Wednesday, 5 March 2014

Legal Aspects of denial of NFU to Armed Forces Officer - by R/Adm O'Leary

By Rear Admiral Alan O’Leary (Retd)
1.                   This article, seeks to bring out the fault lines in the Govt's decision (based on the Sixth CPC recommendations) to grant liberalised Pay and Pension to the ‘All India Services and the Organised Group A Services’ by ensuring pay promotions up to the Additional Secretary level, on a non-functional basis, while not extending this largesse to the Armed Forces (AF) Officer cadre, who traditionally have been banded together with this Group, for pay determination. For this, I have taken the arguments of the Hon’ble Supreme Court, in the celebrated case of DS Nakara & Others Vs the Union of India .
2.                 In this case, a single group of pensioners were divided by a time-line, such that retirees, post a stipulated date, were given the benefit of a liberalised pension scheme, whereas, the others who retired earlier were not benefited by the new scheme. The various rulings in this case, have therefore been modified, to illustrate it applicability to our case for grant of NFU as shown below: -
(a)              The Sixth CPC had accepted the demands of the Unions and Associations of the Civil Services to provide pay promotion opportunities for them, on a non-functional basis, without considering merit, right up to the HAG scale, but erroneously or otherwise, denied this to the AF Officer cadre.
(b)             In so doing, the Govt has broken the bonds in pay structures between the AF Officer Corps and the Civil Services that were traditionally considered at par. Thus, they extended a liberalised Scheme to one group and denied it to the other Group that were similarly situated.
(c)              In the absence of any explanation, for disturbing the extant parity, the action by the State, is arbitrary and violates Article 14 of the constitution, in not providing equality of treatment to the AF Officer cadre, at par with the Civil Services.
(d)              The Hon’ble Supreme Court has stipulated, that attention to Article 14 of the Constitution is attracted, where equals are treated differently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed. 
(e)              Splitting of the Pay BOND, between the AF Officer Corps and the AIS and Group A Services, would need to satisfy the twin tests of reasonable classification and the rational principle, co-related to the object sought to be achieved.
(f)              The Govt, by providing NFU to the Civil Services alone, would enable this group, to leap-frog (for pay purposes) over Armed Forces Officers holding higher functional posts, in organisations, where they  either work together, ie. the MES, BRO, or alongside the Armed Forces Officers in organisations such as  the Armament Depots in the Navy. In this connection the Hon’ble Supreme Court has ruled that persons holding identical posts should not be treated differently in the matter of their pay, merely because they belong to different Departments. If this cannot be done whilst in Service, it also cannot be done in retirement. To expand on this principle, all Govt officials are ranked in a certain pecking order, within their Departments, with each post having a Pay scale based on function and scope of responsibility. In turn, all Departments considered at par in this regard, are cross-linked, thereby establishing a hierarchical  pay structure, uniform to similarly placed Officers, ie. Group A Officers.
(g)              In deciding equivalencies, the Govt is bound to consider length of service and merit, and to maintain traditional parities between all Services in a particular Grouping, unless they can explain why there is a need to depart from this methodology.
(h)              The Hon’ble Supreme Court has laid down that the principal aim of a Socialist State, is to eliminate inequality in income Status and standards of life and yet the Sixth CPC and the Govt have neglected to protect the interests of the Armed Forces Officers.
3.                 The Govt is yet to stipulate what OROP, they will provide to the pre-2006 retirees, but now the time is ripe for the Armed Forces and the ESM to strongly state their case for NFU, or else we will find ourselves trailing in the next CPC as well.
The author, Rear Admiral Alan O’Leary is well versed with various facets of Pay & Pension of Armed Forces personnel; and, has been Chairman, Defense Pay and Remuneration Committee (PARC) in the 6th CPC

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