IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 30.8.2010 1. L.P.A. No. 469 of 2003 Dr. (Mrs.) Janak Narendra …Appellant Versus State of Haryana and others …Respondents 2. L.P.A. No. 138 of 2005 K.C. Thakur and others …Appellants Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Puneet Bali, Advocate (in LPA No. 469 of 2003) Mr. Amar Vivek, Advocate (in LPA No. 138 of 2005) for the appellants. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR & RITU BAHRI, JJ. 1. This order shall disposed of LPA Nos. 469 of 2003 and 138 of 2005, which have been filed under Clause X of the Letters Patent, challenging order dated 4.7.2003 rendered by the Learned Single Judge dismissing CWP No. 1618 of 2000 filed by the petitioner-appellants. 2. The petitioner-appellants challenged Rule 1(2) of the Haryana Affiliated Colleges (Pension and Contributory Provident Fund) Rules, 1999 (for brevity, ‘the Rules’) to the extent it provides the enforcement of the L.P.A. Nos. 469 of 2003 and 138 of 2005 Rules with effect from 11.5.1998. The claim of the petitioner-applicant is that they are entitled to the benefit of the Rules as they have retired on or after 1.4.1995 from which date pension is made available to employees of Kurukshetra University and Maharshi Dayanand University, who were holding non-pensionable posts till 1997-98. 3. The learned Single Judge has examined two questions of law – (i) whether the Government could introduce the pension scheme with a cut off date having regard to financial liability; and (ii) whether the said decision was arbitrary. It has been concluded by the learned Single Judge that those employees who were earlier governed by the Contributory Provident Fund Scheme and already retired before introduction of the new pension scheme, have no vested right to claim the benefits of pension scheme. It has also been held that any relevant cut-off date could be fixed for applicability of the Scheme and it would not amount to discrimination merely because some of the employees who have already retired from service have been benefited. The views expressed by the learned Single Judge in the concluding para of the judgment reads as under:- “ In view of the above case-law, it is clear that once employees are earlier governed by Contributory Provident Fund Scheme and new pension scheme is introduced, those employees already retired have no vested right to claim to be covered by the pension scheme and any relevant date could be fixed for applicability of the scheme. There will be no question of discrimination merely because some of the employees who have already retired are covered. In the present case, stand of the respondents is that cut off date has been fixed having regard to financial implications. Such a cut off date cannot be held to 2 L.P.A. Nos. 469 of 2003 and 138 of 2005 be arbitrary merely because, some of the employees have been covered and merely because a suggestion has been made by the petitioners that they are willing to return the Contributory Provident Fund already received with interest. Since the petitioners have no vested right to claim to be covered by the pension scheme after having already retired and having received the benefits of Contributory Provident Fund as per rules applicable at the time of retirement, they cannot put forward a claim based on parity with the employees of the University or the employees of the State Government, the employer being free to fix a cut off date in such a matter. Judgment of the Division Bench relied on by learned counsel for the petitioners is also distinguishable as there is no question of discrimination when a new scheme for pension is introduced in respect of employees governed by Contributory Provident Fund as held by Constitution Bench judgment of the Apex Court in Krishena Kumar, Ex-Services League, All India Reserve Bank Retired Officers’ Association and other judgments referred to above.” 4. It is apposite to mention here that for coming to the aforementioned conclusion the learned Single Judge has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of D.S. Nakara v. Union of India, AIR 1983 SC 130; Krishena Kumar v. Union of India, AIR 1990 SC 1782; Ex-Services League v. Union of India, AIR 1991 SC 1182; All India Reserve Bank Retired Officers’ Association v. Union of India, AIR 1992 SC 767; State of Rajasthan v. Amrit Lal Gandhi, (1997) 2 SCC 342; Tamil Nadu Electricity Board v. R. 3 L.P.A. Nos. 469 of 2003 and 138 of 2005 Veeraswamy, (1999) 3 SCC 414; and Subrata Sen v. Union of India, (2001) 8 SCC 71. 