PRE 2006 PENSIONERS COURT PROCEEDINS IN BRIEF

Note:  Union of India & Ors. vs. Central Government SAG & Ors. – W.P (C) No. 1535/2012

Brief:  Note of the proceedings before Court No. 3 (Division Bench) of the Delhi High Court on 04.05.2012

(Prepared by Adv Vasav Anantharaman for Sr Adv. Mrs. Minakshi Arora)

The above captioned petition was called out for hearing today. For the Petitioner, Senior Advocate A.S. Chandhioke appeared, while Senior Advcoate Mr. Nidhesh Gupta appeared for the Respondent.

Mr. Nidhesh Gupta made only one statement, in the initial absence of Mr. Chandhioke, wherein he stated that the clarificatory notification dated 03.10.2008 could not be held valid inter alia on the ground that such clarification was issued by a Junior officer, without any approval. It was further contended by Mr. Gupta, and appreciated by the Hon’ble Court, that such clarification, if required to be issued, could have been issued only by either the same authority who issued the first notification dated 01.09.2008, or someone of equivalent or higher authority.

At this juncture, Mr.A.S. Chandhioke appeared, and began his arguments.

Arguments on behalf of Mr. A.S. Chandhioke, Counsel for the Respondents :

1.     At the outset, Mr. Chandhioke stated that his arguments would be restricted to the OM’s issued prior to the clarificatory OM dated 03.10.2008 only i.e. he would addressing and interpreting only the Notification dated 29.08.2008, and subsequent OM’s dated 01.09.2008 and 02.09.2008.

2.     Mr. Chandhioke underlined that two crucial dates to the Hon’ble Court for the purpose of the present petition, i.e. 31.12.2005, and 01.01.2006.

3.     As per 6^th Pay Commission, the concept of ‘Pay Scale’ was modified to the concept of ‘Pay Band’. As a result of the same, the pay was calculated as per the Pay Band, which was fixed, in addition to which a Pay Grade was provided. He submitted that there was no dispute between the parties as to the concept of ‘pay grade’.

4.     Mr. Chandhioke further emphasized that as a result of the cut-off date of 01.01.2006, two broad categories of persons were created i.e. persons who retired ‘Pre-2006’, and thus were only connected to the Government Dept. for the purpose of ‘pension’, and persons who continued ‘Post-2006’, and thus included people who remained employees.

5.     On the basis of the above, Mr. Chandhioke raised a query as to whether the two broad categories of people mentioned above, i.e. ‘Pre-2006’ and ‘Post-2006’, are at par?

6.     Mr. Chandhioke proceeded to lead to Hon’ble Court through the impugned judgment of the CAT para-wise.

7.     Re: Para 8,  9  - Mr. Chandhioke submitted that as per these paras, Pensionary benefits to pre-2006 and Post-2006 persons cannot be the same.

8.     Re: Para  12 – Mr. Chadhioke laid emphasis that at the CAT referred to ‘Clarificatory OMs’ (Plural), and thus referred to both OM’s dated 03.10.2008 as well as 14.10.2008.

9.     Re: Para 13 – Mr. Chandhioke submitted that as per recommendation and decision of the Govt., there is no dispute that the persons pre-2006 have been not been put on par with persons Post-2006. Mr. Chandhioke laid emphasis on the following sentence at  Para 13 which states - “This is consistent with the fitment ebenfit being allowed in case of the existing employees”.

10.                        Mr. Chandhioke further submitted that as per the recommendation, there had been an increase of 2.26 times in the pension of the Pre-2006 retirees.

11.                        Re: Para 13 – Mr. Chandhioke further submitted that as per S. No. 12 (stated at Para 13 of the impugned order of CAT), the phrase ‘The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower…’ indicated that first, the  pension was to be calculated as per the method of calculation provided for in the first half of S. No. 12, and if the amount arrived failed to equivalent or more than the amount calculated as per ‘50% sum of the minimum…’ method, only then would the second half of S. No. 12 come in consideration.

Mr. Chandiooke further submitted that Cl. 4.1 of the OM dated 01.09.2008  provided for method for fixation of pension. If pension, as calculated as per Cl. 4.1 + 2.26 times would be less than Rs. 37, 400 (provided in PB-4), then it shall be hiked to the minimum amount provided as per Cl. 4.2.

12.     Mr. Chandhioke proceeded to submit :

·        fixation of pay differs from fixation of pension.

·        By virtue of OM dated 14.10.2008, the minimum ‘Pay in the Pay band’ of the ‘existing employees’, as on 01.01.2006, , was fixed at Rs. 44, 700/-.

·        As per requirements in the impugned order of the CAT, the basic pay in the pay band, for the purpose of calculation of pension for Pre-2006 pensioners was also be taken as Rs. 44, 700/-.

13.     It was further submitted by Mr. Chandhioke that two different classes of pensioners were created by the two OM’s dated 01.09.2008 and 02.09.2008 respectively, and the same was upheld in the impugned order by the CAT.

14.     Mr. Chandhioke proceeded to make the following submission : A ‘higher pay’  can be fixed for an existing employee vis-à-vis a retired employee, by virtue of that fact that he is an existing employee on the date, and actively working for the employer, and that such fixation of a higher pay for the existing employee has no bearing or effect on those employees who have already retired.

15.     At this juncture, the Hon’ble Court made an observation that fixation of the pay of an existing employee, Post-2006 in the present case, may have an effect on the pension of a person who has retired Post-2006.

16.     Re:  Para 16 – Mr. Chandhioke pointed out that the observation of the CAT that “The use of the words ‘sum of’, ‘and’ and ‘thereon’ leaves no doubt that both minimum of pay in the pay band and the grade pay have to correspond to the pre-revised pay scale.” was incorrect.

          The Hon’ble Court agreed with Mr. Chandhioke, and noted that the above sentence did not make sense, and was incorrect.

17.     The Hon’ble Court proceeded to note that the case of the Pre-2006 retirees is that the pension should be calculated using the formula – 50% of (44, 700 + 10, 000), and not 50% of (37, 400+10000).

