Saturday, 30 May 2015
Episode VII - OROP: A summing up as per an IPS retd Lawyer
Dr. Ashok Dhamija
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, author of law books and an ex-IPS officer having also worked in CBI. Read more by clicking here. Email: email@example.com Twitter: https://twitter.com/ashokdhamija
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About 25 lakh retired military personnel have been demanding “One Rank, One Pension” (OROP) for a long period. It has not been implemented by the Central Government so far, even though the Government has already accepted it in principle and there are judgments of the Supreme Court laying down that discrimination in the matter of grant of pension on the basis of the date of retirement is not permissible as it is violative of the fundamental right to equality guaranteed under Article 14 of the Constitution. In fact, recently, I have also won a case against discrimination in the grant of pension to similarly situated retired IPS officers who retired prior to 2006 vis-a-vis those who retired on or after 01.01.2006, which means that this principle would be applicable to civil services also; but, more on this slightly later. Let me first explain what “One Rank, One Pension” is, why it is the mandate of law, and also why it must be implemented by the Government forthwith.
“One Rank, One Pension” rule basically implies that retired soldiers of the same rank with the same length of service will be entitled to get the same amount of pension, irrespective of the date or year of their retirement. Simply put, it means if someone has retired from the Army from a particular rank having rendered a particular number of years’ service, then he will get the same pension that is paid to another person who subsequently retires from the same rank with the same number of years’ service. For example, if a sepoy (i.e., jawan or sipahi) retired in 1990 after rendering service for 15 years, he must get the same pension as is given to a sepoy retiring in 2014 after rendering the same service for 15 years.
In fact, it is really surprising and shocking as to how different retired persons, who retired from the same position or rank after having rendered the same number of years’ service but retiring at different times, are paid different and unequal pension amounts. Why this inequality, in spite of the right to equality guaranteed under the Constitution?
Such inequality in pension has been the result of the recommendations of various pay commissions which gave higher increase in salaries to the serving personnel (who will then get higher pension after their retirement), while the pension of the existing retired pensioners was not increased appropriately in the same ratio. Thus, over a period of time, there is a vast difference between the pensions of retired personnel retiring at different times even though they might have retired from the same position and with the same number of years’ service.
For example, the media reports suggest that a sepoy who retired before 1996 gets 82% less pension than a sepoy who retired after 01.01.2006, and a major who retired before 1996 gets 53% less pension than a major who retired after 01.01.2006. This is ridiculous and a clear violation of the right to equality guaranteed under Article 14 of the Constitution.
It is pertinent to point out that in the case of Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 (at page 344), a Constitution bench of the Supreme Court has held that “pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant”.
Likewise, in the case of D.S. Nakara v. Union of India, (1983) 1 SCC 305 (at page 323) : AIR 1983 SC 130, it was held by another Constitution Bench of the Supreme Court that 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 the aforesaid Deokinandan Prasad case wherein it was authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion 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 in the above case of D.S. Nakara that the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered.
In the above case of D.S. Nakara, it has also been held by the Constitution Bench of the Supreme Court that all pensioners have equal right to receive the benefits of a liberalised pension scheme. It was also held that the pensioners form a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criterion for the purpose of grant of revised pension. Moreover, the criterion of enforcement of the revised pension scheme entitling benefits of the revision to those retiring after a specific date while depriving the benefits to those retiring prior to that date was held to be violative of Article 14 of the Constitution of India.
The directions issued by the Supreme Court in the recent case of Union of India v. SPS Vains, (2008) 9 SCC 125, are also quite relevant in this regard. In this case, the issue was “…whether there could be a disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter”. The dispute arose due to disparity in determination of pension of pre 01.01.1996 and post 01.01.1996 retirees who retired from defence services as Major General or equivalent posts. The pension of the pre 01.01.1996 retiree Major Generals was fixed lower than the post 01.01.1996 retiree Major Generals due to revision in pay scales.
The Supreme Court held as under:
“The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution.”
In the above SPS Vains case, the Supreme Court directed that the pay of all pensioners (who retired prior to 01.01.1996) in the rank of Major General be notionally fixed at the rate given to similar officers of the same rank (who retired after 01.01.1996) after revision of pay scales with effect from 01.01.2006, and, thereafter, to compute their pensionary 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% p.a.
Thus, the decision of Supreme Court in the aforesaid case of SPS Vains, clearly lays down that there cannot be a disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter.
