Reply to DEXSW 50654 and 50660 for Counter-Affidavit
Notes by Aerial
View: -
1. Annexure R-2 giving
the consolidated pay and commensurate pension up to and including 3rd
CPC is illegible. Therefore, it has not been included. This post will be updated as and when a
legible copy requested from the CPIO is available.
2. Readers may find Paragraph Nos. 36, and
57 onwards very informative in respect to the position of the Petitioners and
the stand of the Respondents.
3. Minor corrections
viz. date of issue of OROP tables [later PCDA (P) Circular 555] is wrongly
given as 03.02.2014 whereas it was 03.02.2016.
* * * * * * * * *
No. 5 (146)/2018-D(Pen/Legal)
Government of India
Ministry of Defence
Department of Ex-Servicemen Welfare
Sena Bhawan, New Delhi
Date: 19.9.2018
Sub: Seeking information under the RTI Act 2005
Sir,
This has reference to your two
online applications bearing Registration No. DEXSW/R/2018/50660 dated 1.8.2018
and DEXSW/R/2018/50654 dated 30.7.2018 received on 20.8.2018 vide MoD ID No.
237/RTI/D (P/P)/2014-Part II dated 14.8.2018.
2. As sought vide your both above
mentioned applications, a copy of the affidavit dated 1.6.2018 and other
relevant papers is enclosed herewith.
3. You may, if so desired, prefer an
appeal against the above decision before the following First Appellate
Authority within 30 days of receipt of this letter: -
Shri Manmohan Pipil,
Deputy Secretary (Pen),
Ministry of Defence, DESW,
Sena Bhawan, New Delhi.
Yours faithfully,
Sd/---------------
Encl: As above (89 pages) (Ravindra
Kumar Arora)
CPIO & Under Secretary (Pen/Legal-II)
Tele: 23015021
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 419/2016
INDIAN EX-SERVICEMEN MOVEMENT
& ORS Petitioners
VERSUS
UNION OF INDIA & ORS Respondents
COUNTER-AFFIDAVIT ON BEHALF OF UNION
OF INDIA
I,
Ravindra Kumar Arora,S/o late Shri Somnath, aged 55 years, Under Secretary to
the Govt of India, Ministry of Defence, Department of Ex-Servicemen Welfare D
(Pension/Legal) New Delhi do hereby solemnly affirm and state as under: -
1. That I am working as Under Secretary, D (Pension/Legal-II) in
Department of Ex-Servicemen Welfare and I know the facts of the case from the
records. Hence I am competent to swear this affidavit on behalf of the
Respondent.
2. That I have gone through the contents of the consolidated
amended writ petition and in reply thereto
I submit as under
3. I deny each and every averment except those which are
admitted herein below.
4. That no substantial question of law is
involved in the present petition and the same is liable to be dismissed against
the Petitioners and in favour of the Respondents.
PRELIMINARY SUBMISSIONS
One Rank One Pension Scheme
and its Implementation
5. At the outset it is stated that demand
for One Rank One Pension (hereinafter referred as ‘OROP’) has been accepted and
implemented by the Govt of India vide Ministry of Defence Letter No.
12(1)/2014/D(Pen/Pol) Part II dt 07.11.2015. The meaning of OROP as per the Letter
dt. 07.11.2015 is ‘uniform pension to be paid to the defence personnel retiring
in the same rank, with the same length of service regardless of the date of
retirement, which implies bridging the gap between rates of pension of current
and past pensioner at periodic intervals.’
6. It is evident from the Letter dt.
07.11.2015 that, firstly it is the first time that a scheme intending to create
and implement one rank one pension has been introduced by the Govt of India,
secondly, that there has existed a gap in the pension of current and past
pensioners among defence forces personnel, thirdly, Govt of India has
acknowledged the gap in pension among retirees and therefore it is making all
attempts to reduce this gap and fourthly, conscious of the fact that anomalies
may arise in implementation of OROP, Govt of India made a provision for
constitution of a One Man Judicial Committee.
7. It is submitted that the definition of
OROP has been determined after consultation with all stakeholders, including inter-Departmental
consultations, consultation with experts was well as consultations with
Ex-Servicemen. The final definition of OROP and the Letter dt. 07.11.2015 has
been issued after wide-ranging consultations and due application of mind.
8. The Government had constituted the One
Man Judicial Committee [hereinafter referred as ‘OMJC’] headed by Justice L.
Narasimha Reddy, Hon’ble Retired Chief Justice of Patna High Court to address
and recommend anomalies that required rectification to better implement OROP
and reduce disparities in pension of defence forces personnel. The OMJC has
held public hearings at 19 locations across India between 17.08.2016 to
21.09.2016 and has submitted its report to the Govt of India on 26.10.2016. The
Govt of India is now considering the recommendations of the OMJC.
9. The Petitioners have also submitted
their representations and attended public hearings of the OMJC. As the
grievances of the Petitioners have been considered by the OMJC and the OMJC’s
recommendations are now pending consideration before the Govt of India, the
present writ petition is pre-mature and deserves to be dismissed on this ground
alone.
10. Without prejudice to the ground of the
writ petition being pre-mature, it is submitted that there are inter alia
allegedly five main grievances raised by the Petitioners regarding OROP in its
current form: -
(i) Fixation
of pension is being done on the basis of average of the minimum and maximum
pension of personnel retired in 2013 instead of financial year 2014-15.
(ii) The
fixation of date of implementation of OROP w.e.f. 01.7.2014 is arbitrary as
date of implementation earlier fixed as 01.04.2014.
(iii) Pension
would be re-fixed for all pensioners retiring before 01.04.2014 on the basis of
the average of minimum and maximum of pension of personnel retired in 2013, but
pension of soldiers retiring on/after 01.04.2014 would be fixed on basis of
last pay drawn on the date of retirement.
(iv) In some
cases, pensioners who retired in a higher rank may draw lesser pension than
soldiers retiring with junior rank on/after 2014.
(v) An
ex-serviceman would receive lesser pension that the one who retired in the same
rank and same length of service as future enhancement would not be
automatically passed to past pensioners.
11. The allegations made by the Petitioners [as mentioned in Para
10 above] are denied because: -
(a) It is
submitted that the Letter dt. 07.11.2015 is a policy decision to implement
OROP. The Government has consciously taken a decision to fix pension on the
basis of year 2013 and it is the Government that has considered all factors and
fixed 2013 as a benchmark for this purpose. Therefore the contention of
illegality and arbitrariness is denied.
(b) As OROP
was implemented only on 07.11.2015 w.e.f 01.07.2014, therefore reliance on any
earlier date which is not a part of the actual OROP decision is baseless and
without merit.
(c) The
contention that there would be disparity between pensioners retiring in 2013
and those retiring on or after 01.04.2014 is denied because OROP scheme itself
recognises that there has always been a disparity in the pay of Pensioners (sic). The OROP scheme intends to bridge
this gap/disparity by implementation of the OROP scheme.
(d) There
is no basis to compare pensioners in a certain rank with those pensioners who
retired at a junior rank on/after 2014. It is submitted that the basis of OROP
is to reduce the disparities between past and present pensioners who retired in
the same rank and with same length of service. Therefore, Petitioners
contention that personnel junior in rank [post 2014 retiree] will get a higher
pension than pre-2014 retirees is not correct.
