NEW DELHI: The Supreme Court on Wednesday reaffirmed the ‘one rank one pension’ (OROP) scheme of the Central government for ex-servicemen. The court said it does not find any constitutional infirmity on the OROP principle and the notification dated November 7, 2015.
The judgement by the bench of Justices DY Chandrachud, Surya Kant and Vikram Nath comes on a plea filed by an association “Indian Ex-Servicemen Movement” challenging the definition of OROP and the notification issued by the government in 2015.
“We must remember that (judicial) adjudication isn’t a right recourse in policy matters. This is not to say that this court will be shy in setting aside the policy when found in violation of fundamental rights. It is not a legal mandate that the person who held the same rank must have the same pension. Applying the above principle, we do not find any constitutional infirmity on the OROP principle and the notification dated November 7, 2015,” the bench said.
The apex court said that the Bhagat Singh Koshyari committee report, tabled in the Rajya Sabha on December 10, 2011, furnishes the historical background, the reason for the demand, view of the Parliamentary Committee which proposed the adoption of OROP for personnel belonging to the armed forces and beyond this, the Report cannot be construed as embodying a statement of governmental policy.
It held that governmental policy formulated in terms of Article 73 by the Union or Article 162 by the State has to be authoritatively gauged from the policy documents of the government, which in present case is the communication dated November 7, 2015.
A bench of Justices D Y Chandrachud, Surya Kant and Vikram Nath said that the canvass which is sought to be traversed in these proceedings under Article 32 of the Constitution trenches upon a domain which is reserved for executive policy.
"Applying the above principles to the facts of the case, we find no constitutional infirmity in the OROP principle as defined by the communication dated November 7, 2015," it said.
The top court's verdict came on the plea filed by the Indian Ex-servicemen Movement (IESM) through advocate Balaji Srinivasan against the Centre's formula of OROP.
The bench further said that in terms of the communication dated November 7, 2015, the benefit of OROP was to be effected from July 1, 2014 and the communication states that "in future, the pension would be re-fixed every five years".
"Such an exercise has remained to be carried out after the expiry of five years possibly because of the pendency of the present proceedings", the bench said, adding, "We accordingly order and direct that in terms of the communication dated November 7, 2015, a re-fixation exercise shall be carried out from July 1, 2019, upon the expiry of five years. Arrears payable to all eligible pensioners of the armed forces shall be computed and paid over accordingly within a period of three months".
The bench said while no legal or Constitutional mandate of OROP can be read into the earlier decisions of the top court, varying pension payable to officers of the same rank retiring before and after July 1, 2014 either due to (Modified Assured Career Progression) or the different base salary used for the calculation of pension cannot be held arbitrary.
"Since the OROP definition is not arbitrary, it is not necessary for us to undertake the exercise of determining if the financial implication of the scheme is negligible or enormous", it said.
"We must remember that adjudication cannot serve as a substitute for policy," it said, adding that most questions of policy involve complex considerations of not only technical and economic factors but also require balancing competing interests for which democratic reconciliation rather than adjudication is the best remedy.
Justice Chandrachud, who penned the 64-page verdict on behalf of the bench, quoted American philosopher Lon Fuller who described public policy issues that come up in adjudication as 'polycentric problems', that is, they raise questions that have a "multiplicity of variable and interlocking factors, decisions on each one of which presupposes a decision on all others".
The bench further said that an increased reliance on judges to solve matters of pure policy diminishes the role of other political organs in resolving contested issues of social and political policy, which require a democratic dialogue.
"This is not to say that this Court will shy away from setting aside policies that impinge on Constitutional rights. Rather it is to provide a clear-eyed role of the function that a court serves in a democracy. The OROP policy may only be challenged on the ground that it is manifestly arbitrary or capricious", the bench said.
Giving the reasons for finding no constitutional infirmity, the bench said that the definition of OROP is uniformly applicable to all the pensioners irrespective of the date of retirement.
"It is not the case of the petitioners that the pension is reviewed 'automatically' to a class of the pensioners and 'periodically' to another class of the pensioners", it said.
Dealing with the contentious issue of the cut-off date the bench said it is used only for the purpose of determining the base salary for the calculation of pension.
"While for those who retired after 2014, the last drawn salary is used to calculate pension, for those who retired prior to 2013, the average salary drawn in 2013 is used. Since the uniform application of the last drawn salary for the purpose of calculating pension would put the prior retirees at a disadvantage, the Union Government has taken a policy decision to enhance the base salary for the calculation of pension", it said.
The top court added that undoubtedly, the Union Government had a range of policy choices including taking the minimum, the maximum or the mean or average but the Centre decided to adopt the average.
"Persons below the average were brought up to the average mark while those drawing above the average were protected. Such a decision lies within the ambit of policy choices", it said.
It said that all pensioners who hold the same rank may not for all purposes form a homogenous class.
Giving an example, it said that amongst Sepoys differences do exist in view of the MACP and ACP schemes and certain Sepoys receive the pay of the higher-ranked personnel.
The Congress on Wednesday said the Supreme Court's decision rejecting ex-servicemen's demand for "One Rank, One Pension" was "not proper" and accused the Centre of not presenting full facts before the court.
Congress general secretary and the chief spokesperson of the party Randeep Surjewala said by denying "One Rank, One Pension", the BJP government has betrayed the interests of over 30 lakh ex-servicemen and posed a set of seven questions on why it denied them this benefit.
He said while the BJP seeks votes in the name of sacrifice and valour of soldiers when it comes to giving them OROP, it denies them the benefit.
He alleged that instead of "One Rank, One Pension", the government has given "one rank, five pensions" to the ex-servicemen.
"The BJP and the Modi government seek votes in the name of valour and sacrifice of soldiers but oppose 'One Rank, One Pension' to them in court. Not only this, this right of OROP to them was rejected by the Modi government after it told the Supreme Court that it is a policy decision and not their legal right," Surjewala told reporters here.
"The Supreme Court verdict is not proper as it is not based on facts. This decision of the Supreme Court is against the interests of over 30 lakh ex-soldiers of the three services."
"We request the prime minister, the defence minister and the government to implement 'One Rank, One Pension' without delay as approved by the UPA government on February 26 and April 24, 2014. Electoral victories in a democracy are meant to fulfil promises, not to break the trust of soldiers and ex-servicemen," he said.
Surjewala said the Supreme Court verdict came after the Centre opposed OROP and argued that it is a policy decision, which the court cannot decide.
He said the sacrifices of the soldiers are sacrosanct for all 140 crore Indians, but it is the bitter truth that Modi and the ruling BJP have been trying to make political capital out of it.
"Why is it that when it comes to taking credit for their sacrifice and consequently collecting votes, the Modi government is at the forefront, but when it comes to giving relief and 'One Rank, One Pension' to our soldiers and ex-servicemen, it causes obstructions by telling the Supreme Court that it is not their right?" Surjewala asked.
He said according to the BJP, "One Rank, One Pension" is not the right of the ex-servicemen as it will have financial implications.
The Congress leader said the UPA government had approved OROP for soldiers, but the Modi government did not implement it in the same spirit.
"Is depriving more than 30 lakh ex-servicemen of 'One Rank, One Pension' not a betrayal of the country's armed forces? What is the reason that the Modi government opposed OROP in the Supreme Court? What is the reason that the government is refusing to implement the UPA's decisions on OROP taken on February 26, 2014 and April 24, 2014?" he asked.
"What is the reason that despite the clear decisions of the UPA to implement OROP, the Modi government is refusing to accept these?" Surjewala asked.