18.     Mr.Chandhioke pointed that the amount of Rs. 44, 700 was ‘Pay fixed’ within the pay band. He further submitted that if the pension for the Pre-2006 retirees was granted as per the prayer as noted by the Hon’ble Court, then as an effect, a person who retires after 01.01.2006 will not get the pension as per the formula of  50% (44, 700+10000), and instead his pension shall be calculated as per 50% of (37, 400+10000).

19.      The Hon’ble Court posed the question as to whether an increase of pay to Rs 44, 700 within the pay band would result effectively in modifying the basic pay band itself, i.e. 37, 900 – 67000?

20.     Mr. Chandhioke proceeded to conclude by placing the following submissions:

·        Fixation of pay to existing employees cannot change or affect the pensionary benefits available to retired employees.

·        That as per the resolution, fitment benefit has been given at par with existing employees, and thus parity has been achieved.

·        That there is a difference between ‘Pay band’ and ‘fixation of pay’ (being the amount of Rs. 44, 700).

21.     The Hon’ble Court raised the following issue for determination – What will be the minimum pay in the pay band i.e. whether it shall be the starting/minimum amount stated in the Pay Band (i.e. Rs. 37, 400), or whether it shall be the minimum pay ‘fixed’ within the pay band (i.e. Rs. 44, 700)?

22.     The Hon’ble Court fixed the next date of hearing for 07.05.2012, and stated that the statement of the counsel for the Respondent in order dated 19.03.2012 that they shall not be pressing the contempt application before the Tribunal till the next date of hearing shall continue to remain in effect.

Note: - Union of India and Anr vs. Central Government SAG and Ors. – Proceedings dated 07.05.2012

Mr. Nidesh Gupta, Senior Advocate, commenced his arguments for the Respondent, and submitted the following points: -

1.    Mr. Gupta stated that he had two broad submissions:

a.    Reading of the 6^th Pay Commission Recommendation, as accepted by the Central Government, would show that the order of the CAT is correct.

b.    Supreme Court has held in various cases that classification based on “Pre-Post Date of Retirement” is bad in law.

2.    Mr. Gupta submitted that only ‘modified parity’ was sought by the pre-2006 pensioners, and not absolute parity.

3.    Mr. Gupta submitted that  Post-2006 ‘Serving’ employees will benefit and get much more after implementation of the CAT order, and that it does not affect them adversely.

4.    With reference to the notification dated 29.08.2008 and page 121 of the Paper-book, Mr. Gupta submitted to the Court that as per the recommendation of the 6^th Pay Commission, the pay-band recommended for S-24 was 15, 600-39, 100. However, the Central Government placed S-24 in the band (37, 400 – 67000).

5.    Mr. Gupta submitted that only with reference to S-28 and S-29, the Pay Commission had recommended ‘More than 37, 400-67000), but the Central Government placed S-28 and S-29 in the band (37, 400-67000).

6.    Thus, by the above submission, Mr. Gupta sought to show the Court that S-28 and S-29 were clearly prejudiced and were placed in a category lower than that which was recommended, whereas the Post/Grades below S-29, (S-24 onwards) have been upgraded, and given more than that which was recommended.

7.    Mr. Gupta proceeded to show the Hon’ble Court that the terms used in Para 5.1.47 of the Resolution dated 29.08.2008 were “…shall in not case be lower than 50% of the sum  of the pay in the pay band and the grade pay thereon corresponding to the prerevised pay scale from which the pensioner had retired.”

8.    Mr. Gupta proceeded to emphasize that the term “Minimum of the Pay in the Pay Band” is not the same as “Minimum of the Pay Band” , as was the effect of the clarificatory notification struck down by CAT.

9.    Mr. Gupta stated that the term “Minimum of the Pay in the Pay Band… corresponding to the pre-revised pay scale from which the Pensioners had retired” would necessarily mean the ‘Minimum Pay’ given in the pay band, i.e. Rs. 44, 700/-, and thus the pre-2006 pensioners would be entitled to use Rs. 44, 700/- in the formula for calculation of pension provided.  Mr. Gupta submitted that this would form ‘modified parity’, as defined by the Pay Commission, as a post-2006 person continuing after 01.01.2006, would in any case be entitled to a minimum pay of Rs. 44, 700/-, and if and when he/she would retire, his/her pension would be calculated on the pay last drawn by him, which shall necessarily be equal to or more than Rs. 44, 700/-. Thus, the parity achieved would be ‘modified parity’.

10. Mr. Gupta submitted that even the Govt. realized that the interpretation of OM dated 01.09.2008 will lead to the above interpretation, and thus issued the ‘clarificatory OM’, to rectify their mistake.

11. Mr. Gupta bolstered the above argument by stating that the Pay Commission  had never recommended ’37, 400’ for S-29 level, and had instead recommended ’39, 200’ in the first place.

12. Mr. Gupta argued that the term “Minimum Pay in the pay band” would correspond to Rs. 44, 700/- and the same thus must be used in the formula provided.

13. Mr. Gupta referred to the submission of Mr. Chandhioke that the OM was pertaining to ‘Fixation of Pay’ and not ‘Fixation of Pension’. Mr. Gupta rebutted the above submission by stating that the fixation of Pension for even Pre-2006 pensioners has been worked out on the basis of the same OM pertaining to ‘Revision of Pay’, and thus it was applicable to Pre-2006 pensioners as well.

14. The Hon’ble Court, before adjourning the matter to the next date of hearing, observed that the word ‘corresponding” as used in 5.1.47 of the notification dated 29.08.2008 and 4.2 of the OM dated 01.09.2008 were only used to determine the pre-revised scale, and not the ‘pay’ in that pre-revised pay scale.

15. The Hon’ble Court ordered that the contempt application of the Respondent before the CAT shall remain as not pressed till further orders.

16. Mr. Nidesh Gupta shall continue his submissions on 21.05.2012.

                                                                            

LIC PENSIONERS NEWS

AIIPA MEETS LIC CHAIRMAN

Posted: 08 May 2012 02:39 AM PDT

   

A delegation of AIIPA met Current-in-Charge Shri D.K. Mehrotra and others at Central Office, Mumbai. The delegation conveyed the resent and the disappointment of LIC pensioners over non-resolution of their genuine issues for such a long time and insisted the LIC officials finding a way to get the issues resolved without any delay.

