Further to my mail sent with my comments on Madurai Bench judgment ,I googled for studying the GIC Pension Rules 1995 to check the similarity with our Pension Rules.
The numbering of Rules is different from Rule 18 under the both sets of Rules.
The Rule Nos 19 to 56 of LIC Pension Rules correspond to Rule Nos 18 to 55 of the GIC Pension Rules.Rule no 18 of LIC Pension Rules is specific to LIC covering Development Officers of LIC and hence the reduction in no of Rules.
Rule 54B of GIC Pension Rules corresponds to Rule 55B of LIC Pension Rules.
The Writ Petition filed by the GIC Pensioners perhaps did not mention the discrimination caused by Rule 54B of their Pension Rules.If it had been highlighted ,they would have been able to establish violation of Article 14 & 21 of the Constitution.
The Rule 55B in our case before SC should be a clincher for upgradation Pension at least on Central Government pattern with modified parity.
Kind regards.
C H Mahadevan
On Thursday, January 10, 2019, Colinjivadi Mahadevan <chmahadevan@gmail.com> wrote:
Dear Mr Agnihotri,
I went through the judgment in the case of GIC pensioners.It was delivered before the SC judgment dated 31/3/2016.
The SC judgment,although it did not give us relief on upgradation did show some sympathy for pensioners and had even ordered payment of 40% interim relief for at least pre-Aug1997 retirees.
We need to focus on relevance of D S Nakara judgment from two dimensions:
1.The equitable neutralization between retirees and serving employees in DR/DA was ensured only from 1/8/1997,while there was inequity before 1/8/1997.
2.Rule 55B constituted liberalization of the pension scheme for Chairman/MD of LIC retired after 1/1/1996 which created two classes of pensioners under the same pension scheme.
Both these aspects attract the ratio of D S Nakara judgment.
As regards the reference to the Central Government Pension Scheme being a non-contributory scheme,we have to be clear that our Pension Scheme is a non- contributory scheme.The creation of a Pension Fund does not mean that the pensioners are contributing to the Fund.LIC is only diverting its 10% contribution of PF to the Pension Fund.
What is more,Rule5(3) of LIC Pension Rules 1995 clearly stipulates that LIC has to keep the Pension Fund adequate at all times to meet its liabilities towards pensioners.That is the reason every year ,after actuarial valuation of the Fund,additional contributions are made to the Pension Fund which is much more than the regular contribution by way of its share of PF.Once it is a defined benefit scheme and not a defined contribution scheme is not a contributory scheme.When, sometime in 2070 ,the Pension Fund gets extinguished,the pensioners covered by the Pension Scheme have no right to what is left of the pension fund.
These are the points in our favour to be highlighted in the SC.
Kind regards.
C H Mahadevan
On Wednesday, January 9, 2019, Colinjivadi Mahadevan <chmahadevan@gmail.com> wrote:
Thank you for your detailed mail.
Now Para 3A ceases to remain the main issue with liberty given for filing fresh Writ Petitions by new petitioners.
Now all the Writ Petitions focus on upgradation of pension and we should marshal the law points for arguments.
I shall study the GIC case judgment and come back to you.
Kind regards.
C H Mahadevan
On Wednesday, January 9, 2019, MPAgnihotri <mp.agnihotri3@gmail.com> wrote:
Colinjivadi Mahadevan
Sun, Dec 30, 2018, 9:14 PM (10 days ago)
to Prasad, Subrahmanyam, somnathchhabra458, subbarao, Undisclosed, C, Ssr, Chandu, Yadati, baig, m, Sujatha, me
Dear Mr Agnihotri, 30/12/2018
In response to your note sent yesterday,I give my views as follows:
I am still wondering how Constitutional validity of para 3A came to be raised by Justice Dipak Misra when it was not the issue that was covered by Jaipur judgment. Jaipur judgment only directed that LIC may implement LIC Board Resolution and also by allowing WP no 654/2007, had directed LIC to allow upgradation of pension. Even though the Jaipur SB judgment did not specify upgradation of pension in so many words, by directing LIC to implement Board Resolution by allowing both the Writ Petitions No 6676/1998 & 654/2007 had recognized that the Board Resolution provided for upgradation of pension. Of course, the SC Order dt 31/3/2016 has ruled that the Board Resolution cannot be considered as effective unless the recommendations become part of the LIC Pension Rules 1995.
