Counter-Affidavit of MoD in OROP case IESM & Ors Vs UoI & Ors WP (C) 419 of 2016

Reply to DEXSW 50654 and 50660 for Counter-Affidavit

Notes by Aerial View: -

1.         Annexure R-2 giving the consolidated pay and commensurate pension up to and including 3^rd CPC is illegible. Therefore, it has not been included.  This post will be updated as and when a legible copy requested from the CPIO is available.

2.         Readers may find Paragraph Nos. 36, and 57 onwards very informative in respect to the position of the Petitioners and the stand of the Respondents.

3.         Minor corrections viz. date of issue of OROP tables [later PCDA (P) Circular 555] is wrongly given as 03.02.2014 whereas it was 03.02.2016.    

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No. 5 (146)/2018-D(Pen/Legal) 

Government of India

Ministry of Defence

Department of Ex-Servicemen Welfare

Sena Bhawan, New Delhi

Date: 19.9.2018

Sub: Seeking information under the RTI Act 2005

Sir,

            This has reference to your two online applications bearing Registration No. DEXSW/R/2018/50660 dated 1.8.2018 and DEXSW/R/2018/50654 dated 30.7.2018 received on 20.8.2018 vide MoD ID No. 237/RTI/D (P/P)/2014-Part II dated 14.8.2018.

2.         As sought vide your both above mentioned applications, a copy of the affidavit dated 1.6.2018 and other relevant papers is enclosed herewith.

3.         You may, if so desired, prefer an appeal against the above decision before the following First Appellate Authority within 30 days of receipt of this letter: -

            Shri Manmohan Pipil,

            Deputy Secretary (Pen),

            Ministry of Defence, DESW,

            Sena Bhawan, New Delhi.

Yours faithfully,

Sd/---------------

Encl: As above (89 pages)                                                   (Ravindra Kumar Arora)

CPIO & Under Secretary (Pen/Legal-II)              

Tele: 23015021

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 419/2016

INDIAN EX-SERVICEMEN MOVEMENT & ORS                     Petitioners

VERSUS

UNION OF INDIA & ORS                                                              Respondents

COUNTER-AFFIDAVIT ON BEHALF OF UNION OF INDIA

I, Ravindra Kumar Arora,S/o late Shri Somnath, aged 55 years, Under Secretary to the Govt of India, Ministry of Defence, Department of Ex-Servicemen Welfare D (Pension/Legal) New Delhi do hereby solemnly affirm and state as under: -  

1.         That I am working as Under Secretary, D (Pension/Legal-II) in Department of Ex-Servicemen Welfare and I know the facts of the case from the records. Hence I am competent to swear this affidavit on behalf of the Respondent.  

2.         That I have gone through the contents of the consolidated amended writ petition and in reply thereto

I submit as under

3.         I deny each and every averment except those which are admitted herein below.   

4.         That no substantial question of law is involved in the present petition and the same is liable to be dismissed against the Petitioners and in favour of the Respondents.

PRELIMINARY SUBMISSIONS

One Rank One Pension Scheme and its Implementation

5.         At the outset it is stated that demand for One Rank One Pension (hereinafter referred as ‘OROP’) has been accepted and implemented by the Govt of India vide Ministry of Defence Letter No. 12(1)/2014/D(Pen/Pol) Part II dt 07.11.2015. The meaning of OROP as per the Letter dt. 07.11.2015 is ‘uniform pension to be paid to the defence personnel retiring in the same rank, with the same length of service regardless of the date of retirement, which implies bridging the gap between rates of pension of current and past pensioner at periodic intervals.’  

6.         It is evident from the Letter dt. 07.11.2015 that, firstly it is the first time that a scheme intending to create and implement one rank one pension has been introduced by the Govt of India, secondly, that there has existed a gap in the pension of current and past pensioners among defence forces personnel, thirdly, Govt of India has acknowledged the gap in pension among retirees and therefore it is making all attempts to reduce this gap and fourthly, conscious of the fact that anomalies may arise in implementation of OROP, Govt of India made a provision for constitution of a One Man Judicial Committee. 

7.         It is submitted that the definition of OROP has been determined after consultation with all stakeholders, including inter-Departmental consultations, consultation with experts was well as consultations with Ex-Servicemen. The final definition of OROP and the Letter dt. 07.11.2015 has been issued after wide-ranging consultations and due application of mind.   

8.         The Government had constituted the One Man Judicial Committee [hereinafter referred as ‘OMJC’] headed by Justice L. Narasimha Reddy, Hon’ble Retired Chief Justice of Patna High Court to address and recommend anomalies that required rectification to better implement OROP and reduce disparities in pension of defence forces personnel. The OMJC has held public hearings at 19 locations across India between 17.08.2016 to 21.09.2016 and has submitted its report to the Govt of India on 26.10.2016. The Govt of India is now considering the recommendations of the OMJC.

9.         The Petitioners have also submitted their representations and attended public hearings of the OMJC. As the grievances of the Petitioners have been considered by the OMJC and the OMJC’s recommendations are now pending consideration before the Govt of India, the present writ petition is pre-mature and deserves to be dismissed on this ground alone.

10.       Without prejudice to the ground of the writ petition being pre-mature, it is submitted that there are inter alia allegedly five main grievances raised by the Petitioners regarding OROP in its current form: -

(i)        Fixation of pension is being done on the basis of average of the minimum and maximum pension of personnel retired in 2013 instead of financial year 2014-15.

(ii)       The fixation of date of implementation of OROP w.e.f. 01.7.2014 is arbitrary as date of implementation earlier fixed as 01.04.2014.

(iii)      Pension would be re-fixed for all pensioners retiring before 01.04.2014 on the basis of the average of minimum and maximum of pension of personnel retired in 2013, but pension of soldiers retiring on/after 01.04.2014 would be fixed on basis of last pay drawn on the date of retirement.

(iv)      In some cases, pensioners who retired in a higher rank may draw lesser pension than soldiers retiring with junior rank on/after 2014.   

(v)       An ex-serviceman would receive lesser pension that the one who retired in the same rank and same length of service as future enhancement would not be automatically passed to past pensioners.

11.       The allegations made by the Petitioners [as mentioned in Para 10 above] are denied because: -

(a)       It is submitted that the Letter dt. 07.11.2015 is a policy decision to implement OROP. The Government has consciously taken a decision to fix pension on the basis of year 2013 and it is the Government that has considered all factors and fixed 2013 as a benchmark for this purpose. Therefore the contention of illegality and arbitrariness is denied.

(b)       As OROP was implemented only on 07.11.2015 w.e.f 01.07.2014, therefore reliance on any earlier date which is not a part of the actual OROP decision is baseless and without merit.