Stressing on the issue of increase in ex-gratia for the pre-1986 retirees, AIIPA also  reminded them of the advanced age of the pensioners and told that the delay in decision-taking has already deprived scores of pensioners of their legitimate benefits and that any further delay in finding solutions would only add to the number of deprived pensioners.

 AIIPA conveyed its displeasure that even on issues such as increase in quantum of ex-gratia paid to the pre-1986 retirees where the Government's approval or notification was not required, no decision was forthcoming and the retirees who are already above the age of 86 are finding it financially difficult with the pittance of the amount of ex-gratia fixed 15 years back and wanted immediate decision on increase in the quantum.

Shri Mehrotra replied that the management recognized the past services and contributions of the pensioners to the institution and could also understand the feelings of the pensioners and said that efforts were being made continuously for getting solutions to some of these issues, if not all.

Cashless medical treatment  -  AIIPA wanted the facility of cashless medical treatment throughout the country and also financial assistance to LIC pensioners for high cost treatment to be considered by LIC.  The officials informed that some scheme for cashless medical treatment in select centres and in select hospitals to start with, is under consideration and depending on its experience, the same may be extended to other places.  They further told the delegation that creation of a Welfare Fund for the pensioners for providing financial assistance for High Cost medical treatment over and above the eligible Group Medi-claim amount is also under consideration by LIC.  They assured of their early decision on these issues.

AIIPA also met Smt. Aruna Seth, Secretary and pursued some of the issues like resignation to be considered as VRS for purposes of sanction of pension as has been ordered by  Supreme Court and recovery of premium for Group Medi-claim Scheme from the pension, etc.

. 

LIC PENSIONERS CONTEMPT PETITION LATEST MEWS

CONTEMPT PETITION POSTED TO 9TH JULY 2012

Posted: 06 May 2012 06:58 PM PDT

IN THE CONTEMPT PETITION IN SC THE NOTICES HAVE BEEN

ISSUED BY REGISTERED POST AS UNDER:

The contempt petitions above-mentioned were listed before this court

 on 19^th April, 2012, when the Hon’ble Court was pleased to pass the

following order:-

“ Issue Notice.

The personal appearance of the alleged contemnors respondents is dispensed

with for the time being”.

Whereas your attendance is necessary to answer a charge of contempt of this

Court as alleged in the Contempt Petitions.

You are hereby required to appear either through counsel or in person before

this court at New Delhi on 09.07.2012 at 10.30 o clock in the forenoon.

You shall attend the court either through counsel or in person on 09.07.2012

 and shall continue to attend the Court on all days thereafter to which the case

against you stands adjourned and until final orders are passed on the charge

 against you.

PRE 2006 CENTRAL PENSIONERS LATEST NEWS

• Mr. Nidhesh Gupta, Senior Advocate for the Respondents (Pensioners) started his arguments in the High Court on 7-5-2012 in WP 1535-2012 - on the issue of Modified Parity of Pension to the Pre-2006 Pension - as per accepted recommendations of Sixth CPC - with the Minimum Revised Pension being not less than 50% of the Pay in the Pay Band plus Grade Pay of the scale from which one retired - as up-held by PB CAT New Delhi Judgment in OA 655 / 2010. Further hearing will continue on Monday 21st May, 2012