(e) The
OROP scheme envisages re-fixation of pension every 5 years and does not
envisage automatic grant of pension to past pensioners. The Petitioners cannot
seek mandamus for implementation of an alleged right which has not been
created. In other words, Petitioners cannot seek the addition of a condition
which is not part of the OROP scheme.
12. Therefore, the Govt of India has taken a
policy decision after working out all modalities for proper and effective
implementation of the OROP scheme to ensure maximum benefit to all defence
personnel and there is no arbitrariness involved in the entire scheme. Moreover,
the scheme intends to bridge any alleged disparity that may have existed before
the implementation of OROP.
13. In pursuance of OROP scheme and for its
successful and timely implementation, the Govt of India has already paid arrear
of Rs 10, 788 crore to approximately 20.60 lakh pensioners/family pensioners
till date.
Koshyari Committee Report
14. It is humbly submitted that Petitioners
have placed strong reliance on the report of the Koshyari Committee, but this
reliance is misplaces as the recommendations of the Koshyari Committee have
been rejected by the Government. In Jt Action Council of Service Doctors’
Organisations V Union of India (1996) 7 SCC 256 Hon’ble Supreme Court observed:
-
“14. As to the contention that the members of the
petitioner-Association have come clothed with a vested right, we would say this
is not so inasmuch as what the Tikoo Committee has said is also in the nature
of recommendation and unless accepted cannot be said to be binding on the Union
of India. No vested right has thus been created by the force or the
recommendations of the Committee…”
Hence
there is no merit in relying on the recommendations of a Committee which have
been rejected.
[Please see decision of the Hon’ble Supreme Court in Writ
Petition (Civil) 558 of 2012 delivered on 09 May 2018 regarding Parliamentary
Committees. Pages 113-114 may be relevant.]
Historical Disparity in the Pension of
Retired Defence Forces Personnel
15. It is submitted that historically, there
has always been difference in the pension of retiring personnel, depending on
the duration of service, the time when the defence personnel retired etc. As
per Army Instruction 2/S/53, the ‘retiring pension’ was prescribed at a
‘standard rate’ for a prescribed length of service for each rank. When pension
was revised, the rates made applicable from a prospective date and the revision
of pension covered those defence personnel who retired or were discharged from
service on or after that particular date. Therefore, those pensioners who
retired on a date earlier to such revision would be governed by older/lower
rates. Thus, the contention of Petitioners that same pension was being received
by defence pensioners up to 1973 or that the recommendations of the 3rd
Central Pay Commission was arbitrary is incorrect and contrary to records.
For
example, the rates of pension applicable to the rank of Major for standard
service of 22 years qualifying service and who retired between the periods
shown below are as follows:-
|
Retired
during 1.6.53 to 30.9.61
|
Retired
during
1.10.61
to 31.12.71
|
Retired
during 1.1.73 to 31.3.79
|
Retired
during 1.4.79 to 31.1.82
|
Retired
during 1.2.82 to 30.6.82
|
Retired
during 1.7.82 to 1.6.83
|
Retired
during 2.6.83 to 1.3.85
|
Retired
during 2.3.85 to 31.3.85
|
Retired
during 1.4.85 to 31.12.85
|
|
475
|
550
|
775
|
875
|
900
|
925
|
950
|
975
|
1400
|
A
copy of a similar table showing different rates of pension earned by defence
personnel at different periods is annexed and marked as Annexure R1.
No Comparison in Pay and Pension of
Defence Forces Personnel and Civilians
16. It is also submitted that it is erroneous
to compare the pension of armed forces personnel with civilian government
servants as the post, nature of work and service conditions of the two services
are not equivalent and as a consequence, there is no equivalence of pay and
pension of armed forces personnel with civilians and this issue is not
connected to One Rank One Pension. The contention of the Petitioners that the
salaries of civilian employees are being increased astronomically as compared
to defence personnel is denied as the increase in pay is based on
recommendations of the Central Pay Commissions and the Central Pay Commission
has also recommended similar increase in pay to the defence personnel. Additionally,
the defence personnel are being paid an additional element like Rank Pay, MSP
etc. in recognition of the additional burdens of Military Service.
Non-applicability of the judgment of
Hon’ble Supreme Court – Union of India Vs SPS Vains
17. It is reverentially submitted that the
judgment of Hon’ble Supreme Court in the case of Union of India Vs SPS Vains
(2008) 9 SCC 125 does not apply to the present case as it is distinguished on
facts and on law. In the case of SPS Vains, the grievance of Major Generals
therein was that due to absence of Rank Pay after implementation of Fifth
Central Pay Commission recommendations, the minimum pay of a Major General had
become less than the maximum pay of a Brigadier in the respective pay band. To
rectify this anomaly, the Government stepped up the pay of pre-1.1.1996
retirees [Major Generals] whereas those who retired after 01.01.1996 were given
pension as per then Clause 12(c) of Special Army Instructions 2/S/1998. This
disparity between grant of stepping up of pay for pre-01.01.1996 retirees and
application of Clause 12 (c) of Special Army Instruction 2/S/1998 was contended
to be discriminatory. It is therefore evident that the issue did not pertain to
One Rank One Pension but was restricted to revision of pension of pre-2006
Major Generals qua post-2006 Major Generals.
18. It is also important to state that the
case of SPS Vains was concluded solely on the basis of reliance placed on the
judgment of Hon’ble Supreme Court in D. S. Nakara vs. Union of India (1983) 1
SCC 305. However, the judgment of D. S. Nakara has been interpreted and
restricted in its application by another Constitution Bench in Kishen Kumar vs.
Union of India (1990) 4 SCC 207 and thereafter followed by another Constitution
Bench in Indian Ex-Services League vs. Union of India (1991) 2 SCC 104,
discussed later. Therefore, the principles laid down in the case of D. S.
Nakara and SPS Vains would not apply. Hence the case of SPS Vains is
distinguished on facts as well as on law.
Judgements of Hon’ble Supreme Court on
Pension related matters
19. For the purposes of pension, Hon’ble
Supreme Court has summarised the principle relating to payment and revision of
pension in the case of Col. B. J. Akkara (retd) vs. Union of India (2006) 11
SCC 709: -
“20. The principles relating to pension relevant to
the issue are well settled. They are:
(a) In
regard to pensioners forming a class, computation of pension cannot be by different
formula thereby applying an unequal treatment solely on the ground that some
retired earlier and some retired later. If the retiree is eligible for pension
at the time of his retirement and the relevant pension scheme is subsequently
amended, he would become eligible to get enhanced pension as per the new
formula of computation of pension from the date when the amendment takes
effect. In such a situation, the additional benefit under the amendment, made
available to the same class of pensioners cannot be denied to him on the ground
that he had retired prior to the date on which the aforesaid additional benefit
was conferred.
(b) But all
retirees retiring with a particular rank do not form a single class for all
purposes. Where the reckonable emoluments as on the date of retirement (for the
purpose of computation of pension) are different in respect of two groups of
pensioners, who retired in the same rank, the group getting lesser pension
cannot contend that their pension should be identical with or equal to the
pension received by the group whose reckonable emoluments was higher. In other
words, pensioners who retire with the same rank need not be given identical pension,
where their average reckonable emoluments at the time of their retirement were
different, in view of the difference in pay, or in view of different pay scales
being in force.