(c)       The contention that there would be disparity between pensioners retiring in 2013 and those retiring on or after 01.04.2014 is denied because OROP scheme itself recognises that there has always been a disparity in the pay of Pensioners (sic). The OROP scheme intends to bridge this gap/disparity by implementation of the OROP scheme. 

(d)       There is no basis to compare pensioners in a certain rank with those pensioners who retired at a junior rank on/after 2014. It is submitted that the basis of OROP is to reduce the disparities between past and present pensioners who retired in the same rank and with same length of service. Therefore, Petitioners contention that personnel junior in rank [post 2014 retiree] will get a higher pension than pre-2014 retirees is not correct.

(e)       The OROP scheme envisages re-fixation of pension every 5 years and does not envisage automatic grant of pension to past pensioners. The Petitioners cannot seek mandamus for implementation of an alleged right which has not been created. In other words, Petitioners cannot seek the addition of a condition which is not part of the OROP scheme.

12.       Therefore, the Govt of India has taken a policy decision after working out all modalities for proper and effective implementation of the OROP scheme to ensure maximum benefit to all defence personnel and there is no arbitrariness involved in the entire scheme. Moreover, the scheme intends to bridge any alleged disparity that may have existed before the implementation of OROP.

13.       In pursuance of OROP scheme and for its successful and timely implementation, the Govt of India has already paid arrear of Rs 10, 788 crore to approximately 20.60 lakh pensioners/family pensioners till date.  

Koshyari Committee Report

14.       It is humbly submitted that Petitioners have placed strong reliance on the report of the Koshyari Committee, but this reliance is misplaces as the recommendations of the Koshyari Committee have been rejected by the Government. In Jt Action Council of Service Doctors’ Organisations V Union of India (1996) 7 SCC 256 Hon’ble Supreme Court observed: -  

“14. As to the contention that the members of the petitioner-Association have come clothed with a vested right, we would say this is not so inasmuch as what the Tikoo Committee has said is also in the nature of recommendation and unless accepted cannot be said to be binding on the Union of India. No vested right has thus been created by the force or the recommendations of the Committee…”    

Hence there is no merit in relying on the recommendations of a Committee which have been rejected.

[Please see decision of the Hon’ble Supreme Court in Writ Petition (Civil) 558 of 2012 delivered on 09 May 2018 regarding Parliamentary Committees. Pages 113-114 may be relevant.]

Historical Disparity in the Pension of Retired Defence Forces Personnel

15.       It is submitted that historically, there has always been difference in the pension of retiring personnel, depending on the duration of service, the time when the defence personnel retired etc. As per Army Instruction 2/S/53, the ‘retiring pension’ was prescribed at a ‘standard rate’ for a prescribed length of service for each rank. When pension was revised, the rates made applicable from a prospective date and the revision of pension covered those defence personnel who retired or were discharged from service on or after that particular date. Therefore, those pensioners who retired on a date earlier to such revision would be governed by older/lower rates. Thus, the contention of Petitioners that same pension was being received by defence pensioners up to 1973 or that the recommendations of the 3^rd Central Pay Commission was arbitrary is incorrect and contrary to records.   

For example, the rates of pension applicable to the rank of Major for standard service of 22 years qualifying service and who retired between the periods shown below are as follows:-

Retired during 1.6.53 to 30.9.61	Retired during 1.10.61 to 31.12.71	Retired during 1.1.73 to 31.3.79	Retired during 1.4.79 to 31.1.82	Retired during 1.2.82 to 30.6.82	Retired during 1.7.82 to 1.6.83	Retired during 2.6.83 to 1.3.85	Retired during 2.3.85  to 31.3.85	Retired during 1.4.85 to 31.12.85
475	550	775	875	900	925	950	975	1400

A copy of a similar table showing different rates of pension earned by defence personnel at different periods is annexed and marked as Annexure R1.

No Comparison in Pay and Pension of Defence Forces Personnel and Civilians

16.       It is also submitted that it is erroneous to compare the pension of armed forces personnel with civilian government servants as the post, nature of work and service conditions of the two services are not equivalent and as a consequence, there is no equivalence of pay and pension of armed forces personnel with civilians and this issue is not connected to One Rank One Pension. The contention of the Petitioners that the salaries of civilian employees are being increased astronomically as compared to defence personnel is denied as the increase in pay is based on recommendations of the Central Pay Commissions and the Central Pay Commission has also recommended similar increase in pay to the defence personnel. Additionally, the defence personnel are being paid an additional element like Rank Pay, MSP etc. in recognition of the additional burdens of Military Service.  

Non-applicability of the judgment of Hon’ble Supreme Court – Union of India Vs SPS Vains

17.       It is reverentially submitted that the judgment of Hon’ble Supreme Court in the case of Union of India Vs SPS Vains (2008) 9 SCC 125 does not apply to the present case as it is distinguished on facts and on law. In the case of SPS Vains, the grievance of Major Generals therein was that due to absence of Rank Pay after implementation of Fifth Central Pay Commission recommendations, the minimum pay of a Major General had become less than the maximum pay of a Brigadier in the respective pay band. To rectify this anomaly, the Government stepped up the pay of pre-1.1.1996 retirees [Major Generals] whereas those who retired after 01.01.1996 were given pension as per then Clause 12(c) of Special Army Instructions 2/S/1998. This disparity between grant of stepping up of pay for pre-01.01.1996 retirees and application of Clause 12 (c) of Special Army Instruction 2/S/1998 was contended to be discriminatory. It is therefore evident that the issue did not pertain to One Rank One Pension but was restricted to revision of pension of pre-2006 Major Generals qua post-2006 Major Generals.  

18.       It is also important to state that the case of SPS Vains was concluded solely on the basis of reliance placed on the judgment of Hon’ble Supreme Court in D. S. Nakara vs. Union of India (1983) 1 SCC 305. However, the judgment of D. S. Nakara has been interpreted and restricted in its application by another Constitution Bench in Kishen Kumar vs. Union of India (1990) 4 SCC 207 and thereafter followed by another Constitution Bench in Indian Ex-Services League vs. Union of India (1991) 2 SCC 104, discussed later. Therefore, the principles laid down in the case of D. S. Nakara and SPS Vains would not apply. Hence the case of SPS Vains is distinguished on facts as well as on law.  

Judgements of Hon’ble Supreme Court on Pension related matters

19.       For the purposes of pension, Hon’ble Supreme Court has summarised the principle relating to payment and revision of pension in the case of Col. B. J. Akkara (retd) vs. Union of India (2006) 11 SCC 709: -

“20. The principles relating to pension relevant to the issue are well settled. They are:

(a)       In regard to pensioners forming a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred.      

