RTI Request No. DEXSW/R/2018/50005
for File Notings and other
Information relating to Para 3 of the
MoD letter dated 07 Nov 2015 for One
Rank One Pension
* * * * * *
Note:
1. For brevity, information available on other
websites is not re-produced here but the name of the website is given in the
appropriate places viz. Hon’ble Supreme Court for orders pertaining to Case
numbers mentioned. Readers are requested to go to that/those website(s) for
necessary information.
2. Due to the excessive anticipation of readers, and the haste in typing out, there may be errors of spelling. The syntax is unchanged from the photocopies made available.
Enjoy
Reply of Department of Ex-Servicemen
Welfare
Reference No. 237/RTI/D (P/P)/2014
dated 1st March 2018
* * * * * *
Ministry of Finance
Department of Expenditure
Subject: One Rank One Pension (OROP)
MoD Finance may please refer to their proposal on
the subject cited above received in ths Ministry on their F No. 10
(11)/2012/Fin/Pen.
2. The proposal
of the Ministry of Defence, Department of ESW, as worked out in para 4 and 5 of
their note on pages 46-55/n of their F No. 12(01)/2014/D(P/P), as commented
upon by MoD Finance in their referring note of the file mentioned in para 1 above, has been under active
consideration of this Ministry for carrying out OROP in an appropriate
manner.
3. In the meanwhile, however, this Ministry
has come to know of an order passed by the Hon’ble Supreme Court as recently as
16.2.2015 in Civil Appeal No. 2966/2011 in the case between SPS Vains and
others Vs Union of India. The Hon’ble Supreme Court has passed this order as
under:
“Heard.
Ms Pinki Anand, Learned Additional Solicitor
General, prays for and is granted three months time finally to work out the
modalities for the One Rank One Pension principle on which the Tribunal has
passed impugned judgment. The principle is also, it appears, covered by the
decision of this Court in Union of India and Anr Vs SPS Vains (retd) and others
– (2008) 9 SCC 125.”
4. It follows from the above order of the
Hon’ble Supreme Court dated 16.2.2015 that the principle of One Rank One
Pension is apparently covered in earlier judgment of that Court in the cited case
of 2008, namely Union of India & Anr Vs SPS Vains (retd) and others.
5. Therefore, considering that the Hon’ble
Supreme Court in their order of 16.2.2015 have observed that the principle of
One Rank One Pension is apparently covered in their said previous order, it is
a moot legal point as to whether the proposal now worked out by the MoD/MoD
(Finance) on the principle of One Rank One Pension would ensure compliance with
the ratio of the decision of the Hon’ble Supreme Court in the said case, namely
Union of India & Anr Vs SPS Vains (retd). There is no mention in this
regard in the proposal made out by MoD.
6. Since the order referred above has been
passed by the highest Court of the Land, it is felt that Government would be
well legally advised to ensure full compliance therewith and it would not be
legally appropriate to work out modalities in infringement thereof in any
respect whatsoever.
7. Accordingly, Ministry of Defence
(Finance) may like to offer their comments on this point, bringing out, at the
same time, in what respects, if any, the present proposal is in deviation of
the principle laid down by the order of the Hon’ble Supreme Court and whether
such a deviation could be legally construed as compliance with the same without
any infringement whatsoever.
8. Furthermore, since the present order of
the Hon’ble Supreme Court of 16.2.2015 states that the principle of OROP is
apparently covered in their previous Orders in the case of Union of India and
Anr Vs SPS Vains (retd), MoD (Finance) may also offer comments if the principle
for OROP as enunciated by the Hon’ble Supreme Court in the said case may be
adopted as the guiding principle for OROP across ranks at this juncture and if
so, whether such a course of action would lead to higher financial impact than
that on the present proposal. The financial impact on this count may also be
indicated.
9. The matter will be examined further after receiving the
considered views of MoD.
10.
This has the
approval of Secretary (Expenditure).
Sd/----------
(Amar Nath Singh)
Deputy Secretary
Ministry of Defence
(Finance) (kind attention: Ms Vandana Srivastava (FA-DS)
D/o Expenditure’s ID Note
No. 1(6)/EV/2015 dated 1.4.2015
Sd/------------- 1/4
Addl FA (DR) 06/04
DFA (Pension) Immediate
Action
MOST IMMEDIATE
Ministry of Defence
Finance (Pension)
Subject: - One Rank One Pension (OROP) – proposal for
implementation
Please find enclosed herewith a copy
of Department of Expenditure, Ministry of Finance ID Note No. 1 (6)/E-V/2015
dated 01/04/2015, along with copy of Apex Court judgment dated 16/02/2015 on
the above subject.
