INDIAN EX SERVICEMEN MOVEMENT & ORS. versus UNION OF INDIA & ORS. on 16 March 2022

[2022] 9 S.C.R. 885

INDIAN EX SERVICEMEN MOVEMENT & ORS.

v.

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 419 of 2016)

MARCH 16, 2022

[DR. DHANANJAYA Y CHANDRACHUD,SURYA KANT AND VIKRAM NATH, JJ.]

Armed Forces: One Rank One Pension-OROP –Constitutionality of – Writ petition challenging the manner in whichthe OROP policy for ex-servicemen of defence forces has beenimplemented by the Union of India through a letter dated 07.11.2015issued to the Chiefs of three defence forces – Letter defining OROPas the payment of uniform pension to armed services personnelretiring in the same rank with the same length of service, irrespectiveof the date of retirement; that OROP aims to bridge the gap betweenthe rate of pension of current and past pensioners at periodicintervals – Petitioners case that in the course of implementation,the principle of OROP has been replaced by ‘one rank multiplepensions’ for persons with the same length of service; that the initialdefinition of OROP was altered by the UOI and, instead of anautomatic revision of the rates of pension, where any futureenhancement to the rates of pension are automatically passed on tothe past pensioners, the revision now would take place at periodicintervals, is arbitrary and unconstitutional – Held: There is noconstitutional infirmity in the OROP principle as defined by thecommunication dated 07.11.2015 – Definition of OROP is uniformlyapplicable to all the pensioners irrespective of the date of retirement– Cut-off date is used only for the purpose of determining the basesalary for the calculation of pension – While for those who retiredafter 2014, the last drawn salary is used to calculate pension, forthose who retired prior to 2013, the average salary drawn in 2013is used – Since the uniform application of the last drawn salary forthe purpose of calculating pension would put the prior retirees at adisadvantage, the Union Government has taken a policy decisionto enhance the base salary for the calculation of pension – Such adecision lies within the ambit of policy choices – There was noconscious policy decision on the part of the Union Government on

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Athe modalities for implementing OROP until the communication dated07.11.2015 came into being, and thus, the communication of07.11.2015 cannot be invalidated on the ground that it infringedthe ‘original understanding’ of OROP – Expression ‘automaticallypassed on’ cannot be construed as a commitment with reference toany period of time for the computation of benefits – Decision of theBCentral Government to revise the pension every five years cannotbe held to violate the precepts underlying Art. 14 – Policy decision– Constitution of India – Art. 14, 32 – Service law.

Pension – One Rank One Pension-OROP – LegitimateExpectation – Invocation of – Held: Doctrine of legitimateCexpectations can be invoked if a representation made by a publicbody leads an individual to believe that they would be a recipientof a substantive benefit – Doctrine of legitimate expectations emergesas a facet of Art. 14 – However, in the present case, there was noconcrete government policy in existence prior to 07.11.2015 – ThereDexisted only certain assurances – These assurances were also tothe effect that OROP has been accepted in principle - Implementationwas yet to be worked out.

Pension – One Rank One Pension – Concept and genesis of– Policy and Principles – Discussed.E

Conclusion

Administrative Law: Policy Decisions – Scope of judicialreview – Held: Adjudication cannot serve as a substitute for policy– Most questions of policy involve complex considerations of notonly technical and economic factors but also require balancingcompeting interests for which democratic reconciliation rather thanFadjudication is the best remedy – An increased reliance on judgesto solve matters of pure policy diminishes the role of other politicalorgans in resolving contested issues of social and political policy,which require a democratic dialogue – It is not that this Court willshy away from setting aside policies that impinge on constitutionalrights – Rather it is to provide a clear-eyed role of the function thatGa court serves in a democracy – One Rank One Pension-OROP isitself a matter of policy and it was open to the makers of the policyto determine the terms of implementation – Policy is of coursesubject to judicial review on constitutional parameters, which is adistinct issue.

INDIA & ORS.

Disposing of the writ petition, the Court HELD: 1. There is no constitutional infirmity in the OROPprinciple as defined by the communication dated 7 November2015. (i) The definition of OROP is uniformly applicable to all thepensioners irrespective of the date of retirement. It is not thecase of the petitioners that the pension is reviewed ‘automatically’to a class of the pensioners and ‘periodically’ to another class ofthe pensioners; (ii) The cut-off date is used only for the purposeof determining the base salary for the calculation of pension. Whilefor those who retired after 2014, the last drawn salary is used tocalculate pension, for those who retired prior to 2013, the averagesalary drawn in 2013 is used. Since the uniform application of thelast drawn salary for the purpose of calculating pension wouldput the prior retirees at a disadvantage, the Union Governmenthas taken a policy decision to enhance the base salary for thecalculation of pension. Undoubtedly, the Union Government hada range of policy choices including taking the minimum, themaximum or the mean or average. The Union governmentdecided to adopt the average. Persons below the average werebrought up to the average mark while those drawing above theaverage were protected. Such a decision lies within the ambit ofpolicy choices; (iii) While no legal or constitutional mandate ofOROP can be read into the decisions in Nakara’s case and SPSVains’s case, varying pension payable to officers of the same rankretiring before and after 1 July 2014 either due to MACP or thedifferent base salary used for the calculation of pension cannotbe held arbitrary; and (iv) Since the OROP definition is notarbitrary, it is not necessary to undertake the exercise ofdetermining if the financial implications of the scheme is negligibleor enormous. This Court accordingly orders and directs that interms of the communication dated 7 November 2015, a re-fixationexercise shall be carried out from 1 July 2019, upon the expiry offive years. Arrears payable to all eligible pensioners of the armedforces shall be computed and paid over accordingly within a periodof three months. [Paras 49 and 51][942-D-H; 943-A-C, E]

2.1 The features of the policy communication of 7 November2015 need to be noticed. First, it contains the decision of the A

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AIndian government to implement OROP for ex-servicemen.Second, it specifies the date with effect from which the decisionwould be implemented, namely, 1 July 2014. Third, it embodiesthe understanding that OROP implies the payment of uniformpension to defence personnel retiring in the same rank with thesame length of service regardless of the date of retirement.BFourth, it emphasises the need to bridge the gap between therates of pension of current and past pensioners at “periodicintervals”. The analysis of the underlying document indicates thatwhile a decision to implement OROP was taken in principle, themodalities for implementation were yet to be chalked out. ThereCwas no conscious policy decision on the part of the UnionGovernment on the modalities for implementing OROP until thecommunication dated 7 November 2015 came into being. Thecommunication of 7 November 2015 cannot be invalidated onthe ground that it infringed the ‘original understanding’ of OROP.A hierarchy in law exists between statutes and rules-a statutoryDprovision will have precedence over delegated legislation if thelatter conflicts with the former. Similarly, executive instructionscannot 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

ENovember 2015. Hence, that element of the policy cannot bechallenged on the notion that there is an inflexible notion of OROPcouched in an original understanding. OROP is itself a matter ofpolicy and it was open to the makers of the policy to determinethe terms of implementation. The policy is of course subject tojudicial review on constitutional parameters, which is a distinctFissue. [Paras 23 and 25][917-E-F; 918-E-H; 919-A]

1.3. The central limb of the submission of the petitioners isthat a revision of OROP should be automatic. The Uniongovernment has submitted that besides lacking any priorprecedent, in terms of the practice governing pay scales, pensionsGand other financial emoluments of government servants, automaticrevision would be impossible to implement. Quite apart from theabove consideration, it is evident that the three documents whichhave been relied upon by the petitioners namely (i) the Koshyari H

INDIA & ORS.

Committee Report; (ii) the minutes of the meeting chaired bythe Defence Minister on 26 February 2014; and (iii) thecommunication dated 26 February 2014 to CGDA underscore that“any future enhancement in the rates of pension to beautomatically passed on to the past pensioners”. The expression“to be automatically passed on” immediately follows upon thewords “any future enhancement in the rates of pension”. Whenread together contextually, it signifies that the rates of pensionwould be passed on to past pensioners without any administrativeimpediments. The expression ‘automatically passed on’ cannotbe construed as a commitment with reference to any period oftime for the computation of benefits. The manner in which andthe period over which revisions should take place of pensions,salaries and other financial benefits is a pure question of policy.The decision of the Central Government to revise the pensionevery five years cannot be held to violate the precepts underlyingArticle 14. [Para 37][931-E-H; 932-A]

1.4. As opposed to the factual matrix in Nakara, where theliberalised pension scheme was not made applicable to employeeswho had retired prior to the cut-off date, in this case the OROPprinciple is applicable to all retired army personnel, irrespectiveof the date of retirement. The cut-off date is only prescribed fordetermining the base salary used for computing the pension.While for those who retired on or after 2014, the last drawn salaryis used for computing the pension; for those who retired prior to2014, the average of the salary drawn in 2013 is used. This policyonly seeks to protect those who retired before 2014 since thelast drawn salary of the prior retirees might be too low andincomparable to the pay of the 2014 retirees. Moreover, if themaximum salary drawn is to be used as the base value instead oftaking the average salary, an additional outlay of Rs 1,45,339.34crores would be incurred. The executive is therefore, well withinits limits to prescribe a policy keeping in view the financialimplications. [Para 40][934-D-G]

DS Nakara v. Union of India 1983 ( 2 ) SCR 165 :1983 ( 1 ) SCC 305- distinguished.

1.5 The canvass which is sought to be traversed in theseproceedings under Article 32 of the Constitution trenches upon

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Aa domain which is reserved for executive policy. Adjudicationcannot serve as a substitute for policy. Most questions of policyinvolve complex considerations of not only technical andeconomic factors but also require balancing competing interestsfor which democratic reconciliation rather than adjudication isthe best remedy. Further, an increased reliance on judges to solveBmatters of pure policy diminishes the role of other political organsin resolving contested issues of social and political policy, whichrequire a democratic dialogue. This is not to say that this Courtwill shy away from setting aside policies that impinge onconstitutional rights. Rather it is to provide a clear-eyed role ofCthe function that a court serves in a democracy. The OROP policymay only be challenged on the ground that it is manifestly arbitraryor capricious. In this regard, the policy which has been adoptedby the Union Government is evaluated. The policy of OROPadopted by the Union Government stipulates thus: (i) Thebenefits will be effective from 1 July 2014; (ii) Pensions of pastDpensioners would be refixed on the basis of the pension of retireesof calendar year 2013; (iii) Pension for all pensioners would beprotected; and (iv) In future, the pension would be refixed afterevery five years. [Paras 46 and 47][940-H; 941-A, C-D]

1.6 The principles governing pensions and cut-off dates canEbe summarised as follows: (i) All pensioners who hold the samerank may not for all purposes form a homogenous class. Forexample, amongst Sepoys differences do exist in view of theMACP and ACP schemes. Certain Sepoys receive the pay of thehigher ranked personnel; (ii) The benefit of a new element in aFpensionary scheme can be prospectively applied. However, thescheme cannot bifurcate a homogenous group based on a cut-offdate; (iii) The judgment of the Constitution Bench in Nakara(supra) cannot be interpreted to read the one rank one pensionrule into it. It was only held that the same principle of computation of pensions must be applied uniformly to a homogenous class;Gand (iv) It is not a legal mandate that pensioners who held thesame rank must be given the same amount of pension. Thevarying benefits that may be applicable to certain personnel whichwould also impact the pension payable need not be equalisedwith the rest of the personnel. [Para 48][941-G; 942-A-C]H

Kalpana Mehta v. Union of India (2018) 7 SCC 1 :[2018] 4 SCR 1- followed.

Union of India v. SPS Vains [2008] 13 SCR 257 : 2008(9) SCC 125- distinguished.

State of Arunachal Pradesh v. Nezone Law House (2008)5 SCC 609 : [2008] 5 SCR 948; Col. B.J Akkara (Retd.)v. Government of India (2006) 11 SCC 709 : [2006]7 Suppl. SCR 58; Indian Ex-Services League v. Unionof India AIR 1991 SC 1182 : [1991] 1 SCR 158; KLRathee v. Union of India SLJ 1997 (30 207); SuchetSingh Yadav v. Union of India (2019) 11 SCC 520 :[2018] 2 SCR 752; State of Jharkhand v. BrahmputraMetallics Ltd., Ranchi 2020 SCC OnLine SC 968;Union of India v. Balbir Singh Turn (2018) 11 SCC 99: [2017] 12 SCR 421- referred to.

