Monday 9 May 2022

JUDICIAL PERFIDIES-18

 

This series was triggered by two questionable court orders-one, by the Gauhati High Court,  dated 15/03/2018 in WP(C) 4224/2016, and two, the apex court order, 08/07/2019, upholding the same in SLP (Civil) Diary Number 18133/2019. What better way to dovetail the break in the main thread due to current events and get back to the main thread, than by updating on the status of implementation of those orders.

 

Let us quickly recapitulate what has been narrated in detail in Judicial Perfidies 1. The issue before the Gauhati High Court was raised by one of its former Acting chief Justices, whose date of birth was 30/07/1936, retired on 29-07-1998 on the eve of his attaining the age of 62 years (1936+62= 1998), demanded enhanced pension, due to pensioners on attaining the age of 80, with effect from 30/07/2015 when by the logic of his retirement age itself, he would have attained 80 years only on 30/07/2016 (1936+80= 2016). His claim was that he had entered 80 years of age on 30/07/2015. The High Court accepted his argument and ordered the government to pay him enhanced pension. The apex court dismissed the Special Leave Petition filed by the Central Government simply stating that they did not want to interfere with the orders of the High Court. It became law.

 

What the courts did not reckon with are the following facts:

The scheme of enhanced pension was introduced in 2006 by the 6th Central Pay Commission.

It applied to all central government pensioners, as much as to the judges of our high courts and apex court.

Thousands of central government pensioners and hundreds of high court/supreme court judges would have attained 80 years of age and got the enhanced pension between 01 Jan 2006 and 2015 and none of them had raised such a ludicrous claim for obvious reasons. So this verdict becomes applicable to all of them as well as to all those entering 80 years of age on their attaining the age of 79 years itself.

Well, the same logic of entering and attaining an age, should extend to the retirement age also and hence employees who have to retire on attaining 60/62/65 years of age will now have to retire on entering those ages one year in advance.

 

And, as was expected, a central government employees union wrote, on 26 August 2021, to the Central Government to extend this to all pensioners and circulated that letter on social media. That was when this instance of a special dispensation came into public domain.

 

An application, dated 02 Sep 2021, under the Right to Information Act was delivered to the Ministry of Law and Justice on 06 September 2021, seeking the following information:

 1. Have the orders been complied with?

 2. If enhanced pension has been granted to the petitioner with effect from 30/07/2015, along with interest due, provide copies of the relevant file notes and the order granting the same.

3. The date on which payment as per para 2.2 has been made and the arrears paid. The arrears and interest paid should be shown separately.

4. Has the relief been granted to similarly placed pensioners?

5. If the relief has been granted to similarly placed pensioners, provide copies of the relevant file notes and the order.

6. If the order has not been complied with, provide copies of the Contempt of Court petition filed, if any, by the decree holder, the counter filed, the case number and its present status.

 

The reply, dated 30 September 2021 but posted only on 05 October 2021, by the Public Information Officer (PIO) provided the following information:

-that the sanction was issued by the Accountant General Assam and hence the application was forwarded to that public authority

-Department of Justice does not sanction additional quantum of pension to retired judges.

-No contempt petition has been filed

Now, the PIO was required to send copies of the application or its relevant extracts to concerned public authorities for providing information not held with the public authority to whom the application was addressed. This was to be done within 5 working days of receipt of the application and the same had to be intimated to the applicant. This was not done. It had been done only on 5 October along with the copy of the reply provided to me.

Also, as per Section 21 of The High Court Judges (Salaries and Conditions of Service) Act, 1954, it is the President of India who is the competent authority to grant extraordinary pension to a judge.

Further, as per information disclosed under Sec 4(1)(b) of the RTI Act, under Allocation of Business Rules, 1961, it is the function of the Department of Justice to deal with the appointment, resignation and removal, etc. of Chief Justice and Judges of High Courts in States; their salaries, rights in respect of leave of absence (including leave allowances), pensions and travelling allowances.

Though these matters were raised in the first appeal under the RTI Act, submitted on 13 Oct 2021, there was no response from the appellate authority and the second appeal, filed on 31 December 2021 is pending with the Central Information Commission.

Subsequently, a letter, dated 10 January 2022, was received from the PIO of Principal Accountant General (A&E) Assam, informing the following:

-The Enhanced Pension Authority has been issued to PAO, CPAO, New Delhi

-The information sought at para 2 of the application is exempt as per Sec 8(1)(j) of the RTI Act

-Date of payment is not known to the office of the Principal Accountant General (A&E) Assam

-No relief has been granted to similarly placed pensioners

-A contempt of court petition had been filed and bears the number 635/2020.

