TaxTMI 
TaxTMI 
2022 (3) TMI 1556
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....m 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 The Petitioners contend that in the course of implementation, the principle of OROP has been replaced by 'one rank multiple pensions' for persons with the same length of service.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 by Parliament in 2010-11. On 19 December 2011, the Rajya Sabha Committee on Petiti....
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....tral 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 against the implementation of OROP because the pension/family pension is based upon the service rendered by per....
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....t, 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 the average of minimum and maximum pension of personnel retired in 2013 in the same rank and with the same length of service. iii. Pensio....
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....ing 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 discharged henceforth on their own request Under Rule 13(3)1(i)(b), Rules 13(3)1(iv) or Rule 16B of the Army Rule 1954 or equivalent Navy or Air Force Rules will not be entitled to the benefits of OROP. It will ....
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....ion 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, though the amount of financial benefit varies. It was urged on behalf of the first Respondent that revising the rate of pension every year would cause administrative difficulty and is impracticable to implement. 11. Since the grievance of the Petitioners remained unaddressed, it....
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....een 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 followed then a Sepoy who retired prior to 31 December 2013 will get a pension of Rs. 6665 per month while another Sepoy who retired on or after 1 January 2014 would get a pension of 7605 per month. Extracted below is a chart depicting the anomaly: Rank: Naik (Group Y) I II III Length of Service Pension of Naiks who retired between 1965-2013 (as per ....
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....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 letter of the Union Government dated 7 November 2015, the pension of past pensioners would be fixed one and a half year behind even if equalization is done once in five years; (xvii) Under the Seventh Pay Commission, the basic pension of all pensioners is to be arrived at by multiplying basic pension as on 31 December 2015 by a factor of 2.57. Since the basic pension of those who retired before 31 December 2013-14 has not been updated to 31 December 2015 (that is Rs. 7605 per month) but ha....
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....le 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 forces. For instance, the "High Altitude Siachen Allowance" for Army personnel is Rs. 31,500, while it is Rs. 50,000 to 70,000 for all Central Cadre for serving in 'hard areas' like Shillong; (xxvi) MACP Scheme should be given to all past retirees to comply with the judgment of this Court in SPS Vains (supra). Even if MACP has been given to the 2013 retirees, the comparison made in the chart still holds correct; (xxvii) While the Union Government states that the benefit of OROP is to be given to 'past retirees', it has created a ....
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....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 of the last pay drawn before retirement; (x) Under the MACP Scheme, a Sepoy who was originally getting Rs. 2000 as grade pay would after eight years of service receive a next grade pay of Rs. 2400. The grade pay of Rs. 2400 corresponds to the grade pay of Naik. Similarly after sixteen years of service, he would receive the higher grade pay of Rs. 2800, which corresponds to the grade pay of Havildar; (xi) Similarly, the disparity shown in Figure 2 by the Petitioners is due to the implementation of the MACP Scheme rather than OROP. Figure 3 which pertains to the rank of Group Captain quotes the pension amount of Group Captain Daniel....
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.... 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 of retirees in 2013; (xxi) It is not feasible to undertake an automatic revision. Though the government has accepted the principle of uniformity, it is not unreasonable to define periodicity for ensuring uniformity; (xxii) The argument that OROP should be approved with effect from 1 April 2014 because it was announced in the Budget of 2014 is erroneous. The scheme was proposed by the Ministry of Defence through the letters dated 7 November 2015 and 3 February 2016; (xxiii) The pension of OROP beneficiaries who retired before 1 July 2014 was revised by the multiplication factor of 2.57 according to the recommendations of the Seventh Central Pay Commission. However, those who retired after 1 January 2016 re....