Fuller, L. L., & Winston, K. I. (1978). The Forms andLimits of Adjudication. Harvard Law Review, 92(2), 353–409 – referred to.

Case Law Reference

[2008] 13 SCR 257distinguishedPara 49[1983] 2 SCR 165distinguishedPara 40, 49[1991] 1 SCR 158referred toPara 13[2018] 2 SCR 752referred toPara 13[2018] 4 SCR 1followedPara 17[2008] 5 SCR 948referred toPara 26[2017] 12 SCR 421referred toPara 33[2006] 7 Suppl. SCR 58referred toPara 44

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.419of 2016.

(Under Article 32 Of The Constitution of India)

Huzefa Ahmadi, Sr. Adv., Balaji Srinivasan, Arunava Mukherjee,Ms. Garima Jain, Rohan Sharma, Ms. Pallavi Sengupta, Ms. LakshmiRao, Ms. Aakriti Priya, Md. Shahrukh, Prateek Yadav, Suhail Ahmed,Advs. for the Petitioners.

N. Venkataraman, ASG, Ms. Priyanka Das, Akshay Amritanshu,Apoorv Kurup, Rajat Nair, Ankur Talwar, Shyam Gopal, Ms. Chinmayee A

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AChandra, A. K. Sharma, Mukesh Kumar Maroria, Raj Bahadur Yadav,V. Chandrasaekara Bharathi, S. Ram Narayan, Advs. for theRespondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.B

This judgment has been divided into the following sections tofacilitate analysis:

A. Factual Background ......................................................3*B. Submissions of Counsel ............................................. 11*C. Analysis .........................................................................24*C. 1 Concept and genesis of OROP ..............................26*C. 2. Plea of Discrimination ............................................38*

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C.2.1 ACP-MACP ............................................................44*C.2.2 Financial Implications ...........................................46*C.2.3 Average to Maximum............................................48*C.2.4 Periodic revision every five years ......................49*

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A. Factual BackgroundE

1. The petition under Article 32 of the Constitution addresses achallenge to the manner in which the “One Rank One Pension”[1]policyfor ex-servicemen of defence forces has been implemented by the firstrespondent[2] through a letter dated 7 November 2015 issued to the Chiefsof three defence forces. The letter defines OROP as the payment ofFuniform pension to armed services personnel retiring in the same rankwith 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 ofpension of current and past pensioners at periodic intervals. Thepetitioners contend that in the course of implementation, the principle of OROP has been replaced by ‘one rank multiple pensions’ for personsGwith the same length of service. The petitioners contend that the initialdefinition of OROP was altered by the first respondent and, instead ofan automatic revision of the rates of pension, the revision now would 1 "OROP”2 Also referred as the “Union Government”H* Ed. Note : Pagination is as per the original Judegment.

take place at periodic intervals. The petitioners submit that the deviationfrom the principle of automatic revision of rates of pension, where anyfuture enhancement to the rates of pension are automatically passed onto the past pensioners, is arbitrary and unconstitutional under Articles 14and 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 wasinitially examined by Parliament in 2010-11. On 19 December 2011, theRajya Sabha Committee on Petitions[3] presented its 142[nd] Report on thePetition Praying for Grant of OROP to Armed Forces Personnel[4]. TheCommittee recommended the implementation of OROP. The Committeedefined OROP as a uniform pension to be paid to armed forces personnelretiring in the same rank with the same length of service, irrespective oftheir date of retirement, where any future enhancements in the rates ofpension were to be automatically passed on to the past pensioners.The Committee noted that OROP was being implemented till 1973whenthe Third Central Pay Commission took a decision to revoke it.The relevant observations/recommendations of the Koshyari Committeeare extracted below:

“11.The Committee takes note of the fact that a sum of Rs 1300crores is the total financial liability for the year 2011-12 in caseOROP is implemented fully for all the defence personnel in thecountry across the board. The Committee is informed that out ofthis, 1065 crores would go to retirees belonging Post Below OfficerRanks (PBOR) while the Commissioned Officers would be gettingthe remaining i.e. 235 crores. The Committee feels that 1300 croresis not a very big amount for a country of our size and economy formeeting the long pending demand of the armed forces of thecountry. The Committee understands that this ·1300 crores is theexpenditure for one year which might increase at the rate of 10percent annually. Even if it is so, the Committee does not considerthis amount to be high, keeping in view the objective for which itwould be spent. Needless for the Committee to point out herethat our defence personnel were getting their pension and familypension on an entirely different criteria before the Third CentralPay Commission came into force. Till the recommendations of 3 “Koshyari Committee”

4 “Koshyari Committee Report”

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the Third Central Pay Commission were implemented for thedefence personnel of the country, they were satisfied and happywith dispensation meant fortheir pension/family pension.

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11.4 …the Committee feels that the decision of the Governmentto bring our defence personnel on the pattern of the civilians withregard to their pay, pension, etc. (from Third Central PayCommission onwards) is not a considered decision which hascaused hardship to the defence personnel and has given birth totheir demand for OROP. The Committee understands that beforethe Third Central Pay Commission, the defence personnel weregetting their pay/ pension on the basis of a separate criteriaunconnected with the criteria devised for the civilian work force.That criteria acknowledged and covered the concept of OROPwhich has been given up after the Third Central Pay Commission.

11.5 The Committee is not convinced with the hurdles projectedby the Ministry of Defence (D/o Ex-Servicemen Welfare) inimplementing of OROP for defence personnel. They havecategorized 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 isgiven to understand that all the existing pensioners/ familypensioners are still drawing their pension/family pension basedupon the lawfully determined pension/family pension. In that case,revision of their pension/family pension, prospectively, as a onetime measure should not pose any administrative hurdle. So far asthe legal aspect is concerned, the Committee is not convinced bythe argument put forth against the implementation of OROPbecause the pension/family pension is based upon the servicerendered by personnel while in service and comparison of servicesrendered during two sets of periods does not seem to be of muchrelevance. If seen from a strict angle, in each set of periods, thearmy officer performed the duties attached to his post and it maynot be proper to infer that the officers who served at a later periodperformed more compared to the officers of earlier period. Onthe contrary, facts tilt towards treating past pensioners/familypensioners at par with the more recent ones.”

3. On 17 February 2014, the Finance Minister announced in hisBudget Speech that the Union Government had in principle acceptedOROP and it would be implemented prospectively from financial year2014-15. The Finance Minister stated that an amount of Rs 500 croreshas been transferred to the Defence Pension Account to meet thebudgetary expense. On 26 February 2014, the Defence Minister chaireda meeting to discuss the implementation of OROP.The DefenceSecretary, the Secretary to the Department of Ex-Servicemen Welfare,the Controller General of Defence Accounts[5], the three Vice Chiefs ofStaff, and senior officers of the Service Headquarters along with theconcerned Joint Secretaries attended the meeting. The minutes of themeeting refer to OROP as a uniform pension to be paid to armed forcespersonnel that are retiring in the same rank with the same length ofservice, irrespective of the date of retirement, where any futureenhancements in the rates of pension are to be automatically passed onto the past pensioners. The fourth respondent, CGDA, was directed totake necessary steps to give effect to the decision of implementing OROPin consultation with the three defence forces, and the first and secondrespondents.

4. By its letter dated 26 February 2014 the first respondent directedCGDA to work out the modalities of executing OROP. However, OROPwas not implemented at the time. On 10 July 2014 in his Budget Speechfor the year 2014-2015, the Finance Minister reaffirmed the UnionGovernment’s commitment to implement OROP and a further sum ofRs 1000 crores was set apart to meet the requirement. In a written replyto a Member of Parliament on 2 December 2014, the Minister of Statefor Defence stated that OROP implies that a uniform pension is paid toretired servicemen having the same rank with the same length of service,irrespective of the date of retirement, with any future enhancement inthe rates being passed on to the past pensioners automatically.

5. The above sequence of events has been emphasised by thepetitioners to highlight that OROP always entailed an automatic revisionof the rates of pension to bridge the gap in the pension being received bypast and current pensioners. However, according to the petitioners, aletter dated 7 November 2015 of the Joint Secretary of the first respondentto the Chiefs of three defence forces introduced a revised definition ofOROP, where the revision between the past and current rates of pensionwas to take place at periodic intervals. Besides stating that OROP would 5 “CGDA”

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Atake effect from 1 July 2014, the letter also highlighted the salient featuresof OROP:

“3. Salient features of the OROP are as follows:

i. To begin with, pension of the past pensioners would be re-fixedon the basis of pension of retirees of calendar year 2013 and theBbenefit will be effective with effect from 1.7.2014.

ii. Pension will be re-fixed for all pensioners on the basis of theaverage of minimum and maximum pension of personnel retiredin 2013 in the same rank and with the same length of service.

iii. Pension for these drawing above the average shall be protected.C

iv. Arrears will be paid in four equal half yearly instalments.However, all the family pensioners including those in receipts ofSpecial/Liberalized family pension and Gallantry award winnershall be paid arrears in one instalment.

Dv. In future, the pension would be re-fixed every 5 years.”

6. The above definition of OROP was also adopted by the firstrespondent while implementing OROP by its notification dated 14November 2015. The rates of pension were now to be revised everyfive years.The notification also constituted a Committee headed by JusticeEL. Narasimha Reddy to examine and make recommendations on theterms of reference received by the Union Government on measures toremove anomalies that may arise in the implementation of the letterdated 7 November 2015.

7. By its letter dated 25 January 2016 to the Defence Minister theFfirst petitioner objected to the revision of the definition of OROPhighlighting that the deviation from the automatic revision of rates ofpension to a revision at periodic intervals changed the accepted meaningof OROP. It was submitted that the revised definition would deprive thepast pensioners of equal monetary benefits, which militated against theprinciple of OROP. The letter urged that the Committee headed by JusticeGL. Narasimha Reddy would be ‘inapt’ in making recommendations onthe issue of OROP since the terms of reference took into account therevised definition of OROP. The letter urged the Defence Minister torevert to the original definition of OROP where the pension of pastpensioners would be automatically revised pursuant to any futureHenhancements. The first petitioner also wrote to Justice L. Narasimha Reddy on 25 March 2016 highlighting the anomalies that will result fromthe implementation of the revised definition of OROP.

8. Meanwhile, the first respondent issued a letter to the Chiefs ofthe three defence forces on 3 February 2016 regarding the implementationof OROP. On 29 October 2016, the first respondent issued a letter to theChiefs of the three defence forces revising the pension of pre-2016defence forces’ pensioners and family pensioners. The existing pensionwas to be revised upwards by implementing the basic pension drawn on31 December 2015 by a multiplication factor of 2.57. The petitionershave highlighted that owing to the periodic revision of the pension rateaccording to the revised definition, the pension of many ex-servicemenwould not be updated to the 31 December 2015 level.

9. A post-facto approval of the Union Cabinet for implementationof OROP was received on 6 April 2016 and was conveyed by the CabinetSecretariat on 7 April 2016. The proposal, which was approved by theUnion Cabinet is as follows:

“9.1. Ex-post facto approval of the Cabinet is solicited forimplementation 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 retiringin the same rank and with the same length of service as theaverage minimum and maximum pension drawn by the retirees inthe year 2013. Those drawing pensions above the average will beprotected.

9.1.3 The benefit would also be extended to family pensionersincluding war widows and disabled pensioners.

9.1.4 Personnel who opt to get discharged henceforth on theirown request under Rule 13(3)1(i)(b), Rules 13(3)1(iv) or Rule16B of the Army Rule 1954 or equivalent Navy or Air ForceRules will not be entitled to the benefits of OROP. It will beeffective prospectively.

9.1.5. Arrears will be paid in four half-yearly instalments.However, all the family pensioners including those in receipt ofSpecial/Liberalized family pension and Gallantry award winnersshall be paid arrears in one instalment.

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A9.1.6 In future, the pension would be re-fixed every 5 years.

9.1.7. Constitution of Judicial Committee headed by Justice LNarasimha Reddy, Retd. Chief Justice of Patna High Court on14.12.2015 which will give its report in six months on referencesmade by the Government of India.”

