'Sealed Cover Procedure Fundamentally Against Judicial Process, Want To End It' : Supreme Court To Centre In OROP Case

The Supreme Court on Monday refused to accept the sealed cover note submitted by the Central Government in the matter relating to disbursal of pension arrears to retired defence personnel under the One Rank One Pension (OROP) scheme.

On the previous occasions, the Defence Ministry had come under the fire of the Supreme Court for not adhering to the timelines for disbursing the OROP pension arrears.

When the matter was taken, Attorney General for India R Venkatramani presented a sealed cover note before the bench led by Chief Justice of India DY Chandrachud. However, the bench flatly refused to accept the sealed cover note and stated that it has to be shared with the other side. 

When CJI asked the AG to share the note with Senior Advocate Huzefa Ahmadi (who is representing the ex-servicemen), AG said, "It is confidential". However, CJI wondered what can be the secrecy here as the issue relates to the implementation of the Court orders.

"I am personally averse to sealed covers. What happens is, we see something, he does not see. And we decide the case without showing it to him. This is fundamentally contrary to the judicial process. There cannot be secrecy in the Court. The Court has to be transparent. Secrecy it is understandable in a case diary...the accused in not entitled to it, or something which affects the source of information or affects somebody's life. But this is payment of pension in pursuance of directions in our judgment. What can be the great secrecy in this? ", CJI told the AG.

AG however said that there are some "issues of sensitivity".

"When you claim privilege, we have to decide that claim",CJI stated.

"We need to put an end to this sealed cover procedure which is being followed in the Supreme Court because then the High Courts will also start following.  And this is fundamentally contrary to basic process of fair justice", CJI reiterated.

It may be noted that recently, the Adani-Hindenburg matter also, CJI Chandrachud had refused to accept the sealed cover note given by the Centre proposing names for the inclusion in the expert committee.

AG reads out the note :

Following this, AG read out the note which stated that the budget outlay was not sufficient to meet the expenses. The total number of pensioners range about 25 lakhs, and the OROP arrears would be in the range of Rs 28,000 crores. The budgetary outlay for the Union Ministry of Defence for 2022-23 was 5.85 lakh crores out of which amount of Rs 1.32 lakh crores is the planned expenditure for pension. Amount of 1.2 lakh crores has already been disbursed till February 2023 for 2022-23. The quantum of Rs 28,000 crores, which relates to the OROP arrears for 2019-2022, is an additional component.

The Union Ministry of Defence had taken up the matter with the Finance Ministry, which expressed its inability to provide the funds in one go and suggested a staggered payment, the AG's note stated.

"You can't pay attention to only one sector of paying pensions. It is about the economy.These are matters of fiscal policy...", AG said.

Ahmadi told the Court that these instalments were due way back in March 2019.

"They have served the country in best years of their life and why is that they are the last priority of the government", Ahmadi said. 

"After having said that we'll pay you in 2019, they're now saying they'll pay in April 2024. It's extremely unfair. This circular could not have been issued without consulting the highest level. It's not like they don't have money", Ahmadi urged.

Order passed by the bench

Following this, the bench, also comprising Justices PS Narasimha and JB Pardiwala, dictated the order with the following observations :

As a matter of fact, the Union Govt is bound to comply with the judgment of this Court in terms of the OROP scheme. At the same time, while fixing a time schedule for the payment, the material which has been placed on record has a significant bearing in regard to the compliance with the time line. The Union Govt has proposed that out of 25 lakhs, 4 lakhs do no qualify for OROP. Total number of pensioners to whom OROP pension has to be paid come in the range of 21 lakhs pensioner. Out of the 21 lakhs, Union has undertaken to pay the entirety of dues to 6 lakh pensioners comprising of family pensioners and gallantry award winners. Such a classification is made keeping in mind that family pensioners have lost the breadwinners, and gallantry award winners have given outstanding service to the nation. Union also proposed that pensioners above the age of 70 years, (about 4 lakhs) will be paid the dues within an outerlimit of 4-5 months. Out of the remaining, the arrears will be paid in three instalments by March 2024.

The bench then issued the following directions : 

1. The payment of OROP dues to family pensioners and gallantry award winners shall be made in one instalment on or before April 30, 2023.

2. The payment of OROP dues to pensioners who have completed the age of 70 years or above shall be paid on or before June 30, 2023. The Union Government shall either pay the entire dues in one instalment or will be at liberty to spread out the payment in one or more instalments within the outer limit of 30.06.2023.

3. The last trench of OROP remaining due to the balance of the pensioners shall be paid in equal instalments on or before 31.08.2023, 30.11.2023 and 28.02.2024.

The bench also recorded in the order that the AG specifically clarified that the spreading out of payments shall have no bearing on the computation of the dues for the purposes of next equalisation. 

Although Ahmadi requested for grant of interest for the delayed arrears, the bench refused.

On March 16, 2022, the Supreme Court, while upholding the OROP scheme, had directed the Centre to pay the arrears within a period of three months. The deadline was later extended by another three months in September 2022. In January 2023, the deadline was extended to March 15, 2023.

Later, the Defence Ministry issued a circular, unilaterally extending the deadline in the teeth of the Court order. The Supreme Court took great exception to the Defence Ministry's action and warned that the Defence Secretary will be hauled up for contempt.