IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 6604 of 2008. Decided on: 16.11.2010. __________________________________________________ B.S. Himalvi … Petitioner. Versus HPTDC … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. H.K. Paul, Advocate. For respondent No.1 : Mr. Naresh Kaul, Advocate. For respondent No.2 : Mr. J.S. Guleria, A.A.G. ___________________________________________________________ Justice V.K. Sharma, Judge. (Oral). The petition has been filed for grant of following substantive reliefs: “7 (A). The respondent may kindly be directed to allow the pay scale of Rs. 4500-6100 revised to 14300-18600 to the applicant from 23.10.97 when he was promoted to the post of General Manager with all consequential reliefs; (B). In case for any valid reason, the applicant is not held entitled to the pay scale as mentioned in (A) above, the respondent may kindly be directed to allow the pay scale of Rs. 4125-5600 revised to Rs. 13500- 16800 with effect from 23.10.1997 since when the applicant was promoted to the post of General Manager from the post of Deputy General Manager with all consequential benefits after fixing his pay on promotion as on 23.10.97; (C). The action of the respondent rejecting the representation/appeal of the applicant as conveyed to the applicant vide Memo dated 1.12.99 (Annexure A- 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 11) may kindly be quashed and set aside being non- speaking, arbitrary and violative of Articles 14 and 16 of the Constitution of India; (D). The respondent may kindly be directed to work out the retiral benefits to the applicant in pursuance to the Notification (Annexure A-2) and make payment of retiral benefits-Pension, Commuted value of pension and gratuity to the applicant forthwith as the applicant is in need of money to support his dependents; and (E). The respondents may kindly be directed to pay 18% interest on the delayed payments made t the applicant o n account of leave encashment and part of gratuity on 10.11.99 and 14.12.99 respectively which was otherwise payable to the applicant soon after his retirement. The respondent may also be directed to pay 18% interest on the balance payments on account of gratuity, pension and commuted value of pension and other retiral benefits admissible to the applicant under the rules.” 2. In the reply filed on behalf of respondent No.1, the following stand has been taken, vide paras 3, 6 (ii), 6 (vii), 6 (viii), 6 (ix) and 6 (xi):- “3. In reply to this para of the OA, Memo dated 23.10.97 (Annexure A-7) vide which the applicant was promoted as General Manager in the pay scale of Rs. 3700-5300 on ad hoc basis is admitted. As regards the retiral benefits, the same have already been paid to the applicant. 6 (ii). Admitted. However, it may be clarified here that the Pension and Gratuity Scheme introduced by the State Govt. vide notification dated 29.10.99 (Annexure A-2) and also adopted by the replying respondent-Corporation (Annexure A-3) has in fact not been implemented so far. The State Govt. vide 3 letter dated 15.12.99 from the Commr-cum-Secy (Finance) has further clarified that till the mechanism of pension functioning is finalized and communicated the existing practice be continued. The mechanism of pension functioning has not been finalized by the State Govt. as yet. As such the said Pension and Gratuity Scheme has not taken place as yet. A copy of letter dated 15.12.99 is enclosed as Annexure R-1. 6 (vii). The applicant was promoted on ad hoc basis as General Manager in the pay scale of Rs. 3700-5300 on 23.10.97 (Annexure A-7). He was regularised as General Manager from 1.5.98 in the revised pay scale of Rs. 12000-16350 fro 1.5.98 till the pay scale is decided by the Board of Directors vide Annexure-8. 6 (viii). On the recommendations of the Service Committee the Board of Directors in its meeting held on 22.3.99 approved the pay scale of Rs. 4125-5600 revised to Rs. 13500-16800 to the post of General Manager which was allowed to the applicant vide order Annexure A-9. As it was a case of re-revision of pay scale no pay fixation under FR 22-C was involved as wrongly claimed by the applicant. 6 (ix). It is admitted that the applicant represented to the Hon’ble Chairman of the Board of Directors vide Annexure A-10 regarding allowing him the pay scale of General Manager with immediate effect i.e. from 9.4.1999. The matter was placed before the Service Committee of the Board of Directors for consideration and the Service Committee found no justification and the same was rejected. The recommendations of Service Committee was approved by the Board of Directors. 