# INDIAN EX SERVICEMEN MOVEMENT & ORS v. UNION OF INDIA & ORS

- **Citation:** [2022] 9 S.C.R. 885
- **Court:** Supreme Court of India
- **Decided:** 2022-03-16
- **Bench:** Dr. Dhananjaya Y Chandrachud, Surya Kant, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-ex-servicemen-movement-ors-v-union-of-india-ors-36510
- **Pages:** 59

## Headnote

Armed Forces: One Rank One Pension-OROP -
Constitutionality of - Writ petition challenging the manner in which
the OROP policy for ex-servicemen of defence forces has been
implemented by the Union of India through a letter dated 07.11.2015
issued to the Chiefs of three defence forces - Letter defining OROP
as the payment of uniform pension to armed services personnel
retiring in the same rank with the same length of service, irrespective
of the date of retirement; that OROP aims to bridge the gap between
the rate of pension of current and past pensioners at periodic
intervals - Petitioners case that in the course of implementation,
the principle of OROP has been replaced by 'one rank multiple
pensions' for persons with the same length of service; that the initial
definition of OROP was altered by the UOI and, instead of an
automatic revision of the rates of pension, where any future
enhancement to the rates of pension are automatically passed on to
the past pensioners, the revision now would take place at periodic
intervals, is arbitrary and unconstitutional - Held: There is no
constitutional infirmity in the OROP principle as defined by the
communication dated 07.11.2015 - Definition of OROP is uniformly
applicable to all the pensioners irrespective of the date of retirement
- Cut-off date 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 - Such a
decision lies within the ambit of policy choices - There was no
conscious policy decision on the part of the Union Government on
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the modalities for implementing OROP until the communication dated
07.11.2015 came into being, and thus, the communication of
07.11.2015 cannot be invalidated on the ground that it infringed
the 'original understanding' of OROP - Expression 'automatically
passed on' cannot be construed as a commitment with reference to
any period of time for the computation of benefits - Decision of the
Central Government to revise the pension every five years cannot
be held to violate the precepts underlying Art. 14 - Policy decision
- Constitution of India - Art. 14, 32 - Service law.
Pension - One Rank One Pension-OROP - Legitimate
Expectation - Invocation of - Held: Doctrine of legitimate
expectations can be invoked if a representation made by a public
body leads an individual to believe that they would be a recipient
of a substantive benefit - Doctrine of legitimate expectations emerges
as a facet of Art. 14 - However, in the present case, there was no
concrete government policy in existence prior to 07.11.2015 - There
existed only certain assurances - These assurances were also to
the effect that OROP has been accepted in principle - Implementation
was yet to be worked out.
Pension - One Rank One Pension - Concept and genesis of
- Policy and Principles - Discussed.
Administrative Law: Policy Decisions - Scope of judicial
review - Held: Adjudication cannot serve as a substitute for policy
- 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 - 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 - It is not that this Court will
shy away from setting aside policies that impinge on constitutional
rights - Rather it is to provide a cle

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 [2022] 9 S.C.R. 885
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INDIAN EX SERVICEMEN MOVEMENT & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 419 of 2016)
MARCH 16, 2022
[DR. DHANANJAYA Y CHANDRACHUD,
SURYA KANT AND VIKRAM NATH, JJ.]
Armed Forces: One Rank One Pension-OROP -
Constitutionality of - Writ petition challenging the manner in which
the OROP policy for ex-servicemen of defence forces has been
implemented by the Union of India through a letter dated 07.11.2015
issued to the Chiefs of three defence forces - Letter defining OROP
as the payment of uniform pension to armed services personnel
retiring in the same rank with the same length of service, irrespective
of the date of retirement; that OROP aims to bridge the gap between
the rate of pension of current and past pensioners at periodic
intervals - Petitioners case that in the course of implementation,
the principle of OROP has been replaced by 'one rank multiple
pensions' for persons with the same length of service; that the initial
definition of OROP was altered by the UOI and, instead of an
automatic revision of the rates of pension, where any future
enhancement to the rates of pension are automatically passed on to
the past pensioners, the revision now would take place at periodic
intervals, is arbitrary and unconstitutional - Held: There is no
constitutional infirmity in the OROP principle as defined by the
communication dated 07.11.2015 - Definition of OROP is uniformly
applicable to all the pensioners irrespective of the date of retirement
- Cut-off date 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 - Such a
decision lies within the ambit of policy choices - There was no
conscious policy decision on the part of the Union Government on
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the modalities for implementing OROP until the communication dated
07.11.2015 came into being, and thus, the communication of
07.11.2015 cannot be invalidated on the ground that it infringed
the 'original understanding' of OROP - Expression 'automatically
passed on' cannot be construed as a commitment with reference to
any period of time for the computation of benefits - Decision of the
Central Government to revise the pension every five years cannot
be held to violate the precepts underlying Art. 14 - Policy decision
- Constitution of India - Art. 14, 32 - Service law.
