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Wednesday, November 11, 2015

ADV N PRADEEPKUMAR



Para-29:”Summing Up It Can Be Said With Confidence That Pension Is Not Only Compensation For Loyal Service Rendered In The Past ,But Pension Has A Broader Significance In That It Is A Measure Of Socio-Economic Justice, Which Inheres Economic Security In The Fall Of Life When Physical And Mental Prowess Is Ebbing Corresponding To Aging Process And Therefore, One Is Required To Fall Back On Savings. One Such Saving In Kind Is When You Give Your Best In The Hey-Day Of Life To Your Employer, In Days Of Invalidity, Economic Security By Way Of Periodical Payment Is Assured. The Term Has Been Judicially Defined As A Stated Allowance Or Stipend Made In Consideration Of Past Service Or A Surrender Of Rights Or Emoluments To One Retired From Service. Thus The Pension Payable To A Government Employee Is Earned By Rendering Long And Efficient Service And Therefore, Can Be Said To Be A Deferred Portion Of The Compensation Or For Service Rendered. In One Sentence One Can Say That The Most Practical Raison D’etre For Pension Is The Inability To Provide For Oneself Due To Old Age.One May Live And Avoid Unemployment But Not Senility And Penury If There Is Nothing To Fall Back Upon.

PARA -30.:The Discernible Purpose Thus Underlying Pension Scheme Or A Statute Introducing The Pension Scheme Must Inform interpretative Process And Accordingly It Should Receive A Liberal Construction And The Courts May Not So Interpret Such Statute As To Render Them Inane.

[See American Jurisprudence, 2d.881]

PARA- 31.From The Discussion, Three Things Emerge :(I) That Pension Is Neither A Bounty Nor A Matter Of Grace Depending On The Sweet Will Of The Employer And It Creates A Vested Right Subject To 1972 Rules, Which Are Statutory In Character, Because, They Are Enacted In Exercise Of The Powers Conferred By The Proviso To Article 309 And Clause (5) Of Article 148 Of The Constitution;(Ii) That The Pension Is Not An Ex Gratia Payment But It Is A Payment For The Past Service Rendered; And (Iii) It Is A Social Welfare Measure Rendering Socio-Economic Justice To Those Who In The Hey-Day Of Their Life Ceaselessly Toiled For The Employer On An Assurance That In Their Old Age They Would Not Be Left In The Lurch. It Must Also Be Noticed That The Quantum Of Pension Is A Certain Percentage Correlated To The Average Emoluments Drawn During The Last Three Years Of Service, Reduced To 10 Months Under Liberalized Pension Scheme. Its Payment Is Dependent Upon An Additional Condition Of Impeccable Behavior Even Subsequent To Retirement, That Is, Since The Cessation Of The Contract Of Service And That It Can Be Reduced Or Withdrawn As A Disciplinary Measure. 


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PARA -32.”Having Succinctly Focused Our Attention On The Conspectus Of Elements And Incidents Of Pension, The Main Question Now May Now Be Tackled. But The Approach Of The Court While Considering Such Measure Is Of Paramount Importance. Since The Advent Of The Constitution The Action Must Be Directed Towards Attaining The Goals Set Out In Part-IV Of The Constitution Which When Achieved Would Permit Us To Claim That We Have Set Up A Welfare State. Article 38(1) Enjoins The State To Strive To Promote Welfare Of The People, By Securing And Protecting As Effectively As It May, A Social Order In Which Justice—Social Economic And Political --Shall Inform All Institutions Of The National Life. In Particular, The State Shall Strive To Minimise The Inequalities In Income And Endeavour To Eliminate Inequalities In Status, Facilities And Opportunities. Article 39(D) Enjoins A Duty To See That There Is Equal Pay For Equal Work For Both Men And Women And This Directive Should Be Understood In The Light Of The Judgement Of This Court In Randhir Singh V. Union Of India. Revealing The Scope And Content Of This Facet Of Equality Chinnappa Reddy J. Speaking For The Court Observed As Under:(SCC P 619, Para1) :

“Now, Thanks To The Rising Social And Political Consciousness And The Expectation Aroused As A Consequence, And The Forward Looking Posture Of This Court The Underprivileged Also Are Clamoring For Their Rights And Are Seeking The Intervention Of The Court, With Touching Faith And Confidence In The Court And The Judges Of The Court Have To Redeem Their Constitutional Oath And Do Justice No Less To The Pavement Dweller Than To The Guest Of The Five Star Hotel.

