Representation Made By A Public Body Cannot Be A Basis To Invoke Principle Of Legitimate Expectations in Policy Matters: Indian Ex-Servicemen Movement & Ors Vs Union OfIndia & Ors

Date of Judgement:
16thMarch 2022

Coram/judge:
Hon’ble Justice D.Y. Chandrachud
Hon’ble Justice Surya Kant
Hon’ble Justice Vikram Nath

Parties to the Case:
Petitioners- Indian Ex Servicemen Movement &Ors
Respondents- Union of India &Ors.

Legal Provisions

• Article 32 ofthe Indian Constitution - deals with the 'Right to Constitutional Remedies', or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights.
• Article 14 of the Indian Constitution- which provides for the fundamental right of equality before law & equal protection of law.
• Article 21 of the Indian Constitution- which provides for the fundamental right of protection of life and personal liberty.

Overview

• In 2010-11 a committee was formed to decide on implementation of OROP. In December 2011, the Committee had recommended that OROP should be implemented. The Committee defined OROP as a uniform pension to be paid to armed forces personnel retiring at the same rank with the same length of service, regardless of the date of retirement, where any future improvements in the rates of pension were to be automatically passed on to the past pensioners.
• A sequence of events highlighted that OROP always involved an automatic revision of the rates of pension to bridge the gap in the pension being received by past and current pensioners. However, a letter dated 7th November 2015 by Joint Secretary of Government of India to the Chiefs of three defence forces introduced a revised definition of OROP, wherein the revision between past and current rate of pension would be taking place at periodic intervals.
• By a letter to the defence minister dated 25 January 2016 the petitioner objected to the revision of the definition of OROP highlighting that the deviation from the automatic revision to a revision at periodic intervals of rates of pension changed the accepted meaning of OROP. It would deprive the past pensioners of equal monetary benefits, wherein the original definition of OROP the pension of past pensioners would be automatically revised pursuant to any future enhancements.

Arguments Advanced by The Petitioner

• The Learned Counsel for the petitioners contended that execution of the scheme with the new definition would lead to a situation where the pension drawn by an ex-serviceman who retired earlier, would be less than the pension drawn by an ex-serviceman who retired in 2014, until such time that the said ‘periodic review’was conducted to correct the deviations.
• The new definition creates a class within a class where ex-servicemen who retired with the same rank and same length of service would receive different pensions. In Union of India v. SPS Vains, the Apex Court had held that the creation of a class within a class would not be constitutionally valid.
• According to the letter of the Central Ministry dated 7 November 2015, the pension of past pensioners would be fixed at a rate which was one and a half years behind even if equalization would be done once in five years.
• Under the Seventh Pay Commission, the basic pension of all pensioners was to be arrived at by multiplying basic pension as of 31/12/2015 by a factor of 2.57. As the basic pension of those who retired before 2013-14 had not been updated to 31 December 2015 (Rs. 7605 per month) but had been fixed based on the average pension of the year 2013 (Rs. 6665 per month). A past pensioner will get Rs. 2415 less than an officer with the same rank & same length of service but retired later. Further, if the central authorities can calculate the enhancement of pension for every five years, there was no reason that it cannot once a year.
• While the Union Government states that OROP aims at the benefit of ‘past retirees’, confusion had been created by stating that the scheme must be given prospective effect.

Arguments Advanced by The Respondents

• The Learned Counsel representing the Union of India submitted that OROP aims at bridging the gap by taking the maximum and minimum pension within the rank of pensioners holding the same rank and length of service to determine the average. Those who were below the average pension were to be brought to the average and those drawing a higher pension were to be protected.
• The OROP scheme contemplates revision of pension once in five years but in civilian pension schemes which are revised once in ten years. The plea of the petitioners to provide ‘automatic’ adjustment cannot be agreed to. The central government contended that besides lacking any prior precedent, in terms of the practice governing pay scales, pensions etc. of government servants, automatic revision would be impossible to implement.
• The recommendations of the Committee cannot be termed as the decision of the Union Government as recommendation of any committee formed by the parliament would not be binding upon it.
• The expression ‘automatically’ used in the Koshyari Committee report defining the OROP follows the expression ‘in the rates of pension to be automatically passed on to the past pensioners.’ It must be read with a meaning that the rates of pension would be passed to the past pensioners without any difficulties and delay. The phrase ‘automatically’ never denoted the period of time.

