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Sunday, September 06, 2015

ON REVISION/UPDATION OF PENSIONS

SUPREME COURT (CASE-LAW) ON REVISION /   UPDATION OF PENSIONS—PART-I

Now, Whereas Pensions Of Central Government  Retirees / Pensioners And State Government Retirees /  Pensioners Are Updated / Revised At Every Pay Revision, Pensions Of   Retirees Of Many  Instrumentalities Of  “The  State”( “The State”, As Defined In  Article  12 Of The Constitution Of India) Are Not Updated / Revised  At Every Wage Revision / Pay Revision For Their  Employees . Hon’ble The Supreme Court Of India Stressing The Need For Revision / Updation Of Pensions Of  The  Pensioners Of “The State”(“The State”,As Defined In Article 12 Of The  Constitution  Of India) “And Its  Instrumentalities”,       Categorically Stated “In Countless Judgments Thereof”, “That The Benefits Of Pay Revision / Wage  Revision” “Must Be Passed On To The Existing Pensioners Also”. First And Foremost Amongst Them All,  Is  The 5 Judge Constitution Bench Judgment Of Hon’ble The Supreme Court Of India In D.S. Nakara And Others Vs. Union Of India”,“The Ratio Of Which Is Being Followed By Hon’ble The Supreme Court Of India In All The Subsequent Judgments Thereof”. I Would Like To Acquaint  My  Fellow  Pensioners  “With The Case-Law Of Hon’ble The Supreme Court Of India On Revision / Updation Of Pensions”.
To-Day  “Many  Instrumentalities Of “The  State”(“The  State”, As  Defined In  Article  12 Of  The  Constitution   Of  India),  Are  Paying  Different  Kinds / Types  Of     Pensions  To  Their  Pensioners”,  “Based  On  Their  Dates  Of  Retirements”. There Is “Not A Single Valid, Justifiable  And Cogent Reason” Forthcoming From Those Instrumentalities  Of “The  State”,  “For Dividing  Their  Pensioners / Retirees”, “Who Retired  There From”  “At  Different  Dates”, “Except Their Decision To Pay Something More To Some Pensioners", "Who Retired Subsequent To A Specified Date”, “Simultaneously, Denying The Same To Those Who Retired Prior To That Specified Date". This Attitude  Of  “The  State”(“The State”, As Defined In Article  12 Of  The  Constitution   Of India), And  Its  Instrumentalities   Had Been Spurned And Strongly Denounced By  Hon’ble  The Supreme Court Of India In D.S. Nakara And Others. Versus Union Of India,, In The Following Words :


