WHERE THERE IS A VIOLATION OF EXICUTIVE ORDER/ HSC DIRECTION- THE NEED FOR JUDICIAL INTERVENTION ARISES

                           BACKGROUND OF X GROUP PAY

 EVOLUTION OF X GP PAY CONCEPT

 1)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 Pay of 4200 in PB2 of 6 CPC Pay structure, that is 4200-2800=1400, (6 CPC recommendation (Para 2.3.27) (Exhibit-1) 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.

 MODE OF CALCULATION AND FORMULA USED IN 6 ^th CPC AND 7 ^th CPC

 2)   The above X GP concept and formula evolved by 6^th CPC was also followed by 7CPC by revising the amount of X Pay of Rs 1400 to Rs.6200 for all existing technical trades by taking difference between entry level pay of 7^th CPC Pay level 6 (35400) corresponding to PB-2 of 6^th CPC Pay scale with grade pay of Rs 4200 & the entry level of 7^th CPC Pay level 5 (29200) corresponding to PB-1 of 6^th CPC pay scale with grade pay of Rs 2800. This is the method used to arrive at the figure of Revised X GP Pay under 7^th CPC (35400-29200 = 6200) for all 7^th CPC X GP technical trades. Hence it is established beyond any scope for ambiguity that this is a revision of existing X GP Pay & not a new benefit/ new concept which fall under Principles laid down by the HSC as a new element of benefit.

 This is protected under HSC's laid-down principles governing pensions and cut-off dates contained in

 Paragraph 48 (ii) of WP (C) 419/2016,

 

which reads as follows:

 "(ii) The benefit of a new element in a pensionary cheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date. (Exhibit-2)

 APPLICABILTY OF X GP PAY Rs.6200 AS APPROVED BY CABINET RESOLUTION

 3)  Para 4(a) of the cabinet resolution dated 05/09/2016 which approved the 7^th CPC recommendations and allowed the X GP pay of 6200 do not mention any cut-off date and it also reiterates that it is the corresponding revision from 6^th CPC. The same is reproduced below.

 “Para 4 (a) Group X Pay: The commission Recommends &

             Accepted.

 

X Pay for JCOs/ORs in Group X Pay at Rs.6200 per month: for all X trades which involve obtaining a qualification which is equivalent of diploma recognised 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 (Para6.2.88).”

 Para b) of same Reads as follows:

 “b) X Pay for JCOs/ORs in Group X at Rs. 3600 per month: (standard fitment of 2.57 on the existing X pay of Rs.1400) for currently in X Pay. But not having a technical qualification recognised by AICTE (Para 6.2.88)”. (Exhibit-3)

 The cabinet resolution Para 4 (b) pertains to IAF GARUD which is a Non-technical trade as mentioned vide SL NO 30 of Para 1 of Air HQ Circular Air HQ/99141/1/AFPCC dated 8th May 2017 containing the list trades Eligible for X Group Pay of Rs, 6200 & Rs.3600. As per SL No 30 of above letter only the  non-technical trade of IAF GARUD is eligible for Rs 3600 as X group Pay since this is a newly introduced non-technical trade in lower X group in which Airmen from the existing Y group trades are drawn to perform the highly combatant duties of Counter insurgency & anti-terrorist operations. Since the duties of this group is non-technical in nature & do not Possess any diploma equivalent to any Diploma recognised by AICTE, they are placed in the lower X group trade with lower X group Pay of Rs. 3600 considering their involvement in highly sophisticated combat operations. Hence as per Para (b) of the approved cabinet resolution dated 05/09/2016 & Air HQ Circular Air HQ/99141/1/AFPCC dated 8th May 2017, IAF GARUD is the only Non-technical trade which can be included in Table No 7 of Circular 666 for the lower X GP Pay of Rs.3600.

 4)  Hence it establishes beyond any doubt that the revised X GP Pay of Rs.6200 is also applicable to the existing technical trades of 6^th CPC (Pre-2016) which involves obtaining a technical qualification which is equivalent of a diploma recognised by AICTE from the concerned technical body of three services and it is not a new benefit. Hence it is implied that the diploma issued prior to 01/01/2016 but declared as equivalent to diploma recognised by AICTE will also be eligible for X GP Pay of Rs 6200 as per Para 4 (a) of cabinet resolution dated 05/09/2016.

