Sunday, 11 June 2023
Thursday, 8 June 2023
ADDITIONAL POINTS FOR FILING WRIT PETITION IN HSC UNDER ARTICLE 32
Why directly filing Writ Petition in HSC under Article 32?
This
Petition is arising out of the misconception by MOD regarding the applicability
of X Group Pay of Rs.6200 to Pre-2016 Veterans, consequent to the
implementation of HSC laid down principles in Judgement delivered by HSC in
WP(C) 419/2016.
Since a
disputed Subject contained Judgement of HSC cannot be challenged in HC under
Article 226, we are approaching this Apex court to deliver a Speedy judgement
in the disputes raised by MOD in an already settled & long debated casein
in this Apex court.
2) The
Petitioners being very old & many of them are in their last leg of life due
to the long-time taken for the final judgement in original case WP (C)
419/2016.
3) The
Petitioners are satisfied and in full agreement with the modalities &
Methodology adopted in the Original OROP Notification dated 07/11/2015.
4) The
Petitioners are also satisfied and in full agreement with the modalities &
methodology adopted in OROP revision Notification dated 04/01/2023
5) The
Petitioners are also highly pleased by the principles laid down by the HSC in
Judgement of WP (C) 419/2016.
6) However,
the Petitioners are aggrieved by the Arbitary and discriminatory treatment meted out to them
during the implementation of the above two notifications & HSC laid down
principles in WP (C) 419/2016.
The
modalities & Methodology contained in the above two Notifications do not
have any provision for cut-off dates as Pre & Post 2016 for any benefits.
However, it
is a fact that Para 48 i) &ii) have allowed cut-off dates only for MACP
which is misused as a tool to introduce a cut-off date in X Group Pay which
recommended to be bifurcated based on qualification only by the 7 TH CPC and
approved by the union cabinet in Para 4 a) of the cabinet resolution dated
05/09/2016.
7) The
Direction set by the HSC in 48 i) is Regarding MACP with Example & 48 ii)
is a natural continuation of 48 i) and both should be read together to get a
meaning that MACP cannot have retrospective effect. Para 48 ii) cannot be
segregated from Para 48 i) to get a universal application of Para 48 ii) for
other components which are approved to be based on qualification,
Para ii) has
been misinterpreted by MOD with a universal application as a new benefit to
deny X Group Pay of 6200 to X group Veterans.
8) The MACP
as mentioned in para 48 i) and ii) of Judgement in WP (C ) 419/2016 is based on
Number of years of qualifying service ( viz 8,16,24) in leu of not being
promoted to next cadre, where as X group pay is purely based on qualification.
9)The X
Group Pay of Rs.6200 was duly Recommended by the 7th CPC & approved by
Cabinet resolution 4 a) dated 05/09/2016 based on qualification only & no
mention of it was either made by Petitioners or the respondents in their
petitions during the arguments in WP (C) 419/2016. The HSC Observations &
any part of HSC Judgement also do not mention the X group pay and its
bifurcation between Post & Pre 2016.
10)This
Petition Pray for the intervention of this highest court of justice in this
discrimination meted out to the former soldiers of the country and to restrain
Gross violation of Cabinet Resolution by MOD & Misinterpretation of Para 48
i) ii) of HSC judgement in WP© 419/2016, hence the need for approaching this
Highest court of Justice of the land with a writ P0etition under Article 32 of
the constitution.
Friday, 26 May 2023
Tuesday, 23 May 2023
PARAWISE REBUTTAL TO DESW DESPARATE LETTER DATED 18/05/2023 REGARDING TABLE NO 8 OF CIRCULAR 666
1) This Department has been receiving several representations of pre-01.01.2016 retirees for making them eligible for revised Group X Pay of Rs. 6200/- which was granted to post-01.01.2016 retired PBORs in implementation 7th CPC recommendation.
Counter
This is a statement
contrary to fact, which can be established with documentary evidence. It is
repeatedly alleged by DESW Abintio that the CPC has granted X Group Pay of Rs.