The Chandigarh judgment in 2010 and the DHC judgment on 30/1/2013 more or less endorsed the Jaipur judgment without giving separate reasoning. It is against all these three judgments that LIC had filed Appeals which were disposed of on 31/3/2016 by the Supreme Court
So it is clear that none of the three judgments had either adjudicated on Constitutional validity of para 3A or made it a basis of the respective judgment. Probably it has been focused by Class I retirees’ Federation counsel in the course of their arguments besides stressing para 3A in their WP no 184/2007.
I completely agree with you that the undue focus on para 3A is misplaced and rather we should use other strong grounds to plead upgradation. Striking down para 3A does not help pre-August 1997 retirees in any way, nor does it benefit those covered by para 3A or para 3B. As you have rightly observed, we need to take recourse to the grounds based on provisions for calculation of pension.
We can also stress on discrimination caused by Rule 55B in combination with Rule 56 which becomes particularly relevant considering that the Rule 56 necessitates application as 5th Pay Commission Recommendations which provided for upgradation of CCS pension became effective after 1/1/1996 subsequent to notification by GOI of LIC Pension Rules 1995 on 28/6/1995.
But it is interesting to note that even though SC remanded the case to DHC to examine the constitutional validity of para 3A,it had ordered 40 % interim relief payable to all eligible pensioners as per para 3A. So, on prima facie SC has recognized the constitutional validity of para 3A.
So challenge of constitutional validity of para 3A will not stand the test by the four criteria stated by you in your note.
Now the prayers made by the petitioners in their Writ Petitioners before DHC (other than Class I retirees’ Federation) and the SLPs will also matter significantly during the hearings in SC.
While going through the AIRIEF reply to the compliance affidavit of LIC,I observed that there is no mention of the glaring error in the DR rate applied to pre-April 1993 retired Class I Officers with basic pension 2130-3850 at 0.23% instead of 0.29% while paying arrears which was in contravention of the DHC judgment. This was of course included in the reply of Chandigarh petitioners.
Kind regards.
C H Mahadevan
Respected ShriMahadevan Sahab,
I have gone through your response dated 30/12/2018 to my email of 29th Dec 2018 whereby I shared my note on cases cited by SC in para 26 of the order dated 31/3/2016.
Being busy in some other matter, I could not acknowledge you mail in time. My earlier email was mainly limited to para 26 of the SC order dated 31/3/2016 which talks about the inadequacies of the pleadings. I feel I should add a few more points to explain the position with better clarity:
1. You have very correctly stated that in Writ Petitions No 6676/1998 & 654/2007, implementation of the Board Resolution by the Chairman was pleaded for removal of DR disparity and upgradation of pension. In para 13 of the judgement the position is discussed and it is stated that concession given by the Advocate of Central Government on question of law, cannot bind the Corporation and it cannot be form the foundation of a decision. Further, Rule 55 does not empower the Chairman to issue instructions beyond rules. For these reasons the judgement passed by single judge and upheld by the Divisional Bench of Jaipur Bench was set aside.
2. In para 17, it is stated that Mr. Shree Ram Panchu, advocate of Retd LIC Class 1 Federation had submitted that the petitioners had preferred WP 184 of 2007 in DHC assailing the constitutional validity of Para 3A. In para 22 it is stated that since DHC had not adverted constitutional validity of Para 3A and not decided the case independently but decided the same on the basis of the judgment of Jaipur High Court. Similarly, judgement of Chandigarh HC was also based on the judgement of Jaipur bench of Rajasthan HC.
