INDIAN EX-SERVICEMEN MOVEMENT V. UNION OF INDIA (2022)

Case Citation: WP (C) 419/2016

Judges: D Y Chandrachud (CJI), Surya Kant J, Vikram Nath J

Facts:

1. The Petitioners are the retired army personnel herein referred to as the Indian ex-servicemen movement. The army personnel include the Air Force and Navy as well.
2. The Respondents are the Union of India, Ministry of Defense, Ministry of Finance, Controller General of Defense Accounts, Chiefs of Staff Committee.
3. The underlying concept of OROP is to get paid pension equity, which started in 1973 but over the years it took shape as a movement to protect the dignity, honour, equity and justice of the Army personnel.
4. Over the years several schemes were introduced by the Congress government which have extended the gap between the pay scales of the armed forces and the bureaucrats. 
5. It all started with the former Prime Minister of India, Indira Gandhi leading the Congress government to take an ex-parte decision and terminate the OROP, followed by the Manmohan Singh-led government introducing several pay scale upgradation of civil servants and ignoring the Armed forces. Some of the schemes not only uplifted the pay scale of bureaucrats but reduced the pay scale of the Armed forces.
6. During the campaigning of the 2014 general elections, the Prime Minister candidate of BJP Narendra Modi promised to implement OROP and even included the same in their manifesto. But failed to do the same after becoming the Prime minister. The more delays and insincere attitude of the ministers whenever addressing the issue agitated the veterans who have conducted strikes, protests, hunger strikes, etc.,
7. On 7th November 2015 a pen policy addressing the Chief of the Army Staff, Chief of the Naval Staff and Chief of the Air Staff signed by the Joint Secretary of Govt. of India was released stating the salient features of the policy. It further added that the detailed implementation scheme will be sent directly to the pension Disbursing Agencies.
8. The Salient Features covered the method of calculation, the base year and the review system.
9. The Salient Features are as follows: 

• The pension of the past pensioners would be re-fixed on the basis of the pension of retirees of calendar year 2013 and the benefit will be effective with effect from 1.7.2014.
• Pension will be re-fixed for all pensioners on the basis of the average minimum and maximum pension of personnel retired in 2013 in the same rank and with the same length of service.
• Pension for those drawing above the average shall be protected.
• Arrears will be paid in four equal 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.
• In future, the pension would be re-fixed every 5 years.

10. Not satisfied by the policy and its implementation the Ex-servicemen movement has filed a writ petition in front of the Apex Court.

Issues raised 

• Whether Articles 14, 15 and 21 violated the pen policy.
• Whether the Periodic pension review system discriminates against the old retirees.
• Whether the government is bound by the comments made in parliament.

Contention

Contentions from Petitioner’s side:

1. The main argument of the petitioners is regarding the main foundation of OROP where senior rank soldiers must never draw a pension less than a junior rank soldier, which was violated in the salient features in the pen policy itself. Each instance is raised individually during arguments.
2. The petitioners argued that the pension was fixed as the average of minimum and maximum pension which leads to officers or soldiers drawing two or more pensions even though they are in the same rank and have the same length of service.
3. The petitioners demanded an automatic review system instead of a periodic review system i.e. in this case for every 5 years.
4. The finance minister has given an overview of the scheme in one of the parliament sessions before its implementation but the implemented one is not the same. The petitioner’s question regarding the same. 
5. A counter affidavit was submitted by the petitioners in which they expressed how the respondents failed to address the anomalies in the differential pension of same-ranked soldiers and further quoted the case of Union of India v. SPS Vains (2008) where it is stated that creating a class within a class is unconstitutional and a higher rank soldier can never draw a pension lesser than a lower rank soldier.
6. The petitioners quoted the definition issued by the Koshyari committee on OROP and stated that it serves their interest at the best level and thereby implied that the respondents must also follow the same.