Pension - One Rank One Pension-OROP - Legitimate
Expectation - Invocation of - Held: Doctrine of legitimate
expectations can be invoked if a representation made by a public
body leads an individual to believe that they would be a recipient
of a substantive benefit - Doctrine of legitimate expectations emerges
as a facet of Art. 14 - However, in the present case, there was no
concrete government policy in existence prior to 07.11.2015 - There
existed only certain assurances - These assurances were also to
the effect that OROP has been accepted in principle - Implementation
was yet to be worked out.
Pension - One Rank One Pension - Concept and genesis of
- Policy and Principles - Discussed.
Administrative Law: Policy Decisions - Scope of judicial
review - Held: Adjudication cannot serve as a substitute for policy
- 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 - 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 - It is not 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 - One Rank One Pension-OROP is
itself a matter of policy and it was open to the makers of the policy
to determine the terms of implementation - Policy is of course
subject to judicial review on constitutional parameters, which is a
distinct issue.
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Disposing of the writ petition, the Court
HELD: 1. There is no constitutional infirmity in the OROP
principle as defined by the communication dated 7 November
2015. (i) 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; (ii) The cut-off date 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. Undoubtedly, the Union Government had
a range of policy choices including taking the minimum, the
maximum or the mean or average. The Union government
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; (iii) While no legal or constitutional mandate of
OROP can be read into the decisions in Nakara's case and SPS
Vains's case, varying pension payable to officers of the same rank
retiring before and after 1 July 2014 either due to MACP or the
different base salary used for the calculation of pension cannot
be held arbitrary; and (iv) Since the OROP definition is not
arbitrary, it is not necessary to undertake the exercise of
determining if the financial implications of the scheme is negligible
or enormous. This Court accordingly orders and directs that in
terms of the communication dated 7 November 2015, a re-fixation
exercise shall be carried out from 1 July 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. [Paras 49 and 51][942-D-H; 943-A-C, E]
2.1 The features of the policy communication of 7 November
2015 need to be noticed. First, it contains the decision of the
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
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Indian government to implement OROP for ex-servicemen.
Second, it specifies the date with effect from which the decision
would be implemented, namely, 1 July 2014. Third, it embodies
the understanding that OROP implies the payment of uniform
pension to defence personnel retiring in the same rank with the
same length of service regardless of the date of retirement.
Fourth, it emphasises the need to bridge the gap between the
rates of pension of current and past pensioners at "periodic
intervals". The analysis of the underlying document indicates that
while a decision to implement OROP was taken in principle, the
modalities for implementation were yet to be chalked out. There
was no conscious policy decision on the part of the Union
Government on the modalities for implementing OROP until the
communication dated 7 November 2015 came into being. The
communication of 7 November 2015 cannot be invalidated on
the ground that it infringed the 'original understanding' of OROP.
A hierarchy in law exists between statutes and rules-a statutory
provision will have precedence over delegated legislation if the
latter conflicts with the former. Similarly, executive instructions
cannot override a statute or rules made in pursuance of a statute.
But in the present case the entire canvas is governed by a policy.
