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.

From Contours To Vague Outlines

It has been more than one year since an attempt was made by me to list out the various possible shapes of this entity called OROP, given all the options floating about in the air at the time. It was a kind of an abstract, admittedly half-baked, exercise in imagineering.

A lot of water has flown under the OROP bridge since then. It would be uncharitable to say that we are nowhere closer to knowing what OROP will be after all the recent sloganeering, fasting and shouting coupled with some very true to norm lack-of-clarity from the powers that be.

We do know a few things now that were shrouded in mists of uncertainty back then. These are:

*Under OROP, pensions of older retirees would be bench-marked to "average of minimum and maximum pension in 2013".

*The pensions would be reviewed after five years.

Did I mention a "few things"? Well, no, sorry, two actually, if you can call that "knowing", considering the text of the statement holds more vagueness than what we started out with.

I have already outlined all my doubts over this "average business".

The strangest thing is how ESM Associations so visibly, not to forget, vocally in the forefront of the most recent episodes of the agitation, have been seen to be very reluctant to part with details, as if they were almost in competition with the Government in keeping a tight lid on what exactly they are negotiating for and what in their view should be the nuts and bolts of the final OROP paradigm.

The DGL attributed to some sections within the Services HQs hierarchy, un-authenticated, of course, had more to say on the subject than the hundreds of TV interviews with the leading lights, and their support structure, of the "movement" have yielded. Apart from what they have vociferously "rejected".

An interesting example is a recent news item. The ESM representative, while voicing his concern for a pre 2006 retiree in Major rank has simply glossed over the fact that the parity point of the Major retiree may not be the "highest pension" that the ESM association's valiant efforts are directed towards but to a much higher level keeping in view the Major's years in service and the current rank a retiree would automatically attain with the same service.

The ESM representative also does not mention that the "highest pay" for a current Major would probably correspond to a length of service much less than the older Major retiree would have put in, hence, in effect dooming his chances by voicing the opinion that the retirees' pension should be at the maximum of the current scale. I would be the happiest person to be informed that my misgivings are misplaced and based on ignorance. But I'd like to know what would be the factual reason for such information coming my way. 

Arising from that news item, the simplest query to the member of Governing Body and Pension Cell of IESM in that report, would be which Officer with Major rank retired with pensionable service of 20 years in the base year 2013, or the year 2014_15 mentioned by the IESM member, and what was his pension?

The tables with PCDA circular 500 state the pension of a pre 2006 Major retiree is Rs 15447/- to Rs. 17930/- from years of service 20 to 24.5 and is constant at Rs.18205 from years of service 25 onwards as against the figure of Rs.19205/- as quoted in the article. What IESM need to clarify is how will they find Majors retiring with the same years of service in base year 2013 or in 2014-15, forget about bench-marking pensions of older retirees with these "imaginary" post 2006 Major retirees?

This is just an isolated question on the subject, but it does reflect, if not the opaqueness then certainly the translucence of the manner in which information is being shared with stake holders.

PCDA Circulars For Pre 2006 Pensioners

At long last, based on the Govt of India letter, PCDA have finally issued circulars to effect enhanced pensions from 01 Jan 2006.

Considering there were no new tables to be prepared or issued, it is surprising that issuing the circulars took so long.

Circular 547 for revision of pension in r/o pre 2006 JCOs / ORs pensioners / family pensioners : Please click on this link. 

Circular 548 for revision of pension of pre-2006 Commissioned Officer pensioners/Familypensioners : Please click on this link.

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.

The Potential Can Of Worms Of Averaged Pensions In OROP

It is anybody's guess when an official implementation letter for OROP would be issued. Till it can be seen and its detailed provisions are known, it would really be impossible to assess how OROP would translate into reality.

In the last blog post, I had placed the methodology of calculating the average of pensions, for a certain rank with a certain number of years of service, as the most important concern of all. Now, with the other issue that had caught the public imagination, viz., the applicability of OROP to pre-mature retirees, receding into the background, it may be important to look at the averaging matter so as to be a little aware of the consequences any decision regarding the same could have.

The statement of 5th September, on the subject of averaging, carries just the sort of vague tones of feigned innocence that ESMs, with their hard earned experience of the devious manner in which phraseology can be deployed as a weapon of offence against them, might be justified in sitting up up and taking notice. If such a blatant attempt as introduction of that VRS issue can be made, in a statement to be read by no one less than Hon'ble RM, there could be some reasonable basis for concern on what else might be in store.

Not being one inclined to favor spreading paranoia, I would still urge a bit of caution. I would not like to subscribe to current speculations whether or not the highly publicized VRS matter was an overt feint intended, by some sections, to mask more covert measures for whittling away at the entitlements that should flow from OROP. The VRS matter could have been a simple last minute drafting glitch, but it would be erring on the side of safety to not take things at face value.

