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Sunday, April 17, 2016

A NOTE ON THE SC JUDGMENT OF 31-3-2016

                                      
The recent order by the Apex Court  reminds me of the SNAKE AND LADDER game  whereby  we have to start afresh to fight for our cause of 100% DR neutralization  and updation of pension .The aura  of the  confidence  created by the orders of the THREE HIGH COURTS  has been taken away by the Apex Court .How ever the Hon. Judge encourages the septuagenarians  to fight another round of litigation in the Delhi  High Court  on the issue of the Constitutional  validity  of para 3A of Annexure IV to Rule 37 , and the issue of updation of pension to the  Post Aug.97  retirees  and  other matters.CAN WE FIGHT  AND FIGHT TO WIN .
The court accepted the submissions of Assistant  Solicitor General that the Single Judge and the Division Bench committed illegality in deciding the issue of Law.(para13).The  Hon. Judge stated “the thrust of the matter is whether approval of Govt. is necessary. Sri Nidesh Gupta drew our attention to Rule 55. (para14).On scanning  the rule the court  observed  “ we are absolutely clear that it does not confer power on the Chairman to issue instructions that can travel beyond the Rules. The  Board is not authorised  to take the decision on matters which are in the domain of the rule making Authority. A perusal of Sec48 makes it crystal clear that conferment of benefit either pension  or ancillary thereto has to be conferred by the Rules and such rules are  to be tabled before the parliament. It is our considered opinion that when there are no rules no benefit can be granted on the basis of Resolution .This being the legal position the H.C  could not have held to the contrary on the basis of the concession given by the counsel for GOI” (para15).. Having stated so in all possibility we could have proceeded to record the conclusion, but a significant one the controversy does not see the sunset with such immediacy.(para16). Thank God and the Hon. Judge. Again by para 23 it was held “regard being had to the piquant situation we are inclined to set aside the orders  passed by the three H.Cs and transfer the Writ Petitions from Rajasthan ,Pun &Haryana to H.C of Delhi to decide the Constitutional validity of para 3A of the appendix IV to the rules as argued by Sri Panchu and also deal with the cases of the pensioners who have retired after cut off date to consider the contentions raised by Mr. Guptha and other contentions to be raised .“We may clarify we have not expressed any opinion on the merits of the case except that the resolution could not become operative unless it was conferred the status of a rule as provided  under Sec.48”. So far so good  we obtained fresh lease to fight the case of pre and post Aug.97 pensioners.
The  S.C  at the very out set observed” the present picture is not a happy one L.IC  at one point of time was enthusiastic to confer certain  benefits on the respondent employees may be without appreciating the legal nuances .Its action instilled a CONCRETE HOPE in thousands of employees.(para2).Again in (para26) the court dealt with  the HOPE.“ the respondents harbored hope. This  is not unfounded in as much as the revisions in pension were earlier made by issue of certain circulars issued by chairman in exercise  of powers conferred under the rule55.  Whether the hope was reasonable or not need not be commented upon, but the fact remains that certain respondents are septuagenarians and they have to fight another round of litigation in the H.C. We feel the pain while remanding the matter but   we have no option as the pleadings are not adequate as it should have been while assaulting constitutional validity of a provision. It is settled law  that  he who assails the constitutional validity of statutory provision of a rule has to specially assert  the grounds for such challenge.
The purpose of saying all this is as the Counsel  agonizingly contend that the amount   of pension is very paltry and it is difficult to sustain in the present day . The L.I.C SHOULD HAVE BEEN GRACIOUS ENOUGH TO RECOGNISE  THE SERVICES  RENDERED BY THEM  AND THE G.O.I  SHOULD HAVE COME WITH AN AFFIRMATIVE RESPONSE WHEN THE RESOLUTION WAS PASSED BY  THE L.I.C. We have already adjudicated the said facet but we are remanding the matter to the High Court on a different count.” The I.R @40%to all similarly placed pensioners  is subject to final out come of the case at Delhi H.C.
Thus  the S.C blew hot and cold, held that without the creation of rules by the rule creator ,the G.O.I , benefits  can not be given to the pensioners.The board resolution is not valid because of non approval by G.O.I. The  orders of the three H.C  are set aside. If we recollect justice Singhvi  dismissed  the SLP of L.I.C  and  the orders of the 3 H.Cs not stayed . Now  these orders  set aside.Where  do we stand now.How to fight more so when the rules are very clear . What is the power of the corporation to amend rules 36,37,39 as per G.O 353(E) Dt.22-6-2000. What is the scope and operation of rule 55A-power to relax.Who has to implement Rule 56 which confers to the pensioners  the benefits  available to the central govt. employees.The note of the ED(p) as recorded by the S.C mentioned in para (8)  explains the hardship faced by the pensioners and the management  and suggested remedies. The L.IC should have amended the rules of D/R as per the notification dt.22-6-2000.Yet L.I.C passed the resolution and sought approval of G.O.I.The G.O.I should  have acted  as perrule55A. Similarly  rule 56 should have been  implemented by L.I.C on its own as the rule does not envisage clearance by G.O.I.Rule 36, and 55B provide for updation of pension.It is a fact that the L.I.C  has been utilizing the amending  power  as provided in the G.O dt.22-6-2000.L.I.C also invoked rule 56  in 2012 to pay family pension when a pensioner was missing  as per the Central Govt. rules.Sec. 48 can not take away the constitutional rights , property rights  and the human rights of the pensioners.The L.I.C &G.O.I have to follow the rules . So it is time to high light the points  and ask for the review of the matter by  S.C.Can we expect justice at Delhi H.C when L.I.C brings to the notice of the H.C the comments and discussion of the points dealt by the S.C in their order dt.31-3-2016.
V.S. PRAKASARAO    VISAKHAPATNAM.