RAJYA SABHA COMITTEE REPORT ON OROP

C.S.II. -142
RAJYA SABHA
COMMITTEE ON PETITIONS
HUNDRED AND FORTY-SECOND REPORT
ON
PETITION PRAYING FOR GRANT OF ONE RANK ONE PENSION TO THE
ARMED FORCES PERSONNEL
(Presented on 19 December, 2011)
RAJYA SABHA SECRETARIAT
NEW DELHI
December, 2011
CONTENTS
PAGES
1. COMPOSITION OF THE COMMITTEE
i
2. INTRODUCTION
ii-iii
3. REPORT
4. *APPENDICES
I.
Petition signed by Shri Sanjay Prabhu r/o Bangalore and others
praying for grant of one rank one pension to the armed forces
personnel.
II
Comments on the petition received from D/o Ex-servicemen
Welfare (M/o Defence)
III Comments on the petition received from D/o Expenditure (M/o
Finance)
IV Comments on the petition received from D/o Pensions &
Pensioner’s Welfare (M/o Personnel, Public Grievances and
Pensions)
V Minutes of the meetings of the Committee
5.
*ANNEXURES
I. List of organizations/individuals appeared before the
Committee
II Background Note on the petition received from Indian Army
*to be appended at printing stage.
Composition of the Committee
(2010-11)
1. Shri Bhagat Singh Koshyari - Chairman
2. Shri Ram Vilas Paswan
3. Shri Nandi Yellaiah
**4. Shri Rajeev Shukla
5. Shri Avinash Pande
6. Shri Balavant alias Bal Apte
*7. Shri P. Rajeeve
8. Shri Veer Pal Singh Yadav
9. Shri Paul Manoj Pandian
10. Shri Rajaram
Secretariat
Shri Deepak Goyal, Joint Secretary
Shri Rakesh Naithani, Joint Director
Shri Ashok K. Sahoo, Deputy Director
Shri Goutam Kumar, Assistant Director
______________________________
* Nominated w.e.f. 6th December, 2010 in lieu of Shri Moinul Hassan
** Ceased to be Member w.e.f. 12th July, 2011 on being inducted into Council of Ministers
i
INTRODUCTION
I, the Chairman of the Committee on Petitions, having been authorized by the
Committee to submit the Report on its behalf, do hereby present this one Hundred
Forty-second Report of the Committee on the petition signed by Shri K. Sanjay Prabhu,
r/o Bengaluru and others praying for grant of one rank one pension to the armed forces
personnel (Appendix-I). The petition was countersigned by Shri Rajeev
Chandrasekhar, Member, Rajya Sabha,
2. The petition was admitted by Hon'ble Chairman, Rajya Sabha on 15th March,
2011 under the provisions of Chapter X of the Rules of Procedure and Conduct of
Business in the Council of States. In accordance with Rule 145 of the said Rules, the
petition was presented to the Council on 18th March, 2011 by the Member who had
countersigned it, after which it stood referred to the Committee on Petitions for
examination and report in terms of Rule 150 ibid.
3. The Committee issued a Press communiqué inviting suggestions from interested
individuals/organizations on the subject matter of the petition. In response thereto,
more than 200 hundred memoranda were received by the Secretariat. The Secretariat
scrutinised those memoranda and a gist thereof has been suitably incorporated in the
Report.
4. The Committee heard the petitioner and others on the petition in its sitting held
on 4th May, 2011. The Committee also heard certain organizations/ individuals, who
had submitted their memoranda on the issues raised in the petition in its sitting held on
16th May, 2011. The Committee heard the Secretary, Department of Ex-Servicemen
Welfare (M/o Defence) on 27th May, 2011 and Secretaries, Department of Expenditure
(M/o Finance) and Department of Pensions and Pensioner's Welfare (M/o Personnel,
Public Grievances and Pensions) on 15th July, 2011 on the issues connected with the
petition.
4.1 Based on the inputs received, the Committee once again heard Secretaries,
Department of Expenditure (M/o Finance) and Department of Ex-Servicemen Welfare
(M/o Defence) on 1st August and 14th November, 2011, respectively. It considered the
draft Report in its sitting held on 16th December, 2011 and adopted the same.
5. The Committee while formulating its observations/recommendations, has relied
on the written comments of the concerned Ministries, oral evidence of witnessesofficial
as well as non-official, feedback received in response to the Press Release,
observations of the Members of the Committee and interaction with others.
ii
6. For facility of reference and convenience, the observations and
recommendations of the Committee have been printed in bold letters in the Report.
NEW DELHI BHAGAT SINGH KOSHYARI
December 16th, 2011 Chairman
Agrahayana 25, 1933 (Saka) Committee on Petitions
iii
REPORT
A petition signed by Shri K. Sanjay Prabhu, a resident of Bengaluru and others
countersigned by Shri Rajeev Chandrasekhar, M.P. (Rajya Sabha) praying for grant of
one rank one pension to the armed forces personnel was submitted to the Council of
States on 29th October, 2010 (Appendix-I).
2. The petitioners have contended that various associations/movement and other
organizations of Ex-servicemen of Country's Armed Forces have time and again
pleaded to the Government of India demanding for one rank one pension in order to
address the sense of hurt, injustice and dishonour in the armed forces and bring parity
in the pensionary benefits for the retired personnel of Armed Forces. They have
submitted that prior to the Third Central Pay Commission, the pension of Armed Forces
personnel was regulated by Pension Regulation exclusively keeping in view the
peculiarity and gravity of the service conditions to which the soldier is subjected to in
peace, and the danger to which he is exposed in war, the inevitable need to retire a
soldier much earlier than the normal age of superannuation enjoyed by the other
central Government employees, the difficulty in getting a soldier to rehabilitate in
civilian work of life after retirement, and last but not the least, the sacrifice that the
family, and more so, the children of the soldier are called upon to offer to the country.
It was decided by the then Government to grant pay and perks that a soldier deserves by
virtue of his contributions to the motherland and to keep his status and living standards
quite high without comparison with civilian employees. At that time, the pension was
based on the rank of retirement provided that he has put in the minimum required years
of service. Every armed forces personnel are entitled for one rank one pension which
took care of his needs and it was based on principles of reward for his sacrifices.
2.1 But unfortunately, after the Third Central Pay Commission, the pension formula
as applicable in that civilian pension rules was extended to the armed forces pensioners
also through a Government administrative order. This ex-parte decision has denied one
rank one pension to the ex-armed forces personnel which is the cause of all troubles
and resentment amongst them. Accordingly, the petitioners have prayed that the
Government should accept the long pending demand of Ex-servicemen for one rank
one pension on priority basis to honour those who defended our motherland and the
commitments made by the Government from time to time on this issue be honoured
without any stipulations or conditions.
Concept of One Rank One Pension
3. One Rank One Pension (OROP) implies that uniform pension be paid to the
Armed Forces Personnel retiring in the same rank with the same length of service
irrespective of their date of retirement and any future enhancement in the rates of
pension to be automatically passed on to the past pensioners. This implies bridging the
gap between the rate of pension of the current pensioners and the past pensioners, and
also future enhancements in the rate of pension to be automatically passed on to the
past pensioners. In armed forces, equality in service has two components, namely, rank
and length of service. The importance of rank is inherent in armed forces as it has been
granted by the President of India and signifies command, control and responsibility in
consonance with ethos of service. These ranks are even allowed to be retained by the
individual concerned after his/her retirement. Hence, two armed personnel in the same
rank and equal length of service should get same pension irrespective of date of
retirement and any future enhancement in rates of pension be automatically passed on
to the past pensioners.
4. The Ministry of Defence (Department Ex-servicemen Welfare) which is the
nodal Ministry for the petition in their initial comments has mentioned that this
grievance of armed forces personnel has been got examined by various
Committees/Commissions1 in the past but it was not found acceptable by the
Government due to various reasons. The Ministry has further stated that the
improvement in pension of armed forces personnel is an ongoing process and
substantial improvement in the pension of ex-servicemen has been brought about as a
result of implementation of the Cabinet Secretary Committee’s recommendations.
4.1 That said Committee of Cabinet Secretary did not agree to the demand of one
rank one pension, but it made seven recommendations aimed at narrowing the gap
between earlier and current pensioners. All the recommendations made by the
Committee were accepted by the Government and orders implementing the same were
also issued. With the implementation of that Committee's recommendations, the
following improvements have been brought about by the Government:-
(i) Pre 10.10.1997 Post Below Officers Rank (PBOR) pensioners have been
brought at par with post 10.10.1997 pensioners.
(ii) The enhanced rate of classification allowance will be reckoned w.e.f.