Proceeding Further, This Court Observed That Where All Relevant Considerations Are The Same, Persons Holding Identical Posts May Not Be Treated Differently In The Matter Of Their Pay Merely Because They Belong To Different Departments And If That Can Not Be Done, When They Are In Service, Can That Be Done During Their Retirement? Expanding This Principle One Can Confidently Say That If Pensioners Form A Class, Their Computation Can Not Be By Different Formula Affording Unequal Treatment Solely On The Ground That Some Retired Earlier And Some Retired Later .Article 39(e) Requires The State To Secure That The Health And Strength Of Workers, Men And Women, And Children Of Tender Age Are Not Abused And That Citizens Are Not Forced By Economic Necessity To Enter Avocations Unsuited To Their Age Or Strength .Article 41 Obligates The State Within The Limits Of Its Economic Capacity And Development To Make Effective Provision For Securing The Right To Work, To Education And To Provide Assistance In Cases Of Unemployment Old-Age, Sickness And Disablement And In Other Cases Of Undeserved Want. Article 43(3) Requires The State To Endeavour To Secure Amongst Other Things Full Enjoyment Of Leisure And Social And Cultural Opportunities.

Para 33: Recall At This Stage The Preamble , The Flood Light Illuminating The Path To Be Pursued By The State To Set Up A Sovereign Socialist Secular Democratic Republic .Expression, “Socialist” Was Intentionally Introduced In The Preamble By The Constitution (Forty Second Amendment) Act, 1976.In The Objects And Reasons, For Amendment Amongst Other Things, Ushering Of Socio-Economic Revolution Was Promised. The Clarion Call May Be Extracted:

“The Question Of Amending The Constitution, For Removing The Difficulties Which Have Arisen, In Achieving The Objective Of Socio-Economic Revolution ,Which Would End Poverty, Has Been Engaging The Active Attention Of Government, And The Public For Some Time”.

“It Is Therefore, Proposed To Amend The Constitution To Spell Out Expressly The High Ideals Of Socialism… To Make The Directive Principles More Comprehensive….”

What Does A Socialist Republic Imply? Socialism Is A Much Misunderstood Word. Values Determine, Contemporary Socialism Pure And Simple .But It Is Not Necessary At This Stage To Go Into All Its Ramifications. The Principal Aim Of A Socialist State Is To Eliminate Inequality In Income And Status And Standers Of Life. The Basic Framework Of Socialism Is To Provide A Decent Standard Of Life To The Working People And Especially To Provide Security From Cradle To Grave. This, Amongst Others, On Economic Side Envisaged Economic Equality And Equitable Distribution Of Income. This Is A Blend Of Marxism And Gandhism Leaning Heavily To-Wards Gandhian Socialism. During The Formative Years, Socialism Aims At Providing All Opportunities For Pursuing The Educational Activity. For Want Of Wherewithal Or Financial Equipment, The Opportunity To Be Fully Educated, Shall Not Be Denied. Ordinarily, Therefore, A Socialist State Provides For Free Education From Primary To Ph.D., But The Pursuit Must Be Done By Those Who Have The Necessary Intelligent Quotient And Not As In Our Society Where A Brainy Young Man Coming From A Poor Family, Will Not Be Able To Prosecute The Education For Want Of Wherewithal While The Ill-Equipped Son Or Daughter, Of A Well-To-Do Father Will Enter The Portals Of Higher Education, And Contribute To National Wastage. After The Education Is Completed, Socialism Aims At Equality In Pursuit Of Excellence In The Chosen Avocation, Without Let Or Hindrance Of Caste, Colour, Sex, Or Religion And With Full Opportunity To Reach The Top Not Thwarted By Any Consideration Of Status, Social Or Otherwise. But, Even Here, The Less Equipped Person, Shall Be Assured Of A Decent Minimum Standard Of Life And Exploitation In Any Form, Shall Be Eschewed. There Shall Be Equitable Distribution Of National Cake , And The Worst Off Shall Be Treated In Such A Manner, As To Push Them Up The Ladder. Then Comes The Old age In The Life Of Every One, Be He A Monarch Or A Mahatma, A Worker Or A Pariah. The Old Age, Overtakes Each One, Death Being The Fulfillment Of Life Providing Freedom From Bondage. But, Here Socialism Aims At Providing An Economic Security To Those Who Have Rendered Unto Society By What They Were Capable Of Doing When They Were Fully Equipped With Their Mental And Physical Prowess. In The Fall Of Life, The State Shall Ensure, To The Citizens, A Reasonably Decent Standard Of Life, Medical Aid, Freedom From Want, Freedom From Fear, And The Enjoyable Leisure, Releiving The Boredom And The Humility Of Dependence In Old Age. This Is What Article 41 Aims When It Enjoins The State To Secure Public Assistance In Old Age, Sickness And Disablement. It Was Such A Socialist State, Which The Preamble Directs The Centres Of Power, Legislative, Executive And The Judiciary-- To Strive To Set Up. From A Wholly Feudal Exploited Slave Society To A Vibrant, Throbbing Socialist Welfare Society Is A Long March, But, During This Journey, To The Fulfillment Of The Goal, Every State Action, Whenever Taken Must Be Directed, And Must Be So Interpreted, So As To Take The Society One Step Towards The Goal.

