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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