Of Swallows And Summer

After the passage of a significant portion of the remainder of their lifetimes, veteran Officers who had held regular commissions and retired as Major and Lt Col prior to 16 Dec 2004, implementation date of Phase-I recommendations of AV Singh Committee, can, perhaps begin to see some rays of hope on the distant horizon for the righting of a wrong in having been denied pensionary benefits of the next higher time bound ranks viz., Lt Col and Col (TS) respectively.

The hope comes in the dismissal by Hon'ble Supreme Court of a Civil Appeal (Diary Number 31788/2022) filed by the Union of India against judgment Of Armed Forces Tribunal Chennai in case OA 268 of 2018 that had ruled in favour of  application of Cdr SP Ilangovan (Retired) who had sought pensionary benefits at par with those applicable to veterans retiring in the rank of Capt TS (IN) from 16 Dec 2004.

Judgement of the Armed Forces Tribunal is embedded below:

 

Though the applicant chose, as is apparent from text of the judgment, to stress upon his rank of Cdr (SG) being superior to that of a Cdr (TS), the judgement itself is the voice of rationality itself in recognising the need to accord pensionary benefits of the next higher time-bound ranks to pre 16 Dec 2004 retirees if they had retired with requisite service.

Having been a Lt Col of select grade or time-scale is actually no grounds for discrimination against the latter as Officers with both kinds of Lt Col ranks were given rank of Col (TS) if they continued to serve after 16 Dec 2004 and earned pensions of Col(TS) on their retirement

By dismissing the Civil Appeal of Union of India, the Hon'ble Supreme Court has opened up prospects for rationalising of pensions as ruled in the judgment of the Armed Forces Tribunal. Order of the Hon'ble Supreme Court on the case needs ro be examined under legal advice to be able to understand its applicability.

But then, this is just one hopeful sign. Whether or not it leads to a full resolution is something time alone will tell. 

As to how and when this will translate into relief for pre 16 Dec 2004 pensioners/family pensioners in ranks of Maj and Lt Col, remains to be seen.

Most veterans won't have forgotten the tortuous course of the Rank Pay litigation years ago.

This event, however, does mark an update to concerns expressed on this blog many moons ago. Please read  🠊🠊 This Blog Post

Postscript: This Tweet should address queries, if any on the probable future outcomes:

Anybody’s guess whether respondents will comply with para 17b of judgement of AFT Chennai or go in for a review petition in Hon’ble Supreme Court after dismissal of their leave to appeal. Would it be too much to expect that respondents accept opinion of AFT in para 16 of order? https://t.co/BjF2iuLcKV

— Sunlit_Tweets (@Sunlit_Tweets) October 3, 2024

First Impressions Of The OROP Table

In what should have been a straight-forward matter of implementation, unexplained delays, accompanied by publicly displayed recriminations and complaints, do sometimes give a rather unsettling impression of wheels within wheels, often seeming to spin in opposing directions.

As to why a clearly defined manner of rationalizing pensions has had to go through the cycle of evasions, accusations, public protests and foot-dragging can never be fully clear to most stake holders. The problem has been aggravated for affected veterans by the marked reluctance, on part of the authorities and the representative bodies engaged in steering the matter to some form of conclusion, to share the nature of their deliberations or details of the modalities of implementing OROP.

Of direct concern to stake holders was the precise manner in which OROP pensions needed to be calculated, the actual data on which these calculations were to be based and the manner of validation that needed to be put in place to ensure freedom of the final award from errors and mis-calculations. 

Even now, in-spite of a rather vocal movement over the implementation of OROP, there is precious little clarity on how the definition of OROP has to be adhered to. With that in mind, it is a bit of relief that the "tables" for OROP have now at last appeared. A word of appreciation for the government sraff who must have worked hard to ensure implementation would not exactly be out of place. Most importantly, with the tables having been circulated, those affected have something in black and white to base their queries upon.

There is no place like the beginning. At the risk of repetition, it may be useful to choose to be guided by the official pronouncement on how OROP was to be implemented. To summarize the manner of fixing pensions under OROP, and these are authentic quotes from Govt Of India, MOD, DESW Letter No. 12(1)/2014/D(Pen/Pol)-Part II dated 07November 2015:

* "Pension of past pensioners would be re-fixed on the basis of pension of retirees of calendar year 2013 and the benefit will be effective with effect from 01 July 2014."

* "Pension will be re-fixed for all pensioners on the basis of the average of minimum and maximum pension of personnel retired in 2013 in the same rank and with the same length of service."

We can now approach the implementation details and tables that have been issued vide GOI MOD DESW letter number 12(1)/2014/D(Pen/Pol) - Part II dated 03 February 2016. Firstly, this letter refers to the previous letter dated 07 November 2015 and makes it clear that the tables attached are based on the principles enunciated in the earlier letter.