6 (xi). It is incorrect to say that the pay scale of the post of General Manager in other Corporation/State Govt. undertaking is the same i.e. Rs. 4500-6100 4 revised to Rs. 14300-18600. There are different pay scales of the posts of General Managers in different Corporations/undertakings. The Board of Directors has approved/allowed the pay scale of Rs. 4125-5600 revised to Rs. 13500-16800 to the post of General Manager in the respondent-Corporation which was released to the applicant.” 3. By way of supplementary affidavit, dated 2.10.2001 filed by the Managing Director of respondent No.1-Corporation , it is further averred as under vide paras (ii) and (iv) of the reply:- “(ii). That the respondent-Corporation had taken up the matter with the State Govt. for clarification regarding implementatioin of the HP Corporate Sector Employees (Pension, Family Pension, commutation of Pension and Gratuity) Scheme, 1999 vide letter dated 7.8.2001, a copy of which is enclosed as Annexure -3. (iv). There are twenty Corporations/ undertakings including the respondent-Corporation specified by the State Govt. for application of the said pension scheme vide Appendix to Annexure A-2. The pension scheme has not been implemented in any of the said Corporations/ undertakings as yet. The scheme was deemed to have come into force from 1.4.99 and as such all the persons including the applicant who retired after 1.4.99 shall be covered under the scheme when implemented.” 4. Respondent No.2 has averred as under vide paras 6 (iv), 6 (v) and 6 (vi) of the reply:- “6 (iv). In reply to this para it is stated that the applicant is covered in the scheme. However, it is stated that modalities to implement the scheme are being examined/worked out by State Govt. The retiral benefits as claimed by the applicant can be paid only 5 after modalities have been finalized in consultation with experts. 6(v). The para pertains to respondent No.1 hence no comments. However, it is clarified that respondent No.2 has already advised the respondent No.1 to release all the retirement benefits to retirees in the Corporation except employer share of CPF so that retirees are not made to suffer due to non- implementation of the scheme. Copy of letter No. Fin- IF (c )1-9/97 dated 10.7.2000 enclosed at Annexure- 1. 6 (vi). In reply to this para it is submitted that as already stated in foregoing paras the scheme is yet to be implemented, hence commuted value of pension cannot be paid. However, for all other retirement benefits respondent No.1 has suitably been advised as per letter at Annexure-1. 5. In view of the above pleadings on behalf of the parties, it is manifest that the petition has been filed mainly for grant of two-fold reliefs, that is, pension and pay scale. Now, while adverting to the claim regarding pension, it would be seen that a scheme known as “ HP Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999” (in short The Pension Scheme) was framed by the Government of Himachal Pradesh, Finance Department) vide communication, dated 29.10.1990, Annexure A-2. As per deeming clause, the Scheme was to come into force on 1.4.1999. It is apparent from the Schedule annexed to notification dated 29.10.1990, Annexure A-2 as Annexure-1 that respondent No.1- Corporation which figures at serial No. 6 (xvii) of Annexure-1 was also covered under the said scheme. The scheme was made 6 applicable to the employees of respondent No.1-Corporation with effect from 1.4.1999 vide office order, dated 22.11.1999, Annexure A-3. However, lateron the pension scheme was repealed vide notification, dated 2.12.2004, a copy of which has been produced by the learned counsel for respondent-Corporation, which is taken on record. 6. In view of the above, it is apparent that the pension scheme remained in force on and with effect from 1.4.1999 to 2.12.2004, when it was ultimately repealed. However, according to respondent No.1-Corporation, the scheme was not at all given effect to during this period. 7. Another Public Sector Undertaking, namely, H.P. State Small Industries and Export Corporation, which figures at serial No. 1 (iv) of the aforesaid Annexure A-1 to notification dated 29.10.1990, Annexure A-2, was also covered under the aforesaid pension scheme. The petitioner has brought on record a copy of order, dated 6.3.2009 passed by a learned Single Judge of this Court in CWP (T) No. 2530 of 2008, titled R.K. Soni versus State of H.P. and others in which the aforesaid pension scheme relating to the H.P. State Small Industries and Export Corporation referred to hereinabove was the subject-matter of adjudication between the parties therein, whereby the prayer of the petitioner therein for grant of pension was allowed. Order dated 6.3.2009 passed in the said matter is reproduced below in extenso for ready