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Wednesday, September 09, 2015

N Pradeep Kumar, Advocate

SUPREME  COURT (CASE  LAW)  ON REVISION  / UPDATION OF  PENSIONS-PART-II.


THERE IS “A REASON / MAY BE A MOTIVE ALSO”, ON MY PART, TO REPRODUCE “THE EXACT TEXT OF THE CONTENT OF THE IMMEDIATELY PRECEDING PARA”, “VERBATIM”, “EVEN THOUGH THIS MATTER IS CONTAINED” “IN JUST ABOVE THE CONTENT OF THE ABOVE PARA” AND I AM DOING THIS, “WITH A SET PURPOSE AND INTENT TO SERVE” “AND NOT WITHOUT ANY REASON AND PURPOSE AT ALL”. THE MOTIVE AND THE REASON ARE AS UNDER:

WHAT DOES THE CONTENT OF THE “ABOVE TWO PARAS”, “THE CONTENT OF WHICH IS THE SAME” , SAY?”

IT SAYS THAT, EVEN IF PAYMENT OF DIFFERENT KINDS OF PENSIONS TO THE PENSIONERS OF CENTRAL GOVERNMENT, “BASED ON THEIR DATES OF RETIREMENT”, “IS SOUGHT TO BE JUSTIFIED BY THE GOVERNMENT OF INDIA”, “ON THE PREMISE” / “ON THE PRETEXT”, “THAT THIS DENIAL IS NECESSARY TO THOSE PENSIONERS OF THE CENTRAL GOVERNMENT, WHO RETIRED PRIOR TO A SPECIFIED / CERTAIN DATE”, “AND THE EXISTING PENSIONERS SHOULD NOT EXPECT THE BENEFIT OF THE NEW FORMULA OF CALCULATION / PAYMENT OF PENSION”, “AS IT IS A NEW RETIRAL BENEFIT”, “INTENDED TO BENEFIT THE FRESH / NEW RECRUITS ALSO ”—

“ONE WOULD HAVE “JUST APPRECIATED” AN ARGUMENT OF THAT SORT” / TYPE.

WHAT CAN BE THE “RATIONAL ARGUMENT AND WHAT IS THE REAL EXPOSITION” OF “THAT INTENSELY INCISIVE” AND “ILLUMINATING INTERPRETATIVE ANALYSIS OF HON’BLE MR.JUSTICE D.A.DESAI”, ”WHO DRAFTED THE JUDGEMENT OF HON’BLE THE SUPREME COURT OF INDIA IN NAKARA’S CASE”, “TO THE CONTENT OF THE LAST 2 SENTENCES OF THE EXTRACT FROM THE JUDGEMENT OF HON’BLE THE SUPREME COURT OF INDIA, IN NAKARA’S CASE, REPRODUCED HEREINABOVE?”

I WOULD LIKE TO ONCE AGAIN REPRODUCE THE “CONTENT OF THE LAST 2 SENTENCES” OF THE ABOVE EXTRACT FROM THE JUDGEMENT OF HON’BLE THE SUPREME COURT OF INDIA IN D.S. NAKARA’S CASE AND IT READS AS UNDER:

1.“IF IT WAS A WHOLLY NEW CONCEPT”, “ONE COULD HAVE APPRECIATED” “AN ARGUMENT” “THAT THOSE WHO HAD ALREADY RETIRED COULD NOT EXPECT IT”.

2. “IT COULD HAVE BEEN “URGED” THAT IT IS AN INCENTIVE TO ATTRACT THE FRESH RECRUITS”.OUT OF THE ABOVE CONTENT, WHAT STAND PARAMOUNT ARE :

“IF PAYING DIFFERENT KINDS OF PENSIONS TO THE CENTRAL GOVERNMENT PENSIONERS, BASED ON THEIR DATES OF RETIREMENT BY THE CENTRAL GOVERNMENT IS SOUGHT TO BE JUSTIFIED ON THE GROUND THAT IT WAS,” MEANS, “PAYMENT OF DIFFERENT KINDS / TYPES OF PENSIONS BY THE CENTRAL GOVERNMENT TO ITS PENSIONERS”, “BASED ON THEIR DATES OF RETIREMENTS” “IS A NEW SCHEME” / “A NEW CONCEPT”-



“ONE COULD HAVE “JUST APPRECIATED” AN ARGUMENT OF THAT TYPE”.

