NO FULL PENSION.
DISCRIMINATION IN FIXATION OF PENSION OF PRE-2006/Sep 2008 PENSIONERS.
1 Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment to all. It is attracted where equals are treated differently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
2 It only means that all persons similarly circumstanced shall be treated alike both in privileges and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards to the same subject matter.
3 Article 14 forbids class division. The classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. The DP&T P&PW have divided the homogeneous class of present, past and future pensioners while issuing their memorandums for the purpose of fixation/revision of their pension consequent upon the 6th CPC report.
4 The main and common grievance applicable to the existing pensioners is of the denial to the pre-2006 pensioners and some of the later period of the arbitrary introduction of words of limitation. There is nothing immutable and incontrovertible about the choosing of an event as an eligibility criterion subsequent to a specified date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having an undesirable effect of dividing a homogeneous class and of introducing discrimination, the same can be easily severed and set aside by any court of the country. It is therefore just and proper that the words introducing the arbitrary fortuitous circumstances which are vulnerable as denying equality be severed and struck down.
5 The point to note is ‘the benefit of revised scales of pay in the pay bands and grade pay is not limited to those who enter service subsequent to the date fixed for introducing revised scales but is extended to all those in service prior to that date’. Even in the case of the new retirees; the benefit of gratuity under the Payment of Gratuity Act, 1972, past service was taken into consideration. It is therefore emphasized that the scheme of liberalisation is not for new retirees benefit. Pension has correlation to average emoluments and the length of qualifying service and the liberalisation is not meant merely for the future retirees after a specific date.
6 It is well known that the pension is a right and not a bounty or gratuitous benefit. The payment of pension does not depend upon the discretion of the Government alone but it is governed as per the constitution of the nation and by the rules framed by the parliament thus a government servant coming within the preview of those rules is entitled to claim the pension.
7 The demand of “One Rank One Pension (OROP)” has been raised time and again by the defense personnel, though it may have to imply to all the central Govt. pensioners, may they have retired from defence forces or from any other central Govt. departments and/may they have already retired or future retirees. Unfortunately and regrettably, all the preceding CENTAL PAY COMMISSIONS (CPC) and the Governments have been shying away this legitimate demand. It is mentioned with anguish, agony, pain, grief and distress that it has been happening despite the fact that certain main political parties of the country like Congress Party and Bhartia Janta Party, included this demand in their election manifestoes. This subject was also included in the President’s address in the Parliament in 2004 thereby making OROP the declared policy of Government (not of any particular political party).
8 Principally, the concept of OROP implies that, who have retired or will be retiring from the same rank/post with the same length of service, should always get same amount of pension, irrespective to their dates of retirements and total length of service provided to the nation. 6th pay commission has discussed this issue vide Para 5.1.46 & 5.1.47 (Pages 338 & 339) of its report. 6CPC and has held that “The Fifth CPC extended full parity between pre & post 1/1/1986 pensioners and a modified the parity between pre & post 1/1/1996 pensioners to bring them at par. In modified parity, it was provided that pension could, in no case, be less than 50% of the minimum of the corresponding Fifth CPC revised pay scale from which the pensioner had retired.” This principle was fully and strictly followed in letter and spirit by the Govt. and THE MINISTRY OF PERSONNEL, PG AND PENSIONS (DEPTT OF PENSION AND PENSIONER’S WELFARE) RESOLUTION NO. 38/37/08-P&PW (A).
9 Nonetheless, consequent on 6th CPC report and the subject matter OROP is being taken up separately by the defense personnel. Here in, the subject matter is the case of application of pro rata of 33 years service, which was earlier applicable to all the central govt. employees, serving as well as retired ones; including defence forces personnel. Now, the 6th CPC have taken off this clause, but, the DP&T, P-PW have still incorporated for the pre 2006 pensioners and few others from a selected specific date in their OMs on their own without assigning any authority or reason.
10 It is emphatically and vigorously point out that in accordance with the Article 14 and the principle of modified parity, the 6th CPC has recommended as under:-
11 The 6th CPC report with beneficial amendments will be applicable w.e.f. 01 Jan 2006.
12 “The full pension will be granted 50% of last pay drawn of the pay band of the post plus grade pay after rendering 20 years of service. The earlier clause for grant of full pension of 33 years is categorically and unconditionally removed.
