Red Tape in implementing Judgements & Orders to Similarly Situated Persons
An article in Live Law portal in which the author states that as of May 2022, over 4.7 crore cases are pending at various levels in India of which almost 70000 cases are pending before the Supreme Court (https://www.livelaw.in/columns/conflicting-judgements-of-coordinate-benches-supreme-court-high-court-218117 ) causes a concern as to how many cases relate to pensionary benefits for Family Pensioners and Veterans of the Indian Armed Forces.
This article is confined to discussing objectively why Pensions related matters should be subject matter of Public Interest Litigation (PIL) and how decisions affecting “Similarly situated” Armed Forces Pensioners are objected to by bureaucrats unless Court judgements specifically state that they are applicable to all similarly situated. It may not be out of place to mention that many Pensioners may pass away leaving the Family pensioners unaware on how to proceed further.
Public Interest Litigation vis-à-vis Armed Forces Pension related matters
Public Interest Litigation cannot be filed for matters concerning Service matters and those pertaining to Pension (other than Family Pensions) and Gratuity as per the guidelines issued by the honourable Supreme Court on 1.12.1988 (https://main.sci.gov.in/pdf/Guidelines/pilguidelines.pdf).
There are approximately 30 lakh pensioners & family pensioners of the Armed Forces. Many of them face the same issue with regard to pensions. Consequently, a few pensioners, fewer non-pensioners and very few family pensioners seek legal remedy from Tribunals or Courts. A larger number do not/ cannot because access to courts, especially from rural areas is difficult but also will not do so because of apprehensions and a scantier knowledge of Court/Tribunal procedures.
While service matters may differ from one person to another depending on the individual’s perception of the same set of facts, but matters pertaining to Pension and Family pension have often involved with Pension Sanctioning Authorities taking adverse decisions or resorting to incomprehensible methodology in implementing policies to deny pay or pension to thousands of retired persons and families/NoK. Further, judgments restricting benefits to petitioners only lead to many more “similarly situated persons” approaching Courts or Tribunals thereby increasing the case load of Courts. Thousands more do not approach Courts or Tribunals and resign themselves to whatever fate gives them.
Orders/Judgements of hon’ble Supreme Court that benefitted all similarly situated persons
Let us now bring to the fore the “applicable to similarly situated” decisions of the Supreme Court that benefitted thousands of serving and retired Armed Forces Officers.
Rank Pay Matter in Lt Col N K Nair & Others Vs Union of India
Rank Pay was recommended by the Fourth Central Pay Commission (4th CPC) for serving officers of the Armed Forces in the ranks of Captain, Major, Lieutenant Colonel, Colonel and Brigadier and their equivalents in the Navy and Air Force, in addition to their Basic Pay. Rank Pay also counted towards pensionary benefits. However, file noting show that the CDA/CGDA took it up on themselves to deduct the amount of Rank Pay from the pay due and arrive at a reduced Basic Pay and then, atrociously, add it to the reduced Basic Pay.
This was challenged by Maj A K Dhanapalan in Original Petition No. 2448 of 1996N in the honourable High Court of Kerala at Ernakulam when he was posted to a place closer to the hon’ble Court. The Ld Single Judge Bench upheld, on 05 Oct 1998, the contention of Maj Dhanapalan that the Rank Pay should not be deducted to re-fix his pay. Union of India challenged the judgement before a Ld Division Bench in Writ Appeal No. 518 of 1999 (B) which upheld the order of the Single Bench on 04 Jul 2003.
In 2005, the honourable Supreme Court dismissed a Special Leave to Appeal (Civil) No. CC 5908 of 2005 filed by Union of India versus (Major) A K Dhanapalan challenging the judgment and order of the High Court of Kerala at Ernakulam due to an unjustifiable delay.
Subsequent representations by several similarly situated officers to the Ministry of Defence were rejected stating that the above Court orders were applicable only to Maj Dhanapalan compelling them (Lt Col N K Nair & Others represented by Retired Defence Officers Association as well as individual appellants) to file many writ petitions in several High Courts. On the plea of Union of India, these were transferred to the honourable Supreme Court as Transfer Petition (Civil) No. 56 of 2007.