NOW, WHAT IS THE MEANING OF THE WORDS—

“ONE COULD HAVE “APPRECIATED “ AN ARGUMENT?”

THE SIMPLE MEANING THAT CAN BE GIVEN TO THE WORDS-

“ONE COULD HAVE “JUST APPRECIATED” AN ARGUMENT” IS,—

“EVEN IF PAYING / PAYMENT OF DIFFERENT KINDS OF PENSIONS TO THE CENTRAL GOVERNMENT PENSIONERS BY THE GOVERNMENT OF INDIA”, “BASED ON THEIR DATES OF RETIREMENT IS SOUGHT BE JUSTIFIED / PORTRAYED TO BE JUSTIFIED ON THE PRETEXT”, “THAT PAYMENT OF DIFFERENT KINDS OF PENSIONS TO THE PENSIONERS OF THE CENTRAL GOVERNMENT IS A NEW SCHEME / NEW BENEFIT / NEW RETIRAL BENEFIT ALSO”—

WHAT DOES HON’BLE THE SUPREME COURT OF INDIA, SPEAKING THROUGH HON’BLE MR.JUSTICE D.A. DESAI, “THAT SCHOLARLY”, “MOST PROLIFIC” “AND BRILLIANT JUDGE” OF OUR TIMES, SAY?”

IT SAYS THAT --

“EVEN THEN ALSO”, MEANS, “EVEN IF THE GOVERNMENT OF INDIA ARGUES IN NAKARA’S CASE” SAYING THAT, “THIS KIND OF PAYING DIFFERENT KINDS OF PENSIONS TO ITS PENSIONERS”, “BASED ON THEIR DATES OF RETIREMENTS”, “IS A NEW CONCEPT” / NEW SCHEME ALSO”—

1.“ONE COULD HAVE”,
“JUST APPRECIATED” AN ARGUMENT OF THAT TYPE ONLY”.

2.”NOW WHAT CAN BE THE RATIONAL AND REASONABLE INTERPRETATION THAT CAN BE GIVEN TO THE ABOVE WORDS”—

“ONE COULD HAVE “JUST APPRECIATED” AN ARGUMENT?”

THE INEVITABLE AND THE ONLY INTERPRETATION THAT CAN BE GIVEN TO THE WORDS—

“ONE COULD HAVE “APPRECIATED” AN ARGUMENT” IS—

“ONE COULD HAVE “ONLY APRECIATED” “SUCH AN ARGUMENT”--

“MEANS, THOUGH “ONE COULD HAVE APRECIATED” SUCH AN ARGUMENT”—

“ONE “NEED NOT NECESSARILY “AGREE / ACCEPT” SUCH AN ARGUMENT”, BUT, “ONE ONLY” “COULD HAVE “JUST APPRECIATED” SUCH AN ARGUMENT” AND “THAT NEED NOT NECESSARILY BE TAKEN”, “THAT HON’BLE THE SUPREME COURT OF INDIA” “WOULD HAVE “ACCEPTED / AGREED / UPHELD” SUCH / THAT KIND OF ARGUMENT”.

I HOPE, THAT I HAVE EXPLAINED THE CONTENT OF THE ABOVE MATTER, “TO THE SATISFACTION OF MY FELLOW PENSIONERS”.

