Pro Rata of 33 is unfrctous

From:
Lt. Col. (Retd.) K L Jaspal, H. No. 28, Sector 21-B, Faridabad, Haryana. Pin-121001.
Email address: krishanlaljaspal@yahoo.co.in
SUBJECT: DIVIDING THE CENTRAL GOVERNMENT PENSIONERS AND CREATING DISCRIMINATION AMOUNG THEM BY INCARPORATITING PRO RATA OF 33YEARS FOR CALCULATING PENSION IN CASE OF PRE-2006 PENSIONERS.
PROLOGUE.
1. In accordance with the contents of Article 14, this piece of writing is to throw light on similarly circumstanced country men who cannot be and must not be arbitrarily divided or categorized or classified by the state for debarring some of them from the benefits whenever announced by the Govt. Efforts are made to explain that already existing classifications/categories of pensioners are founded on an intelligible differentia which distinguishes pensioners that are grouped together. Whenever and wherever, the state has ever made any deceptive efforts to further classify the pensioners for its own financial or any other interest, but that was against pensioners in financial or in any other manners, it was checked by the Law of the Land. Many of the courts of the country including the Apex court of India always stood by Article 14, which forbids the Govt. from doing so. Article 14 is therefore specifically incorporated in the constitution to ensure fairness and equality of treatment to all the countrymen of the nation, so that all of them are treated alike both in privileges conferred and liabilities imposed by the state or any of the state’s authorities.

A BRIEF SUMMARY OF ARTICLE 14.
2. Article 14 of the constitution strikes at arbitrariness of the State action and ensures fairness and equality of treatment to all the country men of India. This article is attracted where equals are treated differently without any reasonable basis. The principle making the guarantee compulsory and obligatory is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all the persons happened to be in the same situation and there should be no discrimination between one class of persons from the other class of similar persons as regards the subject-matter of the legislation, their position is substantially the same.
3. The Article 14 further explicitly and unambiguously forbids class division by the state. This Article, unequivocally explains that the classification already made is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational to the object sought to be achieved by the statute in question.
ENTITLEMENT OF PENSION.
4. It is well known that the pension is a right and not a bounty or gratuitous benefit. The payment of pension does not depend upon the discretion of the Government alone but it is governed as per the constitution of the nation and by the rules framed by the parliament. Thus, a government servant coming within the preview of those rules is entitled to claim the pension.
FACTS RELATED TO APPLICATION OF PRO RATA OF 33 YEARS FOR THE CENTRAL GOVT. PENSIONERS WHO RETIRED BEFORE JAN 2006, WHERE AS 6TH CPC IN ITS FINAL REPORT HAS COMPLETELY REMOVED THIS CLAUSE.
5. The main and common grievance and discrimination among all the pensioners is that of applying pro rata of 33 years for fixation of pension of pre-2006 pensioners including defense pensioners, while this clause has been removed by the 6th CPC to giving full pension to all the retired employees.
6. To elaborate the matter, the 6th CPC report with beneficial amendments is applicable w.e.f. 01 Jan 2006. “The full pension will be granted 50% of last pay drawn of the pay band of the post plus grade pay after rendering 20 years of service. The pension of all pre 2006 pensioners is to be fixed except of re-induction of pro rata of 33 years.
7. As mentioned above, the earlier clause for grant of full pension after 33 years of service is categorically and unconditionally removed by the 6th CPC. The full pension now is permissible after 20 years of service. The benefit of full pension after 20 years therefore has to be applicable to all the past, present and future pensioners, irrespective of their dates of retirement. Notwithstanding, the Govt. has re-introduced the pro rata of 33 years to re-fix the pension just for pre 2006 pensioners only. The govt. therefore has divided the civilian central govt. pensioner in two categories: Firstly, present pensioners i.e. post 2006 pensioners, and secondly, pre-2006 pensioners.
8. In accordance with the contents of Article 14 of the constitution of India, the govt. must not have divided nor done any thing which is that of arbitrary introduction of words of limitation. As per the Article, there is nothing immutable and incontrovertible about the choosing of an event as an eligibility criterion subsequent to a specified date. If the event is certain but its occurrence happened to be at a different point of time, it is considered wholly irrelevant and arbitrarily, having an undesirable effect of dividing a homogeneous class and introducing discrimination, which can be easily severed and set aside by any court of the country. It is therefore just and proper that the words introducing the arbitrary fortuitous circumstances which are vulnerable as denying equality be severed and struck down.
9. It is emphasized that the scheme of liberalisation is not and must not be for new retirees alone, rather it is equally applicable to the pre 2006 pensioners as well as from 2006 onward.
