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Wednesday, September 10, 2008

Maintain pension parity between Army Officers retiring on different sets of dates : Hon'ble Supreme Court

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In a landmark decision, the Hon’ble Supreme Court of India in Union of India Vs SPS Vains (Retd) (SLP No 12357 of 2006 decided on 09 September 2008) has upheld the orders of the Hon’ble Punjab & Haryana High Court wherein it was directed that Major Generals retiring prior to 1-1-96 (implementation date of 5th Pay Commission) should be granted a pension at par with post 1-1-1996 retirees. The Writ Petition in the Hon’ble Punjab & Haryana High Court was filed by Major Generals who retired prior to 1-1-1996 and whose pension was fixed lower than post 1-1-1996 retirees. This had happened since the start of the pay scale of Major Generals (18400) was less than the starting pay of Brigadiers (16700+2400 Rank Pay = Rs 19100) leading thereby to a situation that the pension of a pre 1996 retiree Maj Gen was fixed at Rs 9200 but Rs 9550 for a Brigadier. To cater to this anomaly, the govt had stepped up the pension of pre 1996 Major Generals to Brigadier level thereby leaving them at a loss as compared to post 1996 retirees. The High Court had allowed the Writ Petition and had directed equal treatment for pre and post 1996 retirees. The orders were challenged by the Govt of India in the Hon’ble Supreme Court but the Apex Court through a detailed order has upheld the High Court directions and has also laid down a landmark law which would come as a relief to all defence retirees and the value of which shall be known in times to come.

Here are some pearls from the judgement of the Hon’ble Supreme Court :

“….The larger issue involved is 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 question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution….”

“….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. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension….”
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13 comments:

abhi said...

Fantastic!!!

War Veteran said...

Does this judgement imply that past pensioners will also be entitled 50% MSP while calculating fitment of pension?

Anonymous said...

I feel MSP was made effective from 01 Sep 2008 only to prevent the past pensioners from getting the benefit.
More over MSP has to be taken into account for Mag Gens who became Maj Gen before 01 Sep 2008(as per the 6 SPC) so that they will not get less than a Brig who will be getting MSP from 01 Sep 2008.
Hence the Babus can not deprive past pensioners wrt MSP component.This works out to be Rs 3000/month for officers & is certainly not a small amount
Venkatesh

col k k choudhary said...

Firstly, I thank Navdeep for the latest Supreme Court Judgement which will have far reaching effect
on all retirees of defence services.
Secondly, Mr War Veteran, You seem to have correctly understood the implications of this judgement. Now all pre 1.1.2006 pensioners will be benefitted by at least Rs 3000/= for Offrs and Rs 1000/= for PBORs by way of increased pension.

COl VT Venkatesh(retd) said...

I think this may even help civilians who may be in a similar situation

Anonymous said...

I hope so , they are also in need of money like us retirees --

SK Jain said...

The implication of this judgement -Is it not 'one rank one pension'? Major Navdeep Sir can throw some light.
As per Resolution No. 12 (accepted by the Govt and applicable to service offrs), revised pension in no case shall be lower than 50% 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 has retired. This has been notified vide para 4.2 of F No.38/37/08-P&PW (A) dated 1st September 08 (applicable to civ pensioners.
Pay Commission Report also speaks about modified parity covering the above mentioned point. The report also says that MSP shall be taken into consideration for all purposes incl pension. Also, in the pension table for PBOR, MSP has been taken into consideration by the Pay Commission.
As such, pension of pre 2006 pensioners (offrs) cannot be less than 50% of revised minimum pay of the rank from which pensioner has retired and this include MSP also.If 50% of MSP (3000) is not given to past pensioners, it will again creat anomaly of juniors getting more pension than seniors. However, aspect with regard to arrears of MSP is still in dark.Any comment?

Navdeep/Maj Navdeep Singh/Capt Navdeep Singh said...

The comments by 'SK Jain' are bang on target and have saved me the time of replying to related queries :-)
The modalities on the MSP fitment need to be seen when the defence pension implementation is effected.

Raman said...

well well well. all fine.
BUT
when the govt has ignored the Supreme Court's direction to give back rank pay after the "Danapalan Judgement"
do you think they will Honor this OROP intrepretation.NO Sir only if and when sometihing serious happens will they wake up.

Anonymous said...

