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

The Supreme Court on Tuesday commenced hearing the plea seeking implementation of the "One Rank One Pension"/ ("OROP") in the Defense Forces.

The plea filed by Indian Ex Servicemen Movement averring that despite the assurance on floor of Parliament, what is being implemented is "different pensions for same rank depending on when the person retired", was listed before 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

Notification Regarding Implementation Of OROP Is Arbitrary & Contrary To Executive Decision; You Can't Introduce The Devil In Details:Senior Counsel Huzefa Ahmadi

Appearing for the Indian Ex Servicemen Movement, Senior Advocate Huzefa Ahmadi submitted that the notification dated November 7, 2015 regarding implementation of OROP was arbitrary and contrary to the Executive Decision itself.

"Notification uses "periodic" & further elements of inequality. That renders it arbitrary on the face of it," Senior Counsel added.

To substantiate his contention in this regard, the Senior Counsel relied on the Budgetary Speech of the Finance Minister of 2014 wherein the Koshiyari Committee's recommendation was endorsed. Koshiyari Committee had recommended for grant of OROP which implied payment of uniform pension to Armed Forces Personnel who retire on the same rank with the same length of service, irrespective of their date of retirement

Senior Counsel also referred to the speech of the Minister of Defense on February 26, 2014 following which the Controller General of Defense Accounts was directed to work out modalities which was further reaffirmed on 10 July 2014 by the Finance Minister and on 2 December 2014 by the Minister of State for Defense.

"You can't introduce the devil in the details. Now you're putting riders," submitted Senior Counsel.

Implementation Of This New Definition Of OROP Defeats The Very Principle Of OROP By Creating A Class Within A Class Of The Same Officers, Which In Practice Tantamounts To One Rank Different Pensions: Senior Advocate Huzefa Ahmadi

It was also Senior Counsel's contention that Pension equalization every five years would result in the grave disadvantage to the past retirees. To further elaborate on this contention, counsel argued that it was necessary for revising pension benefits automatically instead of periodic revision of 5 years as when the next pay commission recommendations will be applied, past pensioners will still be kept 1.5 years behind because of this periodic revision.

"Whatever reasonable period your lordship feels may fix that. There is a huge hiatus of 5 years & then of 1.5 years. Practically though effectively there is almost a hiatus of 1.5 years," Senior Counsel added.

On Senior Counsel's submission, Justice DY Chandrachud the presiding judge of the bench said, "There are 3 concepts:

• Those retiring from the same rank from same service get same pension irrespective of age of retirement
• Revision has to be automatically passed on.
• Bridging the gap between the rate of pension of present and past pensioners."

"Unless you weave all 3 into 1. Take away any one of these, the practical effect would be that you will have one rank differently," submitted Ahmadi in response.

"Once you have occupied 1 rank in the same length of service, you should get the same pension irrespective of when they retire. Revision has to be automatically passed on. Automatically passed on is an ideal concept. Koshiyari makes a distinction between Armed Forces and Central Government Employees. Revision is always periodic. That's the contention," remarked Justice Chandrachud further.

It was also Senior Counsel's contention that fixation of pension as per calendar year 2013 would result in past retirees (pre 2014) getting less pension of one increment than the soldier retiring after 2014.

On the aspect of fixation of pension as mean of Minimum and Maximum pension, Senior Advocate contended that fixing pension as mean of Min and Max pension of 2013 would result in different pensions for the same ranks and same length of service and the past retiree would get 1.5 increment lesser on account of such fixation.

"Government is a good businessman," remarked Justice Nath.

"Ultimately it's a question of money. When they fix up pension after 5 years, do they give arrears of the past?," asked Justice DY Chandrchud.

Answering in negative, Senior Counsel to answer the question posed by the bench said, "That is gone."

During the course of hearing, Senior Counsel referred to the judgements in Union of India v SPS Vains, (2008) 9 SCC 125 and Union of India v Dinesh. D.S. Nakara & Others vs Union Of India 1983 AIR 130.