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10. Aggrieved by what the petitioners contend is a revision in thedefinition of OROP, the petition under Article 32 was instituted beforethis Court on 9 June 2016. On 1 May 2019, this Court took note of theanomalies which were highlighted on behalf of the petitioners:

“Fixation of pension as per calendar year 2013 instead of FY2014: Fixation of pension as per calendar year 2013 would resultin past retirees (pre 2014) getting less pension of one incrementthan the soldier retiring after 2014.

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Fixation of pension as mean of Min and Max pension: Fixingpension as mean of Min and Max pension of 2013 would resultDdifferent pensions for the same ranks and same length of serviceand the past retiree would get 1.5 increment lesser on account ofsuch fixation.

For example, if 8(i) and (ii) are implemented, two soldiers whohave served for same length of years, holding the same rank willEdraw different pension. A Sepoy (Group Y) who retired prior to31 Dec 2013 will get Rs.6665 p.m. and another Sepoy (Group Y)who retired on and after 1 Jan 2014 would get Rs 7605 p.m.Further, onaccount of such implementation, a higher rank Naiksoldier whoretired before 31 Dec 2013 would draw a lesser pensionFof rs. 7170 p.m., than a junior rank Sepoy who retired after 1 Jan2014 as his pension would be Rs.7605. This fact is illustrated by atabular chart which is enclosed. (See Pg.1, CC).

Therefore, implementation of this new definition of OROP defeatsthe very principle of OPOP by creating a class within a class ofthe same officers, which in practice tantamounts to one rankGdifferent pensions. This is also contrary to the judgment by thisHon’ble Court in Union of India v SPS Vains, {2008) 9 SCC 125.

Another fallacy in the new definition of OROP which detractsfrom the principle of OROP is:

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(iii) Pension Equalization every five years A

It is submitted that Pension equalization every five years wouldresult in the grave disadvantage to the past retirees.”

This Court directed the first respondent to scrutinise the grievancesraised by the petitioners. Pursuant to the order, the first respondentfiled an affidavit on 5 December 2019 submitting that afterextensive consultations with experts and ex-servicemen, the UnionGovernment decided that it is practical and feasible to revise thepension under OROP every five years. The average of theminimum and maximum pension in calendar year 2013 wasdecidedto be taken as the revised pension of all pensioners retiring in thesame rank and with the same length of service. At the same time,the first respondent chose to protect the pensioners who weredrawing pension above the average. Thus, it was submitted, thatthe implementation of OROP has benefitted the past pensioners,though the amount of financial benefit varies. It was urged onbehalf of the first respondent that revising the rate of pensionevery year would cause administrative difficulty and isimpracticable to implement.

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11 Since the grievance of the petitioners remained unaddressed, itfalls on this Court to adjudicate upon whether the revision of the definitionof OROP and its implementation in the present form, is arbitrary andviolative of Articles 14 and 21 of the Constitution. Before we analysethe rival contentions, we advert to the submissions of the counsel.

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B. Submissions of Counsel

12. Mr Huzefa Ahmadi, Senior Counsel, appeared for thepetitioners. The following submissions have been made on behalf of thepetitioners during the course of the proceedings:

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(i) The letter issued by the Joint Secretary of the firstrespondent to the Chief of Air Staff on 7 November 2015arbitrarily alters the definition of OROP[6] by bridging theGgap between the rates of pension of the current and thepast pensioners at ‘periodic intervals’ and not ‘automatically’.This definition is contrary to the definition arrived at in themeeting held on 26 February 2014 and the subsequentexecutive order issued on the same day;H

6 "new definition”

A(ii)The implementation of the scheme with the new definitionwould lead to a situation where the pension drawn by anex-serviceman who retired on an earlier date would be lessthan the pension drawn by an ex-serviceman who retiredin 2014, until such time that a ‘periodic’ review is conductedto correct the anomaly;B

(iii) The new definition creates a class within a class where ex-servicemen who retired with the same rank and same lengthof service would receive different pensions. In Union ofIndia v. SPS Vains[7], this Courthas held that the creation ofa class within a class is unconstitutional;C

(iv) Even if the differential pay is rectified by a periodic review,it would cause injustice;

(v) The effective date of implementation of OROP was alreadyfixed as 1 April 2014 and this date has been arbitrary re-Dfixed to 1 July 2014 by the letter issued by the first respondenton 7 November 2015;

(vi) According to the letter dated 7 November 2015, the pensionof the personnel retiring on or after 1 April 2014 will befixed based on the last pay drawn on retirement. However,Ethe pension of soldiers who retired earlier than 2013 wouldbe fixed on the basis of the pension of the retirees of thecalendar year 2013. This would lead to a situation of onerank different pension; F

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Figure 1

H7 (2008) 9 SCC 125

(vii) The pension of the past pensioners is further lowered byAthe re-fixation of pension based on the average of theminimum and maximum pension of personnel retiring in thecalendar year 2013, as compared to personnel retiring onor after 1 April 2014. In some cases, a past pensioner whoretired before 2014 receives pension lower than personnelBof a lower rank retiring on or after 2014. For instance, ifthe new definition is followed then a Sepoy who retiredprior to 31 December 2013 will get a pension of Rs. 6665per month while another Sepoy who retired on or after 1January 2014 would get a pension of 7605 per month.Extracted below is a chart depicting the anomaly:C

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Figure 2

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A(viii) The difference in the pension as provided in the chart is notdue to the Modified Assured Career Progression[8]. Evenaccording to the new definition, all personnel with the samerank and same length of service must receive the samepension; B(ix)The notification issued on 14 December 2015 adheres tothe arbitrary definition of OROP as provided by the letterissued on 7 November 2015. The terms of reference oftheCommittee appointed under the notification are alsorestricted to the arbitrary new definition of OROP. The letterissued by the first respondent to the Chief of Army Staff,Cthe Chief of Naval Staff, and the Chief of Air Staff on 3February 2016 also defined OROP in new and arbitraryterms;

(x) As noted by the Koshyari Committee, after the Sixth CentralPay Commission, officers from the grade of Lt. ColonelDand above fall within one pay band of Rs 37400 to Rs 67000.Therefore, defence retirees before 2014 would get pensionwith reference to the minimum of the pay bracket,irrespective of the fact that they held higher posts such asMajor General and Lt. General; E(xi)All Havildars were granted the honorary rank of NaibSubedar. They must thus be given the pension of NaibSubedar;

(xii) All personnel who retired as Major after thirteen years ofservice as Commissioned Officers should be given theFpension of Lt. Colonel since Commissioned Officers nowautomatically become Lt. Colonels after thirteen years ofservice;

(xiii) All veterans who retired before 2004 as Lt. Colonel shouldbe given the pension of Colonel since all CommissionedGOfficers now automatically retire as Colonel;

(xiv) While the Government defines OROP as a “uniform pensionto be paid to the defence personnel retiring in the samerank, with the same length of service regardless of the date 8"MACP”H

of retirement”, it creates a class within a class based onthe date of retirement; A

(xv) The decision to define OROP in narrow terms is anexecutive act which can be judicially reviewed and is not apolicy decision;

(xvi) According to the letter of the Union Government dated 7November 2015, the pension of past pensioners would befixed one and a half year behind even if equalization is doneonce in five years; B

(xvii) Under the Seventh Pay Commission, the basic pension ofall pensioners is to be arrived at by multiplying basic pensionCas on 31 December 2015 by a factor of 2.57. Since thebasic pension of those who retired before 31 December2013-14 has not been updated to 31 December 2015 (thatis Rs. 7605 per month) but has only been fixed based onthe mean of the 2013 pension, that is Rs. 6665 per month, apast pensioner will get Rs. 2415 less than an officer withDthe same rank and same length of service but who retiredlater;

(xviii) The Union Government has stated that after the SeventhPay Commission, the basic pension of personnel in theColonel and Brigadier ranks will be arrived at by increasingthe multiplication factor from 2.57 to 2.67. However, thisincrease has been denied to the past pensioners on theground that the benefit will only be given in 2019 after theperiodic equalization as per the new definition; E

(xix) The ex-servicemen received the benefit of OROP till theFThird Central Pay Commission. Subsequently, it wasrecommended that the pension of ex-servicemen be reducedand to compensate them for such reduction, they were tobe absorbed in paramilitary forces, police forces or publicsector organisations. However, though the pension wasreduced, the recommendation relating to their absorptionGwas not implemented. The army personnel then demandedthat OROP must be implemented; G

(xx) The reliance placed by the respondents on DS Nakarav. Union of India[9] is incorrect since it only deals with 9 1983 AIR 130

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Athe general law applicable to civil servants. The decisionin SPS Vains (supra) deals with the special law applicableto ex-servicemen of the defence forces;

(xxi) The one man Committee headed by Justice L NarasimhaReddy submitted its report to the Union Government onB26 December 2016. Even after two years, theGovernment is still ‘studying’ the report and has not yetreleased the report;

(xxii) If the respondents can calculate the enhancement ofpension for every five years, there is no reason that itCcannot be done every year;

(xxiii) The rule of reduction in the pension if the service of thearmed personnel is less than twenty six years wasintroduced in 1973. If a soldier has served for less thantwenty six years then his pension would be reduced proDrata of X (number of years served) % 26. TheGovernment has not updated the basic pay of soldiersand did not bring it at par with the 31 December 2015pay before multiplying it with the factor of 2.57. At thesame time, the pension was altered from being rankbased to 50 percent of the last drawn pay. This resultedEin double loss to ex-servicemen. This Court has alsostruck down the rule of reducing pension if an employeehas served less than twenty six years;

(xxiv) While the respondents have submitted that an amountof Rs 10,795 crores has been paid as arrears for OROPFin two years, it only amounts to an average increase ofRs 2131 per month per soldier. The Union Governmentis spending a higher amount of funds for CentralGovernment employees and pensioners;

(xxv) The Union Government has spent Rs 32,385 crores forGOROP in six years which is less than its spending of Rs27,800 crores per year for the scheme of Non-FunctionalUpgradation. The Union Government consistently hasbeen spending less on the armed forces. For instance,the “High Altitude Siachen Allowance” for Armypersonnel is Rs 31,500, while it is Rs 50,000 to 70,000H

for all Central Cadre for serving in ‘hard areas’ likeAShillong;

(xxvi) MACP Scheme should be given to all past retirees tocomply with the judgment of this Court in SPS Vains(supra). Even if MACP has been given to the 2013retirees, the comparison made in the chart still holdsBcorrect;

(xxvii) While the Union Government states that the benefit ofOROP is to be given to ‘past retirees’, it has created aconfusion by stating that the scheme must be givenprospective effect; and C

(xxviii) The MACP Scheme came into effect from 1 January2016. Therefore, the figure of Rs. 6665 referring to thepension receivable by a Sepoy should include the benefitsof the MACP scheme.

