Saturday 11 September 2021

JUDICIAL PERFIDIES-1-100921

 

JUDICIAL PERFIDIES-1

 

The other day I came across a letter on social media which forms the raison d'être for this analysis. It was initiated by the Secretary of Joint Consultative Machinery for Central Government Employees and is addressed to The Secretary, Department of Pension and Pensioners’ Welfare. The subject was enhancement of Pension due to Central Government Employees from 80 years of age and additional enhancements due on attaining 85, 90, 95 and 100 years of age. The addressee has been requested to issue orders to enhance the pension of all central government pensioners as per the orders, dated 15/03/2018, of the Gauhati High Court in WP(C) 4224/2016 and upheld by the Supreme Court on 08/07/2019 in SLP (Civil) Diary Number 18133/2019.

 

Before we go into the analysis per se, it is necessary to understand the genesis of the decision.

 

Enhanced pension for central government employees on attaining the ages of 80, 85, 90, 95 and 100 was introduced with effect from 01 Jan 2006, based on the recommendations of the 6th Central Pay Commission (CPC), headed by a former judge of the Supreme Court, Sri Krishna. Here, what is to be noted is the expression ‘on attaining the age of…’. The relevant extract of the recommendation is given below:

   ......require a better deal because their needs, especially those relating to health, increase with age. Accordingly, the Commission recommends that quantum of pension available to the old pensioners should be increased as follows:- 

 On attaining age of         Additional quantum of pension 

 80 years                     -     20% of basic pension 

 85 years                     -     30% of basic pension 

 90 years                     -     40% of basic pension 

 95 years                     -     50% of basic pension 

 100 years                   -     100% of basic pension 



Now the question arises: when does one attain 80 years of age?

 

For a person born on 30/07/1936, he becomes one year old (or, in other words, attains the age of one year) on 30/07/1937, 60 years on 30/07/1996 and 80 years on 30/07/2016. If you ask: what is his age on 01/01/2016, you are bound to reply that he is 79 years and 5 months. And his age on 01/01/2017 would, similarly, be 80 years and 5 months.

 

What is his age on 29/07/1937? Though one may casually say he is one year, precisely he is on his 365th day of birth.   It will be only on 30/07/1937 that he will be one year old, that is, enter 1 year of age. And that is how we celebrate our birthdays, wedding anniversaries etc, isn’t it? While, in the case of wedding anniversaries there is no ambiguity, we do mix up birthdays and birth anniversaries, not making a considered distinction between them, though the distinction is very much there. With the day one is born, being one’s first birthday, the second birthday is actually the first birth anniversary, though one is used to hearing the first birth anniversary being celebrated as the first birthday.  This confusion is perhaps at the root of the current issue. But, when it comes to legally resolving such an issue, there should not be any such confusion.

 

The current case is that one Mr Virendra Dutt Gyani, who had retired from the Gauhati High Court as Acting Chief Justice on 29-07-1998, on attaining the age of superannuation i.e., 62 years. On 30/07/2015, he celebrated his 79th birth anniversary. So, he claimed that he had entered into his 80th year on that day and was eligible for the first enhancement of pension.

 

Now here is a pertinent question: the judge, born on 30/07/1936 would have celebrated his 62rd birth anniversary on 30/07/1998, or, as per his claim in the matter of enhanced pension, entered 63 years of age on that day. So, did he serve for one extra year? The question is pertinent because, as per Section 14 of The High Court Judges (Salaries and Conditions of Service) Act, 1954, he should have retired on attaining the age of 62 years. The relevant extract is given in the screenshot below (refer 14(b)):

 14. Pension payable to Judges.—Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule: 

Provided that no such pension shall be payable to a Judge unless— 

(a) he has completed not less than twelve years of service for pension; or 

(b) he has attained the age of 2 [sixty-two years, and, in the case of a Judge holding office on the 5th day of October, 1963, sixty years]; or 

(c) his retirement is medically certified to be necessitated by ill-health:

 

Or, let me put the question in a different manner: how can a man who attained the age of 62 years on 29/07/1998, attain the age of 80 years on 30/07/2015?

