JUDICIAL PERFIDIES-17

 

I had concluded the last part, Judicial Perfidies 16, with a tweet of a view of judge D Y Chandrachud and a reply tweet by another tweeter. It was like Chandrachud saying ‘The army might be important in its own right but the Constitutional court is equally supreme’ and the reply was ‘Army is supreme for the simple reason Supreme Court can sit on a case for decades and life goes on as usual but army can’t postpone its response to aggression by the enemy. If it does there will be no country and no Supreme Court.’ Can the truism in that logic be countered in any manner?

 

There is another equally non debatable logic in another quote. This is what T.R.Ramaswami, had written: 'Let not someone say that the IAS and IPS exams are tougher and hence the quality of the officers better. An exam at the age of 24 has to be tougher than one at the age of 16. The taxpaying citizen is not interested in your essay/note writing capabilities or whether you know Cleopatra's grandfather. As a citizen I always see the army being called to hold the pants of the civil services and the police and never the other way round. That's enough proof as to who is really more capable.'(The complete is available at http://exairwarriorsgroup.blogspot.com/2010/04/read-this.html)

 

Before I go on to analyze the One Rank, One Pension conundrum, let us first understand what it means. Rank is primarily a military term. So One Rank, One Pension basically implies the same pension for those retiring in a particular rank, irrespective of the date of retirement.

 

If it is that simple, then where is the problem? The problem is because of the limited career progression available to the men in uniform compared to their counterparts in the civil administration and the early retirement forced on soldiers due to their tasking which requires a young profile, especially at the lower levels of the hierarchy. While most of the troops have been retiring in the rank in which they join after serving for 15 to 25 years (this appears to have been mitigated to some extent through a Minimum Assured Career Progression offered lately and referred to in the recent OROP verdict of the apex court), the incongruity is glaring at the officer’s level in comparison with their civilian counterparts.

 

 Going back to Ramaswami, this is what he has observed:

 

The 1981 IPS batch have become 3-star generals, the 1987 are 2-star and the 1994 1-star.

In the army the corresponding years are 1972, 1975, 1979. ie a differential of 10-15 years. While the differential is more with the IAS, the variance with the IPS is all the more glaring because both are uniformed services and the grades are “visible” on the shoulders.

He continues…

In the IAS normally everyone reaches Director and in the IPS it is DIG. In the army, given the aforementioned rank and grade rigidities and pyramidical structure, the mode rank cannot exceed Colonel. Thus a Colonel’s gross career earnings (not salary scales alone) must be at par with that of a Director. But remember that a Colonel retires at 54, but every babu from peon to Secretary at 60 regardless of performance. Further, it takes 18-20 years to become a Colonel whereas in that time an IAS officer reaches the next higher grade of Joint Secretary, which is considered equal to a Major General. These aspects and others – like postings in non-family stations – must be addressed while fixing the overall pay scales of Colonel and below. Thereafter a Brigadier will be made equal to a Joint Secretary, a Major-General to an Additional Secretary and a Lt. General to a Secretary. The Army Commanders deserve a new rank -Colonel General – and should be above a Secretary but below Cabinet Secretary. The equalization takes place at the level of Cabinet Secretary and Army Chief.

If this is financially a problem I have another solution. Without increasing the armed forces’ scales, reduce the scales of the IAS and IPS till they too have 20% shortage.

 

Apart from this is a bizarre system, called Non Functional Financial Upgradation (NFFU), invented by the babus, in their pursuit of self aggrandizement as a whole class. As per this system any member of their service will get the same pay and perks as the first one who gets promoted in their batch, irrespective of whatever job the rest are doing. To illustrate, if a member of the IAS of 1990 becomes Cabinet Secretary in 2020, all his batch mates would get the pay and perks of the Cabinet Secretary.  So now every batch mate of a cabinet secretary will get not only the pay and perks of the Cabinet Secretary, they will also get the same pension of the cabinet secretary. And it is not a scale but a consolidated amount; so no minimum, maximum or average. Since a Cabinet Secretary will have tenure of about two years it implies that every member of almost alternate batches of the IAS will be getting the pension of a Cabinet Secretary.

 

This same benefit had been extended to the members of IPS with a two year delay. That is, when all the members of the IAS batch of 2020 gets a promotion, then all the members of the IPS batch of 2018 will get the same pay and perks. Even then all the other civil services were denied this initially but got it with a delay of 10 years. As of now, only the armed forces officers are denied this.

