IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. 1498 of 2018
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Major Sushil Kumar Jain (Retired) ……Petitioner
Versus
Union of India, Ministry of Defence ……Respondent
REJOINDER AFFIDAVIT ON BEHALF OF PETITIONER
I, Major Sushil Kumar Jain (Retired) S/O Late Shri Chetan Lal Jain, aged about 65 years, R/o House No 670 (second floor), Dr. Mukherjee Nagar, Delhi –110009, do hereby solemnly affirm and state as under:
1. That I am the petitioner in the case and as such I am fully conversant with the facts and circumstances of the case and competent to swear this Rejoinder Affidavit.
2. That I state that I have read and understood the contents of the subject counter affidavit filed by the respondent herein. At the outset, I deny all averments, submissions, statements and allegations made therein except as may be especially admitted herein after.
PARAWISE REPLY
1. That in reply to contents of Para 1 to 3, it is submitted that respondent has admitted the fact to the effect that One Rank One Pension (OROP) was implemented by the respondent on 07.11.2015 and One Man Judicial Committee (OMJC) was formed by the respondent on 14.12.2015 to look into the anomalies arising out of initial implementation of OROP. That OMJC submitted its report to the respondent on 26.10.2016. That an Internal Committee has been formed by the respondent on 19.07.2017 to examine the recommendations of One Man Judicial Committee (OMJC), which is still examining the same.
The callous attitude and lack of concern on the part of respondent is evident from the aforesaid admitted factual dates that, firstly, on receipt of report from OMJC, the respondent has failed to act upon the same for about 9 months before forming the so called Internal Committee and, secondly, the Internal Committee, which was required to submit its report within two months, is still examining the report of OMJC even after expiry of 19 months. The respondent has failed to appreciate that the anomalies, arising out of initial implementation of OROP, have been identified and referred to OMJC by the respondent itself. The respondent has also failed to appreciate that defence pensioners of the country are being paid anomalous pension since “01.07.2014” the date from which the OROP scheme was made applicable. Such inordinate delay in removal of anomalies on the part of the respondent, is infringement of Right to Life under Article 21, is violative of “principle of natural justice” and is contrary to “legitimate expectation” of about 20 lakhs armed forces pensioners of the country comprising disabled soldiers, widows/war-widows and senior citizens/super senior citizens. This Hon’ble Court, in the case of M/s Sethi Auto Service Station Vs Delhi Development Authority & Ors in Civil Appeal No. 6143 of 2008, has examined the concept of “legitimate expectation” and laid down that “legitimate expectation” is at the root of the constitutional principle of the rule of law.
The respondent has contended that “the recommendations of OMJC are quite complex and as such no decision can be taken by the Government without taking into consideration the report of Internal Committee. Therefore, the report of OMJC cannot be made public at present”. The contention of the respondent is frivolous and untenable in the absence of details of any such complexity having been brought to notice of this Hon’ble Court. The so called Internal Committee was not required at all as explained in subsequent paragraphs. The complexity in the recommendations of OMJC, if any was felt by the respondent, should have been referred to OMJC itself for clarifications. Ironically, the respondent has not bothered to submit any time frame for removal of the anomalies of OROP scheme which indicates malafide intentions of the respondent.
2. A plain reading of Notification dated 14.12..2015, vide which the respondent has appointed one man judicial committee (OMJC), will reveal that contents of this notification are quite comprehensive leaving no scope for further examination of recommendations of OMJC by another Internal Committee. Relevant extracts of notification dated 14.12.2015 are appended hereunder for convenience:
3. The Terms of Reference for the Committee shall be:
i. To examine and make recommendations on references received from the Central Government on the following matters:
ii. Measures for the removal of anomalies that may arise in implementation of the OROP Letter No. 12(1)/2O14/D (Pen/Pol) Part- II dated 7.11.2015.
ii. Measures for the removal of anomalies that may arise out of inter-service issues of the three forces due to implementation of OROP order ibid.
iii. Implications on service matters
iv. Any other matter referred by the Central Government on implementation of the OROP or related issues.
In making its recommendations, the Committee shall take into account the financial impact of its recommendations,
4. x x x x x x x x x x x
5. The Committee will devise its own procedure and may call for such information and take such evidence, as may be considered necessary. Ministries and Departments of Government of India shall furnish such information and documents and other assistance, as may he required by the Committee.”