2. Department of ESW is requested to
furnish their comments in the matter urgently specially on para 5 & 7 of
the ibid letter, so as to enable this Division to provide the same to the DoE,
Ministry of Finance. DESW may also like to get the comments of office of CGDA
including financial impact as desired by MoF in para 8 of the ibid letter.
3.
This has the
approval of FA (DS).
Sd/----------------
(Virendra Kumar)
DFA (Pen)
Encl as above
DS (PENSION, D/o ESW
MoD (Fin/Pen) ID No. part
file to No. 10 (11)/2012/FIN/PEN dated 07/04/2015
Copy to: US (Pen/Legal) –
may kindly offer comments on para 5 & 7 as referred at A above and provide
relevant documents immediately. Sd/--------
07/4/15
MoD D (Pen/Legal)
No comments are offered as it is
purely a policy matter. However, copies of SC judgment dated 9.9.2008 in SPS
Vains and MoD letter dated 15.7.2009 and its corrigendum dated 30.9.2009 and
8.10.2009 are forwarded herewith for necessary action.
Sd/-------------
8/4/15
SO – D (P/L)
D (Pen/Policy)
D (Pen/Policy)
Ref
preceding note.
2. Policy letter in the matter has been
issued by D (Pen/Legal vide letter No. 4 (110) 07/D (Pen/Legal) dated 15th
July 2009 and corrigendum dated 30 Sep 2009 and 8 Oct 2009. Civil Appeal No.
2996/2011 was also filed by D (Pen/Legal) in the matter (copies already
enclosed).CGDA office is working on th task of preparing comments for Ministry
of Finance have desired to have copy of Appeal filed bu UOI as a result of
which an interim order dated 16.2.2015 has been made by the Hon’ble Supreme
Court of India,
3. Kindly provide the copy to Shri Rajesh Kumar, AO, CGDA (FAX
No. 25674811) immediately.
Sd/-------10/4/15
SO (Pen/Legal) Sd/------- 10/4/15
Office of the Controller General of
Defence
Accounts, Ulan Batar Road, Palam
Delhi Cantt – 110010
Phone: (011) 25665529, 25665576-78
Fax: (011) 25674811, 25675493
Subject: One Rank One Pension
Reference: Ministry of Finance, Department of
Expenditure’s ID No. 1(6)/EV/2015 received vide MoD (Fin/Pen) ID No. Part file
No. 10 (11)/2012/FIN/PEN dated 7th April 2015.
Para wise comments on the Department
of Expenditure’s above quoted ID note dated 1.4.2015 are as follows: -
Para
3: No comments being matter of
facts. It is, however, mentioned here that MoD vide their letter No. 4
(110)/07/D (Pen/Legal) dated 15th July 2009 have already issued
orders to implement the judgment dated 9.9.2008 of the Hon’ble Supreme Court in
Civil Appeal No. 5566 of 2006 and SLP (Civil) No. 12357 of 2006 in case of UoI
Vs SPS Vains and others. The same has been fully implemented in all affected
cases. We are, however, not aware why the Civil Appeal No. 2966/2011 in case of
SPS Vains and others Vs UOI has been filed by UoI against which the judgment
dated 16.2.2015 has been passed by Hon’ble Supreme Court.
Para
4: Ministry may be intimated
that the judgment of Honourable Supreme Court dated 9.9.2008 passed in Civil
Appeal No. 5566 of 2008 and SLP (Civil) No. 12357 of 2006 in case of UoI Vs SPS
Vains and others, was in the matter for removal of anomaly in case of revision
of pension of the rank of Major General vis-à-vis Brigadier while implementing
the recommendations of Fifth CPC. However, while deciding the matter, the Apex
court also considered the 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 was observed by the Apex Court that on
applying stepping up of pension under Fundamental Rules for pre-1996 Major
Generals with Brigadier, disparity was created within the same class as the
officers who retired prior to 1.1.1996 were same pension as payable to a
Brigadier and other set of officers who retired after 1.1.1996 were getting
higher amount of pension as they were entitled for the benefit of the revision
of pay scales after 1.1.1996. Hon’ble Supreme Court, therefore, held the
classification invalid under Article 14 of the Constitution and also as per
judgment of a Constitution Bench in the case of D S Nakra and directed to
notionally fix the pay of all the pensioners in the rank of Major General at
the rate given to similar officers of the same rank after revision of pay
scales with effect from 1.1.1996 and compute their revised pension accordingly
from a prospective date.