PARA-34.To Some Extent, This Approach Will Find Support In The Judgement In Minerva Mills V. Union Of India. Speaking For The Majority, Chandrachud, C.J. Observed As Under(SCC P.654, Para 57).

“This Is Not Mere Semantics. The Edifice Of Our Constitution Is Built Upon The Concepts Crystalised In The Preamble. We Resolved To Constitute Ourselves Into A Socialist State, Which Carried With It, The Obligation To Secure To Our People, Justice--- Social, Economic And Political. We, Therefore, Put Part-IV Into Our Constitution Containing Directive Principles Of State Policy Which Specify The Socialistic Goal To Be Achieved.

At A Later Stage, It Was Observed That The Fundamental Rights Are Not An End In Themselves, But, The Means To An End, And The End Is Specified In Part-IV.Bhagawati J. In His Minority Judgement After Extracting A Portion Of The Speech Of The Then Prime Minister, Jawaharlal Nehru, While Participating In A Discussion, On The Constitution (Fifth Amendment) Bill, Observed That The Directive Principles Are Intended To Bring About A Socio-Economic Revolution, And To Create A New Socio-Economic Order, Where There Will Be The Social And Economic Justice For All And Everyone, Not Only A Fortunate Few, The Teeming Millions Of India, Would Be Able To Participate In The Fruits Of Freedom And Development And Exercise The Fundamental Rights. It Therefore, Appears To Be Well Established, That While Interpreting Or Examining The Constitutional Validity Of Legislative / Administrative Action, The Touchstone Of Directive Principles Of State Policy, In The Light Of The Preamble Will Provide A Reliable Yardstick To Hold One Way Or The Other.

PARA-35:. With This Background, Let Us Now, Turn To The Challenge, Posed In These Petitions. The Challenge Is Not To The Validity Of The Pension Liberalisation Scheme. The Sceheme 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 Retired, From Service After A Certain Date. In Other Words, They Challenge 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.

PARA-36:Having Set Out Clearly, The Society Which We Propose To Set Up, The Direction, In Which State Action Must Move, The Welfare State Which We Propose To Build Up, The Constitutional Goal Of Stepping Up A Socialist State And The Assurance In The Directive Principles Of State Policy, Especially, Of Security In Old Age At Least To Those Who Have Rendered Useful Service During Their Active Years, It Is Indisputable, Nor Was It Questioned, That Pension As A Retirement Benefit, Is In Consonance With And In Furtherance Of The Goals Of The Constitution. The Goals For Which Pension Is Paid, Themselves Give A Fillip And Push To The Policy Of Setting Up A Welfare State, Because, By Pension, The Socialist Goal Of Security From Cradle To Grave Is Assured At Least When It Is Mostly Needed And Least Available, Namely, In The Fall Of Life.