Arising
out of the remarks, two main points comes out. One is the
discriminative point and the other is the Board Resolution for removal
of gross anomalies. Even the latest wage revision has given rise to the
same type of anomalies that have arisen with every earlier wage
revisions. The Board Resolution is an acknowledgement of this fact, and
hence the recommendation to the Govt to put an end to this gross
discrimination. Both the points are crucial for our demand for parity in
the rate, manner and method of the D.R neutralization and revision to
remove the absurdity of a retired Senior Officer getting a very low
pension than a retiree lower down in the grade structure.
For the first point for parity in the rate, manner and method of neutralization I
again repeat my argument, there is no necessity for another
notification, for two reasons. Forget for some time the Sec.48
notification. At the time of notification on the revised pattern for
payment of DA to those who retired from 1-8-97, the Govt was well aware
of the decision of the SC delivered in 1983 itself in the now leading
case of Nakara. It was a decision against a G.O issued by the Govt. and
that is a law of precedence. The Jaipur HC correctly applied that ruling
while deciding our case. This decision was that of a Constitution Bench
and the Bench hearing our case will find hard to ignore it. Since the
point of contention is violation of the Fundamental Rights under the
Constitution, there cannot be a different opinion from saner legal
pundits. The Jaipur HC has not struck down the impugned notification but
only held that the benefits of the notification are equally applicable
to all retirees as a single class. All these arguments are based decided
SC cases.
On
the basis and strength of the Board Resolution, nobody seems to have
any idea. While the Govt’s thinking seems to be that of the Shakespearean
era of the Divine Right Theory, the LIC’s thinking is to go by his
Masters Voice, making one to wonder whether LIC is autonomous or only a
department of the Govt. (and even then revision is a precedence). Even
some of our own retired friends seems to be bewildered by the presumed
iron curtain of Sec.48 and fail to see the inherent power of the LIC as
an autonomous institution. In fact Sec.48 is no impediment and the Govt.
cannot use that section to deny any legal right protected by the
Fundamental Rights of equality of law and equal protection of laws.
Under microscopic examination, it will be seen as violating the basic
structure of the Constitution. Hidden in the LIC Act is the power of the
LIC to determine the terms and Conditions of service of its employees
!. The truth is none of us have any need to examine Sec.48 or consider
its weakness. But now the Govt says it is omnipotent and do whatever it
wants to do with it, even against the provisions of the Constitution!!.
If we are to examine it in the lime light of the Constitutional
provisions, it will become clear that the Govt. has no such powers as it
is made out to be.
This approach is to add support to our argument that there is no
alternate solution to the perpetual problem of discrimination arising
with each revision of the salary structure. With the Resolution of the
LIC board to support our claim, proving legally LIC has powers to decide on the term and conditions of service of its employees is the stress here.
The
final para of the judgement in Nakaras case itself supports this
argument and of course there are many other case laws also.
To
conclude as far as DR anomaly, there is no need for any notification as
a decision based on a judgement of a Constitution Bench needs no
approval from the Govt and is enforceable at the pain of contempt of
court. Further factually the impugned notification still survives, with
the benevolent reading given by the SB of the Rajasthan HC, obviating
the need for further notification.
As
for the revision, it is essential to revise pension also along with the
revision of salary structure, if discrimination is not to be
perpetuated. The LIC has inherent powers to do this but the Chairman
lacks the courage to exercise it. The Govt’s claim, only it has the
powers, is hollow, and the assumed powers under Sec.48 is against the
provisions of the Constitution. Nowhere in the LIC Act is a provision,
to show that it is the sole privilege of the Govt. The SC by the
exclusive powers of interpretation of law may enforce its writs. Finally
to quote Justice V.R.Krishna Iyer “It is elementary that a non obstante tail should not wag a statutory dog….” The tail refers to a rule made by the Govt. against a statutory
provision and the import is that when the head is there, the tail should
not wag.
A.S. RAMANATHAN