(c) When
two sets of employees of the same rank retire at different points of time, it
is not discrimination if:
(i) when
one set retired, there was no pension scheme and when the other set retired, a
pension scheme was in force;
(ii) when
one set retired, a voluntary retirement scheme was in force and when the other
set retired, such a scheme was not in force; or
(iii) when
one set retired, a PF scheme was applicable and when the other set retired, a
pension scheme was in force.
One set cannot claim the benefit extended to the other
set on the ground that they are similarly situated. Though they retired with
the same rank, they are not of the “same class” or “homogenous group.” The
employer can validly fix a cut-off date for introducing any new
pension/retirement scheme or for discontinuance of any existing scheme. What is
discriminatory is introduction of a benefit retrospectively (or prospectively)
fixing a cut-off date arbitrarily thereby dividing a single homogenous class of
pensioners into two groups and subjecting them to different treatment.”
Therefore,
applying the principle laid by Hon’ble Court in (b) above, retired defence
personnel who retire in the same rank, but who are getting different amounts of
pension cannot be grouped into one group
to contend all retired defence personnel of a particular rank would be liable
to be paid the same amount of pension. In fact, OROP is an aim to ensure that
this disparity amongst different heterogeneous groups of retired defence
personnel is reduced.
20. With regard to the fixation of date by the
Govt of India for implementation of OROP w.e.f. 01.07.2014 and Respondent/Union
of India contention that the distinction between pre-2014 and (post) 2014 retirees is not arbitrary, it
is submitted that in the case of Union of India vs. Parameswaran Match Works
(1975) 1 SCC 305, Hon’ble Supreme Court observed: -
“10…. That a classification can be founded on a
particular date and yet be reasonable, has been held by this Court in several
decisions (see Hatisingh Mfg Co Ltd vs. Union of India [AIR 1960 SC 923; (1960)
3 SCR 528, 543: (1960) 2 Lab LJ1], Dr Mohammad Saheb Mahboob Medico vs. Deputy
Custodian General [AIR 1961 SC 1657; (1862) 2 SCR 371, 379] BhikuseYamasa Kshatriya
(P) Ltd vs. Union of India [AIR 1963 SC 1591: (1964) 1 SCR 860, 880: (1963) Lab
LJ 270] and Daruka & Co vs. Union of India [(1973) 2 SCC 617]. The choice
of a date as a basis for classification cannot always be dubbed as arbitrary
even if no particular reason is forthcoming for the choice unless it is shown
to be capricious or whimsical in the circumstances. When it is seen that a line
or a point there must be and there is no mathematical or logical way of fixing
it precisely, the decision of the legislature or its delegate must be accepted
unless we can say that it is wide off the reasonable mark. See Louisville Gas
Co. vs. Alabama Power Co. [240 US 30, 32 (1927)] per Justice Holmes.”
21. Similarly, in the case of State of West
Baengal vs. Ratan Behari Dey, (1993) 4 SCC 62, Hon’ble Supreme Court observed:
-
“7…. For reasons to be assigned hereinafter, it cannot
be said that prescribing April 1, 1977 as the date from which the new
Regulations were to come into force is either arbitrary or discriminatory. Now,
it is open to the State or to the Corporation, as the case may be, to change
the conditions of service unilaterally. Terminal benefits as well as pensionary
benefits constitute conditions of service. The employer has the undoubted power
to revise the salaries and/or the pay scales as also terminal
benefits/pensionary benefits. The power to specify a date from which the
revision of pay scales or terminal benefits/pensionary benefits, as the case
may be, shall take effect is a concomitant of the said power. So long as such a
date is specified in a reasonable manner, i.e. without bringing about a
discrimination between similarly situated persons, no interference is called
for by the court in that behalf. It appears that in the Calcutta Corporation, a
pension scheme was in force prior to 1914. Later the scheme appears to have
been given up and the Provident Fund Scheme introduced. Under the Provident
Fund Scheme, a certain amount was deducted from the salary of the employees
every month and credited to the Fund. An equal amount wasa contributed by the
employer which too was credited to the Fund. The total amount to the credit of
the employee in the Fund was paid to him on the date of his retirement. The
employees, however, were demanding the introduction of a pension scheme. The
demand fell on receptive ears in the year 1977… maybe because in that year the
Left Front Government came to power in that State, as suggested by the writ
petitioners. The State Government appointed a Commission to examine the said
demand and to recommend the necessary measures in that behalf. The three
members constituting the Commission differed with each other in certain
particulars. The Government examined their recommendations and accepted them
with certain modifications in the year 1981. After processing the matter
through relevant departments, the Regulations were issued and published in year
1982. In the above circumstances, the State Government thought that it would be
appropriate to give effect to the said Regulations on and from April 1, 1977,
the first day of the financial year in which the Pay Commission was appointed
by the Government – a fact which could not have been unknown to the Corporation
employees. We cannot say that the Government acted unreasonably in specifying
the said date. It may also be said that, that was the year in which the Left
Front came into power in that State, but does not detract from the validity of
the aforesaid reasons assigned by the State in its counter-affidavit filed
before the Division Bench of the High Court. We are not in agreement with the
opinion expressed by the High Court that the reasons assigned by the State
Government are neither reasonable nor acceptable.
8. In
this context, it may be remembered that the power of the State to specify a
date with effect from which the Regulations framed, or amended, as the case may
be, shall come into force is unquestioned. A date can be specified both
prospectively as well as retrospectively. The only question is whether the
prescription of the date is unreasonable or discriminatory. Since we have found
that the prescription of the date in this case is neither arbitrary nor
unreasonable, the complaint of discrimination must fail.
9. Now
coming to the argument of Shri P. P. Rao that the Regulations bring about an
unreasonable between similarly placed employees, we must say that we are not
impressed by it. It is not submitted that the Corporation had no power to give
retrospective effect to the Regulations. It was within the power of the
Corporation to enforce the Regulations either prospectively or with
retrospective effect from such date as they may specify. Of course, as
repeatedly held by this Court, in such cases the State cannot, as the
expression goes, pick a date out of its hat. It has to prescribe the date in a
reasonable manner, having regard to all the relevant facts and circumstances.
Once this is done, question of discrimination does not arise…
10. As
rightly pointed out in Krishena Kumar [(1990) 4 SCC 207: 1991 SCC (L&S)
112: (1990) 14 ATC 846], Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145:
(1983) 2 SCR 165] was a case where an artificial date was specified classifying
the retirees, governed by the same Rules and similarly situated, into two different
classes, depriving one such class of the benefit of Liberalised Pension Rules.
It was found in that case that the specification of the date (from which the
liberalised Rules were to come into force) was arbitrary. Whereas in this case,
the employees retiring prior to April 1, 1977 and those retiring thereafter were
governed by different sets of rules. The argument to the contrary may mean that
the Government can never change the conditions of service relating to retrial
benefits with effect from a particular date. No such absolute proposition can
be stated that while effecting any such change, no date from which such change
will come into force can be specified. As stated above, a date can be
prescribed but such date should not be drawn in such a manner as to bring about
discrimination between persons situated similarly i.e. in a manner violative of
Article 14. This aspect has been dealt with and explained in Krishena Kumar
[(1990) 4 SCC 207: 1991 SCC (L&S) 112: (1990) 14 ATC 846] and we do not
think it necessary to repeat the same.”
