FLASH
FLASH
Saturday, 12 March 2022
FIXED MEDICAL ALLOWANCE TO CENTRAL GOVT EMPLOYEES (FMA) IS LIKELY TO BE ENHANCED TO RS 3000 SOON
Friday, 25 February 2022
OROP : Supreme Court Reserves Judgement In Ex-Servicemen's Plea For 'One Rank One Pension'; Economic Policy Be Considered With 'Caution', Says Centre
The Supreme Court on Wednesday reserved judgment by plea filed by the Ex- Serviceman
Movement seeking implementation of the "One Rank One Pension"/ ("OROP") in the Defense Forces. The plea filed through Advocate on Record Balaji Srinivasan wherein it was averred that despite the assurance on floor of Parliament, what was being implemented is "different pensions for same rank depending on when the person retired", was heard by the bench of Justices DY Chandrachud, Surya Kant and Vikram Nath.
The petitioners had questioned the notification dated November 7, 2015, issued by the Union Government wherein while implementing OROP, it had adopted a modified definition of the expression under which the gap between the rates of pension of current and past pensioners were to be bridged at "periodic intervals". The petitioners seek annual revision of pension under OROP and for calculating the pension based on 2014 salary of ex-servicemen. As per 2015 notification, the periodic review of pension was fixed at five years and the pension was fixed based on 2013 salaries.
Submission Of
Counsels
We Have Not
Discriminated Any Of The Retirees In Any Form; Heart Of Policy Maker Is As Wide
As Citizen But When We Work At The Table & Ultimately Arrive At Policy, Concerns
Are Always Baring: ASG Venkataraman
Additional Solicitor
General Venkataraman commenced
his submissions by drawing the court's attention to the affidavit filed by the Union in response to the questions posed by the bench on the last date of hearing.
With regards to the then
Finance Minister's (P Chidambaram) speech which was made on February 17, 2014,
ASG submitted that the Finance Minister's speech wherein the Koshiyari Committee's
recommendation was endorsed was not based on any decision or recommendation by the
then Union Cabinet. On the aspect of petitioner's contention that one should go
only by the same rank and not the same
length of service and
still grant or extend OROP benefits, ASG while referring to the affidavit submitted
that the threshold condition to qualify for MACP is completion of the required
length of service.
Further, ASG said that
for the purpose of computation of OROP, the Union has taken Modified Assured
Career Progression(MACP) as the base and has applied it across the board for
all the retirees having the same length of service.
"When we took
it as 2013, we have benchmarked. Everything has been formulated. Any assumption
of disparity betweenw ACP & MACP era, non ACP & MACP era, doesn't exist
for OROP," ASG added.
He also submitted that
matching Non MACP with MACP would result in financial implication of INR
42,776.38 crores.
At this juncture, Justice
Surya Kant said, "On the
civilian side when we talk of after 10 years revision, pay structure also
changes. The basic pay also changes. In case of annual revision of OROP, there
is no change of annual basic structure. Only DR components, that'll probably
merge into it. Automatically or probably as we could understand. Will it cause
any financia limplications?"
At this juncture, Justice
Surya Kant said, "On the
civilian side when we talk of after 10 years revision, pay structure also
changes. The basic pay also changes. In case of annual revision of OROP, there
is no change of annual basic structure. Only DR components, that'll probably
merge into it. Automatically or probably as we could understand. Will it cause
any financial implications?"
"After 5
years, there is financial impact. What is the difference between if you revise
yearly & after 5 years. What will be the effect? In the case of a retiree
while in service there are so many allowances attached to the post you occupy.
After retirement there are certain allowances which disappear but DR or DA,
that continues. Applying this principle & considering the fact that what we
are talking of retirees annually whose other allowance are hardly visible,
maybe that impact is
hardly
visible," remarked Justice Kant.
"If we do
something, that'll be walking an extra mile. Anything you create that is a
fundamental aspect. Heart of a policy maker is as wide as a citizen but when we
work at the table & ultimately arrive at a policy, concerns are always
baring. This concern you do it for 1 year today, make it for this case but what
would be its repercussions in other areas," submitted ASG in response.
By Introducing
Concept Of Periodic Intervals, Period Cannot Be So Large So As To Make Concept
Of OROP Illusory & In Effect Decree One Rank Different Pension; It Would Be
Purile To Contend That Minutes Of Meeting Chaired By Raksha Mantri Did Not
Constitute An Executive Decision Taken By The Union: Senior Counsel Huzefa
Ahmadi Appearing for the
petitioners, Senior Advocate Huzefa Ahmadi in his rejoinder submissions contended
that application of OROP by the Center has resulted in 1 rank different
pension.
"It has never
been my contention that any personnel who has not been under the different
length of service should get the same OROP. To suggest that this would be a
financial burden if my contention is accepted- that's totally incorrect.
Application by OROP by them has resulted in 1 rank different pension as even
according to them the figure of 6665 was of person who had put in same years of
service when compared to person who retired later after same years of service.
