Monday, October 18, 2010

Discriminatory Aspects In Selection Of Date For Implementation Of Phase I Of The AV Singh Committee Report

{Edited to highlight as well as amplify the "discriminatory" aspect in fixation of the implementation date}

[Heading of Blog Post Changed From "Non Retrospective Implementation Of Phase I Of The AV Singh Committee Report" to the current one in order to highlight the view-point the implementation was retrospective but choice of date was arbitrary that resulted in discrimination] 

It has come to light that a veteran's plea for a retrospective implementation of Phase-I recommendations of AV Singh Committee has been turned down by AFT at Jaipur. But, perhaps, the matter needs to be reviewed in light of the following:

(a) It could be held that a proper and thoroughly researched presentation needs to be made to establish that the AV Singh Committee does indeed have a link with the recommendations of V CPC. It should follow from a linkage thus established that the personnel who were governed by recommendations of V CPC ought also to receive benefits of Phase I of AV Singh Committee report.

(b)   In any case, the discrimination angle can be perceived from the following considerations:
  • The date the Government formally acknowledged that Officers were suffering from stagnation, by issuing formal orders convening the committee to end that stagnation, a "set" of Officers, who were serving as on that date, came into being. {Edit: In other words the Govt. defined a homogeneous class of Officers serving on that date who were suffering from stagnation in their careers}.
  •  When, several years later, the Government arbitrarily fixed the date of implementation as 16 December 2004, {Edit: That too retrospectively through an order issued in 2005}, the Government created two "sub-sets" out of the main "set" ibid. {Edit: i.e. the homogeneous class defined previously was divided into two different groups}.
  • The first "sub-set" consisted of those Officers who retired prior to the date of implementation and who did not get relief from stagnation. The second "sub-set" was composed of those Officers who retired after the date of implementation announced by the Government. Officers of the second sub-set received relief from stagnation.
  • Therefore, as the implementation was retrospective from an arbitrary date but not retrospective from the date a homogeneous class was defined, the benefits from the recommendations were applied in a discriminatory manner in respect of the two sub-sets {Edit: i.e. the two groups created from the same class}.
(c) A further amplification of the discriminatory aspect can be obtained from the simple consideration that an Officer with a service of a fixed number of years in the same cadre would have retired as Lt Col (TS) or Lt Col {and their equivalent ranks in the Air Force and Navy} if by luck his date of superannuation was on 30 Nov 2004. Another Officer with the same service would have retired minimally as Col (TS) if the date of his superannuation was on 31 Dec 2004. Therefore the former stands discriminated against on just the basis of his date of birth, which determines the date of superannuation.

(d) Does just the fact that the Government fixed the date as 16 December 2004 make the implementation "correct"? Why did the government not fix the date as, say, 30 September 2004, or retrospectively from the date in 2003 when the recommendations had been agreed to in principle by the Government? What indeed was the rationale for choosing 16 December 2004 and creating the two afore-mentioned subsets? The word "arbitrary" readily springs to mind on a mere consideration of the manner in which the implementation date was chosen. 

(e) When the matter is in a court of law, it's the correctness of the fixation of that date which needs to be reviewed. Surely, there would be legal concepts that would cover and support aspects of fairness and equity that are easily discernible in the matter. It appears there's a need for a cogent representation of the matter.

(f) The order of the Armed forces Tribunal has now been highlighted (highlights in the order may not be visible on a mobile device, in which case the order can be viewed on a PC) as can be (please click link ----> seen here.
  • The case was self-argued, as highlighted in the AFT order in red. That could have worked against a proper presentation of the matter.
  • The learned opposing counsel had argued, as highlighted in the AFT order in grey, that there was no linkage between the V CPC and the AV Singh Committee. This could need a RTI application to establish facts to the contrary.
  • The argument advanced by opposing learned counsel, accepted by the Tribunal, all highlighted in yellow in the AFT order, does in fact establish the order was issued with retrospective effect from an arbitrary date that divided a homogeneous group into two, one sub group getting benefits and the other not. This defines an act of discrimination in the most fundamental sense.
  • As to what transpired between the submission of the report and it's final clearance, a case ought to be made out for ensuring the Officers who lost out on account of the fixation of the date of implementation are offered some protection against loss caused by processing delays at the level of Service Headquarters and the Ministries involved.
{Edit 1}: Specific implications of the implementation, as related to pensionary benefits, were covered in a subsequent (please click link) blog-post.

{Edit  2} : Relevance in context of other litigation was highlighted in another blog post.

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