In compliance with the aforesaid notification, the OMJC has been pleased to visit 19 places across the country for orally hearing the grievances of defence pensioners before finalizing its report and it is expected that the recommendations of OMJC are in favour of about 20 lakhs defence pensioners of the country which may result into some financial implications on the exchequer of the respondent. The respondent, instead of respecting the recommendations of OMJC for removal of OROP anomalies, is finding ways and means to deny the legitimate benefits to defence pensioners of the country, just to evade the financial implications.
4. The so called Internal Committee has been constituted by the respondent (Ministry of Defence –Department of Ex-Servicemen Welfare )under the chairmanship of a Joint Secretary vide order dated 19.07.2016. The terms and reference of the Internal Committee were made as under and the committee was asked to submit its report within two months:
(i) To examine and analyse the recommendations of OMJC.
(ii) To examine the feasibility of implementation of recommendations of OMJC.
(iii) To work out financial implications.
Copy of the order dated 19.07.2017 issued by respondent (Ministry of Defence –Department of Ex-Servicemen Welfare) is annexed & marked as ANNEXURE- RA-1.
It can be seen from the above mentioned terms and reference that the terms (i) and (ii) are ambiguous. The factor of “financial implication of OMJC recommendations” has already been taken into consideration by OMJC in accordance with its terms and reference. The aforesaid act of forming Internal Committee by the respondent is contradictory in itself because One Man Judicial Committee (OMJC), under the chairmanship of Mr. Justice L. Narasimha Reddy, Hon’ble retired Chief Justice of Patna High Court, was formed with the approval of Cabinet of India as is evident from Para 7 of Press Release dated 06.04.2016 issued by the respondent
Copy of the Press Release dated 06.04.2016 issued by the respondent (Ministry of Defence) is annexed & marked as ANNEXURE- RA-2.
Whereas, the so called Internal Committee has been formed under the chairmanship of a Joint Secretary, with the approval of Defence Minister as is evident from Order dated 19.07.2016. The recommendations made by the “OMJC” which is a “Judicial Committee” by nature and composition and which has been appointed with the approval of Cabinet of India, cannot be superseded arbitrarily by the so called Internal Committee. There is no end of appointing committee after committee on the same subject. Hence, the formation of so called Internal Committee is liable to be set aside and the recommendations of OMJC need to be implemented by the respondent without any alteration
5. That in reply to contents of Para 4 to 10, it is submitted that respondent has admitted the facts contained in Para 9 and Para 10 of writ petition that the Ld. Chairperson of the said One Man Judicial Committee (OMJC) has been pleased to visit 19 places across the country and elaborately heard the grievances of the defence personnel qua the implementation of the One Rank One Pension (OROP) in the entire country.
6. That in reply to contents of Para 11 & 12 , it is submitted that the contention of the respondent that issues involved in the recommendations of OMJC are quite complex and may have wider repercussions, is frivolous and is disputed. The respondent has not brought out any of such complexities to the notice of this Hon’ble court. Further, the contention of respondent that the recommendations of OMJC “may have wider repercussions” is a hypothetical statement and cannot be substantiated because the terms and reference of OMJC are quite elaborative leaving no room for wider repercussions.
7. That in reply to contents of Para 13 to 18, it is submitted that respondent has admitted the fact to the effect that the matter has been raised repeatedly in both the houses of parliament. It is further submitted that matter has been raised recently in both the houses of parliament on 12.12.2018 & 19.12.2018 also.
8. That in reply to contents of Para 19 to 23, it is submitted that the respondent has reiterated that “the recommendations of OMJC are quite complex and as such no decision can be taken by the Government without taking into consideration the report of Internal Committee. Therefore, the report of OMJC cannot be made public at present”. The contention of the respondent is frivolous and untenable in the absence of details of any such complexity having been brought to notice of this Hon’ble Court. The OMJC has visited 19 places across the country to hear the grievances of defence pensioners and hence defence pensioners of the country have a legitimate right to know as what has been recommended for them by the OMJC.
In the above said circumstances, Writ Petition deserves to be allowed by this Hon’ble Court.
DEPONENT
VERIFICATION :
I, the deponent above named do hereby verify that averments made in this affidavit are true and correct to the best of my knowledge and belief. No part of it is false and nothing material has been concealed there from.
Verified at New Delhi on this the _____day of February 2019.
