TaxTMI 
TaxTMI 
2022 (3) TMI 1556
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.... Chiefs of three defence forces. The letter defines OROP as the payment of uniform pension to armed services personnel retiring in the same rank with the same length of service, irrespective of the date of retirement. OROP, in terms of the letter, aims to bridge the gap between the rate of pension of current and past pensioners at periodic intervals. The Petitioners contend that in the course of implementation, the principle of OROP has been replaced by 'one rank multiple pensions' for persons with the same length of service. The Petitioners contend that the initial definition of OROP was altered by the first Respondent and, instead of an automatic revision of the rates of pension, the revision now would take place at periodic intervals. The Petitioners submit that the deviation from the principle of automatic revision of rates of pension, where any future enhancement to the rates of pension are automatically passed on to the past pensioners, is arbitrary and unconstitutional Under Articles 14 and 21 of the Constitution. 2. The salient facts giving rise to the proceedings need to be stated. The demand for OROP by ex-servicemen of the defence forces was initially examined....
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....sonnel and has given birth to their demand for OROP. The Committee understands that before the Third Central Pay Commission, the defence personnel were getting their pay/ pension on the basis of a separate criteria unconnected with the criteria devised for the civilian work force. That criteria acknowledged and covered the concept of OROP which has been given up after the Third Central Pay Commission. 11.5 The Committee is not convinced with the hurdles projected by the Ministry of Defence (D/o Ex-Servicemen Welfare) in implementing of OROP for defence personnel. They have categorized the hurdles into administrative, legal and financial. The financial aspect has already been dealt with by the Committee. So far as the administrative angle is concerned, the Committee is given to understand that all the existing pensioners/ family pensioners are still drawing their pension/family pension based upon the lawfully determined pension/family pension. In that case, revision of their pension/family pension, prospectively, as a one time measure should not pose any administrative hurdle. So far as the legal aspect is concerned, the Committee is not convinced by the argument put forth ....
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....d to retired servicemen having the same rank with the same length of service, irrespective of the date of retirement, with any future enhancement in the rates being passed on to the past pensioners automatically. 5. The above sequence of events has been emphasised by the Petitioners to highlight that OROP always entailed an automatic revision of the rates of pension to bridge the gap in the pension being received by past and current pensioners. However, according to the Petitioners, a letter dated 7 November 2015 of the Joint Secretary of the first Respondent to the Chiefs of three defence forces introduced a revised definition of OROP, where the revision between the past and current rates of pension was to take place at periodic intervals. Besides stating that OROP would take effect from 1 July 2014, the letter also highlighted the salient features of OROP: 3. Salient features of the OROP are as follows: i. To begin with, pension of the past pensioners would be re-fixed on the basis of pension of retirees of calendar year 2013 and the benefit will be effective with effect from 1.7.2014. ii. Pension will be re-fixed for all pensioners on the basis of t....
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....on was to be revised upwards by implementing the basic pension drawn on 31 December 2015 by a multiplication factor of 2.57. The Petitioners have highlighted that owing to the periodic revision of the pension rate according to the revised definition, the pension of many ex-servicemen would not be updated to the 31 December 2015 level. 9. A post-facto approval of the Union Cabinet for implementation of OROP was received on 6 April 2016 and was conveyed by the Cabinet Secretariat on 7 April 2016. The proposal, which was approved by the Union Cabinet is as follows: 9.1. Ex-post facto approval of the Cabinet is solicited for implementation of One Rank One Pension as under. 9.1.1 The benefit will be given with effect 1st July, 2014. 9.1.2 Pension will be re-fixed for pre 01.07.2014 pensioners retiring in the same rank and with the same length of service as the average minimum and maximum pension drawn by the retirees in the year 2013. Those drawing pensions above the average will be protected. 9.1.3 The benefit would also be extended to family pensioners including war widows and disabled pensioners. 9.1.4 Personnel who opt to get discharge....
