Pension Act 1871
Querist :
Anonymous
(Querist) 24 May 2018
This query is : Resolved
Sir, Central govt. employee joined before 2004 get pension as per provision of The pension act 1871.
The act is still in force.The act is not ammended by the Parliament.
My question is how central govt. Introduce NEW PENSION SCHEME without modifying the old act ?
Can any gazette notification (for NPS) overrule any act and by-pass the Parliament ?
Sudhir Kumar, Advocate
(Expert) 25 May 2018
Govt employees appointed before 2004 are not getting pension as per any pension Act. rather they get pension under CCS(Pension) Rules framed under powers vested to the President vide proviso to Article 309 of the constitution and are statutory in nature.
Guest
(Expert) 25 May 2018
Rules in the absence of any Act cannot be framed and implemented. Although the obsolete Pensions Act, 1871, need drastic changes, yet all pension related rules are made by the Parliament of India under the provisions of the said Pensions Act, 1871.
P. Venu
(Expert) 25 May 2018
Yes, the Central Government employees, or the State Government employees, are not sanctioned their pensions not on the basis of Pensions Act, 1871. but on the basis of statutory rules notified under proviso to Article 309 of the Constitution or in the absence of such Rules, administrative instructions notified from time to time. Presently, the Central Government employees are governed by CCS(Pension) Rules 1972.
In fact, the Pension Act, 1871 had been enacted with a different intent and purpose. Much of these provisions have been rendered obsolete/redundant at present. But it still governs the filed as far as attachment of pension by creditors is concerned. Under the Act, no pension granted or continued by the government on political considerations, or on account of past services, present infirmities or as a compassionate allowance, and no money due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any court at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such court.
Yes, you have raised a valid point in that Rule 2 of the CCS(Pension) Rules, 1972 provides:
"2. Application
"Save as otherwise provided in these rules, these rules shall apply to Government servants appointed on or before 31st day of December,2003 including civilian Government servants in the Defence Services appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments ...................."
without making any equivalent or equitable provision for those who have appointed on or after 1st January 2004.
It is true that they are covered by NPS. But this has been introduced through a Gazette Notification, but not on the strength of the provisions of Article 309. That is , it is not Service Law.
The writing is very much on the wall that this amendment to the Pension Rule would be held unconstitutional, if properly taken up for Judicial Review.
Ms.Usha Kapoor
(Expert) 26 May 2018
II agree with experts.Nothing more to say.
Querist :
Anonymous
(Querist) 26 May 2018
Sir,
Is it unconstitutional to introduce NPS without amendment of pension act.
I am central government employee joined on 2005.
Can I file case in high court/ supreme court mentioning above for grant of Old Pension Scheme ?
Querist :
Anonymous
(Querist) 26 May 2018
Sir,
Is it unconstitutional to introduce NPS without amendment of pension act.
I am central government employee joined on 2005.
Can I file case in high court/ supreme court mentioning above for grant of Old Pension Scheme ?
Querist :
Anonymous
(Querist) 26 May 2018
Sir,
Is it unconstitutional to introduce NPS without amendment of pension act.
I am central government employee joined on 2005.
Can I file case in high court/ supreme court mentioning above for grant of Old Pension Scheme ?
Guest
(Expert) 26 May 2018
No, it is not unconstitutional. However, for experiment sake, you can file a case in the HC to make sure remove your doubt through court verdict.
Dr J C Vashista
(Expert) 27 May 2018
Why do you preferred to remain "anonymous"?
If you are seeking obligation of experts FREE OF COST you are required to disclose your identity as per rules of this platform.
No reply for academic question by an anonymous author.
P. Venu
(Expert) 27 May 2018
The denial of statutory pension to Central Government employees (NOT the NPS) could certainly be proved to be unconstitutional if properly taken up. There are many such instances in the past. The proper forum is the CAT. High Court has no jurisdiction and it would be hasty to rush to the Supreme Court. Perhaps the attempt requires a combined than an individual efforts. It would certainly be a long drawn out litigation.