6200 to Post 01/01/2016, the actual fact being negative. Even if this statement
is taken into consideration for academic interest, the 7th CPC
itself is not authorised to grant any benefits to Central or Defence employees
or veterans. Its recommendation, like the recommendation of any other
commission, is recommendatory in nature, which may or may not be accepted by
the cabinet since it is not legally binding on the executive. It remains a fact
that the entire 7th CPC recommendation was not accepted by the cabinet. Hence,
the cabinet-approved recommendations of the 7th CPC in the cabinet
resolution dated September 5, 2016, are only applicable to the defence forces,
which are specifically sanctioned for them by the cabinet. Given the fact that
the benefits granted under the cabinet-approved recommendations of the 7th
CPC are equally applicable to post- and pre-2016, the relevance of the date
01/01/2016 is only for the purpose of the effective date for both pre- and
post-2016.
Paragraph 4(a) of
the above cabinet resolution does not divide the veterans between pre- and
post-2016. It only divides veterans, whether serving or not, on the basis of
their qualification by AICTE or an equivalent qualification by AICTE for the
purpose of X Group Pay of Rs. 6200.
There is a
deliberate attempt by DESW to distort the recommendations of the 7th
CPC and Cabinet Resolution by denying the enhanced rate of X group pay of Rs.
6200 to pre-2016 veterans. Many AICTE Diploma candidates were directly
recruited by the Indian Air Force to technical trades from 1972 onwards, and
in-house trained recruits in Air Force institutes were given AICTE equivalent
diplomas to all those who passed out of in-house institutes.
2.As per recommendations of the 6t* CPC, groups X and Y were given a common
pay scale w.e.f. 01.01.2006, i.e. they ard at the samé notches
in Pay Bands 1 and 2 and receive the same grade pay, with one distinguishing feature
viz, ‘X-pay’ to those in Group
X.
Counter
The concept of X group Pay in Armed forces was conceived for the
first time by 6th CPC, abolishing Pay scale differences among the X GP trades
and other groups (Y & Z). All the Groups were brought under one pay scale,
and X Group pay of Rs1400 was recommended as compensation for technical Trades
of Armed Forces, at Par with Civil diploma holder. The formula adopted was the
difference in Grade Pay of 2800 in PB1 & Grade of 4200 in PB2 of 6 CPC Pay
structure, that is 4200-2800=1400, (6 CPC recommendation (Para 2.3.27) and was accepted by the GOI. The Ministry of
defence through its implementing agency, PCDA Allahabad has implemented the
same without any cut of date for pre & post 2006.
3.The 7th CPC vide para 6.2.88 of their Report
have recommended:
(i)
X Pay for JCOs/ORs
in Group X at Rs. 6200/- PM for all
X trades which
involve obtaining a qualification which is equivalent of a diploma
recognized by AICTE.
This amount is the difference in the minimum
of the Pay level 6 (corresponding to Grade
Pay of Rs.
4200/- in VI CPC) and
Pay level 5 (corresponding to Grade Pay of Rs. 2800/-
in VI CPC).
(ii) X Pay for JCOs/ORs in Group X at Rs. 3600/- PM (standard fitment
of 2.57 on the
existing X pay of Rs. 1400), for
those currently in X pay,
but not having
a technical qualification
recognized by AICTE.
Counter
The above
paragraphs are the actual facts with respect to the X Group Pay recommendation
by the CPC. This portion of the recommendation has been approved by cabinet
resolution as it is without any change under cabinet resolution in Paragraphs
4(a) and 4(b). There is no condition as to pre-2016 and post-2016 for X group
pay of Rs. 6200 visibly seen neither in the above-mentioned 7th CPC
recommendations nor in the cabinet resolution.
Over & above
Air HQ, which is the final authority for imparting training and issuing
diplomas with respect to the technical trades of the Air Force X Group, Air
HQ/99141/1/AFPCC dated May 8, 2017, has segregated only one of their X group
trades, namely "GARUD," eligible for a lower X group pay of Rs. 3600
out of their 30 X group trades. Hence, this is a self-goal and contrary to what
is mentioned in Para. 1 of the letter dated May 18, 2023.
4.The above
recommendation of the 7th CPC has been accepted by the Govt. and
the X Pay of the X-Group personnel was revised accordingly, w.e.f. 01.01.2016.
The recommendations of the 7thCPC are applicable to those personnel who were in service
on or after 01.01.2016
and drawing pay in the revised pay scales applicable w.e.f. 01.01.2016. The recommendations of the 7t* CPC are not applicable to those who have
already retired from service before 01.01.2016.