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....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 November 2015 of the Ministry of Defence modified the executive decision by stipulating that: i. The pension of past pensioners would be refixed on the basis of the pension of the retirees of calendar year 2013, with the benefit being effective from 1 July 2014; ii. Pension is to be revisited for all pensioners on the basis of the average of the minimum and maximum pension of persons who retired in 2013 in the same rank and with the same length of service; iii. In the future pension would be revisited every five years and not automatically; and iv. Hence, the actual decision which was taken on 7 November 2015 deviates from the principle of equality which OROP adopts. 15. The submissions which have been urged by the pensioners are sought to be buttressed by referring to the charts set out in the earlier part of this judgment ....
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....h 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 Parliamentary Standing Committee? 73.2. (ii) Whether such a report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?" Chief Justice Dipak Misra (speaking for himself and Justice A.M. Khanwilkar) held thus: Q. Conclusions 159.1. Parliamentary Standing Committee report can be taken aid of for the purpose of interpretation of a statutory provision wherever it is so necessary and also it can be taken note of as existence of a historical fact. 159.3. In a litigation filed either Under Article 32 or Article 136 of the Constitution of India, this Court can take on record the report of the Parliamentary Standing Committee. However, the report cannot be impug....
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....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 of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of Parliamentary Committees which is to secure accountability, transparency and responsiveness in the Government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a Parliamentary Committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the Parliamentary Committee and the adjudication by the court. To deprive the court of the valuable insight of a Parliamentary Committee would amount to excluding an important source of information from the purview of the court. To do so on the supposed hypothesis that it would amount to a breach of parliamentary privilege would be to miss the w....
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....d 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, the modalities of implementing OROP were yet to be chalked out and were adopted later. On 26 February 2014, a meeting was held by the Minister of Defence to discuss the modalities for implementing the decision to adopt OROP. Paragraph 3 of the minutes of the meeting elaborate that OROP implies that: (i) Uniform pension be paid to armed forces personnel retiring in the same rank with the same length of service irrespective of the date of retirement; (ii) Any future enhancement in the rates of pension should be passed on to past pensioners; (iii) The gap between the rates of pension of current and past pensioners should be bridged; and (iv) Future enhancements in the rates of pension should be automatically based on to the past pensioners at that stage. 21. The CGDA was directed to initiate steps in consultation with the Finance and Ex-servicemen Welfare departments of the Ministry of Defence to give effect to the decision. The meeting which was held on 26 February 2014 was part of the decisi....
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....all the family pensioners including those in receipt of Special/Liberalized family pension and Gallantry award winners shall be paid arrears in one instalment. v. In future, the pension would be re-fixed every 5 years. The communication also indicated that personnel who opt to get discharged henceforth would not be entitled to the benefit of OROP. Moreover, the Union Government had decided to appoint a committee to look into the anomaly in the implementation of OROP and its report was to be submitted within six months. The features of the policy communication of 7 November 2015 need to be noticed. First, it contains the decision of the Indian government to implement OROP for ex-servicemen. Second, it specifies the date with effect from which the decision would be implemented, namely, 1 July 2014. Third, it embodies the understanding that OROP implies the payment of uniform pension to defence personnel retiring in the same rank with the same length of service regardless of the date of retirement. Fourth, it emphasises the need to bridge the gap between the rates of pension of current and past pensioners at "periodic intervals". 24. A considerable amount of debate has taken place....
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....munication of 7 November 2015 cannot be invalidated on the ground that it infringed the 'original understanding' of OROP. A hierarchy in law exists between statutes and rules-a statutory provision will have precedence over delegated legislation if the latter conflicts with the former. Similarly, executive instructions cannot override a statute or Rules made in pursuance of a statute. But in the present case the entire canvas is governed by a policy. The terms for implementing the policy were specified on 7 November 2015. Hence, that element of the policy cannot be challenged on the notion that there is an inflexible notion of OROP couched in an original understanding. OROP is itself a matter of policy and it was open to the makers of the policy to determine the terms of implementation. The policy is of course subject to judicial review on constitutional parameters, which is a distinct issue. 26. While the Petitioners have not adverted to the doctrine of legitimate expectations, they have implicitly relied on this principle. The doctrine of legitimate expectations can be invoked if a representation made by a public body leads an individual to believe that they would be a re....