01.01.2006 on notional basis for the purpose of calculation of pension.
(iii) Pension of all pre 01.01.2006 PBOR pensioners will be reckoned with
reference to notional maximum in the post 01.01.2006 revised pay structure
corresponding to the maximum of pre Sixth Pay Commission pay scales as per
fitment table of each rank with enhanced weightage awarded by Group of
Ministers.
(iv) Linkage of full pension with 33 years of qualifying service has been removed
w.e.f. 1.1.2006 instead of 1.9.2008 in the case of Commissioned Officers.
(v) Separate pay scale of 67000-79000 has been created to addressed the issue of
disparity in pension of pre and post 1.1.2006 pensioners at the level of Lt.
General and equivalents in other two Services, so as to enable them to get
pension at 36,500/-.
(vi) Benefit of broad banding of percentage of disability/war injury pension has
been provided for pre 1.1.1996 disability/war injury pensioners.
(vii) Cap on war injury element of pension in the case of disabled pensioners
belonging to category E stands removed.
1Third Central Pay Commission, 1973, Fourth Central Pay Commission, 1986, High Level Empowered Committee,
1991, Fifth Central Pay Commission, 1996, Inter-Ministerial Committee, 2003, Group of Minister, 2005, Sixth
Central Pay Commission, 2006, Cabinet Secretary Committee and Standing Committee on Defence.
Petitioners’ oral submission (4th May, 2011)
5. The petitioners have submitted that ex-servicemen have been getting lower
pension than their younger counterparts in the same rank, particularly after
implementation of Third Central Pay Commission Report. The petitioners made a
power-point presentation inter alia covering various Supreme Court judgments on the
issue, comparison of pay and pension scheme for armed forces in countries like the
USA, UK and Singapore, justification for the prayer for one rank and one pension, etc.
The petitioners also submitted that the prayer for grant of one rank one pension has
been opposed by the Government mainly on financial, legal and administrative grounds
which could be resolved with the intervention of the Committee. The petitioners prayed
to the Council of States for one rank one pension for ex-servicemen irrespective of their
date of retirement.
Deposition of Department of Ex-Servicemen Welfare (M/o Defence) (27th May,
2011)
6. The Secretary (ESW), Ministry of Defence in her deposition stated that the
concept of one rank one pension signifies that for the same length of service for the
same rank, the incumbent must get the same benefit, same emoluments and same
pension. Any enhancement in any of these at any point of time by the Government
must be passed on to all the past employees. She also informed that Government over
the years has found it difficult to accept this concept of OROP in toto due to three
reasons which are financial, administrative and legal.
6.1 Under financial constraint, she informed that if OROP is to be implemented in
toto, the financial burden incurred as calculated by Central Government Defence
Accounts is 3,000cr per year. Under administrative constraint, it was contended by
her that to implement the OROP and to pass on all the benefits to all those exservicemen
living today is administratively, a gigantic task. There is retention schedule
of records of the defence pensioners and after a period of 25 years, the records are no
longer available. There is administrative difficulty in introducing of concept for which
there is no cut-off date, as records of early 80s are manually maintained. Coming to the
legal constraint, she informed that the Law Ministry in its opinion and Supreme Court
in its judgement have said that a cut-off date for any emolument given by the
Government to its employee is valid under the Constitution and the Government is
entitled to have a cut-off date for any emolument. Further, she added that if today's
pension and emoluments are passed on automatically to somebody who retired 30 years
ago there will be inherent discrimination against the terms and conditions of service or
the qualifications of service that one is entitled to fulfill, which would also lead to
discrimination under the Constitution. She added that the Ministry of Law, based on
these two basic tenets and the judgements of the Supreme Court gave an opinion
against full OROP.
6.2 The representatives of the Indian Army submitted that the OROP was in
existence before the Third Pay Commission. With the conversion of running pay band
under Sixth Central Pay Commission, a large number of ranks were grouped and one
running pay band was made and the pensioners were given the benefits of the lowest of
a pay band, which means the pension of a retired Lieutenant Colonel and the pension of
a retired Major General was fixed at 37400 in PB-4. He further added that if the
previous regime was continuing, then pensions would have been fixed at the lowest of
the pay scales on which they were retiring. Thus, the disparity has aggravated after the
implementation of the Sixth Central Pay Commission.
6.3 He further added that the Assured Career Progression (ACP) scheme introduced
in Sixth Central Pay Commission was not passed on to the past pensioners, although,
precedent regarding implementation of such schemes to the past pensioners exists in
armed forces. For example the rank pay which was not in existence before 1986 has
been extended to even pre-1986 pensioners. Therefore, ACP which has been introduced
from 1st September 2008 should also be extended to the previous pensioners.
6.4 He further submitted that there is administrative difficulty on the part of the
Ministry that pensioners cannot be given increment every year. So, perpetually they
will never be at par with current retirees. As a way out, he suggested fixing a period of
five years or every Pay Commission to Pay Commission, for bringing all pensioners at
par. He suggested a similar exercise for the family pensioners also.
6.5 The representative of the Air Force submitted that to bridge this gap the
suggestion regarding fixation of pay in five-year period or Pay Commission to Pay
Commission was a good one and informed the Committee that the long pending issue
may be sorted out this way.
6.6 The representative of the Indian Navy apprised the Committee about the unique
life and difficulties which were experienced by a man in uniform. He stated that the
family as well as the men in uniform was living in such a difficult conditions and they
had to sacrifice so much in their life that special recognition should be given to boost
the morale of the Armed Forces. He also added that even after retirement, a man in
uniform cannot pursue any other business and they have a very limited job opportunity
after retirement.
Deposition of Department of Expenditure (M/o Finance) (15th July & 1st August,
2011)
7. The Secretary (Expenditure) submitted that the figure relating to defence
personnel’s pension was being maintained in the Office of Controller General of Defence
Accounts, which was under the administrative control of Ministry of Defence. He
submitted that the figure, as available in the Office of Controller General of Defence
Accounts, had been procured by the Ministry of Finance in accordance of which 1,300
crore approximately would be an immediate additional burden on Union Government in
case ‘one rank one pension’ is given to ex-servicemen only prior to 01-01-2006.
Mentioning break-up of 1,300 crores, he said that 1,065 crores would be given to the
retirees belonging to the Posts Below Officer Rank (PBOR) and 235 Crores would be
given to the retired Commissioned Officers. The said total figure would be increasing
taking into account minimum 10% annual increase which would go to 1,430 crores in
2012-13, 1573 crores in 2013-14, 1,730 crores in 2014-15, 1,903 crores in 2015-16
and in 2016-17, that amount would be increased to 2,379 crores taking into account 25%
increase due to impact of forthcoming Seventh Central Pay Commission recommendations.
In total, in six years, the financial liability on account of Defence personnel’s pension
would be 10,135 crores approximately. Besides that, there would be additional burden on
the national exchequer on account of payment of enhanced pension to the civilian
employees which would be 7,840 crores as on today; which would increase to 62,218
crores in the year 2016-17 taking into account annual increase of 10% and 25% increase in
view of impact of forthcoming Seventh Central Pay Commission recommendations. It was
also pointed out by him that the State Governments might implement the enhanced pension
scheme given to the civilian employees by the Union Government, to their employees
which would cost 1,61,307 crores to the States’ exchequer.
Deposition of Department of Pensions and Pensioners welfare (M/o Personnel,
Public Grievances and Pensions) (15th July, 2011)
8. The Secretary has submitted that the Reports of various Pay Commissions have
not supported the concept of OROP but on the other hand, there are a lot of other
measures which have been implemented and which have narrowed down the gap
between past and the new pensioners of the Armed Forces considerably. With the grant
of weightage for the purpose of calculation of pension on the basis of the
recommendations of the Group of Ministers and a revision of pay of all pre-1.1.2006
PBOR pensioners with reference to notional maximum in the post-1.1.2006 revised pay
