The Supreme Court on Wednesday posed a slew of questions to the government on the current policy on One Rank One Pension (OROP) in the Armed forces.
The Bench comprising Justice D.Y. Chandrachud, Justice Surya Kant and Justice Vikram Nath asked three questions to the ASG.
“First how many persons have been granted ACP/MACP as a total proportion of various ranks, make a disclosure to us. Second, within that how many have been granted ACP, 2nd ACP, 3rd ACP? In all probability people would have been the 2nd and 3rd ACP, those people have continued for 24 years.”
One Rank One Pension is one of the long-standing demands of the Indian Armed forces and veterans.
It simply means that all the retired sepoys/soldiers of the same rank, who have retired after serving for the same length of service, will get the same pension, irrespective of the date and year of retirement.
ASG Venkatraman, appearing on behalf of the Union of India submitted, “This is not a legislation, this is also not a delegated legislation, this is an executive policy and the framework of the executive policy is discriminatory and arbitrary.”
The bench replied, “Problem is because your hyperbole on your policy presents much better and rosier picture than what is given. Eventually in the policy but the bottom line is ultimately what you have given…. Under the rule of business who is the competent authority to take a decision? and this executive and administrative decision…” the ASG relied on the notification dated November 7, 2015 which states that the decision of Cabinet Minister and Union Government.
ASG Venkataraman argued on three aspects, one that they say it should be automatic, not periodical. Secondly, reviewing once in 5 years is not acceptable, third is the chat which shows the comparison between the sepoys who retired after 2005 and sepoys who retired before 2005.
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The bench questioned ASG, “Suppose somebody retired in 1990 and the Modified Assured Career Progression (MACP) scheme came in 2006, the rank will still remain but the officer will get the different pay scale.” The ASG urged the top court not to bring MACP into the matter.
The bench while referring to Indian servicemen states to ASG, “According to them is that you’re giving MACP retrospectively from 2006 and according to you the perfect mathematical equality cannot be achieved? ASG nodded.”
ASG – “We can make a statement that if someone has post 2006 qualified for MACP, we have not brought it down OROP that is what we are trying to say. Whoever has qualified of MACP without any problem in their regular service.”
Justice Kant questioned, “That is why we want to know under MACP what is the approximate percentage of the Army personnel who have been granted the benefit? Because if the MACP is based on length of service, you see normally there is basic contradiction in MACP.
It is always based upon length of service and in Army length of service is only factor which is minimum as compare to other services. If you have factor of 9 years, 24 years- there will be hardly any person who will serve for 24 years. So, he may not even get MACP. As far OROP is concerned, it is a benefit which is meant for the stage of retirement or post retirement.
MACP is the benefit which is during the service. Now if you grant the class of person MACP and majority of the person denied that 80% denied then what is the OROP?
ASG: Someone qualifying for MACP & not for MACP is not the subject matter of this writ petition. If your lordship wants the policy, we will file it. We will place it on record.
Justice Kant replied, “It’s not within the subject matter but its important for OROP only for the purpose of OROP because it is your defence that a person who got MACP constitute a different and distant class. It is your plea. So therefore, you have to prove that the MACP people total strength is so low that it is probably inconsequential. For eg. if in the cadre of Sepoy, 80% of them will get MACP, there will hardly any difference as far as OROP is concerned. 80% definitely will get the same OROP. But if you are granting MACP say to 5%, 10% means 90% will be deprived of OROP
Justice Chandrachud added, there also larger number of people will get first MACP because of 8 years. Smaller portion will after the second because the number of people in army in 16 years would be less. 24 years will be much smaller.
J Kant- What it appears is that MACP has become barrier for grant of OROP.
ASG- it can also be viewed on the reverse side, taking your lordship example. Suppose 80-90% have not got MACP and everyone is bench mark on OROP in same way 90% of them are in a same bracket, that’s the way policy maker look at it. So, what we are trying to say is …
J Kant- suppose the purpose of your policy is defeated then what are the claim being made in grant of OROP.
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ASG- I will support with this case law…because this question also came by our mind and we discussed it. Clearly because the designation is the same and there has been a variation in the career in terms of disciplinary in terms of higher achievement, promotion, MACP J Chandrachud- can you show us what are the actual benefits as the result of OROP at various ranks and various lengths of service. What are the actual benefits?
ASG refers to the charts.