So, one should safely assume that all figures quoted in the tables are based on averages of minimum and maximum pensions of personnel, with the same qualifying service, who retired in calendar year 2013. All that is required to validate the tables, and to assure oneself that these conform to the principles stated in the letter dated 07 November 2015, are access to basic information as to what service number, name, rank with x years of service who retired in calendar year 2013 had the minimum pension amounting to how much and, also, what service number, name, same rank, also with x years of service also retired on 2013 with the maximum pension amounting to how much.

Simple! One only has to take these minimum and maximum pensions, add them and divide them by 2 and then check that that the OROP pension for x years of QS for that rank is the same as the average. We can then be sure that at least the tables say what the original "principle enunciating" letter of 07 Nov 2015 had, well, enunciated.

Now, and this is very important, every one may not agree with contents of that letter. It may be argued:

• The revision of OROP pensions should not be quinquennial, as the letter says, but be annual or at the very least biennial.

• Some sections may feel the OROP pension should not have been the mean of maximum and minimum of pension in calendar year 2013 for same rank and same service, as the letter has laid down, but should have been equal to the maximum.

• People could disagree with the principle stated in the letter that the calendar year 2013 would be considered for taking into account the maximum and minimum pensions of pensioners who retired in that year, stating the financial year 2013-14 should have been considered. 

• Associations and groups could even argue that the date of implementation be 01 April 2014 as was the original intention stated by the Govt of the day and not 01 July 2014 as has now been implemented . After all, parties in power change but the Govt is Govt. What the Govt has stated once should not be undone merely because another political party has come to power.

Could veterans not argue and protest on those lines? Of course they could and they have, to the point of, if I may put it, contracting laryngitis.

But accepting all the shortcomings or lacunae in the Nov 7 letter, we do, I think, have an entitlement in trusting that, if not true OROP, then at the very least the contents of the 07 Nov 2015 letter would be implemented in letter and spirit and that the implementation instructions and tables issued would do exactly that. We would be entitled to transparency and clarity in the implementation which would have total conformance with what the letter dated 07 Nov 2015 says. We would have the handy means of checking conformance of tallying the averages against figures in the implementation tables as described.

But coming to the actual tables, one is presented with a slightly puzzling situation. There is, of course, no means of verifying the figures presented in the tables. There is no amplifying statement accompanying the table for clarity saying, "Minimum/Maximum pensions for Rank x, Service y years in calendar year 2013 are Amt A/Amt B", or words to that effect. Not that there is any doubt in anyone's mind that the official figures would reflect anything but the actual pensions diligently collated by the agencies assigned the task.

But any stake-holder first looking at the tables could justifiably experience some degree of confusion with the manner in which figures have been reproduced in the table. Let us take Table 1 to start with. It starts with a qualifying service of 0.5 years. The table lists the pension of Lt Col/Lt Col(TS) as well as as pension of Col(TS) as 17233/- for a QS of 0.5 years. Now, no matter how close to the stereotypical description of "military intelligence" an individual be, it should be easy enough to realize that no one is a Lt Col or Lt Col(TS) or Col(TS) at QS of 6 months. Also, if one's memory serves one right, no one gets a pension after a qualifying service of 0.5 years.

Clearly, no one could have retired in calendar year 2013 in the rank of Lt Col(TS), Lt Col or Col(TS) with a qualifying service of 0.5 years. Definitely not with a pension! So how did they get the minimum and maximum pensions for Officers retiring in 2013 with Lt Col(TS), Lt Col, Col(TS) ranks and having a QS of 6 months?

When the letter dated 07 Nov 2015 very clearly stated, and I repeat, "Pension will be re-fixed for all pensioners on the basis of the average of minimum and maximum pension of personnel retired in 2013 in the same rank and with the same length of service", did it leave any room for doubt as to how the OROP pension was to be calculated/fixed/displayed in the tables? When the letter dated 03 Feb 2016 clearly mentions that the tables are for implementing the letter dated 07 Nov 2015, there is even less room for doubt that the letter dated 07 Nov 2015 is a commandment of sorts.

How do we then explain the pensions for Lt Col(TS), Lt Col, Col(TS) ranks at a qualifying service of 0.5 years as mentioned in the table when, obviously, there was no pension, minimum, maximum, or average in calendar year 2013 for a QS of 0.5 years? That figure has not been calculated as per the rule stated in the letter dated 07 Nov 2015. Some other method has been used to establish that figure. Why has the process or method of calculation not been clearly spelt out?

Where is the guarantee the entire table is not based on some manner of calculation other than just getting the "the average of minimum and maximum pension of personnel retired in 2013 in the same rank and with the same length of service"?