structure corresponding to the maximum of pre-Sixth Pay Commission pay scales with
enhanced weightage, almost a complete parity between pre-2006 and post-2006
pensioners has been brought. He further mentioned that the other notable decisions
taken on the recommendations of the Committee under the Chairmanship of the
Cabinet Secretary include bringing pre-10th October 1997 PBOR pensioners at par with
post-10th October, 1997 pensioners; reckoning of enhanced rate of classification
allowance with effect from 1.1.2006 on a notional basis for the purpose of calculation
of pension; removal of linkage of full pension with 33 years of qualifying service with
effect from 1.1.2006 instead of 1.9.2008 in the case of Commissioned Officers; and
creation of a separate pay scale of Rs.67,000-79,000 to address the issue of disparity in
the pension of pre-1.1.2006 and post-1.1.2006 pensioners at the level of Lt. General
and equivalents in other two services. These measures have already narrowed down the
differences.
8.1 He raised apprehension that if OROP is accepted for the Armed Forces, then
there will be similar demands from the civilian pensioners also, which will lead to a
heavy financial implication for the State exchequer, and the Cabinet Secretary’s
Committee has brought in a financial implication of around Rs.8,000-Rs.9,000 crores
per annum tentatively if this principle is accepted.
Suggestions/Viewpoints of Stakeholders and concerned Organisations/Individuals
9. The Committee has received more than two hundred memoranda from various
organizations/individuals expressing views on the subject matter of the petition. The
petition was supported by all organizations/individuals. The Committee gave
opportunity to some of the organizations/individuals who requested for an audience
before it. A list of organizations/individuals those appeared before the Committee is at
Annexure-I. The views expressed in the memoranda as well as during the oral
evidence by witnesses have been summarised and given below:-
(i) The Armed Forces of the Union are 'rank based structure' organisations. The
ex-servicemen are associated with their rank even after their retirement and
death. There is strong bondage between serving and ex-servicemen
community as in most of the cases the siblings of ex-servicemen join defence
services as a matter of honour and pride. Their mindset, attitude, commitment
and dedication to the Nation do not change even after their retirement. Till
1950, armed forces were enjoying an edge over their civilian counterparts in
respect of pay and pension. The pension for armed forces was almost 90
percent of their last pay drawn, which was gradually reduced to 50 percent of
their last pay whereas the pension of civilian employees was enhanced from 33
percent to 50 percent of their last pay drawn in due course;
(ii) Pay and pension of Armed Forces personnel was governed by separate Pay
Commission which was substituted with Common Pay Commission for both
civilian and defence personnel w.e.f. Third Pay Commission;
(iii) Armed forces have to retire early as a matter of policy of Government which
causes loss of earnings to them because the benefits given by successive Pay
Commissions which could have accrued to them if they were made to retire at
the normal retirement age of sixty. They are made to retire at a point of time
when they have maximum liability of their family on them, nearly eighty five
percent of armed forces retire at the age of 38; ten percent retirements take
place at the age of 46 and remaining 5 percent retirements happen at the age of
56 to 58;
(iv) The demand for one rank one pension has its basis in the past precedence as
well as truncated service career of the armed forces which causes loss of
earning to them. Furthermore, armed forces personnel are deployed in
toughest terrain and roughest weather including Siachin Glacier during their
service career;
(v) The pension of Armed Forces of United States of America was quoted as
precedent where they get 15 to 20 percent higher pension compared to their
civilian employees which is known as hundred per cent neutralisation of pay
and pension of the armed force;
(vi) The ex-servicemen are a class by themselves; differential pension for exservicemen
in the same rank led to a class within the class like pre and post
2006 retirees, which goes against the principle of equality;
(vii) Almost all political parties have favoured inclusion of one rank one pension
demand of ex-servicemen in their election manifesto. Five Prime Ministers of
the country were found to be sympathetic to the demand of one rank one
pension and had constituted a number of committees to examine the demand
but the same still remained unaddressed due to bureaucratic apathy;
(viii) The stakeholders referred to the non-functional financial upgradation for the
civil servants of class-I organised Central Services after Sixth Pay Commission
given to the civilian employees which in substance means one rank one
persons for the civil servants. Therefore, their demand also needs to the met
with; and
(ix) The retired officers from para-military forces, particularly the Border Security
Force also spoke for one rank one pension. They submitted that like Army,
they have made supreme sacrifice for the Nation and secured the border of the
country in Pakistan and Bangladesh sectors with commitment and dedication.
Findings of the Committee
10. The demand of the ex-servicemen for one rank one pension has been included
in Election Manifestos of leading political parties. Department-related-Standing
Committee on Defence (2009-10) (Fifteenth Lok Sabha) in its Seventh Report on
Action Taken by the Government of the recommendations/observations of the
Committee contained in their First Report (Fifteenth Lok Sabha) on Demands for Grant
(2009-10) has recommended that "the Committee still recommend that the Government
should implement One Rank One Pension in a holistic manner so that large number of
ex-servicemen can be benefitted. The Government should also ensure that the various
benefits provided to the ex-servicemen due to implementation of the recommendation
of the Committee headed by the Cabinet Secretary along, with the arrears if any, are
paid expeditiously".
10.1 The Committee observed that these issues were being considered by the
Government since 1973 in Third Central Pay Commission, Fourth Central Pay
Commission considered it in 1986. In the year 1991, the Sharad Pawar Committee
considered it. In 1996, it was considered by Fifth Central Pay Commission. In 2003,
the Inter-Ministerial Committee considered it. In 2005, Group of Ministers considered
it. The Sixth Central Pay Commission considered it and finally Cabinet Secretary
Committee considered it. Measures taken by the Government on this demand by
constituting various Committees indicate that there is merit in the demand for One
Rank One Pension by Armed Forces Personnel, otherwise the matter would not have
been considered time and again by various committees of the Government and Central
Pay Commissions. It could have been rejected once and for all and principle of res
judicata would have been applied to this demand. Hence, it definitely deserves
attention of the Parliamentary Committee as well as the Government.
10.2 The Committee observes that One Rank One Pension was in vogue till 1973
when the Third Central Pay Commission took ex-parte decision against the One Rank
One Pension formula. If this formula was working satisfactorily for more than 26 years
after the country's Independence what was the harm in continuing this formula? The
same procedure could very well be followed even though this demand is accepted by
the Government. The Ministries in their submissions has attempted to draw a rosy
picture about the pension being given to the Armed Forces Personnel according to
length of service. If this is beneficial to them than why are the ex-servicemen are
consistently demanding for One Rank One Pension Formula? Why they are agitated?
They serve the nation with utmost devotion and selflessness but their demands are
consistently being ignored, not by the heads of Armed Forces, but by the bureaucrats.
It’s a typical example of bureaucratic apathy.
10.3 To continue this apathy, the Ministries apprised the Committee that if OROP to
be implemented to the armed forces personnel, similar demands may be raised from the
civilian Government employees. To this argument, the Committee finds that it is a
baseless apprehension of the Government as soldiering is a different profession and
they retire by rank while civilian Government employee retired by age. The terms and
conditions of armed forces are tougher and harsher than the civilian Government
employee. There are restrictions of fundamental rights to the armed forces. Risk to life
of a soldier is always higher as they work under severe strain and sense of insecurity
with undefined and unlimited working hours. Transfers and dislocation alongwith
bleak career prospects are other disadvantages attached with the armed forces. Their
family life is also non-comparable with that of civilian Government employee. The
Armed Forces are also subjected to Court Martial system for the shake of military
discipline. In view of aforesaid uniqueness of Armed Forces it can not be equated with
a civilian Government employee.
10.4 The Committee is distressed to note that the defence personnel of our country