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....ferent pensions. This is also contrary to the judgment by this Hon'ble Court in Union of India v. S.P.S. Vains, (2008) 9 SCC 125. Another fallacy in the new definition of OROP which detracts from the principle of OROP is: (iii) Pension Equalization every five years. It is submitted that Pension equalization every five years would result in the grave disadvantage to the past retirees. This Court directed the first Respondent to scrutinise the grievances raised by the Petitioners. Pursuant to the order, the first Respondent filed an affidavit on 5 December 2019 submitting that after extensive consultations with experts and ex-servicemen, the Union Government decided that it is practical and feasible to revise the pension under OROP every five years. The average of the minimum and maximum pension in calendar year 2013 was decided to be taken as the revised pension of all pensioners retiring in the same rank and with the same length of service. At the same time, the first Respondent chose to protect the pensioners who were drawing pension above the average. Thus, it was submitted, that the implementation of OROP has benefitted the past pensioners, thou....
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.... on retirement. However, the pension of soldiers who retired earlier than 2013 would be fixed on the basis of the pension of the retirees of the calendar year 2013. This would lead to a situation of one rank different pension; Rank: Sepoy (Group Y) I II III Length of Service Pension of sepoys who retired between 1965-2013 (as per Notification dated 3 February 2016 which applies to this category with effect from 1.07.2014 Pension of sepoys who retired in 2014 (as per Pension Payment Order of 2014 which applies to this category) Difference between I and II multiplied by 2.57 as per report of the Seventh Pay Commission 15 years Rs. 6665 (as on 01/07/2013) Rs. 7605 Rs. 940 x 2.5= Rs. 2415 Figure-1 (vii) The pension of the past pensioners is further lowered by the re-fixation of pension based on the average of the minimum and maximum pension of personnel retiring in the calendar year 2013, as compared to personnel retiring on or after 1 April 2014. In some cases, a past pensioner who retired before 2014 receives pension lower than personnel of a lower rank retiring on or after 2014. For instance, if the new definition is fo....
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....erefore, defence retirees before 2014 would get pension with reference to the minimum of the pay bracket, irrespective of the fact that they held higher posts such as Major General and Lt. General; (xi) All Havildars were granted the honorary rank of Naib Subedar. They must thus be given the pension of Naib Subedar; (xii) All personnel who retired as Major after thirteen years of service as Commissioned Officers should be given the pension of Lt. Colonel since Commissioned Officers now automatically become Lt. Colonels after thirteen years of service; (xiii) All veterans who retired before 2004 as Lt. Colonel should be given the pension of Colonel since all Commissioned Officers now automatically retire as Colonel; (xiv) While the Government defines OROP as a "uniform pension to be paid to the defence personnel retiring in the same rank, with the same length of service regardless of the date of retirement", it creates a class within a class based on the date of retirement; (xv) The decision to define OROP in narrow terms is an executive act which can be judicially reviewed and is not a policy decision; (xvi) According to the let....
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....onnel is less than twenty six years was introduced in 1973. If a soldier has served for less than twenty six years then his pension would be reduced pro rata of X (number of years served) % 26. The Government has not updated the basic pay of soldiers and did not bring it at par with the 31 December 2015 pay before multiplying it with the factor of 2.57. At the same time, the pension was altered from being rank based to 50 percent of the last drawn pay. This resulted in double loss to ex-servicemen. This Court has also struck down the Rule of reducing pension if an employee has served less than twenty six years; (xxiv) While the Respondents have submitted that an amount of Rs. 10,795 crores has been paid as arrears for OROP in two years, it only amounts to an average increase of Rs. 2131 per month per soldier. The Union Government is spending a higher amount of funds for Central Government employees and pensioners; (xxv) The Union Government has spent Rs. 32,385 crores for OROP in six years which is less than its spending of Rs. 27,800 crores per year for the scheme of Non-Functional Upgradation. The Union Government consistently has been spending less on the armed....