13 Further, in the case of existing pensioners, it is clearly mentioned in the 6th CPC Report that the revised pension will be calculated after multiplying the previous pension by a factor 2.26, but it will in no case, shall be lower than fifty percent of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale from which the pensioner had retired”.
14 In the Ministry of Personnel, PG and Pensions (Deptt of Pension and Pensioner’s welfare) Resolution No. 38/37/08-P&PW (A) dated 29 08 08, it is clearly stated under item No. 12 that the Govt. had accepted the contents of para 5.1.47 of 6th CPC Report with the modifications; in that fixation of pension shall be based on a multification factor of 1. 86 i.e. basic pension + Dearness Pension (wherever applicable) + dearness relief of 24 % as on 01 01 06 instead of 1. 74 some other similar points which are beneficial to the employees.
15 The 6th CPC in para 5 1 .47 of its Report has said that “in order to maintain the existing modified parity between present and future retirees, it will be necessary to allow the same fitment benefit as is being recommended for the existing Government employees.” The 6th CPC concludes Para 5. 1. 47 by recommending that “The fixation as per this table will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the prerevised pay scale from which the pensioner had retired. To this extent, a change would need to be allowed from the fitment shown in the fitment table. The Govt. accepted this without any objection.
16 Ministry of Finance, Deptt of Exp. (Implementation Cell), vide their O M No. 1/1/2008-IC dated 30 08 08 issued detailed instruction for implementation of 6th CPC Govt. accepted report, enclosing with it the Fitment Tables S – 1 to S – 34; (later in some cases favourable amended) allotting Revised Pay Band + Grade Pay for each Pre-revised Pay Scale. In column 1 of each table the minimum pre-revised basic pay is indicated and in second column Minimum Pay in the Pay Band, in third column Grade Pay and in last column Revised Basic Pay is indicated.
17 Ministry of Personnel, PG & P, Deptt of Pension and Pensioner’s welfare, vide para 4.2 of Memorandum F No.38/37/08-P&PW (A) dated 2nd September 2008, issued instructions for the implementation of the Govt. ‘s decision for fixation of revised pension of pre-2006 pensioners/family pensioners. They have again repeated in the para “the Revised Pension in no case shall be lower than 50 % of the minimum of the pay in pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired.” In view of the point explained above, the Finance Ministry’s has made it amply clearly, visibly and undoubtedly emphasized that the full pension will be 50% of the last pay drawn plus grade pay. Thus, in all the case of present, future including all the existing pensioners of pre 2006 period; it will be fixed 50% of the minimum pay of the pay band of the post plus grade pay of the post. As such there is no deference in either case. Here, the pension fixation authority has to ascertain the old pay scale of a pensioner to fix/revise his pension in the corresponding revised pay band and grade pay. Based on it, his pension is to be re-fixed accordingly.
18 However, it was further added in the above office memorandum No: 38/37/08-P&PW(A) dated 2.9.2008 Government Servants who retired during 1.1.2006 to 1.9.08 after completion of 33 years of qualifying service will be eligible for full pension and the pension of those Government Servants who retired before 2.9.08 with qualifying service of less than 33 years will continue to be proportionate to the full pension based on their actual qualifying service.
19 It may be noted that hereafter the application of Pro rata of 33 years has nothing to do in any case for fixation of pension of the existing pensioners, hence not required to be applied in any one’s case. In all the cases, henceforth, the pension is to be fixed based on 2o years of service rendered. However, if pension is granted in the cases where service rendered is less than 20 years, in such cases, the pro rata of 20 years is to be applied since the condition of grant of full pension is 20 years; especially, as the clause of 33 years is especially and principally removed by the 6th CPC.
20 We all know and elaborated above in detail that as per 6CPC recommendations for pension benefits which were implemented by the Government, CG employees who have completed the qualifying service of 20 years will be eligible for full pension (viz., 50 % of last pay drawn). However, the Government gave effect to this order only from 2.9.2008 and those who retired before 2.9.2008, completion of 33 years of service is mandatory for getting full pension.
