Wednesday, February 23, 2022

23.02.2022 : Hon'ble Supreme Court to continue hearing plea filed by Indian Ex Servicemen Movement seeking implementation of the OROP in the Defense Forces

DYC J: Mr Balaji, Ld ASG has filed an affidavit. Would you like to submit it? 

Counsel: We've filed it yesterday only.

ASG Venkataraman: Please see my affidavit my lords.

ASG: Questions posed by this court have been answered. Ive been taking 10 minutes in addressing their affidavit too.

Bench: Mr Balaji, how long will Mr Ahmadi take?

Counsel: 20 t0 30 minutes.

ASG: Please refer to page 2 of the affidavit. May I read that?

ASG further points out to the first answer wrt to Finance Minister’s speech dated February 17, 2014 wherein the Koshiyari Committee's recommendation was endorsed. ASG furhter reads- It was not based on any decision or recommendation by the then Union Cabinet.

ASG further reads the Approval Sought in the Union's affidavit.

DYC J: So past cases of PMR would have the benefit of #OROP?

ASG: Modification b/w 7 to 9 is only beneovelence.

Now come to "same rank same length of service V. MACP"

ASG further reads the contents of the affidavit filed by Centre in OROP. Contents of the affidavit can be read here:

OROP : Centre Files Affidavit In Supreme Court; Says Both 'Same Rank' & 'Same Length Of Service'...

In the affidavit, Centre has responded to the queries raised by the Court.

 ASG: A sepoy who does not complete the required length of service of 8 years & one who complete it, cannot be benchmarked together under any circumstance.

DYC J: A person who retires after 2006, he cannot acc to you who did not get it because he didn't put in 8 years. What about those who retired prior to 2006? They would not be applicable for MACP because that applies on pre 2006 retirees.

ASG: MACP & Non MACP there are 3 eras:

1. Post 2006 & thereon is MACP 8, 16 & 24

2. We introduced in 2003, ACP with 10, 20 & 30 as the yardstick.

3. Era, prior to 1973- they will neither be in ACP nor MACP.

ASG: When we took it as 2013- we have benchmarked. Everyone uniformity have been formulated.

ASG: Any assumption of disparity b/w ACP & MACP era, non ACP & MACP era, doesn't exist for “The percentage of retirees getting MACP benefits as indicated in the charts should not result in drawing any adverse inference that the rest have not secured MACP and therefore a consequential distinction or discrimination,” ASG further reads.

ASG now reads the policy document of November 7, 2015 which conveys the 5 aspects based on which #OROP is to be paid.

 “In any view since this Hon’ble Court has sought for a financial data of outflow that is likely to be incurred by the Union should non MACP be grouped with MACP personnel for payment of OROP, total financial outlay from 2014 would be range of INR Rs 42,776.38 crores,” ASG reads.

ASG further reads, "By any stretch of imagination, it cannot be read as same rank different length of service or same length of service different ranks. It precisely meets with the Constitutional test under Article 14 which is "unequals should not be treated equally" &..
... and "equals should not be treated to be unequally". Neither the Constitution nor the jurisprudence evolved by this Hon'ble Court over 70 years had mandated that everyone should be treated equally every

ASG now reads the contents of the affidavit with regards to ACP/MACP regime vis a vis

ASG: We have not discriminated any of the retirees in any form. Nath J: Things are much clearer now. ASG: We are grateful for this court for this guidance.

Kant J: When you say that at Time of OROP, what is the exact meaning of "financial implication"? Nath J: What is the direct impact of OROP? Kant J: If we presume that there is no OROP, what was the financial implication & when you introduced OROP, what was the implication?

ASG: For OROP we did 3/4 calculations. We took the max & the min & worked out an average. We originally thought that its in the range of some 5k crore but when we made it actually was 7123.38 crores. DYC J: Is 7123 is only on A/C of OROP? ASG: Yes only for #OROP.

ASG: Everything is added to OROP & that's why it slowly spirals. #OROP

ASG further reads: At the time of implementation of the OROP, the annual financial implication was in the order of INR 7123.38 Crores and the arrears which need to be computed for the period 01.07.2014 to 31.12.2015 was IN 10,392.35 CroresASG: Matching non MACP persons with MACP the figure would come to IN 9,411.71 Crores and the arrears for the period July 1, 2014 to December 31, 2015 would become IN 13,731.03 Crores

Kant J: Today also if widow is pensioners, is there any compulsion that if you decide to revise it then you firstly will have to pay.. DYC J: Where is the compulsion to pay arrears? Kant J: In both the tables, the highest value is of the arrears.