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.... force of law. Therefore the reference made by the Petitioners to the minutes of the meeting to argue that the definition of OROP has been altered is unsustainable; (vi) The scheme/policy can be challenged on the grounds of arbitrariness but a demand to substitute the policy cannot be made; (vii) The disparity alleged by the Petitioners in the pensions of the defence personnel with the same rank and same length of service has been wrongly depicted on account of the OROP scheme. An artificial disparity has been shown by equating different classes of pensioners; (viii) In Figure 1 of the chart produced by the Petitioners, they have compared the pension payable to a Sepoy with 15 years of service under the OROP Scheme and the pension of a Sepoy who retired before 2014 (before the application of OROP) after fifteen years of service who is drawing pay in the rank of Naik due to the MACP Scheme introduced pursuant to Circular No. 555 dated 4 February 2016; (ix) The pension figure of Rs. 6,665 is arrived at by taking the average pension of the maximum and minimum pension of 2013. However, the figure of Rs. 7,605 is calculated on the basis of 50 percent ....
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....t has held that unless the claim of OROP can be treated to be flowing from the reliefs provided in Nakara (supra), the reliefs claimed cannot be granted. It was also observed that the decision in Nakara (supra) cannot be enlarged to cover within it all the claims made by the pension retirees since the purpose of computation of the pension is different. The decisions in K.L. Rathee v. Union of India [SLJ 1997 (30 207)] and Suchet Singh Yadav v. Union of India [(2019) 11 SCC 520] support this submission; (xviii) The Committee headed by Justice L. Narasimha Reddy submitted its report to the Union Government. The Internal Committee is examining the feasibility of the recommendations; (xix) The recommendations of the Koshyari Committee were not accepted by the Union Government and are thus not binding upon it. The recommendations of the Committee cannot be termed as the decision of the Union Government; (xx) Since the Sixth Pay Commission, the length of service is no longer a criterion for calculating pension. The pension is now determined by 50 percent of the last pay drawn. However, due to demands, OROP rates have been prepared based on the average pension o....
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....n and urged the following specific submissions during the course of the hearing: (i) The Union government took an executive decision to implement OROP as understood by the Koshyari Committee. This is evidenced by: a. The statement of the Minister of Finance in the Lok Sabha on 17 February 2014; b. The decision taken on 26 February 2014 in the meeting convened by the Union Minister for Defence; c. The letter dated 26 February 2014 of the Union government to the CGDA; d. The Budget speech of the Minister of Finance on 10 July 2014; and e. The reply of 2 December 2014 of the Minister of State for Finance to Member of Parliament. (ii) The essential elements underlying the concept of OROP are: a. Those retiring from the same rank with the same length of service must receive the same pension irrespective of the date of retirement; b. Future enhancements of pension must be automatically passed on to past pensioners; and c. Bridging of the gap between the rate of pension of present and past pensioners. (iii) In substitution of the above principle underlying OROP, the communication dated 7 Nov....
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.... retirement and any future enhancement in the rates of pension must be automatically passed on to past pensioners. While proposing the adoption of OROP in principle, the Koshyari Committee highlighted that: (i) OROP was in vogue till 1973 when the Third Central Pay Commission decided otherwise; (ii) Unlike civilian employees who retire by age, armed forces personnel retire by rank; and (iii) The conditions of service of personnel from the armed forces are harsher than those of civilian employees and armed forces personnel cannot be equated with civilian employees of the government. 17. Now it needs to be understood that the Koshyari Committee Report is a report submitted to the Rajya Sabha by the Committee on Petitions. The report cannot be enforced as a statement of government policy. In Kalpana Mehta v. Union of India [(2018) 7 SCC 1], a Constitution Bench of this Court dealt, on the reference Under Article 145(3), with two issues namely: 9...73.1. (i) Whether in a litigation filed before this Court either Under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliament....
