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Sunday, March 1, 2009

Dismissal of Petition seeking review of relief granted to Major Generals by the Hon’ble Supreme Court

The Sword of Justice has no scabbard - Antione de Riveral

Though I’m yet to see the order, it is learnt that the Hon’ble Supreme Court has dismissed the review petition filed by Union of India (Ministry of Defence, Govt of India) seeking a relook into the detailed decision rendered by the Hon’ble Supreme Court in UOI Vs SPS Vains case that was decided on 09 Sept 2008. In the said decision, the Hon’ble Supreme Court had upheld the order of the Punjab & Haryana High Court wherein it was directed that there had to be a system of pension parity between officers retiring on different sets of dates. While the case did not directly deal with the principle of ‘One Rank One Pension’, it definitely sets into motion a regime for near parity where there is minimal difference in pension vis-à-vis different retirement dates.

For more insight into the issue, readers may like to peruse the below mentioned excerpt from an earlier post on this blog :

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….”


Anonymous said...

Dear Navdeep,

Thanks for the update. I think the date need to be amended in " Hon’ble Supreme Court in UOI Vs SPS Vains case that was decided on 09 Sept 2009". It ought to read 09 Sept 2008 rather than 2009.

Keep up the good work.


Anonymous said...

Dear Navdeep.
This alsmost clears the decks for something like OROP though it may be worded differently. Good show!!! hope the court comes to the rescue of the Armed Forces.

Anonymous said...

Kanoon ke nagri mein der hain Andher nahi !!!

Anonymous said...

Dear Navdeep do u think it would be a smart thing if the Veterans file a case in SC for OROP based on this case?

Anonymous said...

The case pertais to pre 1996 Maj Gens.
Subsequently , now after the recent amendment by corigendum 11, the pension of Maj-Gens and Lt-Gens has been revised upwards in the sense no junior will now be getting more than their seniors.
As such nobody can expect sny further changes in this direction.
Also the revised orders very clearly says that in any known case of a Senior getting less than a Junior, if the case is brought to their notice , the problem will be Resolved by the pension authorities.
As far as the OROP goes , it is wishful thinking, as any acceptance on the Military side will have repurcussions on the civil side.In fact the civil side personnel will be too glad to see their Military Colleagues get it. Because, then can also fight for a similar dispensation.
So thats that.

Anonymous said...

I think that the IESL should file a suit in the Supreme Court with Good Advocates while continuing their 'Gandhigiri'. They may approach the same Advocates who wpn the present suit. The veterans all over India will only be too happy to share the expense on pro-rata basis

Anonymous said...

OROP is definately not wishful thinking.MPs,MLAs,Judges and majority of IAS and IPS are already drawing OROP.There is also no case for civilians to demand the same as they do not start retiring at the ages at which the bulk of our jawans do.(32 to 42years).MAJORITY of officers also retire at 52- 54 years.
Besides they are not on call 24*7 hours at all times,nor serve in field areas or afloat in extreme conditions.
They are not deprived of their fundamental rights nor reqd. to make the ultimate sacrifice fighting for the Nation.
Hence it is high time the Babaus stop making a mockery of Fair Play and Justice in this country and fall in line.
The IESM is fighting for a Just cause and this movement cannot be stopped.
My Query was directed at Major Navdeep and am waiting for his response.

Anonymous said...

I fully share your views. I am only
pointing out the futility involved.You know the Major Dhanapalan case, where very clearly ,the SC has told the Govt to pay the rank pay with arrears to all affected officers.
But nothing has happened.
Also the contribution made by pre1996 officers for ECHS was supposed to be refunded.
But Nothing has happened.
As far as the OROP given to Service Chiefs,Army Cdrs and Vice Chief as also the Chief Secreteries of States and the
Cabinet Secretary is concernened, the less said the better.Similarly MPs and Judges etall.
If you have noticed, recently the All India Officers(the civil ones I mean) have given themselves an additional 25% allowance for Service in the North East.
What do you say to that. ?
I am fully with the ESM in their struggle for OROP.

Anonymous said...

Hi Maj Navdeep,
There were some rumours and muted noise regarding 70% pension for PBORs. It was understood that the issue got approval from GoM alongwith the PB-4 issue of Lt Cols. However, no notification on the same till now. Does anyone has any update on that?

Anonymous said...

This is not related to the post, but I could not help sharing this as this reflects exact state of our boorocrazee.

Newly Discovered Heaviest Element
Lawrence Livermore Laboratories has discovered the heaviest element yet known to science.

The new element, Governmentium (Gv), has one neutron, 25 assistant neutrons, 88 deputy neutrons, and 198 assistant deputy neutrons, giving it an atomic mass of 312.

These 312 particles are held together by forces called morons, which are surrounded by vast quantities of lepton-like particles called peons.

Since Governmentium has no electrons, it is inert; however, it can be detected, because it impedes every reaction with which it comes into contact. A tiny amount of Governmentium can cause a reaction - that would normally take less than a second to complete - to take as long as 4 years.

Governmentium has a normal half-life of 2- 6 years. It does not decay, but instead undergoes a reorganization in which a portion of the assistant neutrons and deputy neutrons exchange places.

In fact, Governmentium's mass will actually increase over time, since each reorganization will cause more morons to become neutrons, forming isodopes.
This characteristic of morons promotion leads some scientists to believe that Governmentium is formed whenever Morons reach a critical concentration. This hypothetical quantity is referred to as critical morass.

When catalysed with money, Governmentium becomes Administratium, an element that radiates just as much energy as Governmentium since it has half as many peons but twice as many morons.

:) Happy analyzing.

digvijay said...

Ramani your statement that the IAS & IPS are drawing one rank one pay is incorrect

Anonymous said...

