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?"

 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 3^rd 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."