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.... it was sought to be remedied. The judgment elaborates that: 264. Committees of Parliament attached to ministries/departments of the Government perform the function of holding the Government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject-matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a Parliamentary Committee. The work of a Parliamentary Committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts Under Article 226 or of this Court Under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by Parliamentary Committees in the field. The work of the committee is to secure alacrity on the part of the Government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues ....
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....s not proceed to permit the parties to question and impeach the reports. 20. The Koshyari Committee Report can be relied upon to indicate the background of the adoption of OROP. The report furnishes the historical background, the reason for the demand, and the view of the Parliamentary Committee which proposed the adoption of OROP for personnel belonging to the armed forces. Beyond this, the Koshyari Committee Report cannot be construed as embodying a statement of governmental policy. 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 7 November 2015. Prior to it, on 17 February 2014, a statement was made by the Union Minister of Finance in the Lok Sabha while presenting the interim budget for 2014-15 stating that the government had accepted the principle of OROP for the defence forces and that the decision would be implemented from financial year 2014-15. The statement of the Union Minister of Finance reflects an in-principle decision to adopt OROP for all personnel belonging to the armed forces. Evidently, th....
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....t: 2. It has now been decided to implement "One Rank One Pension" (OROP) for the Ex-Servicemen with effect from 1.07.2014. OROP implies that uniform pension be paid to the Defence Forces Personnel retiring in the same rank with the same length of service, regardless of their date of retirement, which, implies bridging the gap between the rates of pension of current and past pensioners at periodic intervals. [sic] Paragraph 3 of the communication adverts to the salient features: 3. Salient features of the OROP as follows: i. To begin with, pension of the past pensioner would be re-fixed on the basis of pension of retirees of calendar year 2013 and the benefit will be effective with effect from 1.7.2014. ii. Pension will be re-fixed for all pensioners on the basis of the average of minimum and maximum pension of personnel retired in 2013 in the same rank with the same length of service. iii. Pension for those drawing above the average shall be protected. iv. Arrears will be paid in four equal half yearly instalments. However, all the family pensioners including those in receipt of Special/Liberalized family pension and Gallantr....
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.... record prior to the communication dated 7 November 2015 suggests that the process of revising pensions was to be continued on an ongoing basis as opposed to revision at periodic intervals. 25. The fallacy in the submission of the Petitioners is in the argument that the policy communication dated 7 November 2015 is contrary to the original decision which was taken by the Union Government to implement OROP. Implicit in the submission of the Petitioners is the premise that the original decision was based on the Koshyari Committee Report followed by the statement on the floor of the House by the Minister of Finance (17 February 2014 and 10 July 2014) and the minutes of the meeting convened by the Defence Minister (26 February 2014). Our analysis of the underlying document indicates that while a decision to implement OROP was taken in principle, the modalities for implementation were yet to be chalked out. Thus, there was no conscious policy decision on the part of the Union Government on the modalities for implementing OROP until the communication dated 7 November 2015 came into being. The communication of 7 November 2015 cannot be invalidated on the ground that it infringed the &#....
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....ppel, being a private law concept, can be invoked if the State has entered into a private contract with another entity but is inapplicable where a representation has been made by the State in the discharge of its public functions. The doctrine of legitimate expectations is applicable in the latter situation. Noting that in India, the two doctrines have been conflated, this Court went on to analyse if the change in an existing government policy violates the legitimate expectations of those who were previously covered by such policy. However, in the present case, there was no concrete government policy in existence prior to 7 November 2015. There existed only certain assurances that were made by the Ministers, or which could be deduced from the minutes of a meeting that was chaired by the Minister of Defence. These assurances were also to the effect that OROP has been accepted in principle. The implementation was yet to be worked out. In State of Arunachal Pradesh v. Nezone Law House [(2008) 5 SCC 609], a two-judge Bench of this Court held that when the views of various departments/Ministries are involved, an oral promise by a Minister does not bind the government. In that case, a la....
