JUSTICE FOR SOLDIERS - OROP AND ONE MAN COMMISSION

BEFORE JUSTICE L NARASIMHA REDDY COMMITTEE ON OROP

(At the hearing at Kochi on 24/8/2016)

Introduction.

With the Supreme Court of India deciding that pension is no charity but delayed wages/salary, OROP is a sine qua non when it comes to legal justice for pensioners and should apply to all pensioners, as has been rightly decided by the 7^th Central Pay Commission. The definition of One Rank, One Pension should not be confusing either. It is as simple as anybody retiring at a particular level of the hierarchy and with the same length of service should get the same pension. It is already implemented in the case of MPs, MLAs, bureaucrats at the top of the hierarchy and judges of the high courts and apex court. For the MPs and MLAs the format used is a minimum pension upto (please note it is ‘upto’ and not ‘for’ because the eligibility starts immediately after taking oath) a minimum prescribed service and beyond 5 years a fixed amount is given for every additional year of service. This is simple and can be applied only in the case of MPs and MLAs who are not tied up with increments based on length of service during their service. In the case of bureaucrats, particularly the one exam wonders, file pushers who do not even know the right direction in which to push the files, the clerks of the IAS cadre, they have manipulated it by ensuring that at the top of the hierarchy, which every direct entry is likely to reach, they have fixed basic pay and hence anybody retiring from that grade will get the same basic pension irrespective of the year in which he retired! And worse, they even have a Non Functional Financial Upgradation wherein anybody from a batch getting a promotion entitles everybody in that batch to get the same pay as the promoted guy irrespective of the level at which he is currently employed! And the self aggrandizers they are, they have tried to deny it even to their counterparts in the IPS by providing for a two year delay for them! Come to think of it, the job of an Sub Inspector of Police is any day more challenging than that of a clerk, Cabinet Secretary included, isn’t it?


The Genesis of OROP for soldiers.
16 December 1971 is any day the golden letter day in the history of post independence India. The 13 day war with Pakistan, resulting in the liberation of Bangaldesh and capture of 93000 pakistani soldiers is without parallel in the history of warfare. Of course the country paid a heavy price but then it happened- the greatest treachery of all times! Soldiers who were getting 70 pc of their last drawn pay as pension, as a concession due to their early retirement, had their pension cut to 50 pc in the name of economy measures. But, quite abrasively, civilians who were in receipt of only 33pc of their last pay drawn as pension got their pension increased to 50 pc! And worse, the minimum service for full pension at the above rates was fixed at 33 years for all! In effect 99 pc of the soldiers who are forced to retire due to the compulsions of a youthful army between 15 and 20 years of service got to get only around 25 pc of their last pay as their pension! And that is when the offer of OROP was first mooted and approved by the then PM, Indira Gandhey. But it never materialized. And the treachery by the politician-babu-judiciary nexus only aggravated the situation in the years that followed. The open revolt in the Air Force after the 5^th Central Pay Commission was expectedly quelled using the might of the Air Force Act. But how long can anybody suffer injustice silently? With the information boom facilitated by modern technology it was just a matter of time before truthful facts poured into the public domain. And veteran soldiers, echoing the voice of the serving soldiers also, had to take to streets to vent their grievance and ire. But they were still far too disciplined and patriotic not to indulge in murder and mayhem leading to the decision makers turning a deaf ear to their just demands even while willing to talk to the Maoists who were, to use a quote used by the current Defence Minister, ‘holding the guns at their heads’.


Well, OROP is not only about pension. It is more about justice. Given the fact that equal pay for equal work is a universally accepted norm, there cannot be any doubt that the sepoy of the Indian Army should get more pay and perks that the Cabinet Secretary. The Right to Information Act has more than amply exposed the (in)competence and treachery of the civil servants as a whole and clerks of the IAS cadre, in particular. Just a cursory look at the decisions of the information commissioners who were/are mostly retired civil servants will suffice to prove my point. Without going deeper, suffice to say that it is only the soldiers who continue to pay with their life and limbs not only for their own failures but also for the failures of those who are tasked and paid to train, equip and motivate them.


The Politician-Babu-Judiciary Nexus.
1. With even MPs claiming that youth join army to die and babus managing to deny the dues to the architect of the glorious military victory of 1971 and the nation’s first Field Marshal Sam Manekshaw for more than 40 years is it any wonder that the morale of the troops are in their boots? And imagine awarding Bharat Ratna to Sachin Tendulkar before Manekshaw! While I would not care to use the analogy of chalk and cheese to compare their persons the analogy has to hold good for their achievements.


