India Losing its Domestic Arbitration! The Need for Legislative Amendment
Forty years ago, members of the armed forces were promised One Rank-One Pension (OROP). Simply put, OROP means uniform pension to all military personnel retiring at the same rank with same length of service, irrespective of the date of retirement. By way of an example, if two Colonels in the army have put in 25 years of service, one having retired in 1984 and other in 2005, both will be entitled to the same pension and future increases. As opposed to this, armed forces personnel are currently entitled to 50 per cent of the last salary earned (with enhancements made by successive pay commissions).
There are strong reasons for the OROP implementation, such as early retirement of armed forces personnel, beginning as early as age 34; lack of post retirement work opportunities, lack of permanency of service. Armed forces personnel are perhaps the only government servants that have no permanency of service, which typically is 60 years for other government servants.
With this article, I want to give the reader a perspective on the legal aspects of the OROP and why the demand for the OROP is not only legally justifiable and their claim entirely legitimate, but in fact, their demand, is the law of the land.
The claims of the pensioners are squarely covered by the decision of the Constitutional Bench of the Hon’ble Supreme Court in the matter of D.S. Nakara v. Union, delivered way back in 1982. In regard to pensions, the Hon’ble Court had observed, “…………………., those who are to retire subsequent to the specified date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specified date ….… we find no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specified date”.
Despite the fact that Nakara stared us in the face, the OROP was not implemented. Relying on Nakara, the Supreme Court in 2008, in the matter of Union Of India v. SPS Vains (Retd.) held, “…… the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara case. The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution…”
Sadly, post the judgement, several confusing and contrary circulars were released by the government including as to classification of pensioners. Despite repeated judicial pronouncements in their favour, the successive governments dilly-dallied over the implementation. Seeking their support for votes and then issuing contrary circulars, ostensibly, in the garb of clarifications, forcing army personnel to take to court. So much so, it recently took the Supreme Court, while dismissing an appeal filed by the Union of India, in regard to the Assured Career Progression scheme, to ask the government, to show respect to army personnel and stop dragging them till the Supreme Court on matters.
In 2009, a contempt petition was filed in the SPS Vains matter, because the government failed to implement the directions of the Apex Court. Finally, on 16.02.2015, the Court, granted three months’ time to the government, on the government’s request, to finally work out the modalities for implementation of the one rank-one pension …”. The three months’ period expired on 15.05.2015.
The SPS Vains Judgement was re-iterated, just last week, in the matter of A.N. Sachdeva Vs. Maharshi Dayanand University, and the Apex Court observed, “Considering the principles enunciated under Articles 14 and 16 of the Constitution, .. the benefit is not an ex gratia payment but a payment in recognition of past service….”.
“Inspite of the Supreme Court having categorically held that there can be no classification based on the date of retirement, the Government refuses to implement the said judgement”, says an anguished Nidhesh Gupta, Senior Advocate, who has represented army personnel in the SPS Vains matter and also acted in the A.N. Sachdeva matter.
Successive governments have made poll promises of the implementation of the OROP to defence personnel. In law, the pensioners have a ‘legitimate expectation’ on the basis of the promise made to them. The government ought, therefore, to be estopped from reneging on the promise, on the basis of ‘promissory estoppel’. ‘Legitimate expectation’ and ‘promissory estoppel’ are both well-settled principles of law. The Hon’ble Supreme Court in the SPS Vains contempt matter observed to the government “This was part of your manifesto for the Lok Sabha elections. You must keep your word”.
Despite, poll promises, the implementation has been withheld, ostensibly, on the account of the financial impact on the exchequer, which is likely to be between Rs. 6,000 to Rs. 10,000 crores. Frankly, that didn’t seem an eye-popping figure, particularly in terms of the numbers connected with scandals of venality, we’ve heard in recent times. Be that as it may, legally speaking, for the government to retract from it’s promise, it would need to demonstrate ‘over-riding public interest’. A mere assertion of financial impact on the State cannot be an argument of over-riding public interest. In order to retract from such promise, the government would need to necessarily exhibit the direct co-relation of an adverse impact on the State of such financial expenditure.
There are also whispers about the alleged ‘complexity’ in the implementation of the OROP. To me neither of those arguments appear legitimate. A more plausible explanation would be the ‘unwritten’ policy to keep the armed forces financially stricken, with a view to keep them dis-empowered. It is a strategy that has served the nation well, keeping the army at bay, and the control in civilian hands. Even, personnel of the forces will agree, that the example across the border is not an option for India to toy with. But equally, the issue at hand does not relate to armed forces personnel currently in service. We are dealing with post-retirement benefits of veterans, that have no control or possibility of control of government.
But then, I am neither an economist, nor an expert on policy. But as a lawyer, here’s what I do know. I know the Supreme Court has ruled and has ruled conclusively in favour of the OROP. I also know that the government did not ask for a review of the judgement. The judgement is the law of the land. The insinuations of the so-called impact on the exchequer and ‘complexities’ are, therefore, only moonshine.
What is important is that the matter is in contempt and failure to implement the order amounts to willful disobedience of the order of the Hon’ble Apex Court.
Lastly as citizens, it is equally important for us to remember their sacrifice for the nation. They awake so we can sleep. Keeping them financially sequestered is not only inhumane, but the greatest disrespect a nation can show itself. It is a sad day, for any nation, if it’s veteran soldiers have to sit on ‘Dharna’ and on a hunger strike to get their due. No amount of aid, no, not even a billion dollars to Mongolia, will counter the enemy, if the soldiers were ‘striking’ at the border!
The author, Payal Chawla is from Juscontractus
http://www.businessworld.in/economy-policy/legal-justification-orop#sthash.EpFZ769c.XzVbwsJT.dpbs
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