So, though WP No. 184 of 1007 was filed assailing constitutional validity of Para 3A, discussion on the merits were not held.
3. In para 18, it is stated that Mr. Gupta (Sr. Advocate) endeavored hard to impress the bench to deal with the issue (assailing constructional validity of Para3A) but as certain facts were to be adverted and the pleadings were not adequate so the Bench restrained from the same. Mr. Gupta also submitted that there are certain employees who have retired after the cut-off date stipulated in Para 3A but they are not being given the requisite dearness relief based on subsequent pay revisions. As stated in para 21, Mr. Gupta had pleaded for pension updation submitting that non-conferment of the benefit of dearness relief keeping in view the subsequent pay revisions of the similarly situated employees leads to disastrous effect and in a way allows room for absurdity. Mr. Gupta gave the example that ED retired sometime in 1997 gets approximately Rs. 7000/- towards pension whereas a person working in class III, if retires subsequently would get approximately double of the said amount. Thus, case of pension revision with wage revision was pleaded by the Sr Advocate but the same was not considered by SC Bench as any rule or provision causing aforesaid discriminations was not stated. In para 26 the bench of SC has explained as to how the pleadings were inadequate.
4. With regard to Para 3A, the case was remanded to DHC as the constitutional validity was not assailed by DHC while giving the judgement based on Jaipur Bench Judgement. In respect of the issue of pension updaion, the case was remanded to DHC as the specific rules causing discrimination were not pointed out.
5. In para 29, liberty was granted to the petitioners to file requisite amendments, if so desired.
The aforesaid points I have written to explain my understanding of SC judgement dated 31/3/2016.
As regards AIRIEF’s objection affidavit submitted to object LIC’s erroneous compliance, copy of the letter addressed to chairman is attached where the error in the DR rate applied to pre-April 1993 retired Class I Officers with basic pension 2130-3850 at 0.23% instead of 0.29% is pointed out. But, in the text the point was not written as the supporting calculations were not available. It is good that this error is pointed out in the affidavit of Chandigarh petitioners.
Incidentally, I have come across the judgement of Madras High Court delivered in 2015, in pension revision case filed by the retired employees of PSU General Insurance Companies, which has been decided against them. I am not aware whether any SLP was filed against the said judgement. A copy of the judgement is attached.
With respected regards,
M P Agnihotri.
On Mon, Dec 31, 2018 at 8:20 PM Colinjivadi Mahadevan <chmahadevan@gmail.com> wrote:
Dear Mr Chhabra,
Very interesting.Your intervention paid off.At least you got the money’s worth in terms of the Chandigarh HC judgment.
Let us hope positive result now at SC for all the expenses being incurred.
Kind regards.
C H Mahadevan
On Monday, December 31, 2018, Somnath <somnathchhabra458@yahoo.com> wrote:
Sir,
Your mail is delightful to read.There is subtle humour in it.
Yes.It is time that our case came to an end.
A funny detail,Sir.
Late Sri Gandhi used to take me along whenever he went to
Chandigarh to meet our advocate Alka Chatrath which was
quite often.It happened many times that they started arguing
and shouting at each other.'Yesterday you said this..." I had to broker peace.
Once Gandhiji started,'Alka you promised last week to file our
Writ. I reminded you twice.The papers are still lying on your
table"The reply was,'We don't do any work without receiving
the payment in advance.You still owe me fifty thousands"
Before G could speak I said'Alka,you file the papers tomorrow.We
shall bring the cash next time we visit you" She agreed.
As we came down G gave me a big blow on my chest'You bloody
rich.Pay it from your own pocket.You have wasted my 50 th rupees.But we had promised to pay her that much,I protested.
You are not practical.Our case is so simple.It will be decided
in say three months time maximum.My plans were after we
win,we go to her with a box of sweets and stand before her with folded handsDear daughter,we are poor old people...." Now,we shall have to pay tomorrow.
He died eight years back and the case is still pending.