In view of above, it is intimated to the Ministry
that a principle was evolved by the Hon’ble Supreme Court by their decision in
UoI Vs SPS Vains (retd) and others (2008) 9 SSC 125, to bring pre and post 1996
retiree Major General officers on par with a background to remove the anomaly
in pension of pre-1996 retiree officers of the rank of Major Generals. It is
pertinent to mention that the principle enunciated in the judgment by the
Hon’ble Apex Court, was not regarding implementation of One Rank One
Pension.
Para
5: Ministry may be intimated the
methodology finalised for implementation of One Rank One Pension for Defence
Forces is with reference to determine a standard rate of pension in order to
achieve principle of ‘one pension’ for
‘one rank.’ Since methodology pronounced by the Hon’ble Supreme Court in the
earlier decision dated i.9.2008 in Civil Appeal No. 5566/2008 was regarding
removal of anomaly in pension between the rank of Major General and Brigadier,
the same was not considered at the time of formulating principle to implement
One Rank One Pension for Defence Forces.
Para
6: Decision taken by Ministry
for implementation of Hon’ble Supreme Court above said judgment dated 16.2.2015
is not available at our end, hence no comments are offered on the same. It is,
however, intimated that the proposal formulated for One Rank One Pension have
no linkage with the modalities pronounced by the Hon’ble Supreme Court in their
above said judgment, it is felt that there should not be any infringement of
Hon’ble Court decision if the proposal of One Rank One Pension is implemented
for Defence Forces.
Para 7: No comments in view of the comments
on para 4, 5 and 6 above.
Para
8: If the principle enunciated
in Hon’ble Supreme Court judgment in UoI and others Vs SPS Vains (retd) is
adopted, notional pay in every case as on 1.1.2006 has to be fixed before
determining revised pension. For this purpose, pay fixation formulae approved
by the Government under Revised Pay Rules for implementation of various Pay
Commissions or Committees or due to general revision of scale of pay/financial
upgradation/Court orders etc allowed from time to time, has to be taken into
account. The Record Offices/Pay Accounting Offices will need to carry out
notional fixation of pay as on 1.1.2206 based on which corrigendum PPOs would
be issued by the Pension Sanctioning Authorities. The exercise would involve
review of 18 lakh cases and take lot of time. Further, extraction of pay
related data from old records of non-effective personnel pertaining to manual
periods by administrative authorities would be a Herculean task as their
availability could also not be confirmed due to retention period prescribed for
maintenance of these records. Ministry mat also be intimated that since
notional pay varies from case to case, the financial implication involved could
not be determined at this point of time.
Sd/---------
(C K Bhatjiwale)
ACGDA (Pen)
Sh Virendra Kumar
DFA (Pen)
Government of India, MoD
(Finance)
Sena Bhawan, New Delhi –
110 011
UO No. 5699/AT-P/Vol-IV
Dated: 13th
April 2015
Copt to
Shri Prem Prakash
Under Secretary
(Pen/Policy)
Government of India
Ministry of Defence
Deptt of Ex-Servicemen
Welfare,
Sena Bhawan, New Delhi –
11 ….. for information with reference to MoD I D No. 12
(1)/2014-D
(Pen/Policy) (Part II) dated 7th April 2015
Sd/---------
(C K Bhatjiwale)
ACGDA (Pen)
Submitted for kind information of Secretary at Dak stage Sd/--------
File No. 12 (01)/2014/D (Pen/Pol)
(Part – I)
Ministry of Defence
Department of Ex-Servicemen’s Welfare
D (Pen/Pol)
Subject: One Rank One Pension – Information
sought by MoD (Finance)
S No. 1-5 (R/I) – p.1-34/c
MoD (Fin/Pen) have requested to
furnish comments on para 5 and 7 of Min of Finance, Department of Expenditure
ID Note placed at p 3/c. It has been further desired to get comments of O/o
CGDA including financial impact as desired by MoF in para 8 of their ID Note.
2. In their ID Note, Min of Finance have
stated that while considering this department proposal on OROP it has come to
knowledge of an order passed by Hon’ble Supreme Court on 16.02.2015. The said
order is as under:
“Heard.