The first appeal highlighting the deficiencies/defects in the above reply was filed on 08 March 2022 and there has been no response till date. Some of these are:

- Sec 8(1)(j) of the RTI Act exempts only those personal information which has no relationship to any public activity or interest. In this case both the court order and its compliance have public interest to the extent that it affects all pensioners of the central government and its consequent effect on the public exchequer.

-In the matter of information not known/held with the public authority, the PIO should have forwarded the application or relevant part of the application, to the one holding such information.

-Since the Contempt petition is of 2020, the date of compliance of the order is material and it has not been provided even though specifically sought.

It is also surprising that the PIO of Department of Justice had informed that no contempt of court case has been filed, though the Ministry of Law and Justice was one of the respondents along with Principal Accountant General (A&E) Assam in the original case decided by Assam High Court.

It should also be noted that most of the information has not been provided by the two PIOs.

 

Interestingly, I could get a copy of Bill No 144/2021 to amend the High Court Judges (Salaries and Conditions of Service) Act, 1954 and the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 where by an explanation was inserted as “For the removal of doubts, it is hereby clarified that any entitlement for additional quantum of pension or family pension shall be, and shall be deemed always to have been, from the first day of the month in which the pensioner or family pensioner completes the age specified in the first column of the scale.".

 

Now the ages specified in the first column of the scale are as under:

From eighty years to less than eighty five years

From eight five years to less than ninety years

From ninety years to less than ninety five years, and

From ninety five years to less than hundred years.

Here, the question is whether this clarification was actually required or not. Because, given that you celebrate your first birthday when you are one year old, you will celebrate your 80th birthday when you are 80 years old or 80 years of age. So you add 80 to the year of your birth in your date of birth to get the date when you are 80 years of age. The illustration has already been given at the beginning of this part of the critique. And this happens to be the date on which you enter 80 years of age, because there after you continue to be 80 plus one day, two days, three days…till 80 plus 365 days when you will be 81 years of age. So you complete 80 years of age only on attaining 81 years of age or on your 81st birthday.

Anyhow, this looks like an effort to seek a simplistic solution to deny the benefit to similarly placed pensioners. But whether it will suffice to deny the benefit granted to an ex Chief Justice of a High Court by the same High Court, and upheld by the apex court, remains to be seen. For that we will have to await the disposal of the pending contempt of court case, which legally need not be concluded in any specific time frame.

Meanwhile here is an extract from a humorous piece written by a former member, Avay Shukla, of the Indian Administrative Service and has been in circulation on social media.

In the early eighties I was posted as a joint secretary in the finance department at Shimla. My duties involved approving claims for medical reimbursement. Those days contact lenses were deemed to be a cosmetic procedure and  their expenses were not reimbursable. One day I received a claim from a High Court judge who had contact lenses fixed. I promptly took the file to the finance secretary. The secretary looked at me with a cunning grin and said: “Approve it!”. I was aghast, just as Moses must have been when he saw the Israelites worshipping the golden calf.

“But the rules, sir ...” I blurted. And then the finance secretary explained: “Avay, you must understand the rules which govern rules. The most important rule in government is the rule of precedents. A precedent, once set, is sacrosanct, notwithstanding all other rules. Once you allow something for one person you cannot deny it to others. So let this judge have his bloody contact lenses—after all, how can a lowly finance secretary refuse a mighty High Court judge? And hereinafter all of us can also have contact lenses!” And that’s how contact lenses are now reimbursable. We now have more IAS officers adorned with the lenses than starlets in Bollywood.

And another one from a blog at http://indiamydreamland.blogspot.com/2010/12/indian-judiciary-dream-unfulfilled.html:

A budding lawyer working with his lawyer dad, exclaimed to his father. “Dad, Dad you must congratulate me on the first major success of my career, because today I have finally settled your 28 years old case, pending since, even before my birth”. The shocked father rebuked his happy son saying, you are a fool. This is the case which helped me, to bring you up from your childhood, and made you a lawyer. This case would have now helped me, to get you suitably married too. In my view you still need to learn a lot, to truly acquire the wisdom, intelligence and the system of functioning of a lawyer.

To conclude this part, the notings in File No A1-3141/2012 of the Kerala High Court on the subject of Post-retiral benefits to Honorable Judges-Government Orders-reg is attached. No comments are being added, except that this is the only information I have got from a court under the Right to Information Act. The ones that had been stonewalled shall be dealt with separately.

 

P M Ravindran/raviforjustice@gmail.com/280422

 

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