DEPONENT
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. 1498 of 2018
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Major Sushil Kumar Jain (Retired) ……Petitioner
Versus
Union of India, Ministry of Defence ……Respondent
REJOINDER AFFIDAVIT ON BEHALF OF PETITIONER
I, Major Sushil Kumar Jain (Retired) S/O Late Shri Chetan Lal Jain, aged about 65 years, R/o House No 670 (second floor), Dr. Mukherjee Nagar, Delhi –110009, do hereby solemnly affirm and state as under:
1. That I am the petitioner in the case and as such I am fully conversant with the facts and circumstances of the case and competent to swear this Rejoinder Affidavit.
2. That I state that I have read and understood the contents of the subject counter affidavit filed by the respondent herein. At the outset, I deny all averments, submissions, statements and allegations made therein except as may be especially admitted herein after.
PARAWISE REPLY
1. That in reply to contents of Para 1 to 3, it is submitted that respondent has admitted the fact to the effect that One Rank One Pension (OROP) was implemented by the respondent on 07.11.2015 and One Man Judicial Committee (OMJC) was formed by the respondent on 14.12.2015 to look into the anomalies arising out of initial implementation of OROP. That OMJC submitted its report to the respondent on 26.10.2016. That an Internal Committee has been formed by the respondent on 19.07.2017 to examine the recommendations of One Man Judicial Committee (OMJC), which is still examining the same.
The callous attitude and lack of concern on the part of respondent is evident from the aforesaid admitted factual dates that, firstly, on receipt of report from OMJC, the respondent has failed to act upon the same for about 9 months before forming the so called Internal Committee and, secondly, the Internal Committee, which was required to submit its report within two months, is still examining the report of OMJC even after expiry of 19 months. The respondent has failed to appreciate that the anomalies, arising out of initial implementation of OROP, have been identified and referred to OMJC by the respondent itself. The respondent has also failed to appreciate that defence pensioners of the country are being paid anomalous pension since “01.07.2014” the date from which the OROP scheme was made applicable. Such inordinate delay in removal of anomalies on the part of the respondent, is infringement of Right to Life under Article 21, is violative of “principle of natural justice” and is contrary to “legitimate expectation” of about 20 lakhs armed forces pensioners of the country comprising disabled soldiers, widows/war-widows and senior citizens/super senior citizens. This Hon’ble Court, in the case of M/s Sethi Auto Service Station Vs Delhi Development Authority & Ors in Civil Appeal No. 6143 of 2008, has examined the concept of “legitimate expectation” and laid down that “legitimate expectation” is at the root of the constitutional principle of the rule of law.
The respondent has contended that “the recommendations of OMJC are quite complex and as such no decision can be taken by the Government without taking into consideration the report of Internal Committee. Therefore, the report of OMJC cannot be made public at present”. The contention of the respondent is frivolous and untenable in the absence of details of any such complexity having been brought to notice of this Hon’ble Court. The so called Internal Committee was not required at all as explained in subsequent paragraphs. The complexity in the recommendations of OMJC, if any was felt by the respondent, should have been referred to OMJC itself for clarifications. Ironically, the respondent has not bothered to submit any time frame for removal of the anomalies of OROP scheme which indicates malafide intentions of the respondent.
2. A plain reading of Notification dated 14.12..2015, vide which the respondent has appointed one man judicial committee (OMJC), will reveal that contents of this notification are quite comprehensive leaving no scope for further examination of recommendations of OMJC by another Internal Committee. Relevant extracts of notification dated 14.12.2015 are appended hereunder for convenience:
3. The Terms of Reference for the Committee shall be:
i. To examine and make recommendations on references received from the Central Government on the following matters:
ii. Measures for the removal of anomalies that may arise in implementation of the OROP Letter No. 12(1)/2O14/D (Pen/Pol) Part- II dated 7.11.2015.
ii. Measures for the removal of anomalies that may arise out of inter-service issues of the three forces due to implementation of OROP order ibid.
iii. Implications on service matters
iv. Any other matter referred by the Central Government on implementation of the OROP or related issues.
In making its recommendations, the Committee shall take into account the financial impact of its recommendations,
4. x x x x x x x x x x x
5. The Committee will devise its own procedure and may call for such information and take such evidence, as may be considered necessary. Ministries and Departments of Government of India shall furnish such information and documents and other assistance, as may he required by the Committee.”