 

We can empathize with a man of around 80 years of age. After all that is an age when senility cannot be ruled out. But look at the facts that neither occurred to the judges who constituted the division bench in the Gauhati High Court nor brought on record by the counsels:

 

One, this enhanced pension has been provided to the beneficiaries-all central government pensioners- with effect from 01/01/2006. And nobody had found any anomaly in providing it to them from the month in which they celebrated their 80th birth anniversary or 81st birthday.

 

(The beneficiary is eligible for the enhanced pension with effect from the month in which he celebrates his 80th birth anniversary. This has been brought out clearly in para 8, 11 and 12 of the Order itself, quoting the affidavits filed by/on behalf of Respondents 2 (The Central Pension Accounting Office, Govt. of India), 3 (Accountant General, Assam) and 4 (Registrar, High Court, Gauhati). However, while the respondents have mentioned 30/07/2016 as the date from which the enhanced pension would be applicable for the petitioner, a careful reading of para 8 would show that he would be eligible for it from 01/07/2016.)

 

Two, all central government pensioners are beneficiaries of this enhanced pension, including the judges of the high courts and the Supreme Court, who had superannuated before this petitioner, and, now, of course, after this petitioner too. Have any of them been given pension with effect from their 80th birthday or 79th birth anniversary?

 

Three, this interpretation of entering a particular year of age on the day when you celebrate that year’s birthday ( 80th year of age on 80th birthday and not on 80th birth anniversary) has very far reaching ramifications, not only  in the matter of enhanced pensions but even on the age of retirement for all those who have to retire on attaining a specified age.

 

And, here are the contradictions that are on record but sidestepped or neglected.

 

In para 7 of the order, it is stated that the Respondent 4 had written to the Respondent 1 that the petitioner had attained 80 years of age on 30-07-2015 and therefore he would be entitled to additional quantum of 20 % of basic pension w.e.f. 30-07- 2015 as per Section 17B of the Act.

 

However, in para 12 of the order, the same Respondent 4 had submitted in his affidavit-in-opposition, that ‘according to the petitioner himself, his date of birth is 30-07-1936. If that be so, petitioner would attain the age of 80 years only on 30-07-2016 and therefore, he would be entitled to 20% of additional quantum of basic pension w.e.f. 01-08- 2016 and not from 01-08-2015.’

 

And, here are the questionable inferences drawn by the bench.

 

In para 18 of the order, the bench has noted that Petitioner had retired from service on attaining the age of superannuation on 29-07- 1998. His date of birth is 30-07-1936. Therefore, on 29-07-2015 he completed 79 years of age.

 

This, as has been brought out at the beginning, is wrong. On 29/07/2015 he had completed only 78 years of age. He celebrates his 79th birthday on 30/07/2015. Till 29/07/2016 he is in this 79th year, as can be discerned from the fact that through out the year-from 30/07/2015 to 29/07/2016 he will be 79 years plus some months and some days old only and never 80 years. In other words, he only entered his 79th year of age on 30/07/2015.

 

Whatever reasoning and logic have been applied in paras 19 to 29of the order of the High Court, including the quote attributed to Winston Churchill are irrelevant. The simple fact is that the Central Government introduced a new benefit for its aged pensioners with effect from 01/01/2006 and all those who became eligible on attaining 80, 85, 90, 95 and 100 years of age have benefitted by it. It applied to even judges of the high courts and apex court. And I am sure that none of them had been paid the enhanced pension when they ‘entered’ 80th, 85th, 90th, 95th and 100th years of age as interpreted by the petitioner and accepted by the bench.

 

But what is even more questionable is that the court not looking beyond the case of this one former judge even when it notes as follows in para 25.4 and 25.5 of the order:

 

As has been brought out earlier, this interpretation of entering an age has very far reaching ramifications, not only in the matter of enhanced pensions but even on the age of retirement for all those who must retire on attaining a specified age. The letter from the Secretary of Joint Consultative Machinery for Central Government Employees addressed to the Secretary, Department of Pension and Pensioners’ Welfare is just the beginning of many long-haul litigations.