 

A report, dated 08 March 2021, at https://www.dailypioneer.com/2021/columnists/exorcising-the-orop-conundrum.html informs us that even while this Government opposes OROP for its military veterans, it lost little time in ensuring that all Members of Parliament receive pensions calculated in much the same manner that military veterans have been demanding. In 2018, it amended Clause 8A of ‘The Salary Allowances and Pension of Members Act, 1954’, to provide for an increase in the authorised pension every five years on the basis of the Cost Inflation Index, which clearly links pensions for all former members to what is received by the incumbent.

 

In fact this principle had been implemented in a different form for the MPs earlier too. Paragraph 5 of The Salary, Allowances and Pension of Members of Parliament (Amendment) Bill, 2010 is reproduced below.

Besides Pension the ex MPs are entitled to Rail/Steamer travel and medical facilities as mentioned in enclosed pamphlet on Facilities to Members/ex-Members of Parliament. As per latest debit claim  raised by the M/o Railways, the bill amounting to Rs 2,645/- Crores was settled in respect of  ex-MP during the January 2013 March 2013 quarter.

(Annexure to Lok Sabha Secretariat letter number 1(556)/IC/13 dated 31/05/2013

‘(1) With effect from the 18th day of May, 2009, there shall be paid a pension of twenty thousand rupees per mensem to every person who has served for any period as a Member of the Provisional Parliament or either House of Parliament:

Provided that where a person has served as a Member of the Provisional Parliament or either House of Parliament for a period exceeding five years, there shall be paid to him an additional pension of fifteen hundred rupees per mensem for every year served in excess of five years.

 

Incidentally, this pension is peanuts compared to another expenditure, on rail travel, incurred on our former law makers. Here is a screen shot of a letter dated 31/05/2013 of the Lok Sabha Secretariat (obtained under the Right to Information Act in 2013):

And, the number of pensioner MPs/widows of pensioner MPs? 3857. That works out to an average of Rs 68, 57, 661 per quarter per MP or almost Rs 23 lakhs per month per ex MP.

 

The Pioneer report also informs us that in 2014, when the Supreme Court was passing directions to the Government to correct the anomalies in the pensions of High Court Justices, then Chief Justice of India P Sathasivam directed that “one rank one pension must be the norm in respect of a constitutional office”, a benefit which Justices of the Supreme Court already enjoyed.

 

The facts and figures regarding the pension of our judges in the high courts and Supreme Court are not available. In fact, even the pay details required to be published proactively by the public authorities, under the Right to Information Act, has not been published by the Supreme Court, though such details are available for the other employees of the court from the Secretary General down to the Chamber Attendant.(Last accessed 09 April 2022)

 

Yet another report, dated 29 August 2015, that gives a comprehensive picture of the OROP conundrum is available at https://www.linkedin.com/pulse/soldiers-pride-nations-security-darshan-pandher/. The author, Veteran Lt Gen PG Kamath has narrated the history and the gist is extracted below as:

 

It was post 1971 and the nation was euphoric. Our countrymen were lauding the Indian Armed Forces for a spectacular victory that had changed the geography of the sub-continent. The nation was savouring the victory and more than 97,368 prisoners were in our Prisoners of War Camps. It was the second largest surrender in the Military History.

 

Unknown to the services a band of bureaucrats were conspiring as to how to cut the Armed Forces to size.

 

Firstly, they abolished a separate Pay Commission for the Armed Forces and formulated an equivalence between the Armed Forces and Civilians. It was here that the Pay Commission struck its vilest blow when they considered that ‘a trained infantry soldier with three years of service is below a skilled labour. He is the one who bears the brunt of more than 90% of casualty in all wars and yet he was considered the lowest strata to base their comparison. Rest of the soldiers were equated based on this preposterous formulae?