The honourable Supreme
Court Bench of Justice Markandeya Katju and Justice R M Lodha (as he was then) heard
the batch of petitions and concurred on 08 Mar 2010 with the Ld Division Bench
of the High Court. However, Union of India, on the advice of then Solicitor
General of India, filed Interlocutory Application No. 9 of 2010 in TP (C) 56 of
2007.
The 3 Judges Bench of the honourable Supreme Court of Justice R M Lodha (as he was then), Justice T S Thakur (as he was then) and Justice A R Dave that heard the matter in IA No. 9 in TP (C) No. 56 of 2007 agreed with the afore-mentioned decisions on 04 Sep 2012. However, Ld Solicitor General (later honourable Justice) Shri Rohinton Nariman, on instruction of UoI, urged that the benefits be restricted to petitioners. However, the Bench, after discussing with petitioners/respondents ordered as follows, “It is clarified that this order shall govern all similarly situated officers who have not approached the court and also those who have filed Writ Petitions which are pending before various High Courts/Armed Forces Tribunal” (italics supplied).
If this clarification had not been incorporated there would have been a few thousand similarly situated officers approaching the honourable Supreme Court which brings me to decisions of Coordinate Benches.
However, the ubiquitous Deptt of Expenditure, MoF through the then Deputy Secretary vide ID Note No. 187654/E.III(A)/2012 dated 9th November 2012 wanted to know why the benefit of the Court’s order could not be “Army centric” because the petitioners and litigations appeared to be from the Army and phrase “the similarly situated person may be confined to similarly persons from the Army alone…”. The file, including an application dated 27th November 2012, to the hon’ble Court for 12 more weeks to implement the decision did it rounds of CGDA, MoD (Fin) and offices of the Solicitor General and the Attorney General before the Govt order was issued in July 2014.
Maj Gen SPS Vains & Others Vs Union of India
In 2010, one Major General SPS Vains approached the honourable Regional Bench of the Armed Forces Tribunal at Chandigarh, presenting an Original Application of behalf of about 52 petitioners that by restricting pensionary benefits of the 5th CPC to those in the rank of Maj Gen on a certain cut off date, they would draw lesser pension than officers of the rank of Brigadiers, who are the ‘feeder cadre’ for promotion to rank of Maj Gen.
In Civil Appeal No. 2966 of 2011, a Coordinate Bench of the honourable Supreme Court (then CJI Justice Dipak Misra, Justice Khanwilkar and Justice Dr Chandrachud (as he was then) decided on 08 Dec 2017 averred “Mr.Nidhesh Gupta, learned senior counsel for the respondents in C.A.No.2966/2011 submits that the benefits that were conferred on the persons as per the judgment rendered by this Court in Union of India and another vs. SPS Vains(Retd.) & Ors., (2008) 9 SCC 125 qua the Sixth Pay Commission keeping in view the cut-off date dated 01.01.2006 have not been given to the respondents. Elaborating further, it is urged by the learned counsel that the benefits have been given exclusively to the petitioners who had approached the Tribunal though not to the categories who were entitled to the said benefit. Be it clarified, when a question of pay fixation comes, the same cannot be limited to the petitioners who have approached the Court” (italics supplied).
Further the same Bench of the honourable Court held on 24 Apr 2018, as “Order - Placing reliance on Annexure-I to the compliance affidavit filed in pursuance of the Court’s order dated 8th December 2017, it is submitted by Ms. Pinky Anand, learned Additional Solicitor General that the Union of India is extending the benefit to all Major Generals and equivalent ranks of Army, Navy and Air Force, who retired/died prior to 01.01.2006, though they have not filed any litigation” (italics supplied).
Extensive filing noting obtained through RTI Act, 2005, indicated that on MoD File No. 4(140)/2010-D (Pen/Legal) (Vol IV) that there were intensive objections by the DoE, MoF to the proposal for extending the benefits to the 6th CPC and again, after the Court directed as above, to grant benefits to all similarly situated Officers before the above decision of the honourable Court was implemented.
However as the following instances show, there isn’t an equivalent of judicial discipline in the bureaucracy and there is scant regard for the principle of precedent which is used more to deny benefits than to grant them unless ordered by Courts or Tribunals.
