Now let us see our arguments on revision of pension.
LIC is well known for creating anomalies such as the one during 1975-1985, when for instance, an Officer of the rank of a Divisional Manager was getting a total pay less than his own stenographer. The revision of 1997 resulted in gross injustice in two employees recruited on the same date, but one in a higher cadre four steps ahead than the other, as a result of promotions earned, getting a smaller pension than the one who retired in a lower cadre. Even where two employees on the same grade and appointed on the same date who retire, say on 1-7-97 and the other on 1-8-97, the one who retired earlier will get a much lower pension. The LIC was aware of this injustice, as its recommendations to its Board, was as a result of this realisation. Still no action was taken to redress the grievance and every imaginary argument is advanced to deny equality. The Govt. is prepared to extend OROP to the armed forces now. The Vth & VI Pay Commissions Recommendations contain provisions for giving increases in pension.
The LIC Pension Rules are drafted on the lines of the Central Govt. Pension Rules. The chairman of the LIC is empowered to adopt the Central Govt. Pension Rules in situations where LIC Pension Rules are not clear. In fact he can even implement the Order of the SB of the Jaipur HC. Now there is the latest demand, by our own Law Makers, to enhance their pension by as much as 75%. It is reported that the Govt. is planning to introduce a Bill, in the Monsoon session of Parliment, to rectify an anomaly under which the Judges selected and appointed from the Bar to the HC Bench, get lesser pension than those from the State Judicial Services. This proposal to amend the High Court Judges (Salaries and Conditions of Services) Act, 1954 is coming more than a year after a SC ruling that such a discrepancy must be removed.
As compared with all this, LIC pensioners are only seeking to remove the acknowledged anomalies that have crept in. The liability arising is, a fast reducing sum for the simple reason that the revision is applicable only in the case of a very limited number of pensioners whose age is now more than 70yrs. There appears to be no application of mind, in the decision and in the approach to file appeals, without any valid legal or moral responsibility.
Not appreciating the recommendations of its Board, acting on the basis of LIC’s own brief to it, which the LIC said was to remove anomalies that have arisen, tantamount blowing hot and cold and insensible. It is to be remembered that the LIC Board consists of two members at Secretaries level of the Govt. besides others nominated. The Secretaries level representatives of the Finance Ministry after going with the resolution, turn head down, soon after reaching their seat, to say no to the same recommendation. Were they not aware of the agenda for the Board Meeting and come prepared. The SC should see through the game of holding with the hare and running with the hound, adroitly adopted here. In such a case where is the need for an ornamental and dumb Board and a representation for the Govt.
And finally let us consider the technical points and the logic of the present Appeal. The Govt. was made a party to the writ filed before the SB of the Jaipur HC. The Govt. appeared and argued the case through their counsel. After losing the case, LIC alone appealed against the decision of the SB. The DB had given specific notice to the Govt. to specially hear the Govt. but the Govt, did not opt to file even an affidavit. Under the circumstances, after many adjournments, the DB of the Jaipur HC concluded that Govt. have no grievance and held that by the decision of the SB, the LIC has no grievance and dismissed the appeal. The Review petition of the LIC was also dismissed for devoid of merit.
- The special leave petition of LIC was also dismissed. The dismissal is for a technical reason but is that the only one reason. In my opinion, the stronger and more pertinent legal point is, according to the decision of the DB itself, the LIC, being a separate person besides the Govt., is not aggrieved and in the circumstances of the case, the points raised on Sec.48 Of the LIC Act and by the decision of the Court, if at all there is legal grievance, it is only the Govt. that is aggrieved. There is no contest by them before the DB and therefore, LIC by itself, has no cause of action to file the Special Leave Petition or the Appeal. With no lis, the Appeal itself is not maintainable. The writ filed against Sri Asthana is also not maintainable. He is a humble citizen trying to establish his right under Art.14 & 16 of the Constitution of India. What is that the Govt. trying to enforce by the writ, which with all its power vested under various statutes the Govt. is not able to enforce? And what the Judiciary can do if the Govt. itself feel helpless. The judiciary can only interpret laws and the Govt. if it feels helpless, their choice has to surrender. Their option was to seek legal remedy and by not choosing to file an appeal, they have surrendered that right course of action.
- The writ petition now, is only an attempt to get a (lost) foot hold in the case. They are trying to get a new definition of, perhaps, the Nakaras case and that is asking for the re-examination of that decision. It will be therefore a hypothetical case as well as the other points raised in the Appeal. There are no new points of law that have been argued and any other proposition is best suited for an Academic discussion in a mock trial in a law school. Perhaps news paper reports of a letter written to the Prime Mininster by one of his own party member, high lighting the “poor judgement” of the law officers and its own Secretaries pertinently applies in our case, where a legal principle established by the ruling of a Constitution Bench is sought to be annulled, to clothe the Executive with the veto power by pleading that a High Court Judgement is subject its nod. It is clear with the right of appeal lost due to failure to appear before the DB of the Rajasthan HC in the appeal, review petitions, the SLP, the Govt. has foregone its right to hear and perhaps the present writ petitions against Shri Asthana, are an afterthought of the doubt on the maintainability of the Appeal itself.
In the ultimate analysis, there is no doubt that the LIC is engaged in a vexatious litigation, inviting exemplary damages. Our case is very simple that may be disposed without much arguments and let me conclude by saying: This appeal is against the finding of the Supreme Court, that there is discrimination in grouping the pensioners into groups, for the purpose of conferring benefits. The HC’s had no difficulty in deciding because of the clear cut decision of a Constitution Bench of the SC, which they have correctly followed. Once breach of a Fundamental Rights is established, the smudge of illegality arising cannot be washed away by the Govt. The Govt. is bound to act as per the direction of the HC/SC. All the other arguments raised are irrelevant and the Appeal by the LIC is not maintainable and the writs by the Govt. ill conceived and devoid of merit for the reason they have forfeited the right of appeal and the appeals are hopelessly time barred. There is no scope for the SC to determine, if there is any reasonable delay, recognisable in law, to condone because legal right once lost is irredeemable through any other process. The Govt. having not opted to contest, their lost chance is attributable only to their callous attitude at the relevant time. A writ is not a solution and there is no illegality in the decision of the HC’s. A writ petition is not an appropriate solution in the face of negligence to file an appeal. LIC is not a party considered aggrieved by the DB of the Jaipur HC. The Govt. is not a party before that Court at all and there is no judgement against the Govt. to be appealed against.
Friends, these are my thoughts and every one of the pensioners, especially those with legal back ground, may add, supplement or record their difference, so that a considered view is before our captains to prepare the grounds of our defence.
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(Concluded)