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....precise modalities which were to be adopted was yet to take place. This eventually took place on 7 November 2015. The communication dated 7 November 2015 cannot, therefore, be assailed on the ground that it is contrary to the original intent of the policy formulated by the Union Government. The policy of the Union Government is what is embodied in the communication dated 7 November 2015. The statements made on the Floor of the House and minutes of ministerial committees are pointers to the fact that the Union Government had in principle decided to implement OROP but the precise framework of its implementation was a matter of evolving discussion within Government. The formulation of modalities which took place in the communication dated 7 November 2015 represents the policy choices adopted by the Government. 28. While the communication dated 7 November 2015 is undoubtedly open to be scrutinised on constitutional parameters, there is no substance in the plea that the decision which was taken on 7 November 2015 is somehow contrary to an original policy decision of the Union Government. The policy and its modalities for implementation are those which have been embodied in the commun....
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.... by the following: S.No. Particulars Amount 1. Last Pay 10,510 2. Grade Pay 2,400 3. MSP 2,000 4. Class Allowance 300 5. TOTAL 15,210 6. Pension (50% of last pay) 7,605 *figures from Pg. 5 of the Note (d) The difference in pension between the two pensions in Tabular Chart 1 is due to the applicability of the MACP Scheme (implemented based on the recommendations of the 6th Central Pay Commission). Under the MACP Scheme, a defence personnel who has not been promoted for 8/16/24 years of regular service, would be eligible for grant of next higher grade pay after completion of 8/16/14 years of regular service. In other words, a Sepoy who was originally getting Rs. 2,000 as grade pay would after 8 years of service (without promotion) be granted the next higher grade pay of Rs. 2,400. The grade pay of Rs. 2,400 ordinarily corresponds to the grade pay of Naik. (e) Similarly, after 16 years of service (without promotion), such Sepoy would get the next higher grade pay of Rs. 2,800. The grade pay of Rs. 2,800 ordinarily corresponds to the grade pay of Havildar. (f) As a logical corollary, the ....
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.... TOTAL 16,590 6. Pension(50% of last pay) 8,295 (d) Now, due to the operation of the MACP Scheme, the Naik (grade pay of Rs. 2,400) is actually drawing the next higher grade pay of Rs. 2,800, which corresponds to the grade pay of Havildar. This is the same principle, which was the basis for difference in pension in Tabular Chart 1. C. Tabular Chart III (a) The Tabular Chart III pertains to the rank of Group Captain. As per Column II of this Chart, the example quoted is that of a 2014 retiree. However, the pension amount quoted is of Group Captain Daniel Victor, who retired on 28.02.2015. It is important to state that the OROP Scheme was not applicable to Group Captain Daniel Victor. (e) Therefore, the Petitioner has misled this Hon'ble Court by relying on the pension of a recent retiree who has not been covered under the OROP Scheme. The PPO Number of Group Captain Daniel Victor is 08/14/1/114/2015. 18. It is further submitted that the flaw in pointing out the alleged disparities by referring to the Tables at Pg. 1 of the Note are due to the following reasons, inter alia: (i) The comparison as mention....
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....n) would be entitled to the MACP upgradations of those ranks. (vi) It is also respectfully submitted that the threshold condition to qualify for MACP is the completion of the required length of service. Consequently, one who completed the required length of service would qualify for MACP automatically unless otherwise barred due to disciplinary proceedings or performance. (vii) It is also respectfully submitted that the threshold condition to qualify for MACP is the completion of the required length of service. Consequently, one who completes the required length of service would qualify for MACP automatically unless otherwise barred due to disciplinary proceedings or performance. (viii) It is therefore self-evident that a Sepoy who does not complete the required length of service of 8 years and one who completed it, cannot be benchmarked together under any circumstances. (ix) A Sepoy of 3 years and a Sepoy who had crossed 8 years qualifying for MACP is not equated even for OROP purpose since they do not qualify the criteria of "same length of service." (emphasis supplied) While explaining the difference in pensions of the two Sepoys, the Un....
