17) THE SEVEN STEPS TO SUCCESS. 7th MAY,2015
With
seven days to go for yet another day of hearing, with which we may
hope, our ordeal in our legal fight in the S.C might end. Let us hope
the seven steps we take will take us to the summit of our success.
Step 1: The
present Appeal has no legs to stand, as the LIC has preferred the
appeal belatedly and after the dismissal of the SLP. LIC has no cause
of action and the proceedings against the Rajasthan HC decision has come
to an end, giving us the right enforce the Judgement. The SC Bench, at
the time of dismissing the SLP has not stayed its order while dismissing
the SLP and hence the suit reached its finality. The Appeal was
admitted without notice to us. There is no grave injustice or loss, the
Appellant LIC will suffer or result in the Appellant committing
illegality, because on the one hand any action done by virtue of the HC
Judgement has the judicial umbrella of protection, as pointed by the DB
of the Rajasthan, and on the other such action, they are compelled to
take, is also by virtue of the obligation on the Appellants, as a limb
of the Govt., to preserve and protect the Constitutional provisions and
also because of the mandate to obey such provisions. In fact the
Appeal, if accepted, amounts to the approval by the SC of the
perpetuation of the discrimination. Therefore, entertaining a hopelessly
time barred appeal and that too, after the dismissal of the SLP, will
result in double jeopardy of a hopeless appeal against the decree of
three different HCs and approving
a constitutional impropriety, leading to a bad law of precedence. The
Appeal and the new writ petition are clear abuse of the process of law
intended delay deliverance of justice.
Step 2:
The Government is not in the picture now to appeal, because they have
not preferred to put in their appearance before the DB of the Rajasthan
HC, in spite of specific notice to them and sufficient time given by
adjournments, to hear the Govt. side of its views on the claims before
the Bench. So much so, the DB has clearly mentioned, in its judgement that the LIC has no locus- standi to file the appeal and the Government not responded to its notice. From where do they get the right of appeal now.
Step 3: Neither
the LIC nor the Govt. has cause to argue that the Nakaras case is not
applicable to our case. That case has only established one principle
viz. the pensioners cannot be classified into groups, according to their
date of retirements, to be treated for benefits they are eligible.
Other courts have been following this well established principle of a
Bench consisting of 5 Judges, which amounts to an interpretation on the
principles of non discrimination under the Constitution of India. The
only remedy for the Govt. is to get that reversed, which the present
bench cannot do.
Step 4: The
bogey of no notification under section 48 of the LIC Act is a mirage
seen by the LIC/GOI only, not the judicial eye. Accepting for arguments
sake the need for a notification, a notification by virtue of which DR
rate etc. was released to those retired after 1-8-97 is in fact there
and existing and this notification is the one that gave us cause of
action to sue the LIC. That notification is not withdrawn or struck down
by any H.C. The SB of the Rajasthan High Court has held that in view of
the finding of the SC in Nakaras case, the retirees earlier to 1-8-97
are also eligible for the benefits conferred under the notification.
In view of the Constitutional shield of protection, even a fresh
specific negative notification, nay, even a new legislation cannot wash
the dirt of discrimination and such act may turn out to be an
executive/legislative vice, inviting judicial contempt.
Step 5: The
plea of notification raised in the SLP, Appeal and the new writ
petitions filed, couched as they are in flowery language (like which the
students of English literature might have read in the speech of Sir
Edmond Burke on impeachment of Warren Hasting), is against the
established principles of law which says that what is unlawful and
therefore unenforceable, is not allowed to enter the precincts of the
temple of justice through the back door. Discrimination which is held
unconstitutional and hence illegal cannot be allowed on the plea
executive action/inaction, executive privilege, ripple effect etc..
Perhaps the learned SB Judge has taken a leaf from Shakespeares drama,
The Merchant of Venice and allowed the Sec.48 notification without
striking it down, but said it shall apply to all, like Portia's argument
that the pound of flesh may be taken without shedding a drop blood !. Even
the writ petitions filed are typical examples of Governmental inertia
and afterthought, because from the date of the draft of the writ it is
seen as drafted one year earlier and filed after one year only, perhaps
with the sole intention to cause delay and to subvert the delivery of
justice. The LIC's/Govt, pleas are against the dictum ' law and justice
shall meet eye to eye and law delayed is law denied.
Step 6:
The plea of "ripple effect" is an indirect admission of our claim,
which the Govt. is pleading as an excuse to deny us what really belongs
to us. LIC, in its Board
Meetings, admits that the cost can be easily met as determined by it
Actuarial calculations. The Pension Scheme was introduced, for the first
time, in June 1995 and the revision in the rate of DR was made
effective 1-8-97 along with revision of pay scales of serving employees.
Therefore the total number of retirees within this period is quite
small and they are now in their 70s & 80s and a fast diminishing
number. The so called
"ripple effect" in their case will only be in a cup, not perceivable.
Will not the V & VI Pay Commission Recommendations of increasing the
basic pension by a certain percentage, accepted by the same Govt., not
create any such ripple.
Step 7:
Is it not a disgrace to see a retired Senior Officer getting a pension
much lesser than an employee who is way down in rank. It is also a fact
that there is an anomalous situation created today of even two employees
of the same grade in the same stage who retire on 1-7-97 & 1-8-97
get different pension. There is need for judicial intervention to put an
end to this discrimination, as reasoning as to the anomalies mentioned
by LIC's own Board in its Resolution, has not stirred the Executive
apathy of the Govt.
18)The
seven steps to success are fine even though I have some reservations on
the points made out by you on the applicability of Sec 48.
But
with all the excellent grounds on which our case stands, unless there
is an effective case management and convincing arguments before the
Supreme Court leading to a favourable verdict for pensioners, all the
write-ups generated will only turn out to be good material for an
academic discourse. The utmost need now is for concrete action by way
of concerted strategic moves by counsels of all the three sets of
pensioner groups in carrying the legal struggle in a unified
manner towards a successful conclusion.
Whether it will happen is a million dollar question.
Greetings.--------------------
C H Mahadevan
[Excerpts from R B Kishore's Mail No.100]
