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Thursday, April 14, 2016

SUPREME COURT JUDGMENT







I refer to the write up titled 'Interpretation of the Supreme Court judgment' by Mr H K Aggarwal which warrants a response.





He has interpreted the para 23 of the judgment dt 31/3/2016 which states

” Regard being had to the piquant situation, we are inclined to set
aside the orders passed by the High Courts of Rajasthan, Delhi and
Punjab & Haryana at Chandigarh and transfer the writ petitions from
the High Courts of Rajasthan and Punjab & Haryana to the High of
Delhi………………". 




He has stated, “However some of our learned friends have interpreted
the word "inclined to set aside" as if the SC has set aside the orders
passed by the above three High courts” 


These remarks seem to indicate that in his opinion, the Supreme Court
Bench has not set aside the three HC judgments.

First of all, we need to remember that what was delivered on
31/3/2016 was a judgment and not an interim order. We have to consider
the para. 23 in two parts,viz, 
  • (1) inclination to set aside the orders passed by the High Courts of Rajasthan, Delhi and Punjab & Haryana at Chandigarh and 
  • (2) inclination to transfer the writ petitions from the High Courts of Rajasthan and Punjab & Haryana to the High Court of Delhi………………"
If the “inclination” under (2), has been converted into a decision by the SC, it cannot be different for inclination under (1) .



If we
imagine the decisions to be different under both the inclinations,
then we are likely to arrive at a wrong, illogical and inconsistent
conclusion. 
 Let us not be under any illusion or wishful thinking that the HC
judgments are alive.



Only the Writ Petitions are kept alive. The Delhi
HC has to arrive at a decision by considering these Writ Petitions
afresh latest by 31/8/2016. Let us accept this reality.

The saving grace is that our pension case has not been killed by
allowing the three Civil Appeals summarily. The CAs have only been
disposed of with some directions.
 The ‘disappointment’ is the upholding of powers of the Central
Government under Sec 48, which in my opinion is immaterial to the
strength of our case where justice has to be done on the touchstone of
Articles 14 and 16 of the Constitution.

The other negative is that the DR anomaly created for pre-August 1997
retirees has neither been argued about nor resolved in the judgment.
Unless this anomaly is removed, pension cannot be anomaly-free in the
Corporation and even up gradation of pension will become anomalous.
Family pensioners of pre-August 1997 retirees (more than 12000 in
number -both living and deceased) are the hardest hit by this DR
anomaly at present. 
  • The positives are (1) the pensioner-friendly observations of the Bench of course without expressing any opinion pending consideration by Delhi HC and (2) the ordering of payment of Interim Relief at 40% as per Para 3A of Appendix IV to all similarly placed pensioners (vide para 27 of judgment) which can be done only by providing one-time weighted upgradation of pension on 1/8/1997 for all pre-August 1997 retirees or in other words revising the pension as at 1/8/1997 after providing wage revision on that date. This direction is, in my calculations, bound to result in payments amounting to more than three times what LIC had calculated earlier for payment of IR using a faulty method. Now there is no scope for adopting a faulty method except at the cost of Contempt of Supreme Court order.

I am in agreement with Mr Aggarwal that we should proceed jointly and unitedly as may be advised by our senior Counsels who have pleaded our case in the Supreme Court. But will it happen is the question? Let all case managers think

 Greetings.

 C H Mahadevan