Monday, 5 October 2015

Qualifying Service for Full Pension - 33 years or 20 Years; Details in this post




33 Years for Full Pension or 20 Years?
Courtesy authors

Brig Narinder Dhand (Veteran)
 QUOTE
Posted: 18 Sep 2015 02:02 AM PDT
In view of the fact that review Petition filed by UOI RP (C) NO. 2565/2015 in SLP (C) No. 6567/2015 UOI Vs M.O. Inasu dismissed by HSC on  28.8.2015,  and Following file notings of DOPW (obtained under RTI)let us hope DOP&PW will now issue necessary instructions extending benefit of full min. pension to all pre 2006 pensioners irrespective of Q.S. rendered.

The extract from the File Noting obtained from DOP&PW under RTI ACT, on pro rata pension matter.

Extract from File Noting of DOP&PW OM 30.7.2015 obtained under RTIA:
 12. It may be mentioned that in its order dated 22.1.2013 and 16.8.2013 in OA No. 715/2012 and OA No. 1015/2012 respectively, Hon’ CAT Ernakulam Bench directed that the revised pension fixed in terms of para 4.2 of OM dt. 1.9.2008 would not be reduced pro rata in cases where the qualifying service of a pre 2006 pensioner was less than 33 yrs. This order of Hon CAT was challenged by D/o Revenue  in the H.C. of Kerala in OP(CAT) No. 4/2012 and No. 8/2012. Hon’ H.C. of Kerala  dismissed the Op(CAT) No. 4/2012 and No. 8/2012 vide order dt. 7.1.2014. The SLP filed by the Dept. of Revenue against the order dt. 7.1.2014 has also been dismissed by Hon’ S/C. in its order dated 20.2.2015. Learned ASG, Sjri P.S.Narsimha has advised to file a Review Petition. The concerned file is presently with MOL(CA Section) and Ms. Rekha Pandey, Adv. is drafting the RP.

13. As already mentioned above, in the order dt. 29.4.2013 of Hon HC of Delhi in WP No. 1535/2012, it was observed that the only issue which survived was, with ref. to para 9 of OM dt. 28.1.2013 which makes it applicable from 24.9.2012 instead of 1.1.2006. In view of this observation of the Hon H.C. of Delhi, we may issue orders for giving effect to the OM dated 28.1.2013 w.e.f. 1.1.2006 instead of 24.9.2012. The question whether or not the revised pension in terms of OM 28.1.2013  would be  reduced proportionally would be examined once the order of the Hon S.C. in the RP to be filed against dismissal of SLP 21044/2014 is available  ( para 12 above)
( emphasis added)
                                                                         Sd. S.K. Makkar  US
                                                                                17.4.2015

  Noting of Secy(P)
6. Thus the court ruling has become law of the land
 7. Given the fact the review/curative petition in the same matter has once been dismissed by Hon. Apex Court, as also the fact that Civil Appeal of Ministry of Defence with which the SLPs in question got tagged, has also failed, there is no chance  that a review petition may yield a different result. On the other hand this will not only engage the govt. machinery in uncessary litigation but will also result in attendant avoidable expenditure. ( emphasis added)
                                                                Sd. Alok Rawat Secy/ Pension
                                                                         22.4.2015
 Hon MOS(PP)         Sd. 7.5.2015

From: Navdeep Singh [mailto:navdeepsingh.india@gmail.com]

The dismissal of the Review Petition in the said case would frankly have no universal bearing on the issue regarding proportionate reduction or otherwise of those pensioners who have pensionable service but total qualifying service less than 33 years.

The said case had emerged from a decision of the Ernakulam Bench of the CAT dated 16-08-2013 which had followed OA 655/2010 of the Principal Bench CAT at Delhi which in turn was limited to the subject of the controversy of the “minimum of pay within the pay band” versus “minimum of pay of the pay band itself”. The Erankulam Bench of the CAT allowed the case based on the decision of the Principal Bench CAT, however it  mixed up the two issues of the “minimum within the pay band” and “full proportionate reduction”.

When an appeal was filed before the Kerala High Court by the Govt against the order of Ernakulam CAT, the Kerala High Court in OP (CAT) 8/2014 (UOI Vs MO INASU) took note of the decision in OA 655/2010 (later upheld by the Delhi High Court) as also the decision of the Punjab & Haryana High Court on the subject and dismissed the appeal of the Govt. It may be noted here that the Kerala High Court only relied upon the decision of the Punjab & Haryana High Court and the order of the Supreme Court upholding the Delhi High Court decision which had in turn upheld the CAT Principal Bench decision in OA 655/2010. The Govt took this case also into appeal to the SC which dismissed the SLP and also the Review Petition regarding which you have mentioned in your mail.

