GROUNDS OF CHALLENGE – ILLEGAL CREATION AND MISUSE OF THE “VARYING BENEFITS” CONCEPT BY DESW/MoD
[Ground A] – Scope of the “Varying Benefit” Principle
1. The term “Varying Benefit” refers to pay, allowances, or service-related advantages granted only to those personnel who fulfill specific eligibility conditions prescribed by competent authority under statutory rules or valid policy decisions.
2. Such variation is legally permissible only when supported by statutory provisions, constitutional authority, or Cabinet-approved policy decisions. It cannot be artificially created by administrative instructions or during implementation in a manner that contravenes the principle of equality under Article 14 of the Constitution.
[Ground B] – Instances of Legitimate “Varying Benefits” in the Defence Forces
B.1 – Modified Assured Career Progression (MACP)
3. MACP is a compensatory measure for personnel who have qualified for promotion but could not be promoted due to lack of vacancies. It is granted after completion of 8, 16, and 24 years of service (MACP I, II, III respectively).
4. This applies to all PBOR who meet eligibility criteria, resulting in natural differentiation between personnel of the same rank and service length. This differentiation is lawful as it is explicitly sanctioned by policy and applicable rules.
B.2 – X Group Pay under the 6th CPC
5. Under the 6th CPC, an X Group Pay of ₹1,400 per month was authorised exclusively for X Group trades.
6. Y Group personnel of the same rank and service length were not entitled to this pay element, as it was reserved for a specific technical group. This was a lawful “varying benefit” backed by statutory orders.
B.3 – X Group Pay under the 7th CPC
7. The 7th CPC replaced the uniform ₹1,400 X Group Pay with two levels:
- ₹6,200 for AICTE Diploma-equivalent trades.
- ₹3,600 for Non-Diploma equivalent trades.
8. This bifurcation was effected through the MoD Gazette Resolution dated 05.09.2016, issued under Article 309 of the Constitution, and therefore carried full statutory authority.
9. This variation is lawful; however, all personnel within the higher X Group category (₹6,200) remain a homogeneous class for all further pay fixation purposes.
[Ground C] – Arbitrary and Illegal Creation of “Varying Benefit” under OROP Implementation
C.1 – Unauthorised Bifurcation by Cut-Off Date
10. In implementing OROP-II (PCDA Circular No. 666 dated 20.01.2023) and OROP-III (PCDA Circular No. 677 dated 06.09.2024), the DESW and PCDA illegally subdivided the higher X Group category (₹6,200) into two classes:
- Pre-2016 retirees.
- Post-2016 retirees.
11. This was done solely on the basis of an arbitrary cut-off date, without any statutory authority or Cabinet-approved policy decision.
C.2 – Violation of Equality and “Class within Class” Doctrine
12. The Supreme Court has consistently held (D.S. Nakara v. Union of India, AIR 1983 SC 130; Union of India v. SPS Vains, (2008) 9 SCC 125; State of Punjab v. Jagjit Singh, (2017) 1 SCC 148) that it is impermissible to create artificial sub-classifications within a homogeneous group of pensioners having the same rank, length of service, and qualification.
13. Pre- and Post-2016 higher X Group veterans are identically placed in all relevant aspects. The creation of separate pension tables (Tables 7 & 8 in OROP-II/III) introduces an unlawful “class within a class”, violating Articles 14 and 16 of the Constitution.
C.3 – Analogy of Colourable Exercise of Power
14. The act of inserting an arbitrary variation within an otherwise lawful benefit is akin to using illicit funds to construct a temple and then claiming sanctity under the name of God — a colourable exercise of power to disguise illegality as lawful action.
[Ground D] – Overreach by DESW in Policy Matters Reserved for CPC/MoD
15. The fixation of pay structures and pension entitlements is a policy function within the authority of the Central Pay Commission (CPC) and Cabinet decisions notified through statutory Gazette Resolutions.
16. The DESW, in implementing OROP, exceeded its administrative role by altering the scope of X Group Pay through unauthorised bifurcation, thereby usurping the policy-making function.
17. This overreach was further perpetuated by DESW’s circulation of pre-drafted “standard replies” to subordinate formations, giving the false impression that the cut-off date classification was lawful and final.
[Ground E] – Constitutional and Legal Consequences
18. The creation of arbitrary “varying benefits” within the higher X Group category lacks statutory foundation and violates the equality mandate of Articles 14 and 16.
19. It is therefore liable to be struck down as unconstitutional and ultra vires, restoring a uniform pension entitlement for all higher X Group veterans regardless of date of retirement.
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