I am fully conscious that to even talk of judicial perfidy is likely to raise eyebrows. And putting it this bluntly to a former judge…may God save me! But facts are facts. Just compare the decisions of the various courts in Major Dhanapalan’s case involving Rank Pay granted to armed forces officers after 4^th CPC in 1986 but not paid due to deliberate manipulation. How many cases had to be filed? After how many years did the beneficiaries get their dues? (I only hope that all of them have got it by now!) And finally did they get justice? The answer cannot be anything other than a definite NO. With the interest due for the first 20 years denied and only 6 pc granted thereafter, can the apex court decision be considered just? And amoung those who were responsible for this chicanery were anybody punished? Again a big NO! Now compare it with what Subroto Roy of Sahara was required to pay and to who all and how many cases were required to be filed and why he spent so many years in jail. If the injustice to the soldiers is not obvious then blame it on your own sense of justice.


And the grouses are more…
2. The Armed Forces Tribunal Vs Central Administrative Tribunal. The only justification for a contempt of court provision in the statute books in a democracy is the need to enforce judicial orders. While the CAT has been in existence for ages and enjoys such powers the more recently constituted AFTs have been denied those powers paving way for more heartburns for soldiers with most of the orders of AFTs ending up in the dustbins of some babu. In fact the order dated 29 May 2015 of the Court No 2, AFT Principal Bench at New Delhi in OA No 138/2013 is bound the way of the Rank Pay case. (The original order is dated 21/11/2012 in 556/2011.) But meanwhile the babus played another fraud by originating a Special Army Instruction No 2/S/1998 para 5(a)(iv) of which reads as under:


Para 5(a)(iv):- As a one time measure those who become substantive major
before 1.1.96 will be granted the scale of Lt. Col. on completion of 21 years of
commissioned service i.e. in their 22nd year with rank pay of Major.
Since above categories of officer can not be identified by Pension
Disbursing Authorities, so it has been decided to issue corrigendum PPO by
Pension Sanctioning Authorities to implement above mentioned Govt. order
dated 24/9/2012.
The fraud has to be seen for what it is because ever since the cadre review effected in the mid eighties all substantive Majors would get promoted on time scale to Lt Col on completion of 21 years of service, that is in their 22nd year of service! I can vouch for it because I was commissioned on 11 Jun 1977 and retired voluntarily on 7 Apr 1998. Army HQs had however issued my promotion order to the rank of Lt Col (TS) wef 11 Jun 1998, though it became in fructuous since I had hung my uniform by then!
3. Ex-servicemen Contributory Health Scheme Vs Central Government Health scheme. This is also an example of denying the soldiers facilities that are given to their civilian counterparts. For example, ECHS provides only allopathic treatment whereas CGHS provides all forms including ayurveda and homeo! And more recently there have been reports that the CAG has indicted ECHS for using its funds to meet the expenses of treatment of serving soldiers, thus cheating the ECHS beneficiaries! And the quality and scope of the facilities are tied up with so many ifs and buts and many empanelled facilities are also withdrawing due to mounting arrears of dues!


4. Anomalies in implementing pay commission awards. Reports indicate that there are about 20 odd anomalies yet to be resolved after implementing the 6^th CPC awards. But one of them- the pay band-pay scale issue- affected the civilians (other than the IAS, IPS top brass) also and the matter reached the apex court fairly fast and orders were issued to pay pension based on pay scales rather than at the minimum of scales of the pay bands. Obviously this was to be done from 1/1/2006 but the clerks of the IAS cadre played foul by issuing order for implementing it from 24/9/2012! (Can we dismiss it as their incompetence? No! Because, in the matter of implementing the 6^th CPC awards there was a dispute regarding Lt Generals who were Army Commanders and those who were not. It was resolved fairly promptly by these clerks by creating another scale just below the top two to accommodate the Non-Army Commander Lt Gens and making it applicable to Additional Secretaries of the Government of India. And this was implemented wef 1/1/2006 saying that it was resolution of a 6^th CPC anomaly!) Back to courts and orders for applying the revision from 1/1/2006 followed. But here, to my horror, I had the experience of even the banks, as Pension Disbursing Authorities, and the Banking Ombudsman play foul! Personally, in my case, I noted that the basic pension given to me from 1/1/2006 to 23/4/2012 was only 2/3 of the basic pension paid earlier from 24/9/2012. On seeking clarification from the bank there was no response. Complaint to the Banking Ombudsman produced a treacherous order. Finally a letter to the Governor, Reserve Bank of India, while eliciting no reply, did bring in the dues within one month!

