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

Measuring Possible Outcomes Of The OROP Litigation : Officer Veterans

 

What follows would be a repeat of several ideas recorded on the matter in the past. But considering the stage of finality reached in litigation in the matter, now that the petition has finally been represented, with a truly commendable and heroic effort on part of the petitioners, the judgment having been reserved by the Hon’ble Supreme Court, it may not hurt to put on record a brief gist as it would not be out of place for armed forces veterans in all ranks to have some yardsticks for the outcome they expect.

One main issue with the coverage of the case on social media or blogs has been the lack of full details of all the issues sought to be addressed in the petition. The broad points are known, of course, that:

• Implementation of OROP for older retirees  should have been from the same year (in year 2013 or 2014) that the pensions of current retirees with the same rank and the same years of service had been taken into account.

• OROP for older retirees should have been fixed at the maximum pension of retirees with the same rank and same years of service  (2013 or 2014) and not at the average of minimum and maximum of pensions.

• Revision of OROP should have been done annually and not at intervals of five years.

• The frequently quoted phrase that OROP should not be “One Rank Many Pensions”.

What is not very clear at present is whether or not the petition also sought to get a resolution of other glaring anomalies of OROP implementation. It would also not be wise to speculate whether all dimensions of parity and equity in OROP implementation would be taken into account by the Hon’ble Supreme Court if these did not form part of the Petition. 

In order to restrict any view on the subject to manageable dimensions, it may be best to take the example of a smaller subset of the veteran pensioners where uniform concepts can be applied in respect of the degree of relief that could be justifiably anticipated. 

OROP for Officer veterans can be a case in point. 

Here, a review of the concept of equity and parity is essential. The OROP abbreviation needs an application of mind. The implication of “One Rank”, that is talked and written about so much, needs to be understood fully. I had mentioned this in previous posts, in Tweets as well as in direct messages. It may be useful to highlight the same briefly even as we wait for the judgment. 

Essentially, OROP needs to deliver parity between deferred wage of older ESM pensioners with the deferred wage of service personnel who have rendered the same amount of service and retired in a benchmark/base year (presently the year 2013). 

That would sync with the well established concept of “Equal Remuneration For Equal Work”. However, there is a need for rationally establishing logical parameters that would define “same amount of service” and “equal work”. 

“One Rank” when combined with “Equal Service (in years)” is a very reasonable basis for defining “Same Service” or “Equal Work” and for forming a basis for delivering pension parity in most cases.  

In the case of a Col (select), for example, the common parameters would be:

• The type of commission (eg Regular Commission). 

• The categorisation for pensions conventionally followed  based on Arm/Branch/Service [such as in the common table for "Regular Commissioned Officers Of Army And Equivalent Ranks In Navy And Air Force (Other Than Officers Of AMC/ADC/RVC, EC/SSC, MNS)].

• The fact of having been promoted  to select rank of Col. 

• The qualifying service in number of years. 

In other words, OROP of a Col(select) who retired with 25 years of service before the “benchmark/base year” (presently 2013) date of implementation viz., 01 Jul 2014, needs to be equal to the pension (the highest and not the average, as per the petition) drawn by a Col (select) with equal service retiring in the benchmark year. The same logic would appear to hold for higher selection based Officer ranks of Brigadier, Maj Gen and Lt Gen. 

Therefore, as all select Officer ranks in the benchmark/base year (presently 2013) have a one-to-one equivalence with select ranks of veteran Officers who had retired prior to the benchmark year, there would not be much of a problem in fixing OROP for these veteran Officers. 

The problem arises, and it is a real one, when OROP is considered for ranks of Lt Col, Maj, Capt. These are now time-bound ranks and as these ranks are obtained on the basis of qualifying service and not by the common factor of promotion by selection, the actual "Rank" has to take a backseat relative to other factors required for determining what constitutes "equal work" or "same service". 