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.... 34. On the above premises, it has been submitted that no disparity on the ground of MACP/ACP has been introduced and the core value of uniform pension for a person retiring in the same rank with the same length of service is maintained without disparity. C.2.2 Financial Implications 35. The Union Government has stated on affidavit that at the time when OROP was implemented, the annual financial implication was in the amount of Rs. 7,123.38 crores. The actual arrears which had to be paid for the period of 1 July 2014 to 31 December 2015 stood in the amount of Rs. 10,392.35 crores. The table on the status of the grant of MACP benefits to defence personnel (2013) indicates that 96.4% Sepoys, 72.3% Naiks, 48.9% Havildars and 90.9% Art III-I (Navy only) represent the percentage of retirees getting MACP benefits. This indicates that MACP benefit forms a significant portion of the retiring personnel in the above four ranks, the last one being relevant only for the Navy. The MACP factor is not of much impact in the case of Naib Subedar, Subedar and Subedar Major, among whom 1.6%, 2.2% and 0.2% of all retiring personnel are receiving MACP benefits. This is because they would have rea....
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....5 years 3432.49 Crores Conversion in 7th CPC 2288.33 Cr x. 2.57 times 5881.00 Crores Further arrears from 01.01.2016 5881.00 Cr x 6 years 35,286 Crores DR arrears from 01.01.2016 to 31.12.2021 5881 Cr/12 x 8.28 4057.89 Crores Total Additional arrears 3432.49+35286.00+4057.89 42,776.38 Crores C.2.3 Average to Maximum 36. The Court has been apprised of the fact that the CGDA working committee considered four options for OROP in the year 2013. Of the four options, the fourth option was on the basis of the maximum pension of current retirees, which was proposed by the services. The Committee noted that the financial implication of the fourth option (maximum pension of current retirees) was Rs. 14,898.34 crores per annum and the total arrears which would be payable on this basis would have been in the amount of Rs. 1,45,339.34 crores, as is tabulated below: Difference of financial implication per annum: 14898.34 Cr -7123.38 Cr 7774.96 Cr Further arrears from 01.07.2014 to 31.12.2015 7774.96 Cr x 1.5. years 11662.44 Cr Conversion in 7th CPC: 7774.96 Cr x 2.57 times 19981.60 Cr Further arrears from 01.01.2016 to 31....
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.... priorities towards modernization of the armed forces and to modulate the grant of financial benefits so as to sub-serve and balance distinct priorities. 39. In the decision of this Court in Nakara (supra), the Constitution Bench was deciding on the issue of whether the date of retirement would be a relevant consideration for determining the application of a revised formula for the computation of pension. The liberalised pension scheme was made applicable prospectively to those employees who retired on or after March 31, 1979 in the case of government servants covered by the 1972 Rules and in respect of defence personnel, those who became non-effective on or after April 1, 1979. Consequently, those who retired prior to the date were not entitled to the benefits of the liberalised pension scheme. It was held that payment of pension constitutes a compensation for the service rendered in the past and as a measure of social welfare for providing socio-economic justice to those who have rendered service to the State. The Court noted that earlier, the measure of pension was related to the average emoluments during a period of thirty-six months prior to retirement. By a liberalized sch....
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....nsioners from lower echelons of service such as Peons, L.D.C., U.D.C., Assistant etc. In a chart submitted to us, the Union of India has worked out the pension to the pensioners who have retired prior to the specified date and the comparative advantage, if they are brought within the purview of the liberalised pension scheme. The difference up to the level of Assistant or even Section Officer is marginal keeping in view that the old pensioners are getting temporary increases. Amongst the higher officers, there will be some difference because the ceiling is raised and that would introduce the difference. It is however necessary to refer to one figure relied upon by Respondents. It was said that if pensioners who retired prior to March 31, 1979 are brought within the purview of the liberalised pension scheme, Rs. 233 crores would be required for fresh commutation. The apparent fallacy in the submission is that if the benefit of commutation is already availed of, it cannot and need not be reopened. And availability of other benefits is hardly a relevant factor because pension is admissible to all retirees. The figures submitted are thus neither frightening nor the liability is suppose....