 

Next step was to reduce the percentage of pension for the Armed Forces. The OROP that was effective till 1972, was annulled after the third pay commission. A soldier then served only for 15 years and went on pension at the ages ranging from 33 years to 36 years of age. In view of this, his pension was 70% of his basic pay. The civilian counterparts were getting only 30% of their basic pay as pension. The wretched Third Pay Commission did not consider the additional 25 years of service his civilian counterpart served and raised their pension to 50% and reduced a soldiers pension from 70% to 50% in order to achieve the so-called parity. Further the government put mandatory 33 years of service for full pension. They further, as a largesse, made a seemingly generous gesture to the Armed Forces by pegging the mandatory service for full pension (50%) to 25 years. Thus the soldier in effect got only 30% of pay after 15 years of service, as extrapolated from full pension of 50% of pay with 25 years of service. Thus the Government ingeniously cut a soldiers pension from 70% to 30% of pay at the same time enhancing the civilian pension from 30% to 50%. Look at the perfidy; how can possibly a Government run down her own Armed Forces? It is indeed a remarkable feat from a nation that was a slave nation for over two centuries, yet disregards her Armed Forces who ensure her hard earned freedom?

 

Our Defence Ministry were hand in glove with the proposals. There was not a whimper of protest to set right the injustice. The soldiers had to pay heavily for having won the war for the country. Their travails were not over; more was yet to come!

 

One would wonder why the soldiers did not protest against the brash injustice perpetrated on them? It would be difficult to believe, as those were the times the officers in particular were told that politics and pay were not to be discussed. They were naïve and had full faith in the government that in the long run no injustice would be done to them. The disarming naivety of our officers appear incomprehensible now; but it was true then. Hence the entire master stroke of cutting the armed forces to size by impoverishing them was done with so much of dexterity, it took us couple of decades to realise its negative impact.

 

They did not even spare the first Field Marshal of independent India, the architect of one of the most glorious victories in military history, while liberating Bangladesh in 1971, and the who re- ignited the national pride.  A PTI report from April 2007 (that is a good 34 years after he was elevated to the rank of Field Marshal) states that an official statement of the defence ministry said that FM Manekshaw and Marshal of IAF Arjan Singh would be entitled to “full salary and allowances equivalent to that for serving chiefs of the two services.” Really? So what about the Field Marshal and Marshal of the Air Force being above the service chiefs? Oh, the same subterfuge in creating an office of the Chief of Defence Staff and keeping it in the same rank as that of service chiefs? No, this time it has gone one step further, the CDS is also the Secretary of the Department of Military Affairs and in that position equal only to the Defence Secretary who is lower in status than the service chiefs.

 

What Ramaswami appears to have missed are two facts: one, while the army has always responded positively and effectively in holding the pants of the civil services and police, the latter has never delivered on the services due to the former, as is due to them as with every citizen of this nation, and the raison d’etre of their very employment.

 

The next thing is that he has distinguished between civil services and the police. Apparently, by civil services he means only the Indian Administrative Service. This may be unwittingly or maybe being very much aware of the differences that really exist, though legally both are civil services and are recruited through a common civil services exam conducted by the Union Public Service Commission. The bizarre case of NFFU has been described in some detail earlier.

 

I remember having tweeted to the Prime Minister once that given the principle of equal pay for equal work, the Sepoy in the Indian Army should get more pay and perks than the Cabinet Secretary. This was on realization that, after the Right to Information Act came into force, the best of the babus of the IAS can pass of for satisfactory clerks, the rest are mere file pushers who cannot even push the files in the right direction. Exceptions, granted.

 

Now, coming to the current judgment, dated 16 March 2022, in Writ Petition (Civil) No. 419 of 2016, the court appears to have reinvented its decisions in two earlier cases- D S Nakra and S P S Vains.

 

In D S Nakra it had been held that payment of pension constitutes a compensation for the service rendered in the past and as a measure of social welfare for providing socio-economic justice to those who have rendered service to the State and that there was no justification for arbitrarily selecting the criteria for eligibility for the grant of benefits under the scheme based on the date of retirement.

 

In SPS Vain, the Court had held that pre and post 1996 retired Major Generals must be treated at par to remove an anomaly in the pension of pre-1996 retired Major generals. The principle in that case was about the removal of anomaly between the ranks of Major General and Brigadier which had arisen due to the implementation of the fifth and the sixth Central Pay Commission.

 

In the current case, the court has held that the decision in Nakra cannot be enlarged to cover within it all the claims made by the pension retirees since the purpose of computation of the pension is different. Now, what is this purpose, only the judges would know.

 

Also, the court held that it was not feasible to undertake an automatic revision. Though the government had accepted the principle of uniformity, it was not unreasonable to define periodicity for ensuring uniformity.

