OROP : Supreme Court Seeks Clarifications From Centre On Impact Of MACP Benefits On "One Rank One Pension" Scheme

In the plea filed by Ex- Serviceman Movement seeking implementation of the "One Rank One Pension"/ ("OROP") in the Defense Forces, the Supreme Court today sought Union's response on certain specific issues.

The bench of Justices DY Chandrachud, Surya Kant and Vikram Nath orally asked 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

(Note : These are oral queries made by the bench and do not figure in the written order passed by it after the hearings)

While the bench asked ASG to file an affidavit in this regard, Justice DY Chandrachud remarked, "Let the government also re appreciate its decision. Because you have made a commitment."

Comparison Which Was Made In Table Was Comparison Between Non Comparables: ASG N Venkataraman

When the matter was called for hearing, Additional Solicitor General N Venkataraman appearing for the Union drew court's attention to the Tabular Chart I presented by Senior Advocate Huzefa Ahmadi wherein emphasis was laid on Veterans who retired in 2014 drawing more pension than the veterans who retired between 1965 and 2013.

In this regard, the ASG contended that the pension payable to a Sepoy within 15 years of qualifying service under OROP and the actual pension of the Sepoy who retired in 2014 (before application of OROP) after 15 years of qualifying service was drawing pension in the rank of "Naik" due to the operation of MACP.

To further substantiate his contention, he said that the pay of different sepoys varied depending on whether the benefit of MACP Scheme had been granted to such Sepoy or not.

"You can't compare oranges and apples and make distinctions. They want MACP to be badged with non MACP & get the same scale. Within the same rank the pay scale because of MACP may vary but he retains the same designation. Our court has said that people may draw different salaries but having the same rank because of MACP. Now my friend says match me with Naik for OROP. Non MACP Sepoy and MACP Sepoy and asking them to match with MACP is claiming to get higher," ASG added.

What It Appears Is That MACP Has Become A Barrier For Grant Of OROP; Your Hyperbole On The Policy Presented A Much Rosier Picture Than What Is Actually Given: SC

At this juncture, Justice Surya Kant asked, "OROP is a benefit that comes after service period and MACP comes during service. Under MACP what is the approximate percentage who have been granted the benefit? MACP is based on length of service. If you have a factor of 8 years, 16 years and 24 years- there will be hardly any person who will serve for 24 years."

While ASG submitted that someone qualifying for MACP & not for MACP was not the subject matter of this writ, Justice Surya Kant said,

"It's not within the subject matter but it's important for OROP. If in the cadre of Sepoy, 80% of them will get MACP then they will get the same OROP. What it appears is that MACP has become a barrier for grant of OROP."

"There are also a larger number of people who will get the same MACP because of 8 years," Justice DY Chandrachud the presiding judge of the bench added.

Responding to the remarks posed by the bench, ASG submitted that the comparison which was made in the Table was a comparison between non-comparables.

To further highlight the issue, the ASG argued that the weighted average pension could never be compared with the actual amount being received by a defense personnel as pension fixed under the rules applicable for retiring the pension in the normal course.

"There's no statutory definition of OROP. It's a matter of art. The fact of the matter is "there is no statutory definition of OROP". When you've framed policy, you've given a particular definition. The fact that you have not gone further, is it violative of Article 14? Your hyperbole on the policy presented a much rosier picture than what is actually given," remarked Justice DY Chandrachud.

ASG at this juncture said, "It's a policy decision & it's neither a legislation or a delegated legislation. Minutes, statements & inter ministerial discussions do not become the force of law. Scope of challenge of any policy is extremely narrow."

"Under rules of business, who had taken this decision?" asked Justice Kant.

On ASG's submission that OROP was a decision by the Union Cabinet which was translated into the Notification dated November 7, 2015, Justice Kant asked ASG if it had the proposal which was issued by the Defense before the Union Cabinet.

"Another thing that appears from these 2 relevant documents is what was approved in para 9 was modified in para 7. We just want to see what was there. MACP was already in existence. You were aware of MACP when in 2015 or 2016 you issued OROP. You had full knowledge based on mathematical data that once the MACP continues there, there would be very minute benefit to ex-servicemen," Justice Kant further added.

Justice Kant also said that, "What they say is that by connecting OROP with MACP you have substantially reduced the beneficiaries. There is a classification created by MACP. For Eg: one is getting 800 & other is getting 1200 because of MACP & after they retire, the person will get more pension. The principle of OROP gets defeated."

ASG contended that there was neither a constraint or limitation or a mandate and the evolution of OROP had gone in a progressive way.

"There is no constraint or limitation nor mandate. Its evolution & has gone in progressive way. I'll show that when you talk about higher payout- this court has reasoned that consider the resources also. We have right now spent 50 crore on OROP also," ASG further added.

