Prologue :
“You guard our land, sea and air frontiers in the most adverse climatic conditions and in inhospitable terrain. You live away from your families, making your task all the more difficult. It is, therefore, our collective duty to take care of your family members”. Sri AK Antony, the Defence Mnister
“The terms and conditions of service of Armed Forces Personnel were distinct and as such, a special dispensation for them is required”. Shri Sharad Pawar, the Defence Minister 1991.
"The Committee has been recommending grant of `One Rank One Pension' to the armed forces personnel time and again... The older pensioners who have become infirm in ability and capability and burdened with a larger social obligation receive pension calculated at the rate of pay at the time of their retirement... The nation must repay its debt to those defenders of the motherland with gratitude and humility...Any amount paid in this regard would be small token of our gratitude to them. The Committee, therefore, once again reiterates their earlier recommendation for providing `One Rank One Pension' to the armed forces personnel".
Parliamentary Standing Committee on Defence
“The Fourth CPC may consider the issue particularly in the light of the principle established regarding the pension of Judges of the Supreme Court and High Court”. Shri KP Sngh Deo, the Minister of State for Defence, 1980
ANALYSIS OF THE CABINET SECRETARY'S REPORT DATED 30 JUN 09.
Prelude
1. On the task assigned by the PM to examine the proposal of Raksha Mantri on ‘One Rank One Pension’, the Cabinet Secretary (referred to as ‘CS’ hereafter) with the Secretaries from the Ministries of Defence and Home, Secretary DOPT and Secretary (ESW), as members and Secretary Dept of Pensions and PW as a co-opted member submitted his report on 30th June.
Disappointment
2. With sadness, I notice that the report by the CS is likely to be a great disappointment to the ESM community. Scant regard seems to have been paid by the CS and his team the elite of the Executives, to the importance of the demand of OROP, significantly expressed at the august levels of the Legislature and the Judiciary, leave alone the anguish of the ESM. The report seems to focus on how to deny OROP to the Armed Forces Pensioner Community, rather than analyze with objectivity, if there is justification in the demand, that has been repeatedly made for well over three decades. I understand that the recommendations are being implemented by the Government. It may not cause any major catastrophe, no doubt! But, it will have the effect of stimulating the cancerous growth of dissatisfaction among the present ESM and the future ones also, in due time. Ignoring to detect the cancer in time is the danger, the doctors say. Should we not heed their counsel?
Is there any Merit in the Claim for OROP?
3. Vide Para 2 comprising 15 subparagraphs, the CS has highlighted how the Government, many a committees, the Ministers and the Supreme Court Judges addressed the issue of OROP. He also has categorically concluded that none found any merit in the demand of OROP. But that one pertinent question, which arises in various forms, has not been addressed. If there is no merit in the demand of OROP, why then pay commission after pay commission, Minister after Minister and Court after Court tend to study the demand of OROP? Why was it not possible for the Government to outright deny the demand of OROP? Why then was the need for the President to make a reference to the issue of OROP in the House of Legislature on 4th June 2009?
4. Answer, fortunately, is quite apparent. From judicial point of view and from the angle of Legislature, there is definitely a case in the demand of OROP. But whenever a study on OROP was ordered, the study was done in isolation with specific exclusion of the affected personnel, namely the ESM community. It was done with the wisdom of only the Government officials, whose concern is, understandably, to reduce the fiscal burden on the Government; to stop the drain from the Government Exchequer. Another and more valid point has to be borne in mind, while we discuss any issue related to the Services. History has shown that the administration yields only to the massive strength of collective bargaining. But ESM is the only community which has not so far resorted to acquire collective bargaining power for redress of their grievance, because, this community has built an ethos of trusting its commander and his administrative officials in totality during its dedicated service, from time immemorial. This is the only community which is faulting those of the ESM who want to raise their demands through agitation of some kind or other. This is the only community that keeps repeatedly appealing to the legislature to analyze the issue with a sense of fairness, equality and good conscience as enshrined in the Constitution. Let us now take in detail to what extent the study by the team led by the CS has been objective and fair, to both the Government and the ESM community.
Past Studies
5. Under paragraph 2 of the Report, the CS has drawn attention to the recommendations / observations of the following:
Estimate Committee on Resettlement of ESM (1980-81)
Shri Singh Deo Minister of State for Defence of that time
Fourth Central Pay Commission (1986)
High Level Empowered Committee headed by Shri Sharad Pawar the Defence Minister (1991)
Fifth Central Pay Commission (1986)
Inter Ministerial Committee (2004)
The Prime Minister
The Group of Minister (Jan 2005)
Sixth Central Pay Commission (1986)
The Supreme Court Judgment (IESL Vs UoI 1991 1 SCR 158)
The Supreme Court Judgment (KL Rathi Vs UoI 1997(3) AISLJ 207)
Ministry of Law
6. However, the CS has, for reason best known to him chosen to omit to draw the attention to the observations/ recommendations of the following:
The Supreme Court Judgment (DS Nakra Vs UoI 17/12/1982)
The Supreme Court Judgment (Major General SPS Vains Vs UoI SPECIAL LEAVE PETITION (CIVIL) NO. 12357 of 2006)
Parliamentary Standing Committee for Defence (Para 99 of the Report 2003)
Part 1 - The CS’s Appreciation of the Past Studies
1. The CS appreciates the past studies, in a selective manner that can be effectively used to deny the grant of ‘OROP’.
Para 2.3 ‘…any attempt to equalize pension with reference to the revised pay scales of pay would amount to retrospective application of the pay scales’.
Para 2.4 ‘… grant of One Time Increase (OTI) was recommended and granted’.
Para 2.5 ‘… every Pay Commission gives certain benefits over and above the impact of inflation. The additional benefit is given either due to up-gradation of recruitment qualification or change in job content etc. The benefit accrued on this account need not necessarily be passed on to the pensioners’.
Para 2.6 ‘… Inter Ministerial Committee … did not favor grant of OROP’
Para 2.7 ‘… Ministry of Finance did not agree with the recommendation of the Ministry of Defence… (modified parity) should not be further modified to redress a presumed injustice’.
Para 2.10 ‘… No change is proposed in the existing dispensation’ by 6CPC.
Para 2.11 ‘… the pensioners claim that all pre 1.4.1979 retirees of the Armed Forces are entitled to the same pension as available to post 1.4.1979 retirees was clearly untenable and did not flow from the Nakra Judgment’.
Para 2.12 ‘… the pensioners as a group consists of persons with different number of years of service and different average pay during the relevant period. If all of them have to be treated alike by providing same pension while ignoring their respective variation in service and average pay, that may amount to treating unequal as equals. This may entail discrimination, offending the principles of equality before law, as enshrined in our Constitution’.
Para 2.12 ‘ … even in case of OROP there would be a large number of persons likely to be affected adversely’.
Para 2.13 ‘… Ministry of Law again advised that the same pension same rank was not an acceptable proposition’.
Para 2.14 ‘ … acceptance of the demand of OROP is not feasible administratively’.
Para 2.15 ‘… grant of ‘One Rank One Pension’ cannot be implemented for ex-servicemen alone and a demand for similar dispensation for civilian pensioners would also arise’.