Ms Pinki Anand, Learned Additional Solicitor
General, prays for and is granted three months time finally to work out the
modalities for the One Rank One Pension principle on which the Tribunal has
passed impugned judgment. The principle is also, it appears, covered by the
decision of this Court in Union of India and Anr Vs SPS Vains (retd) and others
– (2008) 9 SCC 125.”
3. Min of Finance has stated that it
follows from the above order of the Hon’ble Supreme Court dated 16.2.2015 that
the principle of One Rank One Pension is apparently covered in earlier judgment
of that Court in the cited case of 2008, namely, Union of India and Anr Vs SPS
Vains (retd) and others. Therefore, considering that the Hon’ble Supreme Court
in their order of 16.2.2015 have observed that the principle of One Rank One
Pension is apparently covered in their said previous order, it is a moot legal
point as to whether the proposal now worked out by MoD/MoD (Finance) on the
principle of One Rank One Pension would ensure compliance with the ratio of the
decision of the Hon’ble Supreme Court in the said case, namely, Union of India
and Anr Vs SPS Vains (retd) and others. There is no mention in this regard in
the proposal made out by the MoD.
4. It has been further stated by Min of
Finance that since the order referred to above has been passed by the highest
Court of the Land, it is felt that the Government would be well legally advised
to ensure full compliance therewith and it would not be legally appropriate to
work out modalities in infringement thereof in any respect whatsoever.
Accordingly, it has been requested to offer comments on these points, bringing
out, at the same time, in what respects, if any, the present proposal is in
deviation of principle laid down by the order of the Hon’ble Supreme Court and
whether such deviation could be legally construed as compliance with the same
without any infringement whatsoever.
5. Min of Finance have also stated that
since the present order of the Hon’ble Supreme Court dated 16.2.2015 states
that the principle of OROP is apparently covered in their previous orders in
the case of Union of India and Anr Vs SPS Vains (retd) and others. Comments may
also be offered if the principle for OROP as enunciated by the Hon’ble Supreme
Court in the said case may be adopted as the guiding principle for OROP across
ranks at this juncture and if so, whether such a course of action would lead to
higher financial impact than that on the present proposal. The financial impact
on this count may also be indicated.
6. Comments of CGDA have been obtained in the matter. CGDA have
furnished their comments as p 32/c as under:
“Para 3: No
comments being matter of facts. It is, however, mentioned here that MoD vide
their letter No. 4 (110)/07/D (Pen/Legal) dated 15th July 2009 have
already issued orders to implement the judgment dated 9.9.2008 of the Hon’ble
Supreme Court in Civil Appeal No. 5566 of 2006 and SLP (Civil) No. 12357 of
2006 in case of UoI Vs SPS Vains and others. The same has been fully
implemented in all affected cases. We are, however, not aware why the Civil
Appeal No. 2966/2011 in case of SPS Vains and others Vs UOI has been filed by
UoI against which the judgment dated 16.2.2015 has been passed by Hon’ble
Supreme Court.
Para 4: Ministry
may be intimated that the judgment of Honourable Supreme Court dated 9.9.2008
passed in Civil Appeal No. 5566 of 2008 and SLP (Civil) No. 12357 of 2006 in
case of UoI Vs SPS Vains and others, was in the matter for removal of anomaly
in case of revision of pension of the rank of Major General vis-à-vis Brigadier
while implementing the recommendations of Fifth CPC. However, while deciding
the matter, the Apex court also considered the 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 was observed by the
Apex Court that on applying stepping up of pension under Fundamental Rules for
pre-1996 Major Generals with Brigadier, disparity was created within the same
class as the officers who retired prior to 1.1.1996 were same pension as
payable to a Brigadier and other set of officers who retired after 1.1.1996
were getting higher amount of pension as they were entitled for the benefit of
the revision of pay scales after 1.1.1996. Hon’ble Supreme Court, therefore,
held the classification invalid under Article 14 of the Constitution and also
as per judgment of a Constitution Bench in the case of D S Nakra and directed
to notionally fix the pay of all the pensioners in the rank of Major General at
the rate given to similar officers of the same rank after revision of pay
scales with effect from 1.1.1996 and compute their revised pension accordingly
from a prospective date.
In view of above, it is intimated to the Ministry
that a principle was evolved by the Hon’ble Supreme Court by their decision in
UoI Vs SPS Vains (retd) and others (2008) 9 SSC 125, to bring pre and post 1996
retiree Major General officers on par with a background to remove the anomaly
in pension of pre-1996 retiree officers of the rank of Major Generals. It is
pertinent to mention that the principle enunciated in the judgment by the
Hon’ble Apex Court, was not regarding implementation of One Rank One
Pension.