Contentions from the Respondent’s side: 

1. The respondents stated using the average method the soldier receiving below average pension is brought up to an average position and the one receiving above average pension is protected. 
2. To which the respondents argued that to show honour for the great service rendered by the veterans the review system is set up for 5 years, unlike the civil servants whose periodic review is 10 years. Adding to that point they stated that the automatic review system is impossible and legally unsustainable.
3. Regarding the comments made in the parliament the union government stated that it is a well-stated principle that any statements in the ministry or in the parliament do not make it a policy or become a force of law. 
4. With respect to the differences in the pension even after implementation of OROP the respondents claimed that it is due to a pre-existing scheme called MACP, and further provided evidence to prove that not everyone is qualified for the pre-existing scheme as it requires a certain amount of service.
5. The respondents quoted the definition of Koshyari Committee as well and expressed that the uniform pension that will be provided is given to those who are in the same rank, with the same length of service, irrespective of the date of retirement at periodic intervals. So those who are not eligible for MACP will thereby receive less pension than others even though they are in higher rank or the same rank as the same length of service is missing. 

Rationale

1. Regarding the violation of Articles: The Court stated that the main reason which is causing a difference in the pension receivable is due to the Modified Assured Career Progressive Scheme(MACP) which offers an increase in the pay grade of the officers who have served for 8,16 and 24 years without any promotion. As the OROP pension is calculated by the average of the minimum and maximum of the paygrade or the last drawn pay there would be differences in the pensions receivable. For the sake of the OROP, MACP can never be revoked.
2. Base year 2013: According to the scheme everyone who has retired prior to January 1st 2014 would be entitled to receive pensions with 2013 as their base year on the basis of average and those who have retired after 1st January 2014 would be entitled to pension based on their last drawn salary. The reason is well stated in the policy itself.
3. Automatic review system: After going through the arguments and the evidence thus provided it became certain to the apex court that there are two sets of people, the one in need of an automatic system and the one who doesn’t need it. So to introduce such a comprehensive system only for certain sections of people deemed to be unfit.
4. SPS Vains case: The Apex court stated that the factual background of this case is quite different. It deals with officers occupying the same rank but different retirement dates drawing different pensions, which is not relevant to the present case. 
5. A policy cannot be struck down merely because it is not as per their original understanding. As it is a policy the policy makers have the freedom of the liberty to choose how it can be implemented. Hence it is non-discriminatory

Defects in law:

• Neither in the Indian Constitution nor any other provisions discussed regarding ex-parte decisions. Taking of such decisions during cases like money laundering or preventing unlawful activities are mentioned but there are no such provisions where a Union Govt revokes an existing scheme without consulting other parties and without stating any reasonable reason.
• Article 309 of the Indian Constitution deals with the recruitment and other conditions of public servants. The public servants occupy various executive positions in accordance with this Article including in the Ministry of Defence. They are responsible for supporting the soldiers but mostly they turn a blind eye. Unlike other countries, most of the bureaucrats in the MOD are civil servants which makes it difficult for the soldiers to explain their issue and to the executives to understand it and request the same.  

Inference

The Apex court in its judgment has quoted the description given by Lon Fuller on public policy issues that come up with adjudication issues as ‘polycentric problems’. This alone is enough to imply that all the factors surrounding such incidents are interdependent and interlocked with each other and suitably addressed by the elected representatives. The Apex Court exempting itself and declaring that the policy can be made with liberty by the Government doesn’t imply that the court is turning a blind eye. Instead, it emphasized that most of the policy questions which are complex in nature require democratic dialogue and the court is functioning in a democratic society.  

The Apex court has duly heard arguments from both parties and given a balanced judgment with reasonable reasoning. This remains one of those decisions where the court has showcased that all the wings are interdependent yet independent. A judgment is given solely based on the hard-core facts and the weightage of the evidence provided. On a further note the protectors of the country i.e., the soldiers were deeply affected by the unnecessary bureaucratic interventions and ex parte decisions as well as the non-interest of Governments over the armed forces. The issue was raised by the veterans of the Indian Army, the legislative formed a policy, the executive implemented it and the judiciary solved the issue based on the provided evidence and whatever can be done in its purview.  

Basavaraju Saroja Kumari 

Mahatma Gandhi Law College