Issue

Whether the change in definition of OROP policy and its execution in the present form, would be arbitrary and violate Article 14 and Article 21 of the Constitution of India?

Judgement Analysis

• The Honourable Bench observed that the adoption of OROP as a guiding statement of policy on 7 November 2015 was preceded by discussions both within and outside Parliament.
• It was to be understood that the Committee Report was a report submitted to the Rajya Sabha by the Committee on Petitions. The report could not be enforced as a statement of government policy.
• A considerable amount of debate took place in the proceedings on whether the expression “at periodic intervals” was in breach of the original understanding that enhancements in the rates of pension would be automatically passed on.
• The Apex Court held that there was a fallacy in the submission of the petitioners in the argument that the policy communication dated 7 November 2015 was contrary to the original decision by Union Government to implement OROP.
• The analysis of the underlying document indicates that while a decision to implement OROP was taken in principle, the modalities for implementation were yet to be chalked out. Thus, there was no firm policy decision by the Central Government on the modalities of execution of OROP until the communication dated 7 November 2015 came into force.Hence, communication of 7 November 2015 cannot be invalidated on the ground that it infringed the ‘original understanding’ of OROP
• While the petitioners have not referred to the principle of legitimate expectations, they have impliedly relied on this principle. The principle of legitimate expectations could be invoked in situation where a representation made by a public body leads an individual to believe that they would be a receive a substantive benefit. A part of the petitioners’ grievance,in the present case, arose from the belief that an assurance made by committees, the Ministers of the Union Government, did not translate into a conscious policy decision, which was contained in the communication dated 7 November 2015.
• The term “automatically” was clearly not associated to a time period for the revision of pensions. None of the documents presented as regard to the communication dated before 7 November 2015 suggests that the process of revising pensions was to be continued on an ongoing basis as contrary to revision at periodic intervals.
• In the State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi the Apex Court observed that the doctrine of legitimate expectations, a public law concept, was based on the principles of fairness and non-arbitrariness in state action. The doctrine of legitimate expectations emerges as an aspect of Article 14 of the Constitution. However, in the present petition, there was no concrete government policy in exiting prior to 7 November 2015. There were only certain assurances made by the Ministers. The execution was not worked out yet. Hence, no substance was there in the contention that the decision taken on 7 November 2015 was in some sense contrary to the original policy decision of the Central Government.
• The phrases “to be automatically passed on” immediately followed upon the words “any future enhancement in the rates of pension”. When read simultaneously in context, it signified that the rates of pension would be passed on to past pensioners without any administrative hindrances and obstructions.
• The expression ‘automatically passed on’ cannot be interpreted as a commitment with reference to any period of time for the computation of benefits. The manner of revision of pensions, salaries etc. was a pure question of policy. The decision of the Government to revise the pension in a period of five years cannot be held to be a violation of Article 14.
• In the case of UOI v. SPS Vains, which had been relied upon by the petitioners,the issue was whether the officers of the rank of Major General, who had retired before 1st January 1996, could be given the benefit of the revised pay scale, although according to the policy only personnel who retired after the cut-off date would qualify for such benefit. The Court held that such a discrepancy in the pension payable to two groups of officers in the same rank of Major General based dates violated Article 14. This decision involved a completely different factual situation than the present matter.
• The Apex Court formed the opinion that the present petition under Article 32 of the Constitution was concerned with a domain reserved for executive policy. It was reiterated that adjudication cannot serve as a substitute for policy and an increased reliance on judges to solve matters of pure policy diminishes the role of other political organs in resolving issues of social and political policy, which require a democratic procedure.
• Applying the above principles to the facts of the case, the Honourable bench found no constitutional inconsistency in the OROP principle as defined by the communication issued dated 7 November 2015 as the definition of OROP would be evenly applicable to all pensioners without reference to the date of retirement.

Conclusion

The Honourable Supreme Court while refraining from interfering in a policy matter held that the One Rank One Pension (OROP) policy was constitutionally valid and not violative of any fundamental conferred by the Constitution of India. The Honourable Bench held that policy matters like these were more suitably addressed by elected representatives since they involve negotiations, trade-offs and a consensus-driven decision-making process. This would form a clear function that a court serves in a democracy.

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