Sunday, December 25, 2011
Maj Gen RN Radhakrishnan's comments on the Hundred and Forty-Second Report By The Petition Committee, Rajya Sabha On Petition Praying for Grant of One Rank One Pension To The Armed Forces Personnel
The Crux of the Recommendation
The Petition Committee has made its recommendation on the subject petition in no uncertain terms and the recommendation is a milestone in the history of the Armed Forces. The recommendation has revived the esprit de Corps of the Armed Forces, a spirit that had been taking beating after beating in the past four decades. The recommendation is summed up in the last sentence of the report, reproduced below:
“for future, the pay, allowances, pension, family pension, etc. in respect of the defence personnel should be determined by a separate commission so that their peculiar terms and conditions of service, the nature of duties they are required to perform, etc., which are quite different from the civilian work force, are duly taken into account while taking decision on the same.” (para 11.6)
The Implications of the Recommendation
The above recommendation is for the future and it is fair for us to believe that this recommendation will come into force through the next pay commission’s recommendations. For the future, the pension for the various ranks, I believe, shall be through a simple formula that takes into account just two factors, the first the rank in which an Armed Force Personnel retires and the second the total length of service he has to his credit on the date of retirement. The date of retirement has no effect, whatsoever, on the revision of the pension, as and when the pay for serving incumbents is revised.
And also, the pension shall be distinctly and substantially higher in comparison with the civilian counterparts, in terms of equivalence by grade. It goes without saying that the concept of Non-functional Up-gradation has to be extended to the Armed Forces personnel without any delay.
The Fate of the Present Veterans
First, let us analyse the report for possible scope that is available to the bureaucrats to deny OROP in the spirit of our definition as it has been duly accepted in totality by the Petition Committee. The definition is:
“One Rank One Pension (OROP) implies that uniform pension be paid to the Armed Forces Personnel retiring in the same rank with the same length of service irrespective of their date of retirement and any future enhancement in the rates of pension to be automatically passed on to the past pensioners.” (para 3)
The words “and any future enhancement in the rates of pension to be automatically passed on to the past pensioners” in the above definition are superfluous and likely to be taken wrong advantage of, by the Bureaucrats. The definition less these words given above contains the necessary and sufficient conditions to ensure the Armed Forces Veterans’ demand. A simple formula is all that is required to be stipulated. The pension for most of the veterans is calculated at the ‘rate’ of 50% of the basic pay plus the Grade Pay plus the Military Service Pay (MSP) drawn at the time of retirement, with the provision of a minimum qualifying length of service.
Scope 1 - The Possible Misuse of the Word ‘rate’
Let us focus on the word ‘rates’ in the definition above. I am not sure if this word had been suggested as part of definition by any veteran. I have not suggested any such qualification in my representation to the Petition Committee. Let us have re-look at how the pension formulae is applied both for the post and the pre 2006 veterans.
a. For those retiring post 01-01-2006 It is exactly in terms of the above simple formula. Yet, the disparity arises between two veterans, the one retiring earlier and the other later. The junior serves longer and by virtue of addition of increments tends to get higher basic pay and thereby higher pension, notwithstanding the fact that both have retired in the same rank and served for the same length of service.
b. For those who retired pre 01-01-2006 in the ranks other than Commissioned Officers Same rule is applicable with the modification that his last basic pay drawn stands modified notionally for determining the pension. Pay in the revised pay scale corresponding to the maximum pay in the last pay scale is adopted as the notional basic pay. Yet the disparity does exist, but to a lesser extent.
c. For those who retired pre 01-01-2006 in the ranks of Commissioned Officers In the cases of Commissioned Officers, the notional pay has nothing to do with either of the pay scales. Instead, an arbitrary figure of the minimum of the applicable pay band is adopted as the notional pay. The disparity caused is enormous.