To quote the statement of 05 September 2015, "..Pension will be re-fixed for all pensioners retiring in the same rank and with the same length of service as the average of minimum and maximum pension in 2013..".

What does the "average of minimum and maximum pension in 2013" mean? Some of the questions raised would, of course, be the same as those mentioned in the previous blog-post. But I felt it best to keep this list of queries in one place here. A bit of repetition of the old along with newer aspects, as they emerge, may not hurt.

*Is it the maximum and minimum pension actually paid to a certain rank with a certain number of years in 2013? If so, will it also include pensions of those who retired before 01 January 2006 paid in 2013

*Is it notional max and min pension calculated on the pensionable emoluments of a certain rank with a certain number of years?

*If it is the notional pension, how will it be calculated? For instance, for a Lt Col with 20 years of service at the beginning of base year (January 2013 if it is calendar year or April 2013 if it is the financial year), will a calculation first be made to see what the pay of that Lt Col would have been in December 2005, i.e. at 13 years of service for the calendar year scenario and 13 years 03 months of service in the financial year scenario, in both of which he would have been in the Lt Col rank in Dec 2005. Then the up-gradation of VI CPC would have to be applied to see where the fixation would have been from 01 Jan 2006 and his pay on 01 Jan/01 Apr of 2013 arrived at after applying increments. Similarly, would the notional pension at the end of base year (December 2013 or March 2014) be then calculated and average pension calculated from the notional pensions at the beginning or end of base year?

*Would the simpler way of just taking the notional pay at 20 years of service from the pay-band for the Lt Col, of the previous example, be the solution? But that would assume the Officer started at the bottom of the pay-band and reached the pay as applicable to a Lt Col with 20 years of service. This, in most of the cases, won't be true due to intervention of the VI CPC implementation date of 01 Jan 2006.

*The calendar year vs financial year ambiguity is peculiar, to say the least. If it had been the financial year 2013_14 ending 31 March 2014, it would have made perfect sense to implement from April 2014, as was originally announced by the Government as, let us face it, Government is Government, regardless of which political party is in power. If, due to reasons of bureaucratic or political prestige, July 2014 is to be the date of implementation then should not the base period, rather than "base year", have been fixed as from July 2013 to June 2014?

*How will pension of an ESM with a combination of rank and a certain number of years of service, that no one retired with in base year, be worked out? For example, how would the pension of a Major with more than 20 years be calculated? There will be no notional or actual pay or pension data for 2013 as there will be no Officers retiring in the rank of Major in 2013 with service equal to or more than 20 years of service as all officers would have become Lt Col after 13 years of service. Similarly, there would be no Lt Col retirees in 2013 with more than 26 years of service. They would minimally have received time bound promotion of Col on completing 26 years of service. As a specific example, how would OROP pensions of, for instance, a Major retiree with 24 years of service or a Lt Col retiree with 28 years of service, who retired before 2006, be calculated?

*How will notional pension be calculated for retirees in ranks with a certain number of years of service that would place them at top of pay-bands of ranks they had retired in, as service required to reach top of current pay-band of the rank they had retired in years ago would probably correspond to up to 10 years less than the service they had put in? To, again, take the example of a pre December 2004 Lt Col retiree with 28 years of service, if his pension is not equated, as it should, with that of someone retiring in base year with equal service and promoted, on time-bound basis, to Col, then the top of scale for Lt Col pay-band would correspond to years of service less than what the Lt Col had put in. Would they then exercise some imagination to extend the pay-band for calculating his pension for the same Lt Col rank or cook up some imaginary "stagnation increment" formula rather than shifting him notionally to the pay-band of Colonel, which would be closer to reality of pensioners with same service and same rank retiring in base year?

*Even now, with the "minimum of pay in pay-band" principle, there is a gradation in pension tables with qualifying service. Some panel discussions referred to "mean of scale" and whether it should not be "top of scale" i.e. notional pensions based on figures of pay for these two points in the pay-band. That sounds a bit too much like a "rule of thumb" process. Would that not simply remove the "years of service" aspect of OROP from the equation? Would it, for example, equate the OROP pension of a retiree with 20 years of service to that of one with 30 years of service just because they were in the same rank, hence the same pay-band, hence the same mean, at retirement?

I would like to, again, stress here that, to my mind, this issue of calculating the "average" has even greater relevance than the matter of periodicity of OROP reviews. Even if discussions focus on bringing down the periodicity from five years to three or two, the matter of the exact manner of calculating pensions should receive the highest priority. It is a more critical component of implementation as subtle variations could hugely impact results.