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

(c)       When two sets of employees of the same rank retire at different points of time, it is not discrimination if:

(i)        when one set retired, there was no pension scheme and when the other set retired, a pension scheme was in force; 

(ii)       when one set retired, a voluntary retirement scheme was in force and when the other set retired, such a scheme was not in force; or  

(iii)      when one set retired, a PF scheme was applicable and when the other set retired, a pension scheme was in force.         

One set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the “same class” or “homogenous group.” The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut-off date arbitrarily thereby dividing a single homogenous class of pensioners into two groups and subjecting them to different treatment.”     

Therefore, applying the principle laid by Hon’ble Court in (b) above, retired defence personnel who retire in the same rank, but who are getting different amounts of pension  cannot be grouped into one group to contend all retired defence personnel of a particular rank would be liable to be paid the same amount of pension. In fact, OROP is an aim to ensure that this disparity amongst different heterogeneous groups of retired defence personnel is reduced.      

20.      With regard to the fixation of date by the Govt of India for implementation of OROP w.e.f. 01.07.2014 and Respondent/Union of India contention that the distinction between pre-2014 and (post) 2014 retirees is not arbitrary, it is submitted that in the case of Union of India vs. Parameswaran Match Works (1975) 1 SCC 305, Hon’ble Supreme Court observed: -

“10…. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see Hatisingh Mfg Co Ltd vs. Union of India [AIR 1960 SC 923; (1960) 3 SCR 528, 543: (1960) 2 Lab LJ1], Dr Mohammad Saheb Mahboob Medico vs. Deputy Custodian General [AIR 1961 SC 1657; (1862) 2 SCR 371, 379] BhikuseYamasa Kshatriya (P) Ltd vs. Union of India [AIR 1963 SC 1591: (1964) 1 SCR 860, 880: (1963) Lab LJ 270] and Daruka & Co vs. Union of India [(1973) 2 SCC 617]. The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is wide off the reasonable mark. See Louisville Gas Co. vs. Alabama Power Co. [240 US 30, 32 (1927)] per Justice Holmes.”          

21.       Similarly, in the case of State of West Baengal vs. Ratan Behari Dey, (1993) 4 SCC 62, Hon’ble Supreme Court observed: -  

“7…. For reasons to be assigned hereinafter, it cannot be said that prescribing April 1, 1977 as the date from which the new Regulations were to come into force is either arbitrary or discriminatory. Now, it is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such a date is specified in a reasonable manner, i.e. without bringing about a discrimination between similarly situated persons, no interference is called for by the court in that behalf. It appears that in the Calcutta Corporation, a pension scheme was in force prior to 1914. Later the scheme appears to have been given up and the Provident Fund Scheme introduced. Under the Provident Fund Scheme, a certain amount was deducted from the salary of the employees every month and credited to the Fund. An equal amount wasa contributed by the employer which too was credited to the Fund. The total amount to the credit of the employee in the Fund was paid to him on the date of his retirement. The employees, however, were demanding the introduction of a pension scheme. The demand fell on receptive ears in the year 1977… maybe because in that year the Left Front Government came to power in that State, as suggested by the writ petitioners. The State Government appointed a Commission to examine the said demand and to recommend the necessary measures in that behalf. The three members constituting the Commission differed with each other in certain particulars. The Government examined their recommendations and accepted them with certain modifications in the year 1981. After processing the matter through relevant departments, the Regulations were issued and published in year 1982. In the above circumstances, the State Government thought that it would be appropriate to give effect to the said Regulations on and from April 1, 1977, the first day of the financial year in which the Pay Commission was appointed by the Government – a fact which could not have been unknown to the Corporation employees. We cannot say that the Government acted unreasonably in specifying the said date. It may also be said that, that was the year in which the Left Front came into power in that State, but does not detract from the validity of the aforesaid reasons assigned by the State in its counter-affidavit filed before the Division Bench of the High Court. We are not in agreement with the opinion expressed by the High Court that the reasons assigned by the State Government are neither reasonable nor acceptable.               

8.         In this context, it may be remembered that the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail. 

9.         Now coming to the argument of Shri P. P. Rao that the Regulations bring about an unreasonable between similarly placed employees, we must say that we are not impressed by it. It is not submitted that the Corporation had no power to give retrospective effect to the Regulations. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they may specify. Of course, as repeatedly held by this Court, in such cases the State cannot, as the expression goes, pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. Once this is done, question of discrimination does not arise…   

10.                                                                                                     As rightly pointed out in Krishena Kumar [(1990) 4 SCC 207: 1991 SCC (L&S) 112: (1990) 14 ATC 846], Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] was a case where an artificial date was specified classifying the retirees, governed by the same Rules and similarly situated, into two different classes, depriving one such class of the benefit of Liberalised Pension Rules. It was found in that case that the specification of the date (from which the liberalised Rules were to come into force) was arbitrary. Whereas in this case, the employees retiring prior to April 1, 1977 and those retiring thereafter were governed by different sets of rules. The argument to the contrary may mean that the Government can never change the conditions of service relating to retrial benefits with effect from a particular date. No such absolute proposition can be stated that while effecting any such change, no date from which such change will come into force can be specified. As stated above, a date can be prescribed but such date should not be drawn in such a manner as to bring about discrimination between persons situated similarly i.e. in a manner violative of Article 14. This aspect has been dealt with and explained in Krishena Kumar [(1990) 4 SCC 207: 1991 SCC (L&S) 112: (1990) 14 ATC 846] and we do not think it necessary to repeat the same.”      

22.       That similar sentiments were echoed by Hon’ble Supreme Court in the judgement of Union of India vs. P. N. Menon (1994) 4 SCC 68, which has recently been followed in United Bank of India vs. United Bank of India Retirees Welfare Association (2018) SCC Online SC 541. In the case of P. N. Menon, Hon’ble Supreme Court observed: - 

“8. Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to “picking out a date from the hat” as was said by this Court in the case of D. R. Nimbalkar vs. Union of India [AIR 1967 SC 1301: (1967) 2 SCR 325: (1968) 1 LLJ 264]  in connection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within financial resources available with the Govt.        

                        …..

10.       If the stand of the respondents is to be accepted that this scheme should have been made available, without there being a cut-off date, to all including those who have retired even 20 to 25 years before the introduction of the scheme, then according to us, the whole scheme shall be unworkable, because it is linked with the payment of dearness allowance, which is based on the level of the price index. Different institutions/departments have introduced the payment of dearness allowance at different stages to mitigate the hardship of their employees with the rise in the prices of the essential articles as a result of inflation.    

