GENERAL RESUME: ALL EYES ON 4 JANUARY, 2017
A)1) 8 December 2016 DHC cautioned all Sr Counsels to come well prepared ,as they noticed things were not going happily & simple queries from HCBench did not elicit reply.So now on to 4 January 2017
But, it is mentioned in the Order in DHC list that many applicants want postponement & some have referred the matter to SC for decision on their application.That looks to be
i)Fedn of Retd Class I Officers Assns -------------------- &
ii)one from Jaipur ------
2)It is not clear why they have chosen to do this, no reason given ,&
Any postponement will obviously jeopardise hastening of a Singular DHC Bench Judgement by 31 Jan 2017, with MORE sittings at quick intervals in an orderly fashion, Bench to allow ALL applicants ,LIC, UOI to have their own time for submissions, replies etc,
Clearer indications will come in a day or two when we get DHC final list.
3)i)From the reports which came, from the gleanings on Blogs,it can be understood that DHCBench need strong arguments from petitioners side,if at all ,their case can be considered fit for correct assessment & final Positive outcome on pension upgradation.
ii)Some quarters, it is mentioned that Bench is favourably inclined to accept pension upgradation as a need BUT more than morals or equity, Considerations of law & legal intricacies involved therein must be highlighted & unassailable arguments from Constitutional angle have to be marshalled, cemented & assertively & even aggressively portrayed quoting relevant case laws, jurisprudence, old & latest HC,SC decisions on same issues, facts & figures if pension upgradation on a continued basis is given etc
iii)It was also mentioned by few that to a query from Counsel. Hon Khanna observed there is no provision in Pension Rules for this upgradation
Many of us too err on this.We can quote relevant Provisos in Pension Rules , 1995. We can also assert there is NO PROVISION that Pension Revision CANNOT be granted.
B)CLEAR & PATENT CAUSES to grant PENSION UPGRADATION : SUCCINCT SUMMARY
B) I) i)6676/1998 onwards 18 yrs & more , is it not enough to bear the AGONY with patience, perseverance, endurance & this must ,therefore, end this ding-dong ,which has cost us heavily.
ii)Above all, we know primarily , we set store on
*Constitutional Principles,
**Fundamental Rights,
***Discrimination to end at any cost as it plays havoc,duly supported by valid case laws ,& Simple Tables & Charts for illustration, which capture the heart of the matter,
7 steps below getting more pension than their Seniors.
Such widening, gaping, monstrous Anamolies must be put an end to.
iii) Basic Pension unchanged & static right from 1/11/ 1993 ,a long long 23 yrs !! is unthinkable & unjust; it will be a travesty of justice, building up, perplexing anamolies, glaring discrepancies & unbridgeable paradoxes, 7/8 cadres below,a Peon & RC getting more pension than pre-8/1997 ZM & ED & so,has to be redressed,by LIC& UOI only by DHC & SC, by an esteemed ,pathbreaking Judgement.
iv)Basic criteria is grant of similar pension for all those with same length of service for the same cadre & that is violated. It is an anachronism that LIC pensioners still continue in pre-1995 IV Pay Commission mode whereas 7th PC has been implemented & arrears paid.
v) The pathetic condition of a class of people arbitrarily alienated from the beneficial stream of pensioners due to delay, dither, & what is arbitrary is unconstitutional,
vi) Institutions trying to create classes of pensioners ,heterogeneous, instead of one homogeneous group, subdividing & subclassifying ,though all are having same length of service, is unconstitutional .
vii)Nothing should be in derogation of Fundamental Rights or any abridgement of such Rights,
if there is any such law, then that law is inconsistent ,as Rule of res judicta comes into play laying concerns on impractical pleas, not in tune with the facts& circumstances of the case,
viii)) Why different yardstick are adopted, on the other hand , more sympathy & empathy should be displayed by Corporation, as Pensioners are Sr Citizens& Elders, aged& majority above 70 years old & more than 15,500 pensioners have already died.
ix)We are living in a Welfare State, a Socialist pattern of society, in an egalitarian economy,& so, when
Pension is treated as a Property Right,also as a Human Right, inviolable,
all the more necessary to worship concepts of Equity & Equality enshrined in our Constitution. Such discrimination must be put an end to & our Sr Counsel must ably present these multi-pronged arguments & logic with clearcut submissions & pave the way for a clear & comprehensive Verdict in pensioners favour,without any doubts or ambiguity or susceptibility to different interpretations, as all along that has consumed such large time factor,which when Elders are part of the subject matter can be hastened as an obiter dicta ,without any more adjournments & sticking to time Schedule prescribed by Hon SC Bench.
x)Hon Justice Dipak Misra & Hon Sapre thundered, as recent as 1/7/2015 " 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.
xi)Hon Justice Dipak Misra has referred in SC Order dt 31/3/2016 about this LIC Letter to MOF. LIC SECRET LETTER dt 31/12/2001 which forcefully stressed the 'need to rationalize the DR structure available to different groups of pensioners in order to reduce the administrative inconvenience & also to see that different generations of pensioners are protected by merging the pension to a suitable index.'—,also reminded MOF/UOI on 12/8/2003 to sustain this principle ,so successive pension revisions at CPIndex 600,1148, 1740, 2328,2994 & now 4708.