DYC J: In the age of social media every statement that is made by the bench says that it is view of the bench. We are discussing. Its only an effort to understand. Its just free flowing dialogue.

ASG: It is a policy choice. Underlying factor is, I had benefit of discussing it for 8 hours. We were 16 people consisting high officials. We had senior most members. Its very imp if the court seeks assistance. ASG: they said anything that you benchmark for the future... the effect. We have to draw a line somewhere. In policy its a choice.

DYC J: See there are various options. That it can be applied for gallantry award winners, widows. Now the next point is 5 years v. automatic.

ASG reads the contents of the affidavit on the aspect of 5 years v "automatic"

"Therefore, this out of context reference needs to be rejected. More importantly, the policy document states that OROP is to bridge the gap between the rates of pension of current and past pensioners, which objective has been duly complied with," submits ASG.

Kant J: Mr ASG, one small table is missing here. You as policy maker said 5 years, that's fine. But normally whether its MACP, honorary pension or OROP- whenever you revise it you fix the base & then annually you start adding DR or DA.

ASG: We are connected by golden mean.

Kant J: In civilian side when we talk of after 10 years revision, pay structure also changes. The basic pay also changes. In case of annual revision of #OROP, there is no change of annual basic structure.

Kant J: Only DR component, that'll probably merge into it. Automatically or probably as we could understand. Will it cause any financial implications?

ASG: I'll have to take instructions. DYC J: Mr ASG, you please take 5 minutes. Go to your chamber if you want to, have a meeting with the officials. We're here only.

ASG: Please come to page 15 of my affidavit. To just give how OROP worked. That's very imp. we have taken....

ASG refers to the table which deals with the financial implication on considering ACP/MACP with the substantive rank on the basis of average pension of INR 9411.71 crores. As matter of fact, we'll have to give DR. But #OROP computation is something higher.

ASG: When we take after 5 years, we take the last drawn pay which will have all the factors. Its not only arithmetical calculation of DR. But we also consider all the cumulative factor.

ASG: It's not merely aggregation of 5 years of DR. We also have to see 5 years from now. Its a commitment.

Kant J: After 5 years, there is financial impact. What is the diff b/w if you revise yearly & after 5 years. What will be the effect?

Kant J: In case of retiree while in service there are so many allowances attached to post you occupy. After retirement there are certain allowance which disappear but DR or DA, that continues.

Kant J: Applying this principle & considering the fact that what we are talking of retiree annually whose other allowance are hardly visible, maybe that impact is hardly visible. ASG: If we do something, that'll be walking extra mile. Anything you create ie fundamental aspect.

ASG: Heart of policy maker is as wide as a citizen but when we work in table & ultimately arrive at a policy, concerns are always baring. This concern you do it as 1 year today, make it for this case but what would be its repercussions in other areas.

ASG: First deviation which we have done is convert 10 years as compared to civilian to 5 years in OROP.

DYC J: Now lets look at Mr Ahmadi's affidavit.

ASG now refers to the affidavit by Sr Counsel Ahmadi: Now my lords

ASG: Please not this. The diff is travelling throughout the affidavit. All his calculations are based on this but the threshold is that he has not qualified for MACP.

ASG: In my affidavit, para 14 page 10.

ASG: It's purely new engineering going on & on & on.

Ahmadi: Please give me chance to reply on my affidavit.

DYC J: Mr Ahmadi, please let him complete his submissions. we'll not form an opinion without hearing the other party.

DYC J: If you submit first, we'll have to give him time to submit again. ASG continues reading the content of the petitioner's affidavit. ASG: Please come to para 9 of petitioner's affidavit.

Nath J: This was also discussed last time also. Those who retired post 2006, 90% qualified- they got MACP. That's what you said.

Nath J: Now that was the question as to whether they would get the same pension or not. "their length of service may be same but they wouldn't have got MACP because of their character roles.

ASG: We have said "everybody" in my affidavit. This calculation is completely "figment of imagination" Nath J: Then why do you give in your affidavit that because of MACP this would be the difference.

