The Supreme
Court on Wednesday agreed with the Centre's contention that any promise made in
Parliament on granting one rank, one pension (OROP), to retired armed forces
personnel was not legally binding. However, SC sought more details on the
number of people who would benefit from OROP and the Modified Assured Career
Progression Scheme (MACPS), which ex-servicemen contended hindered OROP.
A bench of
Justices DY Chandrachud, Surya Kant, and Vikram Nath posed some searching
questions to Additional Solicitor General N Venkatraman, appearing for Centre,
and wanted to know whether there was any policy prior to the commitments made
on the floor of the house on February 17, 2014, that government has agreed in
principle to grant OROP.
“We have to
deal with the fact that there is no statutory definition of OROP. It's a term
of Art and a policy decision. Their (petitioners) contention is that there is a
discrepancy between what was said in Parliament and the policy which ultimately
came. The question is whether that amounts to a violation of Article 14. Your
(Centre) hyperbole on the OROP policy presented a much rosier picture
than what is actually given to the pensioners”, the bench said.
Justice Surya Kant told Venkatraman that OROP benefits come
after the service period while MACP comes during the service period.
“We want to know how many people have got the MACP. You are saying
persons who have got the MACP are a different specific class. If 80 per cent of
sepoys get MACP, then will they get OROP? It seems MACP is a barrier to OROP”,
Justice Kant said.
The ASG said petitioners are trying to compare two un-comparable and
Sepoys who have qualified for and who have not qualified for MACP is not the
subject matter of the petition.
The bench then asked Venkatraman as to under the rules of the business,
who is the competent authority, who has taken the decision concerning the OROP.
The ASG replied that it is a decision taken by the union cabinet which
has resulted in the notification.
The bench
said that it would like to see the note, which culminated into the policy
decision to which Venkatraman said that he can place it on record but for the
court's eye only.
Justice
Kant said that the Centre was fully aware the MACP existed when it had issued
the notification and had full knowledge that it is only a fraction of
ex-servicemen, who will actually benefit from the OROP.
Venkatraman
said that the government after the government was not able to deliver on OROP
but this government came out with a policy and ultimately tried to deliver.
“OROP is
not a statutory term, it is a term of art. It is a policy which is
non-arbitrary. We have already spent more than Rs 50,000 crores. Maybe after
five years, we re-formulate the formula” the ASG said.
The bench
said that what the petitioners are saying is that by connecting OROP with MACP,
the Centre has reduced the benefits substantially, and actually the principle
of OROP is ultimately defeated.
Referring
to the earlier statement of the ASG that they have taken the mean of the
highest and lowest of the pension in the same rank and those below the average
were brought up and those above were retained, Justice Chandrachud said that
the Centre could not have brought down the highest pension holder, as they were
protected under the law.
The bench
said, “Your policy is one rank and one pension which is the heart and soul.
What actually has happened is that you gave different pensions due to MACP,
which has acted as a barrier to equal pension”.
Senior
advocate Huzefa Ahmadi and advocate Balaji Sirnivasan, appearing for petitioner
Indian Ex-servicemen Movement (IESM), said the sum and substance of the
Centre's arguments are that they are not inclined to give OROP but they will
have one rank different pension.
“They said that it could have been 10 years for periodic review but they
chose 5 years. A minister's statement on the floor of the house is not
enforceable but what about the morality of a statement being made. Where in
their policy have, they said that MACP will not be factored in? They have made
arguments beyond the realm of policy”, he said.
The bench said, “It cannot issue a mandamus to implement a statement
made in the Parliament. A minister's statement given during a budget speech is
not enforceable, that is our judgement. We will be turning 70 years of legal
precedents on its head if we do it”.
The hearing
remained inconclusive and would continue on February 23.
On Tuesday,
the top court had asked the Centre whether, after agreeing in principle to
OROP, it went back on its decision over automatically passing on any future
enhancements in pension to the pensioners.
On July 11,
2016, the top court had issued notice on the plea filed by IEMS through
advocate Balaji Srinivasan seeking implementation of OROP as
recommended by the Koshyari Committee with an automatic annual revision,
instead of the current policy of periodic review once in five years.
The IESM
has challenged the Centre's policy of periodic review of pension once in five
years, saying such an approach was the dilution of the February 26, 2014
announcement of government by which the revision in pension was to
automatically pass on to the past pensioners on an annual basis.
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