Friday, March 20, 2020

Some Observations on the Circular of GS PWA- Pensioners Association



Some Observations on the Circular of
GS PWA- Pensioners Association

 I happened to go thro (on 19th march) the circular of the GS of pensioners association PWA dated 8th March in a blog of a distict union of PWA. I could not see that in the CHQ website. I take that circular as an authorized and genuine one and place some of my observations on that.

The GS has done his organizational duty replying the doubts and dissents raised by some comrades and especially com Muthiyalu the DGS of that organization. I don’t want to go into the details of the organizational nitty-gritty except one or two points.


Minority- Indiscipline

Most of the organizations are having the conception that the ‘Majority’ is normally considered as the most disciplined force whether they profess or silent and the minority as a force with indiscipline when they openly profess their dissent or differences.
It is spelt in the circular that the ‘Minority has no veto’ but we failed to see the balance by spelling ‘Majority should not be intoxicated’.
The CWC or any organizational forum is like our parliament only. In the parliament members may belong to different ideologies and decisions are taken as per the majority. The decisions taken as per the majority may even be implemented. Even after that, the minority members who differ and belonging to various ideologies are coming out openly and debate the sagacity of that decisions and taking their views to the people who elect them. In the CAA-NPC_NRC issue the country is witnessing this practice.
Gandhji told Louis Fischer “ A civilization is to be judged by its treatment of minorities”  (page 527 The Life of Mahatma Gandhi)

But the Organizations normally feel this parliamentary practice as a luxurious one., as the GS mentioned “If everyone starts to circulate their views to the members at various level then the organisations would become a laughing stock”. In the organisations once decisions are taken, then they are treated like religious texts and no one can have any right to question the wisdom and if they question then it amounts to indiscipline. Here the people for the organization are pensioners. Minority has no right to take their opinion to the people- the pensioners.


Unwarranted Mentioning:

There is a mention about ‘left’ in the circular of the GS. My intention is not to taint him with any political colour.  Left is also not above any criticism but why for no fault of them the GS dragged the name of left and commenting about their political future in that circular.

The mention of ‘Namboodiri and co’ is also not of good taste for a responsible organisation. My intention here is  not for any defense of com Namboodiri but for defense of refined and value based language

The Issue
It seems that from the circular of the GS the organisation is settled with the demand of pension revision from 1-1-2017 as per 7th CPC after churning of various options like CDA conversion formula etc. - “Our prayer will be pension revision from 1-1-2017 on IDA with 7th CPC fitment factor”
Any applicability of 7th CPC can be extended to BSNL IDA pensioners just by one DOT order from the same date 1-1-2016 like the one issued for enhancement of Gratuity by DOT dt 16-3-2017. The applicability is also for future pensioners only that is ‘those who are employees’ on that date. But for incorporation of certain provisions like linking DA linked Gratuity enhancement, Minimum Pension RS 9000 is possible only when DOT issues Pension Revision orders after getting approval from the cabinet.
The RTI replies given by DOPPW for Pension Revision are known to us. Just to remind them the essential portion is given below.
The relevant para of DOPPW OM dt 4-8-2016 is
“ Where the Govt servants on permanent absorption in PSU continue to draw pension separately from the Govt, the pension of such absorbed will be updated in terms of these orders.." This para of that order speaks for Pro rata pensioners.
DOPPW RTI reply dated 4th July 2018 regarding the applicability of 7th CPC:
“...Those who were absorbed in PSUs and were getting pension in IDA pattern based on the combined service in Govt and the PSU are not covered by these orders."
DOPPW has clarified about the applicability of 7 th CPC orders (relevant paras of OM dt 4-8-16 and of OM dt 12-5-2017) for    a RTI question 0n 10-8-2018 .
“Obviously these orders are not applicable to those pensioners who are drawing pension in IDA scale for the combined service rendered in the Govt and the PSU.."
Contesting the Sub Rule 4 of 37 A:
In this context the GS is having the opinion that “DOT says that we are not CG pensioners- sub rule 4 says that. we want to contest SR 4 ( of 37A) quoting Hon SC judgement dated 15-12- 1995”
What is that judgement dated 15-12-1995? Before going to that the following background thro the earlier judgement is given below to have fair knowledge on that.
Common cause made that legal battle to restore 1/3 rd Commuted portion of pension by 12 years. The judgement was delivered by Ranganath Misra Bench on 9 December, 1986.
The case was  “ In petitions  under Article 32,  the  petitioners         have asked for striking down certain provisions of the said Rules as  they permit the Union to recover more than what is       paid to the pensioners upon commutation and for a direction that an appropriate scheme rationalizing the provisions  relating to  commutation be brought into force because there has          been a  substantial improvement in the life          expectancy  of      the people, and since commutation portion out of the pension  is ordinarily  recovered  within about 12 years,  there  is  no justification for fixing the period at 15 years.”
The direction of the SC  for the above said case is “We are, therefore, of the view that no separate period need be fixed for the Armed Forces personnel and they should also be entitled to restoration of the commuted portion of the pension on the expiry of 15 years as is conceded in the case of civil pensioners. And for them too the effective date should be from 1.4.1985.”
For implementing this judgement the DOPPw issued the relevant order viz
DOPPW  OM 5th March 1987   Sub: Restoration of commuted portion after 15 years- implementation of the judgement of the Supreme Court “
In that order the following para was also placed.. The para is
 “ 4 :Central Govt Employees who got themselves absorbed under CPSU and have received/ or opted to receive commuted value for 1/3 rd of pension as well as terminal benefits equal to the commuted value of the balance amount of pension after commuting 1/3 rd of pension are not entitled to any benefit under these orders as they have ceased to be CG Pensioners.”
This para created an issue and led to further litigation and hence the following Judgement of SC dt 15th Dec 1995
Supreme Court of India : Welfare Association Of ... vs Union Of India & Anr on 15 December, 1995 Author: V K.  Bench: Venkataswami K. (J)
The case is “ These two writ petitions are filed under Article 32 of the Constitution of India. At the time of argument learned counsel appearing in these writ petitions confined their relief to the restoration of one-third portion of the fully commuted pension as per the decision of this Court in Common Cause, Registered Society & Ors vs. Union of India, (1987) 1 SCR 497, and consequently to quash para 4 of O.M. 3412/86. P&PW issued by Government of India Department of Pension and Pensioner's Welfare dated 5.3.1987.”
The Direction given in the above judgement is  “For the foregoing reasons, we hold that the petitioners are entitled to the benefits as given by this Court in 'Common Cause' case so far as it related to restoration of one-third of the commuted pension. Consequently, the impugned para 4 of Office Memorandum dated 5.3.1987 is quashed.  The writ petitions are accordingly allowed to the extent indicated above. No costs.”
Here the case was for extending the entitlement of CG pensioners to the absorbed pensioners  on the issue of 1/3 commutation restoration also  making them also eligible from the same date. The contention is not about the issue of  ‘they have ceased to be Govt pensioners’  
37 A  Sub Rules
(4) The permanent absorption of the Government servants as employees of the Public Sector Undertaking shall take effect from the date on which their options are accepted by the Government and on and from the date of such acceptance, such employees shall cease to be Government servants and they shall be deemed to have retired from Government service.
This the GS wants to contest. As per my limited knowledge the judgement of 15-12-1995 is not relevant to this.