The CS’s Conclusion
2. Based on such a selective appreciation of the observations of the past studies by various eminent persons, the CS concludes “In view of the factors mentioned above, it is not considered feasible to grant ‘One Rank One Pension’ …” and summarizes his reasoning under Para 3. His mandate, it appears, was to study the Proposal from GoM and make recommendations. It also seems that the GoM proposal has nothing to say on the pension of the Commissioned Officers other than the Lieutenant Generals (Para 5.4(i)). But the CS rubs it in again and again that the Defence Service and Civilian officers are governed by the same pension rules and whatever dispensation is awarded to the Defence Officers has to be made for the Civilian officials as well (Para 6.1, 6.3,8.(iv)), thus creating an impression that the GoM was not in favor of any improvement in the pension of Commissioned Officers in general.
Part 2- Objective Analysis of the CS’s Appreciation
1. I shall now take each of the observations at Para 2 of Part 1 above and analyze those with total objectivity with no bias towards any and malice towards none.
2. Para 2.3 ‘…any attempt to equalize pension with reference to the revised pay scales of pay would amount to retrospective application of the pay scales’ It is a fact in simplicity that OROP, as defined by the ESM, flows from the revised pay scales that are to be made applicable to the ESM community as well, and has retrospective effect. But the retrospective effect is only for calculating the notional pay for revising pension and does not have any financial effect on the arrears with respect to the pay of the ESM or the pension that accrues due to the revision of the notional pay. What then can be the objection?
3. Para 2.5 ‘… every Pay Commission gives certain benefits over and above the impact of inflation. The additional benefit is given either due to up-gradation of recruitment qualification or change in job content etc. The benefit accrued on this account need not necessarily be passed on to the pensioners’ When we study the 6CPCR to find out if the Commission while revising the pay scales has defined any increased qualification or any change in the job content, we find no such stipulation. The revision has attempted to streamline the pay scales primarily and increase the pay for the existing employees and new recruits, keeping in view the increase in the wealth of the Nation. It is a matter of fact and of interest to note that, the historical Constitutional Bench of the Supreme Court applied its wisdom and spoke very comprehensively while delivering the judgment in the case of Nakra, referred to above. They took note of the basic reason for revision of the pay scales as the increase in the wealth of the nation due to the sweat of the pensioners as well. They said in very clear terms on the distribution of such wealth as follows (Ref Appx A for full extract):
“The principal aim of a socialist State is to eliminate inequality in income and status and standard of life. The basic framework of socialism is to provide a decent standard to life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income … This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallized in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice - social, economic and political. … There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. … conceding that any welfare measure be consistent with economic capacity of the State progressively augmented with wider width and a longer canvass yet when the economic means permit the augmentation, should some be left out for the sole reason that while in the formative years of the nascent State they contributed their might but when the fruits of their labor led to the flowering of economic development and higher gross national produce bringing in large revenue and therefore large cake is available; would they be denied any share of it? Indisputably, viewed from any angle, pensioners for payment of pension form a class.”
Besides, one has to analyze if there is any up-gradation of the recruitment qualification and/ or change in job content during the pre and post 01 Jan 2006. Even if there is up-gradation of recruitment qualification to what extent it justifies additional benefits if the job content remains the same. Wages are paid for job done. Hence, the benefits given by pay commission, though not ‘necessarily be passed on to the pension’ - as there is no such binding provision in the Pension Rules - has to be passed on to all those, which includes the pensioners as well, who contributed in the creation of sufficient national wealth that enabled the Pay Commission to propose additional benefits.
4. Para 2.10 ‘… No change is proposed in the existing dispensation’ by 6th CPC. The reasons quoted by the 6th CPC were that full parity had been accorded to pensioners between pre and post 1/1/1986 and modified parity between pre and post 1/1/1996. The questions that arise are, first why not full parity for all pensioners and next, how the full parity or modified parity accorded for the past pensioners for a limited period affect the parity for the ESM community as a whole for all time to come. The demand of OROP is for all pensioners, treating them as a class since the day of independence, as suggested by the SC in the Nakra case. It is unfortunate that no representation from the serving or the pensioner community of Armed Forces was permitted in any of the CPC, due to which effective clarification on the demand of the pensioners could not be made to the CPC from the view point of the Armed Force Services. It is also a matter that needs clarification if the 6th CPC addressed the issue of OROP with the definition as ‘same rank same pension’ or as ‘same rank same length of service same pension’. These two definitions have vast difference in the application. It is quite evident from the line of arguments in the present report by the CS, that 6CPC might have been under the mistaken impression that OROP means ‘same rank same pension’. Hence the verdict of 6th CPC was painfully biased against the pensioners based on advice of the members who had no clue whatsoever on the nature and significance of the job content, the ethos and the sacrifices made by the Armed Forces personnel.
5. Para 2.11 ‘… the pensioners claim, that all pre 1.4.1979 retirees of the Armed Forces are entitled to the same pension as available to post 1.4.1979 retirees was clearly untenable and did not flow from the Nakra Judgment’. This is an extract from the judgment in the case of IESL Vs UoI. The judgment is indisputable, no doubt, but irrelevant to the demand under consideration. It must be appreciated that this judgment rendered keeping in view the definition of the OROP as ‘same rank same pension’. There existed a mistaken concept in some of the ESM that personnel of the same rank must get the same pension in spite of the difference in the length of service ignoring the varying impact it has on the emoluments eligible for computing pension with varying length of service. Those who sought to achieve ‘same rank same pension’ might have been inspired by the fact that such pension scheme was in vogue prior to 1970. Specific pension was prescribed for each rank irrespective of the length of service and the pay drawn at the time of retirement, provided the pensioners had earned the minimum length of service stipulated for earning pension. This has been revised subsequently by introducing new Pension Rules. The definition of the phrase ‘One Rank One Pension’ now is ‘same rank same length of service same pension’, including thus the influence of varying average emoluments due to varying length of service, as well. Hence quoting the judgment rendered in the case of IESL Vs UoI is irrelevant and immaterial to the demand raised by the present lot of ESM and it flows absolutely from the SC Judgment in the Nakra case. It is worth mentioning that, fearing such mix-up in interpreting the phrase OROP, I had chosen to use ‘Absolute Parity in Pension’ in place of ‘One Rank One Pension’ and sent a paper justifying APIP to the Defence Minister on 08 Jun 2009, which paper had been gracefully acknowledged by him. Hereafter in this paper, I shall be using ‘APIP’ in place of ‘OROP’ to emphasize the true definition, differentiating from the incorrect notion.