                        ….

14.       Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decided to revise the pay scale of its employees and fixes the 1^st day of January of next year for implementing the same or 1^st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31^st December of the year in question, will miss that pay scale only by a day, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the court should only be, while examining any such grievance, to see, as to whether a particular date for extending a particular benefit or scheme, has been fixed, on objective and rational considerations.”        

23.       It is also humbly submitted that a similar pleas as is being raised by the Petitioners herein claiming one rank one pension was raised and rejected by a Constitution Bench of this Hon’ble Court in the case of Indian Ex-Services League vs. Union of India (1991) 2 SCC 104. The important observations of Hon’ble Supreme Court are reproduced below: - 

“8…. The arguments of both of them are substantially the same. According to learned counsel for the petitioners, the result of the decision in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] is that all retirees who held the same rank irrespective of their date of retirement must get the same amount of pension and this should be the amount which was calculated and shown in the appendices to the Memorandum (Ex. P-2) challenged in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165]. Admittedly, the appendices in that Memorandum specified the computation of pension for different ranks of retirees on or after April 1, 1979 made on the basis of the reckonable emoluments on April 1, 1979. It is also admitted that the reckonable emoluments for corresponding ranks on earlier dates were not the same to provide identical basis for re-computation of pension according to the liberalised pension scheme of pre-April 1, 1979 retirees. In substance, even though learned counsel for the petitioners do not say so, the arguments amount to the claim of ‘one rank one pension’ for all retirees of the Armed Forces irrespective of their date of retirement. It is also admitted that prior to this liberalised pension scheme, the pension amount of the earlier retirees from the same rank was not the same irrespective of their date of retirement or in other words, the principle of  ‘one rank one pension’ did not apply earlier. It was stated at the bar that the demand of ‘one rank one pension’ is pending consideration of the Government of India as a separate issue. It is, therefore, clear that unless the petitioners’ claim in substance of ‘one rank one pension’ can be treated as flowing from the relief granted in   Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165], the reliefs claimed in these petitions though differently worded cannot be granted. It is for this reason that learned counsel avoided describing the reliefs claimed herein as claim of ‘one rank one pension’, even though they were unable to tell us how, if at all, the reliefs claimed in these petitions can be construed differently.   

                        ….

14.       Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] decision came up for consideration before another Constitution Bench recently in Krishena Kumar vs. Union of India [(1990) 4 SCC 207: 1991 SCC (L&S) 112]. The petitioners in that case were retired Railway employees who were covered by or opted for the Railways Contributory Provident Fund Scheme. It was held that PF retirees and pension retirees constitute different classes and it was never held in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] that pension retirees and PF retirees formed a homogeneous class, even though pension retirees alone did constitute a homogeneous class within which any further classification for the purpose of a liberalised pension scheme was impermissible. It was pointed out in Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165], it was never required to be decided that all the retirees for all purposes formed one class and no further classification was permissible. We have referred to this decision merely to indicate that another Constitution Bench of this Court also has read Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] decision as one of limited application and there is no scope for enlarging the ambit of that decision to cover all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pensions be different.        

                        …..

18.       The above words leave no doubt that by this Memorandum the personnel of Armed Forces were extended the same benefit of liberalised pensions formula for computation of their pension as was given to the civil servants ‘on the same basis.’ The words which follow thereafter indicate that Appendices ‘A’, ‘B’ and ‘C’ attached to the Memorandum specified the revised rates of pension calculated on the liberalised basis for each rank on the basis of reckonable emoluments payable as on April 1. 1979 since the memorandum when issued confined the benefits of the liberalised scheme only to post April 1, 1979 retirees. There is no scope for reading these appendices torn out of the context of the Memorandum in its original form to which they were appended. So read, it is obvious that the calculations given in the Appendices ‘A’, ‘B’, and ‘C’ to this Memorandum contain the computation according to the liberalised formula for each rank of the three wings of the Armed Forces for post-April 1, 1979 retirees only. It follows that as a result of the Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] decision when the benefit of the liberalised pension scheme was made applicable even to the pre-April 1, 1979 retirees of the Armed Forces, computation according to the liberalised formula has to be made in the same manner as it was done for post-April 1, 1979 retirees and shown in Appendices ‘A’, ‘B’ and ‘C’ to this Memorandum. This was done by the impugned GOs dated November 22, 1983 and December 3, 1983.        

19.       The petitioners’ claim that all pre-April 1, 1979 retirees of the Armed Forces are entitled to the same amount of pension as shown in ‘A’, ‘B’ and ’C’ for each rank is clearly untenable and does not flow from the  Nakara [(1983) 1 SCC 305: 1983 SCC (L&S) 145: (1983) 2 SCR 165] decision.”   

Hence, it is humbly submitted that the above cited case is applicable and the contention regarding grant of equal pension to all retired armed forces personnel has already been rejected by Hon’ble Supreme Court.

24.       It is also submitted that in matters of expenditure, especially considering the fact that the Govt of India has already paid Rs 10, 788 crore to retired defence forces personnel, Hon’ble Courts are less likely to interfere as was observed in the Constitution Bench decision in Krishena Kumar vs. Union of India (1990) 4 SCC 7 where Hon’ble Supreme Court observed: -

“5…. In the matter of expenditure includible in this Annual Financial Statement, this Court has to be loath to pass away any order or give any direction, because of the division of functions between three co-equal organs of the government under the Constitution.”

25.       Therefore, in light of the above preliminary submissions, it is humbly submitted that the writ petition is without merit and liable to be rejected.

PARA-WISE COMMENTS

26.       That contents of Para 1 are denied. The notification dt. 14.12.2015 explicitly records “…it is necessary to implement the same in an equitable manner keeping in view the existing pension structure, the conditions of service, the reasons for varying pensions in case of service personnel of the same rank with the same length of qualifying service retiring at different points of time as well as principle of OROP decided by the Govt… Now, therefore, the Central hereby appoints a Judicial Committee headed by Justice L Narasimha Reddy, retired Chief Justice of Patna High Court…” and therefore the Notification intends to identify any anomalies that may have arisen due to implementation of OROP and which could/should be addresses by the Govt of India. The appointment of a Committee to identify anomalies is not illegal and unconstitutional, but shows the bona fide object and intent of the Govt of India to address the concerned of defence forces personnel, including the Petitioners.  