We HIGHLIGHT this crucial piece of LIC's own letter to MOF/ UOI as this concept was already in the making but Bureaucracy never rose to the occasion to take honest decisions within definite stipulated time frame, as otherwise, it becomes a burden for all to wait & wait, watch & watch ,with no end results.
xii)There is no provision in Pension Rules 1995 that Pensions should not be revised. On the other hand, Rule 5(3),Chapter III of Pension Rules,1995, 'the Corporation shall be a contributor to the Fund & shall ensure that sufficient sums are placed in it to enable the Trustees to make due payments to the beneficiaries under these Rules. Rule 13(b) states , ' the Trust shall, subject to the availability of additional sums in the Fund, to be provided by the Corporation as required under Rule 5(3) to purchase additional annuities as & when it becomes necessary to revise upwards the benefits payable in accordance with these rules
II)It is ,therefore, very much desirable that this issue, not a controversy, as many are already enjoying the benefit , & past decades have witnessed Case laws ,after delving deep into the niceties & holistic ramifications of the issue ,with absolute neutrality. Many case laws became a Magna Carta for pensioners & rightly so. Sr Counsel must plead with all humility & modesty, to DHC & later SC to consider our genuine, modest& legitimate demands,
i) in this era of benevolent wage settlements with a thumping rise in salary & other incidental allowances & benefits,
ii)handsome Retirement bonanza, compared to pittance earlier Pensioners got,
iii) several disabilities of Elders unique to them casting monetary burden,
iv) many many, around 15,500 pensioners have already died,a tragedy none else cares,
v) rising tide of Family Pensioners enabling LIC to gain relief in Regular pension outgo,&
vi)more so as NPS already started from May 2010 ,this Group of eligible Pension upgradation, will become a CLOSED CADRE.
C)i) Strange LIC & UOI Counsels were able to somehow, by hook or crook,got so many extensions & adjournments, so too we must put an end, here & now, so our own Advocates should also by their eloquence, by the strength of their arguments touch the deepest chords of the Delhi HC Judges Bench. If grounds for such challenge are not delineated, again Sr counsel is not fulfilling his sacred duty.What is the rule, what is its validity, how it violates Article 14 are queries raised by Hon SC Judge Dipak Misra, & now Hon Khanna DHC ,conveying Stress on Law points, Legal intricacies involved, how adverse impact on pensioners felt from standpoint of Constitution etc,& so have to be presented ably by Sr Counsel. THESE must be told to Sr Counsel, as these pertinent observations giving pensioners the last OPPORTUNITY to get back & turn the case all in pensioners full favour.
ii)Pleadings are not adequate, as all unassailable arguments & data furnished in writing to Advocates & Sr Counsel are not utilized fully & properly.It is possible Advocates & Sr Counsels may win a case, even with simple, ordinary presentation & so job done, fees paid, that is all. HERE WE ARE FIGHTING for 17/18 years. so COMBINED MIGHT OF LIC, UOI have to be thwarted.
iii) Those present at proceedings,if they are not able to know what is happening, how can they appreciate. We cannot allow the lacuna to continue.ONLY WAY is to spend 30 mts after Proceedings are over, with Sr Counsel, learn what all happened,what other Counsels said, & give & flash the gist to eagerly waiting ,inquisitive pensioners, as this is life or death. Then only one can insert in Blog or website. Otherwise,truncated info leads to Non-appreciation or unhealthy Self-praise ,both to be detested. Case must come to an end & a positive end, as mighty CORE & CRITICAL arguments are incorporated.
D)Full DR & 100% Neutralisation: Convert this issue to an easy & confident Achievement
I) i) SC Order of Hon Justice Misra , dt 31/3/2016 details paras on "APPENDIX IV OF THE 1995 RULES IS PRINCIPAL PLINTH OF QUARREL,"
Now Hon Justice Khanna also feels pleadings went awry in some way & Advocates were ill-prepared.Our Sr Counsels must be sure of what they say & strongly make submissions so convincing, so accurate & goes to the heart of the matter, Hon DHC Bench can digest & seemingly approve ,as it must be clearcut & steadfast presentation in a graphic manner, with facts & figures & striking at the Kernel of the truth of Issues to be decided .
ii)The Notification dt 22/6/2000 divides pensioners into 2 groups –pre 1-8-1997 and post
1-8-1997. As per the Notification , the group of pensioners from 1-8-1997( cut off date Wage Agreement Period 1-8-1997 to 31-7-2002), were granted 100% neutralization which is the same for in- service employees for the first time in LIC, while the earlier pensioners' group prior to 1-8-1997 were excluded from the benefit. In other words Appendix IV stands deleted for retirees w.e.f 1-8-1997 and also the DR Formula stands rectified w.e.f 1-8-1997 only
iii) The Amendment Notification issued u/S 48 of LIC Act is pernicious, arbitrary and discriminatory and its only purpose was to permanently deprive the Pre 1-8-1997 pensioners of all the benefits. This Notification has artificially divided the pensioners into pre1-8-1997 and post 1997 groups—and while conferring 100% neutralization and future Wage Settlement revisionary benefits to the post 1-8-1997 pensioners( a younger and increasing group), it has denied the same benefits to the pre 1-8-1997 pensioners( an older and dwindling species)
iv)The Amendment is a deliberate calculated move, is highly artificial &arbitrary and violates the Fundamental Rights of Equity & Equality. guaranteed under Articles 14 and 16 and also the Right to life and dignity under Article 21 of the Constitution. Sr Counsel has to convince the DHC Bench to strike down the Draconian Law as null and void ab initio, and bring solace to the pre 1-8-1997 pensioners who have spent the best part of their waking lives in the growth and development of LIC .