The terms for implementing the policy were specified on 7
November 2015. Hence, that element of the policy cannot be
challenged on the notion that there is an inflexible notion of OROP
couched in an original understanding. OROP is itself a matter of
policy and it was open to the makers of the policy to determine
the terms of implementation. The policy is of course subject to
judicial review on constitutional parameters, which is a distinct
issue. [Paras 23 and 25][917-E-F; 918-E-H; 919-A]
1.3. The central limb of the submission of the petitioners is
that a revision of OROP should be automatic. The Union
government has submitted that besides lacking any prior
precedent, in terms of the practice governing pay scales, pensions
and other financial emoluments of government servants, automatic
revision would be impossible to implement. Quite apart from the
above consideration, it is evident that the three documents which
have been relied upon by the petitioners namely (i) the Koshyari
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Committee Report; (ii) the minutes of the meeting chaired by
the Defence Minister on 26 February 2014; and (iii) the
communication dated 26 February 2014 to CGDA underscore that
"any future enhancement in the rates of pension to be
automatically passed on to the past pensioners". The expression
"to be automatically passed on" immediately follows upon the
words "any future enhancement in the rates of pension". When
read together contextually, it signifies that the rates of pension
would be passed on to past pensioners without any administrative
impediments. The expression 'automatically passed on' cannot
be construed as a commitment with reference to any period of
time for the computation of benefits. The manner in which and
the period over which revisions should take place of pensions,
salaries and other financial benefits is a pure question of policy.
The decision of the Central Government to revise the pension
every five years cannot be held to violate the precepts underlying
Article 14. [Para 37][931-E-H; 932-A]
1.4. As opposed to the factual matrix in Nakara, where the
liberalised pension scheme was not made applicable to employees
who had retired prior to the cut-off date, in this case the OROP
principle is applicable to all retired army personnel, irrespective
of the date of retirement. The cut-off date is only prescribed for
determining the base salary used for computing the pension.
While for those who retired on or after 2014, the last drawn salary
is used for computing the pension; for those who retired prior to
2014, the average of the salary drawn in 2013 is used. This policy
only seeks to protect those who retired before 2014 since the
last drawn salary of the prior retirees might be too low and
incomparable to the pay of the 2014 retirees. Moreover, if the
maximum salary drawn is to be used as the base value instead of
taking the average salary, an additional outlay of Rs 1,45,339.34
crores would be incurred. The executive is therefore, well within
its limits to prescribe a policy keeping in view the financial
implications. [Para 40][934-D-G]
DS Nakara v. Union of India 1983 ( 2 ) SCR 165 :
1983 ( 1 ) SCC 305- distinguished.
1.5 The canvass which is sought to be traversed in these
proceedings under Article 32 of the Constitution trenches upon
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
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a domain which is reserved for executive policy. Adjudication
cannot serve as a substitute for policy. 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. Further, 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. In this regard, the policy which has been adopted
by the Union Government is evaluated. The policy of OROP
adopted by the Union Government stipulates thus: (i) The
benefits will be effective from 1 July 2014; (ii) Pensions of past
pensioners would be refixed on the basis of the pension of retirees
of calendar year 2013; (iii) Pension for all pensioners would be
protected; and (iv) In future, the pension would be refixed after
every five years. [Paras 46 and 47][940-H; 941-A, C-D]
1.6 The principles governing pensions and cut-off dates can
be summarised as follows: (i) All pensioners who hold the same
rank may not for all purposes form a homogenous class. For
example, amongst Sepoys differences do exist in view of the
MACP and ACP schemes. Certain Sepoys receive the pay of the
higher ranked personnel; (ii) The benefit of a new element in a
pensionary scheme can be prospectively applied. However, the
scheme cannot bifurcate a homogenous group based on a cut-off
date; (iii) The judgment of the Constitution Bench in Nakara
(supra) cannot be interpreted to read the one rank one pension
rule into it. It was only held that the same principle of computation
of pensions must be applied uniformly to a homogenous class;
and (iv) It is not a legal mandate that pensioners who held the
same rank must be given the same amount of pension. The
varying benefits that may be applicable to certain personnel which
would also impact the pension payable need not be equalised
with the rest of the personnel. [Para 48][941-G; 942-A-C]
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Kalpana Mehta v. Union of India (2018) 7 SCC 1 :
[2018] 4 SCR 1- followed.
Union of India v. SPS Vains [2008] 13 SCR 257 : 2008
(9) SCC 125- distinguished.
State of Arunachal Pradesh v. Nezone Law House (2008)
5 SCC 609 : [2008] 5 SCR 948; Col. B.J Akkara (Retd.)
v. Government of India (2006) 11 SCC 709 : [2006]
7 Suppl. SCR 58; Indian Ex-Services League v. Union
of India AIR 1991 SC 1182 : [1991] 1 SCR 158; KL
Rathee v. Union of India SLJ 1997 (30 207); Suchet
Singh Yadav v. Union of India (2019) 11 SCC 520 :
[2018] 2 SCR 752; State of Jharkhand v. Brahmputra
Metallics Ltd., Ranchi 2020 SCC OnLine SC 968;
Union of India v. Balbir Singh Turn (2018) 11 SCC 99
: [2017] 12 SCR 421- referred to.