NOW, THE CONTENT OF THIS VERY PARA FROM THE JUDGEMENT OF HON’BLE THE SUPREME COURT OF INDIA, REPRODUCED BY ME HEREINABOVE, ALSO READS AS UNDER:

“IT COULD HAVE BEEN “URGED”, “THAT IT IS AN INCENTIVE TO ATTRACT THE FRESH RECRUITS”..

THE REASONABLE / RATIONAL INTERPRETATION THAT CAN BE GIVEN TO THE ABOVE CONTENT FROM THE JUDGEMENT OF HON’BLE THE SUPREME COURT OF INDIA, IN NAKARA’S CASE, “UPON A CONJOINT READING”, AND UPON “JUXTAPOSING THE ABOVE CONTENT” IS –

“IF PAYING DIFFERENT KINDS OF PENSIONS TO THE CENTRAL GOVERNMENT PENSIONERS”,”BASED ON DATES OF THEIR RETIREMENT”, “IS A NEW SCHEME” / “A NEW CONCEPT”,”AND INTENDED TO ATTRACT FRESH RECRUITS”, “ONE COULD HAVE “APPRECIATED SUCH AN ARGUMENT”, “THOUGH / BUT, ONE “NEED NOT NECESSARILY AGREE / ACCEPT SUCH AN ARGUMENT”, AND IT COULD HAVE BEEN “URGED” THAT “IT IS AN INCENTIVE TO ATTRACT THE FRESH RECRUITS”.

EXPLANATORY NOTE:: THE IDEA HERE IS—

“TO SUGGEST “THAT THE UPWARD REVISION OF PENSION” “IS NOTHING BUT EXTENDING THE BENEFITS OF REVISED PAY SCALES TO THE EXISTING PENSIONERS ALSO”, “AND THE BENEFITS OF PAY REVISION SHOULD NOT BE CONFINED TO THE SERVING EMPLOYEES ONLY”.“REVISION OF PENSION IS NOT CONFERMENT OF A NEW RETIRAL BENEFIT ON THE PENSIONERS”.

AND NOW, I AM REPRODUCING “A PART OF THE CONTENT OF PARA 46 FROM THE JUDGEMENT OF HON’BLE THE SUPREME COURT OF INDIA IN NAKARA’S CASE”, AND IT READS AS UNDER:

“AND “EVEN IN THE CASE OF “NEW RETIRAL BENEFIT OF GRATUITY”, UNDER THE PAYMENT OF GRATUITY ACT, 1972”, “PAST SERVICE WAS TAKEN INTO CONSIDERATION”. RECALL AT THIS STAGE THE METHOD ADOPTED WHEN PAY SCALES ARE REVISED. REVISED PAY SCALES ARE INTRODUCED FROM A CERTAIN DATE. “ALL EXISTING EMPLOYEES ARE BROUGHT ON TO THE REVISED SCALES BY ADOPTING A THEORY OF FITMENTS AND INCREMENTS”, “FOR PAST SERVICE”. “IN OTHER WORDS, BENEFIT OF REVISED SCALES”, “IS NOT LIMITED TO THOSE WHO ENTER SERVICE SUBSEQUENT TO THE DATE FIXED FOR INTRODUCING REVISED SCALES”, “BUT THE BENEFIT IS EXTENDED TO ALL THOSE IN SERVICE PRIOR TO THAT DATE”. “THIS IS JUST AND FAIR”.

“NOW IF PENSION, AS WE VIEW IT, “IS SOME KIND OF RETIREMENT WAGES”, “FOR PAST SERVICE”, “CAN IT BE DENIED TO THOSE WHO RETIRED EARLIER”, “REVISED RETIREMENT BENEFITS, BEING AVAILABLE TO FUTURE RETIREES ONLY?”

