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Saturday, November 30, 2013

It all comes back : Dubious stand of officialdom exposed in SC judgement on Central Govt Doctors’ pension case

Much after military doctors had lost their case in the Hon’ble Supreme Court in Col BJ Akkara and others Vs Union of India in which pre-1996 retiree officers had prayed for counting their Non-Practicing Allowance (NPA) in their pension, the Supreme Court, this month, has rendered a detailed judgement coming to the conclusion that NPA needs to be added for pensionary purposes and also how the correct facts were hidden from the Supreme Court in Col BJ Akkara’s case.

In Col BJ Akkara’s case, military medicos had pointed out to the Supreme Court that a parallel question of law was decided by the Delhi High Court (KC Garg Vs UOI) in favour of civilian central govt doctors leading to the withdrawal of the circular which denied counting of NPA in pension and had hence prayed that the same relief should be extended to military doctors too since the Govt had accepted the positive judgement of the High Court. The Govt however opposed this plea in the Supreme Court stating the following, as recorded in the judgement of the Supreme Court in Col BJ Akkara’s case:

“…It is contended that the fact that a decision of the High Court had been accepted or implemented in the case of some persons, will not come in the way of the Union of India resisting similar petitions filed by others, in public interest…”
Ultimately, the case was decided against the petitioners, and the Govt also then took the benefit of Col Akkara’s judgement by the Supreme Court to deny similar benefits to other Central Govt doctors.

After such a chequered history, the issue again came up before the Supreme Court in KC Bajaj & others Vs UOI on which the judgement has been rendered on 27 Nov 2013.

Stating the basis of the controversy, the Hon’ble Supreme Court said this about the case in the opening paragraphs:

“…Whether final result of a case filed by a public servant with regard to his service conditions is dependent on the arbitrary choice of the State and/or its agencies/instrumentalities to prosecute the matter before the higher Courts is one of the questions which would require consideration in these appeals filed against order dated 16.10.2010 of the Division Bench of the Delhi High Court whereby the writ petitions filed by the appellants questioning the correctness of order dated September 12, 2008 passed by the Central Administrative Tribunal, Principal Bench (for short, ‘the Tribunal’) were dismissed. The other question which calls for determination is whether Non Practising Allowance (NPA) payable to the doctors employed in Central Health Services, the Railways and other Departments of the Government, who retired from service prior to 1.1.1996 is to be added to their basic pay for calculation of pension payable to them...”

After going into the nuts and bolts of the issue in great detail and examining all files and notings, it was discovered during the course of the case that after the judgement was rendered by the Delhi High Court in favour of doctors in KC Garg’s case, the same was very much challenged before the Supreme Court by the Govt (while the Court was given an impression in Col BJ Akkara’s case that KC Garg’s judgement was not challenged) but later on the opinion of the Attorney General favouring doctors, the said Special Leave Petition (SLP) was withdrawn from the Supreme Court by the Govt and the petitioners were extended the benefit. After withdrawing the appeal, the Govt had itself moved a case for withdrawing the impugned circular based on Delhi HC’s judgement and on the AG’s opinion and consequently the Prime Minister himself approved the withdrawal of the circular which denied the element of NPA in pension of central govt doctors. However in the meantime, the SC had rendered a decision in favour of the Govt (Of course, since the Supreme Court was not informed about the Govt’s own decision of withdrawal) and then the Govt itself stalled the withdrawal of the circular taking strength from Col BJ Akkara’s decision in its favour.

In the ultimate analysis, the approach of the Govt was dichotomous and it did not even care to place the complete facts of the issue before the Apex Court including the fact that no less than the PM had himself directed the withdrawal of the negative circular in question. In short, the pleadings of the Govt before the Supreme Court were diametrically opposed to their own opinion on the subject on file and also the decision of the PM that had already been taken in favour of doctors by the time.

All said and done, in the latest judgement of the Supreme Court, the Hon’ble Court has held central govt doctors very much entitled to count NPA in their pension and has stated the following on the conduct of the Govt in their pleadings in Col BJ Akkara’s judgement:

“However, the fact of the matter is that the Union of India did challenge the order passed by the Delhi High Court in Dr. K. C. Garg’s case and other connected matters by filing special leave petitions, which were converted into Civil Appeal Nos.1972-1974/2003 and during the pendency of the appeals, a conscious decision was taken by the Government of India not to pursue the appeals and implement the order of the High Court….At the cost of repetition, we consider it necessary to observe that during the pendency of the appeals, the matter was referred to the Attorney General for his opinion whether the judgment of the High Court is correct and the same should be implemented. The Attorney General examined the matter keeping in view the relevant rules and the policy decisions taken by the Government of India and opined that the judgment of the High Court was correct and should be accepted in preference to the view taken by the Tribunal. The issue was then considered at the highest level of the Government and the Prime Minister ordered implementation of the High Court’s order. Thereafter, the appeals were withdrawn. It is a different thing that the proposal for withdrawal of O.M. dated 29.10.1999 was shelved in view of the judgment in Col BJ Akkara’s case. In other words, the Government of India had taken a well considered decision not to pursue the appeals filed against the order of the Delhi High Court and implement the same on the premise that the proposition laid down therein was correct.