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13. We have heard Mr Venkataramanan, the learned AdditionalSolicitor General of India, for the respondents. The respondents havemade the following submissions during the course of the proceedings:

(i) The budget for pension has been increased after theimplementation of OROP with effect from 1 July 2014.The disbursement of arrears with respect to OROP isapproximately Rs 10795.04 crores. The yearly recurringexpenditure on account of OROP is Rs 7123.38 crores.For the six years from 1 July 2014, the total recurringexpenditure is approximately Rs 42740.28 crores; E

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(ii) OROP seeks to bridge the gap by taking the maximumand minimum pension within the rank of pensionersholding the same rank and same length of service todetermine the average. Those who are below theaverage pension are brought to the average and thosewho are drawing a higher pension are protected; G

(iii) The OROP scheme has been implemented prospectivelywith effect from 1 July 2014. The benefits arising outof the scheme are to be paid after 1 July 2014 to thosewho retired prior to 1 July 2014; 906SUPREME COURT REPORTS

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A(iv)The OROP scheme envisages revision of pension oncein five years, unlike civilian pension schemes which arerevised once in ten years. The plea of the petitioners toprovide ‘automatic’ adjustment cannot be acceded toas it is impossible to implement it;B(v)It is a settled principle of law that minutes, statementsand inter-ministerial discussions with the Ministry andwithin the Ministry do not have the force of law.Therefore the reference made by the petitioners to theminutes of the meeting to argue that the definition ofOROP has been altered is unsustainable; C(vi)The scheme/policy can be challenged on the groundsof arbitrariness but a demand to substitute the policycannot be made;

(vii) The disparity alleged by the petitioners in the pensionsDof the defence personnel with the same rank and samelength of service has been wrongly depicted on accountof the OROP scheme. An artificial disparity has beenshown by equating different classes of pensioners;

(viii) In Figure 1 of the chart produced by the petitioners,Ethey have compared the pension payable to a Sepoywith 15 years of service under the OROP Scheme andthe pension of a Sepoy who retired before 2014 (beforethe application of OROP) after fifteen years of servicewho is drawing pay in the rank of Naik due to the MACPScheme introduced pursuant to Circular No. 555 datedF4 February 2016;(ix)The pension figure of Rs 6,665 is arrived at by takingthe average pension of the maximum and minimumpension of 2013. However, the figure of Rs 7,605 iscalculated on the basis of 50 percent of the last payGdrawn before retirement;(x)Under the MACP Scheme, a Sepoy who was originallygetting Rs 2000 as grade pay would after eight years ofservice receive a next grade pay of Rs 2400. The gradepay of Rs 2400 corresponds to the grade pay of Naik.HSimilarly after sixteen years of service, he would receive the higher grade pay of Rs. 2800, which corresponds toAthe grade pay of Havildar;(xi)Similarly, the disparity shown in Figure 2 by thepetitioners is due to the implementation of the MACPScheme rather than OROP. Figure 3 which pertains tothe rank of Group Captain quotes the pension amountBof Group Captain Daniel Victor who retired on 28February 2015. The OROP scheme is not applicable toGroup Captain Victor;(xii)The comparison drawn by the petitioners is a comparisonbetween non-comparables. The pension calculatedCbased on the average pension in 2013 cannot becompared with the actual pension received based onthe pension rules;

(xiii) The MACP regime warranted a service of 6, 16 and 24years of service by the Sepoy for grouping with therank of Naik, Havildar and Naib Subedar. On the otherhand, under the earlier Assured Career Progression[10]regime, the required service is of 10, 20 and 30 years; D

(xiv) For computation of OROP, the Union Government hastaken MACP as the base and has applied it across theboard to all retirees having the same length of service.OROP is not calculated based on MACP and ACPregime. No such differentiation is made; E

(xv) An executive decision of the Union Government on theOROP can only be challenged on legal principles.However, the petitioners are seeking the most beneficialinterpretation of OROP to be implemented. It cannotbe contended that the most beneficial interpretation ofOROP is the only ‘true’ interpretation and that it mustbe implemented as a right; F

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(xvi) In SPS Vain (supra), this Court held that pre and post1996 retired Major Generals must be treated at par toremove an anomaly in the pension of pre-1996 retiredMajor generals. The principle in that case was aboutthe removal of anomaly between the ranks of Major H

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AGeneral and Brigadier which had arisen due to theimplementation of the fifth and the sixth Central PayCommission;

(xvii) In Indian Ex-Services League v. Union of India[11],this Court hasheld that unless the claim of OROP canBbe treated to be flowing from the reliefs provided inNakara (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 madeby the pension retirees since the purpose of computationof the pension is different. The decisions in KL RatheeCv. Union of India[12]and Suchet Singh Yadav v. Unionof India[13]support this submission;

(xviii) The Committee headed by Justice L Narasimha Reddysubmitted its report to the Union Government. TheInternal Committee is examining the feasibility of theDrecommendations;

(xix) The recommendations of the Koshyari Committee werenot accepted by the Union Government and are thusnot binding upon it. The recommendations of theCommittee cannot be termed as the decision of theEUnion Government;

(xx) Since the Sixth Pay Commission, the length of serviceis no longer a criterion for calculating pension. Thepension is now determined by 50 percent of the lastpay drawn. However, due to demands, OROP ratesFhave been prepared based on the average pension ofretirees in 2013;

(xxi) It is not feasible to undertake an automatic revision.Though the government has accepted the principle ofuniformity, it is not unreasonable to define periodicityGfor ensuring uniformity;

(xxii) The argument that OROP should be approved witheffect from 1 April 2014 because it was announced in 11 AIR 1991 SC 118212 SLJ 1997 (30 207)H13 (2019) 11 SCC 520

INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF909INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]the Budget of 2014 is erroneous. The scheme wasAproposed by the Ministry of Defence through the lettersdated 7 November 2015 and 3 February 2016;(xxiii)The pension of OROP beneficiaries who retired before1 July 2014 was revised by the multiplication factor of2.57 according to the recommendations of the SeventhBCentral Pay Commission. However, those who retiredafter 1 January 2016 received the benefit of only revisionin emoluments in terms of the recommendations of theSeventh Central Pay Commission;(xxiv)The statement made by the Finance Minister on 17CFebruary 2014 was not based on the decision of theUnion Cabinet. The Cabinet Secretariat conveyed theapproval of the Prime Minister to the OROP schemeon 7 November 2015. The Ministry of Defencecommunicated this policy by a notification dated 7November 2015. A post facto approval was conveyedDby the Union Cabinet on 6 April 2016;(xxv)One of the qualifying conditions for the OROP schemeis that the personnel must have the ‘same length ofservice’. One who had not put in the same length ofservice is not eligible for an MACP. The total financialEoutflow that is likely to be incurred by the UnionGovernment for non-MACP to be linked with MACPpersonnel would be in the range of Rs 42,776.38 crores;and(xxvi)The expression ‘automatically’ used in the KoshyariFCommittee report, the minutes of the meeting held on26 February 2014 and the executive order dated 26February 2014 defining the OROP scheme follow theexpression ‘in the rates of pension to be automaticallypassed on to the past pensioners’. It must, thus, be readas meaning that the rates of pension will be passed toGthe past pensioners without any difficulties. The phrase‘automatically’ does not mean the time period.

C. Analysis

14. Though, a significant number of factual and detailed issueswere raised in the course of the pleadings. Mr Huzefa Ahmadi, learned H

ASenior Counsel appearing on behalf of the petitioners brought focus uponand urged the following specific submissions during the course of thehearing:

(i) The Union government took an executive decision toimplement OROP as understood by the KoshyariBCommittee. This is evidenced by:

a.The statement of the Minister of Finance in the LokSabha on 17 February 2014; b.The decision taken on 26 February 2014 in the meetingconvened by the Union Minister for Defence; C

c.The letter dated 26 February 2014 of the Uniongovernment to the CGDA; d.The Budget speech of the Minister of Finance on 10July 2014; and De.The reply of 2 December 2014 of the Minister of Statefor Finance to Member of Parliament.

(ii) The essential elements underlying the concept of OROPare:

a.Those retiring from the same rank with the same lengthEof service must receive the same pension irrespectiveof the date of retirement; b.Future enhancements of pension must be automaticallypassed on to past pensioners; and

c.Bridging of the gap between the rate of pension ofpresent and past pensioners.

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(iii) In substitution of the above principle underlying OROP, thecommunication dated 7 November 2015 of the Ministry ofDefence modified the executive decision by stipulating that:

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i.The pension of past pensioners would be refixed onthe basis of the pension of the retirees of calendaryear 2013, with the benefit being effective from 1July 2014;

ii.Pension is to be revisited for all pensioners on theHbasis of the average of the minimum and maximum pension of persons who retired in 2013 in the sameArank and with the same length of service;

iii.In the future pension would be revisited every fiveyears and not automatically; and

iv.Hence, the actual decision which was taken on 7November 2015 deviates from the principle of equalitywhich OROP adopts.

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15. The submissions which have been urged by the pensionersare sought to be buttressed by referring to the charts set out in theearlier part of this judgment and marked asfigures 1, 2 and 3 by whichan attempt has been made to show the disparity in the pension payableto persons of the same rank with the same length of service, based onthe date of retirement.

C. 1 Concept and genesis of OROP

16. The adoption of OROP as a guiding statement of policy on 7November 2015 was preceded by discussions both within and outsideParliament. The Koshyari Committee submitted its report on 10 December2011. The Committee formulated an understanding of the concept ofOROP. According to the report of the Committee, OROP implies that a“uniform pension be paid to the armed forces personnel retiring in thesame rank with the same length of service irrespective of their date ofretirement and any future enhancements in the rate of pension to beautomatically passed on to the past pensioners”. The concept, accordingto the report implied “bridging the gap between the rate of pension of thecurrent pensioners and the past pensioners”. This understanding of theconcept of OROP in the Koshyari Committee Report was based on thenorm that hierarchy in the armed forces comprises of two elementsnamely rank and length of service. Ranks are conferred by the Presidentand signify command, control and responsibility. Ranks are allowed tobe retained even after retirement. Hence OROP, according to theKoshyari Committee postulates that two personnel from the armed forcesin the same rank and with the equal length of service should get thesame pension irrespective of their dates of retirement and any futureenhancement in the rates of pension must be automatically passed on topast pensioners. While proposing the adoption of OROP in principle, theKoshyari Committee highlighted that:

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A(i)OROP was in vogue till 1973 when the Third Central PayCommission decided otherwise;

(ii) Unlike civilian employees who retire by age, armed forcespersonnel retire by rank; and

(iii) The conditions of service of personnel from the armed forcesBare harsher than those of civilian employees and armedforces personnel cannot be equated with civilian employeesof the government.

17. Now it needs to be understood that the Koshyari CommitteeReportis a report submitted to the Rajya Sabha by the Committee onCPetitions. The report cannot be enforced as a statement of governmentpolicy. In Kalpana Mehta v. Union of India[14], a Constitution Bench ofthis Court dealt, on the reference under Article 145(3), with two issuesnamely:

“9…73.1. (i) Whether in a litigation filed before this Court eitherunder Article 32 or Article 136 of the Constitution of India, theDCourt can refer to and place reliance upon the report of theParliamentary Standing Committee?

73.2. (ii) Whether such a report can be looked at for the purposeof reference and, if so, can there be restrictions for the purposeof reference regard being had to the concept of parliamentaryEprivilege and the delicate balance between the constitutionalinstitutions that Articles 105, 121 and 122 of the Constitutionconceive?”

Chief Justice Dipak Misra (speaking for himself and Justice AMKhanwilkar) held thus:F“Q. Conclusions 159.1. Parliamentary Standing Committee report can be taken aidof for the purpose of interpretation of a statutory provisionwherever it is so necessary and also it can be taken note of asexistence of a historical fact.

G159.3. In a litigation filed either under Article 32 or Article 136 ofthe Constitution of India, this Court can take on record the reportof the Parliamentary Standing Committee. However, the reportcannot be impugned or challenged in a court of law.

159.4. Where the fact is contentious, the petitioner can alwayscollect the facts from many a source and produce such facts byway of affidavits, and the court can render its verdict by way ofindependent adjudication.

159.5. The Parliamentary Standing Committee report being in thepublic domain can invite fair comments and criticism from thecitizens as in such a situation, the citizens do not really commentupon any Member of Parliament to invite the hazard of violationof parliamentary privilege.”

18. One of us (DY Chandrachud, J) speaking for himself andJustice Dr AK Sikri held that a report of a Parliamentary Committeemay have a bearing upon diverse perspectives some of which wereformulated thus:

“259.1. The report of a Parliamentary Committee may contain astatement of position by Government on matters of policy; 259.2. The report may allude to statements made by persons whohave deposed before the Committee; 259.3. The report may contain inferences of fact including on theperformance of Government in implementing policies andlegislation; 259.4. The report may contain findings of misdemeanourimplicating a breach of duty by public officials or private individualsor an evasion of law; or 259.5. The report may shed light on the purpose of a law, thesocial problem which the legislature had in view and the mannerin which 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 holdingthe Government accountable to implement its policies and its dutiesunder legislation. The performance of governmental agencies mayform the subject-matter of such a report. In other cases, thedeficiencies of the legislative framework in remedying socialwrongs may be the subject of an evaluation by a ParliamentaryCommittee. The work of a Parliamentary Committee may traverse A

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Athe area of social welfare either in terms of the extent to whichexisting legislation is being effectively implemented or in highlightingthe lacunae in its framework. There is no reason in principle whythe wide jurisdiction of the High Courts under Article 226 or ofthis Court under Article 32 should be exercised in a manneroblivious to the enormous work which is carried out byBParliamentary Committees in the field. The work of the committeeis to secure alacrity on the part of the Government in alleviatingdeprivations of social justice and in securing efficient andaccountable governance. When courts enter upon issues of publicinterest and adjudicate upon them, they do not discharge a functionCwhich is adversarial. The constitutional function of adjudication inmatters of public interest is in step with the role of ParliamentaryCommittees which is to secure accountability, transparency andresponsiveness in the Government. In such areas, the doctrine ofseparation does not militate against the court relying upon thereport of a Parliamentary Committee. The court does not adjudgeDthe validity of the report nor for that matter does it embark upon ascrutiny into its correctness. There is a functional complementaritybetween the purpose of the investigation by the ParliamentaryCommittee and the adjudication by the court. To deprive the courtof the valuable insight of a Parliamentary Committee would amountEto excluding an important source of information from the purviewof the court. To do so on the supposed hypothesis that it wouldamount to a breach of parliamentary privilege would be to missthe wood for the trees. Once the report of the ParliamentaryCommittee has been published it lies in the public domain. OnceParliament has placed it in the public domain, there is an ironyFabout the executive relying on parliamentary privilege. There isno reason or justification to exclude it from the purview of thematerial to which the court seeks recourse to understand theproblem with which it is required to deal. The court must look atthe report with a robust commonsense, conscious of the fact thatGit is not called upon to determine the validity of the report whichconstitutes advice tendered to Parliament. The extent to whichthe court would rely upon a report must necessarily vary fromcase to case and no absolute rule can be laid down in that regard.”