reference:- “The State Government had issued notification dated 29th October, 1999 whereby a scheme called “The Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension 7 and Gratuity) Scheme, 1999 was framed. The H.P. State Small Industries and Export Corporation adopted the Scheme notified vide notification dated 29th October, 1999. The petitioner has given his option under notification dated 29th October, 1999. However, the State Government has issued fresh notification dated 2nd December, 2004. The text of this notification reads thus:- “The Governor, Himachal Pradesh is pleased to repeal Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity Scheme, 1999 notified vide Government of Himachal Pradesh (Fin-IF & PEs) notification of even No. dated 29/10/1999 with immediate effect. Notwithstanding such repeal, The employees of Himachal Pradesh Corporate Sector, who retired from services w.e.f. 1/4/1999 to the date of publication of this notification, shall continue to be governed under the provisions of the scheme so repeated; provided such retired employees have opted for such scheme and have otherwise become eligible for pension under the scheme. The Governor, Himachal Pradesh is further pleased to order that the respective Corporations/Boards shall be the pension sanctioning/disbursing authorities for such retirees referred to in the preceding para and their employer share of C.P.F. including interest thereon shall be transferred to respective Corporations/Boards and they shall form a pension fund. The Governor, Himachal Pradesh is further pleased to order that consequent upon 8 the repeal of the aforesaid scheme, other employees shall continue to be governed under provisions which were applicable to them as on31/3/1999.” It is evident from the perusal of the Scheme that the Principal Scheme notified on 29th October, 1999 is diluted and the Corporations/Boards have been made pension sanctioning/disbursing authorities to such employees who have retired from service with effect from 1st April, 1999 to 2nd December, 2004. The case of the respondent/Corporation is that due to non-availability of funds it cannot grant pension as per notification dated 29th October, 1999. This cannot be accepted as a proper explanation for the release of pension. Initially, the burden of the Scheme was to be borne by the State Government, however, now the burden has been shifted to Corporation. It is for the respondent to ensure implementation of the Notification dated 29th October, 1999 qua the employees who have retired from 1st April, 1999 to 2nd December, 2004. Consequently, the Principal Secretary (Finance) is directed to take remedial measures to ensure that the notification dated 29th October, 1999 and 2nd December, 2004 are implemented qua the employees who have retired on 1st April, 1999 to 2nd December, 2004 including the petitioner. The non- availability of funds should not come in the way of Corporations/Boards owned by the State of Himachal Pradesh for the purpose of payment of retiral benefits. The Principal Secretary (Finance) is directed to file the supplementary affidavit on or before the next date of hearing.” 8. In terms of the aforesaid order, dated 6.3.2009 passed by the learned Single Judge in CWP-T No. 2530 of 2008, 9 an affidavit was filed by the Managing Director of the aforesaid H.P. State Small Industries and Export Corporation on the basis of which the matter was finally decided vide order, dated 7.5.2009. The affidavit and the order are extracted below for the sake of convenience:- Affidavit: “The Hon’ble High Court o n 06.04.2009 has ordered that: “In sequel to order dated 6.3.2009, the Managing Director of the respondent- Corporation Mr. R.K. Sood is present in the Court. He has assured the Court that effective steps have already been taken for mitigating the hardships being faced by the petitioner by providing him interim retiral benefits. He has deposed that cheque has already been prepared and the same shall be handed over to the petitioner within a period of one week. The learned Senior Additional Advocate General has assured the Court that the matter is under active attention of the State Government and the retiral benefits as per the scheme shall be paid to the petitioner within a period of four weeks on the basis of observations made in order dated 6.3.2009. The learned Senior Additional Advocate General and Mr. R.K. Sood, Managing Director of the respondent-Corporation have sought four weeks’ further time to do the needful. The prayer made by them is genuine. The same is accepted. Accordingly, the respondents are directed to file a compliance report on the affidavit of responsible officer.” In compliance of above order I have issued a