POST-2

Now coming to the points of our final arguments, I seek your indulgence, if you are feeling bored reading the same points on which I have been writing time and again. The purpose of this imposition is not to leave any points since we have to throw all our weapons at our adversaries, so as to cause maximum damage.

Technical points can be relegated to the last. The strongest point in our case is the decision of the SC in  Nakaras case holding that there cannot be a division of the retirees into batches by their retirement dates, for the purposes of extending benefits, and denial of any benefits by such a method of segregation is discrimination, amounting to violation of the Fundamental Rights under the Constitution of India. Nakara’s case was decided by a Constitution Bench of the Supreme Court consisting of 5 Judges and the Bench of two judges hearing this Appeal will have no difficulty or reason not to follow suit. A number of cases have been decided by different courts by following this ruling, and this ruling is the law of precedence established. Once this point is established, there is no place for any contrary view. There is also no remedy against a violation of the constitution except to follow the law laid down by the court. It is a well established legal principle that there cannot be an estoppel against a statute and more so against a constitutional proviso. There is no logic to hear, again and again, this accepted principle. Pleas of cost or the so called ‘ripple effect’ are irrelevant, for the simple reason that the benefit will accrue only to a few, who retired from the services of the LIC during the period 1-4-86 to 31-7-97.

It is to be remembered that the pension scheme itself was introduced only in June 1995, with the benefits extended to those retired from 1-4-86. It is also to be remembered that pay scales were much less then. Further pay scales were revised in 1997 and the increased benefits, including pension, were given to the serving employees, who are much larger in numbers than those retired after 1-4-86. Therefore, the logic of ripple effect is only imaginary. LIC is seeing the ripple effect only now, but not at the time extending pay revision in 1997 to a much larger number of serving employees, whose pay scales were revised upwards. Therefore the ripple effect is only a mirage in the sight of the LIC. The LIC had itself, in a note submitted to its Board for consideration, accepted that there are serious anomalies in the pension rules that require to be rectified and the cost, estimated by its own Actuaries, is not large and can be easily absorbed.
                 

The HC’s and the SC are only the two authorities to decide on the violation of the Constitutional provisions and take appropriate decision to give relief in such cases, to the affected citizens. The Legislature, Executive i.e the Govt. and the Judiciary swear to preserve and protect the Constitution before they take Office but only the Judiciary is vested with power to proclaim and punish such violation. That being so, how a High Court Judge, while deciding a case for establishing this Fundamental Right, said to have committed an error or is it not empowered to do it ? Is the Govt. not aware of the Constitutional provisions on Fundamental Rights. The SB of the Jaipur HC has not decided the case giving its own interpretations, although entitled to do so, but found exact similarities of our case and in the Nakaras case, with regard to grouping of retirees on the basis of their respective retirement dates and therefore simply followed the SC decision, which it is obliged to. If the Govt. has accepted the ruling of the SC in Nakaras case, how can they say now that the HC Judge has erred, when his decision is in line with the decision of the SC. Why the Govt. have accepted similar judgements, in favour of some of the Govt. employees ?.

When discrimination is established beyond doubt, can anything be done to avoid that, contrary to the oath of Office taken by the Executive. Can such a decision be denied by simply sleeping over it or contending that a judgement is subject to the consent or approval of the Govt.   It is not contemplated in the scheme of the constitutional form of government we practice and in any system of democracy. Our Constitution provides for the supremacy of the judiciary in matters of interpretation of law, to avoid misuse or abuse of power by the other wings of the democratic set up, lest every judgement that is against the ruling party can be vetoed by them. This is to ensure justice and fair play. The substance of this principle is to establish the rule of law. That being the case, there is the constitutional obligation that nobody shall be punished other than by an established law and every law is subordinate to the Constitution of India. An executive order or rule made the Govt., such as the one made under Sec.48 of the LIC Act, shall be lawful and within the ambit of the constitution.  Discrimination, as in Nakaras case, is an eminent example of this principle. 

The SB of the Jaipur HC had no choice, in view of the clear cut finding of the SC, on grouping of the retirees as mentioned earlier. The contention of the LIC that without a notification, it has no authority to carry out the orders of the HC becomes untenable. . In law, a person has to speak where he should and silence cannot be interpreted by someone else as an act and such silence can only go against him, who is expected to speak, as held by the D.B of the Rajasthan HC. The recent case of our friend Shri M.C.Jain, where the LIC has carried out the decision of the SC, belies this contention, in our pension case. That is why I am repeatedly saying that even if the Govt. issues a new notification denying the benefits of the judgement, it shall not be valid. 

Over and above, the notification issued under Sec.48 
of the LIC act giving benefits of higher neutralisation 
still stands and is valid and acted upon by the LIC.  
The SB of the Jaipur HC has given a harmonious 
reading to remove the discriminatory and unconstitutional 
part of the notification and held the benefits shall 
be applicable to all retirees as a single class. 
There can undoubtedly be no challenge to this fact. 
Where then is the need for another notification ?

There is also an accepted principle that once an action is held as illegal, it cannot be enforced in an indirect manner. There cannot be a back door entrance when main door entrance is blocked by law. But unfortunately, these two points were not placed before the HC’s SB or DB’s. Had this been done, there would have been no arguments on Sec.48 entitlements of the Govt. We must put forth this principle VEHEMENTLY, quoting the precedents. Every legal point/weapon in our armoury should be thrown against such silly arguments. Thus far, I believe, our case for equal treatment with our other retired friends will certainly succeed.

(To be continued)