest. The petition is allowed in part. No order as to
costs.”
C
25. A perusal of the above judgment indicates that the said judgment
was based on the concession, which was specially recorded in Para 4.
After the said judgment, the Union of India has immediately filed a review.
In the review, it was pleaded by the Union of India that benefit of the
upgradation as per the letter of the Government of India, Ministry of
D Defence dated 21.11.1997, was only to be given to those officers in the
rank of Major, who were in service on 01.01.1996. The review application
was dismissed on 09.10.2013 by Armed Forces Tribunal.
26. Taking the view that none of the contentions were raised when
O.A. No. 256 of 2011 was decided, the Tribunal held that pleas taken by
E the Union of India do not fall in the scope of review. The review was
rejected by making following observations in Para 7 of the Order :-
“7. We are of the considered opinion that the Tribunal has decided
OA 256/2011 according to the very specific admissions by the
UOI in the counter affidavit and the scope of the review is limited
F that that is whether there is an error apparent on the face of the
record or not. None of the contentions which have been raised
before us today in the review were raised before the Tribunal
when OA 256/2011 was decided and nor those documents were
produced and therefore, we are of considered opinion that the
G pleas taken by the applicant UOI do not fall in the scope of the
review of the order 19.12.2012. Order can be reviewed only
when error is apparent on the face of the record and can be
found without deep analysis of legal debatable issue. Hence,
the review application No.25/2013 is dismissed. No order
as to costs.”
H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 769
[ASHOK BHUSHAN, J.]

27. Union of India filed an appeal against the aforesaid two orders, A
which appeal was dismissed on ground of delay and also on merits by
order dated 06.02.2015. It is useful to extract the entire order passed by
this Court on 06.02.2015, which is to the following effect:-
“IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION B

CIVIL APPEAL NO. OF 2015
(D. NO. 12209 OF 2014)

UNION OF INDIA & ORS. Appellant (s)
C
VERSUS
K. G. THOMAS Respondent(s)
ORDER
Heard learned counsel for the parties. D
Besides inordinate delay, we find no merit in the appeals.
Accordingly, the appeals are dismissed on the ground of delay as
also on merits.
However, it is made clear that the order of the Armed Forces
Tribunal shall be limited to the facts of the present case, since E
according to the appellants, full facts were not brought to the
notice of the Tribunal.
It is made clear that it will be open to the appellants to bring the
full facts to the notice of the Tribunal in appropriate cases.
F

.................. J.
(KURIAN JOSEPH)

G
..................... J.
(R.K. AGRAWAL)
New Delhi;
February 06, 2015.”

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770 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 28. This Court clearly had mentioned in its order dated 06.02.2015
that order of the Armed Forces Tribunal shall be limited to the facts of
the said case, since according to the Union of India, full facts were not
brought to the notice of the Tribunal. Further, this Court clarified that it
will be open to the Union of India to bring the full facts to the notice of
the Armed Forces Tribunal in appropriate cases. The order of this Court
B
dated 06.02.2015 thus cannot be read as laying down any ratio in favour
of the applicants, which can be relied by them in the present case. In the
case of Sqn. Ldr. Suchet Singh Yadav and others, all materials were
brought on the record including filing of counter affidavit by the Union of
India. As noted above, the Armed Forces Tribunal in case of Lt. Cdr.
C Gurmukh Singh and V.K. Mehta has rejected their claim accepting the
case of the Union of India.
29. We thus are of the opinion that order of the Armed Forces
Tribunal in Maj. K.G. Thomas case is confined to that case alone and
cannot be read as any precedent, as clarified by this Court itself in its
D order dated 06.02.2015. Thus, reliance by the learned counsel for the
applicants on the case of Maj. K.G. Thomas (supra) and order of this
Court dated 06.02.2015 is misplaced.
30. As noted above, present is not a case where any discrimination
has been made by Union of India in payment of pension to those, who
E retired prior to 01.01.1996 and those, who retired after 01.01.1996. We
have already extracted Para 2.1 of the order dated 07.06.1999, which
provides for same principle or formula for computation of pension of
both “post and pre 01.01.1996 cases” This Court in the case of Col.
B.J. Akkara (Retd.) Versus Government of India and Others., (2006)
11 SCC 709 while considering the question of revision of pension of
F both pre and post 01.01.1996 retirees had observed that both have been
treated similarly, although, said observations were made by this Court
while considering the computation of pension in context of Non Practicing
Allowance of officers working in the Army Medical Corps, Dental
Medical Corps and Veterinary Medical Corps.
G 31. It is well settled that pensioners for the purposes of pension
benefit form a class and the schemes which classify pensioners into two
classes on the basis of cut off date have always been frowned by this
Court. In this context, reference is made to Para 42 of judgment of D.S.
Nakara & Ors. Vs. Union of India, (1983) 1 SCC 305, which is to
H the following effect:-
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 771
[ASHOK BHUSHAN, J.]