Fuller, L. L., & Winston, K. I. (1978). The Forms and
Limits of Adjudication. Harvard Law Review, 92(2), 353409 - referred to.
Case Law Reference
[2008] 13 SCR 257
distinguished
Para 49
[1983] 2 SCR 165
distinguished
Para 40, 49
[1991] 1 SCR 158
referred to
Para 13
[2018] 2 SCR 752
referred to
Para 13
[2018] 4 SCR 1
followed
Para 17
[2008] 5 SCR 948
referred to
Para 26
[2017] 12 SCR 421
referred to
Para 33
[2006] 7 Suppl. SCR 58
referred to
Para 44
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.419
of 2016.
(Under Article 32 Of The Constitution of India)
Huzefa Ahmadi, Sr. Adv., Balaji Srinivasan, Arunava Mukherjee,
Ms. Garima Jain, Rohan Sharma, Ms. Pallavi Sengupta, Ms. Lakshmi
Rao, Ms. Aakriti Priya, Md. Shahrukh, Prateek Yadav, Suhail Ahmed,
Advs. for the Petitioners.
N. Venkataraman, ASG, Ms. Priyanka Das, Akshay Amritanshu,
Apoorv Kurup, Rajat Nair, Ankur Talwar, Shyam Gopal, Ms. Chinmayee
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
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Chandra, A. K. Sharma, Mukesh Kumar Maroria, Raj Bahadur Yadav,
V. Chandrasaekara Bharathi, S. Ram Narayan, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
A. Factual Background ......................................................3*
B. Submissions of Counsel ............................................. 11*
C. Analysis .........................................................................24*
C. 1 Concept and genesis of OROP ..............................26*
C. 2. Plea of Discrimination ............................................38*
C.2.1 ACP-MACP ............................................................44*
C.2.2 Financial Implications ...........................................46*
C.2.3 Average to Maximum............................................48*
C.2.4 Periodic revision every five years ......................49*
A. Factual Background
1. The petition under Article 32 of the Constitution addresses a
challenge to the manner in which the "One Rank One Pension"1policy
for ex-servicemen of defence forces has been implemented by the first
respondent2 through a letter dated 7 November 2015 issued to the Chiefs
of three defence forces. The letter defines OROP as the payment of
uniform pension to armed services personnel retiring in the same rank
with the same length of service, irrespective of the date of retirement.
OROP, in terms of the letter, aims to bridge the gap between the rate of
pension of current and past pensioners at periodic intervals. The
petitioners contend that in the course of implementation, the principle of
OROP has been replaced by 'one rank multiple pensions' for persons
with the same length of service. The petitioners contend that the initial
definition of OROP was altered by the first respondent and, instead of
an automatic revision of the rates of pension, the revision now would
1 "OROP"
2 Also referred as the "Union Government"
* Ed. Note : Pagination is as per the original Judegment.
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take place at periodic intervals. The petitioners submit that the deviation
from the principle of automatic revision of rates of pension, where any
future enhancement to the rates of pension are automatically passed on
to the past pensioners, is arbitrary and unconstitutional under Articles 14
and 21 of the Constitution.
2. The salient facts giving rise to the proceedings need to be stated.
The demand for OROP by ex-servicemen of the defence forces was
initially examined by Parliament in 2010-11. On 19 December 2011, the
Rajya Sabha Committee on Petitions3 presented its 142nd Report on the
Petition Praying for Grant of OROP to Armed Forces Personnel4. The
Committee recommended the implementation of OROP. The Committee
defined OROP as a uniform pension to be paid to armed forces personnel
retiring in the same rank with the same length of service, irrespective of
their date of retirement, where any future enhancements in the rates of
pension were to be automatically passed on to the past pensioners.
The Committee noted that OROP was being implemented till 1973
whenthe Third Central Pay Commission took a decision to revoke it.