6. Para 2.12 ‘… the pensioners as a group consists of persons with different number of years of service and different average pay during the relevant period. If all of them have to be treated alike by providing same pension while ignoring their respective variation in service and average pay, that may amount to treating unequal as equals. This may entail discrimination, offending the principles of equality before law as enshrined in our Constitution’. This is the stand, of course a right one, taken by the Ministry of Law. But this stand amounts to questioning of the wisdom of the Constitution bench of the Supreme Court expressed in the Nakra case wherein the learned Judges maintained that “Indisputably, viewed from any angle, pensioners for payment of pension form a class.” A clear attempt has been made in the report to misconstrue the definition of the Apex Body for Law and Justice. The definition of APIP mooted by the ESM community is on the basic indisputable principle that “no two pensioner of the same rank with same years of service should draw two different pensions”. Never has there been any illogical claim in the recent times that the whole lot of pensioners should be granted the same pension with no regard to the grade, year of service and the pay drawn at the time of retirement. Such claim, had it been made, is just outrageous and needs no consideration at all. Because of the logic in the fairness of distribution of the increased wealth of the Nation to all those who have contributed to the building up the wealth, the august judges of the Apex court dwelt at length to conclude categorically that “pensioner for the payment of pension form a class”. The Apex court considered that their conclusion is indisputable viewed from any angle. Yet the Officialdom of the Law Ministry disputes it with irrelevant statement. The explanation offered in the Para above amply clarifies that the demand of APIP does take into consideration the influence of varying length of service. Where then is the question ‘If all of them have to be treated alike by providing same pension’?
7. Para 2.12 ‘ … even in case of OROP there would be a large number of persons likely to be affected adversely’. This again is the conclusion of the Ministry of Law and Justice based on faulty interpretation of the definition of OROP. It is true and indisputable if OROP is granted with no regard to the length of service and with regard only of the consideration of the rank in isolation. When the length of service is taken into account, not even a single pensioner needs to feel adversely affected. On the contrary everyone will feel delighted that senior pensioner with higher length of service has been duly awarded with due and higher pension. That is what is mooted as APIP. (Please refer to the explanations at Para 5&6).
8. Para 2.13 ‘… Ministry of Law again advised that the same pension same rank was not an acceptable proposition’. Such categorical advice to the Ministry of Defence is unfortunate but cannot be faulted because there is no provision under the Law or Pension Rules for such award of pension based on the principle ‘the same pension same rank’. But by 2008, the definition of APIP had been refined and well established on the logic of the Apex Court based on the principle enshrined in the Article 14 of the Constitution. Hence, the Law Ministry should have advised more pragmatically, after exercising their mind from the standpoint of Law of Natural Justice based on fairness, equality and good conscience and in the light of the principle enunciated by the Apex Court in the case of Nakra. On the contrary they have stuck to the routine, which officialdom at times tends to. ‘Well! There is no provision in the administrative rules’. The matter ends there, as for as Administration is concerned. But it is not fair.
9. Para 2.14 ‘ … acceptance of the demand of OROP is not feasible administratively’. This statement is quoted by the CS from a DOL from the Raksha Mantri dated 13 Mar 2009. It is quite possible that the Defence Minister felt that in the absence of provision of specific rule to the effect of acceptance of APIP, the grant of the same is not possible, from legal point of view. But acceptance of the demand of APIP is matter of legislature. If the demand is found justifiable, the acceptance is matter of routine administrative procedure; administratively feasible as well. The demand, all along, has been to get such administrative approval for APIP for the pensioners of Armed Forces through the legislative process. Hence on reference from the Defence Minister, the Ministry of Law & Justice should have studied the issue in depth with the view to render suitable advice on the implications and the process of accepting APIP. The senior secretaries should have applied their mind more pragmatically and objectively to advise the RM on the feasibility of and the process for acceptance of APIP. It is reported by Tribune News Service New Delhi (August 14, 2009) that Sri AK Antony the Defence Mnister reassured the Defence forces on his commitment with these words. “You guard our land, sea and air frontiers in the most adverse climatic conditions and in inhospitable terrain. You live away from your families, making your task all the more difficult. It is, therefore, our collective duty to take care of your family members”. Therefore, relying on these words of the Minister it can be emphatically stated that the intention of the Legislature can not be to deny what is due to the Armed Forces Pensioners, if there is a way. It is up to the Officialdom of all the concerned Ministries to find that way.
10. Para 2.15 ‘… grant of ‘One Rank One Pension’ cannot be implemented for ex-servicemen alone and a demand for similar dispensation for civilian pensioners would also arise’. In his report, repeatedly the CS has been comparing Pensioners of the Armed Forces to the pensioners of Government Civilian employees. There is no rule whatsoever that whatever dispensation is granted to the Armed Forces personnel must be made equally applicable to the Civilian. Hence this argument is presumptuous and not objective. The job content and the Service Conditions of the Armed Forces Service and the Civil service are poles apart and no comparison is ever possible, leave alone equation. Please refer to the recommendation of high level Committee headed by Shri Sharad Pawar in the capacity of the Defence Minister. It is reflected in Para 2.4 of the Report and reads “ the terms and conditions of service of Armed Forces Personnel were distinct and as such, a special dispensation for them is required”. “The Estimate Committee (1980-81) on resettlement of ex-servicemen noted that”, the report states, “the disparity in pension in the past present pensioners of equal rank was inequitable and recommended that the matter should be examined and just solution found”. The report further states that “This issue was raised in 1984 by the High Level Empowered Committee on the problems ex-servicemen headed by Shri KP Sngh Deo, the then Minister of State for Defence. The Committee recommended that the Fourth CPC may consider the issue particularly in the light of the principle established regarding the pension of Judges of the Supreme Court and High Court”. These concerns of the senior Legislators definitely need to have been heeded by the CS.
11. Para 2.4 ‘… grant of One Time Increase (OTI) was recommended and granted’. The recommendation was done by Shri Sharad Pawar, in 1991 in the capacity of the then Defence Minister, who also recommended ‘special dispensation’ for the Armed Forces pensioner based on the same considerations stated by the present Defence Minister on 14th Aug 2009. The OTI accorded was arbitrary, transient and beneficial to a segment of the pensioners, dividing the single class of pensioners into fragmented sub-classes. The spirit of ‘the special dispensation’ has been diluted in an arbitrary manner. The special dispensation recommended by the high level committee, in the opinion of the ESM community is, according to me, APIP, though not put in such specific terms. OTI is an interim measure and APIP is the one time answer to the perennial problem of inequality in treating pensioners.
12. Para 2.6 ‘… Inter Ministerial Committee … did not favor grant of OROP’. It is not quite clear as to why the committee did not favor APIP but chose so called ‘modified parity’. The Inter Ministerial Committee was presumably comprised the senior administrative officials of the concerned Ministries. If so, nothing much can be expected from them as far the justifiable welfare of ESM is concerned. Yet one point of interest emerges. The Committee chose to recommend a notion of ‘modified parity based on the maximum of scale of pay’, obviously because the honorable members found logic in the Defence Minister’s recommendation of ‘special dispensation’. It is unfortunate that the Ministry of Finance insinuated such a recommendation as an attempt to introduce “ (through a side door) of the ‘one rank one pension’ ” system. Again, it was up to legislation to find a way. The intervention of the PM to refer the matter to GoM in Jan 2005 resulted in some improvement only in the pension of personnel other than the Commissioned Officers with effect from 01-01-2006.