22. That similar sentiments were echoed by
Hon’ble Supreme Court in the judgement of Union of India vs. P. N. Menon (1994)
4 SCC 68, which has recently been followed in United Bank of India vs. United
Bank of India Retirees Welfare Association (2018) SCC Online SC 541. In the
case of P. N. Menon, Hon’ble Supreme Court observed: -
“8. Whenever the Government or an authority, which can
be held to be a State within the meaning of Article 12 of the Constitution,
frames a scheme for persons who have superannuated from service, due to many
constraints, it is not always possible to extend the same benefits to one and
all, irrespective of the dates of superannuation. As such any revised scheme in
respect of post-retirement benefits, if implemented with a cut-off date, which
can be held to be reasonable and rational in the light of Article 14 of the
Constitution, need not be held to be invalid. It shall not amount to “picking
out a date from the hat” as was said by this Court in the case of D. R.
Nimbalkar vs. Union of India [AIR 1967 SC 1301: (1967) 2 SCR 325: (1968) 1 LLJ
264] in connection with fixation of
seniority. Whenever a revision takes place, a cut-off date becomes imperative
because the benefit has to be allowed within financial resources available with
the Govt.
…..
10. If the
stand of the respondents is to be accepted that this scheme should have been
made available, without there being a cut-off date, to all including those who
have retired even 20 to 25 years before the introduction of the scheme, then
according to us, the whole scheme shall be unworkable, because it is linked
with the payment of dearness allowance, which is based on the level of the
price index. Different institutions/departments have introduced the payment of
dearness allowance at different stages to mitigate the hardship of their
employees with the rise in the prices of the essential articles as a result of
inflation.
….
14. Not
only in matters of revising the pensionary benefits, but even in respect of
revision of scales of pay, a cut-off date on some rational or reasonable basis,
has to be fixed for extending the benefits. This can be illustrated. The
Government decided to revise the pay scale of its employees and fixes the 1st
day of January of next year for implementing the same or 1st day of
January of the last year. In either case, a big section of its employees are
bound to miss the said revision of the scale of pay, having superannuated
before that date. An employee, who has retired on 31st December of
the year in question, will miss that pay scale only by a day, which may affect
his pensionary benefits throughout his life. No scheme can be held to be
foolproof, so as to cover and keep in view all persons who were at one time in
active service. As such the concern of the court should only be, while
examining any such grievance, to see, as to whether a particular date for
extending a particular benefit or scheme, has been fixed, on objective and
rational considerations.”
23. It is also humbly submitted that a
similar pleas as is being raised by the Petitioners herein claiming one rank
one pension was raised and rejected by a Constitution Bench of this Hon’ble
Court in the case of Indian Ex-Services League vs. Union of India (1991) 2 SCC
104. The important observations of Hon’ble Supreme Court are reproduced below:
-
“8…. The arguments of both of them are substantially
the same. According to learned counsel for the petitioners, the result of the
decision in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165]
is that all retirees who held the same rank irrespective of their date of
retirement must get the same amount of pension and this should be the amount
which was calculated and shown in the appendices to the Memorandum (Ex. P-2)
challenged in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR
165]. Admittedly, the appendices in that Memorandum specified the computation
of pension for different ranks of retirees on or after April 1, 1979 made on the
basis of the reckonable emoluments on April 1, 1979. It is also admitted that
the reckonable emoluments for corresponding ranks on earlier dates were not the
same to provide identical basis for re-computation of pension according to the
liberalised pension scheme of pre-April 1, 1979 retirees. In substance, even
though learned counsel for the petitioners do not say so, the arguments amount
to the claim of ‘one rank one pension’ for all retirees of the Armed Forces
irrespective of their date of retirement. It is also admitted that prior to
this liberalised pension scheme, the pension amount of the earlier retirees
from the same rank was not the same irrespective of their date of retirement or
in other words, the principle of ‘one
rank one pension’ did not apply earlier. It was stated at the bar that the
demand of ‘one rank one pension’ is pending consideration of the Government of
India as a separate issue. It is, therefore, clear that unless the petitioners’
claim in substance of ‘one rank one pension’ can be treated as flowing from the
relief granted in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S)
145: (1983) 2 SCR 165], the reliefs claimed in these petitions though
differently worded cannot be granted. It is for this reason that learned
counsel avoided describing the reliefs claimed herein as claim of ‘one rank one
pension’, even though they were unable to tell us how, if at all, the reliefs
claimed in these petitions can be construed differently.
….
14. Nakara
[(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] decision came up
for consideration before another Constitution Bench recently in Krishena Kumar
vs. Union of India [(1990) 4 SCC 207: 1991 SCC (L&S) 112]. The petitioners
in that case were retired Railway employees who were covered by or opted for
the Railways Contributory Provident Fund Scheme. It was held that PF retirees
and pension retirees constitute different classes and it was never held in
Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] that
pension retirees and PF retirees formed a homogeneous class, even though
pension retirees alone did constitute a homogeneous class within which any
further classification for the purpose of a liberalised pension scheme was
impermissible. It was pointed out in Nakara [(1983) 1 SCC 305: 1983 SCC
(L&S) 145: (1983) 2 SCR 165], it was never required to be decided that all
the retirees for all purposes formed one class and no further classification
was permissible. We have referred to this decision merely to indicate that
another Constitution Bench of this Court also has read Nakara [(1983) 1 SCC
305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] decision as one of limited
application and there is no scope for enlarging the ambit of that decision to
cover all claims made by the pension retirees or a demand for an identical
amount of pension to every retiree from the same rank irrespective of the date
of retirement, even though the reckonable emoluments for the purpose of
computation of their pensions be different.
…..
18. The
above words leave no doubt that by this Memorandum the personnel of Armed
Forces were extended the same benefit of liberalised pensions formula for
computation of their pension as was given to the civil servants ‘on the same
basis.’ The words which follow thereafter indicate that Appendices ‘A’, ‘B’ and
‘C’ attached to the Memorandum specified the revised rates of pension
calculated on the liberalised basis for each rank on the basis of reckonable
emoluments payable as on April 1. 1979 since the memorandum when issued confined
the benefits of the liberalised scheme only to post April 1, 1979 retirees.
There is no scope for reading these appendices torn out of the context of the
Memorandum in its original form to which they were appended. So read, it is
obvious that the calculations given in the Appendices ‘A’, ‘B’, and ‘C’ to this
Memorandum contain the computation according to the liberalised formula for
each rank of the three wings of the Armed Forces for post-April 1, 1979
retirees only. It follows that as a result of the Nakara [(1983) 1 SCC 305:
1983 SCC (L&S) 145: (1983) 2 SCR 165] decision when the benefit of the
liberalised pension scheme was made applicable even to the pre-April 1, 1979
retirees of the Armed Forces, computation according to the liberalised formula has
to be made in the same manner as it was done for post-April 1, 1979 retirees
and shown in Appendices ‘A’, ‘B’ and ‘C’ to this Memorandum. This was done by
the impugned GOs dated November 22, 1983 and December 3, 1983.
19. The
petitioners’ claim that all pre-April 1, 1979 retirees of the Armed Forces are
entitled to the same amount of pension as shown in ‘A’, ‘B’ and ’C’ for each
rank is clearly untenable and does not flow from the Nakara [(1983) 1 SCC 305: 1983 SCC (L&S)
145: (1983) 2 SCR 165] decision.”
Hence,
it is humbly submitted that the above cited case is applicable and the contention
regarding grant of equal pension to all retired armed forces personnel has
already been rejected by Hon’ble Supreme Court.
