Are the Entitlement Rules 2008 validly promulgated where the Union cannot demonstrate how they superseded the 1982 Rules?

Paragraph 22The difficulty arises in respect of the Entitlement Rules 2008. Upon an examination, we find that the Union was unable to demonstrate fully the source, the time and the method by which the said Entitlement Rules 2008 were brought into force by repealing or superseding the Entitlement Rules 1982. Instead, the Ld. AG asserted that amendments had been made from time to time and were not necessarily promulgated as separate Rules. Ld. AG submits that the Entitlement Rules 2008 were issued vide letter dated 18.01.2010 as a compilation of policy developed through consultation with competent authorities. ii. The Raksha Mantri Report’s Findings

Paragraph 24Upon this examination, 2015 Report explicitly noted that the 2008 Pension Regulations and the Entitlement Rules 2008 have no sanctity of law and that they are not validly issued documents on the ground that they unlawfully introduced substantive, regressive changes to retirees’ pension rights without requisite Cabinet/Department of Pension and Pensioners’ Welfare (“DoPPW”) approval, stakeholder consultation, or proper records, and created an unjustified disparity between the Army and the other two Services. The conclusions of the Report with regard to the legality are - “The Committee hence regretfully observes that the so called ‘Pension Regulations 2008’ and ‘Entitlement Rules, 2010’ have no sanctity of law and are not validly issued documents. We say so on the strength of the following grounds: ● That these documents are not just a ‘collection’ of latest instructions etc issued from time to time after implementation of successive pay commission reports as has been projected very innocently. Many substantive provisions of the actual regulations stand amended by way of a sleight of hand in these so called ‘Regulations’. For example, there is no pay commission report and acceptance thereof which directs a change in the pensionary benefits on resignation in the defence services or the definition of ‘invalidation’, besides multiple other changes illegally carried out which we are not noting so as not to burden the dockets of our report. ● That no approval of the Union Cabinet has been obtained on these changes introduced cleverly in the text of these ‘Regulations’ and also no approval from the DoPPW which alone is authorized as per the Allocation of Business Rules, 1961, to approve pensionary provisions of civil, railway and defence personnel. ● That there has been no due democratic process or even any discussion with stakeholders before introducing these ‘Regulations’ or ‘Rules’. Needless to state rules and pensionary policies cannot be imposed as one-way traffic by clandestinely introducing amendments by changing the language of substantive provisions in the garb of making a ‘compilation’. ● That no recorded minutes or notes of any alterations or amendments are available and the work of reframing and rewording had been handed over to officials of the Defence Accounts Department. Hence ultimately, the language chosen and imposed by a few officers has been circulated in the form of ‘Regulations’ and that too by altering the precious rights of retirees. Even the then Raksha Mantri was not informed about the true picture and the file was apparently simply shown to him without informing him about the fact that substantive provisions and rights of retirees had been altered. Thereafter, the ‘Regulations’ were simply circulated by way of a letter stating ‘RM has seen. ● Pension Regulations of the three services are pari materia to a great extent. While these Regulations of 2008 have been issued only for the Army, we are told that the other two services continue with the old (actual) Regulations. The question arises whether such a situation be allowed to prevail wherein different services are governed by varied provisions and that the Army is saddled with regressive changes which are not applied to the other two services. The Committee hence strongly observes that the so- called ‘Pension Regulations, 2008’ or the ‘Entitlement Rules, 2010’ have no sanctity of law as far as alteration of entitlements is concerned. The same can at best be adopted to regulate procedural aspects and if there is a conflict between the same and the actual Pension Regulations 1961 or actual Entitlement Rules 1982 thereby affecting the rights of pensioners negatively, then the Regulations of 1961 and Rules of 1982 shall prevail to determine the entitlement. The Committee also recommends that any such changes in the future may be perused by senior officers of the Ministry with the minutest eye so that no amendment of beneficial or welfare oriented provisions is carried out by a sleight of hand. In fact, any change that may be recommended should be first put before the Standing Committee for Welfare of Ex-Servicemen as discussed in preceding parts of this Report. We would have recommended an enquiry into the officers involved in this crude attempt to change the entitlements of pensioners and disabled soldiers but refrain ourselves from doing so since many officers involved in this episode would have retired by now.” (emphasis supplied)