Para 5: Ministry
may be intimated the methodology finalised for implementation of One Rank One
Pension for Defence Forces is with reference to determine a standard rate of
pension in order to achieve principle of
‘one pension’ for ‘one rank.’ Since methodology pronounced by the
Hon’ble Supreme Court in the earlier decision dated i.9.2008 in Civil Appeal
No. 5566/2008 was regarding removal of anomaly in pension between the rank of
Major General and Brigadier, the same was not considered at the time of
formulating principle to implement One Rank One Pension for Defence
Forces.
Para 6: Decision
taken by Ministry for implementation of Hon’ble Supreme Court above said
judgment dated 16.2.2015 is not available at our end, hence no comments are
offered on the same. It is, however, intimated that the proposal formulated for
One Rank One Pension have no linkage with the modalities pronounced by the
Hon’ble Supreme Court in their above said judgment, it is felt that there
should not be any infringement of Hon’ble Court decision if the proposal of One
Rank One Pension is implemented for Defence Forces.
Para
7: No comments in view of the
comments on para 4, 5 and 6 above.
Para 8: If
the principle enunciated in Hon’ble Supreme Court judgment in UoI and others Vs
SPS Vains (retd) is adopted, notional pay in every case as on 1.1.2006 has to
be fixed before determining revised pension. For this purpose, pay fixation
formulae approved by the Government under Revised Pay Rules for implementation
of various Pay Commissions or Committees or due to general revision of scale of
pay/financial upgradation/Court orders etc allowed from time to time, has to be
taken into account. The Record Offices/Pay Accounting Offices will need to
carry out notional fixation of pay as on 1.1.2206 based on which corrigendum
PPOs would be issued by the Pension Sanctioning Authorities. The exercise would
involve review of 18 lakh cases and take lot of time. Further, extraction of
pay related data from old records of non-effective personnel pertaining to
manual periods by administrative authorities would be a Herculean task as their
availability could also not be confirmed due to retention period prescribed for
maintenance of these records. Ministry mat also be intimated that since
notional pay varies from case to case, the financial implication involved could
not be determined at this point of time.”
7. We may furnish chronology of event in legal cases of Maj Gen
SPS Vains (retd) along with calculation sheets in the legal case of Major
General SPS Vains (retd) to CGDA office and request them to furnish their
comments on the issues raised in Min of Finance ID Note at p.3/c.
Sd/-----------
16/4/15
(Prem Prakash)
Under Secretary (Pen/Pol)
16.04.2015
DS (Pension) Sd/-------------T R
Singhal 16/4/15
JS
(ESW) CGDA vide Para 2 of U.O. No.
5699/AT-P/Vol IV dated 13.4.2015 has informed that CGDA is not aware as to whay
Govt has filed appeal and they are not aware. The perusal of the file relating
to CA No. 2996/2011 clearly reveals that CGDA was consulted from time to time.
In fact, imputs from CGDA and PCDA in their calculations of pensions have come
and these were filed in the Supreme Court. The above related information along
with details may please ben informed to the CGDA by reviewing the draft. Sd/------------------- 16/4/15
DS
(Pensions) As per the directive
of JS (ESW), fair letter to CGDA seeking calculation sheets is placed below
which may be issued by FAX as well as Special Messenger immediately and the
file be resubmitted for perusal of JS (ESW) after issue. Sd/---------
22/4/15
SO (P/P) Letter issued to CGDA. File resubmitted
for perusal of JS (ESW)
Sd/------ (Veena) SO (P/P) 22.4.15
US (P/P) Sd/------ 22/4/15
DS (pension) – on leave
JS (ESW) Sd/-------- 22/4
DS (Pension) Sd/-----
27/4/15
US (P/P)
Immediate
By Special Messenger
Government of India
Ministry of Defence
Department of Ex-Servicemen Welfare
Subject: One Rank One Pension – Information sought
by MoD (Finance)
Reference UO No. 5699/AT-P/Vol-IV
dated 13th April 2015 from ACGDA (Pension) on the subject.