II) i)(ANNEXURE ) DIFFERENCE/LOSS in DR PER SLAB in Rs for ALL CADRES, ASST to ED as at 1/8/2007 & after wage settlement 1/8/2012 in relation to 1/8/87—31/7/92 Scales
CADRE
|
1/8/2007
|
1/8/2012
|
Assistant
|
5.0385
|
9.291
|
HGA
|
7.562
|
12.9145
|
Development Officer/DO
|
9.4795
|
15.368
|
AAO
|
11.3105
|
17.9685
|
AO
|
12.4685
|
19.5265
|
ADM
|
15.6275
|
23.6855
|
DM
|
18.1025
|
26.9105
|
SDM
|
21.4775
|
31.3505
|
ZM
|
25.175
|
36.2275
|
ED
|
29.2475
|
41.61
|
ii)DR per Slab for Group VI ranges Rs25.68 ,29.90 for Asst, HGA to Rs55.238 & 62.148 for ZM & ED respectively .
DR LOSS upto 31/7/2016 ranges for GROUP I for Asst & HGA Rs39,338 & Rs1,19,508&
For GROUP II (1/8/1992—31/7/1997) Rs 61,165 & Rs97,788 &
For GROUP I, DR LOSS for ZM & ED will be Rs 10,18,644 & Rs 11,60,560 &
For GROUP II, Rs 7,79,030 & Rs 9,48,932 respectively
iii) Kerala HC in the case of Chandrasekara Menon T vs UOI & Ors, ruled , "the object of compensation is the fall in the value of the rupee & the neutralization in cost of living is completely defeated by payment of DR after reducing slab at all stages& that Pensioner drawing a monthly basic pension of Rs3000 is treated on par with a person drawing a basic pay of Rs6000 in the matter of payment of DR/DA,which is unjust & unreasonable.''
iv) Since the component of inflation similarly affects all employees, and all pensioners (irrespective of the date of their entry into service or retirement), it is not per se possible to accept different levels of dearness relief to remedy the malady of inflation. For this reason as expressed by the Hon'ble Supreme Court in the case Kallakkurichi Taluk Retired Official Association, Tamilnadu Versus State of Tamilnadu (Civil Appeal Nos. 8848-8849/2012) the Dearness Relief to the Retired employees has to be increased every time and equivalent to the Dearness Allowance paid to the in-service employees.
III)i) In order to make this still more transparent & doubt-free, one has to refer to GOI,MOF, Dept of Economic Affairs,Insurance Division letter dt 10/04/2002, to Chairman,GIC & Sy General, GIPSA ,Mumbai on Subject :Upgradation of basic pension in respect of LIC pensioners retired between 1/1/86 and 31/7/97,wherein UnderSy to GOI mentions ,enclosing a proposal received from LIC relating to upgradation of basic pension, 'and are getting graded relief on pension based on AICPI of 600 points for those who retired between 1/1/1986 to 31/7/1992 & 1148 points for those who retired between 1/8/1992 & to 31/7/1997. It is now proposed by LIC to upgrade their basic pension by merging DR upto 1740 points with their basic pension & then providing 100% neutralization wef 1/8/1997 as is admissible to other pensioners who retired on or after 1/8/1997 "
ii)On the basis of our Sr Counsels presentation on DR discrimination & very powerful case laws & need for SAME DR as SAME DA to Employees & here Post-8/1997 pensioners, it goes without saying DHC will order Merger of Principled Correct DR & not 50 % as hitherto, interpreted wrongly by LIC , to bring about EQUITY & EQUALITY in LAW & ending Discrimination ,so blatantly visible.
iii)We must,therefore, bid goodbye to the OBNOXIOUS DR FORMULA , DAMOCLES SWORD OF APPENDIX IV, VILLAIN AND OBSTACLE for PRE 8/1997 pensioners graphically presented, DISCRIMINATION RIGHTLY EXPOSED .
IV) Thus,even irrespective of the Board Resolution,on sheer grounds of discrimination between pre-8/1997 and post 8/1997 pensioners,which has to be set right and further as such anamolies adversely affect the Fundamental Rights of citizens enshrined in Constitution,depriving them of Same rate of Dearness Relief as is given to in-service employees, in flagrant violation of equity, equality &right to good life and living. A Chart of DR per slab for pensioners losing heavily continued DR difference for many years now clearly proves the increasing DR per slab difference over various CPIndex(IW)2001 of 600,1148,1740,2328,2994,4078,the last two representing wage settlement of 1/8/2007 and 1/8/2012 unmistakably proving the phenomenal loss of DR silently suffered by pensioners of different Groups I,II,III,IV,V.
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E) IN-DEPTH ARGUMENTS & SUBMISSIONS FOR PENSION UPGRADATION:
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Sr Counsel can master these points for presentation, & for Replies to DHCBench & also to supplement other issues ,where still an element of doubt appears or Bench considers as vague
A)1)BASIC CRITERIA is grant of similar pension for all those with same length of service for the same cadre & that is violated. It is an anachronism that LIC pensioners still continue in pre-1995 IV Pay Commission mode with Basic Pension Same,unchanged for 23 years from 1/11/1993 !