24. It is also submitted that in matters of
expenditure, especially considering the fact that the Govt of India has already
paid Rs 10, 788 crore to retired defence forces personnel, Hon’ble Courts are
less likely to interfere as was observed in the Constitution Bench decision in Krishena
Kumar vs. Union of India (1990) 4 SCC 7 where Hon’ble Supreme Court observed: -
“5…. In the matter of expenditure includible in this
Annual Financial Statement, this Court has to be loath to pass away any order
or give any direction, because of the division of functions between three
co-equal organs of the government under the Constitution.”
25. Therefore, in light of the above
preliminary submissions, it is humbly submitted that the writ petition is
without merit and liable to be rejected.
PARA-WISE COMMENTS
26. That contents of Para 1 are denied. The
notification dt. 14.12.2015 explicitly records “…it is necessary to implement
the same in an equitable manner keeping in view the existing pension structure,
the conditions of service, the reasons for varying pensions in case of service
personnel of the same rank with the same length of qualifying service retiring
at different points of time as well as principle of OROP decided by the Govt…
Now, therefore, the Central hereby appoints a Judicial Committee headed by
Justice L Narasimha Reddy, retired Chief Justice of Patna High Court…” and
therefore the Notification intends to identify any anomalies that may have
arisen due to implementation of OROP and which could/should be addresses by the
Govt of India. The appointment of a Committee to identify anomalies is not
illegal and unconstitutional, but shows the bona fide object and intent of the
Govt of India to address the concerned of defence forces personnel, including
the Petitioners.
27. The OMJC has held public hearings to take
note of grievances of the Associations, Organisations and Ex-Servicemen
individually. The public hearings wer held at 19 locations across India between
17.08.2016 and 21.9.2016. It is surprising that on one hand the Petitioners’
have submitted their representations regarding the anomalies to the OMJC and
have attended the public hearings held by the OMJC, but on the other hand
Petitioners are contending that the Notification dt. 14.12.2015 constituting
the Committee is unconstitutional and illegal.
28. That it is submitted that all
representations received from Ex-Servicemen regading anomalies in the
implementation of OROP were looked into by the OMJC and the recommendations of
OMJC are now being examined by the Government. Therefore, it is submitted that
the present writ petition filed by the Petitioners is premarure at this stage
and this is sufficient ground to dismiss it.
29. That in reply to Para 2, it is reiterated
that through the Order dt, 14.12.2015 an OMJC was constituted to look into the
anomalies/grievances arising out of letter dt. 07.11.2015 and Petitioners’ have
also made their representations to the OMJC. The recommendations of the OMJC
are now being considered by the Govt of India.
30. That Paras 3 and 4 do not require any
comment.
31. That Paras 5 to 9 are statements of fact
and require no comment.
32. That the contentions and allegations
mentioned in Para 10 are denied as they are incorrect. It is submitted that as
per Army Instruction 2/S/53, Retiring Pension was prescribed at ‘standard rate’
for a prescribed length of service for each rank. When the pension was revised,
the rates were made applicable from a prospective date and covered only those
defence personnel who retired or were discharged from service on or after the
mentioned date. Therefore, those pensioners who retired on a date earlier to
such revision would be governed by older/lower rates. Hence, the contention
that same pension was being received by defence personnel up to 1973 or that the
recommendations of the 3rd Central Pay Commission was arbitrary is
incorrect and contrary to records.
For
example, the rates of pension applicable to the rank of Major for standard
service of 22 years qualifying service and who retired between the periods
shown below are as follows:-
|
Retired
during 1.6.53 to 30.9.61
|
Retired
during
1.10.61
to 31.12.71
|
Retired
during 1.1.73 to 31.3.79
|
Retired
during 1.4.79 to 31.1.82
|
Retired
during 1.2.82 to 30.6.82
|
Retired
during 1.7.82 to 1.6.83
|
Retired
during 2.6.83 to 1.3.85
|
Retired
during 2.3.85 to 31.3.85
|
Retired
during 1.4.85 to 31.12.85
|
|
475
|
550
|
775
|
875
|
900
|
925
|
950
|
975
|
1400
|
The
Petitioners have also referred to the report of the Koshyari Committee,
however, the Government has not accepted the recommendations of the Koshyari
Committee. Therefore, Petitioners cannot rely on the recommendations of the
Koshyari Committee. In regard, the observations of Hon’ble Supreme Court in Jt
Action Council of Service Doctors’ Organisations V Union of India (1996) 7 SCC
256 Hon’ble Supreme Court is relevant: -
“14. As to the contention that the members of the
petitioner-Association have come clothed with a vested right, we would say this
is not so inasmuch as what the Tikoo Committee has said is also in the nature
of recommendation and unless accepted cannot be said to be binding on the Union
of India. No vested right has thus been created by the force or the
recommendations of the Committee…”
33. That Para 11 requires no comment.
34. That in reply to Para 12, it is humbly
submitted that defence personnel are duly compensated for disability/death by
means of Disability pension, War injury pension, Special Family
Pension/Liberalised Family Pension, Ex-gratia lump sum compensation. The
defence personnel are compensated for working in extremely harsh conditions
through different types of allowances. The defence forces personnel are also
paid military service pay allowance and military service pay is also treated as
pay for pension purposes. Therefore, the Govt of India has always considered
the conditions under which the defence forces personnel operate and hence has provided for different kinds of
pay and allowance accordingly.
35. That in reply to Para 13, it is submitted
that OROP has been accepted and implemented by the Government of India through
Letter dt. 07.11.2015 and 03.02. 2016 (erroneously
mentioned as 03.2.2015). The definition of OROP is ‘uniform pension to be
paid to the Defence Forces Personnel retiring in the same rank with the same
length of service, regardless of their date of retirement, which, implies
bridging the gap between the rates of pension of current and past pensioner at
periodic intervals.” The definition being relied on by the Petitioners does not
form part of the OROP implemented by the Govt of India. The rest of the
contents of Para 13 are denied.
36. That before the OROP Notification,
extensive consultations were held with experts in the field of defence as well
as Ex-Servicemen. It is submitted that the benefits of future enhancements
would be passed on to past retirees, but the passing of these benefits to past
pensioners would involve a long drawn and time consuming process, as future
enhancements would have to first be determined. Therefore, the revision of pay
of past pensioners would only be feasible at periodic intervals through Pay
Commissions. This benefit of future enhancements would then be passed on to the
past pensioners periodically as is already mentioned in the Letter dt.
07.11.2015.
37. The Petitioners’ contention that pension
of defence forces personnel were revised downwards is denied and is contrary to
the records.
38. The Petitioners have also continuously
compared themselves with civilian officers, but this contention is
contradictory to the Petitioners’ own stand at Para 12 of the amended writ
petition, where Petitioners’ have shown the harsh conditions in which the
defence forces personnel operate and function. It is submitted that there is no
equivalence or comparison between the defence forces personnel and the
civilians and Petitioners’ are erroneously and selectively comparing defence
forces personnel with civilian employees.
39. That the contents of Para 14 are
assertions and require no comment.
40. That the contents of Para 15 are denied
and this issue has already been dealt above. Services of civilians are not
related/comparable to the pensionary benefits granted to the armed forces
personnel and neither have any bearing nor are they related to the present case
in any way. The rest of the contents of Para 15 are assertions which require no
comment.
41. That in reply to Para 16, it is already
submitted that the report of Koshyari Committee was submitted on 19.12.2011 and
the recommendations of the Committee were not accepted by the Govt of India.