The relevant observations/recommendations of the Koshyari Committee
are extracted below:
"11.The Committee takes note of the fact that a sum of Rs 1300
crores is the total financial liability for the year 2011-12 in case
OROP is implemented fully for all the defence personnel in the
country across the board. The Committee is informed that out of
this, 1065 crores would go to retirees belonging Post Below Officer
Ranks (PBOR) while the Commissioned Officers would be getting
the remaining i.e. 235 crores. The Committee feels that 1300 crores
is not a very big amount for a country of our size and economy for
meeting the long pending demand of the armed forces of the
country. The Committee understands that this ·1300 crores is the
expenditure for one year which might increase at the rate of 10
percent annually. Even if it is so, the Committee does not consider
this amount to be high, keeping in view the objective for which it
would be spent. Needless for the Committee to point out here
that our defence personnel were getting their pension and family
pension on an entirely different criteria before the Third Central
Pay Commission came into force. Till the recommendations of
3 "Koshyari Committee"
4 "Koshyari Committee Report"
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
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the Third Central Pay Commission were implemented for the
defence personnel of the country, they were satisfied and happy
with dispensation meant fortheir pension/family pension.
....
11.4 ...the Committee feels that the decision of the Government
to bring our defence personnel on the pattern of the civilians with
regard to their pay, pension, etc. (from Third Central Pay
Commission onwards) is not a considered decision which has
caused hardship to the defence personnel and has given birth to
their demand for OROP. The Committee understands that before
the Third Central Pay Commission, the defence personnel were
getting their pay/ pension on the basis of a separate criteria
unconnected with the criteria devised for the civilian work force.
That criteria acknowledged and covered the concept of OROP
which has been given up after the Third Central Pay Commission.
11.5 The Committee is not convinced with the hurdles projected
by the Ministry of Defence (D/o Ex-Servicemen Welfare) in
implementing of OROP for defence personnel. They have
categorized the hurdles into administrative, legal and financial.
The financial aspect has already been dealt with by the Committee.
So far as the administrative angle is concerned, the Committee is
given to understand that all the existing pensioners/ family
pensioners are still drawing their pension/family pension based
upon the lawfully determined pension/family pension. In that case,
revision of their pension/family pension, prospectively, as a one
time measure should not pose any administrative hurdle. So far as
the legal aspect is concerned, the Committee is not convinced by
the argument put forth against the implementation of OROP
because the pension/family pension is based upon the service
rendered by personnel while in service and comparison of services
rendered during two sets of periods does not seem to be of much
relevance. If seen from a strict angle, in each set of periods, the
army officer performed the duties attached to his post and it may
not be proper to infer that the officers who served at a later period
performed more compared to the officers of earlier period. On
the contrary, facts tilt towards treating past pensioners/family
pensioners at par with the more recent ones."
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3. On 17 February 2014, the Finance Minister announced in his
Budget Speech that the Union Government had in principle accepted
OROP and it would be implemented prospectively from financial year
2014-15. The Finance Minister stated that an amount of Rs 500 crores
has been transferred to the Defence Pension Account to meet the
budgetary expense. On 26 February 2014, the Defence Minister chaired
a meeting to discuss the implementation of OROP.The Defence
Secretary, the Secretary to the Department of Ex-Servicemen Welfare,
the Controller General of Defence Accounts5, the three Vice Chiefs of
Staff, and senior officers of the Service Headquarters along with the
concerned Joint Secretaries attended the meeting. The minutes of the
meeting refer to OROP as a uniform pension to be paid to armed forces
personnel that are retiring in the same rank with the same length of
service, irrespective of the date of retirement, where any future
enhancements in the rates of pension are to be automatically passed on
to the past pensioners. The fourth respondent, CGDA, was directed to
take necessary steps to give effect to the decision of implementing OROP
in consultation with the three defence forces, and the first and second
respondents.
4. By its letter dated 26 February 2014 the first respondent directed
CGDA to work out the modalities of executing OROP. However, OROP
was not implemented at the time. On 10 July 2014 in his Budget Speech
for the year 2014-2015, the Finance Minister reaffirmed the Union
Government's commitment to implement OROP and a further sum of
Rs 1000 crores was set apart to meet the requirement. In a written reply
to a Member of Parliament on 2 December 2014, the Minister of State
for Defence stated that OROP implies that a uniform pension is paid to
retired servicemen having the same rank with the same length of service,
irrespective of the date of retirement, with any future enhancement in
the rates being passed on to the past pensioners automatically.
