ASG Venkataraman: they have
raised 3 contentions
1. they say it should be
automatic, not periodical
2. review once in 5 years is not
acceptable
3. third is a chart which i will
now show
ASG : The chart shows that
you should take the scale and not go by the mean.
DYC, J : you've taken the mean but no one is brought down
ASG agrees
ASG is referring to a tabular
chart in which he says a comparison had been made between sepoys who retired
after 2015 and before 2015
Nath J : suppose someone
retired in 1990 and ACP came in 2006, rank will remain but he will get a
different scale of pay because yours is a twin condition : same rank and same
service
ASG : my friends are
comparing MACP with non-MACP
DYC, J : according to them you're giving MACP retrospectively since 2006 but
you say mathematical equality is not possible
ASG: yes
Nath J : so your OROP will
not apply to soldiers ehi retired after 2014?
ASG : upto a grade. I will take instructions on this particular point
Nath J : notifications says it applies to employees retiring after
1/7/2014
Nath J : you said same rank
and same length of service. Now same length of service at same rank or at
different levels ?
ASG: this is a very valid question. Two MACP sepoys will get same but not a
Non-MACP sepoy
Kant : OROP is a benefit that
comes after service period and MACP comes during service..We want to know how
many persons have gotten MACP. You are saying persons who have MACP are a
different specific class
ASG : who has qualified and
who hasn't qualified for MACP is not the subject matter of the writ
Kant J : but it is important for OROP. If 80% sepoys get MACP, then will they
get OROP. It seems MACP is a barrier for OROP
ASG reads from reply
affidavit .
"... Comparison in table is between non-comparables... "
" There are 5 factors we have taken to show they must be equal in all 5
paraneters"
DYC J : we have to deal with the fact that there is no statutory definition of
OROP
DYC J : their contention is
regarding the discrepancy between parliamentary discussion and policy which
ultimately came. The question is whether that amounts to violation of Article
14. You should have gone further.
DYC J : "Your hyperbole
on the policy presented a much rosier pic than what is actually given "
#OROP
Kant J : ASG , under your
rules of business, who is the competent authority who has taken this decision
ASG: it's a decision taken by union cabinet which resulted in the notification
DYC J : and it is approved by cabinet?
ASG: yes
Kant J : you were fully aware
that MACP existed when you issued the notification. You had all the data so you
knew that there would be a very minute benefit to ex-servicemen
DYC J : as I said OROP is not
a statutory term, it is a term of art
ASG : yes, it is a term of art which we have defined with nuance and without
any arbitrariness
Kant J : what they are saying
is that by connecting OROP with MACP you have reduced the benefits
substantially. The principle of OROP gets defeated
ASG : if there is a serviceman who has MACP and one who didn't, both fall under
OROP
ASG : there is no constraint,
limitation, mandate. This is a progressive way and maybe 5 years later we will
re formulate.... We have already spent more than 50,000 cr rs.
Kant J : your statement is one rank one pension. Is there anything wrong in
translating that into policy?
DYC J : you could not have
brought down people above the mean. You have protected them. But what you have
done is that people below the mean have only been brought up to the mean and
not to the highest amount.
ASG says he will read from
judgements to deal with the contention if the petitioners that pension should
be calculated based on 2014 salaries and not 2013 salaries
ASG: the petitioners
assumption that all of us decided internally to apply the case of SPS Vains v
UoI is both factually and legally incorrect.... That case dealt with different
circumstances
ASG refers to the Nakara case
DYC J : actually Nakara has now been substantially explained in a large number
of cases. Nakara was a liberalisation of an existing scheme and not a new
scheme. When there is a new scheme, this court has said Nakara has no
application
Kant J : the first figure you
should have brought on record was that when MACP was introduced how many got
benefit of the scheme and how many are eligible to get benefit of OROP.
ASG: we have submitted comprehensive affidavit with defense budget, amounts
allocated to everything
ASG also referred to the
judgement of the SC in Krishna Kumar's case. He spoke of the difference between
legal obligation and moral obligation as per that judgement
ASG continues reading from a
compilation of judgements that was handed over to the bench
ASG now refers to SP Gupta's
case. He mentions that the judgement says confidentiality applies to, among
others, minutes leading upto policy making.
Kant J : do you think in
today's context you want to deprive us of the decision making process. How can
you claim confidentiality of documents your clerks, assistants, etc have seen?
ASG : if your lordships ask us to, we will certainly give it.
DYC J : your point is
discussion is not reflective of policy that is made. This judgement will not
help you there
ASG now refers to judgements
regarding areas where judicial review is not applicable
ASG reads from a judgement to
make the point that a comment made by a politician even on the floor of the
parliament is not binding unless it is reflected in the policy.
ASG sums up contentions of
petitioners and the Centre's responses regarding cut off date, period of review
ASG : Our humble submission is that this is not arbitrary or discriminatory at
all.
Sr Adv. Huzefa Ahmadi (for
the petitioners) : the sum and substance of their arguments is that they are
not inclined to give OROP but they will give one rank different pensions.
Ahmadi : the headline is
OROP. My friend said it could have been given at 10 years but they chose 5
years.
Ahmadi: what is the morality of a statement made by a minister on the floor of
the house.
Ahmade: where in their policy decision does it say MACP will be eschewed from
OROP
DYC J : we want you to
disclose 3 things
1.the percentage of beneficiaries of MACP
2. When finance minister made the
comments on the floor of the house, was there a policy finalised that was the
basis for it.
3. What is the financial
burden
DYC J : I will add a fourth.
Is there any specific exclusion on MACP in the policy. Take instructions.
You've made a commitment.
ASG : by monday my Lord
Ahmadi : they can't go beyond their policy now my Lord.
DYC : they should say if there was exclusion in decision on 7 nov
Ahmadi : I can prove
conclusively that it was not
DYC J : but we have to hear from them. We cannot issue a mandamus to implement
a statement made in Parliament. We will be turning 70 years of legal precedents
if we do that
DYC J : we will come back
after lunch.
ASG : I have some time constraints at 2. May I be excused and please could you
give time till next Wednesday to submit documents.
DYC J : we will dictate a short order to that effect
Court will resume at 2pm