"You're essentially calling the scheme OROP but you can't give one rank a different pension. There was widespread agitation. You are saying that you're giving OROP but giving something else. Armed forces have given their best years to the country," submitted Senior Counsel while concluding his submissions.

Status Of November 7, 2015 Notification To Be Considered As Executive Policy; Whatever Had Happened Before November 7, 2015 Should Be Treated As Only Discussions And It Was Not A Policy Communicated For Enforcement: ASG Venkataraman

Appearing for the Union, Additional Solicitor General N Venkataraman submitted that the notification dated November 7, 2015 was neither a legislation nor a delegated legislation but conveyed the decision of the Union as an executive policy. He further added that the testing standards of the executive policy were very limited on the ground of the same being discriminatory, arbitrary or capricious.

"2015 circular is not a legislation or delegated legislation but it is views of the policy. Therefore it is not done at a lower level. It is not circular of that sort but conveys the decision of the Union as an executive policy. Status of this is to be considered as executive policy. The testing standards of executive policy is very very limited until otherwise it is discriminatory, arbitrary or capricious. These are standards that have evolved over time. Does this circular suffer from arbitrariness, discriminatory treatment or capricious. We have to clarify what we have tried to achieve within the constraints of the government and how we have achieved equality," ASG submitted.

At this point, Justice Chandrachud asked the ASG :

"1st decision was announced in 2014. Then comes RM's meeting of 26.02.2014. The decision is that modalities were to be chalked out. Then the Minister of Finance's budget speech of 10th July. Did the govt take the decision to roll back the 3 principles of OROP -namely the same rank, same person to get the same pension irrespective of date of retirement? Has there been any roll-back? We are not saying that you must change it by the day. But where do you get these 5 years from? Why can't we do it once annually?".

Responding to the remarks made by the bench, ASG said that whatever had happened before November 7, 2015 should be treated as only discussions and it was not a policy communicated for enforcement.

"Whatever has happened before 7.11.2015 please treat them only as discussion & its not policy communicated for enforcement. What should bind the discussion of the test of challenge? 7.11.2015 will be standard circular. Anything proceeding that culminates in the final view. They are raising 3 grounds & we'll address the 3 grounds. How does it become an implemented or enforceable policy ? These are actually discussions. Can the statement of the Finance Minister in the budget speech become law?" submitted ASG.

"Anything prior to November 7, 2015 do not reflect the union's discussion as to this is what we want to implement. These are all dynamic discussions & policy issues. Policy making choices are not easy. You have to see so many people. Policy is what the Union Government endorses. We are not approbating & reprobating," ASG further added.

Budget Has Risen After Implementation Of OROP; Salaries, Pension & OROP Are Distinct Items In The Defense Budget & Should Not Be Mixed With The Other: ASG

During the course of hearing, the ASG also referred to the budgetary allocations to apprise the bench of the framework within which the decision was taken.

"In our planned budget of 4,71,000 crore, 34.89 crore & 28.39 crore which is almost 60% plus OROP goes as salaries & pensions. Modernisation, mechanization there are so many priorities which we need to also. Our personnels have to be armed properly to defend. That is also part of this expenditure."

It was also his contention that the budget has risen after implementation of OROP.

Objecting to the comparison between civilian pension and army, ASG said, "Even in the army there is civil force & people who go to the field. Number of defense personnel is 25 lakhs and the number of civil personnel is 5.5 lakhs so total 30.5 lakhs and expenditure for the year for defense personnel is 1 crore 6 lakhs approximately. Defense civilians are 26000 crore. So expenditure comes out to 1 lakh 32 thousand crores for pension alone in 2019-2020. I want my friends to understand the scale in which they spread it. They should understand the larger canvas first. It's very important. This is the canvas in which we're discussing the OROP structure which is costing as an additional expenditure which we're committed to."

"We're not testing the amount of pension paid to civilian and army officers. We are not comparing that" remarked Justice Nath.

"Salaries, pension & OROP are distinct items in the defense budget & should not be mixed with the other. Any number relating to pension & comparison- please do not allow that to infiltrate it into this case," ASG further submitted.

The bench would continue hearing the matter tomorrow.

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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