Deciding the Correct ‘Effective Date’ & ‘Applicability’for Policy Implementation

Pensions of Armed Forces Veterans stand on a different footing. The state having employed the soldiers on hazardous conditions, subjects them to very strict code of discipline and curtails their fundamental rights of freedom of expression as well as association.


Deciding the Correct ‘Effective Date’ & ‘Applicability’for Policy Implementation

Pensions are a measure of social security in a welfare state and such pensions are granted to indigent citizens to meet their basic needs. Pensions are also granted to the civilian government servants and also the employees of industrial or commercial enterprises. While the pensions to indigent citizens are purely a welfare measure without any legal binding, the pensions granted to civilian government servants or industrial employees are deferred wages and are matter of right.

Pensions of Armed Forces Veterans stand on a different footing. The state having employed the soldiers on hazardous conditions, subjects them to very strict code of discipline and curtails their fundamental rights of freedom of expression as well as association. It also expects them to sacrifice their life or limbs in the service of the nation, denies them promotions to maintain the steeply pyramidical structure and then retires them early to keep the army young and lean. So, it would not be incorrect to say that military pension is a small compensation for all these and many such.

NATURE OF PENSIONS

Pensions are deferred payments for past service and not a bounty, gratuity or payment that can be trifled with or stopped. A pensioner having put in a long, loyal and unblemished service of two to three decades earns his pension and he is entitled for its regular payment unconditionally. The state can neither escape its payment quoting scarcity of resources or make restrictive rules to evade its liability. Needless to say, the pensioner cannot be deprived of his pension without the due process of law. Pensions are inherited by spouse and under some conditions by other dependents also.

DISCRIMINATION

All pensioners are one class and sub-classification of pensioners based on the date from which a policy takes effect or the date of his retirement is ultra vires (DS Nakara case). The law allows classification, but does not allow discrimination. Treating a group of persons in a different manner without an intelligible differentiator is called discrimination. For example: All Subedars or Subedar Majors who are granted Hony Lt rank form one class of pensioners and dividing them based on the date of their retirement or grant of Hony rank is an unacceptable classification and treating them differently amounts to discrimination. The law always abhors discrimination and courts will strike any action which even remotely seems to be discrimination.

IMPORTANCE OF RANK OR GRADE

Rank is a vital character of military service and a retiree of higher rank (Maj Gen) should never draw less pension than a retiree of lower rank (Brig) e.g. the Maj Gen SPS Vains case. This is a landmark case in the annals of military pension administration in which the rights of personnel who held higher rank to receive higher pension than those who held lower rank in same cadre was judicially determined. Though this case pertained to a Major General, it finds equal application to any military Veteran and also a civilian pensioner.

DATE OF IMPLEMENTATION

All aspects of the pension concerning Basic Pension are to be implemented from 1 January, 2006 (MACP and MSP). During the transition from one Pay Commission to another, the government appoints different dates for implementing different aspects of Pay Commission awards. In rectifying anomalies, it is a usual practice to stipulate that the Policy takes effect from that date of issue of the letter and that the relief is granted to those who retired after the issue of that letter.

The most common and well-known examples of this are Modified Assured Career Progression (MACP) and the Military Service Pay (MSP) were stipulated for implementation from 1 September 2008 whereas all recommendations of 6th CPC that pertained to Pay matters were implemented from 1 January 2006. Similarly, the anomaly on fixing of Basic Pay of Majors and their equivalents in other two services (Rs 11925 instead of Rs 11600) which was a Pay and had effect on the pension was implemented from 29 February, 2000 instead of 1 January, 1996.

DENIAL OF BENEFIT TO EXISTING PENSIONERS

Anomalies in Pension of JCOs granted Hony Commissions on retirement, prior to 1 January, 2006 were not treated on par with JCOs granted Hony Commissions during their service. The Army has a practice of granting Hony Commissioned ranks on retirement and curiously before 2006, they did not receive the pension attached to the Hony rank but received the pension of their rank as a JCO. Post 1 January 2006, all JCOs who were granted Hony Commissioned ranks on retirement were being paid the pension attached to the Hony Commissioned rank.

Similar was the case of Sepoys and NCOs who were granted Hony higher ranks on retirement before 1 January 2006. Even though the AFTs have given a judgment in favour of those who retired before 1 January 2006 and in individual cases have ordered the payment of pension attached to higher commissioned rank from 1 January 2006, the Ministry of Defence has not considered it fit to extend this to all similarly placed personnel.

CONSEQUENCES OF PENSION ANOMALIES

Anomalies arise especially when the new pay commission award is implemented or when a policy is formulated. It occurs when an arbitrary date is appointed for implementing the award or policy and also when an improved award is denied to the existing pensioners. These actions of the government are ultra vires of law (against established law of the land), cause huge and continuing financial loss for each month and the pensioner has no option but to approach the Armed Forces Tribunal to get justice. Now let us see the effects of these anomalies on the pensions of defence pensioners.

FINANCIAL LOSS

Pensioners incur huge financial losses due to pension anomalies. In case of JCOs granted Hony Commissioned Ranks on retirement before 2006, were paid pension of his rank as a JCO which can be about Rs 950 to 7500 per month less than the pension attached to the Hony Rank (read my article ‘Pension Anomalies among Army Veterans granted Hony Ranks’ published in the March 2019 issue of the Fauji India magazine, for further details on this). Similarly, loss is incurred when the MACP is denied to the personnel based on an arbitrary date of effect. What is noteworthy is that these anomalies cause continuous loss and the pensioners of the Sepoy rank and family pensioners of Sepoys and NCOs are hit the hardest.