have returned their service medals to the President of India in view of the Governments'
apathetic attitude towards their demand of grant of OROP.
Observations/recommendations of the Committee
11. The Committee takes note of the fact that a sum of Rs.1300 crores is the
total financial liability for the year 2011-12 in case OROP is implemented fully for
all the defence personnel in the country across the board. The Committee is
informed that out of this, 1065 crores would go to retirees belonging to Post
Below Officer Ranks (PBOR) while the Commissioned Officers would be getting
the remaining i.e. 235 crores. The Committee feels that 1300 crores is not a
very big amount for a country of our size and economy for meeting the long
pending demand of the armed forces of the country. The Committee understands
that this 1300 crores is the expenditure for one year which might increase at the
rate of 10 percent annually. Even if it is so, the Committee does not consider this
amount to be high, keeping in view the objective for which it would be spent.
Needless for the Committee to point out here that our defence personnel were
getting their pension and family pension on an entirely different criteria before the
Third Central Pay Commission came into force. Till the recommendations of the
Third Central Pay Commission were implemented for the defence personnel of the
country, they were satisfied and happy with dispensation meant for their pension/
family pension.
11.1 The Committee is satisfied to note the efforts made by Government over
the period to meet the demand of OROP of defence personnel. It is heartening to
note that Government has on the basis of the recommendations of Cabinet
Committee, spent 2200 crores for the purpose of meeting the grievance of
defence pensioners. The net result is that while the demand for OROP stands
almost met in the case of PBOR, the officers’ category remains much behind the
target. Keeping in view the fact that Officers constitute a small proportion of the
entire defence force and only a small proportion of the funds needed, i.e., 235
crores out of 1300 crores stand allocated to their share for implementing the
demand in the officers’ category, the Committee strongly recommends that this
may be implemented so as to keep up the morale of the service. The fact that
there are large numbers of vacancies in the defence services at the officer’s level
corroborates the requirement of suitable corrections in the officer’s category and
make their service conditions more acceptable and attractive.
11.2 The Committee is not convinced with the version of the Ministry of Finance
that the grant of OROP to the defence personnel would eventually generate
similar requests from the civilian work force of the country under the Central
Government and the State Governments. The Committee feels so because of the
quite different terms and conditions of service of the two different categories of
employments. The terms and conditions of armed forces are tougher and harsher
than the civilian Government employee. There are restrictions of fundamental
rights to the armed forces. Risk to life of a soldier is always higher as they work
under severe strain and sense of insecurity with undefined and unlimited working
hours. Transfers and dislocation alongwith bleak career prospects are other
disadvantages attached with the armed forces. Their family life is also noncomparable
with that of civilian Government employee. The Armed Forces are
also subjected to Court Martial system for the shake of military discipline. In view
of aforesaid uniqueness of Armed Forces it can not be equated with a civilian
Government employee. Further, the Committee would not like this argument or
apprehension to stand in the way of the legitimate and fair demand of the defence
personnel. On the issue of returning of service medals by the defence personnel of
our country to the President of India in view of the Governments' apathetic
attitude towards their demand of grant of OROP, the Committee is of the view
that our defence personnel should not feel alienated to this extent again and they
are not force to surrender their hard earned service medals in this manner to
exhibit their discontent with the government policies.
11.3 There is another dimension of the issue under consideration, i.e., the
necessity and justification for bringing about the change through the Third
Central Pay Commission. Nothing has been brought before the Committee which
could explain or justify the circumstances in which the defence personnel were
applied the same criteria as applicable to the country’s civilian work force under
the Central Government for the purpose of determining their pay, allowances,
pension, family pension, etc. It is quite obvious that the terms and conditions of
service, more particularly their span of service, i.e., the age at which they enter
service and the age at which they become due to retire, vary drastically from the
civilian work force. There is no doubt that the span of service of the armed forces
is much-much less as compared to the civilians. The defence personnel in the
PBOR category retire when they are around 35-40 years of age. Even the officers
retire when they are around 55 years of age. That is the time when they have lot
of family and social responsibility to discharge for which they need a sound
financial support. This is certainly not the case with the civilian work force where
the age of retirement is 60 uniformly. Further, under the rules governing pension
/ family pension of the civilians, the longer a person serves, the more pay he gets
and consequently he becomes entitled for higher pension / family pension. This
being so, our defence personnel are bound to remain at a disadvantageous position
since the period for which they serve is definitely much less. On top of this, the
fact that they retire at a younger age aggravates their hardship.
11.4 In the above situation, the Committee feels that the decision of the
Government to bring our defence personnel on the pattern of the civilians with
regard to their pay, pension, etc. (from Third Central Pay Commission onwards)
is not a considered decision which has caused hardship to the defence personnel
and has given birth to their demand for OROP. The Committee understands that
before the Third Central Pay Commission, the defence personnel were getting
their pay / pension on the basis of a separate criteria unconnected with the criteria
devised for the civilian work force. That criteria acknowledged and covered the
concept of OROP which has been given up after the Third Central Pay
Commission.
11.5 The Committee is not convinced with the hurdles projected by the Ministry
of Defence (D/o Ex-Servicemen Welfare) in implementing of OROP for defence
personnel. They have categorized the hurdles into administrative, legal and
financial. The financial aspect has already been dealt with by the Committee. So
far as the administrative angle is concerned, the Committee is given to understand
that all the existing pensioners/ family pensioners are still drawing their pension /
family pension based upon the lawfully determined pension / family pension. In
that case, revision of their pension / family pension, prospectively, as a one time
measure should not pose any administrative hurdle. So far as the legal aspect is
concerned, the Committee is not convinced by the argument put forth against the
implementation of OROP because the pension / family pension is based upon the
service rendered by personnel while in service and comparison of services
rendered during two sets of periods does not seem to be of much relevance. If seen
from a strict angle, in each set of periods, the army officer performed the duties
attached to his post and it may not be proper to infer that the officers who served
at a later period performed more compared to the officers of earlier period. On
the contrary, facts tilt towards treating past pensioners/family pensioners at par
with the more recent ones.
11.6 The Committee further takes note of the fact that the reduction of around
26 pay scales into IV pay bands on the recommendations of the Sixth Central Pay
Commission has aggravated the grievances of defence personnel. For example,
after the Sixth Central Pay Commission, officers from the level of Lt. Colonel and
above fall in a single pay band i.e. pay band IV, carrying pay scale of 37,400 to
67,000. It means that defence retirees of earlier years from different ranks
would get pension with reference of the minimum of the pay band irrespective of
the fact whether they held much higher rank of Major General or Lt. General
when they retired. Thus, under the existing dispensation, pursuant to the Sixth
Central Pay Commission, the past retirees, particularly those, who retired from
senior level posts, remain at a disadvantaged position. Keeping in view all the
above factors, the Committee strongly recommends that Government should
implement OROP in the defence forces across the board at the earliest and
further that for future, the pay, allowances, pension, family pension, etc. in respect
of the defence personnel should be determined by a separate commission so that
their peculiar terms and conditions of service, the nature of duties they are
required to perform, etc., which are quite different from the civilian work force,
are duly taken into account while taking decision on the same.
*****

