Monday, February 17, 2014

EXTENDING THE WG CDR VS TOMAR (RETD) LITIGATION TO OTHER ISSUES

{Edit: A brief chronology of the matter has been added at the end of the blog post}

Issues do not exist in water-tight compartments, nor can principles that apply in one case be automatically extended by rule of thumb to another.

But recent blog-posts connected with the issue of OROP opened up a train of thought based on related judgements and judicial pronouncements. But then, trains of thought can be runaway trains, going downhill at break-neck speed , inviting a derailment at every curve. There is nothing like the blogosphere for obtaining requisite braking in the shape of comments and counter-views to keep the train on track.

The case of Wg Cdr VS Tomar vs UOI led to this train of thought getting onto a branch line. Para 25 of judgement of Hon'ble Supreme Court in UOI Vs SR Dhingra and Ors (2008) 2 SCC 209, as quoted in AFT judgement on OA 106/2009, would seem to bar an employer from fixing a retrospective date of implementation of a benefit arbitrarily. Now, though the AFT judgement relates to parity of the pro-rata clause related to pensionary benefits for pre and post VI CPC retirees, it could have wider ramifications.

A lay person's appreciation could be the same principle, as enunciated in the judgement, applies to the implementation of phase I recommendations of AV Singh Committee. It needs to be emphasized here, the application would seem to extend to the entire implementation of phase-I recommendations of AV Singh Committee and not in respect of just the pensionary aspects.

Let us consider this:

*The implementation of phase-I recommendations of AV Singh Committee was retrospective.

*The Govt fixed the retrospective date as 16 Dec 2004.

*This retrospective date divided a homogeneous group into two not only for the benefit of pensions but also in respect of benefits of faster promotions AND consequently higher pay and allowances of those who were in service.

This needs to be considered independently of the issue of parity of pensions of pre AVS-I Lt Col/post AVS-I Col(TS) which I had sought to highlight earlier.(<-----click link to view).

A simple example would be a Captain who had 6 years of service on 01 January 2002. He picked up the promotion to rank of Major wef 16 Dec 2004 when the AVS-I recommendations were implemented in 2005 retrospectively. Whereas another Officer who completed the same service of 6 years on 30 Dec 2004, immediately received the benefit of the promotion, including the higher pay and allowances, also retrospectively. The former would appear to have a case for arrears of a kind different from the Rank Pay arrears that we're all so focussed on.

Now just consider the arrears that could arise for all who continued in service, forgetting for the time being the pensionary issue related to Lt Col/Col(TS). 

Depending on a legally correct retrospective date of implementation, Officers, both serving and retired, could be entitled to arrears of pay and allowances on account of promotions and increments extending back several years from Dec 2004.

This matter needs to be examined in relation to my previous blog post wherein it had been suggested (<-----Click on the link to view) in the choice of the retrospective date by the Govt, there is a strong possibility of a homogeneous group having been sub-divided in two, though the word "set" had been used at that time in place of "homogeneous group". The homogeneous group would have been the one that required to receive the benefits the Govt. itself had decided were required to be given when it formed the AV Singh Committee.

So what should have been the legally correct retrospective date for implementing phase-I recommendations of AV Singh Committee? It would have to be a date that defined a homogeneous group for the purpose of receiving benefits that the Govt intended to bestow.

*It could have been 01 Jan 96 for Officers in service as on that date as it was V CPC which first postulated the requirement of ACP which the AVS-I recommendations were an extension of, even though it had been represented at an AFT that there was no nexus.

*It could have been the date on which the terms of reference were given to the Committee.

*It could have been the date the Committee finalised it's recommendations.

*It could have been the date on which the Govt accepted "in-principle" the recommendations of the Committee.

But the concepts of arbitrariness and sub-division of a homogeneous group seem to apply in retrospective selection of 16 Dec 2004 as the date of implementation for passing on benefits of phase-I recommendations of AV Singh Committee.

Whether or not there are sufficient grounds for individuals and/or groups to contemplate further investigative exploration, followed by attempts at a resolution of the matter, would depend on guided collective reasoning being applied to the subject.

{Edit 1} : This issue re-surfaces every now and then, as it did about four months ago.(<-----Click on the link to view)

{Edit 2} : In order to fully comprehend the manner in which the sub-division of a homogeneous group occurred by selection of the implementation date, here is a brief time line, each date being a point in time where a case exists for a sub-division having taken place, resulting in discrimination:

*Jul 2001 : AV Singh Committee ordered.
*Sometime in July 2002 : Committee recommendations submitted to Govt.
*Sometime in 2003: Govt announced acceptance "in principle" of recommendations.
*December 2004: Govt. Announced acceptance of recommendations.
*March 2015: Implementation notified retrospectively from 16 Dec 2004.

A news item from the era gives a brief outline of the chronology:    

2 comments:

  1. Ref yours "Being focused on OROP is need of the hour. But any Maj or Lt Col who retired with more than 26 years of service before 16 Dec 2004, especially Lt Cols who retired with 26+ years of service between Jul 2001 and 16 Dec 2004, should consider this issue in some detail. https://goo.gl/Gd2o7a "
    There is much weightage in what has been pointed out. All those Lt Col (S) who had commanded the Bns had served on the average of 32 yrs of pensionable service plus Seven years of weightage ie grand total 39 Years against 33Yrs to earn full pension. Many of them had retired & in their retirement were demoted to earn only 13 Yrs of pension. Self falls in the same category. Way out was to consider such cases , one time exception, to full COLs for pension. IT WAS NOT DONE. By the same token earstwhile pre 2004 MAJORS should also have been considered as Lt Cols. Today those Majors are getting only of SIX years of service pension. ISSUE WILL AGAIN COME UNDER SCANNER ON THE IMPLEMENTATION OF "OROP" in what so ever shape it comes. As usual MOD will buldozz its way through..

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    Replies
    1. Sir, though this particular blog post relates to aspects of both pensionary and in-service dues, there is always going to be a negative effect on parities on account of that date of implementation.

      For a holistic view, independent of posts (Bn Cdr etc), we need to imagine a display board with separate counter windows displaying salaries drawn and due in the period Jul 2001 to 16 Dec 2004 for each rank. The due salary would be the figure applicable for those in service on 31 Dec 2004. Then we have to imagine a implementation-date dial that can be rotated anti-clockwise from 16 Dec 2004. As we go closer towards Jul 2001, the salary drawn counters will keep on increasing till they match the salaries drawn figures along side.

      But, that, in effect, is a roll-back scenario for the AVS-I implementation date, with all its legal ifs and buts. It would also involve humongous levels of arrears for everyone, serving or retired, much like the rank pay issue.

      The much simpler aspect of pensions-parity already has strong legal precedents. This I had exclusively covered in this blog post.

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