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?"
assumption of
disparity between 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 financial implications?"
Responding to the
question posed by the bench, ASG said, "When we take after 5 years, we take the last drawn pay
which will have all the factors. It's not only arithmetical calculation of DR.
But we also consider all the cumulative factors. It's not merely an aggregation
of 5 years of DR. We also have to see 5 years from now. It's a
commitment."
"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."