Therefore where
does the concept of uniform pension go? That is the elephant in the room. After
a period of 5 years, we will go back to 1.5 years even for the purpose of
equalization. This difference will keep on escalating further," submitted the Senior Counsel. With regards to
the Union's stand that the Finance Minister's speech wherein the Koshiyari Committee's
recommendation was endorsed was not based on any decision or recommendation by the
then Union Cabinet, Senior Counsel while referring to the documents and the
executive decisions submitted that it would be purile to contend that the
minutes of the meeting chaired by
the Raksha Mantri did not
constitute an executive decision taken by the Union.
He further added that the
hiatus which was practically of 1.5 years would only result in increasing the
gaps.
"We are
dealing with 2 hiatus: 1 for 5 years & other for 1.5 years. It will in
practice imply a hiatus of 6.5 years. Elephant in the room is these gaps &
the hiatuses will result in only increasing the gaps. Every time there will be
increments, that will not be passed on. Any policy decision that you take if
you call it uniform then the same should not be such that the substratum gets
washed
away," Senior Counsel submitted. He further added
that, "The Union
has been shifting its stand right from the time when the statement was made on
the floor of the house. The first statement was made by the finance minister.
Then in the Budget Speech- it's made after the minister of PM & entire
cabinet's approval. Mr Jaitley's speech categorically adopts the def of OROP.
It's arbitrary not to factor in
MACP for the
simple reason that even going by the 2015 decision, the OROP component willeschew
the MACP."
"In the present
scheme, the beneficiaries are senior or lower rank officers? Who are actual beneficiaries?"
asked Justice Kant.
"Actual rank
would go to the lower rank officers. 95%. They are the ones who have actually
taken the matter. Almost 95% will be "lower rank" officers," submitted Senior Counsel in response. With
regards to ASG's submission that everything that happened prior to November 7,
2015 should be ignored, Senior Counsel said, "What it comes to is, the statement that was made & executive
decision, all this is to be ignored. Taste of the pudding is ultimately in the
eating."
"By
introducing the concept of periodic intervals, the period cannot be so large so
as to make the concept of OROP illusory and in effect decree one rank different
pensions. This would be the practical effect of equalizing the pension after a
period of 5 years," Senior
Counsel further added.
"Older
soldiers when they fought didn't have the arms that the soldiers have now. Upto
the 3rd Pay Commission, this was exactly what you were giving,"
Senior Counsel submitted
while concluding.
When OROP Was Framed
Center Covered Entire Past Of 60/70 Years; Anything With Finance, Economics Has
To Be Considered With "Caution":
ASG Venkataraman Responding to the submissions made by Senior
Advocate Huzefa Ahmadi, ASG Venkataraman submitted that when the Union had
drawn the concept of OROP in 2013, it did not want to leave anyone post-independence.
"When we drew
it in 2013- we didn't want to leave anyone post-independence. Now my friend is saying
you've traveled in the past. ACP, MACP everything is bridged. When we wanted
the scheme to travel into the future and the policy makers instead of 10 years
decided for 5 years.
Court has to
understand. When we framed it we covered the entire past of 60/70 years," ASG submitted. He further added that, "To amend it through courts
directions- implications of this are not known to all of us. Anything with
finance, economics has to be considered with "caution". Period of 5 years
is reasonable in whole affairs of things & it has financial
implications."
Thursday, 17 February 2022
OROP : Supreme Court Seeks Clarifications From Centre On Impact Of MACP Benefits On "One Rank One Pension" Scheme
Wednesday, 16 February 2022
MINUTES OF THE OROP CASE HEARING TAKEN PLACE IN HSC ON 16/02/2022
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
Monday, 31 January 2022
ECHS CRITERIA FOR ALLOTMENT OF ROOMS IN EMPANELLED HOSPITALS
Sunday, 23 January 2022
TRIBUTE TO NETAJI A GREAT SON OF INDIA ON HIS 125th BIRTH DAY
Thursday, 20 January 2022
UPDATE OF OROP CASE HEARD IN SUPREME COURT ON 20/01/2022
OROP case was listed at no1 position today 20 Jan 22 in court no4 of Justice Dr DY Chandrachud bench. Court was to sit from 1030 to 1300h only.
ASG Mr N Venkataraman appeared from GOI.
OROP was represented by
Hujefa Ahmadi senior lawyer
Balaji Srinivasan AOR
Arunava Mukherjee
OROP issue came up at 1100h. ASG Mr N Venkataraman stated he will need full day to present his arguments. Our lawyer Mr Hujefa Ahmadi also confirmed that he will need 2 to 3 hrs to make his presentation.
Honourable justice Chandrachud advised that the arguments cannot be concluded today and he gave a next date 2 Feb 22 Wednesday for hearing the OROP issue. Case will be listed at no 1 on next hearing date on 2 Feb 22.
Go Capt VK Gandhi
Vice Chairman IESM
20 Jan 22