2. It has been stated in U O Note under
reference that CGDA is not aware as to why Civil Appeal No. 2966/2011 in case
of Maj Gen SPS Vains (retd) and others has been filed by UoI. In this
connection, it is clarified that C. A. No. 2966/2011 was filed challenging
judgment delivered by AFT, Chandigarh in O.A. No. 100/2010 filed by Maj Gen SPS
Vains & Others against the orders issued by Government relating to Sixth
Pay Commission. CGDA office has been consulted in the matter from time to time.
Inputs were sought from CGDA and PCDA (P). Calculation sheets were also
furnished by PCDA in the matter.
3. One copy of the following documents is enclosed:
(i) MoD I D
No. 4 (140)/D (Pen/Legal)/2010 dated 8.4.2010.
(ii) UO No.
5669/AT-P/Ministry dated 31.3.2011 from CGDA.
(iii) Letter
No. G1/M/1042/XI dated 13.5.2011 from PCDA.
(iv) MoD ID No.
4 (140)/D (Pen/Legal)/2010 dated 7.6.2011.
4. Chronology of events in legal cases of Maj General SPS vains
(retd) alongwith calculation sheets in the legal case of Major General SPS
Vains (retd) is enclosed.
5. It is requested that further comments, if any, on the issues
raised in Ministry of Finance, Department of Expenditure I D Note. No.
1(6)/EV/2015 dated 1.4.2015 may kindly be furnished immediately.
Sd/---------------
(Prem Prakash)
Under Secretary (Pension/Policy)
Telefax: 23012973
Encl: as above
ACGDA (Pension), Office of
CGDA
MoD I. D. No. 12 (1)/2014-
D (P/P) (Part-II) dated 21st April 2015.
Chronology of Maj Gen SPS Vains (retd) case
1978-96 Respondents retired in the rank of Major Generals
and one of them retired as Air Vice Marshal. Pension being paid to the
Respondents was being revised from time to time as per recommendations of 4th
& 5th Central Pay Commissions.
01/01/86 Pursuant to the recommendations of 4th
Central Pay Commission, a running pay scale was introduced from the rank of
Lieutenant to Brigadier on the basis of number of years of servie rendered by
them and it did not depend upon promotion earned except that the rank pay
varied with each rank. The rank pay was payable to the officers holding rank of
Captain, Major, Lt Colonel, Colonel and Brigadier. However, no rank pay was
payable to the officers holding rank of Major General and above.
01/1/96 The 5th Central Pay Commission
recommended the revised pay scales for service and the pay for the rank of
Brigadier was recommended at Rs 15350-450-17600/- with rank pay of Rs 2400/-.
As per the 5th Pay Commission, Major General and equivalent were
recommended to be placed in the scale of Rs 18400-500-22400/-.
07/06/09 Based on General Principle, pension and family pension
of all pre-1996 retirees commissioned officers was revised, based on a formula
known as modified parity. It was decided that w.e.f. 1.1.1996 Pension of all
Armed Forces pensioners shall not be less than 50% of the minimum pay in the
revised scale of pay introduced w.e.f. 1.1.1996 of the rank and group held by
the pensioner, same as for civilian pensioners.
2001 Government of India, Ministry of Defence
letter was issued stipulating that family pension of an officer of the rank of
Major General and equivalents shall not be less than the family pension which
would have been admissible to the family of the officer as Brigadier or
equivalent had he not been promoted to the rank of Major General and
equivalent.
As per existing provisions (MoD letter dated
3.2.1998) the pension of all pre-96 retiree Major Generals has been stepped up
to Rs 9550/- p.m. i.e. equal to that of Brigadier. But the demand of pre-96
retiree Major Generals has been to get more pension than that of Brigadier.
There are estimated to be 800 Service pensioners of this rank and 122 Family
pensioners. Maj Gen SPS Vains and others filed CWP No. 17233/2001 in Punjab
& Haryana High Court.
2005 Hon’ble High Court passed otder dated
26.5.2005 in CWP 17233/2001 directing respondents i.e. Union of India to fix
the minimum pay scale of Major Generals above that of the Brigadiers and grant
pay above that of Brigadiers as has been done in the case of post 1.1.1996 retirees and consequently
fix the pension and family pension accordingly.
2006 As the steps have been taken to address the
anomaly by fixing the minimum pension of Major Generals who retired prior to
1.1.96 upto Rs 9550/-, an SLP 12357/2006 was filed in the Hon’ble Supreme Court
by UoI.