“If It Appears To Be Indisputable, As It Does To Us, That The “Pensioners For The Purpose Of  Pension  Benefits Form A Class”, Would Its Upward Revision “Permit A Homogeneous Class To Be Divided By Arbitrarily Fixing An Eligibility Criteria”, “Unrelated To The  Purpose Of Revision” And “Would Such Classification Be Founded On Some Rational Principle?” The Classification Has To Be Based” “As Is Well Settled”, “On Some Rational Principle” And The “Rational Principle Must Have Nexus To The Objects Sought To Be Achieved”. If The State Considered It Necessary To Liberalise The Pension Scheme, We Find No Rational Principle Behind It, For Granting These Benefits "Only To Those Who Retire Subsequent To That Date". If The Liberalisation Was Considered Necessary “For Augmenting Social Security In Old Age To Government Servants”, “Then Those Who Retired Earlier Cannot Be Worst Off Than Those Who Retire Later”. Therefore, This Division “Which Classified Pensioners Into Two Classes Is Not Based On Any Rational Principle” And “If The Rational Principle Is The One Of Dividing Pensioners”, “With A View To Giving Something More To Persons Otherwise  Equally Placed”, “It Would Be Discriminatory”.To Illustrate, Take Two Persons, One Retired Just A Day Prior And Another A Day Just Succeeding The Specified Date. Both Were In The Same Pay Bracket;, The Average Emoluments Was The Same And Both Had Put In Equal Number Of Years Of Service. How Does A Fortuitous Circumstance Of Retiring A Day Earlier Or A Day Later Will Permit Totally Unequal Treatment In The Matter Of Pension ?  One  Retiring A Day Earlier, “Will Have To Be Subject To A Ceiling Of Rs. 8100/- P.A.” And “Average Emoluments To Be Worked Out On 36 Months’ Salary”, “While The Other Will Have A Ceiling Of Rs. 12,000/- P.A.” And “Average Emoluments Will Be Computed On The Basis Of Last 10 Months’ Average”. “The Artificial Division Stares Into Face” And Is “Unrelated To Any Principle" And Whatever Principle, If There Be Any, "Has Absolutely No Nexus To The Objects Sought To Be Achieved" By Liberalizing The Pension Scheme. In Fact This Arbitrary Division Has Not Only No Nexus To The Liberalized Pension Scheme, But It Is Counter -Productive And Runs "Counter To The Whole Gamut Of Pension Scheme".  The Equal Treatment "Guaranteed In Article 14 Is Wholly Violated", In As Much As The Pension Rules Being Statutory In Character, Since The Specified Date, "The Rules Accord Differential & Discriminatory Treatment To Equals", In The Matter Of Computation Of Pension. “A 48 Hours’ Difference In Matter Of Retirement Would Have A Traumatic Effect”.  “Division Is Thus Both Arbitrary And Unprincipled.”Therefore, The Classification Does Not Stand The Test Of Article 14.
Further, "The Classification Is Wholly Arbitrary", Because We Do Not Find A "Single Acceptable Or Persuasive Reason For This Division". This Arbitrary Action "Violated The Guarantee Of Article 14".
Also Hon’ble The Supreme Court Of India Strongly Disapproving Of Payment Of Different Kinds Of Pensions, “Based On Dates Of Retirement”, "Who Retired Prior To A Certain Date" And Who Retire "Subsequent To A Certain Date", Observed As Under At Para 35 In D.S. Nakara And Others Versus. Union Of India :
“With This Background, Let Us Now Turn To The Challenge Posed In These Petitions. The Challenge Is Not To The Validity Of The Pension Liberalization Scheme. The Scheme Is Wholly Acceptable To The Petitioners; Nay, They Are Ardent Supporters Of It. Nay Further They Seek The Benefit Of It. The Petitioners Challenge Only That Part Of The Scheme, “By Which Its Benefits Are Admissible To Those”, "Who Retire From Service After A Certain Date".  In Other Words, They Want That The Scheme "Must Be Uniformly Enforced", "With Regard To All Pensioners" "For The Purpose Of Computation Of Pension", "Irrespective Of The Date When The Government Servant Retired", Subject To The Only Condition That  He Was Governed By The 1972 Rules. No Doubt, “The Benefit Of The Scheme Will Be Available From The Specified Date”, “Irrespective Of The Fact” "When The Concerned Government Servant Actually Retired From Service”.
Hon’ble The Supreme Court Of India Held As Under, In The Selfsame Context, In The Above Case  At  Paras  37, 38  And 46. :
Para 37 : “If Such Be The Goals Of Pension, If Such Be The “Welfare  State” Which We Propose To Set Up, If Such Be The Goals Of Socialism And Conceding That Any “Welfare Measure” May,  Consistent With Economic Capacity Of The State, “Be Progressively Augmented With Wider Width And A Longer Canvas”, “Yet When The Economic Means Permit The Augmentation”, Should Some Be Left  Out For The Sole Reason That While In The Formative Years Of The Nascent State They Contributed Their Mite”, But “When The Fruits Of Their Labour Led To The Flowering Of Economic Development And Higher Gross National Produce Bringing In Larger Revenue” And “Therefore Larger Cake Is Available”, “Would They Be Denied Any Share Of It ?”  “Indisputably”, "Viewed From Any Angle Pensioners For Payment Of Pension Form A Class”.
Also, Hon’ble The Supreme Court Of India, Strongly “Denouncing The Attitude Of “The  State” (“The State”, As Defined In Article 12 Of The  Constitution  Of India) And Its  Instrumentalities Of Paying Different Kinds Of Pensions”, To Their  Pensioners, “Based On Their  Dates  Of Retirement”, Held As Under At Paras 38 And 46 In D.S. Nakara’s Case :
Para 38 : “What Then Is The Purpose In Prescribing The Specified Date "Vertically Dividing The Pensioners", Between "Those Who Retired Prior To The Specified Date" And Those "Who Retire Subsequent To That Date?" That Poses The Further Question, “Why Was The Pension Scheme Liberalized?”  “What Necessitated Liberalization Of The Pension Scheme ?”
Para 46 : “Only The Pension Will Have To Be Recomputed In The Light Of The Formula Enacted In The Liberalised Pension Scheme And Effective From The Date, The Revised Scheme Comes Into Force. And “Beware That It Is Not A New Scheme”, “It Is Only A Revision Of An Existing Scheme”. “It Is Not A New Retiral Benefit”. “It Is An Upward Revision Of An Existing Benefit”. “If It Was A Wholly New Concept”, “A New Retiral Benefit”, 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. “Pension Is A Reward For Past Service”. It Is “Undoubtedly A Condition Of Service”, “But Not An Incentive To Attract New Entrants”, “Because If It Was To Be Available To New Entrants Only”, “It Would Be Prospective  At Such Distance Of Thirty-Five Years Since Its Introduction”. But “It Covers All Those In Service, Who Entered Into  Thirty-Five Years Back”. “Pension Is Thus Not An Incentive But A Reward For Past Service”. “And  Revision Of An Existing Benefit Stands On A Different Footing Than A New Retiral Benefit”. 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?”
Explanatory Note: Now, “Look At The Intrinsic Beauties” And The “Intensely Incisive Interpretative Analysis Of Hon’ble The Supreme Court Of India”, “Speaking Through Hon’ble Mr. Justice D.A. Desai”, “That  Brilliant  And Scholarly  Judge Of Hon’ble The  Supreme  Court Of India”, “Who Drafted  The  Judgement Of Hon’ble  The Supreme Court Of India  In Nakara’s Case”, “In Drawing Parallels From Pay Revisions And Payment Of Gratuity Act, 1972”, “To Stress And To Drive Home The Point”, “That The Benefits Of Pay Revision / Wage Revision Have To Be Passed On To The Existing Pensioners Also”. Let Me List    Them   Out  One  After The Other.
1.          “And Beware That It Is Not A New Scheme”, “It Is Revision Of An Existing Scheme”.
2.          “It Is Not A New Retiral Benefit”. “It Is Upward Revision Of An Existing Benefit”.
3.          If It Was A Wholly New Concept, One Could Have Appreciated An Argument That Those Who Had Already Retired Could Not Expect It.
4.          It Could Have Been Urged That It Is An Incentive To Attract The Fresh Recruits. “Pension Is A Reward For Past Service”.
Remember  My  Friends,  And  Carefully  Go  Through  The  Content  Of  The  Above  Para,  Which  Says:
“And Beware That It Is Not A New Scheme”, “It Is Revision Of An Existing Scheme”. “It Is Not A New Retiral Benefit”. “It Is Upward Revision Of An Existing Benefit”. 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”. “Pension Is A Reward For Past Service”.
To   Be  Continued.