2) Hon'ble Mr.Justice V.Gopala Gowda pronounced the judgment of the SC Bench comprising His Lordship and Hon'ble Mr.Justice C.Nagappan,
a) " 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.
b) as Basic Pension has remained untouched & unchanged from 1/11/1993 ,well over 23 years,HC Bench must empathise with the genuine aspirations of the pensioners to end discrimination in DR ,with pre- 8/1997 pensioners getting 50 % DR only where as Post -8/1997 pensioners get Full 100 % DR &Employees also Full DA. This is the height of discrimination between Pre & post-8/1997 pensioners,all due to Restrictive Appendix IV Formula & so this must be declared null & void to free all pre-8/1997 pensioners to join post 8/97 Group with Full DR & same as that for Employees, which is the most Equitable& ends discrimination once for all, PLUS,
c) as 6/7 cadres below get more pension than Seniors, as illustrated in Charts & Tables,this monstrous anamoly of such huge difference must be remedied through pension upgradation upheld in several HC/SC Judgements .HC/SC must always perpetually honour the concepts of Equity& Equality enshrined In Articles 14 & 16 of the Constitution. When legal & constitutional principles are violated, HC/SC must render full & complete judgement in favour of the litigants ,cases going on & on for 18 years.15,500 pensioners have died in the meantime.
B)I)In what areas it has to be strengthened has to be clearly diagnosed, understood by Sr Counsel,& needed preparations on law, constitutionality, Fundamental Rights, avoid discrimination, & in particular areas which Hon Dipak Misra & now Hon Justice Khanna, DHC have emphasized there were inadequate pleadings.
I) i ) Revision of pension comes under the Fundamental Rights of the retired employees to equity, equality before law, right to life and dignity as guaranteed under the Constitution, which is binding on the State. It is unfair & unethical to deprive the beneficiaries of what is legitimately due under law. Hon SC has been ruling time and again from the Constitution Bench decision in D.S. Nakra case 1983 to ever so many compelling judgements on the same subject & also recent & latest judgment rendered in 2015.
ii)Rules which provide for differential treatment amongst the same class of employees are violative of Articles 14, 16 and 21 of the Constitution and are not enforceable. While in the instant case the retired employees are being treated unequally in as much several classes have come up amongst the one class of retired employees (pensioners), this mini-classification itself is violative of Articles 14, 16. No law permits creation of different classes amongst one class. THIS will be a CLINCHING ARGUMENT & must be dinned into the ears of Hon SC Bench positively
iii)a) However as per the case examples given by the 7th CPC itself, a Secretary to the Government of India retiring on 31 August, 1992 was in receipt of a basic pension of ₹4,000 per month. The basic pension after implementation of the V and VI CPC got revised to ₹13,000 and ₹40,000 respectively. With the benefit of dearness relief this pensioner is on date entitled to a total payout in terms of pension and dearness relief of Rs87,600.
b)Further, as a pensioner who is over 80 years of age, he is entitled to an additional pension equivalent to 20 percent of basic pension. In effect the pensioner is in receipt of a total payout of ₹105,120 per month as on date.
In comparison we are drawing LESS THAN one third of that pension now
Institutions trying to create classes of pensioners ,heterogeneous, instead of one homogeneous group, subdividing & subclassifying ,though all are having same length of service,is regarded as unconstitutional .
iv)Nothing should be in derogation of Fundamental Rights or no abridgement of such Rights,if there is any such law, then that law is inconsistent ,as Rule of res judicta comes into play laying concerns on impractical pleas, not in tune with the facts & circumstances of the case.
There can be no law in breach of Fundamental Rights of equity and equality as guaranteed under Articles 14 and 16 of the Constitution and also right to life with dignity as guaranteed under Article 21. If there is any such provision ,it itself is null and void
v) where CITIZENS are given DUE IMPORTANCE to lead a WORTHY LIFE, LIVING without INFIRMITIES & as IMPORTANT LIMB of SOCIETY with DIGNITY,which SC/HCs consider always as paramount, .
vi) gross impropriety to deny a modicum, genuine. legitimate aspirations & demand of Elders with dedicated long years of service to make the institution shine in all respects earning such a good image & public trust,
vii) No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits..... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence."
D)i) Earlier Groups of Pensioners, when they were leading hand to mouth existence,& Today Employees can Save & Save & also Invest & Invest !!
ii) Further,Basic Pension & DR at Asst level for Group II pensioners(1/8/92—31/7/97) is Rs 15,088pm & ranges to Rs 24,282 pm for ED, & Rs 20,882 pm for Asst to Rs59,371 for ED,for Group V, indicating yet again, the magnitude of difference/deficit of Rs 5794pm for Asst to Rs35,089pm for ED. WHITHER EQUITY & JUSTICE, our Sr Counsel must vividly bring to pointed attention to DHC BENCH & HC must ensure the CITADELS OF JUSTICE,so SACRED & SACROSANCT , should not be allowed to fall.