AND NOW, SEE HOW HON’BLE THE SUPREME COURT OF INDIA “DRAWS A PARALLEL FROM THE PAYMENT OF GRATUITY ACT, 1972”, “TO JUSTIFY THE STAND TAKEN BY IT”, “THAT THE BENEFIT OF PAY REVISION / WAGE REVISION” “MUST BE PASSED ON TO THE EXISTING PENSIONERS ALSO”, WHEN IT SAYS :

“AND EVEN IN THE CASE OF “NEW RETIRAL BENEFIT” OF PAYMENT OF GRATUITY ACT, 1972 ALSO”, “PAST SERVICE WAS TAKEN INTO CONSIDERATION”.

IN FACT, IN MAKING A REFERENCE TO THE PAYMENT OF GRATUITY ACT, 1972, HON’BLE THE SUPREME COURT OF INDIA, “WENT A STEP AHEAD OF WHAT IT SAID EARLIER”, AS EXTRACTED BY ME HEREINABOVE, LIKE :

“IF IT WAS A WHOLLY NEW CONCEPT, ONE COULD HAVE “APPRECIATED AN ARGUMENT” THAT THOSE WHO HAD ALREADY RETIRED COULD NOT EXPECT IT”. “IT COULD HAVE BEEN URGED THAT IT IS AN INCENTIVE TO ATTRACT THE FRESH RECRUITS”.

THE INITIAL SUGGESTION IN THE ABOVE WORDS IS THAT, “IF REVISION OF PENSION IS A NEW CONCEPT / A NEW RETIRAL BENEFIT”, “IT WOULD HAVE BEEN URGED” THAT, “THAT WAS A NEW RETIRAL BENEFIT” AND THAT, “THE EXISTING PENSIONERS SHOULD NOT EXPECT IT”; BECAUSE “THAT WAS A NEW RETIRAL BENEFIT”; BUT “REVISION OF PENSION IS NOT CONFERMENT OF A NEW RETIRAL BENEFIT AT ALL” AND, “REVISION OF PENSION IS EXTENSION OF THE BENEFIT OF REVISION OF PAY SCALES / WAGE REVISION TO THE EXISTING PENSIONERS ONLY”.

NOW, AFTER THE INITIAL OBSERVATION AS ABOVE, HON’BLE THE SUPREME COURT OF INDIA “TAKES A GIANT LEAP”, WHEN IT DRAWS A PARALLEL, FROM THE PAYMENT OF GRATUITY ACT, 1972. THE CLEAR INDICATION HERE IS THAT, “EVEN THOUGH PAYMENT OF GRATUITY ACT, 1972”, “IS A NEW RETIRAL BENEFIT”, “ITS BENEFIT IS EXTENDED”, “EVEN TO THOSE”, “WHO ARE ALREADY IN SERVICE” AND “PAST SERVICE PRIOR TO 1972”, (PRIOR TO THE ENACTMENT OF THE PAYMENT OF GRATUITY ACT, 1972) “IS ALSO TAKEN INTO CONSIDERATION”. THE LOGICAL POINT THAT HON’BLE THE SUPREME COURT OF INDIA DRIVES HOME HERE IS--

“WHEN THE BENEFIT OF PAYMENT OF GRATUITY ACT IS EXTENDED”, “NOT JUST TO THE NEW RECRUITS”, “WHO WERE RECRUITED TO SERVICE”, “FROM THE DATE OF ENACTMENT OF PAYMENT OF GRATUITY ACT, 1972”, “BUT EVEN TO THOSE WHO WERE ALREADY IN SERVICE AS ON THE DATE OF ENACTMENT OF PAYMENT OF GRATUITY ACT, 1972”, “WHY SHOULD NOT THE BENEFIT OF REVISION OF PAY SCALES / WAGE REVISION BE EXTENDED TO THE EXISTING PENSIONERS ?”