27.       The OMJC has held public hearings to take note of grievances of the Associations, Organisations and Ex-Servicemen individually. The public hearings wer held at 19 locations across India between 17.08.2016 and 21.9.2016. It is surprising that on one hand the Petitioners’ have submitted their representations regarding the anomalies to the OMJC and have attended the public hearings held by the OMJC, but on the other hand Petitioners are contending that the Notification dt. 14.12.2015 constituting the Committee is unconstitutional and illegal.

28.       That it is submitted that all representations received from Ex-Servicemen regading anomalies in the implementation of OROP were looked into by the OMJC and the recommendations of OMJC are now being examined by the Government. Therefore, it is submitted that the present writ petition filed by the Petitioners is premarure at this stage and this is sufficient ground to dismiss it.

29.       That in reply to Para 2, it is reiterated that through the Order dt, 14.12.2015 an OMJC was constituted to look into the anomalies/grievances arising out of letter dt. 07.11.2015 and Petitioners’ have also made their representations to the OMJC. The recommendations of the OMJC are now being considered by the Govt of India. 

30.      That Paras 3 and 4 do not require any comment.

31.       That Paras 5 to 9 are statements of fact and require no comment.

32.       That the contentions and allegations mentioned in Para 10 are denied as they are incorrect. It is submitted that as per Army Instruction 2/S/53, Retiring Pension was prescribed at ‘standard rate’ for a prescribed length of service for each rank. When the pension was revised, the rates were made applicable from a prospective date and covered only those defence personnel who retired or were discharged from service on or after the mentioned date. Therefore, those pensioners who retired on a date earlier to such revision would be governed by older/lower rates. Hence, the contention that same pension was being received by defence personnel up to 1973 or that the recommendations of the 3^rd Central Pay Commission was arbitrary is incorrect and contrary to records.     

For example, the rates of pension applicable to the rank of Major for standard service of 22 years qualifying service and who retired between the periods shown below are as follows:-

Retired during 1.6.53 to 30.9.61	Retired during 1.10.61 to 31.12.71	Retired during 1.1.73 to 31.3.79	Retired during 1.4.79 to 31.1.82	Retired during 1.2.82 to 30.6.82	Retired during 1.7.82 to 1.6.83	Retired during 2.6.83 to 1.3.85	Retired during 2.3.85  to 31.3.85	Retired during 1.4.85 to 31.12.85
475	550	775	875	900	925	950	975	1400

The Petitioners have also referred to the report of the Koshyari Committee, however, the Government has not accepted the recommendations of the Koshyari Committee. Therefore, Petitioners cannot rely on the recommendations of the Koshyari Committee. In regard, the observations of Hon’ble Supreme Court in Jt Action Council of Service Doctors’ Organisations V Union of India (1996) 7 SCC 256 Hon’ble Supreme Court is relevant: -  

“14. As to the contention that the members of the petitioner-Association have come clothed with a vested right, we would say this is not so inasmuch as what the Tikoo Committee has said is also in the nature of recommendation and unless accepted cannot be said to be binding on the Union of India. No vested right has thus been created by the force or the recommendations of the Committee…”    

33.       That Para 11 requires no comment.

34.       That in reply to Para 12, it is humbly submitted that defence personnel are duly compensated for disability/death by means of Disability pension, War injury pension, Special Family Pension/Liberalised Family Pension, Ex-gratia lump sum compensation. The defence personnel are compensated for working in extremely harsh conditions through different types of allowances. The defence forces personnel are also paid military service pay allowance and military service pay is also treated as pay for pension purposes. Therefore, the Govt of India has always considered the conditions under which the defence forces personnel operate  and hence has provided for different kinds of pay and allowance accordingly.

35.       That in reply to Para 13, it is submitted that OROP has been accepted and implemented by the Government of India through Letter dt. 07.11.2015 and 03.02. 2016 (erroneously mentioned as 03.2.2015). The definition of OROP is ‘uniform pension to be paid to the Defence Forces Personnel retiring in the same rank with the same length of service, regardless of their date of retirement, which, implies bridging the gap between the rates of pension of current and past pensioner at periodic intervals.” The definition being relied on by the Petitioners does not form part of the OROP implemented by the Govt of India. The rest of the contents of Para 13 are denied.   

36.       That before the OROP Notification, extensive consultations were held with experts in the field of defence as well as Ex-Servicemen. It is submitted that the benefits of future enhancements would be passed on to past retirees, but the passing of these benefits to past pensioners would involve a long drawn and time consuming process, as future enhancements would have to first be determined. Therefore, the revision of pay of past pensioners would only be feasible at periodic intervals through Pay Commissions. This benefit of future enhancements would then be passed on to the past pensioners periodically as is already mentioned in the Letter dt. 07.11.2015.  

37.       The Petitioners’ contention that pension of defence forces personnel were revised downwards is denied and is contrary to the records.

38.       The Petitioners have also continuously compared themselves with civilian officers, but this contention is contradictory to the Petitioners’ own stand at Para 12 of the amended writ petition, where Petitioners’ have shown the harsh conditions in which the defence forces personnel operate and function. It is submitted that there is no equivalence or comparison between the defence forces personnel and the civilians and Petitioners’ are erroneously and selectively comparing defence forces personnel with civilian employees.   

39.       That the contents of Para 14 are assertions and require no comment.

40.      That the contents of Para 15 are denied and this issue has already been dealt above. Services of civilians are not related/comparable to the pensionary benefits granted to the armed forces personnel and neither have any bearing nor are they related to the present case in any way. The rest of the contents of Para 15 are assertions which require no comment.

41.       That in reply to Para 16, it is already submitted that the report of Koshyari Committee was submitted on 19.12.2011 and the recommendations of the Committee were not accepted by the Govt of India. Therefore, Petitioners’ reference and reliance on this Committee Report should be rejected. 

42.       That contents of Para 17 require no comment, except the allegations made thereunder are denied.

43.       That the contents of Para 18 are misleading and denied. It is submitted and clarified that in the year 2014-15, a budget provision of Rs 500 crore was made by the Govt and this budgetary provision was then raised to Rs 1, 000 crore in 2015-16. Importantly, on the actual implementation of OROP, the government has paid Rs 10, 788 crores on account of arrears of OROP to 20.60 lakh defence personnel and their families.

44.       That in reply to Para 19 and 20, it is stated that Petitioners have referred to a meeting held on 26.02.2014 which was chaired by Hon’ble Defence Minister. It is submitted that in the meeting it was agreed that the Secretary (Ex-Servicemen Welfare) would issue necessary direction to Controller General of Defence Accounts for initiating steps in consultation with three services and the Ministry of Defence, Ministry of Finance and Department of Ex-Servicemen Welfare to give effect to OROP. In the meeting, emphasis was laid on including family pensioners and disability pensioners. Thereafter, a Working Group headed by Controller General of Defence Accounts was constituted to work out the modalities for implementation of OROP. 