Attributes of time-bound Officer ranks have changed over time. The concept has found resonance in several sections of the blogosphere that a "Major" rank of yesteryear is not the same as the "Major" rank of 2013. There was a time Major rank would be attained at a service of 14 years. In the benchmark/base year (presently 2013), Major rank is attained at a QS of 6 years. In the benchmark year Officers progress on time-bound basis to rank of Lt Col on completing a service of 11 years. How can the OROP of older pensioners in that old rank of "Major" be fixed based on "One Rank"? How can these two Major ranks, with different attributes, be considered "One Rank"? These are disparate in terms of their attributes. 

The issue of "same or equal service" can't be addressed by spellings of the rank alone. The equivalence of two measures of a commodity can't be established if these are weighed on two different scales which both display the weight as "5" if the first measure is weighed in a scale that reads in Pounds Avoirdupois and the second one on a scale that reads in Kilograms. 

Some far from enlightened reasoning has surfaced in recorded "wisdom", as reflected in official correspondence/Minutes of Meetings obtained through RTI by veterans actively engaged on ESM issues. In some circles, it has been actually stated that benefits in terms of enhanced remuneration resulting from cadre restructuring need not be passed on to older retirees. 

Just let us consider this for a moment, if an Officer with a regular commission retired in a time-bound rank at a QS of 20 years, in benchmark year of 2013, with a pension of Rs.31305/-, then would there be any justification in fixing the pension at Rs.21530/- of an older, pre Dec 2004, Officer veteran, with a regular commission, who also retired in a time-bound rank at a QS of 20 years? Yet, OROP has been fixed in just that fashion, ignoring the "same service" of both veterans as well as completely disregarding the fact that if the former retired in the old rank of Major and the latter in the new time-bound rank of Lt Col, that forms no justifiable basis for fixing the OROP at such different levels. 

The same considerations apply to OROP for older pensioners in rank of Lt Col who had completed 26 years of service. Nowadays, as in the base year of 2013, officers progress on time bound basis to rank of Col(TS). 

I have seen this question repeated across several online discussions,  blogs and twitter accounts, in different forms, and fully understand the relevance as to the pension of which Major retiree of base year 2013 with service with QS more than 20 years was used for determining OROP of older Maj pensioners? Why were these Maj retirees of 2013 not Lt Col? The same applies to pensions of Lt Col with more than 26 years of service. 

That is why, the following blog posts may still be relevant:

• The need to recognise that parity of pensions in OROP can not be limited by the words "One Rank" as these may not really be applicable to time bound ranks. ➡  https://bit.ly/3nfEvv0

• For veterans in time-bound Officer ranks, there is a need for notionally progressing to a level of remuneration based on the distinct defining parameters that define the quantum of Service they have rendered, viz., the nature of their Commission, the grouping associated with pension fixation and their QS at retirement. Rank can only be a secondary determinant of OROP in their case. ➡ https://bit.ly/3aXotAi

Whether or not these issues found a place in the petition or will receive a consideration by Hon'ble Supreme Court would only be revealed when the judgment is available

{Addendum: They didn’t 😶}

 

The Case For Lt Col Pension For Old Veterans Who Retired As Major (updated with emphasis)

(Readers are requested to consider using the “share buttons” at the end of this and other blog-posts in case they feel sharing of the contents could be of interest to others affected. Contents of the post may change in case of new developments or articulation of others’ views) 

If it had not been for a chance viewing of another blog some time ago, with a blog-post in it on a different topic and some comments/replies, this particular development would have been missed altogether.

The development is of the negative kind. Some may say that the curse of 16 December 2004 has struck again. But, before those affected give up on the matter as a lost cause, they could consider reviewing some past  opinions on this specific  issue and matters intimately related to it. Perhaps, what is required is a wider point of view rather than a narrow focus on just one rank.

The development relates to a petition filed by veterans who had retired in the rank of Major with more than 20 years of service before that date. The petition was dismissed by the Hon'ble Supreme Court of India. The petition had sought parity of the petitioners' pension with pension of Lt Col veterans who retired after 16 Dec 2004 with the same QS as the petitioners.

A copy of the judgement can be viewed on the website of the Hon'ble Supreme Court with the link placed at the end of this blog-post.

It is not known what the precise submissions of the petitioners were. Text of the judgement states the petition to be,"...for grant of pensionary and other benefits at par with the benefits which accrue as a consequence of the communication dated 21 December 2004 of the Government of India in the Ministry of Defence" and, I quote again, "....to grant pension equal to the pension of Lt. Col. by applying the principle of “equal pension for equal work” to the petitioners under the provisions of Constitution of India".

