About 25 lakh retired
military personnel have been demanding “One Rank, One Pension” (OROP) for a
long period. It has not been implemented by the Central Government so far, even
though the Government has already accepted it in principle and there are judgments
of the Supreme Court laying down that discrimination in the matter of grant of
pension on the basis of the date of retirement is not permissible as it is
violative of the fundamental right to equality guaranteed under Article 14 of
the Constitution. In fact, recently, I have also won a case against
discrimination in the grant of pension to similarly situated retired IPS
officers who retired prior to 2006 vis-a-vis those who retired on or after
01.01.2006, which means that this principle would be applicable to civil
services also; but, more on this slightly later. Let me first explain what “One
Rank, One Pension” is, why it is the mandate of law, and also why it must be
implemented by the Government forthwith.
“One Rank, One
Pension” rule basically implies that retired soldiers of the same rank with the
same length of service will be entitled to get the same amount of pension,
irrespective of the date or year of their retirement. Simply put, it means if
someone has retired from the Army from a particular rank having rendered a
particular number of years’ service, then he will get the same pension that is
paid to another person who subsequently retires from the same rank with the
same number of years’ service. For example, if a sepoy (i.e., jawan or sipahi)
retired in 1990 after rendering service for 15 years, he must get the same
pension as is given to a sepoy retiring in 2014 after rendering the same
service for 15 years.
In fact, it is really
surprising and shocking as to how different retired persons, who retired from
the same position or rank after having rendered the same number of years’
service but retiring at different times, are paid different and unequal pension
amounts. Why this inequality, in spite of the right to equality guaranteed
under the Constitution?
Such inequality in
pension has been the result of the recommendations of various pay commissions
which gave higher increase in salaries to the serving personnel (who will then
get higher pension after their retirement), while the pension of the existing
retired pensioners was not increased appropriately in the same ratio. Thus,
over a period of time, there is a vast difference between the pensions of
retired personnel retiring at different times even though they might have
retired from the same position and with the same number of years’ service.
For example, the
media reports suggest that a sepoy who retired before 1996 gets 82% less
pension than a sepoy who retired after 01.01.2006, and a major who retired
before 1996 gets 53% less pension than a major who retired after 01.01.2006.
This is ridiculous and a clear violation of the right to equality guaranteed
under Article 14 of the Constitution.
It is pertinent to
point out that in the case of Deokinandan Prasad v. State of Bihar,
(1971) 2 SCC 330 (at page 344), a Constitution bench of the
Supreme Court has held that “pension is not a bounty payable on the sweet will
and pleasure of the Government and that, on the other hand, the right to
pension is a valuable right vesting in a government servant”.
Likewise, in the case
of D.S. Nakara v. Union of India, (1983) 1 SCC 305 (at page
323) : AIR 1983 SC 130, it was held by another Constitution Bench of the
Supreme Court that the antequated notion of pension being a bounty, a
gratuitous payment depending upon the sweet will or grace of the employer not
claimable as a right and, therefore, no right to pension can be enforced
through Court has been swept under the carpet by the decision of the
Constitution Bench in the aforesaid Deokinandan Prasad case
wherein it was authoritatively ruled that pension is a right and the payment of
it does not depend upon the discretion of the Government but is governed by the
rules and a government servant coming within those rules is entitled to claim
pension.
It was further held
in the above case of D.S. Nakara that the pension
payable to a government employee is earned by rendering long and efficient
service and therefore can be said to be a deferred portion of the compensation
or for service rendered.
In the above case
of D.S. Nakara, it has also been held by the Constitution
Bench of the Supreme Court that all pensioners have equal right to receive the
benefits of a liberalised pension scheme. It was also held that the pensioners
form a class as a whole and cannot be micro-classified by an arbitrary,
unprincipled and unreasonable eligibility criterion for the purpose of grant of
revised pension. Moreover, the criterion of enforcement of the revised pension
scheme entitling benefits of the revision to those retiring after a specific
date while depriving the benefits to those retiring prior to that date was held
to be violative of Article 14 of the Constitution of India.
The directions issued
by the Supreme Court in the recent case of Union of India v. SPS
Vains, (2008) 9 SCC 125, are also quite relevant in this regard. In
this case, the issue was “…whether there could be a 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”. The dispute
arose due to disparity in determination of pension of pre 01.01.1996 and post
01.01.1996 retirees who retired from defence services as Major General or
equivalent posts. The pension of the pre 01.01.1996 retiree Major Generals was
fixed lower than the post 01.01.1996 retiree Major Generals due to revision in
pay scales. The Supreme Court held as under:
“The object sought to
be achieved was not to create a class within a class, but to ensure that the
benefits of pension were made available to all persons of the same class
equally. To hold otherwise would cause violence to the provisions of Article 14
of the Constitution.”
In the above SPS
Vains case, the Supreme Court directed that the pay of all
pensioners (who retired prior to 01.01.1996) in the rank of Major General be
notionally fixed at the rate given to similar officers of the same rank (who
retired after 01.01.1996) after revision of pay scales with effect from
01.01.2006, and, thereafter, to compute 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 three months from date with interest at 10% p.a.
