USEFUL EXTRACTS FROM COURT CASES ON EFFECTIVE DATE RETROSPECTIVE, & OTHER MAJOR UTTERANCES
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1) How beautifully SC ordered dismissing CURATIVE PETITION of CG with disdain
,sticking to the date when anamolies had started 1/1/2006 & not 1/9/2012 as conveyed by CG & hopefully justifiable & reasonable that DR FULL shd be from 1/8/1997 & not prospective belittling full benefits , only to rectify a wrong inflicted on pensioners, &
look here with CG 6th Pay Commission anamolies 1st CAT, then ARMED FORCES TRIBUNAL,then DELHI HC, then again CG SLP, dismissed rightly mercilessly, still CG as is its wont with subverting law & justice to citizens, REVIEW PETITION, rejected, still wanting to pursue with a CURATIVE PETITION ,also finally dismissed by 5 -JUDGE SC BENCH headed by CJ Sri R.M .LODHA
heavens will shower petals & blessings on CJ for allowing benefit to lacs of CG pensioners & soldiers
2) “ In view of the several judgments of the Hon'ble Apex Court, issue regarding cut off date for providing pensionary benefits can be summarized in the following manner:-
i)If there are change in benefit of pension then no cut off date can be provided. The benefit on account of change in pensionary benefits would have retrospective effect.
(ii) If the pension is introduced for the first time, a cut off date can be fixed.
“Aforesaid issue has been settled by the Hon'ble Apex Court in various judgments cited by learned counsel for petitioners.
iii)Nakara judgment has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalized all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalization and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalization on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalize an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduced an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision making process.
iv) One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara case this Court drew a distinction between continuance of an existing scheme in its liberalized form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cut off date would ordinarily violate the principle of equality in treatment unless there is a strong rational discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realized that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether.
v)This is the reason why this Court in Nakara case drew a distinction between liberalization of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupees value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received a lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasized by this Court in Krishena case”.
vi)Perusal of aforesaid Paras reveals that there exists difference between introduction of new Scheme then the existing Scheme. In the light of the aforesaid, if the facts of this case are looked into, then it becomes clear that amongst the pensioners there exists discrimination more specifically when the pension has been made admissible to the employees who retired on or after 1.1.1986. In view of aforesaid, there can be no different basis for dearness allowance or other benefits to those retired on or before 31.7.1997. The existing pensioners are entitled for the benefit of dearness allowance with the same measure as is admissible to the pensioners on or after 31.7.1997. The discrimination amongst the pensioners on that count is not permissible and if there exists rule, making discrimination amongst the existing pensioners, it is held to be violative of Articles 14 & 16 of the Constitution of India.
3) Also your kind attention to Para 109 of Delhi High Court in our own case [ WP (C) 5903/2016] where relevant part of the order reads as under:
".....Arrears, if any, would be paid from the date when the first Writ Petition was filed, to all retired employees/pensioners who would be entitled to benefit of this judgement."
(Here in LIC Pensioners case,the earliest date was WP 6676/1998 dt 18/12/1998 in Rajasthan HC,Jaipur on DR )
4) The Hon’ble Kerala High Court made a striking observation, …”the status of the Corporation(KSWC) as a jurist person, as a body corporate with a common seal and its existence would be scuttled and subservient to the dictates of the Government, as if the Corporation is a department in the Government. This is plainly impermissible.”
5)Hon'ble Mr.Justice V.Gopala Gowda pronounced the judgment of the SC Bench comprising His Lordship and Hon'bleMr.Justice C.Nagappan,
” When this Court decides questions of law, its decisions are, under Art. 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. -SIGNIFICANT & at appropriate moments during Hearing,our Sr Counsel must reiterate this golden truth & pragmatism of SC observations & drive home the end result of Victory in Pensioners favour.
6)“TRUST SHALL NOT BE BETRAYED”
(7th Central Pay Commission has quoted in para – 1.29 of ” Foreword )” ,
a)the following observations of the Supreme Court in the case of Bhupendranath Hazarika and another Vs State of Assam and others (reported in 2013 (2) Sec 516).
“It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair………. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness ; then only the concept of good governance can be concretized. We say no more.”
7) Hon Justice Dipak Misra & Hon Sapre thundered, as recent as 1/7/2015 in WP 11239/2015 “ The question is whether inherent, apparent, or latent discrimination is permissible. in our view, the short answer is that, it cannot ever be permissible ’ . -------The principle of law, as decided by the Hon Apex Court ,is plain & simple; that a Senior Officer cannot get pension less than his Junior. If that be ,the effect of pay fixation then the pension would have to be stepped up to avoid such hostile discrimination. so said Hon Dipak Misra & Hon Sapre in the case of Rajasthan Govt Teachers & University staff.
8))MOFinance stance to stall improvements & observing that such grant of pension updation will lead to repercussions in PSBanks & elsewhere, is nothing but a concocted bogey by CGovt . The Kerala HC ,in the case of Manmohan C & Others vs Kerala StateWareHousing Corporation (WP9),No12768 /2006 asserted, ‘such a statement is unfounded, & is nothing but meekness with no constitutional or legal foundation.’
iii) Central Govt Pension Bill will be touching & exceeding too, CG Salary Bill in2021-22
R.B.KISHORE,ED (Retd),LIC, PATRON ,ALL INDIA RETIRED INSCE EMPLOYEES FEDN(AIRIEF)
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