The "communication" referred to is, most probably, the one that contained the sanction for implementing, with effect from 16 December 2004, Phase-I recommendations of AV Singh Committee. In previous tribunal orders and court judgements, policy letters of year 2005 had been mentioned as the ones implementing said recommendations retrospectively from 16 Dec 2004. Till such documents are accessed, it would be imprudent to hold forth on the timeline of that "implementation".

The text of the judgement, quoted above, poses a few questions:

• Did sanction for implementing phase-I recommendations of AV Singh Committee specifically mention that older pensioners in time-bound ranks would not be entitled to parity of their pensions with those fixed for officers retiring after 16 December 2004 with the same type of commission and equal service?

• Did the petition actually seek "benefits" flowing out of the letter implementing recommendations of AVS Committee wef 16 Dec 2004 or did it seek parity with benefits of the post 16 Dec 2004 rank of Lt Col? 

The judgement goes on further to state, "The petitioners are former personnel of the Indian Army who retired prior to 16 December 2004. Since the orders of the Union of India have taken effect from 16 December 2004, ex facie, they have no application to the petitioners". The most important issue that arises is, the very fact that the GOI orders did not apply to pre 16 Dec 2004 retirees is what constitutes discrimination against the older retirees, especially when their deferred wage (pension) suffers in terms of parity and equity as compared to post 16 Dec 2004 retirees given the benefit of a higher time-bound rank from that arbitrarily fixed cut-off date. The following issues can be considered:

• Is it a matter of "application" per se? Did the petitioners seek that they be promoted retrospectively as per the 2004 order and that too at stages of their former career corresponding to lower QS for promotion than they had actually been promoted at and to be paid arrears on account of enhanced pay and earlier promotions for the years they had been service?

• Wasn’t  their petition meant to seek parity of their deferred wage, to be paid in the period after 16 Dec 2004 with the deferred wage of similarly placed Officers who retired after 16 Dec 2004?

• The petitioners had served for 20 years or more as commissioned Officers. Their pension is a deferred wage based on the service they had rendered which can truly be measured only by consideration of their cadre, nature of commission and their qualifying service combined. Their ranks did not have the same attributes after 16 Dec 2004 and, therefore, can the rank be used as measure of entitlement to the deferred wage after 16 Dec 2004 or for establishing parity thereof?

• Can the quantum of their entitlement of their deferred wage vary depending on whether they retired before or after 16 Dec 2004 and can they be given a deferred wage after 16 Dec 2004 which is lower than that of similarly placed Officers retiring with the same QS in a time-bound rank with changed attributes post 16 Dec 2004?

Most of these issues have been touched upon in the past. Please see the blog-post linked to at the end of this post. But, briefly, there is an urgent need for all informed interlocutors on these matters to consider there are interconnected issues involved, not just the pension of veterans in Major rank. Some important aspects of the topic, that could be given a thought for the future course of this issue, are as follows:

* This may be highlighted once again, that regardless of the specific contents of the petition in question, the principle of parity of pensions for older Maj retirees would have been applicable from whatever retrospective date the recommendations of AV Singh Committee had been implemented. For this pension parity issue, the specificity of that date is immaterial except for the consideration that a disparity exists across the date between pensions of two veterans who had the same type of Commission and had the same QS and retired in time-bound ranks.

* However, the selection of the date becomes much more relevant for all the Officers who were in service on the specific date the Government formed the Committee in 2001 when their status got official recognition as members of a uniform group of similarly placed Officers, all suffering from stagnation in their cadre. Is it not true that the benefit of relief from stagnation was not equally applied when the date of implementation, of recommendations of the Committee, was chosen as 16 Dec 2004? 

* Consider the case of a serving Major with 13 years of service in 2001, when the Committee was formed in recognition of the fact that the serving Major formed part of a homogeneous group suffering from career stagnation. He had to wait till 16 Dec 2004 to pick up the new time bound rank of Lt Col when he attained a QS of 16 years, stagnating for 3 years in the pay-scale without getting the higher pay and allowances, whereas his junior with just 13 years of service as on 16 Dec 2004 picked up the same rank without any delay, suffering no stagnation in the process.