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....hat between 1957 and 1987, the pensionary benefits were increased by various methods while the benefits under the provident fund scheme were not enhanced. Dismissing the petitions, this Court held that neither the prescription of a cut-off date nor the creation of two classes of retirees (pensioners and provident fund holders) was contrary to the decision of the Constitution Bench in Nakara (supra). It was observed thus: 32. In Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165] it was never held that both the pension retirees and the PF retirees formed a homogeneous class and that any further classification among them would be violative of Article 14. On the other hand the court clearly observed that it was not dealing with the problem of a "fund". The Railway Contributory Provident Fund is by definition a fund. Besides, the government's obligation towards an employee under CPF Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained ....
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....f retirement and receipt of PF benefits and there being no continuing obligation thereafter they could not be treated at par with the living pensioners. How the corpus after retirement of a PF retiree was affected or benefitted by prices and interest rise was not kept any tack of by the Railways. It appears in each of the cases of option the specified date bore a definite nexus to the objects sought to be achieved by giving of the option. Option once exercised was told to have been final. Options were exercisable vice versa. (emphasis supplied) 42. In Indian Ex-Services League (supra), it was contended that in view of the decision in Nakara (supra), all retirees who held the same rank irrespective of the date of retirement must receive the same amount of pension. This Court observed that there was nothing in Nakara (supra) that backed the claim of the Appellants that the same pension must be given to all retirees of the same rank. The Court observed that it was held in Nakara (supra) that only the same formula for calculation of pension was to be used and nowhere was the emoluments of the retirees revised. The ratio decidendi in Nakara (supra) was explained in the following w....
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.... to the liberalisation of the formula for computation of pension made by the memorandum dated 25-5-1979, average emoluments of the last thirty months of service of the employee provided that basis for calculation of pension. The 1970 service of the employee provided that average emoluments must be calculated on the basis of the emoluments received by a government servant during the last ten months of the service. That apart, a new slab system for computation of pension was introduced and the ceiling on pension was raised [...]. 7. It is to be seen that the judgment did not strike down the definition of "emoluments". It merely held that if pension was to be calculated on the basis of the last ten months' emoluments of a government servant, after 1-4-1979, there is no reason why those who retired before 1-4-1979 should get pension calculated on the basis of average of last thirty-six months' emoluments. In other words, the Rule of computation must be the same. The Court did not hold that those who have retired before 1-4-1979 must be treated as having the same emoluments as those who retired on or after 1-4-1979 for the purpose of calculation of pension. Therefore, o....
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....bitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment. (emphasis supplied) 45. The decision in SPS Vains (supra) has been relied upon by the Petitioners. The issue in that case was whether the officers of the rank of Major General, who had retired prior to 1 January 1996, could be given the benefit of the provisions of the revised pay scale, though according to the policy only those who retired after the said cut-off date would be entitled to such benefit. The rank of Brigadier is a feeder post for the promotional rank of Major General. A Major General always drew a higher pension than the pension payable to the officers holding the rank of a Brigadier, as on the basis of the recommendation of the Fourth Pay Commission, the pension was calculated on the basis of the salary drawn during the last ten months prior to retirement. An anomaly arose with the acceptance of the recommendation of the Fifth Pay Commission which created a situation in which a Brigadier began drawing more pension and family pension than the Major General. The Government increased the pension of Major Generals who had retired prior to....
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....nsus-driven decision-making process. Fuller argues that adjudication is more appropriate for questions that result in "either-or" answers.[Fuller, L. L., & Winston, K. I. (1978)] . The Forms and Limits of Adjudication. Harvard Law Review, 92(2), 353-409. 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. Further, 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. In this regard, we now evaluate the policy which has been adopted by the Union Government. 47. The policy of OROP adopted by the Union Government stipulates thus: (i) The benefit....