Sudhir Kumar, Advocate
(Expert) 27 May 2018
Please read pension act. where does this state that it applies to govt servants.
Guest
(Expert) 27 May 2018
Mr. Sudhir Kumar,
Could you find in the Pensions Act to provide anywhere that it is applicable to any class of persons other than the Government servants? You may better read the very first section of the Act which under the caption, "Extent of the Act," very clearly states about "Union Pensions." If according to you the Act is not applicable on Government servants, can you please clarify, what is your own interpretation about the "Union Pensions"?
Raising undue controversy by merely reading between the lines causes only confusions in the minds of the laymen. You should better know that no rule can be framed directly without the backdrop of any Act of the Government of India. Further, you should know that while the Constitution is the mother of all Acts, on the other hand the Acts are the mothers of all the related Rules applicable in the Government of India and the States..
Sudhir Kumar, Advocate
(Expert) 27 May 2018
ye it does refer to union pensions it does not at all refer to pensions of union employees.
it refers to the pensions to be sanctioned by collector and does not refer to the pensions to be sanctioned by the Union Govt
Guest
(Expert) 27 May 2018
Mr. Sudhir Kumar,
You are still trying to read between the lines and going by the letters of the Act, not the spirit of the Act.
.
Can you clarify, who gets Union pensions, i.e., Government servants or the private persons?
In the present democratic set ups of Central and State Governments, collectors under the State Governments do not sanction pensions for and on behalf of the Central Government. They can sanction pensions only on behalf of the State Governments concerned. Although the Act was adopted by the Government after independence, but if certain sections have not been modified after independence that does not mean that the old colonial set up of the Government is revived only for the purpose of sanction of Union Pensions.
However, if you have knowledge of any Article of the Constitution of India or section of any Act that prescribes that the Government can make rules in the absence of any Act, you may quote that. Even otherwise, your own quoted Article 309 very clearly provides that "ACTS OF THE APPROPRIATE LEGISLATURE MAY REGULATE the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State":
Not even that even the proviso referred by you very clearly prescribed, " to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts UNTIL PROVISION IS MADE BY OR UNDER AN ACT OF THE APPROPRIATE LEGISLATURE UNDER THIS ARTICLE, and any rules so made shall have effect SUBJECT TO THE PROVISIONS OF ANY SUCH ACT."
Don't think that the various Governments and the Ministry of Law, along with the Law Commission after the independence of India had been sleeping all along for the last more than 70 years, if as per your assumption that such Act is not applicable on pensions of the Government servants.
IN NUT SHELL ANY ORPHAN RULE, EVEN IF MADE IN EMERGENCY CONDITIONS CANNOT BE MADE APPLICABLE CONTINUOUSLY FOR DECADES TOGETHER. EVEN AN ORDINANCE IF PASSED BY THE PRESIDENT OF INDIA HAS THE MAXIMUM LIFE OF 6 MONTHS, WHICH SHALL GET REPLACED BY AN ACT OF PARLIAMENT OR DIE ITS OWN DEATH, IF BOTH THE HOUSES OF THE PARLIAMENT FAIL TO PASS ANY BILL TO BE FURTHER ASSENTED BY THE PRESIDENT OF INDIA WITHIN THE PRESCRIBED TIME.
P. Venu
(Expert) 27 May 2018
CCS(Pension) Rules have been notified under the proviso to Article 309, not under the Pension Act, 1871. However, the provisions of the Act are applicable to retired employees in receipt of Pension as well, in as much as no attached could be effected from the Pension Amount.
Guest
(Expert) 27 May 2018
Every service rule of the Government of India is notified under the provisions of Article 309, but duly backed by some Act of Law. If people prefer to read between the lines, they may do so with great pleasure.
.
P. Venu
(Expert) 27 May 2018
Rules notified under proviso to Article 309 are statutes by themselves and do not warrant the backing of any Legislative Enactment. CCS(Pension) Rules, CCS(CCA) Rules, CCS(Conduct) Rules, CCS(Leave) Rules, CCS(LTC) Rules etc. etc. are statutes and have full force of law even in the absence of any Legislative enactments backing them.