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19. In a concurring judgment, Justice Ashok Bhushan observed:

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“449.7. Both the parties have not disputed that parliamentaryreports can be used for the purposes of legislative history of astatute as well as for considering the statement made by a minister.When there is no breach of privilege in considering theparliamentary materials and reports of the Committee by the Courtfor the above two purposes, we fail to see any valid reason fornot accepting the submission of the petitioner that courts are notdebarred from accepting the parliamentary materials and reports,on record, before it, provided the court does not proceed to permitthe parties to question and impeach the reports.”

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20. The Koshyari Committee Report can be relied upon to indicatethe background of the adoption of OROP. The report furnishes thehistorical background, the reason for the demand, and the view of theParliamentary Committee which proposed the adoption of OROP forpersonnel belonging to the armed forces. Beyond this, the KoshyariCommittee Report cannot be construed as embodying a statement ofgovernmental policy. Governmental policy formulated in terms of Article73 by the Union or Article 162 by the State has to be authoritativelygauged from the policy documents of the government, which in presentcase is the communication dated 7 November 2015. Prior to it , on 17February 2014, a statement was made by the Union Minister of Financein the Lok Sabha while presenting the interim budget for 2014-15 statingthat the government had accepted the principle of OROP for the defenceforces and that the decision would be implemented from financial year2014-15. The statement of the Union Minister of Finance reflects an in-principle decision to adopt OROP for all personnel belonging to the armedforces. Evidently, the modalities of implementing OROP were yet to bechalked out and were adopted later. On 26 February 2014, a meetingwas held by the Minister of Defence to discuss the modalities forimplementing the decision to adopt OROP. Paragraph 3 of the minutesof the meeting elaborate that OROP implies that:

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(i) Uniform pension be paid to armed forces personnel retiringin the same rank with the same length of service irrespectiveGof the date of retirement;

(ii) Any future enhancement in the rates of pension should bepassed on to past pensioners;

(iii) The gap between the rates of pension of current and pastpensioners should be bridged; and H

A(iv)Future enhancements in the rates of pension should beautomatically based on to the past pensioners at that stage.

21. The CGDA was directed to initiate steps in consultation withthe Finance and Ex-servicemen Welfare departments of the Ministry ofDefence to give effect to the decision. The meeting which was held onB26 February 2014 was part of the decision-making process of the UnionGovernment for determining the modalities for implementing OROP. On26 February 2014, a communication was addressed by the Departmentof Ex-Servicemen Welfare to CGDA noting that at the meeting chairedby the Minister of Defence, it had been decided to implement OROP forall ranks of the defence forces prospectively from the financial year ofC2014-15. Para 2 of the communication reads as follows:

“Accordingly, CGDA may work out the modalities in consultationwith Service Hqrs, (who in turn may appropriately consult ex-servicemen), Department ESW and MoD (Fin) and take necessaryto implement the same.”D

22. On 10 July 2014, the Minister of Finance in the course of hisspeech while presenting the annual budget stated that the UnionGovernment had adopted the policy of OROP to address pension disparityand a further sum of Rs 1,000 crores was set aside to meet the requirementof the year. On 2 December 2014, information on OROP was furnishedEby the Minister of State for Defence in a reply to a Member of theRajya Sabha.

23. The adoption in principle of OROP followed by the discussionon the modalities for implementing it eventually led to the communicationdated 7 November 2015 of the Ministry of Defence to the Chiefs ofFArmy Staff,Air Force Staff and Naval staff. The communication indicatesthat :

“2. It has now been decided to implement “One Rank OnePension” (OROP) for the Ex-Servicemen with effect from1.07.2014. OROP implies that uniform pension be paid to theGDefence Forces Personnel retiring in the same rank with the samelength of service, regardless of their date of retirement, which,implies bridging the gap between the rates of pension of currentand past pensioners at periodic intervals. [sic]”

Paragraph 3 of the communication adverts to the salient features:

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“3. Salient features of the OROP as follows:

i. To begin with, pension of the past pensioner would be re-fixedon the basis of pension of retirees of calendar year 2013 and thebenefit will be effective with effect from 1.7.2014.

ii. Pension will be re-fixed for all pensioners on the basis of theaverage of minimum and maximum pension of personnel retiredin 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 ofSpecial/Liberalized family pension and Gallantry award winnersshall 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 getdischarged henceforth would not be entitled to the benefit of OROP.Moreover, the Union Government had decided to appoint a committeeto look into the anomaly in the implementation of OROP and its reportwas to be submitted within six months. The features of the policycommunication of 7 November 2015 need to be noticed. First, it containsthe decision of the Indian government to implement OROP for ex-servicemen. Second, it specifies the date with effect from which thedecision would be implemented, namely, 1 July 2014. Third, it embodiesthe understanding that OROP implies the payment of uniform pension todefence personnel retiring in the same rank with the same length ofservice regardless of the date of retirement. Fourth, it emphasises theneed to bridge the gap between the rates of pension of current and pastpensioners at “periodic intervals”.

24. A considerable amount of debate has taken place in theseproceedings on whether the expression “at periodic intervals” was inbreach of the original understanding that enhancements in the rates ofpension would be automatically passed on. While dealing with thesubmission, it is important to note at the outset that right from the KoshyariCommittee Report,it was envisaged that “any future enhancement inthe rates of pension is to be automatically passed on to the pastpensioners”. The statement made by the Union Minister of Finance inthe Lok Sabha on 17 February 2014 propounded in principle the decision A

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Ato implement OROP. At the meeting chaired by the Defence Ministeron 26 February 2014, it was again envisaged that “any future enhancementin the rates of pension to be automatically passed on to the pastpensioners”. The reply furnished in writing by the Minister of State forDefence to a Member of the Rajya Sabha also similarly indicates that“future enhancement in the rate of pension to be automatically passedBon to the past pensioners”. The legislative and other material prior to 7November 2015 proposed that future enhancements in the rates ofpension would be automatically passed on. The expression“automatically” was clearly not linked to a time period for the revision ofpensions. None of the documents on the record prior to the communicationCdated 7 November 2015 suggests that the process of revising pensionswas to be continued on an ongoing basis as opposed to revision at periodicintervals.

25. The fallacy in the submission of the petitioners is in theargument that the policy communication dated 7 November 2015 isDcontrary to the original decision which was taken by the UnionGovernment to implement OROP. Implicit in the submission of thepetitioners is the premise that the original decision was based on theKoshyari Committee Report followed by the statement on the floor ofthe House by the Minister of Finance (17 February 2014 and 10 July2014) and the minutes of the meeting convened by the Defence MinisterE(26 February 2014). Our analysis of the underlying document indicatesthat while a decision to implement OROP was taken in principle, themodalities for implementation were yetto be chalked out. Thus, therewas no conscious policy decision on the part of the Union Governmenton the modalities for implementing OROP until the communication datedF7 November 2015 came into being. The communication of 7 November2015 cannot be invalidated on the ground that it infringed the ‘originalunderstanding’ of OROP. A hierarchy in law exists between statutesand rules – a statutory provision will have precedence over delegatedlegislation if the latter conflicts with the former. Similarly, executive instructions cannot override a statute or rules made in pursuance of aGstatute. But in the present case the entire canvas is governed by a policy.The terms for implementing the policy were specified on 7 November2015. Hence, that element of the policy cannot be challenged on thenotion that there is an inflexible notion of OROP couched in an originalunderstanding. OROP is itself a matter of policy and it was open to theHmakers 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 oflegitimate expectations, they have implicitly relied on this principle. Thedoctrine of legitimate expectations can be invoked if a representationmade by a public body leads an individual to believe that they would bea recipient of a substantive benefit. A part of the petitioners’ grievancestems from the belief that an assurance made by State functionaries, theMinisters of the Union Government, did not translate into a consciouspolicy decision, which is embodied in the communication dated 7November 2015. We have stated above that the expression“automatically” was clearly not linked to a time period for the revision ofpensions. But if it is to be assumed that the expression “automatically”meant that the revision in the rates of pension would take place on anongoing basis rather than at periodic intervals, the question arises whetherthe doctrine of legitimate expectations can be invoked in the presentcase. In the State of Jharkhand v. Brahmputra Metallics Ltd.,Ranchi[15],a two-judge Bench of this Court, of which one of us (DYChandrachud, J) was a part, clarified the doctrinal difference betweenthe concepts of promissory estoppel and legitimate expectations. TheBench observed that the doctrine of legitimate expectations, a publiclaw concept,is premised on the principles of fairness and non-arbitrarinessin state action. The doctrine of legitimate expectations emerges as afacet of Article 14 of the Constitution. On the other hand, promissoryestoppel, being a private law concept, can be invoked if the State hasentered into a private contract with another entity but is inapplicablewhere a representation has been made by the State in the discharge ofits public functions. The doctrine of legitimate expectations is applicablein the latter situation. Noting that in India, the two doctrines have beenconflated, this Court went on to analyse if the change in an existinggovernment policy violates the legitimate expectations of those who werepreviously covered by such policy. However, in the present case, therewas no concrete government policy in existence prior to 7 November2015. There existed only certain assurances that were made by theMinisters, or which could be deduced from the minutes of a meeting thatwas chaired by the Minister of Defence. These assurances were also tothe effect that OROP has been accepted in principle. The implementationwas yet to be worked out. In State of Arunachal Pradesh v. Nezone15 2020 SCC OnLine SC 968

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ALaw House[16], a two-judge Bench of this Court held that when the viewsof various departments/Ministries are involved, an oral promise by aMinister does not bind the government. In that case, a law publisher hadcontended that the then Law Minister had assured the publisher thatcertain books will be purchased from it. The document that was reliedBupon by the publisher was a departmental note which indicated that thedecision regarding the purchase was subject to the concurrence of otherdepartments and Ministries. This Court observed:

“8. As noted above the factual scenario is interesting. Thedocument relied upon by the respondent and the High Court refersCto some oral expression of desire by the then Law Minister. Whenthe views of several departments were involved thequestion of any oral view being expressed by a Minister isreally not relevant. Further, the document relied upon wasnothing but a departmental note which itself clearlyDindicated that the views of various departments/Ministrieswere to be taken and their concurrence was to be obtained.Apart from that, undisputedly there was some factual dispute asto whether the intended purchase was of volumes or of sets. Thereis conceptual difference between the two. The books were noteven printed at the relevant point of time. The High Court hasEnoticed only one volume had been printed. Further the need forthe purchase of the books for the judicial officers was to beassessed in consultation with the High Court. The Law Ministercould not have, without taking the view of the High Court, placedorders. In any event the dispute as to the volumes or the sets andFthe interpolation in the documents were of considerable relevance.Unfortunately the High Court has lightly brushed aside this aspect.The doctrines of promissory estoppel and legitimateexpectation were not applicable to the facts of the case.”