21 Save for, in spite of such a clear position, the DP&T, overlooking and ignoring the contents of 6th CPC and resolution of the Govt, it sad to point out that the DP&T have still incorporated the clause of pro rata of 33 years for fixation of pension in the cases of the existing pre-2006 pensioners which is utterly, and absolutely discriminatory, biased, prejudiced, bigoted and inequitable. They seem to have done it without obtaining clarification from the 6th CPC or Cabinet or Central Govt. Even if they have obtained approval of the Govt., they could have done it by misleading, in disingenuous manners, deceptively and deceivingly. In view of this fact it seems the DP&T P&PW have done it with an ulterior, inexplicable, puzzling, baffling and mysterious motive, they will not come within the preview of this order.
22 It is pertinent to highlight the fact that the Constitution Bench of Honorable Supreme Court of India gave decision in case of D S Nakra and others Verses Union of India (1983) 1 SCC 305 . One of the questions posed in the case was whether a class of Pensioners could be divided for the purpose of entitlement and payment of pension into those who retired by certain date and those who retired thereafter. The Constitution Bench held that such division being both arbitrary and unprincipled; the classification did not stand the test of Article 14. The argument that the cut off date had to be fixed in view of the limited financial resources available to cover up additional expenses to be incurred on account of revision of pay scale was not accepted by the Constitution Bench of the honorable Supreme Court. This exactly applies to the case of pre-2006 and post 2006 Pensioners. In case it is still done by the DP&T, P&PW, it will be a case of violation of Article 14 of Constitution of India as well as against the ruling of Constitution Bench of honorable Supreme Court of India cited above.
23 Another similar case: The Honorable Supreme Court of India in Civil Appeal No. 5566 of 2006 vide Special Leave Petition (Civil) No. 12357 of 2006, Union of India and others Appellants Vs. SPS Vains (Retd.) and other Respondents; gave its another historical Judgment on 09 09 08, involving the similar matter of equality wherein the honorable Supreme Court fully agreed with the decision given by Constitution Bench of Honorable Supreme Court of India in D S Nakra case.
24 It is therefore once again emphasized that the division of Pensioners in two groups namely pre – 2006/Sep 2009 pensioners and post – 01 Sep 2009 pensioners, with a cut off date of 01 09 06, is violative of Article 14 of Constitution of India and against the above cited ruling of the honorable Supreme Court of India.
25 But in spite of all what has been brought out above, the MINISTRY OF PERSONNEL, PG AND PENSIONS (DEPTT OF PENSION AND PENSIONER’S WELFARE) RESOLUTION NO. 38/37/08-P&PW (A), Pension have issued orders contrary to Art. 14 and Apex court judgement. This has defeated the very concept of 6th CPC and Govt resolution, according to which, the minimum pension is now to be reduced applying pro-rata of 33 years in the cases where the pensioner had put in less than 33 years service. It is thus utterly, absolutely, out-rightly, and wholly overlooking and neglecting the contents of CPC report, and Govt., resolution, according to which pension is to be fixed after 20 years 50% of last pay drawn for the future retirees after Jan 2006 and 50% of minimum of the pay band plus grade pay. This seems to have been done by them considering as if there themselves are the Govt. of India and there is no one above them. Also, they seem to have done it intentionally, considering that they will never be affected of such a clause, 20 years clause of the 6th CPC will remain operative/applicable for them. If 33 years clause was to be made applicable by them, it should have been made applicable for future retirees as well even after the ensuing/subsequent pay commission reports. It is considered sadistic decision of the DP&T, P-PW by the entire nation/public, whosoever reads this clause.
26 It is once again re-iterated that the condition of 33 years service is neither mentioned anywhere in the 6CPC neither report nor it is in Government Resolution. No policy on common matters can be framed without any reason/logic. It is rather not clear and known as to on what basis and with whose consent this condition has been incorporated while changing the original orders. Obviously, the concept of 6th CPC and Govt. resolution has been completely ignored by the implementing authorities.