9. Lack of information. The last ten years were so full of action and changes that most of the soldiers, including officers, can safely be assumed to be ignorant of what has been happening around them that directly affected their lives. One case is the non issue of corrigendum PPOs reflecting the changes in pension as they happened whenever they happened. In fact I have still not received the corrigendum PPO reflecting the changes in the pension when the 6^th CPC awards were 1^st implemented in 2008. I got the Annx IV to the MoD, Department of Ex-Servicemen Welfare letter No No 17(4)/2008(1)/D(Pen/Policy) dated 11.11.2008 using the RTI Act from my PDA, SBI. But to my horror the bank could not even provide me the number of pensioners to whom they had issued these forms! Finally, after two years, on the orders of the information commissioner, when they were compelled to provide the figures I was informed that these forms were prepared only for about 1/3^rd of the pensioners drawing their pension from SBI! And it is this lack of information that is preventing me from directly answering the questions in the notification, dated 2/8/2016, issued by the Judicial Committee on OROP. However this is being attempted with the limited knowledge I have about these subjects.


Whether the benefit of OROP is to be extended to Reservists. Yes.


Whether the decision to grant benefit of MACP under OROP only to pensioners who have actually earned requires any modification? Yes. It should be given to all pensioners fulfilling only the criteria of period of service, because the need for earning/fulfilling other criteria is only notional and not materially relevant.


Whether pension tables for more than 33 years of qualifying service are to be prepared? Yes. In fact the ceiling of 33 years, now applicable for maximum pension should also be removed. In addition the minimum service of 15/20 years prescribed for earning pension should also be done away with. With the introduction of pension for MPs and MLAs who have just taken oath, the minimum service prescribed for others is in violation of the principle of equality guaranteed by the Constitution. Thus all soldiers who have retired/resigned, except those who have been dismissed on disciplinary grounds, without completing the minimum prescribed service should be given pro-rata pension subject to minimum, as is being given to MPS and MLAs.


Whether the methodology followed for fixation of pension under OROP in the absence of actual retirees in the same rank and same qualifying service for the below mentioned categories requires any modification: Yes. The methodology should cater for all ranks, from Sepoy to Field Marshal, based on ranks and additional tables providing weightages for professional qualifications and type of entry, taking direct entry as the standard. In this context the even more pertinent suggestion is that the datum should not be the min, max or average of pay scales. It has to be the same format used for fixing pay of serving personnel’ considering the length of service of the pensioner as being fixed at the time of his retirement.


Whether the methodology followed for fixation of pension under OROP for invalidated out war injury pensioners and liberalised family pensioners require any modification in pension fixation formula. Yes. War injury pensioners should be given their complete last pay drawn as pension with appropriate increase whenever revised. Liberalised family pensioners should be given the same pension as the pensioner. But I must also mention here that even the broadbanding of disability pension has to be implemented better by having just two categories- upto and including 50pc and 51 to 100pc.


Whether in the case of JCOs/ORs, the pension is to be paid on the basis of the last rank held instead of last rank pensioned under OROP. Before I answer this I must admit that it is news that these are different. The only exception that I know of is of honorary commissioned JCOs who may be awarded the honorary rank after retirement. Obviously in their case the pension has to be of the higher rank awarded because without monetary benefits the award would be simply tokenism and would fail to motivate JCOs to perform even in the last days of their service. This would apply to honorary ranks awarded to sepoys and NCOs also.

Conclusion.

10. Judicial commissions are well known as a useful tool for decision makers to delay decision, obfuscate issues and deny justice. Equally importantly the credibility and efficacy of these commissions also remain questionable. We have seen how the Railway Minister (Lalu Prasad Yadav) appointed judicial commission to inquire into Godhra train burning produced a report in line with the Railway Minister’s views and another judicial commission appointed by the Chief Minister of Gujarat (Narendra Modi) to inquire into the same incident produced a report in consonance with the Chief Minister’s views. So where does that leave this committee? My involvement with the government, including the judiciary, has helped me postulate that all public servants are idiots or traitors unless proved otherwise.


With hope reigning supreme in the human heart and being prepared for the worst even while hoping for the best, I dedicate these suggestions to all my brave brothers and sisters in uniform.

Veteran Major P M Ravindran

‘Aathira’, Near Kailash Nagar

Kalpathy, Palakkad-678003

Tele: 0491-2576042, Email: majorravi@gmail.com