 

* Did these Officers, who were in service at the time of formation of AV Singh Committee in 2001, receive equitable adjustment of their ranks, in-service pay and/allowances as a result of the implementation of AV Singh Committee recommendations  even if they continued to serve beyond 16 Dec 2004? But if the Officers serving in 2001 had the bad luck to retire before 16 Dec 2004, then they missed even parity in terms of pension vis-a-vis Officers with the same type of Commission and equal QS retiring after 16 Dec 2004. 

* The act of selection of 16 Dec 2004 as the date for implementing phase-I recommendations of AVS Committee was, by itself, discriminatory. The act of selection of that date discriminated not only against many Officer veterans who had been in service when the committee was formed but superannuated before the implementation date but it (the selection of that date) also discriminated against Officers who continued to serve beyond that date. In-service earnings (pay and allowances) of both these sub-sets suffered disparities on account of just selection of that date. The sub-set of Officers who retired prior to date of implementation lost out in terms of parity of their pension as well.

* Regardless of the above, if pension is a deferred wage and the only rational measure of service rendered in the case of time-bound ranks are the type of commission and length of service, then, for equitable parity, pensions for time-bound ranks with  the same type of commission and qualifying service would need to be the same across that date for an equitable and fair resolution. Let us not. forget, ranks are not constant standards across the cut-off date and do not serve as a just measure for ensuring parity of deferred wages as a pre 16 Dec 2004 Major or Lt Col rank is not the same as the post 16 Dec 2004 Major or Lt Col rank. The only reliable and logical basis for comparing service rendered, in the case of time-bound ranks, is the type of commission and the QS of retirees before and after the cut off date.

To put the whole matter in a nutshell, unless the act of selecting 16 Dec 2004, as the date of implementation of Phase I recommendations of AV Singh Committee, is established as being arbitrary and discriminatory, justice in the matter will continue to elude those discriminated against.

Links to Connected Material: (Please click/tap to access 👉): 

 ➡️    Pension Anomaly Resulting From AVS-I

 ➡️   Order of Hon'ble Supreme Court On Writ Petition (Civil) 942/2019

 ➡️   Retirement Rank vis-a-vis Rank For Pension

Contempt Petition On Rank Pay Case _ Epilogue

On 18 August 2015, the final hearing took place at the Hon'ble Supreme Court of India in Contempt Petition 328 /2013.

On the RDOA blog, there was a terse announcement in a blog post dated August 18 2015, stating in relation to the disposal, "Court did not accept our plea for change of Pay scales of 4th CPC & 5th CPC, The case has been finally disposed off". That blog post subsequently disappeared from public view, the quote having been made verbatim from a cached copy of the blog post when it had been posted freshly on 18 Aug 2015. {Edit} Another RDOA blog post finally appeared on 25 August 2015

There is still a blog post dated 18 August 2015 on the Aerial View blog with comments, mostly "on topic".

While searching for material related to the case on Twitter, I came across tweets from learned counsel of RDOA and I have linked those here:

Recently SC disposed of our Contempt Petition with liberty to approach appropriate authority for remaining issues

— Gp Capt. K.S. Bhati (@Gp_Capt_Bhati) August 28, 2015

We are planing further course for getting relief for Min & Max fixation & also6th CPC benefit .Ref Rank pay case

— Gp Capt. K.S. Bhati (@Gp_Capt_Bhati) August 28, 2015

Order of the Hon'ble Supreme Court too is brief and can be viewed here



The foregoing constitutes mere collation. What is of the essence is where do affected parties go from here? Perhaps the answer to that would lie in examining these queries linked to the case and trying to find answers:

*What exactly are the "remaining issues" referred to in one of the tweets linked to above? Are these the issues listed in the rejoinder affidavit filed by RDOA in 2014?

*Are we to surmise from the RDOA blog-post of 25 August 2015 and the second of the tweets, linked to above, that only the issue of revision of scales and fixation in the same now remains the area of concern for RDOA?

