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Wednesday, April 20, 2016

AS RAMANATHAN


First an apology for some goof up that has happened in the penultimate para of my last write up. I don’t know how it has happened. Everything became incoherent. May be because of the noncooperation of the hand with the head or mix up at the time of editing at my end, for which I seek to be excused. I have removed the ambiguous part and to show what I intended to write, in the next para.

It is also imperative to bring out that the discriminations brought out are the only ones, but many may recur with each revision of pay scales, that it is necessary to follow the procedure decided in the Nakaras case and in the Central Civil (Services) Pension rules, as a result of the 1982 Nakaras case decision. Our Pension Rules were also framed under powers delegated under Sec.48, which have the force of law, which can also be directed to be followed by a judgement of the HC. Here it may be also pointed that Sec.56 is binding on the LIC as well as the Govt. and about which neither of them have bothered. Without such a direction, there is every chance for multiple future litigation, robing the valuable time of the Court, creating a docket explotion threatening the system of judicial administration.

After seeing our grievance, we have seen a cause for action. Whatever words have been used to describe our grievance, it finally boils down to calling it a discrimination, the sounding of which is enough to raise the interest of the court as indicated by the SC, and we will have no problem to call it violating our Fundamental Rights.

Earlier when LIC filed an appeal against the judgement of the Jaipur HC raising one of the contention that in the absence a notification u/s 48 of the LIC Act, I pointed out the fact that there is no need for a fresh notification because the notification issued u/s 48 giving higher benefits of DR to those who retired earlier to 1-8-1997, is valid and subsisting because Hon. Justice Bhandari of Jaipur HC has not stuck down that notification. What the Hon. Judge did was to give a benevolent reading that all pensioners are entitled to be treated alike, in view of the decision in the Nakaras Case (Nakaras case itself and another SC decision in Pradip Kumars case supports the legal fiction that such judicial interference is permissible and is not amounting to invasion of the legislative powers of Parliament). That case has also been elaborately dealt with, discussed in his judgement, applied to our case, as our case is pari passu the same as that case; what was pleaded by us quoting Nakaras case, was discrimination and what the Hon. Judges finding was also discrimination. Under Art.226, the HC is empowered to the issue writs of the type described and also issue such direction as are deemed necessary under the circumstances of the case. The LIC Board Resolution has only evidentiary value, as a proof of our grievance that would have eclipsed all other arguments of the LIC/Govt. As contended by Shri KMLA’s counsel, upholding plea of discrimination by itself and the order to treat all retired pensioners as a single homogenous class by the Hon. Judge in view of the Constitutional Bench decision in the Nakaras case, (which is binding on the HC as well as the SC Bench that heard our case), is sufficient to uphold our contentions. Now I am opening another door to our arguments to support our contention.

Our only grievance is discrimination. Our case is similar in all respects to the Nakaras case and the decision of the Constitutional Bench is applicable on the points of removal of discrimination but also highlighting the recurring nature of the anomaly resulting in the recurrence of it with every revision of pay scales, if not addressed to. Going further that Constitutional Bench also gives a solution to avoid it by directing to re-fix the basic pension by revising as if it is a pay revision.

All our Pay Revisions were codified as was the case of our Pension Rules through the Sec.48 route. Forget for the time being whether such rules are within the Constitution, whether the LIC itself could have done it rather than the Govt. etc. As the notifications are done by the Govt. by virtue of the powers u/s 48, the rules have the power of law and they are valid. But if the rules are afflicted with virus of discrimination, Art.14, 16 & 21 are attracted and the HC’s and SC gets power under Art. 226 or 32 to interfere either by way of declaring them inoperative or striking down certain words alone, if the other words used serves the purpose, or even give a new direction to remove the infringement as per Art.13, which empowers them to make the rules not to be in conflict with the Constitutional provisions. The Constitution being the Supreme Law of the Land none, even the Parliament can legislate, ignore or overrule against conflicts detected. Therefore so long as the HC/SC have not ruled against our Pension Rule No.55 (now 55 (A) & (B) as well as 56, they are valid and enforceable. No further instructions are required to be issued by the Govt. to implement them as otherwise the purpose of framing the Rule itself will be defeated. We know of no such instructions issued in respect of other Rules of our Pension Rules. After issue of the notification under Sec.48, the only thing is that they be gazette and also placed before both houses of the Parliament. If Parliament does interfere with the notification, within the prescribed time, such rules, per se, becomes enforceable just like any other law.

Now we have the following subordinate legislations, that have the force law, for consideration.

1) Rule No.37 for D.A relief payable, subject to revision as a result of increase in consumer price index or the orders issued under Sec.48, as was done for increasing the rate of DR to those retired on and from 1-8-1997, which was found in conflict with Art.14 and hence made equally applicable to all as a homogenous class.

2) Rule No.55 which authorizes the Chairman to issue instructions for implementation of the Pension Rules. It is here the Hon. Bench of the SC missed the point, that Rule 55 is also a product of Sec.48.

3) Rule 56 reproduced in here.

Don’t, you pensioner friends, see this by itself gives sufficient powers to give us what we want and deserve, without any reference to the Govt. I WOULD LIKE TO HIGHLIGHT THE POINT THAT RULE 56 OF THE PENSION RULE IS SUFFICIENT TO GIVE US WHAT IS GIVEN TO THE CENTRAL GOVERNMENT SERVANTS because the rules is emphatic in that in “Matters relating to pension and other benefits in respect of which no expression has been made in this rules shall be governed by the corresponding provisions contained in the Central civil Service (Pension) Rules, 1972 or the Central Civil Services (commutation of Pension) Rules, 1981 applicable for Central Government employees. Needless to mention it covers revision of pension, after the Nakara's case).

What is required is to include points suggested above in our further affidavit to the Delhi HC. We can openly mention this because there cannot be any twist or turn in respect of them being facts.

A.S.RAMANATHAN

(to be continued)