“42. If it appears to be undisputable, as it does to us that the A
pensioners for the purpose of pension benefits form a class, would
its upward revision permit a homogeneous class to be divided by
arbitrarily fixing an eligibility criteria unrelated to purpose of
revision, and would such classification be founded on some rational
principle? The classification has to be based, as is well settled, on
B
some rational principle and the rational principle must have nexus
to the objects sought to be achieved. We have set out the objects
underlying the payment of pension. If the State considered it
necessary to liberalise the pension scheme, we find no rational
principle behind it for granting these benefits only to those who
retired subsequent to that date simultaneously denying the same C
to those who retired prior to that date. If the liberalisation was
considered necessary for augmenting social security in old age to
government servants then those who, retired earlier cannot be
worst off than those who retire later. Therefore, this division which
classified pensioners into two classes is not based on any rational
D
principle and if the rational principle is the one of dividing pensioners
with a view to giving something more to persons otherwise equally
placed, it would be discriminatory. To illustrate, take two persons,
one retired just a day prior and another a day just succeeding the
specified date. Both were in the same pay bracket, the average
emolument was the same and both had put in equal number of E
years of service. How does a fortuitous circumstance of retiring
a day earlier or a day later will permit totally unequal treatment in
the matter of pension? One retiring a day earlier will have to be
subject to ceiling of Rs 8100 p.a. and average emolument to be
worked out on 36 months’ salary while the other will have a ceiling
F
of Rs 12,000 p.a. and average emolument will be computed on
the basis of last 10 months’ average. The artificial division stares
into face and is unrelated to any principle and whatever principle,
if there be any, has absolutely no nexus to the objects sought to be
achieved by liberalising the pension scheme. In fact this arbitrary
division has not only no nexus to the liberalised pension scheme G
but it is counter-productive and runs counter to the whole gamut
of pension scheme. The equal treatment guaranteed in Article 14
is wholly violated inasmuch as the pension rules being statutory in
character, since the specified date, the rules accord differential
and discriminatory treatment to equals in the matter of commutation
H
772 SUPREME COURT REPORTS [2018] 2 S.C.R.

A of pension. A 48 hours’ difference in matter of retirement would
have a traumatic effect. Division is thus both arbitrary and
unprincipled. Therefore, the classification does not stand the test
of Article 14.”

32. In a judgment of this Court in Col. B.J. Akkara (Retd.) Versus
B Government of India and Others., (2006) 11 SCC 709 the circular
dated 07.06.1999 was considered and it was observed that circular puts
those who retired on or after 01.01.1986 and Pre-1986 retirees on a par.
Paragraph 11 is to the following effect:-