*Would the "further course" involve litigation or would that be preceded by some sort of representation by affected individuals or collectively by RDOA through proper official channels?

*Whether, in the context of the judgement, it is to be understood that though the basis for linking the "other issues" to the rank-pay litigation may not have been agreed to, the justification and rationale for resolving these still exist?

RDOA have done a herculean job, as I never tire of mentioning on various platforms, but communicating further directions for all stake-holders would only serve to strengthen the process on related matters. In this regard, if RDOA choose to share information in a blog post or even the minutes of the AGM, that was planned to be conducted on 12 September 2015, perhaps affected veteran Officers would have greater clarity on the next steps they could take under the auspices of RDOA.

Expected Hearing Of A Case With A Possible Bearing On OROP

In their order dated 16 Feb 2015, in the case Civil Appeal No(s). 2966/2011, the Hon'ble Supreme Court of India had "...granted three months' time finally to work out the modalities for implementation of the one rank-one pension..." to the Government of India. The next hearing for the case is likely to be on 28 Sep 2015. How the case relates to OROP in general, is for legal experts to outline for the enlightenment of others. But in view of the recent "announcement", the court order could have some effect on, or relationship with, the rolling out of OROP.

Briefly:

*Does the outcome of the case apply only to the respondents or would it imply implementation of OROP for all?

*Does the announcement of OROP on 05 Sep 2015 meet the requirement of the Hon'ble Supreme Court for the appellants to "work out the modalities for implementation" or would it require the issue, by due date (which has already expired) of the notification and issue of Government orders for implementing OROP?

*What if the Hon'ble Supreme Court finds that non-issue of the implementation order constitutes "contempt"? Would a contempt order then be issued?

*Whether the order leads to implementation of OROP or counsel for appellants submits that OROP has been implemented as directed by the Hon'ble Supreme Court, would it have any bearing on the various claims to credit for having implemented OROP or for having obtained its implementation, considering that it would be seen to have resulted on account of a judgment of the Hon'ble Supreme Court?

Though the ongoing dialog on OROP and its implementation would be central to the collective interest and focus of all stake holders, there is just a chance the hearing and judgment could prove to be relevant as well.

Minimum Guaranteed Pension As Related To The Rank Pay Matter

For some time the matter of the minimum guaranteed pension has been in the news, the latest a recent update being on the Aerial View blog. {Edit: The most recent update is accessible with the link at the bottom of this blog post}.

Briefly, the issue is related to the date of implementation of revised "Minimum Guaranteed Pension" for pre 2006 retirees, which was fixed as 26 24 September 2012 vide Govt. Of India, Ministry of Defence letter number 1(11)/2012-D(Pen/Policy) dated 17 January 2013, a copy of which was circulated with PCDA Circular 500 of the same date.

As stated in the Aerial View blog post, referred to at the first para of this blog post, the litigation for re-fixation of date of implementation as 01 Jan 2006, in place of 26 24 September 2012, is nearing it's final phase, the hearing now being stated to be scheduled on 13 Jan 2015 {Edit 1: Update ; Now awaiting a fresh listing, perhaps in February 2015 Judgement now having been delivered on 17 March 2015}.

The case had to be taken up in the highest court of the land, at great expense and with herculean effort. Therefore it is all the more pertinent, for direct stake-holders and all the others affected, to review some of the attached issues which affect or are impinged upon by the likely positive outcome of the case. To start with, queries begin to form in one's mind as follows:

• The case apparently, and the word "apparently" is important in this context, is concerned with just the date of implementation of the "Minimum Guaranteed Pension". Since it is a litigation in the Hon'ble Supreme Court of India, was it also intended to include the effect on the quantum of "Minimum Guaranteed Pension" as a result of the implementation of the rank pay revisions? Would the tables issued with the GOI letter of 17 Jan 2013 ibid now stand revised?

• Since the rank pay matter concerns retired Officers of the armed forces, would the litigation also deal with the important and, so far, un-addressed, issues of parity of "Minimum Guaranteed Pensions" of Majors having 21 years of service with the pensions of Lt Col and "Minimum Guaranteed Pension" of Maj and Lt Col with more than 26 years of service with the pension applicable to Col(TS) of equal service?