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....involved, an oral promise by a Minister does not bind the government. In that case, a law publisher had contended that the then Law Minister had assured the publisher that certain books will be purchased from it. The document that was relied upon by the publisher was a departmental note which indicated that the decision regarding the purchase was subject to the concurrence of other departments and Ministries. This Court observed: 8. As noted above the factual scenario is interesting. The document relied upon by the Respondent and the High Court refers to some oral expression of desire by the then Law Minister. When the views of several departments were involved the question of any oral view being expressed by a Minister is really not relevant. Further, the document relied upon was nothing but a departmental note which itself clearly indicated that the views of various departments/Ministries were to be taken and their concurrence was to be obtained. Apart from that, undisputedly there was some factual dispute as to whether the intended purchase was of volumes or of sets. There is conceptual difference between the two. The books were not even printed at the relevant point of time. ....
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....alities for implementation are those which have been embodied in the communication dated 7 November 2015. C.2. Plea of Discrimination 29. The submission of the Petitioners on the violation of Article 14 is premised essentially on three aspects: (i) Fixation of the pension as of calendar year 2013 would result in pre 2014 retirees getting less pension of one increment than a soldier retiring after 2014; (ii) Fixing the pension based on the mean of minimum and maximum pension of 2013 would result in different pensions for the same ranks and same length of service depending on whether the personnel retired before or after 31 December 2013. In effect, a higher ranked soldier would receive lesser pension on comparison to a lower ranked soldier; and (iii) As a result of the process of equalisation every five years, persons who have retired prior in point of time would be placed at a disadvantage as their unequalised pension would be multiplied by a factor of 2.57 while those who have retired after 1 January 2014 would get the benefit of higher pension which would be multiplied by 2.57. 30. In the course of its comprehensive affidavit, the Union Government attempted to explain th....
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.... would differ/vary depending on whether benefit of the MACP Scheme has been granted to such Sepoy or not. (g) The applicability of the MACP Scheme on the pension of a retired defense personnel has been dealt by the Circular No. 555 dated 04.02.2016, wherein at Para 11(C), it has been stated: ...11. The provisions of this circular shall be applicable to all Pre-01.07.2014 pensioners /family pensioners and their pension/family pension shall be stepped up with reference to rank, group and qualifying service in which they were pensioned. Note: a)... b)... c) A JCOs/ORs pensioner, who has retired with a particular rank and granted ACP-I will be eligible for revision of pension of a next higher rank; if ACP-II has been granted, he will be eligible for revision of pension of next higher rank of ACP-I; and if ACP-III has been granted, he will be eligible for revision of pension of next higher rank of ACP-II w.e.f. 01.07.2014. For example- a Sepoy granted ACP-I will be eligible for revision of pension of Naik rank, Sepoy granted ACP-II will be eligible for revision of pension of Havildar rank and sepoy granted ACP-III will be eligible for revision of pension of Naib Subedar ra....
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.... fixed under the Rules applicable for retiring pension in the normal course. (ii) The weighted average pension signifies the lowest/minimum amount that a defence personnel retiring upto 2013 is entitled to get as OROP pension. Whereas, the actual pension of the retired defense personnel in 2014 (without effect of OROP) is based on pay last drawn. This amount of actual pension may be higher (due to various factors), but cannot be lower than the weighted average pension, as in that case, pension would be raised (protected) to the level of the weighted average pension (OROP). (iii) In other words, the pension amount of Rs. 6,665 is the minimum prescribed benchmark amount that any Sepoy (with 15 years qualifying service) would get under OROP as per Table No. 7 at Page 3 of the Note. Therefore, no Sepoy with the same pay and same length of service will get an amount less than Rs. 6,665 under OROP. The minimum prescribed benchmark is fixed to ensure that all defense personnel retiring pre-2013 are pulled up to receive at least the minimum prescribed pension. The benchmarking to the average of the minimum and maximum ensures upliftment of those receiving below the benchmark rate, wher....
