Armed Forces Tribunal strikes down government policy denying OROP benefits to pre-mature retirees

The officers who took premature retirement fall under three categories – Category A comprises PMR pensioners who retired before July 1, 2014, who have been included for grant of OROP and have no grievances; Category B includes PMR pensioners who retired between July 1, 2014, and November 7, ߟ and Category C covers PMR pensioners retired after November 7, 2015. The AFT petitions fell under Category C.

Till 1973, armed forces personnel had the parity of pension irrespective of date of retirement in a particular rank with the same length of service, popularly known as One Rank One Pension or OROP. However, this was discontinued by the 3rd Pay Commission from 1973 onwards.

After the discontinuance of the OROP scheme, due to disparity in pension, ex-servicemen started airing their grievances and the government was compelled to look into the issue. It was the case of the petitioners that from 1987-2000, despite the reference of OROP in the 5th and 6th Central Pay Commissions, nothing substantial was done. The government promised to bring OROP into effect in 2004.

However, it later declined to grant OROP in 2008 which led to widespread protests and war veterans even returned their medals in support of the cause in 2009. This movement compelled the then government to constitute a 10-member parliamentary committee under the chairmanship of Bhagat Singh Koshiyari known as the Koshiyari Committee, which submitted its report in December 2011.

This was followed by a statement on the floor of the House by the then finance minister on February 17, 2014, and July 10, 2014, on OROP and the minutes of the meeting convened by the then defence minister on February 26, 2014, which mentioned the government’s intention to implement OROP. Thereafter, the then government decided to apply OROP prospectively from the financial year 2014-2015 and the same was notified in February 2014.

The new government that took over in May 2014 issued a policy in November 2015 to implement ‘OROP’. However, in this policy, pre-mature retirees of a certain category were made ineligible for OROP. It was clarified that pre-mature retirees who retired on and after July 1, 2014, onwards will not be granted OROP.

The petitioners had also contended before the AFT that on December 14, 2015, the government constituted a judicial commission under the chairmanship of a retired Chief Justice of the Patna High Court to look into the anomalies of OROP. However, there was no reference to the issue of one category of pre-mature retirees being excluded from getting OROP benefits.

In its judgment, the AFT held that any exclusion only on the basis of a cut-off date to divide an otherwise homogeneous class, i.e. pre-mature retirees, amounts to making a class within a class and is thus legally impermissible being clearly violative of Articles 14 and 16 of the Constitution.

“This categorization/ segregation of the class within a class on the basis of cut-off date would hit by the mandate of Articles 14 and 16 unless it passes the test of reasonable classification (twin test) i.e. firstly the distinction so made should be based on classification founded on intelligible differentia and secondly it has a rationale relationship with the just objective sought to be achieved,” the judgment says.

The AFT said that the Supreme Court, high courts and even this tribunal have held in a series of cases that any classification based on a cutoff date which divides a homogenous class would be legally unsustainable and it is not open for the state to resort to such classification in view of the negative covenant of Articles 14 and 16.

The bench held that Articles 14 and 16 of the Constitution impose a binding obligation on the State in the matter of treating people, similarly situated, on equal footing and prohibits discrimination and the State cannot be absolved of its obligation and liability envisaged under Articles 14 and 16 of the Constitution under the garb of acquiescence, waiver or estoppel.

“The Constitutional mandate imposes a duty on the respondents to act fairly and equitably…… Merely based on the dates as indicated hereinabove, differentiating in the same category of PMR personnel without any just cause or reason and without establishing any nexus as to for what purpose it had been done, we have no hesitation in holding that this amounts to violating the rights available to the PMR personnel under Articles 14 and 16 of the Constitution as well as hit by the principles of law laid down by the Supreme Court in the matter of fixing the cut off date and creating differentiation in a homogeneous class in terms of the judgment of D S Nakara (supra) and the law consistently laid down thereinafter,” the bench said.

Striking down the 2015 policy, the AFT directed that in the matter of grant of OROP benefits to PMR personnel, they be treated uniformly and the benefit of the scheme of OROP be granted to them without any discrimination in the matter of extending the benefit to certain persons only and excluding others.