13. Para 2.7 ‘… Ministry of Finance did not agree with the recommendation of the Ministry of Defence… (modified parity) should not be further modified to redress a presumed injustice’. Please refer to the comments in the previous paragraph. The concept of modified parity seems to have been accepted by the Government. If so, why cannot the concept of ‘modified parity’ be permitted to be reviewed and remedial correction carried out subsequently, if and when warranted. Of course, the Ministry of Finance has qualified with the phrase ‘to redress a presumed injustice’. What is the basis for the Ministry to so presume that redress sought in terms of APIP is on the basis of presumed injustice? Does it not indicate possible prejudice, on the part of the Finance Ministry in analyzing the projected redress to grievance by the ESM community? Because of the prejudice on the part of the Ministry of Finance and of Law & Justice, even the valid reference from the Ministry of Defence has been viewed as an attempt to get ‘One Rank One Pension’ scheme approved ‘through a side door’. (Ref the previous Para)
Part 3 - A Re-look at the Recommendations
1. The CS has given his recommendations based on his analysis of the facts that were presented by the officials of the various departments. With the limited time that was available to him and with the limited counsel from the officials who are quite prejudiced against the concept of OROP, he could not have come to any other conclusion than those enumerated under Para 3 onwards. From these recommendations one gets an impression that the Committee headed by the CS has confined itself merely to the study of the GoM’s proposal and, hence, is in total agreement with what the GoM had recommended. They did not exercise their minds to go deep into and beyond what was proposed by the GoM, as for the ESM community is concerned. There are some aspects that need very objective study, if the intention is to verify the veracity of the demand of APIP. I shall deal with these aspects, now.
2. Para 5.4(i) – ‘The GoM Award of 2006 had covered only PBOR pensioners’. So says the CS. Focusing on the fact that the President made a reference to OROP on the floor of the House on 4th June 09, some detailed consideration should have been given on the reasons that prompted the President to make that reference. The fact is that the demand of APIP by the ESM Community is distinct, rather a special dispensation quite different and based on the principles that appealed to the Senior Legislators and Supreme Court Judges. Because of this fact the issue appealed to the Government and a reference to study the issue was made by the President. The reference from the First Citizen of the Nation and the Supreme Commander of the Armed Forces should have been given due importance. Instead, based on very limited appreciation, the CS has built up a case merely to support the GoM Award of 2006. He did not choose to go beyond to recommend a proposal that would be fair to the ESM community as whole including the Commissioned Officers as well. The justice to and the welfare of the ESM Community, as a whole, unquestionably, are the main concerns and therefore, the preoccupations of the Ministers and the President, not just PBOR, Lieutenant Colonels and Lieutenant Generals.
3. Having said this, I am justified in concluding that the CS has gone on to negate any improvement in the pensions of the Commissioned Officers of the ESM community of the rank other than Lieutenant Colonels and the Lieutenant Generals. Besides, attempt is made to justify the present pension formula for the Commissioned Officers on the following false grounds:
Para 5.4(ii) – ‘The pension formula for the Commissioned Officers is the same as that applicable to the civilian employees …’. Does this statement have any legal bearing? Is it not in contradiction to what Shri Sharad Pawar had to say in the capacity of the Defence Minister in 1991? (Para 2.4 of the Report). Is the consistent insistence of the Standing Parliamentary Committee for Defence in recommending OROP has no significance whatsoever? I believe that fairness is the hallmark of any administrator and I wonder if the CS and his Committee are likely to agree with me, on that score. There can never be any comparison between the Civilian employees and the Armed Forces personnel. (Please refer to Para 10 of Part 2)
Para 5.4(ii) – ‘ … and any dispensation to the Commissioned Officers will generate demands from the civilian employees’. It can never happen, because the civilian employees retire at the ripe age, after completion of full tenure and in the course of that full tenure, each one invariably attains the maximum possible pension, applicable to them. Besides, the cylindrical hierarchical structure provides them enough opportunity to rise up quite high in the grade structure. It is only the Armed Forces pensioners who are denied this opportunity to earn the full pension due to truncated service, and broad based hierarchy. Even if such a demand arises which is a remote eventuality, it has to be dealt with objectivity and granted, if found justifiable. On the contrary, to deny such a demand, based on such presumption to the deserving ESM Community, is not in tune with the vision of the founders of the Constitution. (Please refer to Para 10 of Part 2 and the previous Sub-Para).
Para 6.4 – The CS says while recommending MoD’s award for acceptance, ‘This will have to be applied to civilians since the formula for the pension of the Commissioned Officers and civilians is the same’. How presumptuous! Is there any such provision in the Pension Rules? ‘To what extent the application of same formula for the Commissioned Officers and the civilian is logical?’ is the most pertinent question that should have been raised and answered, and the categorical assertion of a presumption based on some precedence is unwarranted. The same argument as above is applicable, to negate this statement.
Para 5.4(iv) – ‘Even in the case of post 1.1.2006 PBOR retirees, the Ministry of Defence has been advised by the Ministry to allow them an option …’ The implied mandate to CS, I believe, is to review the implementation of 6CPCR in the light of various views on the matter of OROP and find a solution and not keep reiterating the statements made in the past, as if these statements and the recommendations of the Ministry of Law are sacrosanct for all time to come.
3. What the CS and his Committee tried to achieve is to bring about some improvement in the existing pension of the PBOR, such that the parity that was achieved between pre and post 01 Jan 1996 pensioners, can be extended to the pre 2006 pensioners with respect to post 2006 pensioners, to some extent. This is in tune with the views of the GoM. This would have very well been achieved, had the demand of OROP - demanded in its true sense - was granted way back in the nineties by the Courts and the Government. What is being done is restoring recommendation of the 5th CPCR which introduced fixing the pension at the maximum of the revised pay scale. Besides, the question - if creation of two sub-clauses, namely pre and post 01 Jan 2006 within the one homogeneous class of pensioners, can pass the touchstone of Article 14 of the Constitution, which places utmost value on the two fundamental principles of equality and rationality in administration and legislation - has not been addressed at all. Does the measure contemplated bring about APIP, in its true sense, to the pensioners, as whole with no reference to the date of retirement?
4. However, one aspect has emerged crystal clear from this report. There has been consistent attempt, successful that too, by pay commission after pay commission to ensure more than one class of pensioner, one belonging to the period prior to the date of implementation of the recommendations of the pay commission and the second that of the pensioners following the date. When disparity in the pension becomes apparently magnified, attempt is made to partially nullify the disparity by introducing parity among the pensioners of the period prior to the date of the implementation, that too in accordance with arbitrary formulae, differing to suit the occasion. This is what is termed as ‘full parity’ and ‘modified parity’. This certainly is not parity either in its true meaning or as understood by the ESM. The unfortunate part is that the sufferers due to this manipulation are the Armed Forces pensioners and not the Civilian pensioners. And the loyal and disciplined lot of Armed Force pensioners with the unique ethos of their own never had learnt the penchant to harness and use the power of collective bargaining.
Part 4 – The Concept of APIP and the Justification
1. I took the liberty to forward a paper titled ‘Absolute parity in Pension’ to the Defence Minister on 8th June 2009, immediately after the Presidential Address of 4th June. The paper covers the aspect under discussion quite elaborately and hence lengthy. I am grateful to the Minister for his graceful response, not once but twice, to the same, first on 17th June, more in the form of an acknowledgment and the second on 3rd August to convey the result of the study by the team headed by the CS. Encouraged by his response the second time, that too on his own, now, in this part, I am making an attempt to resubmit the concept of ‘Absolute Parity in Pension’ and justification for the demand of the same by the ESM community, in the background of the CS’s Report of 30th June. There is some duplication of the statements and explanations, which, I find, are helpful for cohesive comprehension.