This is reality & true but poignant picture of grotesque anamolies& handicaps, of the dire need to redress the mounting loss of pension consecutively for years& decades since Retirement, ONLY through Pension Revision with every Wage revision.
iii)Substantial Retirement Benefits present day pensioners get such as Gratuity Rs 10 lacs, Encashment of PL,CV OF PENSION, GSLI, Decent PF accumulations etc whereas,
--- many daily disabilities& expenses on all items,high inflation, &
--- especially medical Domiciliary outlay,including Consultation,Special Reports, medicines etc pretty high for Pensioners,
No perquisites, no LTC, no Domiciliary medical benefit lumpsum being granted to pensioners, no PLLI (Productivity Linked Lumpsum Incentive) 1- 6% on fulfillment of criteria as for employees, poorest Retirement benefits, no scope for saving & so for investment,& many other disadvantages & infirmities are silently suffered by Pensioners, which Hon DHC/SC Bench must take note of, in an impartial assessment of the none-too-happy position of pensioners & enable them to have uplift, atleast now, with proper Effective dates wherefrom Discrimination arose.
iv) There cannot & should not be any bias & prejudice in treatment of employees or pensioners. Corporation cannot be allowed to make a pick and choose policy in the matter of exercise of its authority. THIS PRINCIPLE must be placed before the Lordships EFFECTIVELY again to drive home that DIFFERENT YARDSTICKS adopted in respect of Employees & Pensioners leads to sidetracking of Pensioners Issues & not even a semblance of reality in tune with the times is taken cognizance of with Negative consequences to Elder Pensioners .
v )It is a travesty of justice to witness such gaping ,unbelievable differences in pension amongst various Sectors & disciplines. Let there be a modicum of decent comparison amidst Govt & other various All-India Institutions. LIC is always an Open Book of unqualified adulation & accolades & awards galore.
vi )Further,after pension upgradation is granted after wage revision,arguments favourable to us to be highlighted before DHC & SC Bench. Many instances arise whereby LIC OUTGO decreases .These are welcome compensatory inbuilt features arising as we go along.
i)subsequent fitments to the next group,after wage revision, will consume a moderate outlay only.
ii)Deaths of employees during service & so Family Pension only
iii)Deaths of pensioners, increasing by leaps & bounds
iv)pensioners not alive to secure Commuted Pension 15 yrs after retirement,a savings for LIC,
v)See the rising numbers of Family Pensioners, 17 % to 36% to RP & in some Zones ,even 38/40%
vi)so parity also tapers off,
vii)NPS wef 1/5/2010 hence all new recruits of the last 5 yrs and further recruitments in future WILL NOT COME UNDER THE PURVIEW OF PENSION UP-GRADATION makes this upgradation pensioners cadre slowly a CLOSED ONE.
viii)Hence after 2-3 decades, there will be huge balance in the Pension Fund, but the number of pensioners availing pension from this fund will be diminishing sharply and finally will become zero.
ix) Consequently, the remaining balance of this Fund will be finally transferred to LIC's capital."
vii)When it comes to Administrative Order, Statutory Provision ,Constitutional Rights or Provision, certainly Constitutional Rights overweigh& eclipse the earlier 2 & so Supreme & have to be respected in letter & spirit.
As a corollary, such aberrations & deficiencies have to be corrected & Equity restored
vii) The amount of pension for Central Govt employees shall be subject to a minimum of Rs 9,000 and the maximum pension would be Rs 1,25,000--which is 50 per cent of the highest pay in the government, The highest pay in the government is Rs 2,50,000 with effect from January 1, 2016.
E)i) It will be more appealing & pertinent to delve into the Total Outlay aspect,which we can do with proper justification & a good degree of transparency & openness.That will be making sense with Hon HC Bench that we pensioners want to convey only the truth of the matter & not in any way twist facts. Outlay for Regular Pensioners 32,902 & Family Pensioners 13,774,totalling 46,676 ,& this includes pensioners for the period ,1/8/2007—31/7/2012, to make it uptodate was worked out.Outlay for 19 years from 1/8/1997—31/7/2016 is Rs 3435.97cr,which is a mere Rs180.84 cr per annum,which LIC can afford for granting pension upgradation
ii)CORRECT OUTLAY which is
*not even the Tail of the latest Wage Agreement, 1/8/2012 to 31/7/2017,which eclipses all earlier wage charters, acknowledged by ALL IN-SERVICE EMPLOYEE UNIONS,
*a fraction of TOTAL PREMIUM INCOME, or
*still less of TOTAL INCOME, including investment income etc,,
which PLETHORA OF DATA , will prove satisfactory for JUSTIFICATION & REALISATION OF Hon HC/SC BENCH ,making it crystal clear&
iii)Pension Bill is only 5.4 % of total Wage Bill.
asserting that in no way this hurts the coffers of the Corporation.
iii) No. of EMPLOYEES : 31.03.2013 31.03.2014 31.03.2015 31.03.2016
116711 120388 117653 114773
Expenses in Rs.crores : 11894.91 14705.11 14523
iv)No. of PENSIONERS:
YEAR
|
No of Pensioners
|
Total Pension
Payments
|
INDICES
|
|
2006-07
|
38,200
|
From 1995-96 to 31/3/2011(16yrs)
|
Moderate Outlay only
|
|
2007-08
|
38,434
|
|
|
|
2010-11
|
43,043
|
497 cr Rs3707.84cr(16yrs)
|
|
|
2011-12
|
45,476
|
585 cr
|
|
|
2013-14
|
49,058
|
793 cr
|
0.37%of TPI
0.21% of TI
|
2.3%ofTotal Mgt Expenses
|
12,272 Family Pensioners to 30,731 Regular Pensioners as at 31/3/2011 to 14,485 FP to 34,457 RP as at 31/3/2015 .43,003 TP to 48,942 as at 31/3/2015, a MERE 1125 pa ADDITION to TP as against 1907 in EARLIER YEARS.