Needless to state, the Review Petition and the SLP dismissed by the SC in the case of UOI Vs MO INASU were regarding the ibid decision of the Kerala High Court in OP (CAT) 8/2014 which merely endorses the decision of the Punjab & Haryana High Court and SC in the final order emerging from OA 655/2010. All these cases, including that of the Punjab & Haryana High Court are related to the “minimum of the pay within the pay band” controversy and not the 33 years controversy though at the initial stage the Eranakulam CAT had mixed up the two issues. The final decision of both Constitutional Courts, that is, the Kerala HC and the SC in the SLP and Review, are hence endorsing the decisions of the Punjab & Haryana High Court and the earlier SC order emerging out of the Delhi HC decision on the “minimum of pay within the pay band” controversy and not the other issue of 33 years.

The noting sheet adverted to in your mail finally was approved and culminated in the issuance of the orders on 30 July 2015 which related to grant of enhanced pension from 01 Jan 2006 onwards rather than 24 Sept 2012 based on the same min of pay within the pay band controversy and not the 33 years controversy.

To say that with the dismissal of the Review Petition against the order of the Kerala HC veterans have come to gain on the 33 year proportionate reduction controversy would be too naive and simplistic.

The good news however is that similar controversies have been separately addressed by Tribunals (including the AFT in Wg Cdr VS Tomar’s case and another case of the Chandigarh Bench of the AFT) and then upheld by the High Courts. The Govt has filed an appeal in the same and it is currently pending before the Supreme Court and the issue affects both civilian and Govt pensioners. There is a stay of the SC operating on the order in favour of veterans on the 33 years controversy currently.

Rest assured that the affected civilian and military pensioners are involved in the case with all strength which is pending before the SC and hence is sub judice. In my humble opinion, it also makes no sense to currently file separate cases individually before Tribunals on the same issue and the same would only be required in the future in case the SC does not pass universal orders or if the orders of the SC are not implemented universally by the Govt. At this stage, there is no need to get worked up or act on chain mails on the subject.

Warm Regards

N

PS- these are my personal views without bias or prejudice.
On 20 Sep 2015 16:00, "REPORT MY SIGNAL (CS KAMBOJ)" <chander.kamboj@itintellectuals.com> wrote:
Thank you Navdeep for such an exhaustive reply.
But I have many queries asking whether those who retired after completing the min 20 years’ service will get full pension?
Can you kindly answer that question.
Thank you.

Regards.
Chander Kamboj
From: Navdeep Singh [mailto:navdeepsingh.india@gmail.com]
Sent: 21 September 2015 11:01

No sir, as on date full pension is applicable based on the 33 years' stipulation.
The situation would only change once there's an authoritative decision of the SC on it. The issue remains sub judice before the SC.                                                                                                                                                                   
Regards

5 comments:

  1. As per noting of Secretary (P), it appears they are likely to file RP. Would that mean it is a done deal.

    ReplyDelete
  2. Having fixed pensions of retirees of pre-2006 on proportionality basis(33 years with weight age getting full pension and the rest with lesser service getting proportionally lesser), if the minimum pension of corresponding rank is again reduced proportionally the second time, will give rise to anomalies of juniors getting higher than the seniors purely based on service(SL/SD/Branch Commission Officers getting full only based on length of service) neglecting the seniority in the rank. In short, a Jr. Major of SL commission getting higher pensi

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  3. contd
    pension than the senior most Major with possible less than 21 years of active service. So, a pensioner getting less pension would start getting more than his seniors which negates the courts verdict !

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  4. Dear Navdeep
    With your excellent background and interpretations on Pensions, your analysis on the present position on Full Pension instead of pro rata reduction for less than 33yr service for pre 2006 Pensioners is indeed the appropriate and Legally valid position.
    I need a small clarification on the reach of Art 14 and Art 309 -----whether the weightage factor of the V CPC, could be applied retrospectively to pensioners who were already granted and earning full pension , and impose pro -rata cut for any shortfall of 33Yrs service after addition of weightage wef Jan 1996. Is it not an infringement of protection enshrined in art 309.? I seek your legal expertise for my enlightenment and others similarly affected. Regards. Mohanrao Wg Cdr Retd

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  5. The view that MO INASU case does not deal with PRORATA cut is miopic to say the least. The case came up before the CAT because the department attempted to reduce the pension for reason of less than 33 years. One of the issues framed and addressed is about the pro rata cut of pension. Let us not spread disinformation.

    ReplyDelete