Thursday, October 1, 2009

IESL: Armed Forces Veteran’s Pension Demand

ESM community has been clamoring for justice with respect to their pension. But the clamor does not seem to have much of an effect on the Government. Obvious is that the clamor is lacking clarity and strength. The ESM themselves are not clear on what their demand on pension is. So many tables and so many theories! Here is an attempt to study the issue once again.

The Principle “Any two pensioners who are equals must get the same pension irrespective of the date of retirement”. Clear and brief and in terms of the famous judgment in the case of DS Nakra Vs UoI! Yet, the interpretation of the principle is varied because of the difference in the understanding of the word ‘equal’.

Equality There can be no difference of opinion as far the rank is concerned, though some of us seem to mix up the acting and substantive rank. As far pension is concerned, the pay is the ruling factor and, therefore, the grade pay, whether in the capacity of acting or substantive, determines the corresponding rank. However, equating a rank obtained through selection with that through time scale is an aberration. I do see some justice in such equation as for pension is concerned. Some may argue that separate grade pay must be stipulated for Time Scaled Promotion. There is logic in that argument, as well.

Service element Here we have different and strong opinions. I have recommended that if the service qualifying for pension is the same for two pensioners then they must be considered as equals as far service element is concerned. On the contrary, some claim that certain minimum service must be rendered in the rank for claiming full pension in that rank and must also be equal between two pensioners of the rank. Consider the following points:

In the Armed Forces we suffer from two constraints, first lack of opportunity to serve till the age of superannuation permissible to all Government employees and the second the rigid pyramidal hierarchical organizational structure. Both these constraints inhibit a soldier (includes all ranks) from earning the maximum of the pay scale of the scale applicable leave alone a higher rank, higher at least by two more.

In the Armed Forces, the selection process is so rigid that not more than three chances are made available for consideration to promotion. In addition, due to specialization we are divided into various arms and services, each having its own pyramidal structure and with varying ratio for promotion. This is not the case in other cadres like IPS and IAS.

Therefore, I rationalize thus. A soldier gets handicapped while serving with delayed promotion in relation to his batch mate due to the constraints mentioned above. Let not the handicap be carried forward even after retirement. Hence treat the qualifying service for pension and not the service in a rank as the criterion for equality for pension purpose.

Definition of AVPD. Thus we arrive at the definition of AVPD as “Two pensioners, having retired at the same rank and with the same years of qualifying service, are entitled for same pension, irrespective of the date of retirement”. Let us debate on this and arrive at an acceptable and if need be a refined definition before venturing into preparation of Tables of Pension.

A Word of Caution Mind you! There was a time prior to the 3rd CPC when a soldier was entitled pension purely based on his rank at the time of retirement, provided that he has put in the minimum service to earn pension. The number of years of service he has served in that rank did not make any difference in his pension. The phrase ‘One Rank One Pension (OROP)’ came into existence then. But the third pay commission considered that the years of service in that rank also is pertinent in determining the pension and therefore, they recommended that the Armed Forces pensioners also must be brought under the Pension Rules applicable to the Civilian Government Employees. OROP was no more valid. IESL took up the matter with the SC in 1991 to accord OROP on the strength of SC Judgment in the case of DS Nakra Vs UoI and, was denied. I reproduce Para 2.12 of the CS’s Report and my comment.

Para 2.12 “… the pensioners as a group consists of persons with different number of years of service and different average pay during the relevant period. If all of them have to be treated alike by providing same pension while ignoring their respective variation in service and average pay, that may amount to treating unequal as equals. This may entail discrimination, offending the principles of equality before law as enshrined in our Constitution”. This is the stand, of course a right one, taken by the Ministry of Law.

Hence, OROP in its apparent meaning, that same rank same pension, does not hold good for us, the ESM. To claim rank based pension with some condition of minimum service in that rank with no regard to the service rendered beyond, shall also be viewed with the same logic given above.

Qualifying Years of Service (QYS) for Full Pension The Government has accepted the 6th CPCR reducing the QYS to 20 years from the earlier 33 years with grace period for truncated service and, has now, extended the liberalized QYS to those of post 01-01-2006 period who retired prior to 01-08-2009 also. But, the Government has not extended this liberalization to the ESM community as on 01-01-2006. If SC judgment is intended to be treated as law, the Government has erred. In Nakra case, the bone of contention is with respect to the notional pay for fixing pension. Should it be average of 33 months emoluments applicable for pre 01-01-1986 or of 10 months applicable for those of post 01-01-1986? The court held that any liberalization in the pension rule must be made applicable, disregarding the date of retirement. Hence, pre 01-01-1986 pensioners’ pension was revised on the basis of 10 months average. On similar logic, the liberalization of QYS as 20 years must stand extended to all pensioners. It is indeed sad that the Government holds different view, though illegal.

The Major Hurdle The issue of AVPD will, ultimately, boil down to the debate on emoluments eligible for pension. Should it be the emoluments drawn at the time of retirement or the emolument that is due for one retiring afterwards, in the same rank with the same QYS? The change in emoluments arises due to change in the time frame of the service, argues the Ministries of Law and Finance. This has been amply discussed duly supported by the wisdom shown by the five judges Constitutional Bench of the SC in the case of DS Nakra Vs UoI and by the SC judgment in the recent case of Maj Gen Vains Vs UOI. Please refer to my ‘Analysis of CS’s Report’: click me put on the net– to Veterans on CS Report 30 June 2009.

Arbitrary Notional Pay Here is a need to understand that Article 14 scoffs at arbitrary decision even in legislature. Any provision, even while liberalizing the pension, if considered arbitrarily, is in violation of Article 14. So says the judgment in the case of DS Nakra Vs UoI. Hence, it is necessary to ensure that the notional pay for fixation of pension for the ESM must not have any arbitrary element. We cannot pick out a figure ‘out of the hat’. The choice of notional pay must bear a rational relationship based on fairness. It if is unduly beneficial to some and harmful for some, then it is to be treated as unfair and hence in violation of Article 14. Whether it is the maximum of the pay band or pay scale of the fitment table, the minimum of the pay band or pay scale or the average of two figures, if it leads to irrational gain or loss to any, it is treated as arbitrary.

Conclusion. Let me now conclude with the suggestion that all of us well-meaning veterans must review all the projections including mine on AVPD forwarded to the RM in the form of a detailed analysis referred above in Para 9. The projection is placed below for easy reference.

“Let the pay of all pensioners of the Armed Forces be notionally fixed at the rate given to similar officers of the same rank and same length of service after the revision of pay scales with effect from 1.1.2006, and, thereafter, their pension benefits be computed on such basis as applicable to those retiring after the date of implementation with prospective effect from the same date of implementation.

Permit the pensioners to draw an annual increment at the rate applicable to the serving personnel, such that the disparity, if any, that arises due to such increment to the serving personnel, can be set right.

Let a suitable element of compensation, in addition, be allowed for the truncation of service before the age of superannuation permissible for any employee as a matter of right.”

Maj Gen RN Radhakrishnan (Retd)
Member IESL Governing Body

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