But in all these cases, the ‘rate’ of pension remains the same, 50%; the same for all with no discrimination. The logic according to the Officials is that pay revision is applicable only to those who are in service on or after the cut-off date. The pre 2006 pensioners must be grateful that the increased grade pay and the additional MSP have been taken into account for revising their pension. The question ‘Should not the revised pay also be considered?’ arises out of perhaps greediness on the part of veterans. Hence, application of the 50% as the rate of pension will be upheld and the notional pay shall be revised, arbitrarily, with no rationale, that has nexus to the cause sought to be served. The notional pay in all probability may be revised as the minimum of the pay in the revised pay scale for commissioned officers, now that CAT has given approval to such demand to the Civilian Pensioners and the Petition Committee has accepted full parity. What ingenuity will the bureaucrat adopt, when it comes to revising the notional pay of those who retired pre 01-01-2006 in the ranks other than Commissioned Officers, intrigues me.
Therefore we have to insist on removal of the superfluous words. In case the inclusion is insisted upon, on the grounds of clarity, then let the word be replaced by the word either ‘quantum’ or ‘amount’.
Scope 2 - Concept of Cut-off Date
“The Secretary (ESW), Ministry of Defence in her deposition stated”, the Petition committee has pointed out “the Law Ministry in its opinion and Supreme Court in its judgement have said that a cut-off date for any emolument given by the Government to its employee is valid under the Constitution and the Government is entitled to have a cut-off date for any emolument”. ( para 6.1)
Fortunately for us, the Petition Committee rejected this stand with a crisp comment in para 11.6 “So far as the legal aspect is concerned, the Committee is not convinced by the argument put forth”. However, we should not be complacent and, presume that the Government Orders when issued shall not take advantage of the Law Ministry’s opinion on this cut-off date to justify some gap in the pension. After all narrowing the gap seems to be the preoccupying option to the Government, at least for the time being. We must not lose sight of the Supreme Court’s ruling which is amply clear to imply that the cut-off date is significant only for implementation purpose and for the payment of arrears accruing out of the benefits recommended. In no way should it amount to denying the benefit to those, who retired prior to the cut-off date
Scope 3 - Concept of Financial Constraint
Before we tackle the harpings of the Secretary (ESW), MoD, let us make the implication of the recommendation of the Petition Committee on granting OROP quite clear. The procedure of fitment of pay in the revised pay scales is by clubbing two servicemen of the same rank differing by one increment in the pre-revised scale into one pay in the revised scale, thus denying as many as four to six increments that would have been due to the senior of the two clubbed together, at various stages of fitment in revised scale. Thus, the most senior in the pre-revised scale retiring in Jan 2006 stands to lose substantial amount of pay and consequently pension.
In addition, we find that the upper limit in the pay band is comparatively quite high permitting junior officer to draw increment every year till they retire. Thus a junior serviceman retiring much later say in 2015 shall be entitled to a much higher pay and consequently pension than his senior who retired earlier say in Jan 2006, in spite of both retiring in the same rank and with the same length of service. An illustration shall make it adequately clear. The following two cases pertain to officers who had retired/ will retire in the rank of COLONEL with 32 years of total service. You will observe that the pension of an equal in rank but junior by Commission increases by Rs 4975/= an increase of 16.34%.
Retiring in Jan 2006 Jul 2015
b. Pay in the pre-revised
scale as on 31-12-2005 18700/= 15100/=
c. Revised Pay in the
revised scale as on
01-01-2006 46050/= 40890/=
d. Pay in the revised
scale at retirement 46050/= 56000/=
e. Grade Pay 8700/= 8700/=
f. MSP 6000/= 6000/=
g. Pension @ 50% of
(d+e+f) above 30375/= 35350/=
The question that arises is which of these two basic pays has been taken into account as notional pay for a COLONEL who had retired in or before Dec 2005, while projecting the financial implication of granting OROP as 3,000 crores by the Secretary (ESW). Thus we find that in the absence of details of revising the pension for the already retired Armed Forces personnel, we are not sure that the Financial allotment proposed by the Secretary (Expenditure) amounting to 1,300 Crores is likely to fulfil the dream of Parity in Pension.