@ Ramani

The case on the basis of Maj Dhanaplan case is still in the Supreme Court & I don't think the final judgment has been delivered as yet.I have heard that it is being argued by one retired Gp. Capt. Bhatti(Advocate).
Also, the Supreme Court has has said that there will be no refund for those who have already paid ECHS contribution in case of pre-96 pensioners.

Anonymous said...

I would like to just add to the above.The affected officers are fighting their case in the SC,presently,under the RDOA which is also supported by the NFDC.
Let us all be more positive about our Just causes!!!

Anonymous said...

A Daniel come to judgement.


Anonymous said...

Sir, I am Ex-Petty Officer retired on 31.12.05. Some of our batchmates retired on 31.01.2006.This has happened as we had reported for our basic training on 31.12.1990 and some out of 600 had reported on or after 01.01.1991 and they have retired on 31.01.2006. In light of the above judgement, can we get the monetary benefits like gratuity and enhanced pension at par with our batchmates joined post 01.01.1991 since we are from the same batch and undergone the same training. And also no mistake of ours, should we lose so much of money which is very essential for PBORs like us. Can anybody please advise us in this regard

Anonymous said...

dear venkat,
I think your case is technically weak but has its strong merits. Considering the unique circumstances it would not be incorrect to take up the case.
wishing you the very best

Anonymous said...

Dear Sir, Thanks for the advice. Can you please brief me about the details as to how to proceed in this case, whom/where to approach, financial implications involved, merits of the case etc.

Anonymous said...

Dear venkat,
Who could be better than Maj Navdeep to look up for guidence and advice.

Can I request Maj Navdeep to please render his advice on the subject to Venkat.

Anonymous said...

VNatarajan, President, Pensioners' Forum(affiliated to AIFPA). Can Major Nabdeep confirm the authenticity of the news of review petition of UOI in the SPS Bains -Maj Gen pension parity case- as many civil pensioners are awaiting the verdict- for working out their own court case on parity between pre and post 2006 class pensioners -particularly in PB4?

Anonymous said...

@ Naren,

Are you a member of RDOA?I guess the RDOA is under the wrong impression that the pay fixation of Lt.Cols is going to affect the pension of all the retired Lt.Cols b'coz for all pre-06 Lt. Cols it will be fixed at the minimum of the pay band of PB4 & the fixation is not going to make any difference.

Anonymous said...

Dear Maj Navdeep Sir, Can you please look into our case. If you feel there are any merits in our case, can you please plead on our behalf at appropriate level. we donot have rudimentary knowledge in these issues. We will be grateful to you if you could help us. The thing we can only do is that we can contribute towards your fee, expenditure sir. Other than that you may please guide us on the any other issues involved.Kindly spare some of your precious time for the welfare of your Ex-Servicemen. It will befefit more than 100 Ex-Servicemen.(Y)our blog is an immense help to many like me. Hoping for positive response from your side. I am also grateful to Pawan Sir for his guidance. - G.Venkat Ramana, EX-POELA, Nalgonda, Andhra Pradesh. Cell No. (0) 9441273057

Anonymous said...

Dear Maj Navdeep.
I as the President, Pensioners' Forum (affiliated to the AIFPA, Chennai- regd) from Chennai, congratulate the Maj Generals- fighting the issue and for their success.We (viz I and many civil copensioners) are closely following the developments, as many are affected by the DOWNGRADATION inflicted on the pre-2006 pensioners of pre-revised scales like S30, S29 (almost equivalent to Lt Gen/Maj Gen)by bringing their basic minimum pension to that of S 24 levels in the implementation OMs of 6 CPC. We shall be much obliged for a confirmed/ detailed information/ news of the outcome of the RP of the case in qn pl.(for our guidance/ plans to go to courts in future soon)My email id is v_nattu@hotmail.com. Regards.VNatarajan

I D Sharma said...

Dear Navdeep,
While going through the Supreme court Judgement posted by Report My Signals, I was surprised to read that C O A S thru A G had gone in apeal with Govt Of India Thru Secy Def agains the High Cort Judgement Regarding the pension of Maj Gens, Wch has been dismissed by the highest court of the land If it is true where the sympathy of C O A S lies with the Govt or with the Maj gens. I fail to comprehend or am i a knave? Who is bothered about Maj Gens. Long the the Army. Jai Hind. I D

Anonymous said...


Anonymous said...

Hon'ble court has issued orders in favour of Maj gens for OROP.If the Govt.does not implement this,will it be considered as contempt of Court? If so what is the legal action?

Anonymous said...

Hi Navdeep !!
Is PB4 still in cold storage ? Can you throw some light on it ?

Anonymous said...

Some news on Maj Gen Case?

Supreme Court issues contempt notice to Defence Ministry
NDTV Correspondent
Thursday, April 09, 2009, (New Delhi)
The Supreme Court has come down heavily on the Defence Ministry after some retired army officers approached the Court over discrepancies in pensions.

The Supreme Court has issued contempt notice to the Army chief and Defence Secretary for not implementing court's order on the 5th pay commission.

The apex court in October 2008 had said that there should not be any discrimination between pre-1996, post-1996 defence pensioners. The Defence Ministry did not implement the order.

Pl chk.


Anonymous said...

Dear Navdeep,
Is it right to presume that we will now have different classes of pensioners such as Pre 2006, post 2006 , 01 Jan 2006 onwards till 01 Sep 2008 and post 02 Sep 08; whereas pay commission applicability is from 01 Jan 06,
why have so many classes , Is something in offing to remove this anamoly ;DPOA or something else , Is OROP the final way

Unknown said...

Dear Major ,
We all hope that on the new yr day the government will give some suitable orders in regard to increase in pension but in vain. As the UPA consist of kings and crorepathies, it is not likely to happen as perour wishes.