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27. In the present case, discussions took place within theGovernment and even as of 26 February 2014, the meeting chaired bythe Minister of Defence set out broad parameters of the decision, whileleaving it to the CGDA to ensure necessary steps in consultation with H16 (2008) 5 SCC 609

INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OFINDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

the three services and the Finance and ESW wings of MOD “to giveeffect to this decision”. The meeting envisaged that family pensionersand disabled pensioners would be included and that ex-servicemen mayalso be properly consulted as required by the service. All this is clearlysuggestive of the fact that in the evolving decisions which were takingplace within the Government, a formulation of the precise modalitieswhich were to be adopted was yet to take place. This eventually tookplace on 7 November 2015. The communication dated 7 November 2015cannot, therefore, be assailed on the ground that it is contrary to theoriginal intent of the policy formulated by the Union Government. Thepolicy of the Union Government is what is embodied in the communicationdated 7 November 2015. The statements made on the Floor of the Houseand minutes of ministerial committees are pointers to the fact that theUnion Government had in principle decided to implement OROP but theprecise framework of its implementation was a matter of evolvingdiscussion within Government. The formulation of modalities which tookplace in the communication dated 7 November 2015 represents the policychoices adopted by the Government.

28. While the communication dated 7 November 2015 isundoubtedly open to be scrutinised on constitutional parameters, there isno substance in the plea that the decision which was taken on 7 November2015 is somehow contrary to an original policy decision of the UnionGovernment. The policy and its modalities for implementation are thosewhich have been embodied in the communication dated 7 November2015.

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C. 2. Plea of Discrimination

29. The submission of the petitioners on the violation of Article 14is premised essentially on three aspects:

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(i) Fixation of the pension as of calendar year 2013 would resultin pre 2014 retirees getting less pension of one incrementGthan a soldier retiring after 2014;

(ii) Fixing the pension based on the mean of minimum andmaximum pension of 2013 would result in different pensionsfor the same ranks and same length of service dependingon whether the personnel retired before or after 31H

922SUPREME COURT REPORTS

[2022] 9 S.C.R.

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December 2013. In effect, a higher ranked soldier wouldreceive lesser pension on comparison to a lower rankedsoldier; and

(iii) As a result of the process of equalisation every five years,persons who have retired prior in point of time would beBplaced at a disadvantage as their unequalised pension wouldbe multiplied by a factor of 2.57 while those who have retiredafter 1 January 2014 would get the benefit of higher pensionwhich would be multiplied by 2.57.

C30. In the course of its comprehensive affidavit, the UnionGovernment attempted to explain the disparity in the pension payable toa Sepoy with 15 years of qualifying service under OROP and the actualpension of a Sepoy with 15 years of qualifying service who retired in2014 before the application of OROP. The following explanation wasoffered to the three tabular charts appended as fixtures 1, 2 and 3 above:D

“A. Tabular Chart 1:

(a) In this table, the comparison made by the Petitioner isbetween pension payable to a Sepoy with 15 years ofqualifying service under OROP and the actual pension of aESepoy who retired in 2014 (before application of OROP)after 15 years qualifying service who is drawing pension inthe rank of Naik, due to operation of the Modified AssuredCareer Progression Scheme [hereinafter referred to as‘MACP Scheme’]

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(b) The figure of Rs. 6,666 is derived from the Table at Pg. 3of the Note. The figure of Rs. 6665 denotes the weightedaverage pension of the minimum and maximum pension of2013 of Sepoys who retired in 2013 with 15 years ofqualifying service.

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(c) The figure of Rs. 7,605 is derived from the Pension PaymentOrder annexed at Pg. 5 of the Note. Pension is calculatedon the basis of 50% of the last pay drawn before retirement.This can be arrived at by the following:- H

*figures from Pg. 5 of the Note

(d) The difference in pension between the two pensions inTabular Chart 1 is due to the applicability of the MACPScheme (implemented based on the recommendations ofthe6th Central Pay Commission). Under the MACPScheme, a defence personnel who has not been promotedfor 8/16/24 years of regular service, would be eligible forgrant of next higher grade pay after completion of 8/16/14years of regular service. In other words, a Sepoy who wasoriginally getting Rs 2,000 as grade pay would after 8 yearsof service (without promotion) be granted the next highergrade pay of Rs. 2,400. The grade pay of Rs. 2,400 ordinarilycorresponds 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 tothe grade pay of Havildar.

(f) As a logical corollary, the pay (and consequently pension)of different Sepoys would differ/vary depending on whetherbenefit of the MACP Scheme has been granted to suchSepoy or not.

(g) The applicability of the MACP Scheme on the pensionof a retired defense personnel has been dealt by the Circular

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No. 555 dated 04.02.2016, wherein at Para 11(C), it hasbeen stated:- “…11. The provisions of this circular shall be applicable toall Pre-01.07.2014 pensioners /family pensioners and theirpension/family pension shall be stepped up with referenceto rank, group and qualifying service in which they werepensioned.

Note:

a)…

b)…

c) A JCOs/ORs pensioner, who has retired with a particularrank and granted ACP-I will be eligible for revision ofpension of a next higher rank; if ACP-II has been granted,he will be eligible for revision of pension of next higherrank of ACP-I; and if ACP-III has been granted, he will beeligible 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 forrevision of pension of Naik rank, Sepoy granted ACP-IIwill be eligible for revision of pension of Havildar rank andsepoy granted ACP-III will be eligible for revision of pensionof Naib Subedar rank […]”

Therefore, the example of two Sepoys drawing differentpension amount is due to operation of MACP and is notdue to operation of the OROP Scheme.

(h) It is also important to point out that the MACP Schemeis only one such factor which influences the pay drawn bya Sepoy. The other factors include promotion, disciplinaryproceedings etc.

B. Tabular Chart 2:

(a) In this Chart, the pension of a Naik has been comparedwith a person drawing pension of Havildar by virtue of theMACP Scheme.

(b) The figure of Rs. 7,170 is derived from the Table at Pg.4 of the Note. The figure of Rs. 7,170 denotes the weighted average pension of the minimum and maximum pension of2013.

(c) The figure of Rs. 8,295 is derived from the pensionpayment order annexed at Pg. 6 of the Note Pension iscalculated on the basis of 50% of the last pay drawn beforeretirement. This can be arrived at by the following:- (d) Now, due to the operation of the MACP Scheme, theNaik (grade pay of Rs. 2,400) is actually drawing the nexthigher grade pay of Rs.2,800, which corresponds to thegrade pay of Havildar. This is the same principle, whichwas the basis for difference in pension in Tabular Chart 1.

C. Tabular Chart III

(a) The Tabular Chart III pertains to the rank of GroupCaptain. As per Column II of this Chart, the example quotedis that of a 2014 retiree. However, the pension amountquoted is of Group Captain Daniel Victor, who retired on28.02.2015. It is important to state that the OROP Schemewas not applicable to Group Captain Daniel Victor.

(e) Therefore, the Petitioner has misled this Hon’ble Courtby relying on the pension of a recent retiree who has notbeen covered under the OROP Scheme. The PPO Numberof Group Captain Daniel Victor is 08/14/1/114/2015

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18. It is further submitted that the flaw in pointing out thealleged disparities by referring to the Tables at Pg. 1 of theNote are due to the following reasons, interalia:-

(i) The comparison as mentioned in the Table is a comparisonbetween non-comparables. The weighted average pensionof the minimum and maximum pension of 2013 can neverbe compared with the actual amount being received by adefence personnel as pension fixed under the rulesapplicable for retiring pension in the normal course.

(ii) The weighted average pension signifies the lowest/minimum amount that a defence personnel retiring upto 2013is entitled to get as OROP pension. Whereas, the actualpension of the retired defense personnel in 2014 (withouteffect of OROP) is based on pay last drawn. This amountof actual pension may be higher (due to various factors),but cannot be lower than the weighted average pension, asin that case, pension would be raised (protected) to the levelof the weighted average pension (OROP)

(iii) In other words, the pension amount of Rs. 6,665 is theminimum prescribed benchmark amount that any Sepoy(with 15 years qualifying service) would get under OROPas per Table No. 7 at Page 3 of the Note. Therefore, noSepoy with the same pay and same length of service willget an amount less than Rs. 6,665 under OROP. Theminimum prescribed benchmark is fixed to ensure that alldefense personnel retiring pre-2013 are pulled up to receiveat least the minimum prescribed pension. The benchmarkingto the average of the minimum and maximum ensuresupliftment of those receiving below the benchmark rate,whereas, protection of those who are receiving a higherpension than the benchmark rate.

(iv) The Petitioner’s interpretation is an attempt to equalizethe pension of every defense personnel with the highestpension drawn by a defense personnel in the same rankwith the same length of service. Such an interpretation iscompletely arbitrary definition of how OROP should beimplemented.”

31. During the course of the hearing, the Union Government placedon record a further affidavit. The affidavit places on record the status ofthe grant of MACP benefits to defence personnel across the threeservices.The sample data for 2013 which was the base year for thecalculation has been placed on the record and is reproduced below: - “….(v) Likewise, a Sepoy who gets promoted at the first instanceas Naik in its natural course but does not get promoted for thesubsequent ranks (which may happen due to non-availability ofvacancies or stagnation) would be entitled to the MACPupgradations of those ranks.

(vi) It is also respectfully submitted that the threshold condition toqualify for MACP is the completion of the required length ofservice. Consequently, one who completed the required length ofservice would qualify for MACP automatically unless otherwisebarred due to disciplinary proceedings or performance.

(vii) It is also respectfully submitted that the threshold condition toqualify for MACP is the completion of the required length ofservice. Consequently, one who completes the required length ofservice would qualify for MACP automatically unless otherwisebarred due to disciplinary proceedings or performance.

(viii) It is therefore self-evident that a Sepoy who does notcomplete the required length of service of 8 years and onewho completed it, cannot be benchmarked together underany circumstances.

(ix) A Sepoy of 3 years and a Sepoy who had crossed 8 yearsqualifying for MACP is not equated even for OROP purpose sincethey do not qualify the criteria of “same length of service.”

While explaining the difference in pensions of the two Sepoys,the Union Government stated that this was due to the applicability of theMACP scheme. In the subsequent affidavit, some of the issues whichremained to be explained in the comprehensive affidavit have beenattempted to be clarified.

C.2.1 ACP-MACP

32 In 2013, the ACP regime was put into place. In terms of thescheme, a Sepoy upon completion of ten years of servicewouldbeupgraded to a Naik for the purpose of pay, pension and other special

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Abenefits. After completion of 20 years’ service, there would be a furtherupgradation to the pay of a Havildar and after 30 years’ service, as aNaib Subedar. Though the scheme was implemented from 2014, thebenefit was extended retrospectively by applying the norms of 10:20:30years of service respectively. Hence, a Sepoy in 2013 with thirty yearsof service was grouped with a Naib Subedar for pay, pension and otherBfinancial benefits. The ACP scheme thus covered defence personneltracing back in time to 1973.

33. On 11 October 2008, by Army instruction No 1/S/2008,theMACP Scheme was implemented. In terms of the scheme, the earliertime line of 10:20:30 years of service for upgradation was modified toC8:16:24 years for conferment of benefits in terms of pay, pension andother financial benefits. In view of the decision of this Court in Union ofIndia v. Balbir Singh Turn[17], the MACP scheme was made operationalwith effect from 1 January 2006. Though the MACP scheme was madeoperational from 1 January 2006, it had retrospective effect as a result Dof which any person who was in service and qualified with the thresholdrequirement of 8:16:24 years of service came to be grouped with thecorresponding rank upgradations for the purpose of pay, pension andother benefits. In the above backdrop, the Union Government has statedbefore this Court on affidavit that for the purpose of computing the OROPbenefit, it has taken MACP as the base and applied it across the boardEfor all retirees having the same length of service. In other words, OROPwas not calculated in two parts comprising of the ACP regime and MACPregime. In this context, reliance has been placed on Note VI appendedto the table for working out OROP calculations. Note VI reads asfollows:-F“Pension of JCO/ORS granted upgradation under ACP/MACPscheme shall be revised with reference to the rank for whichACP/MACP was granted.”

34. On the above premises, it has been submitted that no disparityon the ground of MACP/ACP has been introduced and the core valueof uniform pension for a person retiring in the same rank with the sameGlength of service is maintained without disparity.