5. We have learned counsel at a considerable length and are of the view that there is no merit in these appeals. The facts are clear that the appellants are retirees under the Contributory Provident Fund Scheme and have retired on or after 1.4.1995 but before 11.5.1998. The respondent State introduced Pension Scheme substituting the Contributory Provident Fund Scheme earlier prevalent. The benefit of Pension Scheme has been extended from the date of enforcement of that Scheme. Therefore, the question debated before the learned Single Judge was whether the Contributory Provident Fund retiree would become entitled to switch over to the Pension Scheme. The aforesaid issue is concluded against the appellants and in favour of the respondent State by a Constitution Bench judgment of Hon’ble the Supreme Court rendered in the case of Krishena Kumar (supra) and a Full Bench judgment of this Court rendered in the case of Sher Singh Ghuman (Retd.) C.M.E.O. v. State of Haryana, 1992 (1) SLR 14 (FB). The rationale adopted by their Lordships’ of Hon’ble the Supreme Court in Krishena Kumar’s case (supra) is that those who have earlier retired under the Contributory Provident Fund Scheme, which was prevalent at that time, constitute a distinct category than those who are to retire under a Pension Scheme. It has also been held that Contributory Provident Fund retirees cease to have relationship of employer and employee whereas persons who retire under the Pension Scheme continue maintaining that relationship and pension is payable during the currency of good conduct. In the case of Contributory Provident Fund retirees the amount in lump sum is paid and the value of the amount paid in lump sum on the date of retirement is always much more than the value which a retiree 4 L.P.A. Nos. 469 of 2003 and 138 of 2005 would fetch after a lapse of time. Therefore, granting permission to switch over to Pension Scheme by depositing the amount received under the Contributory Provident Fund Scheme would not be an acceptable proposition. Therefore, both retirees constitutes a distinct class and it does not offend Articles 14 and 16(1) of the Constitution. We are in agreement with the view taken by the learned Single Judge and his reliance on the judgment of Hon’ble the Supreme Court in the case of Krishena Kumar (supra) as well as other judgments. 6. Mr. Amar Vivek, learned counsel has placed reliance on a Letters Patent Bench judgment rendered in the case of State of Haryana and another v. Dr. Karan Singh Rathee and others (L.P.A. No. 6 of 2008, decided on 21.1.2008). However, the facts of that case are distinguishable and not applicable to the instant appeals. There, there was no switching over from Contributory Provident Fund Scheme to a Pension Scheme. In that case the benefit of enhanced gratuity was extended with effect from 11.5.1998 for privately Aided Colleges of Haryana instead of 1.1.1996. The dispute was that persons who retired in between 1.5.1996 to 11.5.1998 were not granted the benefit of enhanced gratuity. The Letters Patent Bench affirmed the judgment of learned Single Judge and dismissed the appeal filed by the State of Haryana. 7. The Full Bench judgment of this Court in the case of Sher Singh Ghuman (supra) has placed firm reliance on the Constitution Bench judgment of Hon’ble the Supreme Court rendered in the case of Krishena Kumar (supra). Accordingly, it has been held that the Contributory Provident Fund retirees constitute a different class than those who are Pension Scheme retirees. The other cases like P.K. Kapur v. Union of India, 2007 (2) SCT 220, on which reliance has been placed are also 5 L.P.A. Nos. 469 of 2003 and 138 of 2005 distinguishable for the aforesaid reasons. 8. On the question of choice of cut off date the law is well settled. In the case of Government of Andhra Pradesh v. N. Subbarayudu, 2008 (2) S.C.T. 425, Hon’ble the Supreme Court examined the issue that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given. It has been observed that the Court must maintain judicial restraint in matters relating to the legislative or executive domain. In that regard reliance may also be placed on the judgments rendered in the cases of Divisional Manager, Aravali Golf Club v. Chander Hass, 2008 (1) S.C.T. 279 and Government of Andhra Praesh v. Smt. P. Laxmi Devi, 2008 (2) 8 JT 639. 9. As a sequel to the above discussion, we find that the judgment of the learned Single Judge does not suffer from any infirmity and these appeals are dismissed with no order as to costs. A photo copy of this judgment be placed on the file of connected appeal. (M.M. KUMAR) (RITU BAHRI) August 30, 2010 JUDGE JUDGE Anoop/Pkapoor 6