MORALE OF PENSIONERS

There is a predominant perception in the mind of the defence Veteran pensioners that all these anomalies are built into the policies and processes of implementation of Pay Commission awards to save some funds to the exchequer. It escapes the understanding of any logically thinking person as to how the government in a country that swears by rule of law can promulgate such policies that run counter to law of the land laid down by the Constitution, acts of the Parliament and judgments of the Supreme Court as well as various High Courts and how such anomalous policies will stand scrutiny of judicial forums like AFT and Supreme Court.

Since same kind of arbitrary effective dates and discriminatory exclusion of eligible pensioners continues to happen, defence pensioners feel that Defence Accounts Department has very limited capacity to formulate policies that stand the scrutiny of law and hence the MoD will be well advised to seek better legal advice before promulgating the Policies proposed by the DAD.

EFFECT ON MORALE OF SERVING PERSONNEL

Today’s serving soldier is tomorrow’s pensioner and he is also a son, brother or nephew of a pensioner. Hence the plight of the pensioner incurring recurring and substantial losses will not be lost upon the serving soldiers. Unless a concrete and perceivable remedial action taken to avoid pension, related anomalies is seen by serving soldiers, the morale of serving personnel can also be affected.

CROWDED AFT DOCKETS

Most Applications before AFTs assail the anomalies in pension caused due to excluding pensioners who retired before the effective date of implementation. The affected pensioner is left with no option but knock the doors of the Tribunal as there is absolutely no speedy action adopted to apply corrective measure to a policy that is patently against the laid down law of the land.

The Ministry and its attached offices seem to harbour the hope that they will save money to the exchequer if they continue unlawful policies until they are ordered by the court to apply a judgment in a case to all similarly placed pensioners. Not granting remedial judgments result in numerous OAs on the same matter and the judicial time of AFTs is wasted. Remedial judgment should be the norm in which a policy that has wide application is struck down or tweaked.

AVOIDABLE LITIGATION

Manpower and resources of Armed Forces units are frittered away in pursuing cases in which indefensible anomalies are defended. It is more sensible and prudent to invest more time and effort to formulate policies that are in consonance with the laid down law of the land and will stand the scrutiny of judicial authorities than waste time on repeatedly defending policies that are unjust.

EFFECT ON ATTRACTING MANPOWER

The future wars are bound to be high tech and will be fought in space. The infantry soldiers will be called to operate high tech munitions and machines of war. For all this, a modern Indian Army and other wings of Armed Forces require technically savvy young men to man its ranks. With civil sectors competing to draw eligible young men into their work force, Armed Forces have to go an extra mile to get its share of motivated, qualified and dedicated young men. It needs no emphasis to say that Armed Forces cannot survive without tech savvy and highly dedicated man power. Needless to say, a happy pensioner is a great advertisement for attracting suitable man power for Armed Forces.

The government of an elected democracy cannot be seen as following policies that are patently unjust towards its military pensioners. It is heartrending to see thousands of pensioners eking out their livelihood with meagre pensions are forced to take on the might of a huge establishment to assert his right for a just policy. A favourable verdict at a Tribunal does not mean that justice is done as it will be invariably appealed in the Supreme Court and the harassed pensioners has to tighten his belt for another round of high cost litigation. Surely the government of a welfare state in India can establish a system that will do justice to those who have given youth and sometimes limbs or even life in defence of the nation. Some ideas in that direction can be:

COHERENT POLICY

A well thought out and clear policy on stipulating the ‘effective date’ and ‘applicability’ should be laid down with an avowed aim of avoiding pension anomalies. The temptation to build in anomalies to save funds for exchequer should be resisted and accountability for anomalies resulting due to unjust policies should be fixed. Date should always be from the date of original policy and applicable to all similarly placed pensioners who retired earlier. The validity of the policy should be tested on the basis of law of the land and opinion of persons well versed in law should be taken into consideration before finalisation of the policy.

JUST AND LAWFUL POLICIES

The MoD’s Department of Ex-Servicemen Welfare (DESW) should make policies in accordance law laid down by Supreme Court, High Courts and AFTs. Policies concerning the defence personnel are made by the Ministry of Defence on the advice of the DAD and these personnel (to whom these policies do not apply) have no empathy for defence pensioners. Considering numerous policy letters that were struck down by judgments of Supreme Court and AFT Benches, verdicts in which policy was struck down or tweaked should be treated as remedial judgments and the benefit should be extended to all similarly placed pensioners. There is a precedent for this as all Maj Gens and equivalent rank officers were given benefit of SPS Vains Judgment. It should not be seen that only high-ranking officers (equal to Joint Secretary) get benefit of the munificence of the welfare state.

STAKEHOLDERS VIEWS

It is a time-honoured tenet of administrative law making that consultations with concerned stakeholders should always precede such process. Since formulation of policies and implementation processes form part of administrative law, it is imperative that consultations with ESM Associations and other pensioner stake holders take place to ensure formulation of policies that avoid anomalies and consequent legal cases from pensioners.

As an elected government of a welfare state, it should make policies without anomalies that cause financial loss to pensioners and prevent costly, time consuming and avoidable litigation. Further the government should desist from making appeals in matters already decided by Supreme Court in a conclusive manner. Is it too much to expect the government to adhere to law in the policies it makes and do justice to its Veterans? We hope and trust that it is not.


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