The recent two Judges Bench of SC opened our
eyes as to why proper counseling in the court is necessary to avoid massacre in
the ruling. Let us examine.
We are all aware that five judges
Constitutional Bench of SC headed by CJI
YV Chandrachud delivered its historical
judgement on 17.12.1982 upholding Article 14 of the Constitution to decide the
case of DS Nakara and others Vs Union of India quashing GOI liberalization of
pension by issuing a memorandum dated 25.05.
1979 by which the formula for computation of pension in respect of employees
governed by the Central Civil Services (Pension) Rules, 1972 was made
applicable to employees retiring on or after March 31, 1979 and by issuing another
memorandum on 23.09.1979 extending the
same, subject to certain limitations, to the Armed Forces' personnel retiring
on or after 01.04.1979. Petitioners 1 and 2 of the case who retired in the year
1972 from the Central Civil Service and the Armed Forces' service respectively,
and petitioner No. 3, a registered society espousing the cause of pensioners
all over the country challenged the validity of the above two memoranda in so
far as the liberalisation in computation of pension is concerned.
The Constitution Bench ruled :
“Prior to the liberalization
of the formula for computation of
pension, average
emoluments of the last 36 months' service of the employee
provided the measure of pension. By the
liberalised scheme, it is now reduced to average emoluments of the last 10
months' service. Pension would now be on the higher side on account of two
fortuitous circumstances, namely, that the pay scales permit
annual increments and usually there are promotions in the last one
or two years of the employee's service. Coupled with it, a slab system for computation has been
introduced and the ceiling of pension has been raised.
Pensioners who retired prior to the specified date would suffer
triple jeopardy, viz., lower average emoluments, absence of slab system and
lower ceiling.
They further ruled :
“(i) Pension is a
right; not a bounty or gratuitous payment. The payment of pension does not
depend upon the discretion of the Government but is governed by the rules and a
government servant coming within those rules is entitled to claim pension.
(ii) The pension
payable to a government employee is earned by rendering long and efficient
service and therefore it can be said to
be a deferred portion of the compensation for service rendered.
(iii) Pension
also has a broader significance in that it is a social-welfare measure
rendering socio-economic justice by providing economic security in old age to
those who toiled ceaselessly in the hey-day of their life.
(iv) Pension as a retirement benefit is in consonance with and
in furtherance of the goals of the Constitution.
The preamble to
the Constitution envisages the establishment of a socialist republic. The basic
framework of socialism is to provide a decent standard of life to the working
people and especially provide security from cradle to grave. Article 41 enjoins
the State to secure public assistance in old age, sickness and disablement.
Every state action whenever taken must be directed and must be so interpreted
as to take society one step towards the goal of establishing a socialist
welfare society.
'…….being in service and retiring subsequent to the specified
date for being eligible for the
liberalised pension scheme and thereby dividing a homogeneous class, the
classification being not based on any discernible rational principle and having
been found wholly unrelated to the objects sought to be achieved by grant of
liberalised pension and the eligibility criteria devised being thoroughly
arbitrary, we are of the view that the eligibility for liberalised pension
scheme of being in service on the specified date and retiring subsequent to
that date in impugned memoranda, ....violates Art. 14 of the Constitution and
is unconstitutional and is struck down. Both the memoranda shall be enforced
and implemented as read down as under: In other words, in Exhibit P-1, the words: ‘that
in respect of the Government servants who were in service on the 31st March,
1979 and retiring from service on or after that date"and in Exhibit P-2,
the words:"the new rates of pension are effective from 1st April 1979 and
will be applicable to all service officers who became/become non-effective on
or after that date’ are unconstitutional and are struck down”
But in GIC pensioners case, Manojbhai N Shah & Others Vs UOI & Others with 15 transfer cases from different courts with contrast
judgements, the SC Bench of J Anil R
Dave and J Shiva Kirti Singh delivered judgement on 07.01.2015 :
“…….41. In the circumstances, we are of
the view that the employees who had
opted for retirement under the Scheme
would not be entitled to additional pension upon revision of pay effected under
the Notification dated 21st December, 2005.
42. All judgments directing the Employers
to make additional payment of pension to the employees retiring under the
Scheme are set aside and, accordingly, all the transferred cases are finally disposed
of and Special Leave petition (C)
No.10903 of 2011 is dismissed.”
It is really surprising that In the entire
proceedings of the case, Nakara judgement was not referred to the bench in
arguments of the petitioners’ counsel and the Bench while delivering its
verdict simply relyed on Govt pension
rules and UOI memoramdum of
liberasitation of pension overlooking
powers of Art 14 over the rules and procedures which was relied by
Nakara case Bench. It amply exhibits how far effective argument is necessary to
establish law.
We are aware of the fate of contempt
petition in Rajsthan HC Jaipur Bench. Our Chairman opined very recently that SJ
Jaipur Bench decided the case against law. We therefore may apprehend in our pension case in SC, if argument is not full
proof and relevant in reference to violation of Indian Constitution in
reference to Nakara verdict, history of 2015 for GIC pensioners may also repeat for LIC pensioners. So it is crystal clear why
prudent argument on violation of Constitution before the Bench headed by J
Dipak Mishra is necessary. Complacency and lack of pro-activity that GIC’s case
is different may put us in troubled water.
BASUDEB DAS, KOLKATA, 8th
January, 2015