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....o place. In terms of the scheme, a Sepoy upon completion of ten years of service would be upgraded to a Naik for the purpose of pay, pension and other special benefits. After completion of 20 years' service, there would be a further upgradation to the pay of a Havildar and after 30 years' service, as a Naib Subedar. Though the scheme was implemented from 2014, the benefit was extended retrospectively by applying the norms of 10:20:30 years of service respectively. Hence, a Sepoy in 2013 with thirty years of service was grouped with a Naib Subedar for pay, pension and other financial benefits. The ACP scheme thus covered defence personnel tracing back in time to 1973. 33. On 11 October 2008, by Army instruction No. 1/S/2008, the MACP Scheme was implemented. In terms of the scheme, the earlier time line of 10:20:30 years of service for upgradation was modified to 8:16:24 years for conferment of benefits in terms of pay, pension and other financial benefits. In view of the decision of this Court in Union of India v. Balbir Singh Turn [(2018) 11 SCC 99], the MACP scheme was made operational with effect from 1 January 2006. Though the MACP scheme was made operational from 1 Jan....
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.... if a Sepoy is promoted to the rank of Naik in the natural course before eight years of service, such a person does not qualify for MACP and the same principle applies to the further upgradation. Where a Sepoy is promoted as a Naik in the usual course, but does not get promoted thereafter to subsequent ranks for non-availability of vacancies, such a Sepoy would be entitled to MACP upgradation only for those ranks. The threshold requirement for the grant of MACP is completion of a specified length of service. A Sepoy who does not complete the required length of service cannot hence be benchmarked with someone who completes the stipulated length of service for the grant of MACP benefits. In other words, a Sepoy with three years of service and a Sepoy who has acquired eight years of service thereby qualifying for MACP are not equated even after OROP purposes since they did not both have the same length of service from the past rank of Naib Subedar. According to the Union Government, if non MACP personnel are grouped with MACP personnel for the payment of OROP, the total financial outflow from 2014 would be in the range of Rs. 42,776.38 crores. If non MACP persons were required to be m....
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....on government has submitted that besides lacking any prior precedent, in terms of the practice governing pay scales, pensions and other financial emoluments of government servants, automatic revision would be impossible to implement. Quite apart from the above consideration, it is evident that the three documents which have been relied upon by the Petitioners namely (i) the Koshyari Committee Report; (ii) the minutes of the meeting chaired by the Defence Minister on 26 February 2014; and (iii) the communication dated 26 February 2014 to CGDA underscore that "any future enhancement in the rates of pension to be automatically passed on to the past pensioners". The expression "to be automatically passed on" immediately follows upon the words "any future enhancement in the rates of pension". When read together contextually, it signifies that the rates of pension would be passed on to past pensioners without any administrative impediments. The expression 'automatically passed on' cannot be construed as a commitment with reference to any period of time for the computation of benefits. The manner in which and the period over which revisions should take place of pensions, salaries ....
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....urt held that all pensioners formed a homogeneous class and where an existing scheme of pension was liberalized, a distinction could not be made on the basis of a specified cut-off date. At the same time, it must also be noted that the decision in Nakara (supra) noted that "the financial implication in such matters has some relevance." This Court struck down the portion of the Memoranda by which the benefit of the liberalised pension scheme was only confined to persons retiring on or after the specified date which resulted in the benefit being extended to all retirees, irrespective of the date of retirement. It was observed as follows: 63. The financial implication in such matters has some relevance. However in this connection, we want to steer clear of a misconception. There is no pension fund as it is found either in contributory pension schemes administered in foreign countries or as in insurance-linked pensions. Non-contributory pensions under 1972 Rules is a State obligation. It is an item of expenditure voted year to year depending upon the number of pensioners and the estimated expenditure. Now when the liberalised pension scheme was introduced, we would justifiably assume ....
