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OROP: `Koshyari panel report cannot be enforced as statement of govt policy`

The Supreme Court on Wednesday said the Bhagat Singh Koshyari Committee report on One Rank-One Pension (OROP) (OROP) was submitted to the Rajya Sabha and “the report cannot be construed as a statement of government policy”.

The top court said there is no statutory mandate that pensioners of the same rank be given the same amount of pension as it has upheld the Centre’s decision to give OROP in defense forces.

It said that the separate benefits which may be applicable to some personnel, which will also affect the pension payable, need not be equated with the rest of the personnel.

A bench of Justices DY Chandrachud, Surya Kant and Vikram Nath said, “Now it needs to be understood that the report of the Koshyari Committee is a report submitted by the Committee on Petition to the Rajya Sabha.” The report cannot be construed as a statement of government policy.”

It said that the letter dated November 7, 2015 sent by the Center to the chiefs of the three defense forces cannot be dismissed on the ground that it is contrary to the original intent of the policy formulated by the Central Government.

“The policy of the Central Government is the same as embodied in the communication dated 7th November, 2015. Statements on the Table of the House and Minutes of Ministerial Committees point to the fact that the Central Government has decided in principle to implement OROP. But the exact modalities of its implementation were a matter of evolving discussion within the government. The modalities created in the November 7, 2015 communication represent the policy choices adopted by the government,” it said.

The top court observed that the Koshyari Committee report tabled in the Rajya Sabha on December 10, 2011 presents the historical background, reason for the demand, view of the parliamentary committee which had proposed adoption of OROP for personnel belonging to the armed forces. The report cannot be construed as a statement of government policy.

It held that the Government policy framed by the Union in terms of Article 73 or Article 162 by the State is to be judged officially from the policy documents of the Government, vide communication dated 7th November, 2015 in the present case.

The decision came on a petition filed by the Indian Ex-Servicemen Movement (IESM) through advocate Balaji Srinivasan against the Centre’s formula for OROP and the need to implement OROP with automatic annual revision instead of automatic annual revision as recommended by the Koshyari committee. was demanded. Existing policy of periodic review once in five years.

Summarizing the principles governing pension and cut-off dates, the bench observed that all pensioners who hold the same rank cannot form a homogeneous class for all purposes.

Citing an example, the bench said, differences exist between constables in view of the Revised Assured Career Progression (MACP) and Assured Career Progression (ACP) schemes and that some constables get the salary of higher ranked personnel.

“It is not a legal order that equal pension should be given to pensioners of equal rank. The separate benefits which may be applicable to some personnel, which will also affect the pension payable, need not be equated with the rest of the personnel”, it said.

The bench said that the benefit of a new element in the pension scheme can potentially be implemented but the scheme cannot divide a homogeneous group on the basis of the cut-off date.

The bench observed that there was no constitutional flaw in the OROP principle as defined by the November 7, 2015 communication, which was sent by the government to the chiefs of the three defense forces.

“The definition of OROP is equally applicable to all pensioners, irrespective of the date of retirement. It is not the case of the petitioners that the pension is reviewed ‘automatically’ for one class of pensioners and ‘periodically’ for another class of pensioners”, the bench said.

It said that the cut-off date is used only for the purpose of fixing the base pay for calculation of pension.

The bench said that the legislative and other material before November 7, 2015, had proposed that the increase in the rates of pension in future would automatically be passed.

“The expression ‘automatically’ was not explicitly linked to the time period for revision of pension. No document on record prior to the communication dated 7th November, 2015 indicates that the pension has been revised contrary to the periodic revision. The process of doing so was to be continued on an ongoing basis”, it said.

The bench observed that there exists a hierarchy in law between laws and rules – a statutory provision will have precedence over a delegated law if the latter conflicts with the former.

It said that similarly, executive directives cannot override any statute or rules made in pursuance of a statute.

“But in the present case the whole canvas is governed by one policy. The terms and conditions for implementing the policy were specified on November 7, 2015. Therefore, that element of the policy cannot be challenged on the assumption that there is an inflexible notion of OROP in the original understanding. OROP itself is a matter of policy and it was open to the policy makers to determine the conditions of implementation,” the bench said.

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