Thread by @barandbench

Supreme Court Bench of Justice DY Chandrachud, Justice Surya Kant and Justice Vikram Nath are hearing the ex-servicemen's plea to implement "One Rank One Pension" in the Defence Forces

ASG Venkataraman: they have raised 3 contentions
1. they say it should be automatic, not periodical
2. review once in 5 years is not acceptable
3. third is a chart which i will now show

ASG : The chart shows that you should take the scale and not go by the mean.

DYC, J : you've taken the mean but no one is brought down

ASG agrees

ASG is referring to a tabular chart in which he says a comparison had been made between sepoys who retired after 2015 and before 2015

Nath J : suppose someone retired in 1990 and ACP came in 2006, rank will remain but he will get a different scale of pay because yours is a twin condition : same rank and same service

ASG : my friends are comparing MACP with non-MACP

DYC, J : according to them you're giving MACP retrospectively since 2006 but you say mathematical equality is not possible

ASG: yes

Nath J : so your OROP will not apply to soldiers ehi retired after 2014?

ASG : upto a grade. I will take instructions on this particular point

Nath J : notifications says it applies to employees retiring after 1/7/2014

Nath J : you said same rank and same length of service. Now same length of service at same rank or at different levels ?

ASG: this is a very valid question. Two MACP sepoys will get same but not a Non-MACP sepoy

Kant : OROP is a benefit that comes after service period and MACP comes during service..We want to know how many persons have gotten MACP. You are saying persons who have MACP are a different specific class

ASG : who has qualified and who hasn't qualified for MACP is not the subject matter of the writ

Kant J : but it is important for OROP. If 80% sepoys get MACP, then will they get OROP. It seems MACP is a barrier for OROP

ASG reads from reply affidavit .
"... Comparison in table is between non-comparables... "
" There are 5 factors we have taken to show they must be equal in all 5 paraneters"

DYC J : we have to deal with the fact that there is no statutory definition of OROP

DYC J : their contention is regarding the discrepancy between parliamentary discussion and policy which ultimately came. The question is whether that amounts to violation of Article 14. You should have gone further.

DYC J : "Your hyperbole on the policy presented a much rosier pic than what is actually given "

#OROP

Kant J : ASG , under your rules of business, who is the competent authority who has taken this decision

ASG: it's a decision taken by union cabinet which resulted in the notification

DYC J : and it is approved by cabinet?

ASG: yes

Kant J : you were fully aware that MACP existed when you issued the notification. You had all the data so you knew that there would be a very minute benefit to ex-servicemen

DYC J : as I said OROP is not a statutory term, it is a term of art

ASG : yes, it is a term of art which we have defined with nuance and without any arbitrariness

Kant J : what they are saying is that by connecting OROP with MACP you have reduced the benefits substantially. The principle of OROP gets defeated

ASG : if there is a serviceman who has MACP and one who didn't, both fall under OROP

ASG : there is no constraint, limitation, mandate. This is a progressive way and maybe 5 years later we will re formulate.... We have already spent more than 50,000 cr rs.

Kant J : your statement is one rank one pension. Is there anything wrong in translating that into policy?

DYC J : you could not have brought down people above the mean. You have protected them. But what you have done is that people below the mean have only been brought up to the mean and not to the highest amount.

ASG says he will read from judgements to deal with the contention if the petitioners that pension should be calculated based on 2014 salaries and not 2013 salaries

ASG: the petitioners assumption that all of us decided internally to apply the case of SPS Vains v UoI is both factually and legally incorrect.... That case dealt with different circumstances

ASG refers to the Nakara case

DYC J : actually Nakara has now been substantially explained in a large number of cases. Nakara was a liberalisation of an existing scheme and not a new scheme. When there is a new scheme, this court has said Nakara has no application

Kant J : the first figure you should have brought on record was that when MACP was introduced how many got benefit of the scheme and how many are eligible to get benefit of OROP.

ASG: we have submitted comprehensive affidavit with defense budget, amounts allocated to everything

ASG also referred to the judgement of the SC in Krishna Kumar's case. He spoke of the difference between legal obligation and moral obligation as per that judgement

ASG continues reading from a compilation of judgements that was handed over to the bench

ASG now refers to SP Gupta's case. He mentions that the judgement says confidentiality applies to, among others, minutes leading upto policy making.

Kant J : do you think in today's context you want to deprive us of the decision making process. How can you claim confidentiality of documents your clerks, assistants, etc have seen?

ASG : if your lordships ask us to, we will certainly give it.

DYC J : your point is discussion is not reflective of policy that is made. This judgement will not help you there

ASG now refers to judgements regarding areas where judicial review is not applicable

ASG reads from a judgement to make the point that a comment made by a politician even on the floor of the parliament is not binding unless it is reflected in the policy.

ASG sums up contentions of petitioners and the Centre's responses regarding cut off date, period of review
ASG : Our humble submission is that this is not arbitrary or discriminatory at all.

Sr Adv. Huzefa Ahmadi (for the petitioners) : the sum and substance of their arguments is that they are not inclined to give OROP but they will give one rank different pensions.

Ahmadi : the headline is OROP. My friend said it could have been given at 10 years but they chose 5 years.
Ahmadi: what is the morality of a statement made by a minister on the floor of the house.
Ahmade: where in their policy decision does it say MACP will be eschewed from OROP

DYC J : we want you to disclose 3 things
1.the percentage of beneficiaries of MACP
2. When finance minister made the comments on the floor of the house, was there a policy finalised that was the basis for it.
3. What is the financial burden

DYC J : I will add a fourth. Is there any specific exclusion on MACP in the policy. Take instructions. You've made a commitment.

ASG : by monday my Lord

Ahmadi : they can't go beyond their policy now my Lord.

DYC : they should say if there was exclusion in decision on 7 nov

Ahmadi : I can prove conclusively that it was not

DYC J : but we have to hear from them. We cannot issue a mandamus to implement a statement made in Parliament. We will be turning 70 years of legal precedents if we do that

DYC J : we will come back after lunch.
ASG : I have some time constraints at 2. May I be excused and please could you give time till next Wednesday to submit documents.
DYC J : we will dictate a short order to that effect

Court will resume at 2pm