Counter
This Para 4 is contrary to what
is mentioned in Para 3. The reason shown in this paragraph is that "the
recommendations of the 7th CPC are applicable to those personnel who were in
service on or after January 1, 2016, and drawing pay in the revised pay scales
applicable w.e.f. January 1, 2016. This statement is an intentional misrepresentation of facts & procedures The recommendations of the 7th CPC are not
applicable to those who have already retired from service before January 1,
2016." is not found in any authentic document of either the 7th CPC or in the Cabinet-approved document
of the 7th CPC. It is
intentionally inserted by the respondent to deny the benefit of X Group Pay of
Rs. 6200 to pre-2016 veterans. If the recommendation of 7th CPC are not applicable to those who are retired prior to 01/01/2016, what was necessity of revising their Pension on Notional pay method by issuing new Pension Payment order and allowing them the benefit of X Group Pay of Rs 6200 & payment of arrears to them wherever Notional calculation method was more than 2.57 Method.
5.Hence, there
are two rates
of X Pay w.e.f. 01.01.2016 for X-Group Personnel and they are eligible for pension as per reckonable emoluments drawn by them at the time of retirement from service.
Reckonable emoluments towards pensionary benefits includes Pay in Pay matrix,
Military Service Pay and X-Group Pay &
Classification Allowance, if any, drawn by the
JCOs/ORs. Accordingly, the JCOs/ORs who have drawn the X Pay of Rs. 6200/- during
their service are eligible for benefits of the higher
rate of X-Pay in pension also. Others are eligible for lower rate of X-Pay.
Counter
The above
conditions given in Paragraph 5, that reckonable emoluments drawn by veterans
during their service only are eligible for counting the same in pensionary
benefits, are purely a sadistic conception and contrary to service pension
rules and regulations. All veterans who retired earlier and are not drawing
Military Service Pay or X Group Pay are granted Military Service Pay on the 6th CPC implementation. This unauthorized and
unwritten concept is illegal and cannot be applied to an institution that is an
instrumentality of the state.
6.In the OROP revision w.e.f. 01.07.2019, the pension of all the Defence
Forces pensioners/family pensioners has been re-fixed
on the basis of the average of minimum
and maximum pension of Defence
Forces personnel retired
in calendar year
2018 in the same rank with the same
length of service. The scheme of two different rate of X Pay
has been made
operational from 01.01.2016 and the same
can be applied
prospectively. Hence, separates tables
have been prepared for pre-01.01.2016 retirees and post- 01.01.2016 retirees.
Pension Table No. 7 applicable for the personnel
who retired before 01.01.2016 and table No. 8 has been prepared
for those who have drawn the higher rate of X Pay i,e. Rs. 6200/- w.e.f. 01.01.2016.
COUNTER
The
statements contained in this paragraph are based on the illegal and unwritten
concept of vested interests without application of sound mind and in utter
disregard for defence pension rules and regulations, treating veterans as
soldiers of alien countries.
7.It may also be pointed out that Hon’ble Supreme Court in its order dated 16.03.2022 in WP(C) No. 419/2016 has observed that “It is not a legal mandate that the pensioners who held the same rank must be given the same amount of pension. The varying benefits that may be applicable to certain personnel which would also impact the pension payable need not be equalised with rest of the personnel.” Hon’ble Supreme Court has also observed that the benefit of new element in a pensionary scheme can be prospectively applied.
COUNTER
The above-mentioned portion of the judgement in WP (C) 419/2016 is quoted out of context here to justify an illegal atrocity committed against veterans. The above observation given in the judgement in the contest of MACP granted to certain veterans in lieu of promotion cannot be claimed by others.
The
Direction issued by the HSC in 48 i) is Regarding MACP with Example & 48
ii) is a natural continuation of 48 i) and both should be read together to get
a meaning that MACP cannot have retrospective effect. Para 48 ii) cannot be
segregated from Para 48 i) to get a universal application of Para 48 ii) for
other components which are approved to be based on qualification,
Para 48 ii) has
been misinterpreted by MOD with a universal application as a new benefit to
deny X Group Pay of 6200 to X group Veterans. The MACP as mentioned in para 48
i) and ii) of Judgement in WP (C ) 419/2016 is based on Number of years of
qualifying service ( viz 8,16,24) in leu of not being promoted to next cadre,
whereas X group pay is purely based on qualification.
The X Group
Pay of Rs.6200 was duly Recommended by the 7th CPC & approved by Cabinet
resolution 4 a) dated 05/09/2016 based on qualification only & no mention
of it was either made by Petitioners or the respondents in their petitions during
the arguments in WP (C) 419/2016. The HSC Observations & any part of HSC
Judgement also do not mention the X group pay and its bifurcation between Post
& Pre 2016.
It is not applicable to a homogeneous
group of similarly placed X-group veterans of the Indian Air Force. Hence, it
is outside the ambit of the above observation made in the HSC judgement. Here,
there is no involvement of a new element of benefit since it is an enhancement
of an existing benefit, as followed from the 6th CPC to the 7th CPC.
COUNTER
A careful scrutiny
of the HSC order without prejudice in dismissing the intervention Petition MA
499/2023, dated March 17, 2023, reveals that the court has not permitted a
third party who tried to intervene in an already decided case to be dismissed
as misconceived on technical grounds and that the court did not enter into the
merits of the case.
CONCLUSION
The above letter dated 18/05/2 023 issued by DESW gives rise to an impression that we are living in a totalitarian state where rule of law & court of law have no role to play.
Monday, 22 May 2023
Tuesday, 9 May 2023
Monday, 1 May 2023
Please be careful while drafting the petition for challenging Table 8—don't get into the trap laid by DESW and PCDA.
At the outset, request that all the legal teams of the litigants be offensive rather than defensive. We have very effective and legally valid documents to substantiate that the revised XGP Pay of Rs 6200 is on the basis of possessing the required qualification, which is well defined in Paragraph 4(a) of the Cabinet Approved Resolution dated September 5, 2016. This is the only authority for the policy-making body of MOD, and they cannot violate the cabinet decision in this regard. The cabinet resolution does not contain any cut-off date.
The respondent cannot take the
stand that OROP has nothing to do with any previous government orders which is
illegal since OROP is based on the pay of all those who are retired during the
calendar year 2018 with their pay and all other reckonable emoluments are based
on previous government orders.
We have to challenge them to produce
any document that issued by the 7th CPC for bifurcation of X group
with a cut-off date.
The respondent has fixed the
pension of all pre-2016 X group veterans as per their vide circular issued on
05/09/2017 on the authority of cabinet resolution dated 05/09/2016 with Rs 6200
as XGP Pay wherever eligible.
The Air Head Quarters has
issued Air HQ Circular Air HQ/99141/1/AFPCC dated 08/05/2017showing their
trades eligible for XGp Pay of Rs 6200 on the basis of Qualification,
The respondent is wrongly
interpreting the revised X group pay of
Rs 6200 under 7th as a new benefit to take advantage of Para 48 ii of the HSC
Judgement dated March 16, 2022.
At the same time, the
respondent also wrongly stated that the 7th CPC has divided the XGP
Pay between pre- and post-2016 retirees without any valid document or
authority. Even if it takes for academic inquiry, if previous government orders
are not applicable to OROP, they are making contradictory statements in reply
to veteran grievances. The very basis of OROP is taking the Basic Pay & all
other reckonable elements drawn by veterans retired during the calendar year
2018 which is based on Previous Govt Order.
The illegal letter issued by
DESW dated April 8, 2022, after the judgement in the OROP case is in violation
of cabinet resolution dated September 5, 2016, and takes advantage of Paragraph
48 (ii) of the judgement that a new benefit can be bifurcated.
Hence, here we are on the
defensive role to prove it is not a new benefit, and the main mission of the
MOD is to tie up us in this matter and divert our attention from the matter of
qualification-based X pay, which is a nuclear weapon in our hands. This is the
reason that neither DESW nor PCDA mention any other reason for the bifurcation
of X pay. They want our veterans to fall into the trap laid by them.
We cannot entirely depend on
the principle that a Homogeneous group cannot be bifurcated since many courts
have given divergent views on this principle, and even the D. S. Nakara case
was not allowed to be pleaded in this case by HSC.
I hope the necessity of being
offensive with our valid and most powerful document would be wiser than getting
into the trap of DESW.
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