C.2.2 Financial Implications

35. The Union Government has stated on affidavit that at the timewhen OROP was implemented, the annual financial implication was in H17 (2018) 11 SCC 99

the amount of Rs 7,123.38 crores. The actual arrears which had to bepaid for the period of 1 July 2014 to 31 December 2015 stood in theamount of Rs 10,392.35 crores. The table on the status of the grant ofMACP benefits to defence personnel (2013) indicates that 96.4% Sepoys,72.3% Naiks, 48.9% Havildars and 90.9% Art III-I (Navy only) representthe percentage of retirees getting MACP benefits. This indicates thatMACP benefit forms a significant portion of the retiring personnel in theabove four ranks, the last one being relevant only for the Navy. TheMACP factor is not of much impact in the case of Naib Subedar, Subedarand Subedar Major, among whom 1.6%, 2.2% and 0.2% of all retiringpersonnel are receiving MACP benefits. This is because they wouldhave reached those ranks by regular promotion. When a Sepoy witheight years of service is upgraded as a Naik and thereafter as a Havildarand Naib Subedar after sixteen and twenty-four years of service, otherfinancial benefits attached to the higher ranks accrue automatically toan MACP beneficiary. However, if a Sepoy is promoted to the rank ofNaik in the natural course before eight years of service, such a persondoes not qualify for MACP and the same principle applies to the furtherupgradation. 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 MACPupgradation only for those ranks. The threshold requirement for the grantof MACP is completion of a specified length of service. A Sepoy whodoes not complete the required length of service cannot hence bebenchmarked with someone who completes the stipulated length of servicefor the grant of MACP benefits. In other words, a Sepoy with threeyears of service and a Sepoy who has acquired eight years of servicethereby qualifying for MACP are not equated even after OROP purposessince they did not both have the same length of service from the pastrank of Naib Subedar. According to the Union Government, if non MACPpersonnel are grouped with MACP personnel for the payment of OROP,the total financial outflow from 2014 would be in the range of Rs 42,776.38crores. If non MACP persons were required to be matched with MACP,the financial implication for the period from 1 July 2014 to 31 December2015 would stand at Rs 13,731.03 crores. If such a benefit is given, thefinancial implication for 2021 under the Seventh Pay Commission wouldrequire a conversion factor of 2.57 besides which 31% DR would bepayable. As noted earlier, it has been stated that when OROP isimplemented, the annual financial implication was in the amount of Rs A

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FC.2. 3 Average to Maximum

36. The Court has been apprised of the fact that the CGDAworking committee considered four options for OROP in the year 2013.Of the four options, the fourth option was on the basis of the maximumpension of current retirees, which was proposed by the services. TheGCommittee noted that the financial implication of the fourth option(maximum pension of current retirees) was Rs 14,898.34 crores perannum and the total arrears which would be payable on this basis wouldhave been in the amount of Rs 1,45,339.34 crores, as is tabulated below:

C.2.4 Periodic revision every five years

37. The central limb of the submission of the petitioners is that arevision of OROP should be automatic. The Union government hassubmitted that besides lacking any prior precedent, in terms of the practicegoverning pay scales, pensions and other financial emoluments ofgovernment servants, automatic revision would be impossible toimplement. Quite apart from the above consideration, it is evident thatthe three documents which have been relied upon by the petitionersnamely (i) the Koshyari Committee Report; (ii) the minutes of the meetingchaired by the Defence Minister on 26 February 2014; and (iii) thecommunication dated 26 February 2014 to CGDA underscore that “anyfuture enhancement in the rates of pension to be automatically passedon to the past pensioners”. The expression “to be automatically passedon” immediately follows upon the words “any future enhancement inthe rates of pension”. When read together contextually, it signifies thatthe rates of pension would be passed on to past pensioners without anyadministrative impediments. The expression ‘automatically passed on’cannot be construed as a commitment with reference to any period oftime for the computation of benefits. The manner in which and the periodover which revisions should take place of pensions, salaries and otherfinancial benefits is a pure question of policy. The decision of the Central

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AGovernment to revise the pension every five years cannot be held toviolate the precepts underlying Article 14.

38. The policy choices which have been made by the UnionGovernment must also be understood in the context that the estimatedbudget allocation for defence pensions is Rs 1,33,825 crores representingB28.39 per cent of the total defence budget estimateof Rs 4,71,378 croresfor 2020-2021. This does not include budget on salaries which is of theorder of 34.89 per cent of the total defence budget estimates for 2020-2021. Salaries and pensions thus account for nearly 63 per cent of thetotal defence budget estimates for 2020-2021. In making policy choices,the Union Government is entitled to take into account priorities towardsCmodernization of the armed forces and to modulate the grant of financialbenefits so as to sub-serve and balance distinct priorities.

39. In the decision of this Court in Nakara (supra), the ConstitutionBench was deciding on the issue of whether the date of retirement wouldbe a relevant consideration for determining the application of a revisedDformula for the computation of pension. The liberalised pension schemewas made applicable prospectively to those employees who retired onor after March 31, 1979 in the case of government servants covered bythe 1972 Rules and in respect of defence personnel, those who becamenon-effective on or after April 1, 1979. Consequently, those who retiredEprior to the date were not entitled to the benefits of the liberalised pensionscheme. It was held that payment of pension constitutes a compensationfor the service rendered in the past and as a measure of social welfarefor providing socio-economic justice to those who have rendered serviceto the State. The Court noted that earlier,the measure of pension wasrelated to the average emoluments during a period of thirty-six monthsFprior to retirement. By a liberalized scheme, the period was reduced toan average of ten months preceding the date of retirement coupled withthe above aspects.A slab system for computation was introduced andthe ceiling was raised. This Court held that there was no justification forarbitrarily selecting the criteria for eligibility for the grant of benefitsGunder the scheme based on the date of retirement. Hence, this Courtheld that all pensioners formed a homogeneous class and where an existingscheme of pension was liberalized, a distinction could not be made onthe basis of a specified cut-off date. At the same time, it must also benoted that the decision in Nakara (supra) noted that “the financialimplication in such matters has some relevance.” This Court struck downH

the portion of the Memoranda by which the benefit of the liberalisedpension scheme was only confined to persons retiring on or after thespecified 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 somerelevance. However in this connection, we want to steer clearof a misconception. There is no pension fund as it is found eitherin contributory pension schemes administered in foreign countriesor as in insurance-linked pensions. Non-contributory pensionsunder 1972 Rules is a State obligation. It is an item of expenditurevoted year to year depending upon the number of pensioners andthe estimated expenditure. Now when the liberalised pensionscheme was introduced, we would justifiably assume that thegovernment servants would retire from the next day of the cominginto operation of the scheme and the burden will have to becomputed as imposed by the liberalised scheme. FurtherGovernment has been granting since nearly a decadetemporary increases from time to time to pensioners.Therefore, the difference will be marginal. Further, let it notbe forgotten that the old pensioners are on the way out and theirnumber is fast decreasing. While examining the financialimplication, this Court is only concerned with the additional liabilitythat may be imposed by bringing in pensioners who retired priorto April 1, 1979 within the fold of liberalised pension scheme buteffective subsequent to the specified date. That it is a dwindlingnumber is indisputable. And again the large bulk comprisespensioners from lower echelons of service such as Peons, L.D.C.,U.D.C., Assistant etc. In a chart submitted to us, the Unionof India has worked out the pension to the pensioners whohave retired prior to the specified date and the comparativeadvantage, if they are brought within the purview of theliberalised pension scheme. The difference up to the levelof Assistant or even Section Officer is marginal keeping inview that the old pensioners are getting temporaryincreases. Amongst the higher officers, there will be somedifference because the ceiling is raised and that wouldintroduce the difference. It is however necessary to refer toone figure relied upon by respondents. It was said that if pensionerswho retired prior to March 31, 1979 are brought within the purview

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Aof the liberalised pension scheme, Rs 233 crores would be requiredfor fresh commutation. The apparent fallacy in the submission isthat if the benefit of commutation is already availed of, it cannotand need not be reopened. And availability of other benefits ishardly a relevant factor because pension is admissible to allretirees. The figures submitted are thus neither frighteningBnor the liability is supposed to be staggering which woulddeflect us from going to the logical and of constitutionalmandate. Even according to the most liberal estimate, theaverage yearly increase is worked out to be Rs 51 croresbut that assumes that every pensioner has survived till dateCand will continue to survive. Therefore, we are satisfiedthat the increase liability consequent upon this judgmentis not too high to be unbearable or such as would havedetracted the Government from covering the old pensionersunder the Scheme.”

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40. As opposed to the factual matrix in Nakara (supra), wherethe liberalised pension scheme was not made applicable to employeeswho had retired prior to the cut-off date, in this case the OROP principleis applicable to all retired army personnel, irrespective of the date ofEretirement. The cut-off date is only prescribed for determining the basesalary used for computing the pension. While for those who retired on orafter 2014, the last drawn salary is used for computing the pension; forthose who retired prior to 2014, the average of the salary drawn in 2013is used.This policy only seeks to protect those who retired before 2014since the last drawn salary of the prior retirees might be too low andFincomparable to the pay of the 2014 retirees. Moreover, if the maximumsalary drawn is to be used as the basevalue instead of taking the averagesalary, an additional outlay of Rs 1,45,339.34 crores would be incurred.The executive is therefore, well within its limits to prescribe a policykeeping in view the financial implications.

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41. In Krishena Kumar (supra), a Constitution Bench of thisCourt decided on the issue of whether the prescription of a cut-off datefor the eligibility to a pension scheme was arbitrary and violative ofArticle 14. Before 1957, the only scheme for retirement benefits in theRailways was the Provident Fund Scheme. This scheme was replacedHin 1957 by the Pension Scheme. All the employees who served in the Railways on or after 1 April 1957 were automatically covered by thePension Scheme. Those who were in service before 1 April 1957 weregiven the option to switch over to the Pensionary Benefits. It was thecontention of the appellants that till 1 April 1957, there was no differencebetween the benefits receivable under the provident fund scheme andthe pension scheme. However, it was contended that between 1957 and1987, the pensionary benefits were increased by various methods whilethe benefits under the provident fund scheme were not enhanced.Dismissing the petitions, this Court held that neither the prescription of acut-off date nor the creation of two classes of retirees (pensioners andprovident fund holders) was contrary to the decision of the ConstitutionBench 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 andthe PF retirees formed a homogeneous class and that any furtherclassification among them would be violative of Article 14. Onthe other hand the court clearly observed that it was not dealingwith the problem of a “fund”. The Railway Contributory ProvidentFund is by definition a fund. Besides, the government’sobligation towards an employee under CPF Scheme to givethe matching contribution begins as soon as his account isopened and ends with his retirement when his rights quathe government in respect of the Provident Fund is finallycrystallized and thereafter no statutory obligation continues.Whether there still remained a moral obligation is a differentmatter. On the other hand under the Pension Scheme thegovernment’s obligation does not begin until the employee retireswhen only it begins and it continues till the death of the employee.Thus, on the retirement of an employee government’s legalobligation under the Provident Fund account ends while under thePension Scheme it begins. The rules governing the ProvidentFund and its contribution are entirely different from therules governing pension. It would not, therefore, bereasonable to argue that what is applicable to the pensionretirees must also equally be applicable to PF retirees. Thisbeing the legal position the rights of each individual PF retireefinally crystallized on his retirement whereafter no continuingobligation remained while, on the other hand, as regard Pensionretirees, the obligation continued till their death. The continuing A

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obligation of the State in respect of pension retirees is adverselyaffected by fall in rupee value and rising prices which, consideringthe corpus already received by the PF retirees they would not beso adversely affected ipso facto. It cannot, therefore, be saidthat it was the ratio decidendi in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145 : (1983) 2 SCR 165] that the State’sobligation towards its PF retirees must be the same as thattowards the pension retirees. An imaginary definition ofobligation to include all the government retirees in a classwas not decided and could not form the basis for anyclassification for the purpose of this case. Nakara [(1983)1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165]cannot, therefore, be an authority for this case.

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34. The next argument of the petitioners is that the option givento the PF employees to switch over to the pension scheme witheffect from a specified cut-off date is bad as violative of Article14 of the Constitution for the same reasons for whichin Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2SCR 165] the notification were read down. We have extractedthe 12th option letter. This argument is fallacious in view of thefact that while in case of pension retirees who are alive thegovernment has a continuing obligation and if one is affected bydearness the others may also be similarly affected. In case of PFretirees each one’s rights having finally crystallized on the date ofretirement and receipt of PF benefits and there being no continuingobligation thereafter they could not be treated at par with theliving pensioners. How the corpus after retirement of a PF retireewas affected or benefitted by prices and interest rise was notkept any tack of by the Railways. It appears in each of the casesof option the specified date bore a definite nexus to the objectssought to be achieved by giving of the option. Option once exercisedwas told to have been final. Options were exercisable vice versa.”

