Indu Malhotra, J. - (1.) The present Civil Appeal has been filed under Section 30 of the Armed Forces Tribunal Act, 2007 to challenge the judgment and order dated February 25, 2010 passed by the Principal Bench of the Armed Forces Tribunal, New Delhi in Transfer Application No. 492 of 2010. 1.1 The three appellants had enrolled in the Indian Navy as Sailors, and subsequently joined the Submarine Arm. After being promoted through the ranks, all three appellants superannuated from service on January 31, 1983. While Appellant No. 1 was holding the rank of Chief Petty Officer (ERAII), Appellant Nos. 2 and 3 were holding the rank of Chief Engine Room Artificer in the Submarine Arm of the Indian Navy at the time of their superannuation. 1.2 Initially, the appellants were not granted pensionary benefits on account of the noninclusion of their fouryear training period, while computing their qualifying service. Aggrieved by the same, the appellants filed a Writ Petition before the Delhi High Court which was allowed in terms of the decision of this Court in Anuj Kumar Dey v. Union of India, 1997 1 SCC 366. 1.3 Pursuant to the said judgment, the appellants started getting pensionary benefits. The pension of the appellants was computed on the basis of the pay of a Chief Petty Officer. 1.4 On February 8, 2005, Appellant No. 3 made a representation to the Bureau of SailorsRespondent No. 3 for a clarification whether Submarine Pay of Rs. 300 per month, which was being granted to them after joining the Submarine Arm, was included for computing the pension payable. It was submitted that Submarine Pay was a component of their "pay", and not an "allowance". 1.5 On March 29, 2005 Respondent No. 3 rejected the representation stating that Submariners and Aviation Sailors were categorized under the group "Other than A", which is lower than Group A, and that the pensionary benefits granted were "in order". 1.6 The three appellants being aggrieved by the refusal of the respondents to take into account Submarine Pay while calculating pension payable to them filed separate Writ Petition Nos. 1914547 of 2006 before the Delhi High Court. 1.7 During the pendency of the Writ Petitions, the Armed Forces Tribunal Act, 2007 came into force. The Writ Petition Nos. 1914547 of 2006 were transferred to the Principal Bench, Armed Forces Tribunal, New Delhi and renumbered as Transfer Application No. 492 of 2010. 1.8 The Armed Forces Tribunal disposed of the Transfer Application No. 492 of 2010 by a cryptic Order dated February 25, 2010 wherein it was merely mentioned that submarine pay/allowance cannot be counted for the purpose of determining pension.
(2.) Aggrieved by the impugned order, the appellants preferred the present Civil Appeal. 2.1 The appellants have submitted that Submarine Pay would form part of their basic pay, and hence ought to be included for computation of Service Pension. This was for the reason that Sailors working in the Submarine Arm of the Indian Navy were granted Submarine Pay on account of the highly dangerous nature of the work undertaken, and the arduous conditions in which they had to function. 2.2 It was further submitted that Submarine Pay was included in the Last Pay Drawn Certificate dated August 10, 1983. In contrast, Sailors who were not working in the Submarine Arm, were not being granted this additional pay. The appellants gave the illustration of one M.V. Kumaran who was not working in the Submarine Arm. He was not being granted Submarine Pay, on account of the difference in the nature of duties performed. 2.3 The appellants further submitted that since they belonged to the group "Other than Group A" they were entitled to higher rates of pay as specified in Appendix A, Clause 3 of the Navy Instructions No. 2/S/74 dated August 17, 1974. 2.4 Reliance was placed on two decisions of this Court in BALCO Captive Power Plant Mazdoor Sangh and another v. National Thermal Power Corporation and others, 2007 14 SCC 234 and Paradeep Phosphates Limited v. State of Orissa & ors. [Civil Appeal Nos. 39973998 of 2018 decided on April 19, 2018 to contend that conditions of service cannot be altered to the detriment of employees.
(3.) Per contra, the case of the Respondents is that the amount received under the head of Submarine Pay is an "allowance", and hence cannot be included for the purposes of computing Service Pension. 3.1 It was contended the head of Submarine Pay was listed as an allowance under Appendix B of the Navy Instruction No. 2/S/74 dated August 17, 1974. 3.2 It was further submitted that any allowance, including Submarine Pay, were not treated as reckonable emoluments for the purposes of computing Service Pension. 3.3 The respondents submitted that pursuant to the Fifth Pay Commission, Special Pays like Flying Pay, Submarine Pay, Technical Pay etc. were redesignated as allowances vide GoI/MoD Letter 4(1)/2001/D(Pay/Services) dated March 01, 2004.;