In compliance with the aforesaid notification, the OMJC has been pleased to visit 19 places across the country for orally hearing the grievances of defence pensioners before finalizing its report and it is expected that the recommendations of OMJC are in favour of about 20 lakhs defence pensioners of the country which may result into some financial implications on the exchequer of the respondent. The respondent, instead of respecting the recommendations of OMJC for removal of OROP anomalies, is finding ways and means to deny the legitimate benefits to defence pensioners of the country, just to evade the financial implications.
4. The so called Internal Committee has been constituted by the respondent (Ministry of Defence –Department of Ex-Servicemen Welfare )under the chairmanship of a Joint Secretary vide order dated 19.07.2016. The terms and reference of the Internal Committee were made as under and the committee was asked to submit its report within two months:
(i) To examine and analyse the recommendations of OMJC.
(ii) To examine the feasibility of implementation of recommendations of OMJC.
(iii) To work out financial implications.
Copy of the order dated 19.07.2017 issued by respondent (Ministry of Defence –Department of Ex-Servicemen Welfare) is annexed & marked as ANNEXURE- RA-1.
It can be seen from the above mentioned terms and reference that the terms (i) and (ii) are ambiguous. The factor of “financial implication of OMJC recommendations” has already been taken into consideration by OMJC in accordance with its terms and reference. The aforesaid act of forming Internal Committee by the respondent is contradictory in itself because One Man Judicial Committee (OMJC), under the chairmanship of Mr. Justice L. Narasimha Reddy, Hon’ble retired Chief Justice of Patna High Court, was formed with the approval of Cabinet of India as is evident from Para 7 of Press Release dated 06.04.2016 issued by the respondent
Copy of the Press Release dated 06.04.2016 issued by the respondent (Ministry of Defence) is annexed & marked as ANNEXURE- RA-2.
Whereas, the so called Internal Committee has been formed under the chairmanship of a Joint Secretary, with the approval of Defence Minister as is evident from Order dated 19.07.2016. The recommendations made by the “OMJC” which is a “Judicial Committee” by nature and composition and which has been appointed with the approval of Cabinet of India, cannot be superseded arbitrarily by the so called Internal Committee. There is no end of appointing committee after committee on the same subject. Hence, the formation of so called Internal Committee is liable to be set aside and the recommendations of OMJC need to be implemented by the respondent without any alteration
5. That in reply to contents of Para 4 to 10, it is submitted that respondent has admitted the facts contained in Para 9 and Para 10 of writ petition that the Ld. Chairperson of the said One Man Judicial Committee (OMJC) has been pleased to visit 19 places across the country and elaborately heard the grievances of the defence personnel qua the implementation of the One Rank One Pension (OROP) in the entire country.
6. That in reply to contents of Para 11 & 12 , it is submitted that the contention of the respondent that issues involved in the recommendations of OMJC are quite complex and may have wider repercussions, is frivolous and is disputed. The respondent has not brought out any of such complexities to the notice of this Hon’ble court. Further, the contention of respondent that the recommendations of OMJC “may have wider repercussions” is a hypothetical statement and cannot be substantiated because the terms and reference of OMJC are quite elaborative leaving no room for wider repercussions.
7. That in reply to contents of Para 13 to 18, it is submitted that respondent has admitted the fact to the effect that the matter has been raised repeatedly in both the houses of parliament. It is further submitted that matter has been raised recently in both the houses of parliament on 12.12.2018 & 19.12.2018 also.
8. That in reply to contents of Para 19 to 23, it is submitted that the respondent has reiterated that “the recommendations of OMJC are quite complex and as such no decision can be taken by the Government without taking into consideration the report of Internal Committee. Therefore, the report of OMJC cannot be made public at present”. The contention of the respondent is frivolous and untenable in the absence of details of any such complexity having been brought to notice of this Hon’ble Court. The OMJC has visited 19 places across the country to hear the grievances of defence pensioners and hence defence pensioners of the country have a legitimate right to know as what has been recommended for them by the OMJC.
In the above said circumstances, Writ Petition deserves to be allowed by this Hon’ble Court.
DEPONENT
VERIFICATION :
I, the deponent above named do hereby verify that averments made in this affidavit are true and correct to the best of my knowledge and belief. No part of it is false and nothing material has been concealed there from.
Verified at New Delhi on this the _____day of February 2019.
DEPONENT