It is also submitted that the Meeting held on 26.02.2014 was at a preliminary stage when the modalities of OROP scheme were yet to be worked out. It is only after a series of consultations, meetings and communications that the Government finally issued the Notification dated 07.11.2015 for implementation of OROP.

45.       That in reply to Para 21, it is submitted that Hon’ble Finance Minister reaffirmed the Govt of India’s commitment in the budget speech of 2014-15 towards OROP and thereafter, on 07.11.2015, the OROP Letter was issued.   

46.       That in reply to Para 22, it is stated that the reply of the then Hon’ble Minister of State for Defence on 07.12.2014 was at a stage when modalities of OROP were yet to be finalised. The approved definition of OROP was issued by Govt of Indian vide letter dated 07.11.2015. Therefore, the Petitioners’ cannot rely on any definition or meaning to give to OROP before the same was implemented on 07.11.2015.

47.       That in reply to Para 23 and 24, it is only submitted that the Central Govt issued necessary orders for implementation of OROP on 07.11.2015 and since then the Govt has been diligently and with all seriousness implementing and paying pension to defence forces personnel. The payments made till date are Rs 10, 788 crores and this has been paid to approximately 20.60 lakh pensioners/family pensioners as arrears from 01.07. 2014.

48.       That in reply to Para 25, the contents of this paragraph have already been addressed before. The contentions and allegations of the Petitioners are denied and there is no arbitrariness or illegality in issuing the Letter dt. 07.11.2015 to implement OROP. It has already been submitted that the Letter dt, 07.11.2015 was issued after consultation with all stakeholders and after considering all aspects of OROP.

49.       That the judgment of Union of India vs. SPS Vains (2008) 9 SCC 125 is distinguishable on facts and on law, as has been elaborately dealth with earlier. The other alleged contentions are also denied.

50.      That in reply ro Para 26, it is reiterated that to address the anomalies arising out of OROP dt. 07.11.2015, an OMJC was constituted headed by Justice L. Narasimha Reddy (former Chief Justice of Patna High Court) and the recommendations of the Committee are being considered by the Government. The Terms of Reference of the Committee are as follows: - 

(i)        Measures for the removal of anomalies that may arise in implementation of the OROP Letter dt. 07.11.2015.

(ii)       Measures for the removal of anomalies that may arise out of inter-services issues of the three forces due to implementation of OROP.

            (iii)      Implications on service matters.

(iv)      Any other matter referred by the Central Govt on implementation of the OROP or related issues.

In making its recommendations, the Committee shall not take account of the financial impact of its recommendations.” 

That the OMJC was constituted to identify the anomalies in implementation of OROP. The contentions and allegations of the Petitioners are denied as baseless and without merit. It is also re-submitted that, the Notification dt. 14.12.2015 is not contrary to the judgment in Union of India vs. SPS Vains, especially as the judgment does not pertain to OROP.

51.       That the contents and submission of Para 27 and 28 are repetitions of the contentions already addressed above. The assertions made by the Petitioners on the scheme of OROP are denied.

52.       In reply to Para 29, it is submitted that Petitioners have admitted to submitting their grievances to the OMJC headed by Justice L. Narasimha Reddy and the recommendations of this Committee are being examined by the Central Govt. The allegations made in sub para (a) to (e) do not violate OROP, but are in furtherance of the policy to grant OROP to retired defence forces personnel.

53.       The provisions made in respect of fixation of pension are contained in sub-paras (i) & (ii) of para 3 of Govt of India Letter dated 07.11.2015. The modalities do not violate the concept of OROP and do not create class within class, therefore, they do not violate Articles 14 & 21.

54.       In reply to Para 29 (a), (b) and (c), it is submitted that Petitioners are deliberately attempting to introduce issues which have no nexus or bearing on the issue of OROP.

55.       With respect to the issue raised in sub para (a), it is submitted that the benefit of notional promotion to the rank of Naib Subedar is extended to pre-2006 Honorary Naib Subedar w.e.f 01.07.2014 in the OROP scheme. However, the pension of Naib Subedar cannot be given to an Honorary Naib Subedar as these are two distinct classes and are unequal. This view has been upheld by Ld AFT, Chandigarh in OA 2755/2013, Hoshiar Singh vs. Union of India dt, 27.10.2017. Even otherwise, this has no nexus with OROP. 

56.       In respect of sub para (b) and (c), it is stated that OROP envisages revision of pension based on rank held at the time of retirement/discharge. But Petitioners are contending that as a Commissioned Officer who is at the rank of Major (now) becomes Lt Colonel after 13 years as Commissioned Officer (where total service is more than 30 years), so all Majors who retired earlier than the introduction of this dispensation should be given pension of Lt Colonel. This, it is submitted, is without logic. The defence personnel who retired as Major cannot be granted the pension of another rank, i.e. the rank of Lt Colonel after retirement. It is also stated that Petitioners are contending that because the number of such commissioned officers is less than 800, therefore the financial burden on the Government would not be of much significance. Such submissions are liable to be outrightly rejected.    

57.       That Petitioners submission in Para 29A have no link to the OROP scheme. However, it is clarified that as per Govt of India, Ministry of Defence letter No. 17(4)/2008 (I)/D (Pen/Policy) dt. 11.11.2008, the provision for minimum safeguard pension was given to pre-2006 pensioners based on 50% of the minimum of pay in pay band plus grade pay and MSP. Where defence personnel had worked for less than the prescribed 33 years of qualifying service, the group pay was proportionately reduced. This minimum safeguard pension provision of 50% was later modified and fixed as 50% of the minimum fitment table for the rank in the revised pay band.   

            Thereafter, this provision was further modifies thorough MoD letter No. 1(2)/2016- D (Pen/Pol) dated 30.9..2016. By this modification, the minimum safeguard pension of pre-2006 pensioners w.e.f. 01.01.2006 has been delinked from qualifying service and it has been prescribed that the minimum safeguard pension shall not be less than 50% of the minimum of the fitment tables for the rank and group in the revised pay, irrespective of the qualifying service. This has already been done keeping in view the best interest of the retired defence personnel. 

58.       That Para 29B is a matter of record.

59.       That in allegations made in Para 29C are denied. It is submitted that 7^th Central Pay Commission (hereinafter referred to a ‘7^th CPC’], recommendations have been issued after implementation of OROP. MoD letter No. 17(01)/2016-D (Pen/Pol) dated 29.10.2016 was issued for implementation of 7^th CPC recommendations for pre-2016 retirees for revision of their existing basic pension as on 31.12.2015. There is no arbitrariness or illegality in the decision for implementation of the 7^th CPC. The Petitioners are primarily aggrieved by the effect of OROP due to letter dt. 07.11.2015 on the recommendations of the 7^th CPC. However, it is already submitted that letter dt. 07.11.2015 is reasonable, legal, and valid.   