Well Sir,it was just for your entertainment.I end with lot of good
wishes for you and other recipients of this mail for health and
happiness during the year 2019
S N Chhabra
Sent from my iPad
On 31-Dec-2018, at 6:23 PM, Colinjivadi Mahadevan <chmahadevan@gmail.com> wrote:
Dear Mr Chhabra,Interesting to read your detailed reply.There are four categories of people with legal/non legal orientation.
There are legal persons with a legal mind,viz judges,advocates,practitioners,advisers and law professors who are practicing professionals.
Then there are legal persons with a non-legal mind who might have qualified in law but might have diverted themselves in some other discipline of their choice.They may not be very much into legal domain of thinking or indifferent due o other pursuits.
Then there are lay men with no capacity or inclination to attempt learning even essential things in law of practical importance.They are legal illiterates.
We - you and I- perhaps belong to the fourth & last category of laymen with apparently legal mind dabbling into legal knowledge without proper legal qualifications through reading and interacting with people engaged in legal matters like in our case, may be out of compulsion of the situation.In your case,you have achieved authenticity by getting compliments from Justice Agnihotri who although was personally sympathetic , was professionally helpless to help you.
Eight years later pensioners got,over a platter, what you were fighting for in the court thanks to Atal Bihari Vajpayee!
Let us hope before we aspire for more and more expertise in law the case will come to a happy conclusion so that we may get more spiritually diverted!
Happy New Year 2019 to all.
C H Mahadevan
On Monday, December 31, 2018, Somnath <somnathchhabra458@yahoo.com> wrote:
Sir,
Thanks for your elucidation of the important points.
With particular reference to the remarks made about me by
Sri MP Agnihotri I want to clarify that I know no law.I take as
gospel truth what ever is told to me by a person I hold in respect.
Later,I contemplate upon the matter and if I have the doubts I
need these clarifiedQuite normal,I suppose.
Now,something regarding my tryst with the Courts.
It was in July1990 I filed a writ in the Chandigarh H C against the LIC retiring me at age 58 years.
On the day of hearing,there was strike of the advocates.The
litigants who could present their case personally were allowed in.
The atmosphere in the Court was very relaxed.I was the first
asked to present my case.I was encouraged by Justice Agnihotri.
'you are doing very well,Mr Chhabra.Carry on It is a good change
for us to listen to a non legal man."
At the end Justice Agnihotri said, ' You have a very genuine case.
But,Mr Chhabra,we in the Court,interpret the rules as they are.We don't make rules.You better use political/trade union pressure on
Your employer to change the rules..... "
It happened before I met late MSM.The LIC was delaying the
implementing of the Chandigarh H C judgement .We were
advised to file COC petition.KLMA suggested a senior advocate
known to him.He was Addl Advocate General Haryana.I gave him
a copy of the Court judgement
Mr Brijjit Singh would not change horse in the middle of the war.
I met this gentleman after some time.There is no updation of
pension in the Jaipur judgement.You are just stretching the
matter" was his conclusion.
We were in the office of our advocate in Delhi some time back.He
asked you of our main points for updation.I am sure you noticed
he was not completely convinced
A few days back I happened to discuss para56 with Dr Pritam.He
explained the difference between the same and similar.Heopined
D S Nakara case can be used to our advantage
I am not at all pessimistic.I am aware of the direction the wind is
blowing.
The Govt will not agree to our demand gracefully.That needs
arm twisting and it may come through the bankers....
The rationalisation of DR is sure.The contents of the para10 of
our affidavit filed in theSC must be thoroughly explained to the
Sr Advocate engaged by Sri Agnihotri.Our adv.being junior,may
not get chance to speak freely.
Meanwhile,let us go ahead with full hope in our heartsGood
things are likely to happen in 2019
( Dr Pritam is a very clear headed person and quite an expert in
Law.He has settled in Jallandhar now.in case Sri Agnihotri may
consider it useful to exchange views in legal matters,I can help
such arrangement.)