ONE RANK ONE PE3NSION LATEST NEWS

Govt in agreement on 'one rank one pension': Army chief

Posted on: 04 May 2012

Sagar (MP):The Centre has given in-principle approval to the 'one rank one pension' demand of ex-servicemen, Chief of Army Staff General V K Singh said today. 'I have written twice to the central government on the issue of one rank one pension and it has agreed to it in principle,' he said while addressing a rally of ex-servicemen at Mahar Regiment Centre Ground here.
He said the Defence Minister has assured to look into the matter seriously after the Budget session of Parliament. Implementation of one rank one pension will put a financial burden of Rs 1,300 crore on the Government, he said,
adding all political parties have backed the demand.Once implemented, it will resolve all anomalies related to the ex-servicemen's pension and bring uniformity in the post-retirement scheme, the Army chief maintained. General Singh blamed communication gap for delay in redressal of grievances of the ex-servicemen.

He said directives have been issued to officials concerned to ensure they are in regular touch with ex- servicemen and their widows and resolve their problems related to pension, healthcare and canteen facilities among others. General Singh said a toll-free helpline number was being launched to receive complaints of ex-servicemen and ensure their speedy resolution. The service will be headed by a retired Brigadier level officer. Army regiments and units have been directed to constitute special teams to look into the grievances, he said. the Army chief said after the formation of special teams Rs 22 crore was given to retired servicemen in pending arrears in Rajasthan. Earlier in the day, General Singh arrived at Bhopal Airport and left for Sagar, around 180km from the state capital, in a helicopte

PRE 2006 CENTRAL PENSIONERS CASE LATEST NEWS

• Hearing of the case No WP 1535 / 2012 started on 4-5-2012 in Court No 3 of Delhi High Court - reg Appeal of Union of India against PB CAT Delhi Judgment in OA 655 / 2010. The case was "Part Heard" (Govt pleader completed his arguments). Further hearing will continue on Monday 7th May, 2012