 AIR HQ APPROVAL OF ALL EXISTING X GP TRADES FOR Rs 6200

 5)   Further it is submitted that Air HQ is the competent authority which decides about the competency of its trades & its equivalency as per eligibility criteria mentioned in cabinet resolution dated 05/09/2016 with respect to Airforce trades. The Air HQ has considered the lower X Group Pay of Rs.3600 as mentioned in the above cabinet resolution only for one of its X GP trades Namely “IAF GARUD” as mentioned in SL No 30 of Para 1 of Air HQ Circular Air HQ/99141/1/AFPCC dated 8th May 2017.  for Para 4(b) of Cabinet resolution dated 05/09/2016 & all other technical trades were equalised within the eligibility norms as mentioned in the Para 4 (a) cabinet resolution were approved eligible under SL No 1 to 29 of Para 1 of Air HQ Circular Air HQ/99141/1/AFPCC dated 8th May 2017. (Exibit-4)

Furthermore, Directorate of Air Veterans has issued AICTE recognised diploma certificates to pre 2016 veterans of Air force technical trades under the authority of AICTE vide their letter No. AICTE/UG/G-41 dated 10^th March 2003. (Exhibit-5)

 

In compliance of this letter Air force Record office revised the X Group pay of all its existing technical trades to Rs. 6200 by issuing new PPO showing it as the revised amount of X Pay Rs.6200. w.e.f.01/01/2016 vide circular No.17(01)/2017/(02) ID(Pension/Policy) dated 05/09/2017 &the eligible Pre016 retirees have been paid same from 01/01/2016.(Exhibit-6)

 BASIC STRUCTURE OF 7 ^th CPC

6)It is brought to your kind attention that the 7^th CPC on its implementation adopted two methods of calculation of Pay & Pension. The first Method was based on Notional Pay basis & the second Method which was an interim measure using a multiplication factor of 2.57 for PBORs of the Armed Forces since all the data required for calculation based on Notional Pay method were not readily available to the Implementation Authority at that time. Subsequently the Notional Pay method which was the Permanent one as mentioned above was implemented by comparing the basic pay from 4^th CPC to 6^th CPC for arriving at the corresponding Pay in the Pay matrices of 7^th CPC including, revised Military service Pay, revised XGP Pay and classification Pay vide DESW Letter No. 17(01)/2017/(02)ID(Pension/Policy) dated 05/09/2017. Accordingly New Pension Payment orders (PPO) were issued by Airforce Record office to all pre-2016 XGP veterans with a condition that whichever is higher will be protected. (Exhibit-7) The revision of ROP as per the Cabinet approved, assent given by President of India notification dated 04/01/2023 and on HSC direction to be carried out by taking the data of those who are retired in the calendar year 2018.The retirees of this this time period have already drawn their Pay/Pension on the basis of notional Pay method with all reckonable elements which constitute the basic structure of 7^th CPC. Hence the OROP is ordered to be revised, based on this data of above retirees, is bound to consider all its reckonable Elements for Pension including revised element of Military service Pay of Rs. 5200 and revised amount of X GP Pay of Rs. 6200 forms an integral Part of OROR revision as per OROP original notification and revision notification.

 The cabinet Resolution No.1((7)/2016/Pay/services) dated 05/09/2016 doesn’t permit/direct anybody to divide the X GP Veterans between pre & post for the eligibility of Rs 6200 & Rs 3600 as X GP Pay. The administrative instruction No. 1(1)/2019/D(Pen/Pol) dated 08/04/2022 reported to have been received by Gts-Tech section, PCDA (P) Prayagraj, from MOD (Exhibit-8) to Bifurcate the X GP veteran on the basis of pre & post 2016 for the purpose of X GP Pay of Rs 6200 & 3600 is arbitrary & illegal. A cabinet resolution with legal backing of an Executive Power cannot be nullified by a mere administrative instruction.

 SALIENT FEATURES MENTIONED OROP REVISION NOTIFICATION

7)The Cabinet approved; President assented & HSC upheld OROP notification dated 04/01/2023 for revision of OROP from 01/07/2019 in its Para 2 states as given here under:

 “2.The President is pleased to decide that next revision of pension under OROP

 

Scheme would be effective from 01/07/2019. Revision of pension is based on the principle adopted in

 MoD letter dated 07.11.2015 which are as under:

 2.1 pension of the past pensioners would be re-fixed on the basis of pension of defence Forces retirees of calendar year 2018 and the benefit will be effective from 01.07.2019.

 2.2. Pension will be re-fixed for eligible Defence Forces pensioners/family pensioners on the basis of the average of minimum and maximum pension of Defence Forces Personnel retired in calendar year 2018 in the same rank and with the same length of service.

 2.3 Pension for those drawing above the average shall be protected.” (Exhibit-9)

 The principle laid down by HSC in Para 48 (ii) of Judgement WP (C) 419/2016 Clearly states as given below:

 “(ii) The benefit of a new element in a pensionary scheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date”. (Exhibit-12)

 CONCLUSION

 8)It is established with authority, facts & figures beyond any room for ambiguity that the revision of a existing benefit of Rs 1400 as Permissible under 6th CPC has been revised to Rs. 6200 in 7th CPC adopting the corresponding formulae for eligible XP veterans of Pre 2016.

 VIOLATION OF NOTIFIED RULES AND ERRORS IN TABLE No8.

 

9)The OROP revision from 01/07/2019 implementation Office memorandum issued by Department of Ex-servicemen welfare with table No.7&8 dated 20/01/2023 (Exhibit-10) & Circular No 666 issued by the Implementing agency (PCDA) has violated the above Principle contained in both the notifications without having any authority to do so & in utter disregard to HSC direction mentioned in this matter. On mathematical Examination of table No. 7 & 8 shows that the basic Pension do not tally for X group trades after deduction of X GP pay for same rank & length of service in table No.7.