ANOTHER SUGGESTION HERE IS ALSO THAT, THE BENEFIT OF PAYMENT OF GRATUITY ACT, 1972, “IS NOT ONLY EXTENDED TO THE EMPLOYEES, WHO ARE ALREADY IN SERVICE AS ON THE DATE OF ITS ENACTMENT”, “BUT EVEN THE SERVICE RENDERED PRIOR TO THE ENACTMENT OF PAYMENT OF GRATUITY ACT, 1972, IS ALSO TAKEN INTO CONSIDERATION” AND WHEN THAT IS SO “WHY SHOULD NOT THE BENEFIT OF REVISION OF PAY SCALES / WAGE REVISION BE EXTENDED TO THE EXISTING PENSIONERS ALSO ?”

“SUCH IS THE LOGIC” AND “SUCH ARE THE SUBLIME SENTIMENTS” THAT CAN BE FOUND IN NAKARA’S CASE.

NOW, HON’BLE THE SUPREME COURT OF INDIA, JUSTIFYING ITS DECISION TO DIRECT UNION OF INDIA, TO EXTEND THE BENEFITS OF REVISED PENSION FORMULA, “EVEN TO THOSE WHO RETIRED PRIOR TO THE NOTIFIED DATES, I.E. PRIOR TO 31.03.1979 & 01.04.1979, DRAWS “ANOTHER PARALLEL”, WHEN IT SAYS AT PARA 46 OF ITS JUDGEMENT, AS UNDER :

“RECALL AT THIS STAGE, THE METHOD ADOPTED WHEN PAY SCALES ARE REVISED. REVISED PAY SCALES ARE INTRODUCED FROM A CERTAIN DATE. ALL EXISTING EMPLOYEES ARE BROUGHT ON TO THE REVISED SCALES, “BY ADOPTING A THEORY OF FITMENTS AND INCREMENTS”, “FOR PAST SERVICE”.IN OTHER WORDS, “BENEFIT OF REVISED SCALES IS NOT LIMITED TO THOSE”,“WHO ENTER SERVICE SUBSEQUENT TO THE DATE FIXED FOR INTRODUCING REVISED SCALES”, “BUT THE BENEFIT IS EXTENDED TO ALL THOSE IN SERVICE” “PRIOR TO THAT DATE”.“THIS IS JUST AND FAIR”. NOW IF PENSION AS WE VIEW IT, IS “SOME KIND OF RETIREMENT WAGES” “FOR PAST SERVICE”, “CAN IT BE DENIED TO THOSE WHO RETIRED EARLIER”, “REVISED RETIREMENT BENEFITS, BEING AVAILABLE TO FUTURE RETIREES ONLY?”

NOW, IF WE DISSECT THE “ENTIRE PORTION OF THIS JUDGMENT HEREIN”, OF HON’BLE THE SUPREME COURT OF INDIA IN D.S. NAKARA AND OTHERS VS. UNION OF INDIA,“THE SINGULARLY SCINTILLATING SENTIMENTS” “AND HIGHLY ILLUMINATIVE INTERPRETATIVE ANALYSIS” OF HON’BLE MR.JUSTICE D.A. DESAI, SPEAKING FOR HON’BLE THE SUPREME COURT OF INDIA” “ONLY CAN BE SEEN”.

LOOK AT THE PARALLEL DRAWN HERE :