Here, we must understand that the figure of 1,300 crores has its basis on the 3,000 crores initially proposed before the enhancement of pension for all Armed Forces Personnel other than the Commissioned Officers costing a package of 2,300 crores in Apr 2010. Obviously now, another enhancement is only being contemplated, which may amount to 1,065 crores for all Armed Forces Personnel other than the Commissioned Officers and 235 crores for the veterans of pre-2006 vintage.
Having got the picture clear, let us see what possible course of action the Government may adopt. I find that the Petition Committee has pointed out in its findings that “The Committee takes note of the fact that a sum of Rs.1,300 crores is the total financial liability for the year 2011-12 in case OROP is implemented fully for all the defence personnel in the country across the board.” (para 11). The Committee has also expressed its satisfaction that this allotment shall suffice to meet the need of parity. However the Committee has not made any comments if the need to meet the parity requirement should not be bound by any financial constraint. The Committee has also not been specific to state that it is the responsibility and within the capability of the Government to raise the required funds to ensure parity of pension. Thus, certain amount of leeway is available to the Government to move only towards some enhancement of pension, with the whole aim of narrowing the gap. But OROP may not be met with, on the grounds of financial constraints. We have to ward against this possibility.
Scope 4 – The Concept of Increments to Veterans
The Petition Committee refers to the statement by the representatives of the Indian Army that “there is administrative difficulty on the part of the Ministry that pensioners cannot be given increment every year”. (Para 6.4). It is unfortunate that the Service HQ has chosen to represent the Ministry, perhaps due to the misplaced sense of loyalty to the Country, the first of three oaths we all take, while passing out from Academy. Let us see how this statement can be taken advantage of by the Government.
The Genesis In my analysis, titled “Analysis of Cabinet Secretary’s Report dated 30 Jun 2009”, forwarded to the RM on 3rd Sep 2009, I had highlighted the issue of notional pay for the veterans and I had raised the issue of annual increment as well. This analysis had also been circulated in the Military Veterans group. Based on this principle, I had made my recommendation to the RM as given below:
“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”
The Purpose The spirit of full Parity warrants that the notional pay for the veterans must be the same as the one equal in rank and length of service, retiring subsequently. It can be seen that maximum pay is drawn by those who retire in Jul 2015, the cut-off year for the next pay commission. In order to facilitate the Government in easing out the financial burden and not to bring about too many changes in the pension formula, it was suggested that the notional pay can be that of the one retiring in Jan 2006, and full parity can be ensured by way of granting same rate of annual increment.
Army Proposal However it is learnt that Army HQ has been suggesting to the Committee of Secretaries in Jun 2009 to adopt “the notional maximum in the post 1-1-2006 pay scale”. (Refer to Para 5.1 Option 3 of the Cabinet Secretary’s Report 30th Jun 2009). This proposal was in support of granting modified parity to pre 2006 pensioners. Hence the Army HQ was not favouring the concept of annual increment to the veterans. The issue of disparity in the pension of equals retiring in the decade 2006-2015 was, unfortunately, ignored.
Thus, we see that there is every possibility of the Government taking advantage of financial implications if full parity is to be granted and the Army HQ suggestions on notional pay and annual increment. The result is obviously to grant merely some enhancement of the pension of the veterans, based on the recommendations of the Petition Committee, narrowing the gap between the past and future veterans.
The best tool to mislead one without getting blamed is use of half truths. There are a few half truths presented to the Petition Committee also, but fortunately for us, in vain.
a. The Secretary (ESW) makes a statement that “a cut-off date for any emolument given by the Government to its employee is valid under the Constitution”. She has not spoken the other half of the truth that such cut off date is for the purpose of administrative convenience of implementation, wherein certain arrears are to be worked out.
b. She also says that “the Ministry of Law, based on these two basic tenets and the judgements of the Supreme Court gave an opinion against full OROP”. She conveniently omits to mention that the concept of OROP, the Law Ministry had, was one with no consideration to different length of service. I give an extract of para 2.12 from the CS report of 30th Jun2009. It is noteworthy to remember that such a concept was in vogue prior to 1973.