 (8) A permanent Government servant who has been absorbed as an employee of a Public Sector Undertaking and his family shall be eligible for pensionary benefits (including commutation of pension, gratuity, family pension or extra-ordinary pension), on the basis of combined service rendered by the employee in the government and in the Public Sector Undertaking in accordance with the formula for calculation of such pensionary benefits as may be in force at the time of his retirement from the Public Sector Undertaking or his death or at his option, to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Here we need to mention the DOT OM dt 16-3-2017 which speaks no change in formula.
DOT OM  dt 16-3-2017 : Sub: Implementation of 7th CPC recommendations: Applicability to the BSNL/ MTNL absorbees..under 37A
This Om only made to revise the maximum of Gratuity limit to the 20 Lakh   but without DA linked for BSNL absorbed retiring on or after Jan 2016 .
In that OM para 3
There is no change in he formula for pension/ family pension w.e.f 1-1-2016. BSNL/ MTNL absorbee employees will, therefore, continue to get pension based on the same formula
 (9) The pension of an employee under sub-rule (8) shall be calculated on fifty percent of emoluments or average emoluments, whichever is more beneficial to him.
The pension of the post 2017 pensioners is fixed by this SR only. Without pay revision no updation of pension is possible as per this SR for these post 2017 pensioners.
(10) In addition to pension or family pension, as the case may be, the employee who opts for pension on the basis of combined service shall also be eligible to dearness relief as per industrial Dearness Allowance pattern.

Post 2017  pension updation issue:
Even the demand of 7th CPC is accepted for Past pensioners, employees becoming pensioners on retirement from 1-1-2017 will not get it as they are covered as per the norms of PRC or any bilateral settlement. There would be two categories of pensioners- past pensioners as per 7th CPC and future pensioners as per the PRC or any settlement. This is against the spirit of Nagaracase.

The consolation given by PWA to lakh of post 2017 pensioners is Govt if at all any decision taken for past pensioners they will address the issue of their pension modification also in the name of anomaly. This argument seems to me very naïve.
The GS writes about post 2017 pensioners
 “The Concern is Genuine. We consulted the lawyers on this point. Three lawers from different stations gave identical opinion that there will be anomalous situation if pre 2017 retirees get the pension revision and post 2017 retirees neither get pension revision nor pay revision. All the three opined that the Govt is fully aware of this situation particularly DOT and DOPPW, and they should come forward with a solution. Legally post retirees are also entitiled to the benefit, otherwise it will create discrimination.."
 Knowing fully well that the demand of the association ( and of some other associations also) would create discrimination for the post 2017 pensioners , the association wants to get legal stamp for the discrimination .
 
Again about the Issue

DOPPW OM addressed to DOT dt 8-3-2019 specifically placed the following observation
“…. In case pension of the past pensioners is revised, their revised pension would become higher than pension to be fixed on retirement of the existing employees. This will create an anomalous situation in BSNL/ MTNL as the past pensioners would be getting more pension than the freshly retired pensioners. DOT therefore needs to bring about how they propose to resolve this anomaly”
LS reply to the question dt 11-3-2020:
“Pension revision of absorbed employees of Bharat Sanchar Nigam Limited (BSNL) is linked to the pay revision of the serving employees in as much as pension is calculated on the basic pay which the retired employee was earning at the time of retirement. Pension may be revised if the said basic pay is revised on account of pay revision of serving employees.”
From this reply it is clear that DOT is not willing to create any anomalous situation by giving pension revision without pay revision. It seems that  the pensioner association wants to create the anomalous situation for more than a lakh of  post 2017 pensioners as on date, and whose numbers will go further on every month retirement till 2026 and even beyond.
As per my limited knowledge the anomaly pointed out by the DOPPW in its oM dt 8-3-2019 cannot be settled unless there is simultaneous pay revision for the employees on the same formula of pension revision of past pensioners from 1-1-2017, if it is accepted forced and based on any judgement. This is nothing but reverse linking. The question of delinking is not possible as long as there are future BSNL IDA pensioners

20-3-2020 by 21 hrs               - R. Pattabiraman BSNL IDA Pensioner