2. The definition of APIP is based on the principle of equality. I quote the words of the honorable judges of the Supreme Court spoken while rendering the Judgment in the case of Nakra Vs UoI. “Values determine contemporary socialism, pure and simple. ... The principal aim of a socialist State is to eliminate inequality in income and status, and standard of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially to provide security from cradle to grave. This, amongst others on economic side, envisaged economic equality and equitable distribution of income”. Inspired by these words I found it apt to moot the concept of Absolute Parity in Pension for ESM. Any two pensioners holding the same rank and same length of service are to be treated as equals and hence are eligible for same pension.
3. APIP is imperative to soldiers (the word ‘soldier’ is used to indicate all ranks in all the three wings of the Armed Forces). The service conditions for the soldiers dictate that a soldier has to perforce retire much before the normal age of superannuation which is routinely applicable to any civilian employee as a matter of right in private, public and government sector. A jawan (the lowest ranking army soldier) retires on completion of 16 to 18 years of service. His age at the time of retirement may be around 35 years. A brigadier retires at the age of 56 years. Thus the soldiers are deprived of employment for a period ranging from 4 to 25 years, if we consider the age of superannuation as of 60 years. Of course, some assistance is provided by the government by stipulating a small percentage of reserved posts in various departments, exclusively for ESM. The government renders assistance in other venues of self employment, as well. But, have these provisions fulfilled the vacuum created by retiring the soldier so early? Well, not so! Only an opportunity to earn full pension by virtue of serving till the age of superannuation can wipe out the loss a soldier and his family are forced to suffer due to early retirement; nothing else.
4.. There is yet another grave side to the service conditions of the soldier. The sacrifices, he and his family including the children are called upon to make in the sacred duty of guarding the nation’s borders in the air, water and the land, are so poignant that a soldier is held in high esteem, looked upon with admiration and considered as an honorable citizen, in the society, yet soldiering as a career is the last option in the Country. (Mark the words of Shri AK Antony the Defence Minister quoted in Para 9 of Part 2, and read Appendix B for elaboration). The unstipulated, but amply evident, liability for a soldier to get killed in war and even during training is the highest of the sacrifices on the part of the soldier and his family, especially the children. The extent of this sacrifice can only understood if data on the soldiers who lost their lives and those who are maimed in the course of their service is reviewed. Can we call this sacrifice as part of professional hazard and hence, treat it as unworthy of compensation? At this juncture, it is just sufficient to pause a while and compare the nation’s adulation by showering wealth and honor on the personnel who excel in the field of sports and entertainment with the consideration they happen to show to the soldiers. God and soldiers are fervently revered in peril but utterly forgotten in prosperity.
5. The facts highlighted above have been recognized by the Government way back, when ‘One Rank One Pension’ was introduced. A soldier’s pension was linked to his rank with no consideration to service rendered beyond the minimum requirement stipulated for earning pension and, that pension had a handsome element built in by way of compensation for the truncation of service. The pension was much more than that of the counterpart in the civil employment, in terms of age. However, subsequently for reasons best known to the pay commissions, the soldiers’ pension also was brought under Pension Rules applicable to the Civilian employees. This was the beginning of the problems for the ESM. Neither there was an assured continued employability nor adequate compensation by way of ‘special dispensation’, to use the phrase coined by the High Powered Committee headed by Shri Sharad Pawar.
6. Subsequently, many arbitrary measures like weighting for the reduction in service and one time increase in pension were introduced. These measures, though, were helpful in easing out the poor pecuniary state of the pensioners to a limited extent, turned out to be the bugbear, causing quite a few anomalies, due to which, the sanctity of neither the rank nor the length of service of the soldier could be maintained. Recent Pension orders were amended thrice by the Government within a span of three months to set partially right the anomaly of lower pension for Lieutenant Generals and Major Generals; lower than that of a Colonel junior by two to three grades and with lesser service. The fourth amendment in the case of Lieutenant General, though righted the anomaly, yet not fully, with respect to that rank, has created incredulous disparity, in comparison to the pensions of others. Because of ad hoc and arbitrary measures the gradation of pension with respect to service and rank has gone topsy-turvy. Let us take a look at the pensions of a few ranks, consequent to the implementation of 6CPCR:
Rank Pre 1.1.2006 Post 1.1.2006
Major Rs.14100/- Rs.22135/-
Lieutenant Colonel (TS) Rs.25700/- Rs.28695/-
Lieutenant Colonel (S) Rs.25700/- Rs.28695/-
Colonel (Selected) Rs.26050/- Rs.30375/-
Brigadier Rs.26150/- Rs.31170/-
Major General Rs.26700/- Rs.33925/-
Lieutenant General Rs.36500/- Rs.39500/-
7. In the case of pre 1.1.2006 pensioners, the increase in pension from one rank to other, even with more length of service in the senior rank, is drastically different, beating any rationale and causing severe heartburn among the pensioners. It is interesting to note that the difference in the pensions of consecutive two ranks has been reasonably graded for post 1.1.2006 retirees, whereas it remains alarmingly erratic for those retired prior. A brigadier’s pension is just 100 rupees more than that of a colonel whereas a Lieutenant General draws a pension much more by an amount of 9800 rupees than that of the Major General, just one rank below. The difference between the pension of Lieutenant Colonel and Major, again just one rank below, is a whooping 11600 rupees. This is the result of arbitrary and wrong revision of pension based on notional pay at the minimum of the pay band, instead of the notional pay, commensurate to the service rendered, taking into account the number of increments earned in the previous scale. Similar is the case for personnel other than Commissioned Officers. The case of revised pension of ESM is pathetic when we make more specific comparison between two different ranks, junior and senior.
8. It is baffling to notice that the anomaly has led to a ridiculous state wherein, all the senior ranking officers from Colonel to Major General with more years of service to their credit retiring a day before 01.01.2006 shall draw lesser pension than junior ranking officer of the rank of Lieutenant Colonel that too with lesser years of service retiring a day after. A Major General draws a pension of Rs26700/= whereas a time scale Lieutenant Colonel draws a pension of Rs28695/=. Similarly a havildar, a senior ranking soldier, will draw a pension lesser than that of a junior ranking jawan (junior by two ranks) by an amount of Rs800/=, (approximately by 15%). It must also be borne in mind that the broad based pyramid structure of the hierarchy in Armed Forces unlike other Civilian services, wherein the structure is cylindrical up to fairly senior level, leaves very limited scope for deserving personnel Armed Force personnel to pick up higher ranks. Thus, summing up, we find that the pension anomaly is peculiar to the Armed Forces because of the following three reasons:
Drastic truncation of service
Limitation of opportunity to rise to higher posts.
Incorrect policy for pension, which is based on the Pension Rules applicable to the civilian employees with much different service conditions and opportunities.