10. The Pension has correlation to average emoluments and length of qualifying service. Hence it is reiterated that the liberalisation is not meant and must not be meant merely for the retirees after a specific date; in fact, it has to be and it must be uniformly applicable to all the pensioners, failing which it will be utterly and absolutely disregard, disrespect, indifference, derision, condescension, contempt, and disdain of Article 14 as well as that of judgements of the Apex court and other courts.
11. It is therefore stressed and impressed upon that the case of applying the pro rata of 33 year for fixation of pension for pre 2006 pensioners, will be highly unprincipled, immoral, unscrupulous, dishonorable unethical, prejudiced, inequitable and discriminatory act of the concerned authorities.
12. Ministry of Personnel, PG & P, Deptt of Pension and Pensioner’s welfare, vide para 4.2 of Memorandum F No.38/37/08-P&PW (A) dated 2nd September 2008, issued instructions for the implementation of the Government‘s decision for fixation of revised pension of pre-2006 pensioners/family pensioners. They have again repeated in its para “the Revised Pension in no case shall be lower than 50 % of the minimum of the pay in pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired.” Here also, the clause of 33 years was omitted in view of the fact that it stands removed by the 6th CPC.
13. Also, the Finance Ministry’s has made it amply clearly, visibly and undoubtedly emphasized that the full pension will be 50% of the last pay drawn plus grade pay, without any mention of 33 years requirement for full pension’. Thus, in all the cases of past, present, future including the existing pensioners of pre 2006 period; it should be and must be full pension which is 50% of the minimum pay of the pay-band of the post plus its grade pay without considering/implementing the clause of pro rata of 33 years or any cut of date. As such, the pension fixation authorities have to ascertain the old pay scale and corresponding pay of the pensioners to re-fix/revise their pension in the corresponding revised pay band and grade pay. Based on it, one’s pension is to be re-fixed accordingly.
14. Strangely, bizarrely, outlandishly and eccentrically, the concept of pro rata of 33 years, even if it stands removed by 6th CPC, it was later added in the above office memorandum No: 38/37/08-P&PW (A) dated 2.9.2008, mentioning that the Government Servants who retired before 1.1.2006 after completion of 33 years of qualifying service will be eligible for full pension; with qualifying service of less than 33 years will continue to be proportionate to the full pension based on their actual qualifying service.
15. It may be noted that on implementation of 6th CPC, which has explicitly removed the pro rata of 33 years, it’s application must not have anything to do in any case for fixation of pension of the existing pensioners. Rather, in all the cases, the pension has to be fixed based on 2o years of service rendered as per 6th CPC. However, if pension is granted in the cases where service rendered is less than 20 years, in such cases, the pro rata of 20 years is to be applied since the condition of grant of full pension is 20 years.
16. The DP&T has intentionally overlooked and ignored the contents of 6th CPC, and resolution of the Govt., the contents of Article 14 of the constitution and various judgements of the Apex court and other courts of the country which are clear and self explanatory, descriptive, instructive, illuminating and expounding.
17. It is very agonizing, poignant and depressing to point out that the DP&T have still incorporated the clause of pro rata of 33 years for fixation of pension in the cases of the existing pre-2006 pensioners which is utterly, and absolutely discriminatory, biased, prejudiced, bigoted and inequitable. They seem to have done it without obtaining clarification from the 6th CPC or Cabinet or Central Govt. Even if they have obtained approval of any of them, they could have done it by misleading, in disingenuous manners, deceptively and deceivingly.
18. The DP&T (P&PW have retained the clause of pro rata of 33 years, quoting; ‘it is as per pension regulations of 1972’. The pension regulations of 1972 were framed afresh during the year to grant pension. There were number of clauses in these regulations. It may be noted that most of the clauses have undergone changed since thereafter.
19. It is clear that the pension is admissible to the eligible employees in accordance with the pension regulations of 1972. The pension regulations of 1972 lays down as to: How much should be the pension, how it is to be calculated, when it is to be revised, how much and when it is to be revised, after how long one should be entitled, how it is to be calculated, how it is re-fixed e.t.c. is being changed periodically since 1972. Nevertheless it has always been uniformly revised category/class-wise, but class/category was never divided to give benefit to some and deny the others. Rather, it has always been done without any discrimination.
20. However, if the Govt. ever divided the category or class of employees for whatever reasons but happened to be against the interest of some pensioners, the courts of the land always struck down such divisions. Hence, in view of the fact that 6th CPC has removed the period of 33 years service for giving full pension and now full pension to be given after 20 years of service; retaining the pro rata of 33 years for pre 2006 pension is highly illogical and discriminatory, hence, it must be removed immediately.