27 In this regard it is worth to discuss the rulings of the Hon’ble Supreme Court, which enjoy the status of LAW OF THE LAND. 6th Pay Commission has referred to the famous judgment in the case of D.S. Nakra Vs Union of India (AIR 1983, SC 130) vide Para 5.1.3 of its report. This Judgment pronounced by a Constitution Bench of Supreme Court is available at http://judis.nic.in/supremecourt/qrydisp.aspx for the benefit of all who want to read it. The case dates back to 70s when the Government had introduced Liberalized Pension Scheme. Earlier pension was calculated based on the average salary of last 36 months. Under Liberalized Pension Scheme, the provisions were changed to calculate the pension based on the average salary of last 10 months. The case was filed by one retired civil officer (subject to Central Civil Pension Rules 1972) and one retired defense officer (subject to Army Pension Regulations) and the third petitioner was a Registered Society. Only the following extracts of this judgment will clarify the LAW OF THE LAND:
28 “Proceeding further, this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that can't be done when they are in service, can that be done during their retirement? Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later.”
29 “All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh” Another recent Judgment pronounced by Hon’ble Supreme Court on 9th September 2008 is available at http://judis.nic.in/supremecourt/qrydisp.aspx for the information authorities and others. This case was originally filed by some Retired Major Generals of the Army with regard to fixation of their pension after implementation of 5th Pay Commission. Government of India filed an appeal in the Supreme Court against the judgment of Punjab High Court, (Civil Appeal No. 5566 of 2008, Special Leave Petition (Civil) No. 12357 of 2006 Union of India vs. SPS Vains (Retd.) and others). In this case Hon’ble Supreme Court has directed as under:
30 “We, accordingly, dismiss the appeal and modify the order of the High Court by 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 same rank after the revision of pay scales with effect from 1.1.1996, and, thereafter, to compute their pensionary benefits on such basis”.
31 It is abundantly clear from the above extracts that the Hon’ble Supreme Court has already accepted the principle of equality and this enjoys the status of the LAW OF THE LAND. It may be noted from the foregoing that the implementing officials of 6th CPC have not followed the contents of 6th CPC and Govt. resolution while issuing various clarifications.
32 Deprival of due and that too justified due of Revised Pension has created gloom and obscurity as well as a great resentment, antipathy and umbrage amongst all the pre-2006 retirees, since they are helpless due to their old age and financial constraints. I may not hesitate to accept that it may not be possible for the effected pensioners, especially due to financial constraints, all of them spread in far flung areas in the country and in their advanced age to approach Courts of Law to seek justice. Please do have mercy on them. They feel most cheated, disgusted and frustrated, as though the 6th CPC had done justice with the pre-2006 retirees, which was accepted by the Govt. with the approved of the Union Cabinet with favorable amendments, but, subsequent modifications and amendments issued under Ministry of Personnel, PG & Pension, and Deptt. Of Pension and Pensioner’s welfare vide various OMs., pertaining to fixation of all the pre-2006 Pensioners has shattered their hope and aspirations beyond imagination.
33 There being a great injustice, prejudice and discrimination to the pensioners; an earnest request is made to all the politicians, MPs, Ministers, Govt. servants, entire public of the nation, luminaries, news papers, media/electronic media and readers, the pension associations of all the departments of the country as well as all the pre-2006 pensioners and their well-wishers to make public this issue so that our Political Leaders are made aware of it, who can take some urgent remedial action in the matter.
34 In view of the situation explained above, all the concerned authorities are requested to please do look into this matter without any prejudice, chauvinism, narrow-mindedness, discrimination and insularity to initiate suitable action and amendment to remove the unwarranted, gratuitous, uncalled-for, unjustifiable and unsubstantiated pro rata clause of 33 years which has been incorporated intentionally or un-intestinally. Most urgent or as early as possible of the concerned authorities is solicited please.
35 I whole heartedly and sincerely convey my personal and special thanks to all the politicians, MPs, Ministers, Govt. servants, entire public of the nation, luminaries, news papers, media/electronic media and readers, the pension associations of all the departments of the country as well as all the pre-2006 pensioners and their families to co-operate and assist with the old pensioners and convince/ask the concerned authorities to do the needful in the matter most urgently please.
Col. (retd). K L Jaspal.
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