5. The above sequence of events has been emphasised by the
petitioners to highlight that OROP always entailed an automatic revision
of the rates of pension to bridge the gap in the pension being received by
past and current pensioners. However, according to the petitioners, a
letter dated 7 November 2015 of the Joint Secretary of the first respondent
to the Chiefs of three defence forces introduced a revised definition of
OROP, where the revision between the past and current rates of pension
was to take place at periodic intervals. Besides stating that OROP would
5 "CGDA"
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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take effect from 1 July 2014, the letter also highlighted the salient features
of OROP:
"3. Salient features of the OROP are as follows:
i. To begin with, pension of the past pensioners would be re-fixed
on the basis of pension of retirees of calendar year 2013 and the
benefit will be effective with effect from 1.7.2014.
ii. Pension will be re-fixed for all pensioners on the basis of the
average of minimum and maximum pension of personnel retired
in 2013 in the same rank and with the same length of service.
iii. Pension for these drawing above the average shall be protected.
iv. Arrears will be paid in four equal half yearly instalments.
However, all the family pensioners including those in receipts of
Special/Liberalized family pension and Gallantry award winner
shall be paid arrears in one instalment.
v. In future, the pension would be re-fixed every 5 years."
6. The above definition of OROP was also adopted by the first
respondent while implementing OROP by its notification dated 14
November 2015. The rates of pension were now to be revised every
five years.The notification also constituted a Committee headed by Justice
L. Narasimha Reddy to examine and make recommendations on the
terms of reference received by the Union Government on measures to
remove anomalies that may arise in the implementation of the letter
dated 7 November 2015.
7. By its letter dated 25 January 2016 to the Defence Minister the
first petitioner objected to the revision of the definition of OROP
highlighting that the deviation from the automatic revision of rates of
pension to a revision at periodic intervals changed the accepted meaning
of OROP. It was submitted that the revised definition would deprive the
past pensioners of equal monetary benefits, which militated against the
principle of OROP. The letter urged that the Committee headed by Justice
L. Narasimha Reddy would be 'inapt' in making recommendations on
the issue of OROP since the terms of reference took into account the
revised definition of OROP. The letter urged the Defence Minister to
revert to the original definition of OROP where the pension of past
pensioners would be automatically revised pursuant to any future
enhancements. The first petitioner also wrote to Justice L. Narasimha
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Reddy on 25 March 2016 highlighting the anomalies that will result from
the implementation of the revised definition of OROP.
8. Meanwhile, the first respondent issued a letter to the Chiefs of
the three defence forces on 3 February 2016 regarding the implementation
of OROP. On 29 October 2016, the first respondent issued a letter to the
Chiefs of the three defence forces revising the pension of pre-2016
defence forces' pensioners and family pensioners. The existing pension
was to be revised upwards by implementing the basic pension drawn on
31 December 2015 by a multiplication factor of 2.57. The petitioners
have highlighted that owing to the periodic revision of the pension rate
according to the revised definition, the pension of many ex-servicemen
would not be updated to the 31 December 2015 level.
9. A post-facto approval of the Union Cabinet for implementation
of OROP was received on 6 April 2016 and was conveyed by the Cabinet
Secretariat on 7 April 2016. The proposal, which was approved by the
Union Cabinet is as follows:
"9.1. Ex-post facto approval of the Cabinet is solicited for
implementation of One Rank One Pension as under.
9.1.1 The benefit will be given with effect 1st July, 2014.
9.1.2 Pension will be re-fixed for pre 01.07.2014 pensioners retiring
in the same rank and with the same length of service as the
average minimum and maximum pension drawn by the retirees in
the year 2013. Those drawing pensions above the average will be
protected.
9.1.3 The benefit would also be extended to family pensioners
including war widows and disabled pensioners.
9.1.4 Personnel who opt to get discharged henceforth on their
own request under Rule 13(3)1(i)(b), Rules 13(3)1(iv) or Rule
16B of the Army Rule 1954 or equivalent Navy or Air Force
Rules will not be entitled to the benefits of OROP. It will be
effective prospectively.
9.1.5. Arrears will be paid in four half-yearly instalments.
However, all the family pensioners including those in receipt of
Special/Liberalized family pension and Gallantry award winners
shall be paid arrears in one instalment.