 

I remember the case of Major Dhanapalan who went to court on the issue of Rank Pay introduced for officers of the armed forces by the 4th Central Pay Commission with effect from 01/01/1986. This had been practically denied through subterfuge. Then Captain Dhanapalan is on record, having stated in an interview to The Week (Sep 23, 2012), that he had brought this to the notice of then then Chief of Army Staff, General K Sundarji but not pursued. The extract from The Week is given below:

 

                                                   */The picture could not be attached/*

Given the lack of access to courts, Dhanapalan waited for more than a decade, till he got posted to Kochi, to file a petition in the High Court of Kerala there. He got a favorable verdict and the appeal was also dismissed by the apex court. Thereafter, groups of officers mobilized and filed petitions in high courts all over the country. The apex court then pulled all these petitions from the high courts and gave a collective decision in favor of the petitioners. But revision, review, SLP followed and the court finally relented, more than a decade after Major Dhanapalan set the ball rolling and allowed the government to pay the dues only with effect from 01/01/2006. Being a disciplined body, the soldiers, both serving and veterans, accepted it but not without despair. As I understand there are many such class action cases of the soldiers pending with the apex court for many, many years now. The cases for One Rank, One Pension (OROP) and Non-Functional Financial Upgradation (NFFU) are two of them. Weird as it is, both concept wise and implementation wise, the NFFU, had been granted to members of the IAS and IPS since 01/01/2006 and other Group 1 Cadres from 01/01/2016. That is, all, except the officers of the armed forces.

 

The crisp 2 sentence order of the apex court, dismissing the SLP on 08/07/2019 brings to mind what the National Commission to review the working of the Constitution had reported: 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'. Just for the record, this Commission was headed by a former Chief Justice of India and had three more judges of the apex/high courts as members. Of the remaining seven members, two were lawyers, two were politicians, two were retired bureaucrats and one was a journalist.

 

 

The aim of this paper was only to analyze the judgments of the Gauhati High Court and the apex court. The case of armed forces officers was brought in only to highlight the way cases are argued and decided arbitrarily by our courts, including the highest court of the land.

 

This was a case of a judge getting a weird notion about his age, applying one yardstick for his retirement and another for getting enhanced pension. And both had been accepted by two courts of record, including the highest court of the land.

 

The court even quoted- the services rendered by the judges demands the highest qualities of learning, training and character- a former Prime Minister of England, Winston Churchill to suggest that judges were a special class of service providers. But I have read that the same Winston Churchill had opposed the granting of freedom to India saying:

 

“Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw.  They will have sweet tongues & silly hearts. They will fight amongst themselves for power & India will be lost in political squabbles.  A day would come when even air & water would be taxed in India.”

 

This statement shows that he had no special appreciation for the judges in India, though it may be small consolation that the Indian leaders he had referred to does not include judges. And, evidently, it is the actions of the very political leaders that he had condemned, who have prevented this country going the way this racist had predicted.

 

(Interestingly, statues of Winston Churchill installed in public places, had been vandalized by citizens in 2020 during the Black Lives Matter protests that had spread like wild fire in the US of A and many European countries in 2020.)

 

The precedence quoted of the Karnataka High Court judgement (Siddangouda Shivabasanagouda Ayyangoudra –Vs- Principal Accountant General (A & E), decided on 03- 09-2014) could not be verified since the date of birth of the petitioner and the details of the earlier court order, referred to therein have not been provided, nor could be accessed.  It stands to reason that if the logic followed is the same, then the question also remains whether it had been contested or quietly complied with, without extending the benefits to similarly placed beneficiaries.

 

To conclude, suffice to say that the letter from the Secretary of Joint Consultative Machinery for Central Government Employees to The Secretary, Department of Pension and Pensioners’ Welfare is an indication of the legal battles that would follow. Of course, the Supreme Court has in it to decide the final fate of the petitioners at its own convenience. Given the age of the beneficiaries, it remains to be seen how many will live to enjoy their dues, if at all their Lordships turn reasonable within any reasonable time.

 

So, for now, let me do the only thing I can: wishing many lawyers good hunting and plenty of windfalls!

 

 

P M Ravindran

10 Sep 2021

E-mail: raviforjustice@gmail.com

 

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