Thus, the decision of
Supreme Court in the aforesaid case of SPS Vains, clearly
lays down that there cannot be a 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 is pertinent to
mention that recently, on 16 February 2015, when the contempt matter relating
to SPS Vains case (along with a Civil Appeal with the
title of “Union of India through Defence Secretary & Others vs. SPS
Vains & Ors.”) was listed before a 2-judge bench of the Supreme
Court, comprising of Justice T.S. Thakur and Justice Adarsh Kumar Goel, the
Supreme Court passed the following order:
“Ms. Pinky Anand,
learned Additional Solicitor General, prays for and is granted three months’
time finally to work out the modalities for implementation of the one rank-one
pension principle on which the Tribunal has passed the impugned judgment. The
principle is also, it appears, covered by the decision of this Court in Union
of India & Anr. v. SPS Vains (Retd.) & Ors. – (2008) 9 SCC 125.
Post after three months
finally.
We make it clear that
no further time will be granted for the purpose of implementation of the
impugned judgment.”
Thus, the Supreme
Court has granted a period of 3 months (as on 16th February 2015), as a
final chance, to implement the one rank one pension scheme. As per Hindustan Times, the above bench of
the Supreme Court also warned the Government of contempt if it failed to abide
by its order within three months, and further, Justice Thakur is reported to
have told the ASG representing the Government that this (i.e., one rank one
pension) was part of the BJP manifesto for the Lok Sabha elections and it must
keep its word.
The Supreme Court
website shows that the above Contempt Petition in the SPS Vains case
will now be listed on 1st July 2015, i.e., immediately after the summer
vacation in the Supreme Court. Though the above 3 months’ period expired on
15th May 2015, due to summer vacation in the Supreme Court, the Government
can enjoy a further grace period of 6 weeks during the summer vacation. It is
hoped that by that time the Government will comply with the direction of
implementing the one rank one pension scheme.
What about the pensioners from the Civil Services?
As mentioned in the
beginning of this article, I may point out that I have won in a recent case [Forum
of Retired IPS Officers (FORIPSO) vs. Union of India] which has been
decided on 15 January 2015 by the Principal Bench of the Central Administrative
Tribunal (CAT) at New Delhi on a principle similar to the principle of one rank
one pension rule. In this case, the issue was the discrimination in the matter
of pension given to the retired IPS officers of Director General (DG) rank who
had retired prior to 2006 vis-à-vis retired officers of the same rank who
retired on or after 01.01.2006. Relying upon the decisions in the
aforesaid D.S. Nakara and SPS Vains cases
[and also on the decision of CAT in the case of All India S-30
Pensioners’ Association v. Union of India decided on 20.11.2014],
the CAT has directed the Government of India to consider the revised pay of the
applicants (i.e., pre-2006 retired IPS officers DG rank) corresponding to the
pay at which the concerned pensioners had in fact retired instead of considering
the minimum of the said pay scales thereby determining pension/family pension
to pre-2006 retirees. This direction ensures that the increments earned by a
pre-2006 retired officer will be fixed at the appropriate stage of the new pay
scale after 2006 revision, taking into account the increments earned by such
pre-2006 retiree in the old pay scale, and then computing his revised pension
accordingly. This direction will thus ensure that a pre-2006 officer will get
the same pension as that paid to a post-2006 retiree who retired from the same
stage of the pay scale. This is more or less the same as the one rank one
pension rule.
In fact, in the
aforesaid decision in the case of All India S-30 Pensioners’
Association v. Union of India, the CAT had also ruled that [and this
decision is also applicable in the case ofForum of Retired IPS Officers
(FORIPSO) vs. Union of India that I had argued] the ratio laid
down in the judgment of the Supreme Court in SPS Vains case
that there can be no 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, will hold good in the case of civilian officers
also. Accordingly, the CAT had held that the OM dated 18.11.2009 of the
Government of India (which said that the ruling of SPS Vains case
was not applicable to the civil pensioners) was illegal, being contrary to the
law laid down by the Supreme Court in SPS Vains and D.S.
Nakara cases and the same was, therefore, quashed and set aside.
Therefore, it is
clear that the rule of one rank one pension would generally be applicable to
civil pensioners also. This is for the simple reason that any contrary rule
would violate the fundamental right to equality guaranteed to the pensioners
(whether pensioners from the defence services or the civil services) under
Article 14 of the Constitution, i.e., the right to receive the same pension
when they retire from the same position with the same length of service,
irrespective of the date of retirement. This is what is the essence of “One
Rank, One Pension”.
Why should a person
who retired in 1970 or 1990 receive less pension than a person retiring in say
2015, when both of them have retired from the same position and with the same
length of service? After all, when they go the market and purchase vegetables
or grocery items or clothes for themselves or for their families, they have to
pay the same amount of money. In fact, a person who retired 20 years back may
have to spend more money on health (due to more advanced age) than a person who
retired later.
Therefore, the right
to equality requires that the Government must forthwith implement the principle
of one rank one pension to give justice to tens of lakhs of pensioners from the
defence services as well as from the civil services.
Dr Ashok Dhamija
Dr. Ashok Dhamija is a New Delhi based Supreme
Court Advocate, author of law books and an ex-IPS officer having also worked in
CBI. Read more by clicking here.
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