 

The court also appears to have swallowed hook, line and sinker the argument of the government in working out OROP based on the Assured Career Progression Scheme (later Modified Assured Career Progression Scheme) for Junior Commissioned Officers/Other Ranks. This scheme assures upgradation of pay to the next higher rank at 8/16/24 years of service.

 

One absurd illustration, as seen in Para 35 of the Order, is reproduced below:

In other words, a Sepoy with three years of service and a Sepoy who has acquired eight years of service thereby qualifying for MACP are not equated even after OROP purposes since they did not both have the same length of service from the past rank of Naib Subedar.

 

The absurdity in the first part, comparing a Sepoy with 3 years of service to a Sepoy with 8 years of service should be obvious. Given that the minimum pensionable service of a Sepoy was 15 years, what would have been reasonable was comparison of a Sepoy who had retired with 15 years of service before introduction of MACP and after introduction of MACP. Further, given that MACP is simply an incentive to serve longer, at least upto 24 years, with no criteria of any additional qualifications or competence for availing the benefit, it only stands to reason that those who had retired with the prescribed service should ipso facto, be eligible for the benefit, irrespective of the dates of their retirement.

 

Also, one is left wondering how a Naib Subedar could be the past rank of a Sepoy. From the order itself it is clear that it is this is the rank to which a Havildar gets upgraded to after 24 years of service under MACP.

 

And what does the following comparison and the figures, in the same paragraph of the order, mean?

According to the Union Government, if non MACP personnel are grouped with MACP personnel for the payment of OROP, the total financial outflow from 2014 would be in the range of Rs 42,776.38 crores. If non MACP persons were required to be matched with MACP, the financial implication for the period from 1 July 2014 to 31 December 2015 would stand at Rs 13,731.03 crores.

 

But there is more clarity in the financial implications as brought out in this statement, reproduced from the same paragraph:

As noted earlier, it has been stated that when OROP is implemented, the annual financial implication was in the amount of Rs 7,123.38 crores. If non MACP personnel had to be matched with MACP personnel, this figure would stand increased to Rs 9,411.71 crores.

 

These figures highlight two facts:

One, there is a difference in the pension of those who retired prior to introduction of MACP and those who retired with MACP benefits.

Two, the cost of extending the benefit of MACP to all is meager (viewed in the context of government expenses) at Rs 2288.33 crores.  (Just recollect the rail travel expenses of Rs 2645 crores for 3857 ex-MPs for a quarter!) However, this amount would, no doubt, have immensely benefitted a very large number of veteran soldiers.

Now, here are some reports that had appeared in the media, since the case was filed in 2016:

One Rank, One Pension: Is the bureaucracy back to the same old game of delay dilute and deny? (https://timesofindia.indiatimes.com/blogs/In-search-of-propriety/one-rank-one-pension-is-the-bureaucracy-back-to-the-same-old-game-of-delay-dilute-and-deny/)

One Rank One Pension: A Typical Example of Bureaucratic Apathy. OROP is not an anecdote of strive and struggle, but reverence in the form of justice which the protectors of our nation rightfully deserve.( https://blog.ipleaders.in/one-rank-one-pension-a-typical-example-of-bureaucratic-apathy/) Just for the record this blogger is Yash Jain, a third-year student of Institute of Law, Nirma University in 2019 when this blog was published.

The top court had said that whatever it will decide, it will be on the conceptual ground and not on figures. It said, “When you revise after five years, the arrears of five years are not taken into account. The hardships of ex-servicemen can be obviated to a certain extent if the period is reduced from five years to a lesser period”. (https://economictimes.indiatimes.com/news/defence/sc-upholds-govts-decision-on-one-rank-one-pension/articleshow/90255785.cms?from=mdr)

The apex court said that the policy decision of the Centre of OROP is not arbitrary and it is not for the court to go into the policy matters of the government. And, on February 16, the top court had said that Centre's hyperbole on the OROP policy presented a much "rosier picture" than what is actually given to the pensioners of the Armed forces. (https://www.newindianexpress.com/nation/2022/mar/16/one-rank-one-pension-is-policy-decision-suffers-from-no-constitutional-infirmity-supreme-court-2430729.html)

 

I am reminded of a wise quip: we do not get justice in our courts, what we get from our courts is called justice. The question is how long will the citizens be able to accept this situation?

P M Ravindran/raviforjustice@gmail.com/250422