In view of the above discussion, we hold that the ratio of the Digambar’s case cannot be invoked to justify the pick and choose methodology adopted by the Union of India in resisting the claim of similarly situated doctors that NPA payable to them shall be taken into consideration for calculating the pension. Such an approach by the Union of India is ex-facie arbitrary, unjust and has resulted in violation of Article 14 of the Constitution.

The judgment in Col. B.J. Akkara’s case cannot be applied to the appellants’ case because the circulars, which fell for interpretation in that case and those under consideration in these appeals are different in material aspect…”

The above events would again prove what we have been stating time and again (See this blogpost and this one too), that the Govt, in order to justify litigation, works on the hook and crook principle and is extremely reluctant in bringing out the correct facts, truth and law before Hon’ble Courts.

In a similar case for central Govt doctors filed by one Dr GD Hoonka and quoted in the Supreme Court judgement itself, the Madhya Pradesh High Court put it very succinctly:

“…The decision of the authorities declining the same to the present respondent, the contest put up before the Tribunal and the present writ petition at the instance of the authorities, is beyond our comprehension, speaks of not only unreasonable approach, seems to be arbitrary and verging on administrative tyranny, and burdening the Tribunal and this Court with utmost unwanted matters, and harassing the retired employee in the evening of his life…”

This, I sincerely feel, is the hallmark of today’s administrative arrogance.

The judgement in Col BJ Akkara’s case can be accessed by clicking here.

The latest judgement in KC Bajaj’s case can be accessed by clicking here


Lt Col G K Mohan Rao said...

Is this judgement has any effect on post retirees of 5th & 6th Pay Commissions. Maj Navdeep may through some clarification in this regard

Anonymous said...

Thank you Major Navdeep. Hope DACP also sees the Light. It seems there is HOPE at the END of the Tunnel.

Unknown said...

Dear Maj Navdeep Singh, Many thanks for the info/ highlight/ copy source. THIS IS AN EXTRAORDINARY AND WELL PRESENTED JUDGMENT WHICH BRINGS INTO FOCUS THE VERY FABRIC OF THE FR 9 (21) its sub -sections etc which is being repeatedly corrupted and polluted by the bureaucracy. In fact any REDUCTION IN PENSION thru PAY BAND SYSTEM OR MOD PARITY SYSTEM FOR OLD PENSIONERS IS A GROSS VIOALTION OF THIS FR. Our Govt. and its counsels often quote COL B J AKKARA'S case as an example for watering down of the NAKARA JUDGMENT/ITS RATIO & PRINCIPLE ETC which is one of the greatest bluffs which had gone unchallenged so far. EVEN IN OUR SIXTH CPC MOD PARITY CASES I REMEMEBR AKKARA'S CASE IS PERHAPS QUOTED IN SOME OF THE ADVERSARY'S DOCUMENTS! I like the HON MP HC'S MOST CRITICAL OBSERVATION : "...“…The decision of the authorities declining the same to the present respondent, the contest put up before the Tribunal and the present writ petition at the instance of the authorities, is beyond our comprehension, speaks of not only unreasonable approach, seems to be arbitrary and verging on administrative tyranny, and burdening the Tribunal and this Court with utmost unwanted matters, and harassing the retired employee in the evening of his life…”. COL AKKARA'S JUDGMENT HAS NOW FOUND ITS TRUE PLACE....IT NEVER WATERED DOWN THE NAKAR RATIO.......VN

Anonymous said...

This is all extremely good news for the medicos , especially after they getting the benefit of the DACP.

I am waiting for the day when the concept of NFFU will be applicable to other defence officers. Hope it is sooner than later!

Anonymous said...

Dear Maj Navdeep,
On reading the judgement the Court has brought out that the Circular and OM are not supporting each other in the case of the NPA for the Armed Forces.
So my doubt persists as to how will this judgement affect the Doctors of the Armed Forces.

Anonymous said...

Frankly, when the Govt and civilian cadres try to point out that our short service spans are duly compensated for by the "special" allowances we get during service, why is it these "special" allowances and pay(s) are not counted towards pension, like "Tech Pay" given to veterans of engineering streams when they were in service, or flying pay to aircrew?

Anonymous said...

As I see it, a career in the Armed Forces is a non -starter.
There are too many negatives in serving the country by being a member of the Armed forces.

The Govt ie the babudom have us by the short hairs and have no issues in letting us know that time n again.
The top Brass think that their heirarchial system is the only one that can ensure a dedicated subordinate.
The serving with any zeal are the ones who have learnt to manipulate the Org with success. Everyone cribs for everything but toes the line for career growth.
The babus deny everything except what the Courts permit after prolonged litigation ( and not even that). The Fauj cant even get its officers what the railways or drdo has given its officers...how can one ever get to speak well of the Brasss

Pokar Ram said...


The Hon'ble Supreme Court has found the difference between MoD letter dated 07/6/1999 and MoPP OM dated 29/10/1999. By this method they have brought out that MoD order dated 11/9/2001 negating the NPA for defence is in conformity with the earlier order dated 07/6/1999. Thus one way they have justified the Col BJ Akkara's case which should not have been in actuality.

The MoD orders dated 07/6/1999 is just a corresponding order of MoPP in the past.

How is it that the Hon'ble SC holds one order correct wherein the NPA is denied and the other where the NPA is acceded to.

Anonymous said...

Dear Navdeep, can you please elucidate if NPA also includes Technical Pay? The underlying logic is exactly similar.