Was the calculation based on the pay-bands for different ranks and not on the "the average of minimum and maximum pension of personnel retired in 2013 in the same rank and with the same length of service"? Was it some increment based calculation as in the case of the 7 CPC matrix? Was it some other thumb rule devised by the specialists in accountancy that some veterans are in such awe of, perhaps with good reason?

To further illustrate the ambiguities one can associate with the tables, how is it that the afore-mentioned table mentions the OROP pension of a Lt Col/Lt Col(TS) at QS of 32 years as 34765/- ? Where was this figure obtained from? Did officers with Lt Col/Lt Col(TS) with a QS of 32 years actually retire in "calendar year 2013" based on whose minimum and maximum pensions this OROP pension was calculated? Can the reason for a Lt Col/Lt Col(TS) with 32 years of service, retiring in that rank in "calendar year 2013" be shared with all the older Lt Col retirees whose pensions are to be fixed based on that figure?

Such doubts, in the absence of clarifications, attach to all the tables. It can only enhance trust and understanding if the authorities and those in the forefront of obtaining a just OROP share these basic details with all stake holders.

Parallels Between Efforts Of Sqn Ldr C Singh And Accomplishments Of Maj Dhanapalan

Some years ago, I think it was on a chatroll previously featured on a popular blog, I distinctly recall making a suggestion to the effect that serving and veteran officers had, in all probability, also been denied proper fixation of rank pay at the time of implementation of recommendations of V CPC.

To put this into context, at that time all discussions were centred on the rank pay issue related to IV CPC and how Maj Dhanapalan's valiant battle to right that wrong was about to benefit everyone else. RDOA had already taken up the legal process to extend a similar benefit to thousands of others affected. But in those days, details of the litigation were scarce and it was largely out of conjecture and online discussions that facts and details were beginning to emerge.

In response to my suggestion about a similar wrong-doing at the time of V CPC as well, I'd received a response of "I'm gobsmacked" from another knowledgeable and active member on the blogosphere and the erstwhile chatroll. He later on went to suggest that perhaps Maj Dhanapalan's great act relating to IV CPC was being repeated by me afresh in relation to V CPC. It wasn't, of course, as RDOA had already taken all those aspects into account in their litigation. The subject was clarified in brilliant detail by RDOA in their subsequent posts.

But I have often been troubled by the idea that we have probably missed the chance to acknowledge another "gobsmackingly" valiant effort by Sqn Ldr C Singh who waged a legal battle on a different front that too could have affected thousands of veteran and serving officers. His battle did not end in outright victory as his application was rejected at the level of an Armed Forces Tribunal. But he was the first one, at least to my knowledge, who took up a cause that affected thousands. Just as in the case of Maj Dhanapalan's case, as thousands had just "lumped it", after the IV CPC recommendations were "implemented" to the stake holders' collective disadvantage, and only one individual took up the matter, so did Sqn Ldr C Singh on quite a different issue.

To this day, I have not been able to find out if he filed an appeal in a higher court or if some other litigants had sought to represent on the same matter. But the issues that struck me as relevant in 2010, when I first learnt of this case, remain, to me, more relevant today due to more recent judgments that make the issue of "discrimination" a lot clearer for all stake holders.

The matter that Sqn Ldr C Singh had taken up was the way the phase I recommendations of AV Singh Committee were implemented. It had denied him the retirement-rank and retirement benefits relating to the next higher rank, in his case, of Wing Commander as he had retired prior to the implementation.

But the matter will not cease to hold the interest of all those with a sense of the legal implications the issue could have or ought to have had at the time. In brief, as the matter has been fully covered previously (there is a link in the last paragraph), the following salient matters bear repeating:

• The implementation dated March 2005 was retrospective but from an arbitrary cut-off date (16 Dec 2004).

• The choice of the implementation date divided a homogeneous class into two groups, with one group getting benefits and the other not.

• The choice of implementation date, if rectified (let us call it the "potential rectified-date")  would result in arrears of pay and allowances to all Officers who were serving at the time of the "potential rectified-date", as their subsequent promotions under AVS-I would be deemed to have taken place earlier, as governed by the earlier "potential rectified-date".

• For those who retired in Nov 2004 and earlier, prior to existing implementation date, their retirement ranks would have to be suitably amended to the higher time-bound rank admissible under AVS-I, with effect from the "potential rectified-date". Let us not forget, those who retired in Dec 2004, Jan and Feb 2005 also had to be regularized retrospectively from existing implementation date in the higher rank after the issue of the Govt order for implementation in March 2005.

• The rectification of the implementation date would have a cascading effect on pay, allowances, promotion dates and pensions of all those who served between the "potential rectified-date" and a day prior to actual implementation date.  

But, there is no place like the beginning to follow the matter. Those interested could consider reading the contents (now suitably highlighted and amplified), and following the links in my blog post of 2010.

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 focused 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 link to view ) 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 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: