I am attaching herewith the Karnataka High Court Decision on pension Upgradation of BWSSB pensioners delivered on 14-2-2011 but the status of its implementation I am not aware. I am trying to find out. They stopped upgrading the pension for those who retired before 1-7-1970 but went about upgrading the pension for those retired later. The High court held that differentiating groups of pensioners based on date of retirement and creating a separate desperate group was unconstitutional. As the subject matter would of interest to LIC Pensioners who are similarly placed, I thought it is worth publishing in the Chronicle.
T SAMPATH IYENGAR,
BANGALOR
Judgment
Bangalore Bangalore
LegalCrystal Citation : legalcrystal.com/923242
Court : Karnataka Judge : V.
JAGANNATHAN, J. Decided On : Feb-04-2011
Case Number : WRIT
PETITION No. 11589 Of 2010 (3-R) Appellant : Bangalore Bangalore
Advocates: Sri
L.N.Narayan; Smt. Uikshmi Iyengar, Adv.
Excerpt:
[V. JAGANNATHAN, J.] Writ
Petition tiled praying to direct, the respondents to grant/accord pension to
the employees of the BWSSB, in the terms of the revisions that have been made
irrespective of the date of the retirement, to revise and sanction pension to
the retired employees of the BWSSB as and when such revision of pay has been
effected to those who are in service, and to consider expeditiously the
representations dated 6.10.2008 and 5.10.2009. vide Amtexures-A and B.
Judgment:
1. The grievance of the
second and third petitioners and of those pensioners, who are members of the
first petitioner-Association, is that, R-l BWSSB ('the Board’ for short) had
formulated its own pay scales for its employees and the same was implemented
with effect from 1.7.1986. The pay scales were revised at different times and
the revisions took place on 1,7.1990, 1.7.1994. 1.7.1998. 1.7.2003 and
1.7.2008. Consequent to the revision of pay scales with effect from the
aforesaid dates, even the pension of the employees, who had retired from
service, was also revised on two occasions i.e., 1.7.1990 and 1.7.1994. But,
subsequently, no pension revision took place in respect of revision of pay
scales effected from 1.7.1998 and 1.7.2003 and the latest being 1.7.2008.
2. Apart from this,
during 1998, R-1 Board classified the pensioners into two categories i.e.,
those who retired before 1.7.1990 and those who retired after 1.7.1990. Thus,
the pensioners, who are the members of (he first petitioner-Association, are
deprived of the benefit of revised pay scales from 1.7.1998 onwards and
secondly. R-l Board could not have classified (he pensioners into two
categories taking into account a specified date.
3. It is the case of the
first petitioner-Association that the Association, which represents the
pensioners of R-l Board, gave several representations to the Board and two of
litem are at Annexures-A and B dated 6.10.2008 and 5.10.2009 respectively and
these representations have not been considered by the Board and. therefore,
having regard to the low pension that the members of 00the first
petitioner-Association get and also taking note of the cost of living and rise
in the prices of various things, the petitioners are, therefore, constrained to
approach this court seeking a direction to the Board to effect revision of
pensionary benefits which were stopped from 1.7.1998 onwards and also to
consider the other facilities which have been sought for by the petitioners as
per their representations at Annexures-A and B.
4. Learned senior counsel
Sliri H.N.Narayan for the petitioners, relying on a Constitutional Bench
decision of the Apex Court in the case of D.S.Nakara Vs. Union of India,
reported in AIR 1983 SC 130, and pointing to the observations made at paragraph
49. therefore, sought for directions to the Board as prayed by the petitioners.
5. Learned counsel Shri
Venkatesh Dodderi appearing for R-l Board, on his part, referring to the
objections filed by R-l. contended that the Board has adopted the State
Government Pension Rules from 1986 and. therefore, the reliefs now sought by
the petitioners cannot be granted. It is also admitted in the objections of R-
1 that the pension has not. been revised from 1.7.2008. the learned counsel for
R-l Board also placed for my perusal a letter addressed by the Principal
Secretary to Government. Urban Development Department, to the Chairman. BWSSB.
in this regard. Learned Government Advocate Smt. Maiijula R.Kamadolli a J so
adopted the very same submission made by the learned counsel for the Board.
6. From what has been
submitted by the respective counsel far the parties, what is clear is that the
Board had gone on to revise pension also every time there was a revision of pay
scales. The pay scales were revised with effect from 1.7.1990 and thereafter from
1.7.1994. 1.7.1998, 1.7.2003 and 1.7.2008. 'lire pensioners were given the
benefit of revised pension in respect of the pay revision I hat took place from
1.7/1990 and again from 1.7.1994. This fact is not: disputed by the learned
counsel for R 1 Board.
7. When the Board could
revise the pensionary benefits of the pensioners when the pay scales were
revised from 1,7.1990 and again from 1.7.1994 ft could not have stopped
extending the benefit: of revised pay scales to t he pensioners suddenly from
1.7.1998 onwards. As far as the contention of the learned counsel for R-l Board
viz., that the Board has adopted the State Government. Pension Rules from 1996
onwards is concerned, in the communication addressed to the Board's Chairman by
the Secretary to the Government dated 16.124999 in UDD 82 MNI 98, it has been
clearly stated that the State Government has revised the pension and pensionaiy
benefits with effect from 1.4.1998 on general revision of pay scales.
Therefore, the Board could not have deprived the pensioners the benefit, of pay
revision effected from 1,4.1998 when the Government itself had extended the
benefit to the pensioners.
8. Therefore, it is
apparent from, the aforesaid factors that there has been revision of the
pensionary benefits to the pensioners every time there was a revision of pay
scale right from 1.7.1990 onwards. Such being the position, the Board,
therefore, could not have stopped extending the pensionary benefits to the
pensioners from 1.7.1998 onwards and consequently, the subsequent revision of
pay scales effected from 1.7.2003 and 1.7.2008 also ought to have been extended
to the pensioners.
9. As far as the
bifurcation of the pensioners into two categories is concerned, it is admitted
in the objections filed by R 1 Board that the pensioners have been categorised
into two categories i.e., one class of pensioners who retired before 1.7.1990
and the other class of pensioners who have retired after 1.7.1990. This is also
has affected the pensionary benefits that the pensioners would get. in the
sense, the persons who retired before 1.7.1990 will not be on par with those
employees who retired after 1.7.1990. In this regard, it would be proper to
refer to the observations of the Apex
Court
10. In the case of
D.S.Nakara. supra, the Apex Court, through a Constitution Bench, after
referring to the arbitrary selection of the happening of an event subsequent to
a specified date, which has the effect of denying equality of treatment to
persons belonging to the same class, has gone on to observe thus at
paragraph-49 .
"49. But we make it
abundantly clear that arrears are not required TO be made because to that
extent the scheme is prospective. All pensioners whenever they retired would be
covered by the liberalised pension scheme, because the scheme is a scheme for
payment o| pension to a pensioner governed by 1972 Rules. The date of
retirement, is irrelevant.
But the revised scheme
would be operative from the date mentioned in the scheme and would bring under
its umbrella all existing pen sioners and those who retired subsequent to that
date. In case ol pensioners who retired prior to the speciled date, their
pension would computed afresh and would be payable in future commencing from
the specified date. No arrears would be payable. And that would take care of
the grievance of retros peeUvity. hi our opinion, it would make a marginal
difference in the case of past pensioners because the emoluments are not.
revised. The last revision of emoluments was as per the recommendation of the
Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the
same, the eomput.au'on of average emoluments under amended R.34 may raise the
average emoluments the period For averaging being reduced from last 06 months
to last 10 months. The slab will provide slightly higher pension and if someone
reaches the maximum the old lower ceiling will not deny him what: is otherwise
justly give due on. computation. The words "who were in. service on 31st
March, 1979 and retiring from service on or after that date" excluding the
date for commencement of revision are words of limitation introducing the
mischief and are vulnerable as denying equality and introducing an arbitrary
fortuitous circumstance can be served without impairing the formula. Therefore,
there is absolutely no difficulty in removing the arbitrary and discriminatory
portion of the scheme and it can be easily severed."
11. In the light of the
aforesaid observations of the Constitution Bench, the date of retirement,
therefore, becomes irrelevant and the revised scheme or for that matter, in the
instant case, the revised pay scales and the revised pensionary benefits, would
be operative in such a way so as to bring within it all the existing
pensioners.
12. That apart, even in
the objections filed by the Board, it is also stated at paragraplv4(i) that the
pension has not. been revised from 1.7.2008. In other words, it will have to be
construed from the aforesaid statement made in the objections that the Board
has not denied the revised pensionary benefits with effect from 1.7.2008.
13. As far as the oilier
benefits claimed by the Association are concerned, no doubt, as rightly
submitted by learned senior counsel Shri H.N.Narayan for the petitioners, need
for medical assistance would be more during the old age than in the younger
days of a person's life. It may not be out of place to refer at. this juncture
to the Constitution Bench decision referred to earlier and to quote what was
said by the Apex Court
"I fall on the
thorns of lift I bleed. Old age. ebbing mental and physical prowess, atrophy of
both muscle and brain powers permeating these petitions, the petitioners in the
fall of life yearn for equality of treatment which is being meted out to those
who are soon going to join and swell their own ranks."
Therefore, there is
enough weight in the benefit of medical facilities sought for by the retired
employees of the Board and. therefore, the Board also will have to consider the
aforesaid facilities sought for by the Association sympathetically and if
medical facilities are also allowed even in respect of the retired employees,
that would also be a step in the right direction insofar as giving effect to
providing some sort of social security to the retired employees, who are iri
the evening of their life.
14. For the
aforementioned reasons, the writ petition allowed on the following terms:
i) R-l Board is directed
to accord pensioners, whom the first petitioner represents and to which
Association the other two petitioners are also members, to revise the
pensionary benefits of the pensioners with effect from 1.7.2003 onwards upto
1.7.2008 and thereafter, whenever there is a revision of pay scales, the
pensionary benefits also shall be revised accordingly. If. however, the revised
pensionary benefits have not been given effect from 1.7.1998, the same shall be
given.
ii) In view of the Pensioners
Association having given an undertaking that the pensioners will not insist on
payment of arrears for the earlier periods, i.e., prior to 1.7.2008.
consequently, as has been observed by the Apex Court
iii) R-1 Board shall
also consider the request of the Association for extending the medical
facilities on such terms as the Board deems it to the pensioners and to their
spouses
iv) R-1 Board sha11
give effect, to the aforesaid directions now given, within a period of three
months from the date of receipt of a copy of this order.