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.... too high to be unbearable or such as would have detracted the Government from covering the old pensioners under the Scheme. (emphasis supplied) 40. As opposed to the factual matrix in Nakara (supra), where the liberalised pension scheme was not made applicable to employees who had retired prior to the cut-off date, in this case the OROP principle is applicable to all retired army personnel, irrespective of the date of retirement. The cut-off date is only prescribed for determining the base salary used for computing the pension. While for those who retired on or after 2014, the last drawn salary is used for computing the pension; for those who retired prior to 2014, the average of the salary drawn in 2013 is used. This policy only seeks to protect those who retired before 2014 since the last drawn salary of the prior retirees might be too low and incomparable to the pay of the 2014 retirees. Moreover, if the maximum salary drawn is to be used as the base value instead of taking the average salary, an additional outlay of Rs. 1,45,339.34 crores would be incurred. The executive is therefore, well within its limits to prescribe a policy keeping in view the financial implications. 4....
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....he Provident Fund and its contribution are entirely different from the Rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to PF retirees. This being the legal position the rights of each individual PF retiree finally crystallized on his retirement whereafter no continuing obligation remained while, on the other hand, as regard Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the PF retirees they would not be so adversely affected ipso facto. It cannot, therefore, be said that it was the ratio decidendi in Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165] that the State's obligation towards its PF retirees must be the same as that towards the pension retirees. An imaginary definition of obligation to include all the government retirees in a class was not decided and could not form the basis for any classification for the purpose of this case. Nakara [(1983) 1 SCC 305 : 19....
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....pled with a slab system and raising the ceiling limit for pension. This Court held that where the mode of computation of pension is liberalised from a specified date, its benefit must be given not merely to retirees subsequent to that date but also to earlier existing retirees irrespective of their date of retirement even though the earlier retirees would not be entitled to any arrears prior to the specified date on the basis of the revised computation made according to the liberalised formula. For the purpose of such a scheme all existing retirees irrespective of the date of their retirement, were held to constitute one class, any further division within that class being impermissible. According to that decision, the pension of all earlier retirees was to be recomputed as on the specified date in accordance with the liberalised formula of computation on the basis of the average emoluments of each retiree payable on his date of retirement. For this purpose there was no revision of the emoluments of the earlier retirees under the scheme. It was clearly stated that 'if the pensioners form a class, their computation cannot be by different formula affording unequal treatment solely....
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.... In regard to pensioners forming a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred. (b) But all retirees retiring with a particular rank do not form a single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group whose reckonable emolument was higher. In other wo....
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....fit of the revision of pay scales in keeping with the recommendations of the fifth Central Pay Commission by virtue of the Special Army Instruction 2/S/1998. This Court held that such a disparity in the pension payable to two groups of officers occupying the same rank of Major General based on those retiring before or after 1 January 1996 violated Article 14. It was in this backdrop that this Court directed that the pay of all pensioners in the rank of Major General and its equivalent rank in the other two wings of the Defence services should be notionally fixed at the rate given to the similar officers of the same rank after the revision of pay scales with effect from 1 January 1996, and thereafter to compute the pensionary benefits with prospective effect from the date of the writ petition. The decision in SPS Vains (supra) thus involved a completely different factual situation. The rank of Brigadier was a feeder post for the rank of Major General. An anomaly had arisen as a result of which the pay and pension of Brigadier were higher than of the Major Generals. By increasing the pension of Major General, distinction was made between those who had retired before and after 1 Janu....
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....es do exist in view of the MACP and ACP schemes. Certain Sepoys receive the pay of the higher ranked personnel; (ii) The benefit of a new element in a pensionary scheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date; (iii) The judgment of the Constitution Bench in Nakara (supra) cannot be interpreted to read the one rank one pension Rule into it. It was only held that the same principle of computation of pensions must be applied uniformly to a homogenous class; and (iv) It is not a legal mandate that pensioners who held the same rank must be given the same amount of pension. The varying benefits that may be applicable to certain personnel which would also impact the pension payable need not be equalised with the rest of the personnel. 49. 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 7 November 2015 for the following reasons: (i) 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 '....