Can hardship of ex-servicemen be obviated if periodic revision reduced from five years: SC

PTI, Feb 23, 2022, 8:11 PM IST

New Delhi: The Supreme Court Wednesday asked the Centre whether the hardships of ex-servicemen be obviated to a certain extent if the periodic revision of One Rank-One Pension (OROP) is reduced from five years to a lesser period.

A bench of Justices DY Chandrachud, Surya Kant, and Vikram Nath, which reserved its verdict on a plea filed by the Indian Ex-servicemen Movement (IESM) against Centre’s formula of OROP, said that whatever it will decide, it will be on the conceptual ground and not on figures.

It said, “when you revise after five years, the arrears of five years are not taken into account. The hardships of ex-servicemen can be obviated to a certain extent if the period is reduced from five years to a lesser period”.

The top court said, “When we will decide the issue, we will not delve into the figures rather it will be on the conceptual ground. Figures are always a ‘dangerous territory’ to go into”. Additional Solicitor General N Venkataraman, appearing for Centre, said when the revision takes place after five years, the maximum last drawn pay which has all the factors is taken into account with lowest in the bracket and it is the golden mean which is being given.

“When we framed the policy, we didn’t want anyone post-Independence to be left behind. The equalisation was done. We covered the entire past 60-70 years. Now, to amend it through the court’s direction, the implications are not known to us. Anything with finance and economics has to be considered with caution. Period of five years is reasonable and it has financial implications also”, the ASG said. Senior advocate Huzefa Ahmadi and advocate Balaji Srinivasan, appearing for IESM, said that the court has to keep in mind that it relates to older soldiers, who fought man to man unlike soldiers of today’s time, who have sophisticated arms.

“It is the older soldiers who need the OROP the most. If we accept the submission of the Centre, it will be like allowing the illegality to continue, which the court wants to root it out”, he said.

Venkatraman submitted that the petitioner wants the government to look into the future and decide on the pension, which cannot be done. “We have bridged the gap of Assured Career Progression (ACP) and Modified Assured Career Progression (MACP). The policymakers in their wisdom decided that the revision should be after five years and not ten years”, he said.

Ahmadi reading from his rejoinder affidavit said that the communication dated November 7, 2015, dehors the earlier executive decision taken at a much higher level and is thus palpably arbitrary being inconsistent with the same. He said reading the communication of November 7, 2015, in isolation is erroneous and the notification dated December 14, 2015, substitutes the concept of automatic enhancement of pension with bridging the gap with periodic intervals. “Even assuming that the policy decision dated November 7, 2015, is only encompassed in the notification dated December 14, 2015, the same is arbitrary because by introducing the concept of periodic intervals, the period cannot be so large so as to make the concept of one rank-one pension illusory and in effect decree one rank different pensions”, he said.

Ahmadi added that this would be the practical effect of equalizing the pension after a period of five years and the equalization after five years is arbitrary and does not have statutory sanction as the same is not part of the notification December 14, 2015.

He added that the fixation of the calendar year 2013 and the effective date being fixed as of July 1, 2014, is yet again arbitrary and will result in one rank different pension and is not sanctioned by the notification dated December 14, 2015. “It is a well-known fact that the budget speech is made in Parliament after receiving prior approval from the Prime Minister and his cabinet. Rejecting the statement made by the then finance minister in his budget speech reflects poorly on the morality of the government”, Ahmadi said.

On February 21, the Centre had said that the statement on in-principle approval of OROP for defence services was made by then Finance Minister P Chidambaram during his interim-budget speech on February 17, 2014, without any recommendation by the then union cabinet.

“Respondent respectfully submits that this statement (of the then Finance Minister dated February 17, 2014) is not based on any decision or recommendation by the then Union Cabinet. On the other hand, the cabinet secretariat conveyed the approval of the Prime Minister in terms of Rules 12 of the Government of India (Transaction of Business Rules) 1961 on November 7, 2015”, the affidavit has said.

The clarification was given by the Centre after the top court had asked the government to clarify whether the statement made by the then Finance Minister on February 17, 2014, was based on any decision or recommendation by the Union Cabinet.

On February 16, the top court had said that Centre’s hyperbole on the OROP policy presented a much “rosier picture” than what is actually given to the pensioners of the Armed forces.

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.