v) SURPLUS : Last 16 yrs alone, LIC paid to Govt crossed Rs 10,000 cr ,a Kamadhenu indeed, & all on a mere Rs5cr given by Govt on 1/9/1956. For last FY 2015-16,LIC presented a cheque of Rs 1501.75cr to Govt
vi) LIC will celebrate DIAMOND JUBILEE this full YEAR from 1/9/2016. 60 years of untarnished glow,Rock of Gibralter, undeclared Navratna, Economic TajMahal indeed ,supplying ,assisting Govts in almost every sphere of activity, V Year Plans, Nation building, Peoples Money for Peoples Welfare,Social Sector investments galore,Total Investments mind-boggling indeed.
vii)Not a pie will be needed from UOI/MOF, for pension upgradation, LIC never goes with a begging bowl. UOI comes to LIC for help, pumping money to stock market, stabilisng the same,
viii)Further, with NPS this Pension Upgradation will become a CLOSED CADRE
F)i) There are HC & SC judgements emphasizing that " this dichotomy or discrimination neither appeals to reason, nor can the State be permitted to take shelter of financial constraint etc " . Even if SC normally does not attach much store & importance to Capacity to pay, as SC has said in many verdicts & even admonished Govt & Instns pretending to protect themselves under the garb of no adequate resource or financial position
Further, it is stated that Outlay per annum in case of 46,676 RP & FPensioners is a meagre Rs 180.84 cr only.
ii)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 app Rs1.12 lac crores in 2017-18, touching CG Salary Bill Rs 1.16 lac crores of 2016-17.
G)i)Very fact LIC wrote to MOF/UOI was for heralding & clearing cobwebs around the concept of pension upgradation , LIC Letter to MOF. LIC SECRET LETTER dt 31/12/2001 which forcefully stressed the 'need to rationalize the DR structure available to different groups of pensioners in order to reduce the administrative inconvenience & also to see that different generations of pensioners are protected by merging the pension to a suitable index.'—,also reminded MOF/UOI on 12/8/2003 ,as a prelude for successive pension revisions at future CPIndex,every 5 years.
ii) The unpardonable ,dictatorial attitude & delay by MOF/UOI amounts to not only denial of justice but also result in a serious miscarriage of justice apart from causing grave hurt.
iii)There is no provision in Pension Rules 1995 that Pensions should not be revised.On the other hand,Rule 5(3),Chapter III of Pension Rules,1995, 'the Corporation shall be a contributor to the Fund & shall ensure that sufficient sums are placed in it to enable the Trustees to make due payments to the beneficiaries under these Rules. Rule 13(b) states , ' the Trust shall, subject to the availability of additional sums in the Fund, to be provided by the Corporation as required under Rule 5(3) to purchase additional annuities as & when it becomes necessary to revise upwards the benefits payable in accordance with these rules . Pension Rule 13(b) necessitates the Corporation to make available additional sums in the Pension Fund as and when necessary to revise upwards the benefits to the beneficiaries & so,concept of Pension Upgradation & practical possibility of pension revision was already contemplated & included in Pension Rules 1995.
METHODOLOGY in case DHC Bench craves for clarification from Sr Counsel:
Desirable Advocates are not caught off the wrong foot & so be thorough.
a)In the case of LIC, once a person retires, LIC purchases a pension policy from the P&GS department and, after that, purchases an additional policy on the same life, once in six months, with every DA increase. An additional policy is purchased also when the commuted value is restored. The policy expires when the pensioner dies. But even after that, if family pension is payable, another policy has to be purchased. The money required for the purchase of these additional or fresh pension policies is taken out of the pension fund.
b)Employees Wage & Management Expenses for last 4 yrs, 31/3/12, Rs10100 cr. for 31/3/2013 , Rs11,895 cr,31/3/2014 Rs 14,705 cr, 31/3/2015 Rs 14,524 cr
SZO Finance & Accounts as at 31/3/2016.
SZ inclusive of all Divns as at 31/3/2015, was Rs1002 cr & for 31/3/2016, it jumped to Rs1786 cr, terrific rise
THIS helps us to plead for Pension Upgradation for poor pensioners
c))SZO Pension &GroupSscheme (P&GS) Dept data
Employees Pension Liability SZ shows for 31/3/2016 Rs 12,47,44,767.68 ie 12cr 47 lakhs
AC No 42121501
LIC Employees Pension provision balance o/s as at 31/3/2016 as Rs129.91 cr Ac No 42257500
It is clear there is enough cushion .no cause for anxiety,as is portrayed in LIC Counter Affidavit
d)I had approached an Actuary, few months before, exchanged lot of Notes on Email, phone calls, sat for 4 hours & some significant facts ,aspects, clearer understanding, removing cobwebs,& repudiating LIC Counter Affidavit, I have extracted for the guidance of Sr Counsel, in simple, understandable terms.In case any query comes from DHC Bench, happily Sr Counsel can clarify to Pensioners advantage only.