• While implementing the Hon'ble Supreme Court judgement on rank pay, GOI, MOD vide letter number 34(6)2012-D(Pay/Services) dated 27 December 2012, had also ordered payment with effect from 01 Jan 2006, of interest on arrears, including those of pension, resulting from the partial implementation of the rank-pay judgement. Would the litigation also aim to obtain a more just and equitable compensation by way of interest for arrears not ascribable to the rank pay case but applicable only to those arising out of the "Minimum Guaranteed Pension" matter? 

Whatever be the scope of this litigation, it's outcome would be of interest to all veterans and yet another reason to feel proud of the direct litigants and the inspiring role of RDOA in coordinating the whole issue. {Edit 2} : The order of Hon'ble Supreme Court, delivered on 17 March 2015, is accessible by following this link.

{Edit 3} For the most recent update, please use the link to the blog Indian Military: Service Benefits And Issues .

{Edit 4} For the connected issue of pension parities between ESMs that retired in years gone by and those who retire in the present, the blog post on 'Variable Retirement Rank' may also be relevant.

The "As On" vs "With Effect From" Matter, Again

With the issue of the Government Corrigendum dated 24 July 2014, there had been some palpable signs of slow movement, granted it was but a fraction of what is actually required but a movement nevertheless, towards an incremental improvement in the Rank Pay arrears scenario.

The reversal of deduction of rank-pay at the time of calculating revised emoluments for V CPC is a step forward and would address an anomaly that had come to light at a time when it was not even a blip on most radars, which were mostly fixated on tracking the IV CPC pay fixation.

But it is the language used in two recent official communications, one from Integrated Headquarters Ministry Of Defence (N) Directorate Of Pay And Allowances (Pay Section)  and another from Dte Of AV at Air HQ, that has served to highlight the efficacy, or the lack of it, of substitition of the "As On" in the original GOI implementation letter dated 27 December 2012 with "With Effect From" vide the corrigendum date 24 July 2014.

The letter issued through channels of Indian Navy states how, to take an example, a Lt Cdr, lets call him Lt Cdr "A", would not stand to gain by non-deduction of rank pay at V CPC if his un-revised basic pay "as on" 01 Jan 96 was below Rs.4050/- pm. The first thing that comes to mind is, what is meant by "unrevised basic pay"? Common sense would appear to suggest this is the value of the pre V CPC basic pay duly revised after implementation of Govt of India letter dated 27 December 2012. So it should be, essentially, the value of the "revised un-revised BP" at the time of implementation of V CPC. In other words, this should be the IV CPC basic pay for December 1995 as given in the "Due And Drawn Statement" issued by pay disbursement authorities issued in compliance of GOI letter dated 27 December 2012.

A simple calculation would reveal, that at the one-step lower IV CPC basic pay stage for Lt Cdr "A" in the example, viz, Rs. 3900/- pm, the revised emoluments for V CPC would work out, now without deduction of rank pay as ordered vide the GOI Corrigendum dated July 2014, as follows

[3900(Unrevised IV CPC BP but its revised value after implementation of GOI letter dated 27 December 2012) +600(RP)+550(IR)+4950(DA)+0.4{3900+600}] = 11440/-pm.

This figure is lower than the starting pay for Lt Cdrs in the revised V CPC pay scale of 11600-325-14850. So the Lt Cdr, whose "revised un-revised" IV CPC BP "as on" 01 Jan 96 was 3900/-, would still have his revised V CPC BP fixed at 11600/- in terms of the letters issued through the Naval HQs and Air HQs channels, presently resulting in "nil" arrears for him.

Let us examine this from another angle. Let us assume, another Lt Cdr "B" with "x" years of service was drawing 4500/- (after revision vide GOI letter dated 27 Dec 2012) in Dec 1995. His V CPC revised emoluments would be as follows

[4500(Unrevised IV CPC BP but its revised value after implementation of GOI letter dated 27 December 2012) +600(RP)+610(IR)+5202(DA)+0.4{4500+600}] = 12952/-pm.