Therefore, Petitioners’ reference and reliance on this Committee Report should
be rejected.
42. That contents of Para 17 require no
comment, except the allegations made thereunder are denied.
43. That the contents of Para 18 are
misleading and denied. It is submitted and clarified that in the year 2014-15,
a budget provision of Rs 500 crore was made by the Govt and this budgetary
provision was then raised to Rs 1, 000 crore in 2015-16. Importantly, on the
actual implementation of OROP, the government has paid Rs 10, 788 crores on
account of arrears of OROP to 20.60 lakh defence personnel and their families.
44. That in reply to Para 19 and 20, it is
stated that Petitioners have referred to a meeting held on 26.02.2014 which was
chaired by Hon’ble Defence Minister. It is submitted that in the meeting it was
agreed that the Secretary (Ex-Servicemen Welfare) would issue necessary
direction to Controller General of Defence Accounts for initiating steps in
consultation with three services and the Ministry of Defence, Ministry of
Finance and Department of Ex-Servicemen Welfare to give effect to OROP. In the
meeting, emphasis was laid on including family pensioners and disability
pensioners. Thereafter, a Working Group headed by Controller General of Defence
Accounts was constituted to work out the modalities for implementation of
OROP.
It
is also submitted that the Meeting held on 26.02.2014 was at a preliminary
stage when the modalities of OROP scheme were yet to be worked out. It is only
after a series of consultations, meetings and communications that the
Government finally issued the Notification dated 07.11.2015 for implementation
of OROP.
45. That in reply to Para 21, it is submitted
that Hon’ble Finance Minister reaffirmed the Govt of India’s commitment in the
budget speech of 2014-15 towards OROP and thereafter, on 07.11.2015, the OROP
Letter was issued.
46. That in reply to Para 22, it is stated
that the reply of the then Hon’ble Minister of State for Defence on 07.12.2014
was at a stage when modalities of OROP were yet to be finalised. The approved
definition of OROP was issued by Govt of Indian vide letter dated 07.11.2015.
Therefore, the Petitioners’ cannot rely on any definition or meaning to give to
OROP before the same was implemented on 07.11.2015.
47. That in reply to Para 23 and 24, it is
only submitted that the Central Govt issued necessary orders for implementation
of OROP on 07.11.2015 and since then the Govt has been diligently and with all
seriousness implementing and paying pension to defence forces personnel. The
payments made till date are Rs 10, 788 crores and this has been paid to
approximately 20.60 lakh pensioners/family pensioners as arrears from 01.07.
2014.
48. That in reply to Para 25, the contents of
this paragraph have already been addressed before. The contentions and
allegations of the Petitioners are denied and there is no arbitrariness or
illegality in issuing the Letter dt. 07.11.2015 to implement OROP. It has
already been submitted that the Letter dt, 07.11.2015 was issued after
consultation with all stakeholders and after considering all aspects of OROP.
49. That the judgment of Union of India vs.
SPS Vains (2008) 9 SCC 125 is distinguishable on facts and on law, as has been
elaborately dealth with earlier. The other alleged contentions are also denied.
50. That in reply ro Para 26, it is reiterated
that to address the anomalies arising out of OROP dt. 07.11.2015, an OMJC was
constituted headed by Justice L. Narasimha Reddy (former Chief Justice of Patna
High Court) and the recommendations of the Committee are being considered by
the Government. The Terms of Reference of the Committee are as follows: -
(i) Measures
for the removal of anomalies that may arise in implementation of the OROP
Letter dt. 07.11.2015.
(ii) Measures
for the removal of anomalies that may arise out of inter-services issues of the
three forces due to implementation of OROP.
(iii) Implications on service matters.
(iv) Any
other matter referred by the Central Govt on implementation of the OROP or
related issues.
In making its recommendations, the Committee shall not
take account of the financial impact of its recommendations.”
That
the OMJC was constituted to identify the anomalies in implementation of OROP.
The contentions and allegations of the Petitioners are denied as baseless and
without merit. It is also re-submitted that, the Notification dt. 14.12.2015 is
not contrary to the judgment in Union of India vs. SPS Vains, especially as the
judgment does not pertain to OROP.
51. That the contents and submission of Para
27 and 28 are repetitions of the contentions already addressed above. The
assertions made by the Petitioners on the scheme of OROP are denied.
52. In reply to Para 29, it is submitted that
Petitioners have admitted to submitting their grievances to the OMJC headed by
Justice L. Narasimha Reddy and the recommendations of this Committee are being
examined by the Central Govt. The allegations made in sub para (a) to (e) do
not violate OROP, but are in furtherance of the policy to grant OROP to retired
defence forces personnel.
53. The provisions made in respect of
fixation of pension are contained in sub-paras (i) & (ii) of para 3 of Govt
of India Letter dated 07.11.2015. The modalities do not violate the concept of
OROP and do not create class within class, therefore, they do not violate
Articles 14 & 21.
54. In reply to Para 29 (a), (b) and (c), it
is submitted that Petitioners are deliberately attempting to introduce issues
which have no nexus or bearing on the issue of OROP.
55. With respect to the issue raised in sub
para (a), it is submitted that the benefit of notional promotion to the rank of
Naib Subedar is extended to pre-2006 Honorary Naib Subedar w.e.f 01.07.2014 in
the OROP scheme. However, the pension of Naib Subedar cannot be given to an
Honorary Naib Subedar as these are two distinct classes and are unequal. This
view has been upheld by Ld AFT, Chandigarh in OA 2755/2013, Hoshiar Singh vs.
Union of India dt, 27.10.2017. Even otherwise, this has no nexus with
OROP.
56. In respect of sub para (b) and (c), it is
stated that OROP envisages revision of pension based on rank held at the time
of retirement/discharge. But Petitioners are contending that as a Commissioned
Officer who is at the rank of Major (now) becomes Lt Colonel after 13 years as
Commissioned Officer (where total service is more than 30 years), so all Majors
who retired earlier than the introduction of this dispensation should be given
pension of Lt Colonel. This, it is submitted, is without logic. The defence
personnel who retired as Major cannot be granted the pension of another rank,
i.e. the rank of Lt Colonel after retirement. It is also stated that
Petitioners are contending that because the number of such commissioned
officers is less than 800, therefore the financial burden on the Government
would not be of much significance. Such submissions are liable to be outrightly
rejected.
57. That Petitioners submission in Para 29A
have no link to the OROP scheme. However, it is clarified that as per Govt of
India, Ministry of Defence letter No. 17(4)/2008 (I)/D (Pen/Policy) dt.
11.11.2008, the provision for minimum safeguard pension was given to pre-2006
pensioners based on 50% of the minimum of pay in pay band plus grade pay and
MSP. Where defence personnel had worked for less than the prescribed 33 years
of qualifying service, the group pay was proportionately reduced. This minimum
safeguard pension provision of 50% was later modified and fixed as 50% of the
minimum fitment table for the rank in the revised pay band.
Thereafter, this provision was
further modifies thorough MoD letter No. 1(2)/2016- D (Pen/Pol) dated
30.9..2016. By this modification, the minimum safeguard pension of pre-2006
pensioners w.e.f. 01.01.2006 has been delinked from qualifying service and it
has been prescribed that the minimum safeguard pension shall not be less than
50% of the minimum of the fitment tables for the rank and group in the revised
pay, irrespective of the qualifying service. This has already been done keeping
in view the best interest of the retired defence personnel.