58th AnnualReport (As At31.03.2015)Page 183 & 185[Page 185 & 187
{All amounts inRs. Crores}
Current Service Cost 4037.43 4769.21
Benefits Paid -1277.96 -1025.58
i)The present cost to the Corporation for the Pensioners(those who receives pension now) is only Rs.1278 Crores &Rs.1026 Crores for the Financial Years 2014-15 & 2013-14respectively. Claiming the cost to be Rs.5000 Croresexaggerates the benefits paid to the existing pensioners.The pension cost claimed by the Corporation includes the increase in liability for the existing employees and this can certainly be not the correct argument for not accepting our claim
ii)What is projected as additional contributions are merely the"Current Service Cost" valued (actuarially) in the respective year Current Service Cost is the amount set aside in the current period to match the retirement benefits accrued by existing employees. It has nothing to do with the existing pensioners.
· LIC's counter argument is based on the increase in expenses following actuarial valuation of pension liability for the existing "Pension Optees in Service". Though this is a cost to the Corporation, this cannot be a reason for disregarding Pensioners claim.
iii)However the facts and figures given in LIC's reply are not fully relevant to the existing pensioners. What is to be seen is the pension liability for the existing pensioners, the assets available to meet this
liability and incremental cost to the Corporation. Instead LIC counters our claim by showing the overall cost to the Pension Scheme.
Iv)The total Pension Fund as at 31/03/2015 isRs.32,578.13 Crores. This amount includes the Corporation's Contribution to PF of all members of the Pension Scheme (Pensioners & Employees) & the actual interest earned on the fund every year less pensions settled so far. The additional contribution made to the Fund is not correctly quantified as the Plan Assets includes the accumulated PF balance (of Employer's PF Contribution) of 50,000 odd pensioners & the accumulated PF balance of all employees(those who have opted pension).
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iv) The provision of relief ,since the introduction of the pension schemes in these institutions, applying automatically in quickest possible time ,only to GOI pensioners and denying the same relief to the pensioners of these institutions does not have any objective criteria for such classification for such discrimination and exclusion. As a corollary, such aberrations & deficiencies have to be corrected & Equity restored at the hands of justice thro DHC &Supreme Court. It is applying equal laws applying alike to all in a like situation.
v)While examining the case under Article 14, the approach is not: "either take it or leave it" : The approach is Removal of Arbitrariness and if that can be brought about by severing the mischievous portion, the Court ought to remove the discriminatory part, retaining the Beneficial Portion.
vi) Hon'ble Supreme Court of India interpreted Article 14 of the Constitution of India, as not only promising & providing for Equality before the Law and Equal Protection of Laws, but also as something that opposes all acts, deeds by Central /State Government and their Undertakings which are irrational or unreasonable, or unfair or arbitrary. Article14 is certainly attracted where equals are treated differently, without any reasonable basis. The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws.
H) i) IV CPC categorically observed "We are of the view that Court judgments when delivered on merits should not only be implemented invariably but their benefits should also be extended to similarly placed persons without requiring them to resort to litigation (para141.27)
ii) Methodology of calculations must be identical & similar to the methodology adopted by LIC for wage revision for Employees .Even the 5-Judge SC Constitutional Bench presided by Hon YVChandrachud, in famous DSNakara case,made it explicit "Pension is their statutory, inalienable & legally enforceable right. It has been earned by the sweat of their brow. As such. it should be fixed, revised, modified & changed in ways ,not entirely dissimilar to the salaries granted to serving employees .
iii)While in wage charter ,once every 5 years, there will be 1 Fitment ,of merging DA with BASIC PAY as on effective date, ie 1/8/2012 for latest wage revision,ie DA as on 1/8/2012 at CPI 4708 .For Earlier Group, CPI stood at 2994. By adding DA as at CPI 4708, Revised Basic pay will become Existing Basic Pay + DA as explained above
iv) Even WITHOUT LIC Board Resolution, the kernel of the issue remains & can be proceeded with , to consider favourabaly Pension upgradation
v)The Hon'ble Kerala High Court goes on to observe, …"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."
vi) In this context, our Sr Counsel must vividly point out implicit desire & decision of MOF/UOI vide Circular dt 5/1/2015 to CEOs of PSBs/Financial Institutions /Insurance Cos granting assurance of freedom of non-interference in PSBs etc on commercial decisions, personnel mattes etc,which implies autonomy & so, it has to be practiced & implemented
I) The power to fix pay also includes the power to fix notional pay. This is a perfectly permissible procedure being an integral part of civic jurisprudence. Commonsense, equity, equality, similarity in circumstances, suggest straightaway acceptance of SAME RULE for insurance pensioners also, left to credible LIC on sound principles for solution to pay attention to those dates when discrimination arose palpably & to resolve the glaring disparities in cadre pensions as enunciated .