“JUST AS WHEN PAY SCALES ARE REVISED, ALL THE EXISTING EMPLOYEES ARE BROUGHT ON TO THE REVISED SCALES”, “BY ADOPTING A THEORY OF FITMENTS AND INCREMENTS FOR PAST SERVICE”,“SO ALSO, PAST RETIREES’ PENSIONS HAVE TO BE BROUGHT ON TO THE “CORRESPONDING STAGE” OF THE EMPLOYEES”, “WHO ARE IN SERVICE” AND “THE BENEFIT OF REVISED PAY SCALES SHOULD BE / MUST BE EXTENDED TO THE EXISTING PENSIONERS ALSO”, IS THE “LOGIC AND RATIONALE” BEHIND THE DIRECTION OF HON’BLE THE SUPREME COURT OF INDIA IN NAKARA’S CASE THAT “THE REVISED PENSION FORMULA” “SHOULD BE APPLIED AND EXTENDED TO THE EXISTING PENSIONERS ALSO”. ALSO “IT IS NOT AS IF”, “THE NEW PAY SCALES”, “WHENEVER THEY ARE INTRODUCED”, “ARE EXTENDED TO NEW RECRUITS ONLY”; BUT, “THE EXISTING STAFF / EMPLOYEES ARE BROUGHT ON TO THE NEW PAY SCALES”, “BY ADOPTING A THEORY OF FITMENTS AND INCREMENTS”, “FOR THE PAST SERVICE”. THAT MEANS, THE SUGGESTION HERE IS, “WHEN THE GOVERNMENT IS GIVING THE BENEFIT OF NEW PAY SCALES / REVISED PAY SCALES TO THE EXISTING EMPLOYEES ALSO”, “INSTEAD OF CONFINING THE BENEFITS OF NEW PAY SCALES TO THE NEW RECRUITS ONLY”, “WHAT IS THE PROBLEM FOR THE GOVERNMENT IN EXTENDING THE BENEFITS OF REVISED PAY SCALES FOR THE EXISTING PENSIONERS ALSO”, BY “UPDATING AND REVISING THEIR PENSIONS”, “AFTER BRINGING “THE EXISTING PENSIONERS “ON TO THE CORRESPONDING SCALE” “AND STAGE OF THE EXISTING EMPLOYEES” AND “WHY SHOULD NOT THE EXISTING PENSIONERS BE BROUGHT INTO THE MAINSTREAM?”

ALSO, WE CAN SEE HERE, THAT “THERE IS ANOTHER LOGIC”, IN REFERRING TO “THE REVISED PAY SCALES”. “REVISED PAY SCALES”, “IN CONNECTION WITH A PENSION RELATED MATTER”, I.E. “WHILE FIXING THE BASIC PAY OF EMPLOYEES”, “AS PER THE REVISED PAY SCALES/ PAY STRUCTURE”, “CONSEQUENT UPON WAGE REVISION / PAY REVISION”, GOVT. EMPLOYEES ARE BROUGHT ON TO THE REVISED PAY SCALES, “BY ADOPTING THE THEORY OF FITMENTS AND INCREMENTS”, “FOR PAST SERVICE”. LIKEWISE, “ON A PARITY OF REASONING”, WHEN THE EXISTING EMPLOYEES ARE “BROUGHT ON TO THE MAINSTREAM BY ADOPTING A THEORY OF FITMENTS AND INCREMENTS”, “FOR PAST SERVICE”, “PENSIONS ALSO SHOULD BE REVISED AND UPDATED”, “KEEPING IN VIEW”, “THE PAST SERVICE RENDERED BY THE PENSIONERS”, “SINCE THE REASONING / RATIO BEHIND UPDATION / REVISION OF PENSIONS”, IN THE VIEW OF HON’BLE THE SUPREME COURT OF INDIA IS, “JUST AS THE EXISTING EMPLOYEES”, “THOUGH THEY ARE NOT NEWLY RECRUITED EMPLOYEES”, “ARE BROUGHT ON TO THE REVISED PAY SCALES”, “WHENEVER PAY SCALES ARE REVISED”, BY ADOPTING A THEORY OF FITMENTS AND INCREMENTS, “FOR PAST SERVICE”----

“SO ALSO”, “PENSIONS OF RETIRED EMPLOYEES” “HAVE TO BE REVISED” / ‘UPDATED”, “AT EVERY PAY REVISION”,“TAKING INTO ACCOUNT” “THE PAST SERVICE” “RENDERED BY THE PENSIONERS”.“THAT IS THE “EXQUISITELY EXCELLENT REASONING AND LOGIC” “OF HON’BLE THE SUPREME COURT OF INDIA”, “IN ESPOUSING THE CAUSE OF THE PENSIONERS”..