9. The wisdom of the Legislature and of the Judicature has always been just, and their interpretation of pension benefit for the Armed Forces personnel has been based on the sound appreciation of these facts, put forth in these paragraphs. The Judgments by the Supreme Courts have time again upheld the golden rule of equality. They considered that classifying the pensioners into two subclasses based on a date of implementation such that those who retired earlier are eligible for pension lesser than that of those, who retire later, is totally arbitrary. The Judges of the Constitution Bench of the Supreme Court, who dealt with the case of Nakra quizzed on studying this situation “If this be the underlying intendment of liberalization of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date, but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee?”. They went on to illustrate “Therefore this division which classified pensioners into two classes is not based on any rational principle and if, the rational principle is the one of dividing pensioners otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension?. They said with great concern and strong premonition “A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14”.
10. While reading the recent Judgment on the appeal by the Government in the case of Vains Vs UoI, I find the Judges very curt to rule “We, accordingly, dismiss the appeal and modify the order of the High Court by directing that the pay of all pensioners in the rank of Major General and its equivalent rank in the two other Wings of the Defence Services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from 1.1.1996, and, thereafter, to compute their pension benefits on such basis with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from date with interest at 10% per annum”. (see Appendix E)
11. The leaders in the field of Legislature view issues always pragmatically from the angle of fairness, equality and good conscience and not mere rules and law. “Rule and law can be changed or newly legislated if warranted” is their unshakable conviction and it is in accordance with the Law of Natural Justice which is the foundation of any good governance. We find the approach of Shri Singh Deo, Shri Sharad Pawar and Shri AK Antony the present Defence Minister has been consistent, when addressing the issue of pension for the Armed Forces personnel. They viewed soldiering as honorable national service under conditions of unimaginable hardship and felt that the Nation must respond in an equally noble manner. Hence each one favored some kind of special dispensation to the soldier during the service and afterwards. The Parliamentary Standing Committee for Defence reiterated in very specific terms the grant of OROP, stating emphatically “The Committee, therefore, once again reiterates their earlier recommendation for providing `One Rank One Pension' to the armed forces personnel". (see Appendix D). It is worthwhile to reiterate at this stage that the belief that the Armed Forces personnel must be treated at par with the civilian employees is just a bogey.
12. All these laudable efforts on the part of the Legislature and Judicature were nullified due to one obsession of the Officialdom of the Executive; the obsession of equation of the Armed Forces Personnel with other Civilian Government employees. None of the Legislators have seen any equation, as brought out in the earlier paragraphs. On the contrary they treated the soldiers as of a distinct category. Please refer to Appendix B for the sacrifices, tolerance to adverse emotional and physical working environment and the strength of character required of the soldier. Please note that the figures of casualties, indicated therein, cover only some of the operations. It does not cover casualties suffered in insurgency operations since independence, by the IPKF and during training and peace time activities. Comparison of those figures against the total casualties suffered by the all the other All India Services will reveal the magnitude of the difference in the nature of Job Content of a soldier. What yardstick is there that can ever be employed to compare a civilian employee to a soldier and draw an equation, in the matter of pay, perks and status, I wonder.
13. It is time to sum up. Without further elaboration, I would like to phrase the expected verdict from the Legislators by just modifying the Judgment of 09 Sep 2008 by the learned judges J Altamas Kabir and J Markandey Katju, to suit the present demand by the ESM, as the situation that warrants such a verdict is absolutely the same.
“Let the pay of all pensioners of the Armed Forces be notionally fixed at the rate given to similar officers of the same rank and same length of service after the revision of pay scales with effect from 1.1.2006, and, thereafter, their pension benefits be computed on such basis as applicable to those retiring after the date of implementation with prospective effect from the same date of implementation.
Permit the pensioners to draw an annual increment at the rate applicable to the serving personnel, such that the disparity, if any, that arises due to such increment to the serving personnel can be set right.
Let a suitable element of compensation, in addition, be allowed for the truncation of service before the age of superannuation permissible for any employee as a matrer of right”
END OF PAPER
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Appendices
Appendix A - Extracts from the SC Judgment in the case DL Nakra Vs UoI
33. Recall at this stage the preamble, the flood light illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic. Expression 'socialist' was internationally introduced in the Preamble by the Constitution (Forty-Second Amendment) Act, 1976. In the objects and reasons for amendment amongst other things, ushering in of socio-economic revolution was promised. The clarion call may be exacted:
The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some time........ It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism....... to make the directive principles more comprehensive.............
What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramifications. The principal aim of a socialist State is to eliminate inequality in income and status and standard of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This, amongst others on economic side, envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism, leaning heavily towards Gandhism socialism. During the formative years, socialism aims at providing all opportunities for pursuing the educational activity. For want of wherewithal or financial equipment, opportunity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free education from primary to Ph. D, but the pursuit must be by those, who have the necessary intelligent quotient and not, as in our society, where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal, while the ill-equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage. After the education is completed, socialism aims at equality in pursuit of excellence in the chosen vocation without let or hindrance of caste, color, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But, even here the less equipped persons shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be monarch or a mahatma, workers or a pariah. The old age overtake each one, death being the fulfillment of life providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the state shall ensure to the citizens a reasonable standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure relieving the boredom and the humiliation of dependence in old age. That is what Art 14 aims, when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State, which the Preamble directs the centers of power - Legislative, Executive and Judiciary - to strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march, but during this journey to the fulfillment of goal, every State-action taken must be directed, and must be so interpreted as to take the society one step towards the goal.
34. To some extent, this approach will find support in the judgment in Minerva Mills Ltd. and Others v. Unions of India and Others (1979) I. S. C. R. Speaking for the majority, Chandrachud, C.J. observed as under:
"This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallized in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put Part IV into our Constitution containing Directive Principles of State policy, which specifies the socialistic goal to be achieved."
At a later stage, it was observed that fundamental rights are not an end in themselves, but are the means to an end, the end is specified in Part IV. Bhagwati, J., in his minority judgment after extracting a portion of the speech of the then prime Minister Jawaharlal Nehru, while participating in a discussion on the Constitution (First Amendment) Bill, observed, that the Directive Principle are intended to bring about a socio-economic revolution and to create a new socio-economic order, where there will be social and economic justice for all and everyone, not only to a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the fundamental rights. It, therefore, appears to be well-established that while interpreting or examining the constitutional validity of legislative /administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other.
35. With this background let us now turn to the challenge posed in these petitions. The challenge is not to the validity of the pension liberalization scheme. The scheme is wholly acceptable to the petitioners, nay they are ardent supporters of it, nay further they seek the benefit of it. The petitioners’ challenges are admissible to those who retired from service after a certain date. In other words, they challenge that the scheme must be uniformly enforced with regard to all pensioners for the purpose of computation of pension irrespective of the date when the Government servant retired subject to the only condition that he was governed by the 1972 Rules. No doubt, the benefit of the scheme will be available from the specified date, irrespective of the fact when the concerned Government servant actually retired from service.
36. Having set out clearly the society which we propose to set up, the direction in which the State-action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age, at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up welfare State because by pension the socialist goal of security of credit to grave is assured at least when it is mostly needed and least available, namely, in the fall of life.
