IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4136 of 2008. Decided on: 10.5.2010. __________________________________________________ Shri B.C. Katoch … Petitioner. Versus The H.P. Krishi Vishwa Vidyalaya. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ranjan Sharma, Advocate. For the respondent : Mr. Lokender Thakur, Advocate. ___________________________________________________________ V.K. Sharma, Judge (Oral). The petitioner, who was in the employment of the respondent-University, retired from service as Assistant Registrar on 30.6.1984. During the time of his employment, as per the conditions of service applicable to him, he was covered under ‘Contributory Provident Fund’ scheme (in short, CPF Scheme). However, later on, a ‘Pension Scheme’ was introduced for the employees of the respondent-University, vide notification, dated 1.1.1997, Annexure A/1, which was also given retrospective effect from 1.1.1986 for the benefit of those employees, who had retired from service during the intervening period, that is, 1.1.1986 to 1.1.1997. 2. The petitioner, who had already retired on 30.6.1984, is seeking benefit of the aforesaid Pension Scheme on the strength of the law laid down by a Constitution Bench of the Hon’ble Apex 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Court in D.S. Nakara and others versus Union of India, (1983) 1 Supreme Court Cases 305 followed by this Court in HRTC Retired Employees Union versus HRTC and another, 2009 (1) SLC 310. 3. Per contra, the learned counsel for the respondent- University while placing reliance on the authorities reported as All India Reserve Bank Retired Officers Association and others versus Union of India and another, 1992 Supp (1) Supreme Court Cases 664, State of Rajasthan and another versus Amrit Lal Gandhi and others, (1997) 2 Supreme Court Cases 342 and Hari Ram Gupta (D) Thr. L.R. Kasturi Devi versus State of Uttar Pradesh, 1999 (1) All India Services Law Journal 162, submits that there is no unreasonableness in fixation of cut off date for grant of benefit of the Pension Scheme to the employees/retirees. However, on a combined and harmonious reading of the judgments relied upon on behalf of the respondent-University, it would be evident that facts of those cases are clearly distinguishable from the facts of the case in hand. To illustrate, whereas, in the case of All India Reserve Bank Retired Officers Association as also in this case, the cut off date has been fixed as 1.1.1986 at par with Central Government Employees on the recommendations of 4th Central Pay Commission, but in the former case, that is, All India Bank Retired Officers Association, the distinguishing feature was that difficulty was felt in calculation of pension payable to old employees for want of old records, which is not the situation in the present case. Similarly, in Amrit Lal Gandhi and others, the relevant factor for consideration of the Hon’ble Supreme Court was 3 with regard to paying capacity of the University/the State Government. However, no such stand is taken by the respondent- University in the present case. With regard to Hari Ram Gupta’s case, suffice it to say that the Hon’ble Supreme Court has authoritatively held as under in Union of India and another versus SPS Vains (Retd.) and others, 2008 (12) Scale 360, which proposition of law has also been noticed by this court in HRTC Retired Employees Union (supra), vide para 7 of the judgment in the following terms: “…..The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified 4 pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution. However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara’s case (supra). The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension.” 4. The Pension Rules, which are relevant for disposal of the present petition are parimatria to those involved for consideration of this Court in HRTC Retired Employees Union (supra). It being so, the present case is also in a way covered under this judgment. Further more, in view of the averments set up by the petitioner, vide para (6) (xxiv) (l) of the petition that apart 5 from him, there are only four other surviving pre 1.1.1986 retirees, who have been left out from the purview of the aforesaid Pension Scheme, which averments have not at all been replied on behalf of the respondent-University. 5. In view of the above, the petition is allowed. Consequently, the petitioner is granted benefit of the aforesaid Pension Scheme issued by the respondent-University, vide notification dated 1.1.1997, Annexure A/1 and the Rules framed thereunder, vide Annexure A/2. The respondent-University is directed to process the pension case of the petitioner in the light of this judgment and to release the consequential financial benefits to him under the said Scheme and the Rules framed thereunder with effect from 1.1.1986, within a period of three months from today. It is made clear that the amount of the benefits already received by the petitioner under the CPF Scheme shall be liable to be adjusted against the benefits accruing to him as per this judgment. 6. The petition stands disposed of in the above terms. 7. Pending CMPs, if any, shall also stand disposed of. (V.K. Sharma) Judge. May 10, 2010. (cr)