2008 Hon’ble Supreme Court dismissed the SLP No.
12357/2006 (Civil Appeal No. 5566 of 2008) vide its order dated 9.9.2008
directing that the pay of all pensioners in the rank of Major General and its
equivalent rank in the two other Wings of the Defence Services be notionally
fixed at the rate given to similar officers of the rank after revision of pay
scales w.e.f. 1.1.96, and thereafter, to recomputed 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 3 months from date with interest of 10% per annum.
Feb 2009 Contempt Case No. 64/2009 in CA No. 5566 of 2008
filed by Maj Gen SPS Vains (retd) and others for non-implementation of the
order. In the meantime, review petition filed by the Government in CA 5566 of
2008 was dismissed by the Hon’ble Supreme Court on 24.2.2009. Accordingly,
Government implemented the Hon’ble Supreme Court order dated 9.9.2008 vide
Government letter dated 15.7.2009 duly prescribing the methodology for
re-fixation of their pay on notional basis and corrigendum dated 30.09.2009 and
8.10.2009. When the Court was informed of the action taken by the Government,
the Petitioners raised certain additional issues and the comments were also
filed.
2010 In the meantime, orders of VI CPC were
issued. Aggrieved by it, OA No. 100/2010 was filed by Maj Gen SPS Vains in AFT,
Chandigarh challenging the various instructions issued by the Govt stating that
a similar anomaly has occurred in the fixation of pay of those officers after
the 6th CPC. Hon’ble AFT, Chandigarh, vide its order dated 4.3.2010
directed the respondents to implement the decision of the Constitution Bench as
well as Supreme Court’s decision rendered in SLP (Civil) No. 12357/2006 (UoI
and Anr Vs SPS Vains (retd) and others) in letter and spirit in the matter of
fixation of pension of the petitioner within three months from the date of the
impugned order. Views of the Department of Expenditure, Ministry of Finance and
Deptt of P & PW were obtained.
Deptt of Expenditure vide OM No. C-47/EV/2010 dated
30.06.2010 has stated that after implementation of 6th CPC
recommendations, some sections of pre 1.1.2006 pensioners, particularly those
who retired in the grade/rank of Joint Secretary/Major General and Addl Secy/Lt
General have complained that the percentage increase in the case of their
revised pension is much lesser than that of Directors/Colonels as well as
pensioners who retired in HAG+ grade. Consequently, they demanded that in order
to grant them parity vis-à-vis the existing Govt servants in the grade/rank of
Joint Secretary/Maj Gen and Addl Secy/Lt Gen, their pension should be fixed not
with reference to the minimum of the pay Band, but with reference to a notional
stage in PB-IV which could be the stage where the pay of the existing officer
of their grade/rank has been fixed. This demand cannot be conceded as this
would have far reaching consequences for pre 1.1.2006 pensioners of all
grades/ranks and it would also entail huge financial implications.
2011 In view of the reservations expressed by
Ministry of Finance to implement order dated 4.3.2010 in 100/2010 of AFT,
Chandigarh, CA No. 2966 of 2011 titled Union of India and Others vs SPS Vains
and Others was filed by the Government challenging the above order of AFT, Chandigarh
on the grounds mentioned in the Annexure. The case came up for hearing in 2011.
As directed by the Hon’ble Court, Government filed calculation sheets for
computation of the pensions in the Court.
2014 The case came up for hearing in October
2014 and Court gave 3 months time.
2015 Contempt Petition No. 64/2009 in Civil
Appeal No. 5566/2008 and CA No. D 2966/2011 came up for hearing on 16.2.2015
and the Hon’ble Supreme Court granted 3 months time to finalise, work out the
modalities for implementation of One Rank One Pension (OROP) principle on which
the Tribunal has passed the impugned judgement.
March 2015 OROP proposal was sent to the
Ministry of Finance
April 2015 Deptt of Expenditure, Ministry of Finance vide ID
Note No. 1(6)/EV/2015 dated 1.4.2015 has referred the Judgment of the Supreme
Court and called for views of the Ministry.
“This Ministry has come to know of an order passed
by the Hon’ble Supreme Court as recently as 16.2.2015 in the Civil Appeal No.
2966/2011 in the case between Union of India Vs SPS Vains and others.
It follows from the Hon’ble Supreme Court order
dated 16.2.2015 that the principle of One Rank One Pension is apparently
covered in earlier judgment of that Court in the cited case of 2008, namely,
Union of India & Ors Vs SPS Vains (retd) and others.