S N Chhabra
Sent from my iPad
On 30-Dec-2018, at 9:13 PM, Colinjivadi Mahadevan <chmahadevan@gmail.com> wrote:
Dear Mr Agnihotri,
In response to your note sent yesterday,I give my views as follows:
I am still wondering how Constitutional validity of para 3A came to be raised by Justice Dipak Misra when it was not the issue that was covered by Jaipur judgment. Jaipur judgment only directed that LIC may implement LIC Board Resolution and also by allowing WP no 654/2007, had directed LIC to allow upgradation of pension. Even though the Jaipur SB judgment did not specify upgradation of pension in so many words, by directing LIC to implement Board Resolution by allowing both the Writ Petitions No 6676/1998 & 654/2007 had recognized that the Board Resolution provided for upgradation of pension. Of course, the SC Order dt 31/3/2016 has ruled that the Board Resolution cannot be considered as effective unless the recommendations become part of the LIC Pension Rules 1995.
The Chandigarh judgment in 2010 and the DHC judgment on 30/1/2013 more or less endorsed the Jaipur judgment without giving separate reasoning. It is against all these three judgments that LIC had filed Appeals which were disposed of on 31/3/2016 by the Supreme Court
So it is clear that none of the three judgments had either adjudicated on Constitutional validity of para 3A or made it a basis of the respective judgment. Probably it has been focused by Class I retirees’ Federation counsel in the course of their arguments besides stressing para 3A in their WP no 184/2007.
I completely agree with you that the undue focus on para 3A is misplaced and rather we should use other strong grounds to plead upgradation. Striking down para 3A does not help pre-August 1997 retirees in any way, nor does it benefit those covered by para 3A or para 3B. As you have rightly observed, we need to take recourse to the grounds based on provisions for calculation of pension.
We can also stress on discrimination caused by Rule 55B in combination with Rule 56 which becomes particularly relevant considering that the Rule 56 necessitates application as 5th Pay Commission Recommendations which provided for upgradation of CCS pension became effective after 1/1/1996 subsequent to notification by GOI of LIC Pension Rules 1995 on 28/6/1995.
But it is interesting to note that even though SC remanded the case to DHC to examine the constitutional validity of para 3A,it had ordered 40 % interim relief payable to all eligible pensioners as per para 3A. So, on prima facie SC has recognized the constitutional validity of para 3A.
So challenge of constitutional validity of para 3A will not stand the test by the four criteria stated by you in your note.
Now the prayers made by the petitioners in their Writ Petitioners before DHC (other than Class I retirees’ Federation) and the SLPs will also matter significantly during the hearings in SC.
While going through the AIRIEF reply to the compliance affidavit of LIC,I observed that there is no mention of the glaring error in the DR rate applied to pre-April 1993 retired Class I Officers with basic pension 2130-3850 at 0.23% instead of 0.29% while paying arrears which was in contravention of the DHC judgment. This was of course included in the reply of Chandigarh petitioners.
Kind regards.
C H Mahadevan
On Sat, Dec 29, 2018 at 10:35 PM Colinjivadi Mahadevan <chmahadevan@gmail.com> wrote:
I have quickly gone through your notes.
I shall respond shortly.
C H Mahadevan
On Saturday, December 29, 2018, MPAgnihotri <mp.agnihotri3@gmail.com> wrote:
Respected Shri Mahadevan Sahab,
In some communication Shri S N Chhabra expressed concern on pension updation issue stating that there being no direct rules for updation of pensions we have to draw conclusions by inference only ( on DR disparity matter he okeyed the contents of your rejoinder on para 3A). While pleading the pension parity issue, we have to take care of the directions/observations of Hon'ble Justice Dipak Mishra stated in para 26 of the order dated 31/3/2016.
A note on the issue is attached herewith for favour of your kind perusal and examination.
I also attach herewith the affidavit of AIRIEF submitted in SC in protest of erroneous compliance of SC order dated 30/7/2018.
With respected regards,
M P Agnihotri.