C “11. We may first refer to the intent and purport of the circular
dated 7-6-1999. The circular dated 7-6-1999 neither prescribes
the requirements/qualifications for entitlement to pension nor the
method of determination of pension. It only effectuates the
President’s decision that the pension (which has already been
determined in accordance with the applicable rules/orders)
D irrespective of the date of retirement, shall not be less than 50%
of the minimum pay in the revised scales of pay introduced with
effect from 1-1-1996. Pension is determined as per relevant rules/
orders, by calculating the average of reckonable emoluments
(basic pay, rank pay and NPA) drawn during the last 10 months
E of service and then taking 50% thereof as the retiring pension
applicable to retirees with 33 years of qualifying service, with
proportionate reduction for retirees with lesser period of qualifying
service. The basis for calculating the pension in respect of those
who retired prior to 1-1-1996, and those who retired on or after 1-
1-1996 happens to be the same. The retiring pension is 50% of
F the average reckonable emoluments for retirees with 33 years of
qualifying service, with proportionate reduction for those with lesser
years of qualifying service. The President’s decision given effect
by the circular dated 7-6-1999 only extends to all pre-1996 retirees,
who did not have the benefit of fixation of pension with reference
G to the revised pay scales which came into effect on 1-1-1996, the
benefit of the said revised pay scales, albeit in a limited manner.
In so doing, it also puts those who retired on or after 1-1-1986 and
pre-1986 retirees on a par and on a common platform, removing
the disparity, if any, in their pensions.”

H
SUCHET SINGH YADAV & ORS. v. UNION OF INDIA & ORS. 773
[ASHOK BHUSHAN, J.]

33. Learned counsel for the appellant has also referred to judgments A
of this Court in K.C. Bajaj & ors. Vs. Union of India & Ors., (2014)
3 SCC 777; V. Kasturi Vs. Managing Director, State Bank of India,
(1988) 8 SCC 30; Union of India & Anr. Vs. SPS Vains (Retd.) &
Ors., (2008) 12 SCALE 360.

34. There cannot be any dispute to propositions laid down in above B
mentioned cases of this Court where this Court has laid down that the
State cannot arbitrarily pick and choose from amongst similarly situated
persons, a cut off date for extension of benefits especially pensionery
benefits, there has to be a classification founded on some rational principle
when similarly situated class is differentiated for grant of any benefit. C
As noted above, present is not a case where there is any discrimination
in pensionery benefits of pre 01.01.1996 and post 01.01.1996 retirees.
The applicants, base their claims on the order of the Government of
India dated 21.11.1997 and we have already held that those who were
not in service on 01.01.1996 could not claim any benefit of the order
dated 21.11.1997. Thus, present is not a case of any kind of discrimination D
and differentiation in pensionery benefits of pre and post 01.01.1996
retirees. We have already noticed above that order dated 21.11.1997
was issued in reference to pay and allowances of Armed Forces Officers,
which pre-supposes that these officers were in the establishment on
01.01.1996. We thus are of the view that applicants were clearly not E
entitled for grant of benefit of higher pay scale under the order dated
21.11.1997. The orders of the Armed Forces Tribunal extending the
said benefit to those applicants who had already retired before 01.01.1996
are set aside whereas the orders of the Armed Forces Tribunal which
have taken the view that Armed Forces Officers, who have retired before
01.01.1996 are not entitled for pensionery benefits are upheld. F
Consequently, the appeals filed by the Union of India, i.e. Civil
Appeal(arising out of Civil Appeal Diary No. 25429 of 2017) – Union of
India & Ors. Vs. Lt. Cdr. C.M. Mittal & Ors.; Civil Appeal(arising out
of Civil Appeal Diary No. 7231 of 2016) – Union of India & Ors. Vs. Lt.
Cdr. Bhisham Kumar (Retd.) & Ors. and Civil Appeal(arising out of G
Civil Appeal Diary No. 22257 of 2017) – Union of India & Ors. Vs.
Sqn. Ldr. Jai Kumar & Ors. are allowed and those of the applicants i.e.
Civil Appeal(arising out of Civil Appeal Diary No. 26259 of 2016) –
Suchet Singh Yadav & Ors. Vs. Union of India & Ors.; Civil Appeal

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774 SUPREME COURT REPORTS [2018] 2 S.C.R.

A No. 7989 of 2015 – Lt. Cdr. Gurmukh Singh Vs. Union of India & ors.;
and Civil Appeal No. 7917 of 2016 – V.K. Mehta Vs. Union of India &
Ors., are dismissed.

Divya Pandey Appeals disposed of.
B

C

D

E

F

G

H