- (1.) THIS writ petition has been filed under Article 226 of the Constitution of India praying that Regulation-2 by which the RSEB Pension Regulation, 1988 has been made effective from 20.11.1988 be declared violative of Article 14 and 16 of the Constitution of India.
(2.) THE petitioners were the employees of Rajasthan State Electricity Board and were working on different posts namely, Peon, Helper and Meter reader up to the year 1983, 1986 and 1987. All the four petitioners retired before 31.03.1987. At the time when the petitioners were initially appointed with the Private Electric Supply Co. there were no benefits of pension available in accordance with the service conditions. THEse Private Electric Supply Companies were taken over by the Rajasthan State Electricity Board in the year 1963 and even at that time no pension scheme was available. At the time of retirement the petitioners received their cumulative provident fund. In accordance with the 379th Meeting of the Board held on 28.11.1988 it was decided that the Rajasthan State Electricity Board Pension Rules, 1988 shall come into force with effect from 28.11.1988. It is submitted that since the said Regulations came into force on 28.11.1988 the petitioners were denied the benefit and the options were not accepted. According to the submission of the learned counsel, the petitioners were in the regular employment for more than 20 years in the service of RSEB, and, therefore, they have been discriminated by denying the benefit of pension regulations. It is also submitted that a number of writ petitions have been filed challenging these Regulations and one of such writ petitions has already been admitted and in view of the judgment of the Supreme Court reported in AIR 1987 Supreme Court 1345 (1) this petition is also liable to be admitted. So far as the application of this judgment of Apex Court is concerned, suffice to say in this case against one judgment number of writ petitions were filed and in these circumstances it was held by the Apex Court that it would be proper to hear all such petitions together to avoid any contradictory judgment. In the present case there is no common order in dispute. Accordingly, this judgment does not help the petitioners. The learned counsel was asked to make all his submissions on merit so that in case he is able to satisfy this Court then the matter could be admitted. The learned counsel has argued that fixation of date of 28.11.1988 is arbitrary and it should have been either from the calender year or from the financial year. Firstly, there is no basis for such an argument because these regulations were made effective from the date of the decision of the 379th Meeting of the Board and if the regulation is made effective from the date of its decision it is most reasonable approach. Beside this even the application of these regulations from 1st Jan., 1988 or 1.04.1988 would not have been of any help to the petitioners because all of them have retired before these dates. Whenever a date is fixed then fixation of dates result into two classes : (1) those persons who falls in the category prior to fixation of the date and (2) the others who are entitled for the benefit and falls in the category after coming in to force of the regulation. It is submitted that the Electricity Board initially intended to apply these regulations retrospectively for 5 years and to give benefit to all those employees who have retired during the last 5 years before coming into force of the regulation but no such document has been placed on which we could have applied our mind.
(3.) IT is an undisputed fact that the petitioners have already received the benefit of C.P.F. and gratuity then how the other benefit of pension could be given has not been explained. An option has been given to those employees who were to retire after 28.11.1988 to give option to switch over the pension scheme provided under the Regulation of 1988 from the earlier scheme of C.P.F. Now the challenge has been made on the ground that the date fixed for giving the pensionary benefits is wholly arbitrary, unreasonable and unfair classification. In Krishna Kumar vs. Union of India and Others (2) it was held by the Apex Court that pension scheme and a provident fund scheme are statutorily different and those belonging to latter scheme cannot claim to come over to the former scheme as of right on the plea that the cut off date fixed under scheme violated Article 14 of the Constitution. The decision of D.S. Nakara vs. Union of India (3) was also taken into consideration and contention based under Article 14 was repelled as factitious in view of the fact that while in the case of pension retires who were alive the Govt. had a continuing obligation while in the case of provident fund retirees each one's right has finally been crystallized on the date of retirement and there was no continuing obligation thereafter to be treated at par with pension retirees. It was held that P.F. and pension retirees constitute different classes and it was never held in Nakara's case (supra) that pension retirees and P.F. retirees form a homogeneous class. It was pointed out that in Nakara's case it was never required to be decided that all the retirees for all purposes form one class and no further classification was permissible. Even in the matter of enhancement of gratuity subsequently it was held by the Apex Court in State Government Pensioners' Association and Others vs. State of Andhra Pradesh (4) that the claim of gratuity can be made only on the date of retirement on the basis of salary drawn on the date of retirement and being already paid on that footing the transaction was completed and closed. It could then not be reopened as a result of the enhancement made at a latter date for persons retiring subsequently. The dispute of the nature as in the present case came up for consideration before the Apex Court in the case of All India Reserve Bank Retired Officers "Association and Others vs. Union of India and Another (5) where also the scheme of pension was introduced for the first time in substitution of CPF scheme and a cut off date was fixed. It was held that "Nakara's judgment has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalised all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalisation and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalisation on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalise an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-offline which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduced an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara's case this Court drew a distinction between continuance of an existing scheme in its liberalised form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cut- off date would ordinarily violate the principle of equality in treatment unless there is a strong rationale discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realised that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of C.P.F. amount but in the case of employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara's case drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in Krishna's case." In these circumstances it was held that there is no substance in the allegation that cut off date had been arbitrarily fixed. In the present case it was not the contention of the learned counsel for the petitioner that the Regulations of 1988 are the liberalisation of the existing scheme. In the light of the principles which have been laid down by the Apex Court since the right of those persons who have retired prior to the cut off date have already been crystallized then subsequent by introduction of a wholly new scheme the employees have no vested right and the employer can restrict the same to certain class of retirees namely; who have retired on or after the cut off date. In these circumstances, the writ petition has no force and is dismissed with no orders as to costs. ;