New Delhi: The Supreme Court on Wednesday said that Centre's hyperbole on the One Rank One Pension (OROP) policy presented a much "rosier picture" than what is actually given to the pensioners of the Armed forces.
It asked the Centre to place before it as to how many persons in the Armed forces have received Modified Assured Career Progression (MACP), how many are in Assured Career Progression (ACP), and what would be the financial outlay, if the court directs MACP to be also factored in for OROP.
A bench of Justices DY Chandrachud, Surya Kant, and Vikram Nath posed some searching questions to Additional Solicitor General N Venkatraman, appearing for Centre, and wanted to know whether there was any policy prior to the commitments made on the floor of the house on February 17, 2014, that government has agreed in principle to grant OROP.
"We have to deal with the fact that there is no statutory definition of OROP. It's a term of Art and a policy decision. Their (petitioners) contention is that there is a discrepancy between what was said in Parliament and the policy which ultimately came. The question is whether that amounts to a violation of Article 14. Your (Centre) hyperbole on the OROP policy presented a much rosier picture than what is actually given to the pensioners", the bench said.
Justice Surya Kant told Venkatraman that OROP benefits come after the service period while MACP comes during the service period.
"We want to know how many people have got the MACP. You are saying persons who have got the MACP are a different specific class. If 80 per cent of sepoys get MACP, then will they get OROP? It seems MACP is a barrier to OROP", Justice Kant said.
The ASG said petitioners are trying to compare two un-comparable and Sepoys who have qualified for and who have not qualified for MACP is not the subject matter of the petition.
The bench then asked Venkatraman as to under the rules of the business, who is the competent authority, who has taken the decision concerning the OROP.
The ASG replied that it is a decision taken by the union cabinet which has resulted in the notification.
The bench said that it would like to see the note, which culminated into the policy decision to which Venkatraman said that he can place it on record but for the court's eye only. Justice Kant said that the Centre was fully aware the MACP existed when it had issued the notification and had full knowledge that it is only a fraction of ex-servicemen, who will actually benefit from the OROP.
Venkatraman said that the government after the government was not able to deliver on OROP but this government came out with a policy and ultimately tried to deliver.
"OROP is not a statutory term, it is a term of art. It is a policy which is non-arbitrary. We have already spent more than Rs 50,000 crores. Maybe after five years, we re-formulate the formula" the ASG said.
The bench said that what the petitioners are saying is that by connecting OROP with MACP, the Centre has reduced the benefits substantially, and actually the principle of OROP is ultimately defeated.
Referring to the earlier statement of the ASG that they have taken the mean of the highest and lowest of the pension in the same rank and those below the average were brought up and those above were retained, Justice Chandrachud said that the Centre could not have brought down the highest pension holder, as they were protected under the law.
The bench said, "Your policy is one rank and one pension which is the heart and soul. What actually has happened is that you gave different pensions due to MACP, which has acted as a barrier to equal pension".
Senior advocate Huzefa Ahmadi and advocate Balaji Sirnivasan, appearing for petitioner Indian Ex-servicemen Movement (IESM), said the sum and substance of the Centre's arguments are that they are not inclined to give OROP but they will have one rank different pension.
"They said that it could have been 10 years for periodic review but they chose 5 years. A Minister's statement on the floor of the house is not enforceable but what about the morality of a statement being made. Where in their policy have they said that MACP will not be factored in? They have made arguments beyond the realm of policy", he said.
The bench said, "It cannot issue a mandamus to implement a statement made in the Parliament. A minister's statement given during a budget speech is not enforceable, that is our judgement. We will be turning 70 years of legal precedents on its head if we do it".
The hearing remained inconclusive and would continue on February 23.
On Tuesday, the top court had asked the Centre whether, after agreeing in principle to OROP, it went back on its decision over automatically passing on any future enhancements in pension to the pensioners.
On July 11, 2016, the top court had issued notice on the plea filed by IEMS through advocate Balaji Srinivasan seeking implementation of OROP as recommended by the Koshyari Committee with an automatic annual revision, instead of the current policy of periodic review once in five years.
The IESM has challenged the Centre's policy of periodic review of pension once in five years, saying such an approach was the dilution of the February 26, 2014 announcement of government by which the revision in pension was to automatically pass on to the past pensioners on an annual basis.