OROP : Centre Files Affidavit In Supreme Court; Says Both 'Same Rank' & 'Same Length Of Service' Necessary To Claim 'One Rank One Pension'

The Central Government has told the Supreme Court that both "same rank" and "same length of service" in defence services are necessary conditions for claiming One Rank One Pension (OROP) benefits.

In an additional affidavit filed before the Supreme Court, the Ministry of Defence further said that the Finance Minister's speech dated February 17, 2014 wherein the Koshiyari Committee's recommendations for OROP was endorsed was not based on any decision or recommendation by the then Union Cabinet.

The Centre further informed that revoking the benefits of Modified Assured Career Progression (MACP) are factored in for OROP, it will lead to a financial outlay of nearly Rupees 42,000 crores.

The affidavit has been filed in the plea filed by Ex- Serviceman Movement seeking implementation of the "One Rank One Pension"/ ("OROP") in the Defense Forces.

The bench of Justices DY Chandrachud, Surya Kant and Vikram Nath on February 16, 2022 had orally asked the Union to make a disclosure by way of an affidavit on the following aspects:

• Number of Personnels who have been granted Modified Assured Career Progression (MACP) as total proportion of various ranks.
• Number of personnels who have been granted 1st, 2nd ACP.
• Pursuant to the Finance Minister making a statement, was there any policy finalized that was the basis for the Statement.
• Financial outlay of the government, if directions are issued for factoring MACP for OROP. Is there any specific exclusion in the policy for MACP benefits?
• From Koshiyari Committee's recommendation, speech by Finance Minister dated February 17, 2014, minutes of the meeting chaired by Defense Minister dated February 26, 2014, letter dated February 26, 2014 to the Controller General of Defense Accounts, budget speech by Finance Minister dated July 10, 2014, which was Policy Statements and which were within the realm of discussion.
• Practical cases showing implementation of OROP and how many people have been benefited

The Center has further submitted that Financial Outlay of Rs 42,776.38 crore would likely be incurred by the Union if directions are issued for grouping non MACP with MACP personnel for payment of OROP from 2014.

"In any view since this Hon'ble Court has sought for a financial data of the outflow that is likely to be incurred by the Union should non MACP be grouped with MACP personnel for payment of OROP, the total financial outlay from 2014 would be in the range of INR Rs 42,776.38 crores," the affidavit states.

Finance Minister's Speech Dated February 17, 2014 Was Not Based On Any Decision Or Recommendation By Then Union Cabinet

The Center in the affidavit submitted before the Top Court has said that the Finance Minister's speech dated February 17, 2014 was not based on any decision or recommendation by the then Union Cabinet. Center further stated that the Cabinet Secretariat conveyed the Prime Minister's approval on November 7, 2015 following which the Gol, MoD, Department of Ex-servicemen Welfare conveyed the policy of OROP for the defense forces personnel.

"A post facto approval of the Union Cabinet dated 06.04.2016 was also conveyed by the Cabinet Secretariat on 07.04.2016," affidavit also stated.

"Same Length Of Service" Has Remained Throughout And One Who Had Not Put In The Same Length Of Service And Therefore Not Eligible For MACP Cannot Be Benchmarked With Personnel Who Has Qualified For MACP; One Cannot Take Only The Same Rank And Ignore The Length Of Service And Similarly One Cannot Merely Take The Length Of Service And Ignore The Rank

Objecting to the 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, Center has said that the same is unsustainable on facts and law.

"The contention of the Petitioners defeats one of the core values of the OROP, which is not only same rank but with the same length of service. This pair cannot be impaired. One cannot take only the same rank and ignore the length of service and similarly one cannot merely take the length of service and ignore the rank. The core parameter is same rank and same length of service. It is important to highlight that the expression "same" appears twice as "same rank" and "same length of service". By any stretch of imagination, it cannot be read as same rank different length of service or same length of service different ranks. It precisely meets with the Constitutional test under Article 14 which is "unequals should not be treated equally" and "equals should not be treated to be unequally". Neither the Constitution nor the jurisprudence evolved by this Hon'ble Court over 70 years had mandated that everyone should be treated equally every," affidavit states.

"It is important to highlight this condition "in the same rank in with the same length of service" had remained constant throughout. Therefore it is not left to the petitioners to contend that one should go by only the same rank and not same length of service and still grant OROP benefits. Such a plea is unsustainable both on facts and law", the affidavit adds.

For Computing OROP Benefits MACP Was Taken As Base & Applied Across The Board For All Retirees Having Same Length Of Service

Union has also stated that for the purpose of computation of OROP benefits, the Union has taken MACP as the base and has applied it across the board for all the retirees having the same length of service.

"It is clarified that it is not as though OROP was calculated in two parts as ACP regime and non MACP regime. Such a difference does not exist in OROP computation. that there is no disparity on account of this aspect. To reiterate, the core value of "uniform pension for a person retiring in the same rank with the same length of service" is maintained without any disparity," affidavit states.

Matching Non MACP With MACP Would Result In Financial Implication Of INR 42,776.38 Crores

Center in its affidavit has also said that at the time of implementation of the OROP, the annual financial implication was in the order of INR 7123.38 Crores and the arrears which need to be computed for the period 01.07.2014 to 31.12.2015 was IN 10,392.35 Crores.

It has further been stated that matching non MACP persons with MACP the figure would come to IN 9,411.71 Crores and the arrears for the period July 1, 2014 to December 31, 2015 would become IN 13,731.03 Crores.

Automatic Revision Of OROP Impossible To Implement

With regards to laying repeated emphasis on the expression, "automatic" for revising OROP automatically rather than once in five years, Center's affidavit says that this is impossible to put it as a scheme for implementation.

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

Rejecting the petitioners' argument, it has been stated that the documents (Koshiyari Committee Report, Minutes of Meeting Chaired by Defense Minister dated February 26, 2014, Executive Order dated February 26, 2014 and Executive Order dated February 26, 2014 to the Controller General of Defense Accounts) sought to be relied by the petitioner do not support such a construction.

"The Respondent seeks to point out that the above statement nowhere indicates or identifies any period of calculation. It is surprising the expression "automatically" is perceived and contended as something which is with reference to time or period. The expression "automatically" follows the expression "in the rates of pension to be automatically passed on to the past pensioners" The expression "automatically" should be read contextually meaning the rates of pension will be passed on to the past pensioners without any difficulties or impediments in terms of sanctions and other procedural interventions. It is surprising that the Petitioners read it as period and time. The above statement does not convey even remotely any committed manner of computation including periods and time. Therefore, this out of context reference needs to be rejected. More importantly, the policy document states that OROP is to bridge the gap between the rates of pension of current and past pensioners, which objective has been duly complied with," affidavit states.

The petitioners are represented by Senior Advocate Huzefa Ahmadi and the petition has been filed through Advocate on Record Balaji Srinivasan.

The mater is likely to be heard on February 23, 2022.

Case Title: Indian Ex Servicemen Movement (An All India Federation Of Military Veterans Organisation Represented Vs. Union Of India Department Of Exservicemen Welfare Ministry Of Defence Secretary| Writ Petition (Civil) 419/2016

Click here to read/download the affidavit