Date: Sunday, 6 September, 2009, 2:03 PM
My Dear VK,
I have gone through your write up on 'OROP'. It made an interesting reading. But permit me to say that your conclusions from the Apex Court judgments are not correct.
Firstly, the question before the Constitunal Bench of the Apex Court in Nakra's case was not that of 'OROP'.The question was whether it was proper to lay down a cut-off date and say that the liberalised pension formula for a retired Goverment employee would be applicable only to those who retired after the cut-off date and and not to those retired prior to the cut off date. The Apex Court replied in the negative. Earlier, the pension was worked out on the bases of the average pay drawn by a Govt empolyee in the last 36 months of service. The liberalised formula reduced the period from last 36 months to last 10 months of service but laid down that this would be applicable only to those retired after the cut-off date. The Apex Court directed the Govt to make it applicable to all Govt employees irrespective of their date of retirement. The famous quote from the said judgment was "Govt cannot pick up a date from the hat to say those retiring after the date would get the benefit and those retiring before it won't".
The last statement from the Apex Court judgment was misunderstood by many, including IESL (Indian Ex-Servicemen League) and they thought the judgement propagated 'OROP'. It did not. IESL on such misconception moved the Apex Court and instead of building up its case with regard to 'OROP' on its own merit, sought directions to the Government for 'OROP' on the basis of Nakra's judgment.
Another Constitutional Bench of five judges deciding IESL case (judgment by JS Verma CJI) then threadbare analysed Nakra's judgment and concluded that Nakra's judgment did not lay down such proposition and dismissed IESL writ petition.
In the latest case of Major Generals decided by two judges (Vains case) the question before the Apex Court was whether it was rational that pension of a Major General retiring before 1.1.1996 (i.e. even on 31.12.1995) is lower than that of a Brigadier retiring on or after 1.1.1996. Taking cue from and Nakra's judgment "Govt cannot pick up a date from the hat to say those retiring after the date would get the benefit and those retiring before it won't" and relyning upon the said judgment, the two-judges Bench decided it was not rational that the pension of a Major General retiring before 1.1.1996 (i.e. even on 31.12.1995) is lower than that of a Brigadier retiring on or after 1.1.1996. The Court (two judges) then directed the Govt to fix the pensions of all Major Generals who retired before 1.1.1996 at par with the pension of similar officers who retired on or after 1.1.1996.
This too does not lay down OROP proposition. In any case, IESL case decided by five-judges Constitutional Bench was not referred to the two-judges Bench in Vains case (Major General's case). Two-judges Bench naturally cannot decide against what a five-judges Constitutional Bench has held.
In this context your quoting a part only of the judgment and analysing the complete law on the subject is not correct. You thus have quoted the following out of context:
"This also contrary to the judgment of the Constitution Bench of the Supreme Court of 17 December 1982 that stated: “by introducing an arbitrary eligibility, being in service and retiring subsequent to the specified date, or being eligible for the regularised pension scheme and thereby dividing a homogeneous class, these classifications being not based on any discernible rational principle ... are unconstitutional and are struck down."
In my view the whole subject calls for a 'Review' by the Apex Court by a seven-judges Constitutional Bench.
With best wishes,
(Lt Col MG Kapoor, Practising Law in Delhi High Court)
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