Individual Cases by Senior Officers drawing less pay and pension than junior Officers
The issue in question was decided way back in 1990 by a Division Bench of the Delhi High Court vide judgment dated 12.10.1990 in the case of S.N. Chaturvedi Vs. Union of India – 1990 SCC OnLine Del 406, whereby in the matter of anomaly in pay fixation based on the Fourth Pay Commission Report after following the guidelines and instructions contained in the Special Air Force Instructions dated 26.05.1987, benefit has been granted to the petitioner therein, AVM S.N. Chaturvedi.
However, Air Vice Marshal P S Babu was awarded higher pay and pension on 4th November 2020 in OA No. 2342 of 2019, by the honourable Armed Forces Tribunal, Principal Bench citing the above case. However, the Department of Expenditure, Ministry of Finance confined the award to the petitioner by the interpretation of the AFT’s Order by Ministry of Finance vide MoF/DoE ID No. 03-05/2016-E.III(A) dated 15/09/2021eFTS 1816614 stating,
“(i) The implementation of the AFT’s order dated 04.11.2020 will be for applicant only and not be treated as a precedent case.
(ii) The pay anomaly of AVM P Subhash Babu vis-à-vis his junior rank/posts (Air Cmde) in 7th CPC regime is different from the pay anomaly of AVM SN Chaturvedi as relied (on) by AFT in his Order dated 04.11.2020 in P Subhash Babu case. The anomaly of Sh Chaturvedi was due to his promotion in (sic) AVM rank prior to 01.01.1986 (4th CPC regime) vis-à-vis his junior officers in the rank of Air Cmde/Brig equi on or after 01.01.1986. Hence letter dated 04.4.1991 of MoD stepping up of pay of Major General/equivalent in the Air Force & Navy cannot be invoked in 7th CPC regime i.e. in the case of P Subhash Babu and other similarly placed officers” (italics supplied).
Subsequently, Air Vice Marshal A Ahuja in (OA No. 1914 of 2020 on 10th November 2021) and Air Vice Marshal V N Srinivas (in OA 2070 of 2021 on 20th December 2021) have been awarded the same benefits as in AVM P S Babu (supra).
Now there are several Original Applications in the Armed Forces Tribunal, Principal Bench (Nos 71 of 2022, 107 of 2022 and 108 of 2022, 1530 of 2022, 1912 of 2022 etc) awaiting the pleasure of compliance of Ministry of Finance.
In the same time frame, the honourable Punjab and Haryana High Court is hearing the matter of Maj Gen and above & equivalents being granted lesser pensions than Colonels and Brigadiers & equivalents in CWP Nos. 36589 of 2019, 18624 of 2020, 16925 of 2021, 2081 of 2021 and 13425 of 2021 filed by about 80 Maj Gen and above and equivalents.
In CWP No. 13425 of 2021 (of Maj Gen D N Asija & Ors vs UoI & Ors), the Ld Additional Solicitor General settled a short reply affidavit filed in the honourable High Court admitting the long pending anomaly on 21 Dec 2021. The honourable Court ordered on 9th February 2022 that the respondents resolve the matter in 6 months.
In October 2022, a Contempt Petition (COCP No. 2137 of 2022) was filed and again the Ld ASG assured on 14 Dec 2022 that respondents have made favourable recommendations and the matter now rests with Ministry of Finance (Copy of Interim Order attached for ready reference). It may not be out of place to state that several more Civil Writ Petitions by similarly situated officers have been tagged to the above mentioned CWP. However, due to jurisdictional restrictions, all petitioners are from the states of Haryana, Punjab and UT of Chandigarh.
In Conclusion
If the Deptt of Expenditure, MoF decides to restrict the benefits of the orders of the Courts to petitioners only, it will add to the burden of pending cases in High Courts all over India like it did in the Rank Pay case and finally end in adding to the large burden of cases in the honourable Supreme Court.
Hopefully the Deptt of Expenditure, Ministry of Finance would read the following words of the honourable Supreme Court in CA No. 3984 of 2010 on 26 Aug 2020,
“19. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind, i.e., to facilitate a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities…” (italics supplied)
The bureaucratic exercise of restricting benefits to petitioner(s) unless ordered by Court/Tribunal conveys an impression that it is against a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance.
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