While shrill protests, to the point of hoarseness, over "One Rank Five Pensions" are understandable, maybe a bit of application of mind to the "fixation methodology" is required without further delay for getting details transparently sorted out before a notification gets formalized from keyboards prone to "as on/with effect from" kind of anomalies.

The OROP Announcement

With Hon'ble RM repeating most of the press-reports of the last couple of days while announcing the outlines of OROP, the initial reaction of dismay from all affected is understandable.

Some of the online praise being heaped on this "implementation", clearly stemming from political affiliations or ignorance, or a combination of the two, is also understandable but not really germane to the issue.

At first glance, the manner in which OROP is intended to be implemented raises several issues. These can be listed, in my perception, in the following descending order of priority :

Averaging Of Pensions Paid In Base Year

*Which pensions are to be "averaged"?

*Will these be pensions paid throughout the base year? Would the base year be the calendar year 2013 or the financial year 2013_14? {Edit} : Will these be notional pensions based on pay and years of service for each rank?

*Will these also include the bottom of pay-band pensions of pre VI CPC  retirees paid in base year thus bringing OROP pensions much lower than pensions of current pensioners with the same rank and pension service? That is what the statement appears to imply as per highlighted text.

*Which pensions paid data from base year will be used for Major retirees with more than 20 years of service as no such retiree would have retired in base year, all Officers with that length of service having become Lt Cols. Would the OROP pension for such retirees be based only on pensions applicable to those who retired as majors prior to VI CPC?

*Similarly, what would be the pensions paid data for Lt Cols and Maj retirees with more than 26 years of service as no Maj or Lt Col would have  retired with as many years of service in base year or after 01 Jan 2006. Would such officers also be getting their pensions bench-marked to those with equal service who retired prior to 01 Jan 2006, in other words the existing "bottom of pay-band pension" i.e. "no change"?

*Most importantly, how would such averaging bring about OROP? Averaged pensions, mostly applicable to pre 01 Jan 2006 retirees, would be much lower than pensions of current retirees as their own lower non-OROP pensions (bottom of pay band) paid in base year would be used for calculating the average.

Five Yearly Review This had been an important issue between the ESM associations and the Government. There were points of view that perhaps a biennial review, or even a triennial one, could have been used. I am very sure even an annual exercise of reviews is entirely feasible as I have stated in the past few blog-posts. But, now with this averaging bomb-shell, the review takes on another vitally important dimension. ESM associations had expressed the misgiving that with a five year review we would have One Rank Five Pensions. Bad enough though that was, now with this averaging scheme, even with a one year review there would be several pensions for the same rank. There would be the highest pension for a post 2006 retiree and a range of pensions of those retiring after 01 Jan 2006 and then the averaged pension as applicable to pre 2006 retirees which will be the lowest of the lot. The annual review could have bridged the gap somewhat through a process of annual averaging. But with the five yearly review, that option too is gone.

Time Bound Promotions This had been covered in online discussions and apparently catered for in a DGL attributed to thinking within the Services HQs. Today's statement on OROP is totally silent on this very important issue giving rise to apprehensions of further strife and litigation on a matter clearly related to discrimination.

                   

Pre-Mature Retirement On TV, one had to uncomfortably view interviews with spokespersons so clearly trying to fudge issues, trying to mislead by bringing in issues of "boarded out" personnel and then trying to divert attention to those who had not completed pensionable service. How would the matter of OROP relate to those who had not completed pensionable service anyway? The interviewers also did not know how to press the matter by being specific and asking these fidgeting entities as to what was the disposal in respect of the people who had taken pre-mature retirement after completing pensionable service and were currently in receipt of pensions. So, till the official Government letter implementing OROP is issued, this matter will continue to exercise the minds of those affected.

Unless these issues get addressed in subsequent days and weeks, OROP as announced will have failed to come anywhere close to the way it has been defined and accepted.

                     

Format For A Quick Snap Check On Increase In Monthly Outgo Caused By Annual OROP Review

While the previous blog post points to the nature of complete annual data that needs to be furnished, by opponents of annual OROP reviews to substantiate their scare-mongering warnings of dire financial implications, there is an even easier "first-step" manner to debunk their fiscal-doom fiction.

Let data be presented as a sample case for a few Officer ranks in a slightly modified format to just establish monthly "outgo" trends from one review to the other.

It can be purely a simulation exercise as data upto July 2015 is already available with PCDA.

After this data has been obtained and usually rational but mis-informed people can be reassured that skies will not be falling on anyone's head, the next step would be to add two extra columns for annual outgo and  annual increase for the period.

It is doubtful, of course, whether the opponents of annual reviews would be willing and ready, though they are entirely "able", to render that data "faithfully", we can always have a recourse to a RTI application to obtain data in that format. 

A more extensive evaluation of financial implications, which are likely to be of the minimal kind, could be gauged from data in this format :