It is pertinent to mention that recently, on 16 February 2015, when the contempt matter relating to SPS Vains case (along with a Civil Appeal with the title of “Union of India through Defence Secretary & Others vs. SPS Vains & Ors.”) was listed before a 2-judge bench of the Supreme Court, comprising of Justice T.S. Thakur and Justice Adarsh Kumar Goel, the Supreme Court passed the following order:
“Ms. Pinky Anand, learned Additional Solicitor General, prays for and is granted three months’ time finally to work out the modalities for implementation of the one rank-one pension principle on which the Tribunal has passed the impugned judgment. The principle is also, it appears, covered by the decision of this Court in Union of India & Anr. v. SPS Vains (Retd.) & Ors. – (2008) 9 SCC 125. Post after three months finally. We make it clear that no further time will be granted for the purpose of implementation of the impugned judgment.”
Thus, the Supreme Court has granted a period of 3 months (as on 16th February 2015), as a final chance, to implement the one rank one pension scheme. As per Hindustan Times, the above bench of the Supreme Court also warned the Government of contempt if it failed to abide by its order within three months, and further, Justice Thakur is reported to have told the ASG representing the Government that this (i.e., one rank one pension) was part of the BJP manifesto for the Lok Sabha elections and it must keep its word.
The Supreme Court website shows that the above Contempt Petition in the SPS Vains case will now be listed on 1st July 2015, i.e., immediately after the summer vacation in the Supreme Court. Though the above 3 months’ period expired on 15th May 2015, due to summer vacation in the Supreme Court, the Government can enjoy a further grace period of 6 weeks during the summer vacation. It is hoped that by that time the Government will comply with the direction of implementing the one rank one pension scheme.
What about the pensioners from the Civil Services?
As mentioned in the beginning of this article, I may point out that I have won in a recent case [Forum of Retired IPS Officers (FORIPSO) vs. Union of India] which has been decided on 15 January 2015 by the Principal Bench of the Central Administrative Tribunal (CAT) at New Delhi on a principle similar to the principle of one rank one pension rule. In this case, the issue was the discrimination in the matter of pension given to the retired IPS officers of Director General (DG) rank who had retired prior to 2006 vis-à-vis retired officers of the same rank who retired on or after 01.01.2006. Relying upon the decisions in the aforesaid D.S. Nakara and SPS Vains cases [and also on the decision of CAT in the case of All India S-30 Pensioners’ Association v. Union of India decided on 20.11.2014], the CAT has directed the Government of India to consider the revised pay of the applicants (i.e., pre-2006 retired IPS officers DG rank) corresponding to the pay at which the concerned pensioners had in fact retired instead of considering the minimum of the said pay scales thereby determining pension/family pension to pre-2006 retirees. This direction ensures that the increments earned by a pre-2006 retired officer will be fixed at the appropriate stage of the new pay scale after 2006 revision, taking into account the increments earned by such pre-2006 retiree in the old pay scale, and then computing his revised pension accordingly. This direction will thus ensure that a pre-2006 officer will get the same pension as that paid to a post-2006 retiree who retired from the same stage of the pay scale. This is more or less the same as the one rank one pension rule.
In fact, in the aforesaid decision in the case of All India S-30 Pensioners’ Association v. Union of India, the CAT had also ruled that [and this decision is also applicable in the case of Forum of Retired IPS Officers (FORIPSO) vs. Union of India that I had argued] the ratio laid down in the judgment of the Supreme Court in SPS Vains case that there can be no disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter, will hold good in the case of civilian officers also. Accordingly, the CAT had held that the OM dated 18.11.2009 of the Government of India (which said that the ruling of SPS Vains case was not applicable to the civil pensioners) was illegal, being contrary to the law laid down by the Supreme Court in SPS Vains and D.S. Nakara cases and the same was, therefore, quashed and set aside.
Therefore, it is clear that the rule of one rank one pension would generally be applicable to civil pensioners also. This is for the simple reason that any contrary rule would violate the fundamental right to equality guaranteed to the pensioners (whether pensioners from the defence services or the civil services) under Article 14 of the Constitution, i.e., the right to receive the same pension when they retire from the same position with the same length of service, irrespective of the date of retirement. This is the essence of “One Rank, One Pension.”
Why should a person who retired in 1970 or 1990 receive less pension than a person retiring in say 2015, when both of them have retired from the same position and with the same length of service? After all, when they go the market and purchase vegetables or grocery items or clothes for themselves or for their families, they have to pay the same amount of money. In fact, a person who retired 20 years back may have to spend more money on health (due to more advanced age) than a person who retired later.
Therefore, the right to equality requires that the Government must forthwith implement the principle of one rank one pension to give justice to tens of lakhs of pensioners from the defence services as well as from the civil services.
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