The government was pulled up by the Supreme Court over delay in implementing OROP and had a contempt petition coming up against it on September 28
By Venkatasubramanian
THE timing of the decision to implement OROP suggests that the ruling party at the center might have been concerned about an adverse political fall-out if it was dela-yed any longer. However, a plausible reason behind the timing is that any further delay might have led to a serious embarrassment in the Supreme Court. This is because on September 28, a contempt petition against the government for not complying with its direction to implement OROP, as given in its 2008 judgment, was slated to come up for hearing before a two-judge bench.
It was only on February 16 this year, that a two-Judge bench, comprising Justices TS Thakur and Adarsh Kumar Goel, while hearing this contempt petition, granted three months’ time to work out the modalities for implementation of the OROP. The bench had then warned that no further time would be granted for its implementation. Reports said Justice Thakur reminded the government: “This was part of your manifesto for the Lok Sabha elections. You must keep your word.”
Yet, when the same matter came up on July 8 before another bench comprising Justices Thakur and R Banumathi, the matter got adjourned to September 28, as the bench probably trusted the central government’s word that steps were being taken to implement it and that it would come up with its decision at the next hearing. It is unlikely, observers say, that the bench would have accepted any further excuses on the part of the government to delay the decision.
That apart, the Supreme Court’s judgment in 2008 in the case of Union of India vs SPS Vains (Retd) and others, which is the basis for the contempt petition before it, offers complete justification for OROP. Delivered by Justices Altamas Kabir and Markandey Katju, this judgment written by Justice Kabir, had held that there could not be disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter.
Respondents in this case had urged the court to consider differentiation between officers holding the same rank on the date of retirement as erroneous and violative of the right to equality guaranteed under Article 14 of the constitution.
The central government had argued that the Punjab and Haryana High Court, which had decided this case under appeal in the Supreme Court, had erred in directing that the pay of major-generals who had retired prior to January 1, 1996, be refixed according to the revised pay scales so as to give them the benefit of higher pension.
The respondents in the case had, however, contended that in view of the Constitution Bench decision of the Supreme Court in DS Nakara and others vs Union of India (1983), the fixation of a cut-off date as a result of which equals were treated as unequals, was wholly arbitrary and had been rightly interfered with by the High Court.
In DS Nakara, the Supreme Court had held that a class of pensioners could not be divided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired thereafter. Such a classification cannot stand the test of Article 14, the Court had held.
The central government justified the cut-off date in view of the limited financial resources available to cover the additional expenses if the pay scales were revised.
The respondents had warned that the arbitrary decision to discriminate between the two sets of officers belonging to the same rank in the matter of payment of pension was bound to adversely affect the morale of senior officers of the rank of major-general, which was, in fact, the feeder post to the rank of lieutenant-general from amongst whom the chief of army staff is ultimately chosen.
The Supreme Court had, in this case, dismissed the government’s appeal by directing that the pay of all pensioners in the rank of major-general and its equivalent rank in the two other wings of the defense services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from January 1, 1996.
The court had directed the government to pay the pensioners with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from the date of the judgment, that is, September 9, 2008, with interest at 10 per cent per annum. It is the central government’s failure to comply with this directive of the Supreme Court, which has led to the filing of the contempt petition.
A corollary to this decision of the government is whether OROP could apply to civilian pensioners. It is argued that military personnel do not serve for as long as their civilian counterparts as most soldiers retire between the ages of 38-40, while most officers retire at 55. This means that those joining the armed forces are expected to lose several years’ income. But the case for extending the OROP formula to civilian pensioners cannot be dismissed on this ground alone.
In 1971, a Constitution Bench of the apex court had held that pension is not a bounty payable on the sweet will of the government and that the right to pension is a valuable right vesting in a government servant. More significant, the Central Adminis-trative Tribunal (CAT)’s Principal Bench, in the case of All India S-30 Pensioners’ Association vs Union of India, (OA 937/2010 decided on 20.11.2014) had held that SPS Vains decision of the Supreme Court would hold good in the case of civilian officers also.
Thus, CAT held that the office memorandum dated 18.11.2009 of the central government (which said that the Supreme Court’s ruling in SPS Vains case was not applicable to civil pensioners) was illegal. It said it was contrary to the law laid down by the Supreme Court in SPS Vains and DS Nakara cases and the same was quashed and set aside by CAT.
As this decision of CAT still holds the field, the government cannot legally refuse to extend OROP to civilian pensioners unless it is successful in getting it overruled by the Supreme Court.
On May 29, 2015, legal expert Dr Ashok Dhamija in a post on his website, tilakmarg.com, supported this decision and suggested that any contrary rule would violate the fundamental right to equality guaranteed to the pensioners under Article 14. This Article mentions the right to receive the same pension when they retire from the same position with the same length of service, irrespective of the date of retirement.
The case for extending OROP to civilian pensioners appears to have some legal basis unless the government comes up with more convincing arguments against it.