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Tuesday, February 22, 2011

Probably the first reference to the National Litigation Policy in a judgement : Directorate General Border Roads bears the brunt, and rightly so !

Close to the heels of the last post comes this one. Regular readers would be aware of the National Litigation Policy discussed here umpteen number of times (See it here and here).

Directorate General of Border Roads bore the brunt of the observations of the Punjab & Haryana High Court and rightly so.

After the 5th CPC, the Govt of India had promulgated a policy for grant of family pension to parents of those employees who die in harness without leaving behind a widow or a child. As per 5th CPC guidelines, such pension was only admissible if the monthly earning of parents was less than Rs 2550 per month.

A Single Bench of the Hon’ble High Court allowed the petition of a poor mother of one such deceased GREF employee with a detailed judgement by coming to the conclusion that she was covered under the policy and her family income including the income of her husband fell below the criterion of the government. The pension was made admissible for the period when 5th CPC was in vogue.

The Union of India however challenged the said verdict before the Division Bench of the High Court through a Letter Patents Appeal (LPA) alleging that the mother was earning more than the limit of Rs 2550 per month since her husband was a pensioner in receipt of a basic pension of Rs 3500 which was more than the limit of Rs 2550. The Govt also placed on record a pension certificate from a bank to prove the same.

However the Division Bench was appalled by the conduct and observed that the Union of India had placed on record a pension certificate dated 09-10-2010 and which reflected pension after the 6th CPC while the earning criterion of Rs 2550 was applicable after the 5th CPC till the 6th CPC, that is, till 01-01-2006. It is yet another story that the income criterion after the 6th CPC has already been increased and notified as Rs 3500 + applicable DA.

The attitude of the Government and our officialdom is clearly on display through such actions. Firstly, the govt, going totally against the National Litigation Policy brought into force by the Law Ministry, filed an appeal against a hapless mother. Secondly, in a blatant case of misleading the Court and probably misleading even the Govt counsel, the department chose to rely on a pension statement of the 6th CPC based on post-2006 scales to beat the income criterion of the 5th CPC for the period 1996 onwards. Moreover, the mother was covered even under the 6th CPC criterion currently in vogue since the said bar has already been raised to Rs 3500 + DA with effect from 01-01-2006.

Here is what the Hon’ble High Court had to say about the state of affairs :

We are further of the view that this appeal is an illustration of unnecessary litigation initiated at the instance of Union of India. We find that the appellants have failed to keep in view the latest National Litigation Policy as has been reported in (2010 6 SCC J-17). In paragraph VI, the issue of filing of appeals has been dealt with. However, the appeals concerning service matters have been dealt with in Clause D, which reads as under:- * * * *

A perusal of the aforesaid Clause 'D' would show that no appeal is to be filed in cases where the matter pertains to pension or retiral benefits, provided it does not involve any principle or financial implications. In the present case, there is hardly any financial implication and the arguments raised by obtaining the latest certificate of pension given to the husband of the petitioner-respondent are wholly unwarranted. If in the original instructions issued more than 12 years ago, the rate of pension has been kept on the basis of cut of date of 1.1.1996 which has been necessarily revised w.e.f. 1.1.2006 then it would not lie in the mouth of the appellant-Union of India to argue that the revised rate shall be taken into account to non suit the petitioner-respondent.

Accordingly, the appeal is a frivolous piece of litigation, which could have been easily avoided. Thus, it fails and the same is dismissed with costs of Rs.10,000/-, which shall be deposited with the Member Secretary, Mediation and Conciliation Centre, Punjab & Haryana High Court, Chandigarh.”

This is nothing but administrative ego at play. The lady was being penalised for having bravely challenged a blatantly illegal act of the concerned authorities. And the beauty of it all was that she was squarely covered under the existing policy !


Anonymous said...

Wish the Rs 10,000 fine was recovered from pay of the person who authorised the filing of the case. Maybe that would have dampened the wrongly nurtured litigious spirit of one person at least.

Harry said...

Hope on similar lines stricter penalties are imposed on the petitioner (GoI) in Rank Pay case which is coming up for hearing before division bench of SC on 24 Feb.

Anonymous said...

I am with the Anonymous comment posted at 7:56am.
Such fines need to be recovered from the pay of the officials who filed such cases and given wide publicity .....this may help reduce blatant misuse of official position for satisfying administrative ego...
Stricter penalties need to be imposed on top authorities who are putting road blocks in the case of Rank Pay..
So many officers have left for heaven / will leave for the heaven, by the time justice may be factually delivered in this case.

Anonymous said...

Perhaps it needs to be considered by the higher judiciary whether an amount of Rs. 10,000/- would be a sufficient deterrent to those individuals, who while exercising official power care very little how they flout the basic norms of avoiding unnecessary litigation. In any case the fine hardly ever is deducted from the pay of those responsible. Till such times wilfulness attracts a tag of criminality and individual responsibilty is fixed with attendant punishment, these miscarriages in governance may continue.

Anonymous said...

Wish the Rs 10,000 fine will open the eyes of the organization ,where rules are always flawed by the some cader. Unrest in the organisation is due to this false ego of the officers dealing such matter.

Anonymous said...

The court has been lenient,higher financial penalty should have been imposed on the dealing officials to be recovered from their P & A. This case is show window as to how the administrative authorities deal with the court cases and implementation of rules in an organisation. The court should also order severe administrative action on the dealing officials.

rajkumar said...

for info of all that Dte gen border roads is headed by a Lt gen of ARMY

Harry said...

@ Raj kumar

1. Thanks for the 'enlightening' info!

2. By the way, Indian Army is headed by ...no surprise here.. a full Gen of Indian Army, so why do we still have frivolous litigation involving Army? Reason is not so hard to fathom!

rajkumar said...

here i want to make a point that in Dte gen border roads army officers DGBR or other army officers below him
who were responsible for filing the appeal .
finer point is ,it not army or civil ,black sheeps are every where , i mean army officers also do not behave differently when a point of decision comes