Sr Counsel must insist on the principled, logical decision to grant the benefit from 1/11/1993 or date of retirement, whichever is later. No different yardstick should be there as dispensers of justice & there should not be any arbitrary date.
i)That in this connection, it is submitted that in the writ petition the relief with regard to payment of dearness relief to the retired employees at the same rate as is payable to in-service employees has been sought. Therefore,what is important and significant for Pensioners is not the constitutional validity of para 3A to be challenged, on the other hand the constitutional validity of paras 1 and 2 of Appendix IV are to be firmly and squarely challenged which vitally concern the payment of Dearness Relief to the retired employees prior to 1/8/1997. Factually the constitutional validity of paras 1 and 2 providing for different rather reduced rate of Dearness allowance was under challenge.
ii)That in this connection it is submitted that the aforesaid question of Constitutional validity of para 3A or para 3B for that matter had never been raised in either the writ petition No. 6676/1998 entitled Krishna Murari Lal Asthana Versus L.I.C. of India or writ petition No. 654 of 2007 entitled Krishna Murari Lal Asthana and others Versus Life Insurance Corporation of India and others. Therefore the said question cannot be examined and decided in the context of the judgments in the two writ petitions of Rajasthan High Court.
iii)That it is further submitted that when the pay scales were revised effective from 1/8/1997 for the in-service employees, and the slabwise rates of Dearness Allowance/Dearness Relief were substituted by simple formula of applying 0.23% per slab, it had become necessary to bring in the revised formula in Appendix IV, therefore, vide Notification dated 22/06/2000 paragraph (3)(A) was added. effective from the date the pay scales came into force and consequently pensions were payable to those who retired from that date i.e. 1/8/1997.
iv)That similarly paragraph 3(B) of Appendix IV of the LIC of India (Pension) Rules,1995 makes a continuous provision of method as to how the dearness relief will be payable whenever the payscales and consequently pensions are revised.
. v) That under these circumstances ,there is no constitutional invalidity in these Paras 3(A) and 3(B) of Appendix IV of the Pension Rules. On the other hand quashing of these paras would mean that those who have retired on and after 1/8/1997 will be deprived of the Dearness Relief on their pensions. This question therefore, deserves to be answered in that manner.
vi)That it is further submitted that LIC management had entered into an agreement with the Unions/Associations in their discussions held on 1.12.93, 2.12.93 and 13.1.94. The agreed conclusions of the same were circulated by Letter dated 14th January, 1994. Para 7 of the said agreed conclusions are relevant in this respect which is reproduced hereunder for ready reference:
(&) Dearness relief to pensioners will be granted on basic pension at such rates as may be determined from time to time in line with the Dearness Allowance formula in operation in the Life Insurance Corporation of India."
vii)But while introducing the pension Rules this important provision in Memorandum of Understanding (MOU) has been ignored creating a distortion and ambivalence in introducing the Paras 1 and 2 of Appendix IV whereby the slabs had been fixed at 50% of the slabs as applicable to in-service employees instead of prescribing the formula which has later on been introduced by Para 3(B) to the said Appendix. This has resulted in factual parameter lesser rate of Dearness relief than 50% of the Dearness Allowance payable to in-service employees and (this) thus had created an anomaly which the Board, after the writ petition No. 6676/1998 was filed, had appreciated and passed the Resolution but could never obtain the approval of the Central Government . UOI was also responsible for sitting quiet on many reminders from LIC.Such an inordinate delay and silence of more than 14 years must be deemed to signify implicit approval only,not to deprive modest aspirations of pensioners and the legitimate, legal and valid demands of the Retired employees and denying the constitutional rights of equity, equality and right to life as guaranteed under Articles 14, 16 and 21 of the Constitution of India.
1)On upgradation certain amount of DA is merged in basic pay and it becomes necessary to revise DA rates .Therefore a new rate of DA at a lower rate is applied on the revised basic pay at pay revisions. Unfortunately, Pension upgradation has never been done at any pay revision. But question of DR revision at a lower rate to new pensioners who retired after availing next pay upgradation arose at every subsequent pay revision
2)Our case has been diverted to an incongruous direction of considering constitutional validity of Para (3A) of Annexure IV of PRs 1995. Nobody had ever challenged its legality. Paras (3A) & (3B) were necessary for the then and future retirees like Para (1) & (2) for the past retirees as noted
3)Para 3A along with 3B, 1 & 2 are responsible for creating groups of pensioners in every class of pensioners and thus are discriminating. Every five years, at every pay revision, a different group of pensioners in each class I, II & III with pension at a different pay scale and at different rate of DR is created.
4)It is only an interim order and is subject to examination and final decision. Therefore it is not wise here to focus on 40% IR as per 3A. Imagine what will happen if constitutional validity of para 3A is as-it-is established. Therefore we should pay attention only on strong and legal grounds against Non-upgradation of pension and on Creation of different groups of Pensioners in all classes I, II & III by discrimination and violation of Fundamental Right to Equality.
5)Discrimination exists between old pensioners and new pensioners against no discrimination between old employees and new employees. Old employees also get benefit of revision by upgradation of pay along with new employees but old pensioners are not upgraded along with new retirees.
6)Victory over discrimination will necessitate LIC to make rule to upgrade pension to all pre and post retirees at every pay revision, by amending paras (1),(2), (3A) & (3B) or by dropping these paras and creating new rules to root out discriminations.
J)i)It is befitting & pertinent to note that Hon Justice Dipak Misra & Hon Sapre thundered, as recent as 1/7/2015 " 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.
ii)The cascading effect of the various judgments favouring pensioners must be made to definitely culminate into a deserving victory for all groups of pensioners , irrespective of dates of retirement, to atlast achieve the Twin benefits of Full DR with 100 % neutralization,same as for employees & Pension Upgradation with every wage revision.
Faith & Prayers,
R.B.KISHORE
VP,AIRIEF
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