Chidambaram's statement in 2014 made on OROP was without cabinet approval: Centre to SC

However, the Centre in its additional affidavit filed in the pending matter on OROP said that the cabinet secretariat had conveyed the approval of the Prime Minister (on OROP) as per the Transaction of Business Rules on November 7, 2015.

“Respondent respectfully submits that this statement (of the then Finance Minister dated February 17, 2014) is not based on any decision or recommendation by the then Union Cabinet. On the other hand, the cabinet secretariat conveyed the approval of the Prime Minister in terms of Rules 12 of the Government of India (Transaction of Business Rules) 1961 on November 7, 2015”, the affidavit said.

It added that following this, the Department of Ex-Servicemen Welfare of Ministry of Defence vide communication dated November 7, 2015, conveyed the policy of OROP for the defence force personnel.

“A post-facto approval of the Union Cabinet dated April 6, 2016, was also conveyed by the cabinet secretariat on April 7, 2016”, it said.

The clarification was given by the Centre after a bench headed by Justice DY Chandrachud, while hearing a PIL filed by Indian Ex-servicemen Movement (IESM) on February 16 asked the government to clarify whether the statement made by then Finance Minister on February 17, 2014, was based on any decision or recommendation by the Union Cabinet.

The bench had also asked the Additional Solicitor General N Venkatraman to place on record the proposals before the union cabinet for its approval.

The affidavit placed on record the communication dated April 7, 2016, issued by the cabinet secretariat conveying the ex-post facto approval and the proposal placed before the Union Cabinet. To the Court's query about the financial data of the outflow that is likely to be incurred by the Centre if non-MACP is grouped with MACP personnel for payment of OROP, the government said that the total financial outflow from 2014 would be in the range of Rs. 42,776.38 crores. The Centre on Modified Assured Career Progression (MACP) said that it is more or less automatic unless otherwise a person gets disqualified for specific reasons such as disciplinary proceedings.

It said that a Sepoy of three years and Sepoy who had crossed eight years qualifying for MACP are not equated even for OROP purpose since they do not qualify the criteria for “same length of service”.

“Therefore, one of the qualifying conditions for the OROP benefit is benchmarking defence personnel having the “same length of service”. Consequently, one who had not put in the same length of service and therefore not eligible for a MACP cannot be benchmarked with personnel who has qualified for MAVP”, it said, adding that the condition “same rank with the same length of service” had remained constant throughout. It said, “It was, therefore, the consistent plea of the Union that the comparison sought to be made by the petitioners is between comparables and non-comparables and between apples and oranges. Therefore, this plea of the petitioners should not be allowed to succeed”.

The government said that the data of total financial outflow from 2014 in the range of Rs. 42,776.38 crores have been placed on record only for the convenience of the court and should not be treated as a concession or an agreement by the Union to the contentions of the petitioners.

“The contention of the petitioners defeats one of the core values of the OROP, which is not only same rank but with the same length of service. This pair cannot be impaired. One cannot take only the same rank and ignore the length of service and similarly one cannot merely take the length of service and ignore the rank”, it added. The government said that while framing the OROP regime it has not brought out any discrimination between defence personnel who are in the same rank with the same length of service while the petitioners are seeking an OROP on merely the same rank overlooking the same length of service. It also sought to counter the contention of IESM for “automatic” revision of OROP saying such dynamic calculations are “unheard” of in practice whether it is a pay scale or pension or any other financial emoluments given to a government servant. “This is not in vogue for the simple reason that it is impossible to put it as a scheme of implementation”, it said.

On February 16, the top court had said that Centre’s hyperbole on the OROP policy presented a much ''rosier picture'' than what is actually given to the pensioners of the Armed forces.

It asked the Centre to place before it as to how many persons in the Armed forces have received Modified Assured Career Progression (MACP), how many are in Assured Career Progression (ACP), and what would be the financial outlay, if the court directs MACP to be also factored in for OROP. On July 11, 2016, the top court had issued notice on the plea filed by IEMS through advocate Balaji Srinivasan seeking implementation of OROP as recommended by the Koshyari Committee with an automatic annual revision, instead of the current policy of periodic review once in five years.