cheque No. 671075 dated 4.4.2009 for Rs. 16575/- on 10 account of pension for the month of March, 2009 vide letter No. HPSSIEC:38-113/97 (1)-32-34 dated 6.4.2009 to Shri R.K. Soni Retd. Manager (Marketing). And a cheque No. 677715 dated 02/05/2009 of Punjab National Bank payable at Shimla amounting to Rs. 8,08,288/- (Rs. Eight Lac Eight Thousand Two Hundred Eighty Eight) only has also been sent to him on account of pension w.e.f. 1- 11-2004 to 30-04-2009 after adjusting the pension already paid for March, 2009. There is an other retiree Shri Bansi Lal who died while in service and Family pension to smt. Parkasho Devi w/o late Shri Bansi Lal has been paid vide cheque No. 677716 dated 02/05/2009 of Punjab National Bank, Shimla amounting to Rs. 2,73,314/- (Two Lac Seventy Three Thousand three Hundred Fourteen) only on account of Family pension w.e.f. 2.3.2004 to 30.4.2009. Therefore, I have complied with the above order of Hon’ble High Court. Sd/- Managing Director, HP State Small Industries & Export Corporation Limited, Shimla-1, (H.P.).” Order: 7.5.2009: “In sequel to orders dated 6.3.2009 and 6.4.2009, the Managing Director of the respondent- Corporation has filed the affidavit. The relevant paragraphs thereof read thus: “In compliance of above order I have issued a cheque No. 671075 dated 4.4.2009 for Rs. 16575/- on account of pension for the month of March, 2009 vide letter No. HPSSIEC:38-113/97 (1)-32-34 dated 6.4.2009 to Shri R.K. Soni Retd. Manager (Marketing). And a cheque No. 677715 dated 02/05/2009 of 11 Punjab National Bank payable at Shimla amounting to Rs. 8,08,288/- (Rs. Eight Lac Eight Thousand Two Hundred Eighty Eight) only has also been sent to him on account of pension w.e.f. 1-11-2004 to 30-04-2009 after adjusting the pension already paid for March, 2009. There is an other retiree Shri Bansi Lal who died while in service and Family pension to Smt. Parkasho Devi w/o late Shri Bansi Lal has been paid vide cheque No. 677716 dated 02/05/2009 of Punjab National Bank, Shimla amounting to Rs. 2,73,314/- (Two Lac Seventy Three Thousand three Hundred Fourteen) only on account of Family pension w.e.f. 2.3.2004 to 30.4.2009.” Accordingly, in view of the affidavit dated 4.5.2009, Mr. Dilip Sharma prays for and is allowed to withdraw the present petition. Dismissed as withdrawn. No costs.” 9. The above discussion brings me to hold that once the above pension scheme which covered the entire Corporate Sector in the State of Himachal Pradesh including respondent No.1- Corporation and various other Corporations, inter-alia, which also included the aforementioned H.P. State Small Industries and Export Corporation, has been held by this Court to be applicable to an employee of the said H.P. State Small Industries and Export Corporation Limited and has since been implemented by the said Corporation, why similar treatment should be denied to the petitioner herein and thus, discriminating him in violation of Articles 14 and 16 of the Constitution. 12 10. In view of the above, the petition is allowed and the respondents are directed to consider the case of the petitioner for grant of pension in terms of the above pension scheme, Annexure A-2 as adopted by respondent No.1-Corporation vide office order, dated 22.11.1999, Annexure A-3, which was in force when the petitioner retired from the service of respondent No.1-Corporation on 31.7.1999 on attaining the age of superannuation vide office order dated 12.5.1999, Annexure A-1, within three months from production of a copy of this judgment by the petitioner within one month from today. Consequential benefits, if any, shall also be payable to him along with interest at the rate of 6% per annum from the due date, that is, 1.8.1999 within next three months thereafter failing which higher interest at the rate of 12% per annum shall be payable. 11. In so far as the prayer of the petitioner for grant of higher pay scale in terms of prayers (A) and (B) is concerned, suffice it to say that this aspect of the matter does not fall within the domain of this Court and instead it is for the employer to decide as to what pay scale a particular employee is entitled at the given time. It being so, the petitioner shall be at liberty to make a representation to respondent No.1 along with a copy of this judgment within one month from today in this regard and on such representation having been made, the same shall be liable to be submitted to the Board of Directors of respondent No.1- Corporation which shall consider and decide the same in accordance with law within a further period of three months after 13 affording an opportunity of being heard to the petitioner, if so desired. Copy Dasti. (V.K. Sharma) Judge. November 16, 2010. (cr)