The revised V CPC basic pay of this Lt Cdr for January 1996 would now, after reversing the V CPC rank pay deduction as ordered vide the GOI Corrigendum dated July 2014, be fixed at Rs. 13225/- in the V CPC pay scale for Lt Cdrs.

Now the Lt Cdr "A" in the previous example, whose BP was fixed at the starting point of Rs. 11600/-, would attain "x" years of service after 2 years ('transit time' from IV CPC basic of 3900/- to 4500/- in terms of the old scale). The thing to consider is would his basic pay at "x" years of service also equal that of Lt Cdr "B" when the latter had completed "x" years of service in January 1996?

This manner of BP parity appears tied to the "as on" vis-a-vis "with effect from" issue as well as the dubious concept of amending the basic pay without touching the basic pay scales. The whole overview of the cited case would change if the rank pay stages in the IV CPC running pay-scale and the discrete pay-scales of V CPC get reviewed for rationalising the pay-scales themselves after correcting for non-transparent reductions on account of Rank Pay while formulating the pay scales.

The above example is a hypothetical one. In reality, the Lt Cdr "B" of the example would have minimally been given the time scale rank of Cdr around the time of V CPC and Lt Cdr "A" would have followed suit, unless promoted by selection. So finding actual equivalent BPs at "x" years of service may not be an easy task.

Given the complexities involved, it may be prudent, as well "politically correct", for every one connected with the issue to steer clear of contentious terminologies of the "as on" variety while making out cases or issuing implementation directives. Given past experiences, inadvertent use of words or phrases, even if made in a valid manner in some specific context, poses a risk of misuse and manipulation by certain structures within the administration which, in any case, do not need unwitting assistance in their area of expertise and specialisation, viz., "re-phraseology", from the adversely impacted sections.

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:    

The Continuing Debate Over The IV CPC Pay-Scale

Calculations of arrears of pay on account of the IV CPC rank-pay issue have been, mostly, completed by the organisations responsible for disbursement of pay. The arrears have started trickling into the bank accounts of veterans. But questions and doubts remain about the correctness of the calculations done and the manner in which the judgement of the Hon'ble Supreme Court was interpreted by the government.

 

The queries heard most often are:

• How will the judgement affect those who were not in service as on 01 Jan 86 and joined later?
• Will the judgement have any bearing on pensions of those who retired before 01 Jan 86?
• How will the basic pay be affected in the case of those Officers who got promoted to the rank of Captain after 01 Jan 86?

There is a common basis for such queries to have arisen. Paras 6, 7 and 8 of the Govt. of India letter dated 27th December 2012 form the very foundation of  these issues. The letter mentions only SAI 1/s/87 and is about refixation, and only refixation, of basic pay on 01 Jan 86, based on an outline, as included in the letter, of  the interpretation by the Govt of the judgement.

 

Serving officers and veterans need to look beyond the SAI and pose questions about the running pay scale introduced at the time of IV CPC. It is a classic chicken and egg question. Was the payscale, with its rank stages, based on the manner of calculation of emoluments or were the calculated emoluments fixed into the running pay-scale, the latter having come into existence by the decree of some higher power that governs our universe?

 

The detailed report of IV CPC would record how the running pay-scale was established. A couple of direct queries could begin to offer some clarity:

• How is it that as per the calculation done for a Maj {as cited in the PCDA(O) example}, the revised emoluments came to 3555/- but the starting stage for the rank of Maj was fixed at 3400/- in the pay-scale?
• What was the basis for defining the pay-scale and determing the rank stages? Which part, chapter and para of the IV CPC report records the basis of formulation of this pay-scale?
• Does the IV CPC report specify exactly how the revised emoluments were to be calculated as on 01 Jan 86? If so, in which part of the report?
• Did the litigation on the matter involve specific arguements for a change in the running pay-scale or did the judgement imply the running pay-scale would have to be altered for "giving" rank pay, retrospectively?
 

In case pensions of pre 01 Jan 86 retirees, basic pay of those commissioned, or promoted to Capt, post 01 Jan 86 are to be revised upwards, there would appear to be a need for a revision of the running pay-scale itself.
 