 VIOLATION OF HIGHER & LOWER RANK PARITY AS SETTLED BY COURTS

10) Higher rank Higher pay compared to lower rank within same length of service & within the same group principle is also violated between table 7 & 8.

A Junior Rank of Corporal of X group with 15 years of qualifying service for Pension is drawing a Basic Pension of Rs 24928 in Table No.8 whereas his Senior Rank of group X Sergeant with 15 years of qualifying service in Table No 8 is drawing a Basic Pension of only Rs.24160. This is against already settled rules in judgements by courts in many cases. This is an arbitrary & discriminatory Phenomenon whereby a Senior rank drawing higher basic by virtue of his higher Rank as on 30/06/2019 is placed below the basic Pension of his Lower Rank overnight on the dawn of 01/07/2019 in table No.8. what else needed to be explained to show the violation natural justice & decisions of courts various judgements.

 VIOLATION OF CABINET RESOLUTION AND HSC DIRECTION

 

 11) It is brought to your kind attention that by issuing a letter dated 08/04/2022, to PCDA directing them to prepare two separate tables for X group trades of defence veterans for OROP revision from July 1, 2019, on the basis of a cut-off date of 01/01/2016, you have violated the cabinet resolution dated 05/09/2016, by acting against the collective responsibility of the union cabinet.

The Cabinet resolution, Paragraph 4(a), is very clear about the enhancement of X group pay from the existing rate of 1400 to 6200 based on qualification. In utter disregard to the union cabinet decision and HSC judgment in this regard, you seem to have taken the law into your own hands by sending such a letter to the PCDA, which is an implementing agency. If you had any such reservation on the above cabinet decision, you should have raised such an issue in the cabinet itself and sorted it out before the cabinet took any decision in this respect. It is not appreciable on your part to be a party to the cabinet approval and then express your disagreement with it thereafter.

 The Circular No. 585 dated September 21, 2017, reiterates that the revised X group pay shall also be a part reckonable emolument for fixation on a notional pay basis. Furthermore, it uses the term revised XGP Pay," which shows that it is not a new benefit.

The paragraphs 3 and 4.1 of the above circular read as follows:

“3. Revised pension/ family pension of all Armed Forces Personnel who retired/died prior to 01.01.2016, shall be revised by notionally fixing their pay in the pay matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/ died. This will be done by notional pay fixation under each intervening Pay Commission based on the formula for revision of pay. The revised rates of Military Service Pay, Non-Practising Allowance, where applicable, and ‘X’ Group pay & Classification Allowance for JCOs/ ORs, if applicable, notified in terms of 7th CPC orders, shall also be added to the amount of pay notionally arrived at under the 7th CPC pay matrix and shall be termed as notional reckonable emoluments as on 01.01.2016. While fixing pay on notional basis, the pay fixation formulae (As per Para-4 of MoD letter dated 05.09.2017), approved by the Government and other relevant instructions on the subject in force at the relevant time, shall be strictly followed.

4. Applicability

4.1. These orders shall apply to all the Armed Forces Pensioners/ Family Pensioners who were drawing Service Pension/ Family Pension including Disability Pension, War Injury Pension as on 01.01.2016 under the Pension Regulations of the three Services/ State Forces and various Government orders issued from time to time.”

The MOD letter dated September 5, 2017, as mentioned in the above para, has directed the record offices of the tri services to prepare and issue new PPOs on this authority for payment by PDAs.

If Para 4(a) of the cabinet resolution dated 05/09/2016 is read together with Air HQ letter Air HQ/99141/1/AFPCC dated 08/05/2017, which authorises the X Gp Pay of Rs 6200 and Rs 3600 among its higher and lower X Gp trades, Air HQ letter Air HQ (VB) ACAS (Accts & AV) dated 12/11/2018, which shows the diploma that is equivalent to the AICTE diploma issued to those who enrolled prior to 10/03/2003, and Para 3 to 4.1 of PCDA circular 585 dated 29/09/2017, the cut-date of 01/01/2016 mentioned for the revised amount of X Gp Pay of Rs 6200 in the revision of OROP can be termed as arbitrary, illegal, and discriminatory.

 NEED FOR JUDICIAL INTERVENTION

  

12)The tables No. 7 & 8 in OROP revision as attached in the Appendix to MoD Letter No. 1(1)/2019/ D(Pen/Pol)/Vol-II dated 20/01/2023 do not consider the X Pay @ Rs. 6200 for the Pensionary benefits to the Air force Veterans of ‘X’ Group technical trades which has been Recognized as equivalent to AICTE Diploma and fall under the category of 4 (a) of Cabinet resolution for X Pay of Rs.6200 for those who are retired before 01/01/2016. They have been deprived of and discriminated for the revised X GP Pay of Rs.6200 under both of the above tables in an arbitrary and discriminative manner which calls for judicial intervention to Garand the above benefits to eligible aggrieved X GP veteran (Petitioner).

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