37. If such be the goals of pension, if such be the welfare State which we propose to set up, if such be the goals of socialism and conceding that any welfare measure be consistent with economic capacity of the State progressively augmented with wider width and a longer canvass yet when the economic means permit the augmentation, should some be left out for the sole reason that while in the formative years of the nascent State they contributed their might, but when the fruits of their labor led to the flowering of economic development and higher gross national produce bringing in large revenue and therefore large cake is available, they would be denied any share of it ? Indisputably, viewed from any angle, pensioners for payment of pension form a class. Unquestionably pension is linked to length of service and the last pay drawn but the last pay does not imply the pay on the last day of retirement but average emoluments as defined in the scheme. Earlier average emoluments of 36 months' service provided the measure of pensions because the pension was related to the average emoluments during 36 months just preceding retirement. By the liberalized scheme - it is now reduced to average emoluments of 10 months service - would appreciate at a glance that with an average of 10 months it would be on the higher side on account of the two fortuitous circumstances that the pay-scales, if one has not reached the maximum, permit annual increments and there are promotions in the lay one or two years. With a view to giving a higher average emolument with reference to last 10 months' service coupled with it, a slab system for computation is introduced and the ceiling is raised. This is liberalization. Now if the pensioners who retired prior to the specified date had to earn pension on the average emoluments of 36 months salary just preceding the date of retirement, naturally the averages would be lower and they will be doubly hit, because the slab systems as now introduced was not available and the ceiling was at a lower level. Thus they suffer triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling.
Appendix B - Extract from the Paper titled ‘Absolute parity in Pension - V3’
By Major General (Retd) RN Radhakrishnan
Image of a Soldier
1. The majority of the people in the present days, especially the personnel in the business of the Governance of the country, do not have a realistic image of a soldier. A soldier is generally visualized as a person who has chosen to serve merely in the capacity of a government servant. The fact, that the terms of the Service Conditions specified by the Government are stringent only for him and not any other citizen, is not known to most. This, one must remember, is just an image and, not his true form. One must keep in focus the true form of the soldier, while perusing this paper, if he is truly interested in giving a fair deal to the soldier, in compensation to his performance in the capacity of a soldier.
First and foremost, a soldier is as much a citizen as any other citizen of the Nation. Hence he deserves not to be denied any right that is available to any citizen.
Second, he is a better citizen. The culture he develops while in the service inculcates in him the virtues that are considered honorable. Many surveys have shown so. Loyalty, integrity, discipline, dedication to the cause and sacrifice in the interest of the cause are just a few of such virtues.
Third, he not only is willing to sacrifice his life when war breaks out but also has willingly sacrificed his rights, so that the Government can bind him almost to the level of bonded labor, under the guise of Service Conditions. He is denied
his right to freedom of speech
his right to voluntarily retire from service without government’s permission,
his right to proceed even on legitimate leave at his convenience and above all
his right to form an association that will give him the power of collective bargaining with his employer.
Fourth, the service conditions for a soldier are of the severest kind. No other occupation or service can ever be compared while discussing the stress to which these service conditions subject the soldier. The frequent transfers to various stations and very short tenures in a station disrupt the family life; Such transfers cause severe emotional sense of insecurity in the minds of the family members especially the children.
Admission to the schools of repute, once considered by the school as a bounden duty towards the Service Personnel, is denied nowadays.
‘Rolling stone gathers no mass’ is a modified saying that aptly describes the plight of soldier who can never build a home for himself in any particular place of choice.
The need to rotate the soldier through soft and hard peace station and similarly hard and soft field stations cause separation from the family, to very great extent. The lack of parental guidance to the children and moral and physical support of the man of the house have wrecked quite a few families.
Fifth, many tend to take the willingness to sacrifice the life on the part of the soldier as a matter of ‘professional hazard’. How strange! Let us take a look at the figures of casualty suffered by the Armed forces to ensure the sovereignty of the Nation over past sixty glorious years of Indian Democracy. The figures were downloaded from the Web.
War Killed Wounded
Indo-Pakistani War of 1948 - 1,104 3,152
Sino-Indian War 1962 - 3,128 1,697
Indo-Pakistani War of 1965 - 3,264 8,623
Indo-Pakistani War of 1971 - 3,843 9,851
Kargil War: May-July 1999 - 527 1,363
Total Casualties - 11,866 24,686
Should this be considered as professional hazard or sacrifice of the highest order, that can never be compensated by any means by any Nation?
Sixth, the living conditions of the soldier and his family of any rank is pathetic notwithstanding the provisions that exist to cater for comforts to the decent extent. Ninety percent of a soldier’s life in actual service is spent in substandard living conditions.
2. This is the true form of a soldier in whatever rank and in whatever fighting arm, he serves. This true form must be borne in mind, while serving and on retirement, when dealing with his
Status
Perks and privileges
Pay and pension
Soldiering is not just a profession. It has been looked upon as the most revered service inspired by the noble mental frame that cares for the Nations sovereignty. A soldier may, no doubt, be trained to develop the necessary skills in warfare. But, a soldier is born and not made. History bears witness to the adoration bestowed upon a soldier from time immemorial by the Rulers and the citizens of any nation. Should a soldier not be given the preferred status of a better citizen and a more honored government employee? Of course! Such a soldier has to be preferentially treated. Compensation to a soldier is to be considered as payment of homage and not pay. In this context, the words of Sanding Parliamentary Committee for the Defence, found in its report for the year 2003, are worth recalling.
“The nation must repay its debt to those defenders of the motherland with gratitude and humility. We should, instead of, looking for precedents in this regard, create precedents for the others to emulate. Any amount paid in this regard would be small token of our gratitude to them.”
Appendix C - Extracts from the SC Judgment in the case DL Nakra Vs UoI
Pertaining to Arbitrariness
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differential which distinguishes persons or thing that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
16. As a corollary to this well-established proportion, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of un-equals a Welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and ameliorate of whose lot is the object of state affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically, appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move a constitutionally laid down in part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. The International Airport Authority of India when at SCR page 1034 (SCC p. 506), the Court observed that a discriminatory action of the Government is liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
17. The basic contention, hereinbefore noticed is that the pensioners for the purpose of receiving pension form a class and there is no criterion on which classification of pensioners retiring prior to specified date and retiring subsequent to that date can provide a rational principle correlated to object, viz. object underlying payment of pensions. In reply to this contention set out in para 19 of the petition, Mr. S. N. Mathur, Director, Ministry of Finance in part 17 of his affidavit-in-opposition on behalf of the respondents has averred as under :
18. "The contentions in part 18 and 19 that all pensioners form one class is not correct and the petitioners have not shown how they form one class. Classification of pensioners on the basis of their date retirement is a valid classification for the purpose of pension benefits."