Further, Justice Chandrachud questions Adv Ahmedi, “people will hold the same rank and at the same length of service would never get the absolute equality on pay scale in the given service? Lets face we in a same rank, whether it is civilian or in a defence forces not like members of the judiciary within the same rank you have people whose emoluments are bound to be different, additional qualification, incentives that are given this is not absolute quality to the people of same rank in service. Therefore, when you are trying to equalise are you going to take the highest somebody is earning in that rank? Are you going to take the main? Because in that sense pension in the function of salary, basic salaries are same but actual salary in a service can be the same. It varies from person to person, therefore, when you equalising pension that is statement of policy but when you are equalising pension on the basis of differing underlying emoluments, emoluments are never absolutely equal. So when you are equalising pension what you take for the basis of equalisation and to what extent you allow and to extent you say No! you must have absolute equality by taking the highest? These are some of the issues which have to considered J Nath – one rank MACP has entered and some of majority of them have got MACP, nearly by getting ACP/MACP would it be a different rank or rank remains the same? That’s one question I put to Venkatraman also whether the ranks changes or not? There are two criteria, same rank and same length of service if both have worked for 25years in same rank they should get the same pension.
Justice Chandrachud asked for submissions and states, this is for the clarification first how many persons have been granted ACP/MACP as a total proportion of various ranks, make a disclosure to us. Second, within that how many have been granted ACP, 2nd ACP, 3rd ACP? In all probability people would have been the 2nd and 3rd ACP, those people have continued for 24years. In the women short commission officers, how many officers have actually lasted? We want you to tell us when a finance minister made a statement, was there any underlying policy which was approved by the Cabinet or was that a statement? Or otherwise it is the policy which is embodied in the notification. Is there any policy prior to that which has this affirmation? Which are the cases. Because there policies which says equalise the same rank or is there a policy only in the terms of the said notification? And you must tell us that if we direct MACP should be in for the purpose of calculation OROP what is the financial outlay on the government? Let’s say financial outlay is Rs 2000 crore, obviously the approach of the court would be very different from the outlay of Rs 10,000 crore. Another is, commitment made on the Floor of the House subject to the control of Parliament, those commitments made for the House even in budget speech of what is held is not enforceable. Therefore, we want to know which is the policy? Was any policy which were finalised by the government prior to the meeting? Was there any cabinet note prior to the notification?
The meeting, chaired by the Raksha Mantri on February 26, 2014, which has modalities for future enhancement, should be still dropped out. The Government letter to CGDA for prospectus implementation then 10th July 2014 Minister of Finance Budget speech then December 2, 2014 implementation of the modalities fixed and finally November 7 policy.
“We want you to tell us that which was these were statement of Government of India. Tell us on affidavit which are the statements. what is the final implication? Is there any specific exclusions in the policy to MACP benefits?
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The issue prevailed when in 2014, the Defence Minister announced that the government has agreed the principle of grant of One Rank One Pension (OPOR).
The plea preferred by the Indian Ex-servicemen Movement has challenged the notification issued by Union of Government dates November 7, 2015 where in while implementing One Rank One Pension principle created a class within a class and effectively granted one rank different pensions and under which gap created between the rates of the present pensioners and past were to be bridged at periodic intervals.
Col. Mukul Dev argued that if the Govt gives actual OROP, the total financial outlay would be about Rs 10,200 crore per annum, which works out to merely Rs 2031 per month per soldier, but the Government is reluctant.
Yesterday, Advocate Ahmadi argued that OROP notification dated 7-11-2015 is contrary to OROP scheme.
He submitted while seeking enhancement for past pensioners that Government should have modified it by now but they couldn’t…
“Para 3 of page 90 said that OROP cannot be equivalent to civilian Government employee. The term and condition of Armed forces are much harsher than Civilian Government employee. Life risk is always much high in Armed Force Services. The Defence Minister said on OROP that the uniform pension will be given to all three-Armed forces. The rate of pension on current pension or future pension will be enhanced.”
He further explained the salient features of OROP and further submitted that in Armed forces most of the personnel retire after 40 years while civilian personnel retire after 60 years. He emphasized on 3 main points, Pension should be re-fixed of past pensioner, Pension will be re-fixed by his designation and in future the pension will be re-fixed every time. He called the scheme misleading and suppressing the material fact. Out of the entire budget of MOD, 45 percent money goes to Weapon, 16 percent goes to vehicle, 16 percent goes to retired officers, etc.
Matter to be heard a day prior to the submissions.