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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9.1.6 In future, the pension would be re-fixed every 5 years.
9.1.7. Constitution of Judicial Committee headed by Justice L
Narasimha Reddy, Retd. Chief Justice of Patna High Court on
14.12.2015 which will give its report in six months on references
made by the Government of India."
10. Aggrieved by what the petitioners contend is a revision in the
definition of OROP, the petition under Article 32 was instituted before
this Court on 9 June 2016. On 1 May 2019, this Court took note of the
anomalies which were highlighted on behalf of the petitioners:
"Fixation of pension as per calendar year 2013 instead of FY
2014: Fixation of pension as per calendar year 2013 would result
in past retirees (pre 2014) getting less pension of one increment
than the soldier retiring after 2014.
Fixation of pension as mean of Min and Max pension: Fixing
pension as mean of Min and Max pension of 2013 would result
different pensions for the same ranks and same length of service
and the past retiree would get 1.5 increment lesser on account of
such fixation.
For example, if 8(i) and (ii) are implemented, two soldiers who
have served for same length of years, holding the same rank will
draw different pension. A Sepoy (Group Y) who retired prior to
31 Dec 2013 will get Rs.6665 p.m. and another Sepoy (Group Y)
who retired on and after 1 Jan 2014 would get Rs 7605 p.m.
Further, onaccount of such implementation, a higher rank Naik
soldier whoretired before 31 Dec 2013 would draw a lesser pension
of rs. 7170 p.m., than a junior rank Sepoy who retired after 1 Jan
2014 as his pension would be Rs.7605. This fact is illustrated by a
tabular chart which is enclosed. (See Pg.1, CC).
Therefore, implementation of this new definition of OROP defeats
the very principle of OPOP by creating a class within a class of
the same officers, which in practice tantamounts to one rank
different pensions. This is also contrary to the judgment by this
Hon'ble Court in Union of India v SPS Vains, {2008) 9 SCC 125.
Another fallacy in the new definition of OROP which detracts
from the principle of OROP is:
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(iii) Pension Equalization every five years
It is submitted that Pension equalization every five years would
result in the grave disadvantage to the past retirees."
This Court directed the first respondent to scrutinise the grievances
raised by the petitioners. Pursuant to the order, the first respondent
filed an affidavit on 5 December 2019 submitting that after
extensive consultations with experts and ex-servicemen, the Union
Government decided that it is practical and feasible to revise the
pension under OROP every five years. The average of the
minimum and maximum pension in calendar year 2013 wasdecided
to be taken as the revised pension of all pensioners retiring in the
same rank and with the same length of service. At the same time,
the first respondent chose to protect the pensioners who were
drawing pension above the average. Thus, it was submitted, that
the implementation of OROP has benefitted the past pensioners,
though the amount of financial benefit varies. It was urged on
behalf of the first respondent that revising the rate of pension
every year would cause administrative difficulty and is
impracticable to implement.
11 Since the grievance of the petitioners remained unaddressed, it
falls on this Court to adjudicate upon whether the revision of the definition
of OROP and its implementation in the present form, is arbitrary and
violative of Articles 14 and 21 of the Constitution. Before we analyse
the rival contentions, we advert to the submissions of the counsel.
B. Submissions of Counsel
12. Mr Huzefa Ahmadi, Senior Counsel, appeared for the
petitioners. The following submissions have been made on behalf of the
petitioners during the course of the proceedings:
(i)
The letter issued by the Joint Secretary of the first
respondent to the Chief of Air Staff on 7 November 2015
arbitrarily alters the definition of OROP6 by bridging the
gap between the rates of pension of the current and the
past pensioners at 'periodic intervals' and not 'automatically'.