 

If commonality of principles is a consideration, the same treatment needs to be applied to the pay-scales at the time of V CPC as well. But more important than the issue of pay-scales at the time of V CPC would be a re-look at how a deduction of RP can ever be justified at the time of V CPC when it's deduction at the time of IV CPC has just been reversed by the Govt? But that's a different topic and can be looked at separately.

 

This follows from a previous blog post.    

 

 

 

Guesstimates Of Rank Pay Arrears

Now that the pay disbursement authorities have started implementing their interpretation of the Govt. letter that, in-turn, interpreted the judgement of the Hon'ble Supreme Court on the Rank Pay case, there would be deviations from others' interpretations of the judgement or of the Government interpretations thereof, not to forget, from countless pipe-dreams and wishes of die-hard optimists who must have expected a bonanza of some description.

 

So, till the actual methodology of working out arrears becomes available in the public domain, one can but grope in the dark to snatch some reasonable estimate of what sort of inflows would result.

 

The one thing that appears fairly clear at present from the Govt. letter is that there's a strong possibility the re-working of emoluments would be guided by the following restrictions:

 

• The re-fixation of BP, in the payscale, as on 01 Jan 86 would take place after reversal of the deduction, made at the time of IV CPC, of an amount equal to the rank pay applicable to the rank held by an Officer as on 01 Jan 86 eg the basic pay of a Maj fixed at 3400/- as on 01 Jan 86 could be refixed at Rs. 4050/- wef 01 Jan 86. Or, it might be as low as Rs. 3600/-.

• Subsequent promotions would, probably, not entail a jump in BP equivalent to the rank pay of the next rank, though of course the higher rank pay would be applicable on promotion.
 
• There would be no revision of the deductions of rank pay made at the time of V CPC. However, as the BP for Dec 95 would be higher due to revision of basic as on 01 Jan 86, the BP wef 01 Jan 96 might have to be refixed upwards by an amount equivalent to one increment in the V CPC scales.

However, it is not certain how the disbursement and audit agencies might choose, unless they have already chosen, to further restrict the dues of those affected. Just taking the bare minimal case of the Maj stated above, ideally, the arrears, for just the duration of IV CPC, ought to be on the lines estimated as follows:

 

Original BP Fixed For Maj On 01 Jan 86 By IV CPC	3400.00
Original BP Fixed For Maj For Dec 95 Due Initial Fixation By IV CPC	4650.00
Assumed BP Refixed Vide GOI  Ltr For Maj As On 01 Jan 86	3600.00	4050.00
Assumed Revised BP For Dec 95 Due Implementation Of GOI Ltr	4800.00 4950.00	5100.00
Arrears For BP And DA For IV CPC	43926.00	127137.00
Intt @ 6% For 7 yrs	18448.92	53397.54
If the major in the above example is lucky and/or wishes to be optimistic and assumes upward revision of BP for Dec 95 will result in re-fixation of BP for V CPC, then the following arrears could be “hoped for” as well
Original BP Fixed For Same Maj On 01 Jan 96 By V CPC	13500.00
Assumed BP Refixed Vide GOI  Ltr As On 01 Jan 96	13900.00
Assumed BP Revised As On DOR Due Implementation Of GOI Ltr	17100.00 (without any stagnation increment at end of scale)
V CPC Arrears For BP And DA As On DOR	97926.00 54000/-
Intt @ 6% For 7 yrs	41128.92 22680/-

{Edit: Arrears for V CPC have been amended as the original figures of  97296/- &

  41128.92/- represent the total arrears and intt. for both IV and V CPCs}

One does come across opinions that tend to dwell on the means that might be deployed to "short-change" the affected parties. In that line of reasoning, there may well be an attempt to restrict the enhanced revised BP of IV CPC to a level below the starting stage of the next rank in the IV CPC scale. An example could be that at, or after, the initial refixation on 01 Jan 86, the BP of a Maj would ultimately stagnate at 3800/- till the date he was promoted to Lt Col. In other words, in the example in the table above, the refixed BP of the Major would start at 3800/- and not Rs.4050/- even if the revised calculation yielded the latter figure. The BP would become 3900/- only on the date of promotion to Lt Col. This is a fairly dark and pessimistic view but it does bring us back to those increments vs scale-revision considerations of the past.