Govt has denied Defence Personnel due in Pension & Rank Pay in spite of several Court Judgement – Article by Purnima S. Tripathi

THE Indian Constitution grants every citizen equality before the law and prohibits discrimination on grounds of caste, class, community or creed. It holds true for public employment as well. But the government seems to think otherwise, even after being hammered by a series of judgments by various High Courts, administrative tribunals and the Supreme Court. It has not only refused to follow court orders on the pension of ex-servicemen but has also denied thousands of them their rank pay, granted to them by the Fourth Central Pay Commission, though the Supreme Court had ordered it to pay up. The apex court has now issued contempt notices to four senior Secretary-level officers.

The most shocking case of discrimination is the government’s refusal to grant ex-servicemen their pension benefits if they have been re-employed. An ex-serviceman retiring before the superannuation age of 60 can get re-employed in civilian jobs but his salary after re-employment is calculated after deducting his pension. If his pension increases subsequently after a revision, as a result of pay commission recommendations, the government deducts the enhanced pension from his salary.

This happened to ex-servicemen after the Fourth Pay Commission in 1986 announced substantial increases in the pensions of ex-servicemen. When the government started deducting the increased pension from their salary, many re-employed ex-servicemen approached the Supreme Court (Vasudevan Pillay & others). On December 8, 1994, the apex court held that the “decision to reduce enhanced pension from the pay of those ex-servicemen who were holding civil post on 1.1.1986, following their re-employment, is unconstitutional.” The Government of India filed a special leave petition (SLP) against it, which was rejected by the Supreme Court and it ordered the government to pay the dues to ex-servicemen.

Following this order, the government stopped this practice, only to start it again from December 3, 1997, after the Fifth Pay Commission in 1996. The matter was taken to the Delhi High Court, which, in its order dated August 9, 2004, ruled that the deduction was illegal and quashed the Department of Personnel and Training (DoPT) order in this regard. The court stated that its order was to be complied with in all future cases as well.

However, this order too was not implemented by the government. When the matter again reached the Delhi High Court, it ruled on May 23, 2008, in favour of the ex-servicemen and ordered the government to refund the amount illegally deducted, with 9 per cent interest. It also criticised the government, saying that its conduct reflected “high-handedness and need to be deprecated and that such action besides being illegal and unwarranted was also contemptuous”. The government filed an SLP against this judgment, which was dismissed by the Supreme Court on November 7, 2009. Even after these judgments the government kept deducting the enhanced pension from the salary of re-employed ex-servicemen. In between, some ex-servicemen took the case to the Central Administrative Tribunal (CAT) and the Madras High Court, which ruled in favour of the ex-servicemen. In these cases, however, the departments concerned (Central Board of Direct Taxes, and Income Tax) complied with the court order, refunding the enhanced amount deducted to those specific individuals. Other departments, however, continued deducting the enhanced pension from ex-servicemen’s pay.

Now, another group of ex-servicemen has approached the Delhi High Court, invoking contempt proceedings as the court’s order dated August 9, 2004, has not been implemented by the government. It is scheduled for hearing in April 2014.

What is most shocking is the wilful refusal of the DoPT to follow the unambiguous advice of the Ministry of Law and Justice to the DoPT to adhere to the Supreme Court’s ruling. A Right to Information (RTI) reply has revealed that the Ministry sent the recommendation on July 21, 2011.

What appears inexplicable in this matter is the double standards of the government in dealing with ex-servicemen vis-a-vis civilian bureaucrats. A plethora of RTI queries, compiled by Maj. Gen (Retd.) V.K. Singh, has revealed that the government has not only flouted its own service and employment rules, which state that no re-employment is allowed after 60 years of age, to favour civilian bureaucrats, but has also been overly generous in paying them salary as well. While in the case of ex-servicemen, the re-employment is only till the age of 60 and their pay is fixed after deducting their pension, civilian bureaucrats suffer no such handicap. They continue in their jobs after being re-employed well after 60 and their pay is fixed at the maximum of the scale plus the pension. Ex-servicemen get their salaries fixed at the minimum of the scale minus the pension.

In reply to an RTI query by V.K. Singh, dated August 15, 2012, the government gave a list of 16 Indian Administrative Service officers, all Chief Secretaries of different States, who retired and got re-employed between 2005 and 2011. Most of them got re-employed well after reaching 60, and at the maximum pay scale while also drawing their full pension. Another list of senior bureaucrats, which includes Joint Secretary-level officers and above, also shows that in the case of civilian bureaucrats, there has been a blatant violation of the rules of re-employment.

Similarly, in the case of Indian Foreign Service officers, too, an RTI query revealed the names of at least 16 officers who were re-employed in jobs post retirement for varying periods. Expressing dismay at the two sets of rules for the re-employment of ex-servicemen and civilian bureaucrats, V.K. Singh said: “I fail to understand why there should be two sets of rules for similar jobs of similar ranks. It is nothing but blatant discrimination which violates our fundamental right of equality before law.” He started collating the information when he realised after being re-employed in the Research and Analysis Wing (RAW) that his civilian counterparts were drawing much more remuneration than him.

Defence personnel have been facing this sort of discrimination in the matter of their pay since 1986, when the Fourth Pay Commission granted them rank pay, which was not paid to them by the government and the matter was taken to the Supreme Court. The Supreme Court ruled in favour of the defence personnel on March 8, 2010, and ordered the government to pay arrears with 6 per cent interest to over 20,000 retired and serving defence personnel. The government, however, sought a modification/recall of the order and between 2010 and 2011, the case came up for hearing 10 times in the Supreme Court and each time the Solicitor General failed to appear. The case was finally decided by the Supreme Court on September 4, 2012, in favour of the defence personnel.

The government, however, pleaded inability to bear the “extra expenditure” but was tersely reminded by the apex court that it was not extra expenditure but the just dues of the defence personnel which was fraudulently denied to them. Then the government requested that only litigant officers be given the arrears, but the Supreme Court again rejected it, saying all affected officers be granted the arrears irrespective of whether they had approached the court personally or not. The court, giving slight concession to the government, however, waived the interest up to 2006.

While implementing this order, the government again played a trick on the officers. The notification which was issued for the payment of rank pay said that those in service “as on 1.1.1986” instead of “with effect from 1.1.1986” will receive the dues. This again deprived thousands of officers their dues and the Retired Defence Officers’ Association filed a contempt petition earlier this year. On November 19, 2013, the matter came up for hearing in the Supreme Court, which issued contempt notices to the Defence Secretary, the Comptroller General Defence Accounts, the Secretary, Defence Finance, and the Secretary, Expenditure. They have been given 10 weeks to reply.

“While it is unfortunate that the government denies us equal rights in matters of pay and pension, the courts have always ruled in our favour and we are confident we will finally win justice. The commencement of contempt proceedings would, hopefully, move the government into action,” said Maj. Gen (Retd.) Satbir Singh, the acting chairman of the Indian Ex Servicemen Movement.