OROP is govt policy decision, no constitutional infirmity in it: SC

The Supreme Court on Wednesday upheld the One Rank-One Pension (OROP) principle adopted by the Centre in its 2015 communication issued to the Chiefs of three defence forces saying it neither suffers from any “Constitutional infirmity” nor is it “arbitrary”.

The apex court said that the Bhagat Singh Koshyari committee report, tabled in the Rajya Sabha on December 10, 2011, furnishes the historical background, the reason for the demand, view of the Parliamentary Committee which proposed the adoption of OROP for personnel belonging to the armed forces and beyond this, the Report cannot be construed as embodying a statement of governmental policy.

It held that governmental policy formulated in terms of Article 73 by the Union or Article 162 by the State has to be authoritatively gauged from the policy documents of the government, which in present case is the communication dated November 7, 2015.

A bench of Justices D Y Chandrachud, Surya Kant and Vikram Nath said that the canvass which is sought to be traversed in these proceedings under Article 32 of the Constitution trenches upon a domain which is reserved for executive policy.

“Applying the above principles to the facts of the case, we find no constitutional infirmity in the OROP principle as defined by the communication dated November 7, 2015,” it said.

The top court's verdict came on the plea filed by the Indian Ex-servicemen Movement (IESM) through advocate Balaji Srinivasan against the Centre's formula of OROP.

The bench further said that in terms of the communication dated November 7, 2015, the benefit of OROP was to be effected from July 1, 2014 and the communication states that “in future, the pension would be re-fixed every five years”.

“Such an exercise has remained to be carried out after the expiry of five years possibly because of the pendency of the present proceedings”, the bench said, adding, “ We accordingly order and direct that in terms of the communication dated November 7, 2015, a re-fixation exercise shall be carried out from July 1, 2019, upon the expiry of five years. Arrears payable to all eligible pensioners of the armed forces shall be computed and paid over accordingly within a period of three months”.

The bench said while no legal or Constitutional mandate of OROP can be read into the earlier decisions of the top court, varying pension payable to officers of the same rank retiring before and after July 1, 2014 either due to (Modified Assured Career Progression) or the different base salary used for the calculation of pension cannot be held arbitrary.

“Since the OROP definition is not arbitrary, it is not necessary for us to undertake the exercise of determining if the financial implication of the scheme is negligible or enormous”, it said.

“We must remember that adjudication cannot serve as a substitute for policy,” it said, adding that most questions of policy involve complex considerations of not only technical and economic factors but also require balancing competing interests for which democratic reconciliation rather than adjudication is the best remedy.

Justice Chandrachud, who penned the 64-page verdict on behalf of the bench, quoted American philosopher Lon Fuller who described public policy issues that come up in adjudication as “polycentric problems”, that is, they raise questions that have a “multiplicity of variable and interlocking factors, decisions on each one of which presupposes a decision on all others”.

The bench further said that an increased reliance on judges to solve matters of pure policy diminishes the role of other political organs in resolving contested issues of social and political policy, which require a democratic dialogue.

“This is not to say that this Court will shy away from setting aside policies that impinge on Constitutional rights. Rather it is to provide a clear-eyed role of the function that a court serves in a democracy. The OROP policy may only be challenged on the ground that it is manifestly arbitrary or capricious”, the bench said.

Giving the reasons for finding no constitutional infirmity, the bench said that the definition of OROP is uniformly applicable to all the pensioners irrespective of the date of retirement.

“It is not the case of the petitioners that the pension is reviewed ‘automatically' to a class of the pensioners and ‘periodically' to another class of the pensioners”, it said.

Dealing with the contentious issue of the cut-off date the bench said it is used only for the purpose of determining the base salary for the calculation of pension.

“While for those who retired after 2014, the last drawn salary is used to calculate pension, for those who retired prior to 2013, the average salary drawn in 2013 is used. Since the uniform application of the last drawn salary for the purpose of calculating pension would put the prior retirees at a disadvantage, the Union Government has taken a policy decision to enhance the base salary for the calculation of pension”, it said.

The top court added that undoubtedly, the Union Government had a range of policy choices including taking the minimum, the maximum or the mean or average but the Centre decided to adopt the average.

“Persons below the average were brought up to the average mark while those drawing above the average were protected. Such a decision lies within the ambit of policy choices”, it said.

It said that all pensioners who hold the same rank may not for all purposes form a homogenous class.

Giving an example, it said that amongst Sepoys differences do exist in view of the MACP and ACP schemes and certain Sepoys receive the pay of the higher ranked personnel.