“The Ministry of Law opined that ‘..... The pensioners as a group consist 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 variations in length of service and average pay that may amount to treating unequal as equals’ “.
Another extract from the judgment by Justice Verma JS on date 29/01/1991 on the petition by Indian Ex-Services League Vs. Union Of India,
“...The question for decision is whether the petitioner's claim flows from that decision and there is nothing in Nakara to support such claim. There is no scope for enlarging the ambit of that decision to cover all claims by retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date retirement, even though the reckonable emoluments for the purpose of computation of their pension be different. ... The real point for decision, therefore, is whether the reliefs claimed in these writ petitions flow as a necessary corollary to the decision in Nakara. This being the sole basis for the reliefs claimed in these writ petitions, the petitioners can succeed only if this assumption by them is correct”.
It is apparent that the issue of OROP under consideration by both the Ministry of Law and the Justice JS Verma was with a different definition and in different context. IESL had had taken the matter of OROP with the literal definition of ‘same rank same pension with no regard to the difference in the length of service and as a consequence the difference the average emoluments’ at the time retirement. Such an OROP was prevalent till 1973 as a legacy of British sentiment towards the soldiers. There is certainly an element of injustice in the pension when you ignore the difference in the emoluments at the time of retirement. IESL also faulted by pleading that OROP had been upheld by the five judge constitution bench of the Supreme Court in the case DS Nakara Vs UOI. Justice JS Verma declared rightly that ‘there is nothing in Nakara to support such claim,’ and hence rightly rejected the claim of OROP with the literal definition of IESL. His rejection of IESL petition, we must clarify, has no bearing on the merit of the concept of OROP either in the literal meaning or with the present definition. That was beyond the prayer by IESL.
It is true that Ministry of Law is did not support the OROP concept; but it is because the OROP concept with no reference to the difference in the length of service is discriminatory. The present concept under consideration under the acronym ‘OROP’ takes into consideration ‘same rank with same length of service’ so that the average emoluments are the same at the time of retirement. Hence we have to infer that the Law Ministry’s objection is outdated and quoted out of context.
It was strange that the Secretary chose to bring these two points to the notice of the Committee of Secretaries headed by the Cabinet Secretary in Jun 2009
i. without due application of mind
ii. and without referring the matter to the Ministry of Law since it was very much warranted as the context and the definition of OROP has changed.
The incongruity of these two arguments was highlighted in the ‘Analysis of Cabinet Secretary’s Report dated 30 Jun 2009’ and a copy was made available to the Department of ESW. And, therefore, it is highly painful to note that she persisted with the same arguments with the Petition Committee, as well.
c. The Secretary, Department of Pensions and Pensioners welfare, seems to believe that “almost a complete parity between pre-2006 and post-2006 pensioners has been brought”. (Para 8) If there is a difference, that too substantial, in the pensions of two veterans retiring in the same rank with same length of service, can it be correct to draw such a conclusion? Parity can only be total not almost or partial or modified. Such adjective tend only to misguide.
d. The same Secretary made another statement that “removal of linkage of full pension with 33 years of qualifying service with effect from 1.1.2006 instead of 1.9.2008 in the case of Commissioned Officers” is one of the many other measures that “already narrowed down the differences”. Of course he did not feel it necessary to highlight that this measure is applicable to those who retired from Jan 2006 to Aug 2008 and not those who retired prior to 2006. Those veterans, who retired prior to 2006, get only pro-rata pension, if their qualifying years of service is less than 33. And we, the pre-2006 veterans, are not agitated on the pecuniary aspect of the pension to be impressed with narrowing the difference. What we are projecting is the lack of rationale applied in the analysis of the pension concept of the Armed Forces, due to which the unjustified differences arose over the decades.
Fortunately for us the present Petition Committee recognised the ‘apathy’ on the part of the bureaucracy and therefore upheld our claim in totality and in explicit terms.