21. Just to apprise the govt. and concerned authorities, it is pertinent to highlight the fact that the Constitutional Bench of Honorable Supreme Court of India gave decision in the case of D S Nakra and others Verses Union of India (1983) 1 SCC 305 . One of the questions posed in the case was whether a class of Pensioners could be divided for the purpose of entitlement and payment of pension into those who retired by certain date and those who retired thereafter. The Constitution Bench held that such a division being both arbitrary and unprincipled; the classification did not stand the test of Article 14. The argument that the cut off date had to be fixed in view of the limited financial resources available to cover up additional expenses to be incurred on account of revision of pay scale was not accepted by the Constitution Bench of the honorable Supreme Court.
22. In this regard it is worth to refer to the rulings of the Hon’ble Supreme Court, which enjoy the status of LAW OF THE LAND. 6th Pay Commission it self has referred to the famous judgment in the case of D.S. Nakra Vs Union of India (AIR 1983, SC 130) vide Para 5.1.3 of its report.
23. This Judgment pronounced by a Constitution Bench of Supreme Court is available at http://judis.nic.in/supremecourt/qrydisp.aspx for the benefit of all who want to read it.
24. The above case dates back to 70s when the Government had introduced Liberalized Pension Scheme. Earlier pension was calculated based on the average salary of last 36 months. Under the Liberalized Pension Scheme, the provisions were changed to calculate the pension based on the average salary of last 10 months.
25. The case in the above matter was filed by one retired civil officer (subject to Central Civil Pension Rules 1972) and one retired defense officer (subject to Army Pension Regulations) and the third petitioner was a Registered Society. Only the following extracts of this judgment will clarify the position:
a. Proceeding further on the matter, “this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that can't be done when they are in service, can that be done during their retirement? Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later.”
b. “All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative for all from the date mentioned in the scheme and would bring under its umbrella i.e. all existing pensioners and those who retired/retire subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh”
26. Another recent Judgment pronounced by Hon’ble Supreme Court on 9th September 2008 is available at http://judis.nic.in/supremecourt/qrydisp.aspx for the information of authorities and others. This case was originally filed by some Retired Major Generals of the Army with regard to fixation of their pension after implementation of 5th Pay Commission. Government of India had filed an appeal in the Supreme Court against the judgment of Punjab High Court, (Civil Appeal No. 5566 of 2008, Special Leave Petition (Civil) No. 12357 of 2006 Union of India vs. SPS Vains (Retd.) and others). In this case Hon’ble Supreme Court has directed as under:
“We, accordingly, dismiss the appeal and modify the order of the High Court by directing that the pay of all pensioners in the rank of Major General and its equivalent rank in the two other wings of the Defence Services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from 1.1.1996, and, thereafter, to compute their pensionary benefits on such basis”.
27. The above cases are equally relevant not to applying the pro rata of 33 years for pre-2006 defense pensioners since this clause stands removed by the 6th CPC for all the Pensioners from 2006 onward.
28. It is abundantly clear from the above extracts that the Hon’ble Supreme Court, which enjoys the status of the LAW OF THE LAND, has already accepted the principle of equality.
29. From the foregoing, it is evidently clear that by dividing the pensioners, in pre 2006 and post 2006 categories, the Govt has completely, totally, entirely, fully, utterly, and absolutely neglected the principal of equality and the contents of Article 14 and even overlooked, ignored and disregarded the orders of Apex Court of the country and various other courts delivered their judgments in adopting the principal of equality in the past.
30. Deprival of due and that too justified due of Revised Pension of full pension after 20 years in accordance with 6th CPC report uniformly for all pensioners has created gloom and obscurity as well as a great resentment, antipathy and umbrage amongst all the pre-2006 retirees.
31. It may not be possible for the effected pensioners to approach Courts of Law to seek justice, due to their old age, left over responsibility and financial constraints. Also it is due to the fact that all of them are spread in far flung areas in the country and in their. The govt. and the concerned authorities therefore must look into the matter without any prejudice, narrow-mindedness, discrimination and insularity to initiate immediate action and issue amendment to remove the unwarranted, gratuitous, uncalled-for, unjustifiable and unsubstantiated introduction of clause of pro rata clause of 33 years which has been incorporated intentionally or un-intestinally.
32. More than enough data, particulars, details, specifics, documentary evidence and veracity explained above, all the pensioners, most industriously, earnestly, vigorously, sincerely and honestly request and appeal to the benign self of the President of India, Vice President, Speaker of the Lok Sabha, Prime Minister, all the Ministers of the Govt., MPs of the country and concerned authorities to please examine, and review the case to remove the clause of pro rata of 33 years for all the pre-2006 pensioners for fixation of their revised pension.
33. The most urgent action in the matter is solicited please.
Yours Sincerely,
Lt. Col. (retd). K L Jaspal.
Telephone number-01292438828.
Email address: krishanlaljaspal@yahoo.co.in