60.      That as per the first option recommended by 7^th CPC for revision of pension of pre-2016 retirees, Government has decided that revised pension/family pension of all Armed Forces Personnel who retired/died prior to 01.01.2016 shall be revised by notionally fixing their pay in the pay matrix recommended by 7^th CPV in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/died. This will be done by pay fixation under each intervening Pay Commission based on the formula prescribed for revision of pay. The detailed policy formulation in this regard has been issued by Govt of Indian, Ministry of Defence through their letter No. 17(01)/2017/(02)/D(Pension/Policy) dated 05.09.2017. Fixation of pension under this module ensures bringing all past pensioners on equal footing with the present pensioners notionally in the revised pay scale as on 01.01.2016. Pension is then calculated as 50% of the revised notional pay.

   

The second option of revised pension as on 01.01.2016 is arrived at by multiplying the present pension as on 31.12.2015 with 2.57. The pension as on 31.12.2015 already includes the benefit of OROP implemented on 01.07.2014. Therefore, the more beneficial rate of pension between both formulations will be paid to all Defence Pensioners accordingly. There is no unjustness, arbitrariness and violation of Article 14 or 21 in this regard.

61.       That in reply to Para 30, it is submitted that pension is computed with reference to last pay drawn and length of qualifying service and OROP is also to be given with reference to rank for which pay was drawn at the time of retirement. The issue of treatment of honorary rank at par with substantive promotion is not linked with OROP. 

62.       That Paras 31-33 require no comment.

REPLY TO GROUNDS

63.       That in reply to Para 34, it is stated that the statement made by the petitioners that OROP involves ‘automatic’ enhancement in rates of pension is not correct. It is submitted that in pursuance of the Government’s decision to implement OROP for defence forces personnel, a series of meetings were held in the Ministry of Defence with all stakeholders and Government extensively consulted the experts and the Ex-Servicemen. The meaning of OROP is uniform pension to be paid to the Armed Forces personnel retiring in the rank with the same length of service irrespective of their date of retirement. OROP intends to bridge the gap between the rate of pension of the current pensioners and the past pensioners at periodic intervals. It has been decided that the gap between rate of pension of current pensioners and past pensioners will be bridged every five years.      

64.       That in rely to Para 35 it is submitted that the pension of service personnel was not reduced under 3^rd Central Pay Commission. This has already been addressed earlier and is alo evident from Annexure R-2. It is reiterated that recommendations of Koshyari Committee have been rejected by the Govt. As regards re-employment of JCOs/ORs, no comments are made as it is not related to OROP. 

65.       That the contentions raised in Para 36 are not related to OROP and Petitioners are raising unrelated issues which are being mixed with OROP. It is submitted that the term of engagement in a particular rank is a service matter not related to OROP. However, it is submitted that defence personnel retiring at lower qualifying service is duly compensated by grant of higher weightage and by calculating his pension on the maximum of his pay scale irrespective of the stage he has been drawing his pay. Further, pay of JCOs/ORs are allowed to be computed based on notional pay in the revised pay structure corresponding to maximum of pay scales of 5^th CPC across three services equivalent to the rank and group in which they have served in rank for at least 10 months. In this manner it is ensured that service personnel are at disadvantage because of the policy of organisation vis-à-vis their entitlements.  

66.       That the contentions raised in Para 36A are disputed. It is submitted that the Respondent has implemented the concept of minimum guaranteed pension w.e.f. 01.01.2006 for the rank and group last held by an armed forces personnel at the time of retirement/discharge. Hence this order is independent of the concept of OROP scheme. As per this order, the revised consolidates pension and family pension of pre-2006 Armed Forces Pensioner shall not be lower than 50% of the minimum of the fitment table for the rank and group in the revised pay band, irrespective of qualifying service at the time of retirement. Petitioners’ grievance arises from the fact that the basis of determination of pension is OROP Letter dt. 07.11.2015 which the Respondent/Union of India has already submitted is legal and valid.   

67.       That the contents of Para 37 & 37A are related to civilian employees which are in no way related or can be compared with defence personnel. The contentions of these paragraphs have no bearing on the OROP scheme. Even otherwise, the judgment of Ld AFT Principal Bench in Col Mukul Dev vs. Union of India, OA 802/2015 has been challenged before Hon’ble Supreme Court in D No. 12663/2017. 

68.       That in reply to Para 38, it is submitted that the petitioner has referred to a single pay band i.e. pay band IV under Sixth Central Pay Commission for officers from Lt Col to Maj Gen. However, Grade Pay attracted to various ranks forms the basis of distinction in the ranks. The submissions made by the Petitioners have ignored the grade pay and the petitioners are misleading this Hon’ble Court by raising such irrelevant submissions. Petitioners statements that different ranks would get the same minimum pension with reference to minimum of the pay band is also incorrect. 

69.       The Grade Pay of Officers from Lt Col to Maj Gen is as under: -

Rank	Lt Col	Col	Brig	Maj Gen
Grade Pay	8000	8700	8900	10000

Hence, such when Grade Pay is taken into account, minimum of pay scale is not the same for all ranks and the order is not violative of Article 14 & 21 of the Constitution. 

70.       That Para 39 and 40 are a repetition and its contents have already been denied while addressing the contentions therein.

71.       That in reply to Para 41, it is stated that all the anomalies raised by the Petitioners had been referred to the OMJC, which examined the issue and the recommendations are now pending before the Central Govt. The allegations made against OROP in Para 41 are denied.

72.       That the contents of Para 41A are denied. It is submitted that the widow of deceased soldier and disabled soldiers are very much included in the OROP scheme. For revision of pension of various categories, following tables already make provision for the different classes of pensioners under OROP scheme: 

Category	Table Numbers
Family pensioners	10-45
Family pension of War widows & Liberalised family pension	46-69
Disability pensioners, War Injury pension	70-96

 In this regard the statement of the Petitioners is misleading and special consideration has been given to widows of deceased soldiers and disabled soldiers in the OROP orders. It is also important to point that these categories were paid arrears of OROP in lump sum. 

73.       In reply to Para 42, it is stated that the pension of all defence pensioners were revised w.e.f. 01.07.2014 and all arrears of OROP have been paid as decided by government. The making of payment for all retirees from 01.07.2014 does not violate Article 14 & 21 and the date of 01.07.2014 is uniform for all defence forces personnel.