This definition is contrary to the definition arrived at in the
meeting held on 26 February 2014 and the subsequent
executive order issued on the same day;
6 "new definition"
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
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(ii)
The implementation of the scheme with the new definition
would lead to a situation where the pension drawn by an
ex-serviceman who retired on an earlier date would be less
than the pension drawn by an ex-serviceman who retired
in 2014, until such time that a 'periodic' review is conducted
to correct the anomaly;
(iii)
The new definition creates a class within a class where exservicemen who retired with the same rank and same length
of service would receive different pensions. In Union of
India v. SPS Vains7, this Courthas held that the creation of
a class within a class is unconstitutional;
(iv)
Even if the differential pay is rectified by a periodic review,
it would cause injustice;
(v)
The effective date of implementation of OROP was already
fixed as 1 April 2014 and this date has been arbitrary refixed to 1 July 2014 by the letter issued by the first respondent
on 7 November 2015;
(vi)
According to the letter dated 7 November 2015, the pension
of the personnel retiring on or after 1 April 2014 will be
fixed based on the last pay drawn on retirement. However,
the pension of soldiers who retired earlier than 2013 would
be fixed on the basis of the pension of the retirees of the
calendar year 2013. This would lead to a situation of one
rank different pension;
Figure 1
7 (2008) 9 SCC 125
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(vii)
The pension of the past pensioners is further lowered by
the re-fixation of pension based on the average of the
minimum and maximum pension of personnel retiring in the
calendar year 2013, as compared to personnel retiring on
or after 1 April 2014. In some cases, a past pensioner who
retired before 2014 receives pension lower than personnel
of a lower rank retiring on or after 2014. For instance, if
the new definition is followed then a Sepoy who retired
prior to 31 December 2013 will get a pension of Rs. 6665
per month while another Sepoy who retired on or after 1
January 2014 would get a pension of 7605 per month.
Extracted below is a chart depicting the anomaly:
Figure 2
Figure 3
INDIAN EX SERVICEMEN MOVEMENT & ORS. v. UNION OF
INDIA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]
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(viii) The difference in the pension as provided in the chart is not
due to the Modified Assured Career Progression8. Even
according to the new definition, all personnel with the same
rank and same length of service must receive the same
pension;
(ix)
The notification issued on 14 December 2015 adheres to
the arbitrary definition of OROP as provided by the letter
issued on 7 November 2015. The terms of reference ofthe
Committee appointed under the notification are also
restricted to the arbitrary new definition of OROP. The letter
issued by the first respondent to the Chief of Army Staff,
the Chief of Naval Staff, and the Chief of Air Staff on 3
February 2016 also defined OROP in new and arbitrary
terms;
(x)
As noted by the Koshyari Committee, after the Sixth Central
Pay Commission, officers from the grade of Lt. Colonel
and above fall within one pay band of Rs 37400 to Rs 67000.
Therefore, defence retirees before 2014 would get pension
with reference to the minimum of the pay bracket,
irrespective of the fact that they held higher posts such as
Major General and Lt. General;
(xi)
All Havildars were granted the honorary rank of Naib
Subedar. They must thus be given the pension of Naib
Subedar;
(xii)
All personnel who retired as Major after thirteen years of
service as Commissioned Officers should be given the
pension of Lt. Colonel since Commissioned Officers now
automatically become Lt. Colonels after thirteen years of
service;
(xiii) All veterans who retired before 2004 as Lt. Colonel should
be given the pension of Colonel since all Commissioned
Officers now automatically retire as Colonel;
(xiv) While the Government defines OROP as a "uniform pension
to be paid to the defence personnel retiring in the same
rank, with the same length of service regardless of the date
8"MACP"
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of retirement", it creates a class within a class based on
the date of retirement;
(xv)
The decision to define OROP in narrow terms is an
executive act which can be judicially reviewed and is not a
policy decision;
(xvi) According to the letter of the Union Government dated 7
November 2015, the pension of past pensioners would be
fixed one and a half year behind even if equalization is done
once in five years;
(xvii) Under the Seventh Pay Commission, the basic pension of
all pensioners is to be arrived at by multiplying basic pension
as on 31 December 2015 by a factor of 2.57. Since the
basic pension of those who retired before 31 December
2013-14 has not been updated to 31 December 2015 (that
is Rs. 7605 per month) but has only been fixed based on
the mean of the 2013 pension, that is Rs. 6665 per month, a
past pensioner will get Rs. 2415 less than an officer with
the same rank and same length of service but who retired
later;
(xviii) The Union Government has stated that after the Seventh
Pay Commission, the basic pension of personnel in the
Colonel and Brigadier ranks will be arrived at by increasing
the multiplication factor from 2.57 to 2.67. However, this
increase has been denied to the past pensioners on the
ground that the benefit will only be given in 2019 after the
periodic equalization as per the new definition;
(xix) The ex-servicemen received the benefit of OROP till the
Third Central Pay Commission.