Today I wanted to list out some case laws that we have cited in our petitions in the Delhi High Court and also the case laws cited in the judgment of the Delhi High Court delivered on 27/4/2017.
Our various legal counsel are already very much conversant with the various case laws including the most important among them ,viz, the D S Nakara case judgment.
I thought of sharing some thoughts with our pensioner friends as to how well we can use the D S Nakara case judgment to our advantage.
Today when I went through the head notes which I downloaded from the Indian kanoon website, it struck me as to how well the observations made by the Supreme Court in the judgment fit our case admirably, if only we are able to effectively counter the arguments from the case laws which were used to contradict the ratio of the D S Nakara judgment through our counsel.
To my mind, there are two areas in which the D S Nakara case judgment can establish the applicability of the Nakara case ratio in our favour.
1.The DR anomaly created by the Appendix IV DR formula for pre-August 1997 retirees is the first point attracting discrimination.This discrimination came into official highlight by LIC with the inclusion of Para 3A of Appendix IV which among other things provided 100% DR neutralisation on the one hand for post July 1997 retirees and serving employees and also provided the same rate of DA/DR for serving employees & retirees from 1/8/1997.Thus a principle of equitable and full neutralisation was adopted for serving employees and post 1/8/1997 retirees alike and this practice is being followed through all the subsequent wage revision periods till date.
While notifying the LIC Pension Rules 1995,the Central Government not only adopted a tapering formula for DR for the two groups of pre-August 1997 retirees without 100% DR neutralisation, but the formula adopted was also different from the tapering DA formula for serving employees upto 31/7/1997. This meant that there was no equity and equality in the matter of DR & DA between retirees and serving employees unlike after 1/8/1997.The rate of DR received by pre-August 1997 retirees is in fact providing a reduced quantum at the same rate on a reduced upper boundary of basic pension on each of the three slabs with the uppermost slab pensioners suffering the maximum loss in DR. to some extent by the partial relief granted by the DHC judgment, still,
In the case of post August 1997 retirees there is no such loss in DR.
Even though this loss has been mitigated to some extent by the partial relief granted by the DHC judgment, still, there is no equity and equality for these two groups of retirees compared to post- August 1997 retirees who do not suffer from such inequity and equality.
To that extent the LIC Pension Rules 1995 ,as they exist today , have two classes of pensioners under the same scheme one who enjoy equitable 100% DR neutralisation and another class being the set of two groups of retirees who continue to suffer from inequitable treatment by getting a lesser quantum of DR than what the should get. This constitutes a violation of Article 14 of the Constitution attracting the ratio of the D S Nakara case judgment
2.The second point of application of D S Nakara ratio arises from Rule 55 B which has created a separate class of pensioners under the same Scheme of Chairman ( now christened Chief Executive and also combining the position of Chairperson for the present) and Managing Director retired after 1/1/1996 , who are made entitled to the benefits as provided to Central Government employees governed by CCS Pension Rules 1972.The group of employees/pensioners not covered by Rule 55 B form another class .Within this class(outside Rule 55B) are included the Chairmen and Managing Directors who retired before 1/1/1996.Many past Chairmen and one Managing Director have since passed away and only there is a nonagenarian surviving retired Chairman and two senior octogenarian surviving Managing Directors as on date receiving lower quantum of DR and pension.
Hera again the ratio of D S Nakara has been attracted by the discrimination it has created while Rule 56 actually entitles all pensioners to be treated in the same manner as the Rule 55 B covered pensioners.
Thus these two grounds are sufficient to impress upon the Supreme Court clinch our case. In the Delhi High Court judgment , a number of judgments have been taken into account by the Bench while delivering the judgment.All that we need to tell the Supreme Court is that the Rule 55 B is sufficient to conclude that those negating case laws will not apply in our case over the D S Nakara ratio.
Of course there are other strong grounds in favour of upgradation which I am sure our counsel will be arguing on to press our claims , but I thought the above two points make good difference for our case .
I attach a copy of the D S Nakara judgment for ready reference.
C H Mahadevan
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