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:
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)):
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:
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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