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42. In Indian Ex-Services League (supra),it was contendedthat in view of the decision in Nakara (supra), all retirees who held thesame rank irrespective of the date of retirement must receive the sameamount of pension. This Court observed that there was nothing in NakaraH(supra) that backed the claim of the appellants that the same pension

INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OFINDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

must be given to all retirees of the same rank. The Court observed thatit was held in Nakara (supra) that only the same formula for calculationof pension was to be used and nowhere was the emoluments of theretirees revised. The ratio decidendi in Nakara (supra) was explainedin the following words:

“12. The liberalised pension scheme in the context of which thedecision was rendered in Nakara [(1983) 1 SCC 305 : 1983 SCC(L&S) 145 : (1983) 2 SCR 165] provided for computation ofpension according to a more liberal formula under which “averageemoluments” were determined with reference to the last tenmonths’ salary instead of 36 months’ salary provided earlier yieldinga higher average, coupled with a slab system and raising the ceilinglimit for pension. This Court held that where the mode ofcomputation of pension is liberalised from a specified date, itsbenefit must be given not merely to retirees subsequent to thatdate but also to earlier existing retirees irrespective of their dateof retirement even though the earlier retirees would not be entitledto any arrears prior to the specified date on the basis of the revisedcomputation made according to the liberalised formula. For thepurpose of such a scheme all existing retirees irrespective of thedate of their retirement, were held to constitute one class, anyfurther division within that class being impermissible. According

to that decision, the pension of all earlier retirees was tobe recomputed as on the specified date in accordance withthe liberalised formula of computation on the basis of theaverage emoluments of each retiree payable on his date ofretirement. For this purpose there was no revision of theemoluments of the earlier retirees under the scheme. Itwas clearly stated that ‘if the pensioners form a class, theircomputation cannot be by different formula affording unequaltreatment solely on the ground that some retired earlier and someretired later’. This according to us is the decisionin Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2SCR 165] and no more.”

It was observed that the effect of the judgment in Nakara (supra)was that the same computation according to the liberalised formulamust be applicable to pre and post 1 April 1979 retirees and that the

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Adecision cannot be construed to mean that the same amount of pensionmust be receivable.

43. In KL Rathee v. Union of India[18], the decision in Nakara(supra) was explained in the following terms :

“6. Nakara case dealt with the manner of calculation of pensionBon the basis of average emoluments of a retired governmentemployee. Prior to the liberalisation of the formula for computationof pension made by the memorandum dated 25-5-1979, averageemoluments of the last thirty months of service of the employeeprovided that basis for calculation of pension. The 1970 serviceCof the employee provided that average emoluments must becalculated on the basis of the emoluments received by agovernment servant during the last ten months of the service.That apart, a new slab system for computation of pension wasintroduced and the ceiling on pension was raised […].

D7. It is to be seen that the judgment did not strike down the definitionof “emoluments”. It merely held that if pension was to becalculated on the basis of the last ten months’ emoluments of agovernment servant, after 1-4-1979, there is no reason why thosewho retired before 1-4-1979 should get pension calculated on thebasis of average of last thirty-six months’ emoluments. In otherEwords, the rule of computation must be the same. The Court didnot hold that those who have retired before 1-4-1979 must betreated as having the same emoluments as those who retired onor after 1-4-1979 for the purpose of calculation of pension.Therefore, on the strength of Nakara case, the petitioner is notFentitled to ask for computation of pension with reference toemoluments which he never got.”

44. In Col. B.J Akkara (Retd.) v. Government of India[19], thisCourt summarised the principles relating to pension. Justice RVRaveendran writing for a two-Judge bench observed:G“20. The principles relating to pension relevant to the issue arewell settled. They are:

(a) In regard to pensioners forming a class, computation of pensioncannot be by different formula thereby applying an unequal18 1991 2 SCC 104H19 (2006) 11 SCC 709

treatment solely on the ground that some retired earlier and someretired later. If the retiree is eligible for pension at the time of hisretirement and the relevant pension scheme is subsequentlyamended, he would become eligible to get enhanced pension asper the new formula of computation of pension from the datewhen the amendment takes effect. In such a situation, the additionalbenefit under the amendment, made available to the same classof pensioners cannot be denied to him on the ground that he hadretired prior to the date on which the aforesaid additional benefitwas conferred.

(b) But all retirees retiring with a particular rank do not form asingle class for all purposes. Where the reckonable emolumentsas on the date of retirement (for the purpose of computation ofpension) are different in respect of two groups of pensioners,who retired with the same rank, the group getting lesser pensioncannot contend that their pension should be identical with or equalto the pension received by the group whose reckonable emolumentwas higher. In other words, pensioners who retire with thesame rank need not be given identical pension, where theiraverage reckonable emoluments at the time of theirretirement were different, in view of the difference in pay,or in view of different pay scales being in force.

[…]

One set cannot claim the benefit extended to the other set on theground that they are similarly situated. Though they retired withthe same rank, they are not of the “same class” or “homogeneousgroup”. The employer can validly fix a cut-off date for introducingany new pension/retirement scheme or for discontinuance of anyexisting scheme. What is discriminatory is introduction of a benefitretrospectively (or prospectively) fixing a cut-off date arbitrarilythereby dividing a single homogeneous class of pensioners intotwo groups and subjecting them to different treatment.”

45. The decision in SPS Vains (supra) has been relied upon bythe petitioners. The issue in that case was whether the officers of therank of Major General, who had retired prior to 1 January 1996, could begiven the benefit of the provisions of the revised pay scale, though A

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Aaccording to the policy only those who retired after the said cut-off datewould be entitled to such benefit. The rank of Brigadier is a feeder postfor the promotional rank of Major General. A Major General alwaysdrew a higher pension than the pension payable to the officers holdingthe rank of a Brigadier, as on the basis of the recommendation of theFourth Pay Commission, the pension was calculated on the basis of theBsalary drawn during the last ten months prior to retirement. An anomalyarose with the acceptance of the recommendation of the Fifth PayCommission which created a situation in which a Brigadier began drawingmore pension and family pension than the Major General. TheGovernment increased the pension of Major Generals who had retiredCprior to 1996 so that they do not receive lesser pension than the officersof the rank of Brigadier. The disparity which was noted in that case isevident from the following extract of the judgment:

“23. From the submissions made, the dispute appears to be confinedonly to the question whether officers of the rank of Major GeneralDin the army and of equivalent rank in the two other wings of theDefence forces, who had retired prior to 1.1.1996 have been validlyexcluded from the benefit of the revision of pay scales in keepingwith the recommendations of the fifth Central Pay Commissionby virtue of the Special Army Instruction 2/S/1998.”

This Court held that such a disparity in the pension payable to twoEgroups of officers occupying the same rank of Major General based onthose retiring before or after 1 January 1996 violated Article 14. It wasin this backdrop that this Court directed that the pay of all pensioners inthe rank of Major General and its equivalent rank in the other two wingsof the Defence services should be notionally fixed at the rate given toFthe similar officers of the same rank after the revision of pay scales witheffect from 1 January 1996, and thereafter to compute the pensionarybenefits with prospective effect from the date of the writ petition. Thedecision in SPS Vains (supra) thus involved a completely different factualsituation. 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 pensionGof Brigadier were higher than of the Major Generals. By increasing thepension of Major General, distinction was made between those who hadretired before and after 1 January 1996. This was held to be violative ofArticle 14.46.The canvass which is sought to be traversed in theseHproceedings under Article 32 of the Constitution trenches upon a domain which is reserved for executive policy. We must remember thatadjudication cannot serve as a substitute for policy. Lon Fuller describedpublic policy issues that come up in adjudication as “polycentric problems”,that is, theyraise questions that have a “multiplicity of variable andinterlocking factors, decisions on each one of which presupposes adecision on all others”. Such matters, according to Fuller, are more suitablyaddressed by elected representatives since they involve negotiations,trade-offs and a consensus-driven decision-making process. Fuller arguesthat adjudication is more appropriate for questions that result in “either-or” answers.[20 ]Most questions of policy involve complex considerationsof not only technical and economic factors but also require balancingcompeting interests for which democratic reconciliation rather thanadjudication is the best remedy. Further, an increased reliance on judgesto solve matters of pure policy diminishes the role of other political organsin resolving contested issues of social and political policy, which requirea democratic dialogue. This is not to say that this Court will shy awayfrom setting aside policies that impinge on constitutional rights. Rather itis to provide a clear-eyed role of the function that a court serves in ademocracy. The OROP policy may only be challenged on the groundthat it is manifestly arbitrary or capricious. In this regard, we now evaluatethe policy which has been adopted by the Union Government.

47. The policy of OROP adopted by the Union Governmentstipulates thus:

(i) The benefits will be effective from 1 July 2014;

(ii) Pensions of past pensioners would be refixed on the basisof the pension of retirees of calendar year 2013;

(iii) Pension for all pensioners would be protected; and

(iv) In future, the pension would be refixed after every fiveyears.

48. The principles governing pensions and cut-off dates can besummarised as follows:

(i) All pensioners who hold the same rank may not for allpurposes form a homogenous class. For example, amongstSepoys differences do exist in view of the MACP and ACP

20 Fuller, L. L., & Winston, K. I. (1978). The Forms and Limits of Adjudication.Harvard Law Review, 92(2), 353–409.

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schemes. Certain Sepoys receive the pay of the higherranked personnel; A

(ii) The benefit of a new element in a pensionary scheme canbe prospectively applied. However, the scheme cannotbifurcate a homogenous group based on a cut-off date; B

(iii) The judgment of the Constitution Bench in Nakara (supra)cannot be interpreted to read the one rank one pension ruleinto it. It was only held that the same principle of computationof pensions must be applied uniformly to a homogenousclass; and C

(iv) It is not a legal mandate that pensioners who held the samerank must be given the same amount of pension. Thevarying benefits that may be applicable to certain personnelwhich would also impact the pension payable need not beequalised with the rest of the personnel.

D49. Applying the above principles to the facts of the case, we findno constitutional infirmity in the OROP principle as defined by thecommunication dated 7 November 2015 for the following reasons:

(i) The definition of OROP is uniformly applicable to all thepensioners irrespective of the date of retirement. It is notEthe case of the petitioners that the pension is reviewed‘automatically’ to a class of the pensioners and ‘periodically’to another class of the pensioners;

(ii) The cut-off date is used only for the purpose of determiningthe base salary for the calculation of pension. While forthose who retired after 2014, the last drawn salary is usedto calculate pension, for those who retired prior to 2013,the average salary drawn in 2013 is used. Since the uniformapplication of the last drawn salary for the purpose ofcalculating pension would put the prior retirees at adisadvantage, the Union Government has taken a policydecision to enhance the base salary for the calculation ofpension. Undoubtedly, the Union Government had a rangeof policy choices including taking the minimum, themaximum or the mean or average. The Union governmentdecided to adopt the average. Persons below the average F

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were brought up to the average mark while those drawingabove the average were protected. Such a decision lieswithin the ambit of policy choices;

(iii) While no legal or constitutional mandate of OROP can beread into the decisionsin Nakara (supra) and SPS Vains(supra), varying pension payable to officers of the samerank retiring before and after 1 July 2014 either due toMACP or the different base salary used for the calculationof pension cannot be held arbitrary; and

(iv) Since the OROP definition is not arbitrary, it is not necessaryfor us to undertake the exercise of determining if thefinancial implications of the scheme is negligible orenormous.

50. In terms of the communication dated 7 November 2015, thebenefit of OROP was to be effected from 1 July 2014. Para 3 (v) of thecommunication states that “in future, the pension would be re-fixed everyfive years”. Such an exercise has remained to be carried out after theexpiry of five years possibly because of the pendency of the presentproceedings.

51. We accordingly order and direct that in terms of thecommunication dated 7 November 2015, a re-fixation exercise shall becarried out from 1 July 2019, upon the expiry of five years. Arrearspayable to all eligible pensioners of the armed forces shall be computedand paid over accordingly within a period of three months.

52. The petition is disposed of in the above terms.

53. Pending application(s), if any, shall stand disposed of.

Nidhi Jain(Assisted by : Shubhanshu Das, LCRA)

Writ petition disposed of.

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