74.       That the contents of Para 43 have been addressed earlier.

75.       That the averments of Petitioners in Para 44 are denied. It is only submitted that the OMJC has submitted its report to the Government on 26.10.2016 and the Government is studying the recommendations of Committee.

76.       That contentions raised in Para 45 have already been addressed above.

77.       That no comment is required to be made to Para 45A.

78.       That in reply to Para 46, it is submitted that the judgment of Hon’ble Court in UoI vs. SPS Vains has been implemented in all the affected cases and it is specifically submitted that this judgment does not refer to OROP and is distinguishable.

79.       That Para 47 and Par 48 are repetitions of contentions raised and addressed earlier.

80.      That the contents of Para 49 to 52 in so far as they relate to OROP scheme are decisions taken by the Government. The assertions made by the Petitioners’ in this regard are denied as being without merit.

81.       That contents of Para 52A have already been addressed earlier.

82.       That Paras 53, 53A, 53B and 54 are repetitive.

83.       That in response to Para 55, 55 (A), 55 (B), 56 and 57, it is submitted that the issue raised regarding the benefit of notional promotion of Naib Subedar is extended to pre-2006 Honorary Naib Subedar w.e.f. 01.07.2014 in the OROP scheme. However, the pension of Naib Subedar cannot be given to an Honorary Naib Subedar as these are two distinct classes and are unequal. This view has been upheld by AFT, Chandigarh in OA 2755/2013, Hoshiar Singh vs. Union of India dt. 27.10.2017. Even otherwise, this has no nexus with OROP.

84.       That OROP envisages revision of pension based on rank held at the time of retirement/discharge. But Petitioners are contending that as a Commissioned Officer who is at the rank of Major (now) becomes Lt Colonel after 13 years as Commissioned Officer (where total service is more than 30 years), so all Majors who retired earlier than the introduction of this dispensation should be given pension of Lt Colonel. This, it is submitted, is without logic. The defence personnel who retired as Major cannot be granted the pension of another rank, i.e. the rank of Lt Colonel after retirement, especially as no pay has been drawn for the higher post which was never held in service, no pension can be granted for a higher rank.  

85.       The Petitioners are advocating grant of pension of higher rank (Lt Col) to a defence personnel who has retired in a lower rank (Maj) ignoring the hierarchy and sentiments of higher rank officers who will be cause injustice due to the treatment being sought by the Petitioners. Petitioners’ submissions in these paragraphs are contrary to their own stand of uniformity of pension in the same rank and tenure.

86.       The contention of the petitioners for applying improvement in service conditions and policies of the serving Govt servants to the retired Govt servant is not appropriate and is an issue different from OROP.

87.       That in reply to Para 58 it is submitted that a soldier with honorary rank is not equal to a soldier holding the same rank substantively, as the former has drawn pay and allowances for the Honorary rank. Hon’ble AFT, Chandigarh vide order dated 27.10.2017 has stated that Hony Nb Subedar and Nb Subedar are two distinct classes and being unequal cannot be treated as equal.

88.       That Para 59 and 60 have been already addressed.

89.       That the OROP scheme has been issued and implemented after taking into account all relevant facts and considerations by the Government and has been approved at the highest level. The OROP scheme of the Union of India is neither arbitrary, nor illegal nor violative of the Constitution and therefore the writ petition is liable to be dismissed.

90.      Any anomalies that may have arisen have been addressed by the OMJC and its recommendations are now pending before the Govt for consideration.

91.       It is therefore the most humble submission of the Respondent/Union of India that the present writ petition is premature and is liable to be dismissed on that account.

92.       Without prejudice to the above submission, the writ petition would deserve to be dismissed by this Hon’ble Court as being devoid of any merit. The answering respondent prays accordingly.

Sd/-----------------

DEPONENT

R K Arora

Under Secretary

Ministry of Defence, New Delhi

See Para 54

Rank	Standard service period for the rank	Pension between 1.6.53 and 16.4.56 AI 2/S/53 & Reg 29 (A) PRA Part I (1961) as amended vide CS No. 13/67	Pension between 17.4.56 and 30.9.61 Reg 29 (A) PRA Part I (1961) as amended vide CS No. 13/67	Pension between 1.10.61 and 31.12.72 not governed by post DCRG Reg 29 (A) PRA Part I (1961) as amended vide CS No. 13/67	Pension between 10.9.70 and 31.12.72 (post DCRG) AI 8/S/70	Pension on or after 12.10.70 Reg 29 (a) as amended vide CS No. 125/57
	Years	Rs p.m	Rs p.m	Rs  p.m	Rs  p.m	Rs  p.m
2nd Lt/Lt	20	275	275	300	272	300
Capt	20	350	350	425	377	425
Major	22	475	475	550	482	550
Lt Col (Selection)	24	625	625	675	587	640
Lt Col (TS)	26	-	-	-	557	-
Col	26	675	675	75	638	675
Brig	28	725	800	825	696	825
Maj Gen	30	800	875	875	735	875 (a)
Lt Gen	30	900	900	900	755 (*) 815 (a)	975
General	30	1000	1000	1000	840	1000

* Rate of pension up to 11.10.70

Rank	Pension between 1.1.33 and 31.3.79	Pension wef 1,4,79 (along with DCRG) MoD No. B/40725/AG/PS 4(a)	Pension between 30.6.82 and 31.3.84			Pension on or after 31.3.85 GoI/MoD No. B/42114/AG/PS 4 (a)
	Rs p.m	Rs p.m	Rs p.m	Rs  p.m	Rs  p.m	Rs  p.m
2nd Lt/Lt	350	525	575	600	650	950
Capt	575	750	800	825	875	1200
Major	675	875	925	975	1000	1400
Lt Col (Selection)	775	950	975	1025	1075	1575
Lt Col (TS)	700	900 924 (b)	1000	1050	1100	1525
Col	900	1100	1150	1225	1275	1850
Brig	1000	1125 1175 (c)	1250	1325	1375	2025
Maj Gen	1050	1275	1425	1425	1500	2275
Lt Gen	1100	1375 1475 (d)	1500	1500	1500	2400-2500
Gen	1200 for COAS	1700 for COAS	1700	1700	1700	2825

(x)       Rate of pension up to 11.10.1970

(a)       Rate of pension w.e.f. 12.10.1970

(b)       Rate of pension w.e.f 2.7.79

(c)       Rate of  pension w.e.f 1.5.79

(d)       Rate of pension w.e.f. 1.8.79

*          *          *          *          *          *          *          *