Therefore, considering that the Hon’ble Supreme
Court, in their order of 16.2.2015 have observed that the principle of One Rank
One Pension is apparently covered in their said previous order, it is a moot legal
point as to whether the proposal now worked out by the MoD/MoD (Finance) on the
principle of One Rank Pension would ensure compliance with the ratio of the
decision of the Hon’ble Supreme Court in the said case, namely, Union of India
and Ors Vs SPS Vains (retd). There is no mention in this regard in the proposal
made out by the MoD.
Since the order referred to above has been passed
by the highest Court of the land, it is felt that Government would be well
legally advised to ensure full compliance therewith and it would not be legally
appropriate to work out modalities in infringement thereof in any respect
whatsoever.
The Ministry of Defence (Finance) has been asked to
offer their comments on this point, bringing out, at the same time, in what
respect, if any, the proposal is in deviation of the principle laid down by the
order of the Hon’ble Supreme Court and whether such a deviation could be
legally construed as compliance with the same without any infringement
whatsoever.
Furthermore, since the present Order if the Hon’ble
Supreme Court dated 16.2.2015 states that the principle of OROP is apparently
covered in their previous Orders in the case of Union of India Vs SPS Vains
(retd), MoD (Finance) may also offer comments if the principle for OROP as
enunciated by the Hon’ble Supreme Court in the said case may be adopted as the
guiding principle for OROP across ranks at this juncture and if so, whether
such a course of action would lead to higher financial impact than that on the
present proposal. The financial impact on this count may also be indicated. The
matter will be examined further after receiving the considered view of MoD.
The
matter is currently under examination in consultation with CGDA.
* * * * *
Calculation sheets for Maj
Gen SPS Vains (retd) and other Petitioners/Respondents are not provided as they
are not relevant to the issue of OROP.
* * * * *
Office of the Controller General of
Defence
Accounts, Ulan Batar Road, Palam,
Delhi Cantt - 110010
Subject: One Rank One Pension
(OROP) – Information sought by MoD (Finance) reg
Reference: MoD ID No. 12
(1)/2014-D (P/P) (Part – II) dated 21st April 2015
Ministry may be intimated that the
reference made in MoD’s above said ID dated 21.4.2015, are with reference to OA
No. 100 of 2010 filed by Major General SPS Vains & others Vs UoI in AFT,
Chandigarh regarding fixation of pay/revised pension as on 1.1.2006 in the line
of Hon’ble Supreme Court earlier decision dated 9.9.2008 in Civil Appeal No.
5566 of 2008. It has been observed that the petition was allowed by the
Tribunal vide their judgment dated 4.3.2010 in favour of petitioners. As per
MoD’s previous ID No. 4 (140)/2010/D (Pen/Legal) dated 29.3.2011, Civil Appeal
No. 2910/2011 was filed to challenge the said judgment of AFT. There is no
reference regarding Civil Appeal No. 2996/2011 in all the correspondence
received earlier form Ministry and referred in their ID dated 21.4.2015. It is
further intimated that Hon’ble Apex Court judgment dated 16.2.2015 deliberated
in the Civil Appeal No. 2966 of 2011 have a reference to Contempt Petition (C)
No. 64/2009 filed in the Civil Appeal No. 5566 of 2008, which has already been
implemented by issue of MoD letter No. 4 (110)/07/D (Pen/Legal) dated
15.7.2009. It is also intimated that the website of Hon’ble Supreme Court is
showing status of Civil Appeal No. 2910/2011 converted to Civil Appeal No.
2966/2011. Therefore, it appears that only one Civil Appeal in both cases viz.
Contempt proceeding filed by respondents against implementation of earlier
Hon’ble Apex Court earlier judgment dated 9.9.2008 and fresh OA for fixation of
pay/revised pension as on 1.1.2006 is being heard by Hon’ble Supreme
Court.
2. Regarding our earlier comments on the
queries raised by the Deptt of Expenditure, it is submitted that the same still
holds good as the previous judgements passed in the case of Major General SPS
Vains and others, are regarding removal of anomaly in pay/pension of Major
Generals vis-à-vis Brigadier and not for grant of One Rank One Pension.
Ministry may, therefore, take necessary action at their end.
Sd/--------------
(C K Bhatjiwale)
ACGDA (Pen)
Sh Prem Prakash
Under Secretary (Pen/Pol)
Government of India,
Ministry of Defence
Sena Bhawan, New Delhi -
110011
UO No. 5699/AT-P/OROP/Vol-IV
Dated: 23rd
April 2015
To be continued
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