58. That Para 29B is a matter of record.
59. That in allegations made in Para 29C are
denied. It is submitted that 7th Central Pay Commission (hereinafter
referred to a ‘7th CPC’], recommendations have been issued after
implementation of OROP. MoD letter No. 17(01)/2016-D (Pen/Pol) dated 29.10.2016
was issued for implementation of 7th CPC recommendations for
pre-2016 retirees for revision of their existing basic pension as on 31.12.2015.
There is no arbitrariness or illegality in the decision for implementation of
the 7th CPC. The Petitioners are primarily aggrieved by the effect
of OROP due to letter dt. 07.11.2015 on the recommendations of the 7th
CPC. However, it is already submitted that letter dt. 07.11.2015 is reasonable,
legal, and valid.
60. That as per the first option recommended
by 7th CPC for revision of pension of pre-2016 retirees, Government
has decided that revised pension/family pension of all Armed Forces Personnel
who retired/died prior to 01.01.2016 shall be revised by notionally fixing
their pay in the pay matrix recommended by 7th CPV in the level
corresponding to the pay in the pay scale/pay band and grade pay at which they
retired/died. This will be done by pay fixation under each intervening Pay
Commission based on the formula prescribed for revision of pay. The detailed
policy formulation in this regard has been issued by Govt of Indian, Ministry
of Defence through their letter No. 17(01)/2017/(02)/D(Pension/Policy) dated
05.09.2017. Fixation of pension under this module ensures bringing all past
pensioners on equal footing with the present pensioners notionally in the
revised pay scale as on 01.01.2016. Pension is then calculated as 50% of the
revised notional pay.
The
second option of revised pension as on 01.01.2016 is arrived at by multiplying
the present pension as on 31.12.2015 with 2.57. The pension as on 31.12.2015
already includes the benefit of OROP implemented on 01.07.2014. Therefore, the
more beneficial rate of pension between both formulations will be paid to all
Defence Pensioners accordingly. There is no unjustness, arbitrariness and
violation of Article 14 or 21 in this regard.
61. That in reply to Para 30, it is submitted
that pension is computed with reference to last pay drawn and length of
qualifying service and OROP is also to be given with reference to rank for
which pay was drawn at the time of retirement. The issue of treatment of
honorary rank at par with substantive promotion is not linked with OROP.
62. That Paras 31-33 require no comment.
REPLY TO GROUNDS
63. That in reply to Para 34, it is stated
that the statement made by the petitioners that OROP involves ‘automatic’
enhancement in rates of pension is not correct. It is submitted that in
pursuance of the Government’s decision to implement OROP for defence forces
personnel, a series of meetings were held in the Ministry of Defence with all
stakeholders and Government extensively consulted the experts and the Ex-Servicemen.
The meaning of OROP is uniform pension to be paid to the Armed Forces personnel
retiring in the rank with the same length of service irrespective of their date
of retirement. OROP intends to bridge the gap between the rate of pension of
the current pensioners and the past pensioners at periodic intervals. It has
been decided that the gap between rate of pension of current pensioners and
past pensioners will be bridged every five years.
64. That in rely to Para 35 it is submitted
that the pension of service personnel was not reduced under 3rd
Central Pay Commission. This has already been addressed earlier and is alo
evident from Annexure R-2. It is reiterated that recommendations of Koshyari
Committee have been rejected by the Govt. As regards re-employment of JCOs/ORs,
no comments are made as it is not related to OROP.
65. That the contentions raised in Para 36
are not related to OROP and Petitioners are raising unrelated issues which are
being mixed with OROP. It is submitted that the term of engagement in a
particular rank is a service matter not related to OROP. However, it is
submitted that defence personnel retiring at lower qualifying service is duly
compensated by grant of higher weightage and by calculating his pension on the
maximum of his pay scale irrespective of the stage he has been drawing his pay.
Further, pay of JCOs/ORs are allowed to be computed based on notional pay in
the revised pay structure corresponding to maximum of pay scales of 5th
CPC across three services equivalent to the rank and group in which they have
served in rank for at least 10 months. In this manner it is ensured that
service personnel are at disadvantage because of the policy of organisation
vis-Ã -vis their entitlements.
66. That the contentions raised in Para 36A
are disputed. It is submitted that the Respondent has implemented the concept
of minimum guaranteed pension w.e.f. 01.01.2006 for the rank and group last
held by an armed forces personnel at the time of retirement/discharge. Hence
this order is independent of the concept of OROP scheme. As per this order, the
revised consolidates pension and family pension of pre-2006 Armed Forces
Pensioner shall not be lower than 50% of the minimum of the fitment table for
the rank and group in the revised pay band, irrespective of qualifying service
at the time of retirement. Petitioners’ grievance arises from the fact that the
basis of determination of pension is OROP Letter dt. 07.11.2015 which the
Respondent/Union of India has already submitted is legal and valid.
67. That the contents of Para 37 & 37A
are related to civilian employees which are in no way related or can be
compared with defence personnel. The contentions of these paragraphs have no
bearing on the OROP scheme. Even otherwise, the judgment of Ld AFT Principal
Bench in Col Mukul Dev vs. Union of India, OA 802/2015 has been challenged
before Hon’ble Supreme Court in D No. 12663/2017.
68. That in reply to Para 38, it is submitted
that the petitioner has referred to a single pay band i.e. pay band IV under
Sixth Central Pay Commission for officers from Lt Col to Maj Gen. However,
Grade Pay attracted to various ranks forms the basis of distinction in the
ranks. The submissions made by the Petitioners have ignored the grade pay and
the petitioners are misleading this Hon’ble Court by raising such irrelevant
submissions. Petitioners statements that different ranks would get the same
minimum pension with reference to minimum of the pay band is also
incorrect.
69. The Grade Pay of Officers from Lt Col to
Maj Gen is as under: -
|
Rank
|
Lt Col
|
Col
|
Brig
|
Maj Gen
|
|
Grade Pay
|
8000
|
8700
|
8900
|
10000
|
Hence,
such when Grade Pay is taken into account, minimum of pay scale is not the same
for all ranks and the order is not violative of Article 14 & 21 of the
Constitution.
70. That Para 39 and 40 are a repetition and
its contents have already been denied while addressing the contentions therein.
71. That in reply to Para 41, it is stated
that all the anomalies raised by the Petitioners had been referred to the OMJC,
which examined the issue and the recommendations are now pending before the
Central Govt. The allegations made against OROP in Para 41 are denied.
72.
That the contents of Para 41A are
denied. It is submitted that the widow of deceased soldier and disabled
soldiers are very much included in the OROP scheme. For revision of pension of
various categories, following tables already make provision for the different
classes of pensioners under OROP scheme:
|
Category
|
Table Numbers
|
|
Family pensioners
|
10-45
|
|
Family pension of War
widows & Liberalised family pension
|
46-69
|
|
Disability pensioners, War
Injury pension
|
70-96
|
In this regard the statement of the
Petitioners is misleading and special consideration has been given to widows of
deceased soldiers and disabled soldiers in the OROP orders. It is also
important to point that these categories were paid arrears of OROP in lump
sum.
73. In reply to Para 42, it is stated that
the pension of all defence pensioners were revised w.e.f. 01.07.2014 and all
arrears of OROP have been paid as decided by government. The making of payment
for all retirees from 01.07.2014 does not violate Article 14 & 21 and the
date of 01.07.2014 is uniform for all defence forces personnel.