Dear Navdeep Sir,

I think we make a mistake by blaming babus for the worries of Army officers. Our own Gens are good enough for our miseries.Latest news is that MS Branch is to set out a policy very soon for Resettlement courses for Army officers. The policy going to be (orders are likely to be signed in next 10 days )that your application for these courses would be accepted after your premature retirement has been approved. Not only that, you will attend only first half of the course in your service and last three months after your retirement. What a good way to earn an AVSM and attain next rank. I am sure, had Army Chief been the Chief of CsOS Committee nothing would have happened on the front of Pay Commission. Army does not know how to look after its own officers. Gen only look at their next rank. Do we need Pak Army to ruin the happiness of Indian Army Offrs under the present leadership??????????

All adm Job said...

a) FOR PRE-2006 pensioners, emoluments are taken as the minimum Basic of Pay Band + Grade Pay (as Applicable) + MSP (if applicable) and then pension is fixed according to the length of service. Whereas in 5th CPC it was according to minimum basic pay of the rank, now in 6th CPC pay scale is not according to rank but a running pay scale, Govt. in its gazette dated 29th August 2008, section II, at Page No. 43 has clearly said the “Entry pay in the revised pay structure for direct recruits appointed after 01.01.2006 according to the following table:

Section – II

Entry Pay in the revised pay structure for direct recruits appointed on or after 1.1.2006

PB - 1
Grade Pay Pay in the Band Total
1800 5200 7000
1900 5830 7730
2000 6460 8460
2400 7510 9910
2800 8560 11360

PB - 2
Grade Pay Pay in the Band Total
4200 9300 13500
4600 12540 17140
4800 13350 18150


PB - 3
Grade Pay Pay in the Band Total
5400 15600 21000
6600 18750 25350
7600 21900 29500

PB - 4
Grade Pay Pay in the Band Total
8700 37400 46100
8900 40200 49100
10000 43000 53000
12000 47100 59100




b) In view of the above table and Govt. notification minimum Basic pay for the pension should be entry pay for the particular grade pay and not the minimum pay of the pay band. Pension in view of the above table should be as per column “i” of table given below:

TABLE HOW PENSION IS CALCULATED AS ON DATE
TABLE HOW IT IS SUPPOSED TO BE CALCULATED

Pay Band Basic Pay Grade Pay MSP (as applicable) 50% Pension Minimum Scale as per gazette page 43 Grade Pay MSP (as applicable) 50% Pension Difference
a b c d e f g h i e - i
PB - 1 5200 1800 2000 4500 5200 1800 2000 4500 0
5200 1900 2000 4550 5830 1900 2000 4865 315
5200 2000 2000 4600 6460 2000 2000 5230 630
5200 2400 2000 4800 7510 2400 2000 5955 1155
5200 2800 2000 5000 8560 2800 2000 6680 1680

PB - 2 9300 4200 2000 7750 9300 4200 2000 7750 0
9300 4600 2000 7950 12540 4600 2000 9570 1620
9300 4800 2000 8050 13350 4800 2000 10075 2025

PB - 3 15600 5400 6000 13500 15600 5400 6000 13500 0
15600 6600 6000 14100 18750 6600 6000 15675 1575
15600 7600 6000 14600 21900 7600 6000 17750 3150

PB - 4 37400 8700 6000 26050 37400 8700 6000 26050 0
37400 8900 6000 26150 40200 8900 6000 27550 1400
37400 10000 6000 26700 43000 10000 6000 29500 2800
37400 12000 6000 27700 47100 12000 6000 32550 4850

Pension for pre-2006 pensioners should be calculated by counting Minimum entry pay corresponding to their Grade pay at the time of retirement and not according to the minimum basics pay of the Pay Band. This is a very serious anomaly in this 6th CPC for the pre-2006 pensioners.

PRAMOD said...

Sir
My mother family pension starts from Jan /2010 .but my father is not joined ECHS seam the medical allowance not came in my family pension .if is possible to refund the medical alliance to my mother pension .and please tell what are allowance give to A widow. What financial benefit does he get from AGIF? My e-mail address is Pramodjohn.john@gmail.com

vinod nair ss said...

I am a defence personnel from kerala. When I was posted at Meghalaya, I purchased a car from CSD Ranchi and registered and paid life time tax at Meghalaya. Now after 3 years, I have been posted out from meghalaya and got NOC to my home state, Kerala. Re registration has been done and again the life time tax is paid at Kerala. Now I am posted to Karnataka. Now I heard that the road tax is to be paid at Karnataka. Sir, Please inform me what the rule says and what is the exemption in this case as a defence personnel.