ASG: There is no disparity in ACP & MACP regime.

ASG: Court wanted calculation & that's what we have brought. You may have MACP & Non MACP regime as far as employment is concerned. Court wanted the detail, can we bridge MACP & Non MACP?

Nath J: This is the impact for diff length of services. Why all these figures? Court never asked you to compare MACP & Non MACP for diff length of years.

Nath J: Your calculations are for those who have rendered lesser years of service. that cannot be the case. ASG: It has to be same rank & same length.

ASG: Our table calculation says that parity has been made b/w ACP & MACP. Everybody is one. This equalisation has happened.

ASG: All the 3 examples, the persons have retired in different regime. Now when there's next revision- average will come.

Ahmadi: Therefore where does the concept of uniform pension go? That is the elephant in the room. After period of 5 years, we will go back to 1.5 years even for the purpose of equalisation. Again you'll go back to period of 1.5 years. This diff will keep on escalating further.

Ahmadi: It escalates. If you are saying... Word automatic does not have to be read, you are ignoring the word "uniform". How are you saying that it's uniform pension then?

Ahmadi: Entire arguments for uniformity is red herring. they don't want to do it annually because they don't want to do it for 5 years. Elephant in the room is these gaps & the hiatus will result in only increasing the gaps.

Ahmadi: Every time there will be increments, that will not be passed on. Any policy decision that you take if you call it uniform then the same should not be such that the substratum gets washed away.

Ahmadi: Why is it that I had to file the affidavit in rejoinder. At page 9, the charts are enclosed that I had given.

Ahmadi: What they have done is that in the chart, now they say in the affidavit is that we have not included the MACP amount. There's no question of equalisation here.

Ahmadi: Today is he saying that its a mistake? What's the case. There is a complete dichotomy.


ASG: There is no dichotomy. We have not distinguished anybody. If you're going to compare, someone who retires post the scheme we could not have factored. Now he's completely projecting the future.

Ahmadi: Union has been shifting its stand right from the time when statement was made on the floor of the house. 1st statement was made by the Fin Min. Then in Budget Speech- its made after minister of PM & entire cabinet's approval.

Ahmadi: Mr Jaitley's speech categorically adopts the def of OROP. To say that I am shifting my stand is not correct.

Ahmadi: Please see 1st column of number of years of service. Someone with 15 years of service- sepoy will get 6665. When you compare it with sepoy who retires in 2014- he gets 7605. Now its this disparity which has been explained by saying that 6665 does not include MACP.

Ahmadi: Your lordship has read that part of comprehensive affidavit & now compare it with the affidavit that they have filed. Ahmadi: Its arbitrary not to factor in MACP for the simple reason that even going by 2015 decision, OROP component will eschew the MACP. The periodic thing is very important.

DYC J: Give me a minute, I'll have to add pages. This is manageable. In GST matter, it flung. Now with electronic format is lot easier. Ahmadi: Some judge said, you call these "convenience completion". He said that if you actually submit them they are more than size of ppr book 

Ahmadi refers to the CAG's document. Mr Ahmadi, we'll break here. At 2:00 PM only 15 minutes please. Bench to assemble at 2:00.

DYC J: Sorry Mr Ahmadi, I had some administrative work.

Sr Adv Ahmadi to continue with his rejoinder submissions. #OROP

Ahmadi: Just very briefly my rejoinder affidavit is like my brief note. Please come to page 1. #OROP

Kant J: The present shame, beneficiaries are senior or lower rank officers? Who are actual beneficiaries? Ahmadi: Actual rank would go to the lower rank officers. 95%. They are the ones who have actually taken the matter. Almost 95% will be "lower rank" officers.

Ahmadi: Lower rank personnel. Please go to page 1 of the affidavit which deals with MACP. Ive already dealt with this & there is no need to read that.

Sr Counsel now deals with what would be the sequitur if fig of Rs 6665 did not factor MACP. if this is accepted, then it would throw the concept of OROP to the winds as 2 persons with same rank and same length of service would be getting Diff pensions.

Ahmadi: ASG's submission was that everything that happened prior to 7.11.2015 should be ignored- what it comes to is- the statement that was made & executive decision- all this is to be ignored. Taste of the pudding is ultimately in the eating. #OROP

(Source : LIVE LAW Twitter ac.)