74. That the contents of Para 43 have been
addressed earlier.
75. That the averments of Petitioners in Para
44 are denied. It is only submitted that the OMJC has submitted its report to
the Government on 26.10.2016 and the Government is studying the recommendations
of Committee.
76. That contentions raised in Para 45 have
already been addressed above.
77. That no comment is required to be made to
Para 45A.
78. That in reply to Para 46, it is submitted
that the judgment of Hon’ble Court in UoI vs. SPS Vains has been implemented in
all the affected cases and it is specifically submitted that this judgment does
not refer to OROP and is distinguishable.
79. That Para 47 and Par 48 are repetitions
of contentions raised and addressed earlier.
80. That the contents of Para 49 to 52 in so
far as they relate to OROP scheme are decisions taken by the Government. The
assertions made by the Petitioners’ in this regard are denied as being without
merit.
81. That contents of Para 52A have already
been addressed earlier.
82. That Paras 53, 53A, 53B and 54 are
repetitive.
83. That in response to Para 55, 55 (A), 55
(B), 56 and 57, it is submitted that the issue raised regarding the benefit of
notional promotion of Naib Subedar is extended to pre-2006 Honorary Naib
Subedar w.e.f. 01.07.2014 in the OROP scheme. However, the pension of Naib
Subedar cannot be given to an Honorary Naib Subedar as these are two distinct
classes and are unequal. This view has been upheld by AFT, Chandigarh in OA
2755/2013, Hoshiar Singh vs. Union of India dt. 27.10.2017. Even otherwise,
this has no nexus with OROP.
84. That OROP envisages revision of pension
based on rank held at the time of retirement/discharge. But Petitioners are
contending that as a Commissioned Officer who is at the rank of Major (now)
becomes Lt Colonel after 13 years as Commissioned Officer (where total service
is more than 30 years), so all Majors who retired earlier than the introduction
of this dispensation should be given pension of Lt Colonel. This, it is
submitted, is without logic. The defence personnel who retired as Major cannot
be granted the pension of another rank, i.e. the rank of Lt Colonel after
retirement, especially as no pay has been drawn for the higher post which was
never held in service, no pension can be granted for a higher rank.
85. The Petitioners are advocating grant of
pension of higher rank (Lt Col) to a defence personnel who has retired in a
lower rank (Maj) ignoring the hierarchy and sentiments of higher rank officers
who will be cause injustice due to the treatment being sought by the
Petitioners. Petitioners’ submissions in these paragraphs are contrary to their
own stand of uniformity of pension in the same rank and tenure.
86. The contention of the petitioners for
applying improvement in service conditions and policies of the serving Govt
servants to the retired Govt servant is not appropriate and is an issue
different from OROP.
87. That in reply to Para 58 it is submitted
that a soldier with honorary rank is not equal to a soldier holding the same
rank substantively, as the former has drawn pay and allowances for the Honorary
rank. Hon’ble AFT, Chandigarh vide order dated 27.10.2017 has stated that Hony
Nb Subedar and Nb Subedar are two distinct classes and being unequal cannot be
treated as equal.
88. That Para 59 and 60 have been already
addressed.
89. That the OROP scheme has been issued and
implemented after taking into account all relevant facts and considerations by
the Government and has been approved at the highest level. The OROP scheme of
the Union of India is neither arbitrary, nor illegal nor violative of the
Constitution and therefore the writ petition is liable to be dismissed.
90. Any anomalies that may have arisen have
been addressed by the OMJC and its recommendations are now pending before the
Govt for consideration.
91. It is therefore the most humble
submission of the Respondent/Union of India that the present writ petition is
premature and is liable to be dismissed on that account.
92. Without prejudice to the above
submission, the writ petition would deserve to be dismissed by this Hon’ble
Court as being devoid of any merit. The answering respondent prays accordingly.
Sd/-----------------
DEPONENT
R K Arora
Under Secretary
Ministry of Defence, New Delhi
See Para 54
|
Rank
|
Standard
service period for the rank
|
Pension
between 1.6.53 and 16.4.56 AI 2/S/53 & Reg 29 (A) PRA Part I (1961) as
amended vide CS No. 13/67
|
Pension
between 17.4.56 and 30.9.61 Reg 29 (A) PRA Part I (1961) as amended vide CS
No. 13/67
|
Pension
between 1.10.61 and 31.12.72 not governed by post DCRG Reg 29 (A) PRA Part I
(1961) as amended vide CS No. 13/67
|
Pension
between 10.9.70 and 31.12.72 (post DCRG) AI 8/S/70
|
Pension
on or after 12.10.70 Reg 29 (a) as amended vide CS No. 125/57
|
|
|
Years
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
|
2nd
Lt/Lt
|
20
|
275
|
275
|
300
|
272
|
300
|
|
Capt
|
20
|
350
|
350
|
425
|
377
|
425
|
|
Major
|
22
|
475
|
475
|
550
|
482
|
550
|
|
Lt
Col (Selection)
|
24
|
625
|
625
|
675
|
587
|
640
|
|
Lt
Col (TS)
|
26
|
-
|
-
|
-
|
557
|
-
|
|
Col
|
26
|
675
|
675
|
75
|
638
|
675
|
|
Brig
|
28
|
725
|
800
|
825
|
696
|
825
|
|
Maj
Gen
|
30
|
800
|
875
|
875
|
735
|
875 (a)
|
|
Lt
Gen
|
30
|
900
|
900
|
900
|
755 (*)
815 (a)
|
975
|
|
General
|
30
|
1000
|
1000
|
1000
|
840
|
1000
|
*
Rate of pension up to 11.10.70
|
Rank
|
Pension
between 1.1.33 and 31.3.79
|
Pension
wef 1,4,79 (along with DCRG) MoD No. B/40725/AG/PS 4(a)
|
Pension
between 30.6.82 and 31.3.84
|
|
|
Pension
on or after 31.3.85 GoI/MoD No. B/42114/AG/PS 4 (a)
|
|
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
Rs p.m
|
|
2nd
Lt/Lt
|
350
|
525
|
575
|
600
|
650
|
950
|
|
Capt
|
575
|
750
|
800
|
825
|
875
|
1200
|
|
Major
|
675
|
875
|
925
|
975
|
1000
|
1400
|
|
Lt
Col (Selection)
|
775
|
950
|
975
|
1025
|
1075
|
1575
|
|
Lt
Col (TS)
|
700
|
900
924 (b)
|
1000
|
1050
|
1100
|
1525
|
|
Col
|
900
|
1100
|
1150
|
1225
|
1275
|
1850
|
|
Brig
|
1000
|
1125
1175 (c)
|
1250
|
1325
|
1375
|
2025
|
|
Maj
Gen
|
1050
|
1275
|
1425
|
1425
|
1500
|
2275
|
|
Lt
Gen
|
1100
|
1375
1475 (d)
|
1500
|
1500
|
1500
|
2400-2500
|
|
Gen
|
1200 for COAS
|
1700 for COAS
|
1700
|
1700
|
1700
|
2825
|
(x) Rate of pension up to 11.10.1970
(a) Rate of pension w.e.f. 12.10.1970
(b) Rate of pension w.e.f 2.7.79
(c) Rate of
pension w.e.f 1.5.79
(d) Rate of pension w.e.f. 1.8.79
* * * * * * * *