"Its your policy decision taken by you consciously. What has happened is, a persons had basic pay of 980 & other person had basic pay of 930- for this, you have equated them. But someone who was getting a higher pension - that equivalence you have denied," Justice Kant remarked.

On ASG's contention that the Government by OROP did not bring personnel drawing higher OROP to the golden mean, Justice Kant said, "Law does not permit you to bring 2000 to 800. That you could not have done."

"Its not governed by statute but a policy," replied ASG.

"By protecting those with 1200, you have done something which could've left them vulnerable. That's like pay protection. 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," Justice Chandrachud remarked.

Application Of Cut Off Date Is Policy Choice; Policy Not Discriminatory Or Capricious Within Class: ASG Venkataraman

Responding to the arguments raised by the petitioners on the applicability of calendar year of pension, ASG while laying emphasis on the principles of cut of date submitted,

"Court's have tested cut of date on principle- on the cut of date, have you done any discrimination? We have not done that."

ASG to substantiate his contention referred to the judgements in Union of India v Dinesh. D.S. Nakara & Others vs Union Of India 1983 AIR 130, Union of India v Parameshwar, SP Gupta v. President of India and Ors AIR 1982 SC 149.

Even Their Policy Decision Says "Periodic Interval" & They Don't Say That MACP Will Be Eschewed From OROP; Benefits Of The MACP Scheme Will Not Be Factored In While Considering OROP. Where Is It In The Scheme? Senior Advocate Huzefa Ahmadi

Senior Advocate Huzefa Ahmadi commenced his rejoinder submissions by contending that sum total of ASG's submissions was that the Union did not intend to give OROP but would be giving one rank different pension.

"The question is whether it is contrary to the policy decision which they've given. I don't dispute the proposition which they've cited. If you are taking away from impinging the concept, the headline is OROP. My friend said that we could have given after 10 years also & not 5 years also, is it even OROP?," Ahmadi added.

Emphasizing on the speech made by the Minister, Senior Counsel said, "What is the morality of the statement solemnly made by the Minister on the floor of the house? We sleep under the blanket of protection that these officers provide. OROP does not mean different pension for the same rank & not a periodic pension- the minister said."

He also questioned whether the benefits of MACP would not be factored in while considering OROP was there in the scheme or not.

"Even their policy decision says "periodic interval" & they don't say that MACP will be eschewed from OROP. Benefits of the MACP scheme will not be factored in while considering OROP. Where is it in the scheme?," Ahmadi added.

"Within the same rank, you have people whose emoluments are bound to be different for a variety of reasons. Incentive payments which are given, there is not absolute equality. When you equalize, what are you going to equalize? Pension is a function of salary & salary by very nature is same but salary in actual service can never be the same. When you're equalizing pension, its basis of policy. Emoluments are never equal. What do you take for equalization of pension? These are some of the issues," Justice DY Chandrachud remarked at this juncture.

"We need to understand that emoluments will vary. Someone who can be at higher rank cannot be at higher service due to stagnation. We consider him at that place for the pension. How do we define OROP is the point," ASG added.

At this juncture, Justice DY Chandrachud said, "How many persons have been granted MACP as the total proportion of various ranks. We want you to make that disclosure. How may have been granted 1st, 2nd ACP.

When the Finance Minister made a statement, is there any policy prior to that if there is any affirmation by the Cabinet?

If we direct that MACP should also be factored in for OROP, what would be the financial outlay of the government?

Commitments made in the floor of the house are subject to the parliament. Even budgetary speech is not enforceable. Was there a policy prior to RM's meeting? First is the Koshiyari Committee. Then we have 17th feb 2014, was there a policy? 3rd comes the 26 feb 2014, 4th comes the letter to CGDA for prospective implementation. 5th is the budget speech & 6th is implementation of once the modalities are fixed. We want you to tell us, which were these policy statements & which were within the realm of discussion?"

"Let the government also re-appreciate its decision. Because you have made a commitment," Justice Chandrachud remarked further.

Justice Chandrachud also asked ASG to also include in the affidavit the aspect as to whether there is any specific exclusion in its policy for MACP benefits.

"I can prove conclusively that it was not," submitted the Senior Counsel.

"But we have to hear from them. We cannot issue a mandamus to implement a statement made in the Parliament. If we start breaching this, we'll be turning the 70 years law," remarked Justice Chandrachud.

ASG at this juncture sought Court's permission to file the affidavit till February 23, 2022 to which the bench agreed and accordingly the hearing was adjourned to February 23, 2022.

Yesterday's arguments-  OROP : Supreme Court Starts Hearing Ex-Servicemen's Plea For 'One Rank One Pension'

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

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