19. These averments would show at a glance that the State action is sought to be sustained on the doctrine of classification and, the criterion on which the classification is sought to be sustained is the date of retirement of the Government servant which entitled him to pension. Thus, according to the respondents, pensioners, who retire from Central Government service and are governed by the relevant pension rules, all, do not form a class but pensioners who retire prior to a certain date and those who retire subsequent to a certain date form distinct and separate classes. It may be made clear that the date of retirement of each individual pensioner is not suggested as a criterion for classification, as that would lead to an absurd result, because in that event every pensioner relevant to his date of retirement will form a class up to himself. What is suggested is that when a pension scheme undergoes a revision and is enforced effective from a certain date; so specified becomes a sort of a Rubicon and those who retire prior to that date form one class and those who retire on a subsequent date form a distinct and separate class and no one can cross the Rubicon. And the learned Attorney-General contended that this differentiation is grounded on a rational principle and it has a direct correlation to the object sought to be achieved by liberalized pension formula.
20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Other [1971-I L. L. J. 557], wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the decision of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Another v. Iqbal Singh.
39. Both the impugned memoranda do not spell out the raison d'etre for liberalizing the pension formula. In the affidavit in opposition by Shri S. N. Mathur, it has been stated that the liberalization of pension of retiring Government servants was decided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the pre-liberalized pension scheme did not prove adequate protection in old age and that a further liberalization was necessary as a measure of economic security. When Government favorably responded to the demand, it thereby ipso facto conceded that there was a larger available national cake part of which could be utilized for providing higher security to erstwhile Government servant who would retire. The Government also took note of the fact that continuous upward movement of the Cost of Living index as a sequel of inflationary inputs and diminishing purchasing power of rupee necessitated upward revisions of pension. If this be the underlying intendment of liberalization of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee? What is the sum total of picture? Earlier the scheme was not that liberal, keeping in view the definition of average employments and the absence of slab system and a lower ceiling. Those who rendered the same service earned less pension and are exposed to the vagary or rising prices consequent upon the inflationary inputs. If, therefore, those who are to retire subsequent to the specified date would feel the pinch in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee? And the greater misfortune is that they are becoming older and older compared to those who would be returning subsequent to the specified date. The Government was perfectly justified in liberalizing the pension scheme. In fact it was overdue. But we find no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specified date.
40. Therefore, let us proceed to examine whether there was any rationale behind the eligibility qualification. The learned Attorney-General contended that the scheme is not whole and that the date is an integral part of the scheme and the Government would have never enforced the scheme devalued of the date and the date is not severable from the scheme as a whole. It is contended by the learned Attorney-General that the court does not take upon itself the function of legislation for personnel things or situations, omitted by the Legislature. It was said that when the legislature has expressly defined the class with clarity and precision to which the legislation applies, it would be outside the judicial function to enlarge the class and to do so, is not to interpret, but to legislate which is the forbidden field. Alternatively it was also contended that where a larger class comprising two smaller classes is covered by a legislation of which one part is constitutional, the Court examines whether the legislation must be invalidated as a whole or only in respect of the unconstitutional part. It was also said that severance always cuts down the scope of legislation but can never enlarge it and in. The present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an attempt is made to include them in the scheme it is not cutting down the class or the scope, but enlarges the ambit of the scheme which is impermissible even under the doctrine of severability. In this context it was lastly submitted that there is not a single case in India or elsewhere where the Court has included some category within the scope of provisions of a law to maintain its constitutionality.
41. The last submission, the absence of precedent need not deter us for a moment. Every new norm of socio-economic justice, every new measure of social justice commenced for the first time at some point in history. If at that time it is rejected as being without a precedent, the law as an instrument of social engineering would have long since been dead and no tears would have been shed. To be programmatic is not to be unconstitutional. In its onward march law as an institution ushers in socio-economic justice. In fact, social security in old age commended itself in earlier state as a moral concept but in course to time it acquired legal connotation. The rules of natural justice owed their origin to ethical and moral code. Is there any doubt that they have become the integral and inseparable parts of rule of law of which any civilized society is proud? Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts, in course of time, moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes as insurmountable road block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied. Therefore, absence of a precedent on this point need not deter us at all. We are all the more happy for the chance of scribing on a clean state.
42. If it appears to be undisputable, as it does to us, that the pensioners for the purpose of pension benefits form a class, would upward revisions permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria, unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well-settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalize the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those two retired prior to that date. If the liberalization was considered necessary for augmenting social security in old age to Government servants then those who retired earlier cannot be worst off than those who retire later. Therefore this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equals number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One, retiring a day earlier will have to be subject to ceiling of Rs.8100 pa. and average emolument to be worked out on 36 months salary while the other will have a ceiling of Rs.12000 pa. and average emolument will be computed on the basis of last ten months average. The artificial division stares in face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalizing the pension scheme. In fact this arbitrary division has not only no nexus to the liberalized pension scheme but it is counter productive and runs counter to the whole gamut of pensions scheme. The equal treatment guaranteed in Art. 14 is wholly violated inasmuch the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pensions. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14.
Appendix D - The Extract from the Parliamentary Standing Committee on Defence
"The Committee has been recommending grant of `One Rank One Pension' to the armed forces personnel time and again. The Committee observes that successive Governments and Pay Commissions have made improvements in the pension structure keeping in view the cost of living index. This has accentuated the disparity of pension benefits between pensioners of the same rank. The older pensioners who have become infirm in ability and capability and burdened with a larger social obligation receive pension calculated at the rate of pay at the time of their retirement in 1950s or 1960s or 1970s, which is quite paltry and the Dearness Relief quite inconsequential in today's context of inflation and shrinking purchasing value of money. The nation must repay its debt to those defenders of the motherland with gratitude and humility. We should, instead of, looking for precedents in this regard, create precedents for the others to emulate. Any amount paid in this regard would be small token of our gratitude to them. The Committee, therefore, once again reiterates their earlier recommendation for providing `One Rank One Pension' to the armed forces personnel".
Appendix E - Extract of Judgment in the case of appeal by GOI
In the case of SPS Vains (Retd.) and others
16. The case of the respondents however, was that in view of the Constitution Bench decision of this Court in D.S. Nakara and others vs. Union of India (1983) 1 SCC 305, the fixation of a cut-off date as a result of which equals were treated as unequals, was wholly arbitrary and had been rightly interfered with by the High Court. One of the questions posed in the aforesaid decision was whether a class of pensioners could be divided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired thereafter. The question was answered by the Constitution Bench holding that such division being both arbitrary and unprincipled the classification did not stand the test of Article 14.
18. It was also the respondents' case that though there was no dispute that Major Generals were entitled to higher pension benefits than that enjoyed by Brigadiers, the appellant erroneously insisted that the cut-off date had to be fixed in view of the limited financial resources available to cover the additional expenses to be incurred on account of revision of pay scales.
26. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) wherein in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution.
31. We, accordingly, dismiss the appeal and modify the order of the High Court by directing that the pay of all pensioners in the rank of Major General and its equivalent rank in the two other Wings of the Defence Services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from 1.1.1996, and, thereafter, to compute their pension benefits on such basis with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from date with interest at 10% per annum. The respondents will not be entitled to payment on account of increased pension from prior to the date of filing of the writ petition.
32. The appeal is accordingly dismissed.
END OF APPENDICES
Author
Maj Gen RN Radhakrishnan (Retd)/03 Sep 09/26 of 26.
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