Full Text
HIGH COURT OF DELHI
BSES RAJDHANI POWER LTD .....Appellant
Through: Mr. Sandeep Sethi, Senior Advocate
Through: Mr. N.S. Dalal, Ms. Nidhi Dalal, Mr. Alok Kumar, Ms. Rachana Dalal &
Mr. Karan Mann, Advs. Mrs. Avnish Ahlawat, SC (GNCTD)
& Mr. Mohnish Sehrawat Advs.
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT
1. The present Letters Patent Appeal has been preferred by the appellant being aggrieved by the judgment dated 23.05.2023, passed by learned Single Judge, whereby, learned Single Judge has allowed the writ petition filed by the respondents Nos. 1-7 (writ petitioners) and directed the present appellant (respondent No.2 in the writ petition) to grant pension to the petitioners from the date of their Voluntary Retirement alongwith arrears with interest @ 12% per annum from the date when the pension became due.
2. Mr. Sandeep Sethi, learned senior counsel appearing for the appellant, submitted that the learned Single Judge has erred in allowing the writ petition filed by the respondents and directing the appellant to pay pension without properly adjudicating as to whether these employees were entitled for pension under the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as „Pension Rules of 1972‟) or not.
3. While taking the court through Special Voluntary Retirement Scheme, 2003 (hereinafter referred to as „SVRS‟) as notified vide order dated 18.12.2003, learned senior counsel submitted that entitlement of becoming a member of the pension fund has been misconstrued by learned Single Judge as entitlement for the pension. In order to substantiate aforesaid contention, learned senior counsel took the court through the SVRS(Annexure A-2 in CM APPL no.10954/2024) and Trust Deed (Annexure A-7), more particularly clause 4.1.[5] of the SVRS, definition clauses (xi) and (xxiv) of the Terminal Benefit Rules framed under Clause 2 of the Trust Deed (hereinafter referred to as „Terminal Benefit) and submitted that the eligibility to become a member of the DVB Pension Trust and qualifying services as given in clauses (xi) and (xxiv) clearly shows that on completion of 20 years of service, a person is entitled to become a member of pension fund and consequently, eligible to avail pension under Pension Rules of
1972.
4. Learned senior counsel read Rules 3(q), 35, 36, 48 and 48(A) of the Pension Rules of 1972 and submitted that a member of the fund has to complete 20 years of qualifying service to avail pension under the Pension Rules.
5. Reading clause 4.1.[5] of SVRS, learned senior counsel argued, that the SVRS in unequivocal terms provides that an employee shall be eligible to get pension as per the applicable provisions of the Terminal Benefit Rules. Taking the Court through the provisions of the trust deed, learned counsel submitted that an employee can get pension, if he has completed 20 years of service. He further submitted that all writ petitioners (Respondent Nos. 1-7 herein) having completed 10 years of service were only entitled to become a member of the trust, but since they had not completed 20 years of service, they are not eligible for getting pension in terms of applicable Rule 49 of the Pension Rules.
6. Having apprised the court about the aforesaid, learned senior counsel for the appellant argued that the writ petitioners (Respondent Nos. 1 to 7) had admittedly not completed 20 years of service as is evident from what has been pleaded in ground-B of the writ petition, and pointed out that the respondent Nos. 1 to 7 (writ petitioners) themselves have stated that they had completed more than 10 years of qualifying service, though less than 20 years.
7. Learned senior counsel relied upon Division Bench‟s judgment of this Court rendered in the case of North Delhi Power Ltd. & Ors. v. Govt. of Delhi & Ors. reported in 2015 SCC OnLine Del 11559 more particularly paras 3, 18, 22, 34 and 35 and submitted that the respondents cannot be held entitled for pension.
8. At the cost of repetition, he further submitted that 20 years‟ qualifying service is only for the purpose of applying under SVRS of the erstwhile companies. However, so far as pension is concerned, clause 4.1.[5] of the SVRS, 2003 clearly provides that pension shall be payable by the Delhi Vidyut Board Pension Trust (hereinafter referred to as „DVBP‟). He submitted that qualifying service of 10 years mentioned in the Pension Rules is the time period which an employee is supposed to complete for becoming a member of the trust.
9. He submitted that according to Rules 49(2)(b) of the Pension Rule, a government servant is not entitled to pension unless he completes qualifying service of 10 years and qualifying service means 10 years after becoming member of the trust as envisaged under definition clause 3(q) of Pension Rules. He submitted that in any case, the matter is pending consideration before Hon‟ble the Supreme Court in Civil Appeal bearing No. 45/2017 filed against the judgment in North Delhi Power Ltd. (Supra) as is evident from perusal of proceedings dated 02.01.2017 and 16.11.2018 of Hon‟ble the Supreme Court in SLP(C) No. 14932/2016 and SLP(C) Diary NO. 28025/2018, respectively.
10. Learned senior counsel submitted that the learned Single Judge has clearly erred in concluding that on completion of 10 years from the date of joining the Delhi Vidyut Board, the employees are entitled for pension without considering the provisions of the Pension Rules of 1972.
11. He argued that learned Single Judge has relied upon the judgment of Hon‟ble the Supreme Court in National Insurance Co. Ltd. & Anr. v. Kirpal Singh, reported in (2014) 5 SCC 189 ignoring the issues that were involved before Hon‟ble the Supreme Court in the aforesaid case. He pointed out that in the case of Kirpal Singh (supra), a look at para 4 shows that in the SVRS, 2004 which was promulgated by the National Insurance Co., if read with para 14 of the General Insurance (Employees) Pension Scheme, 1995 (hereinafter referred to as „Pension Scheme, 1995‟) it is apparent that the provision in relation to qualifying service was entirely different.
12. In order to appreciate above argument, it will not be out of context to reproduce „qualifying service‟ as defined in the Pension Scheme, 1995 which has been provided in para 4 of Kirpal Singh (supra):
13. He pointed out that dealing with the SVRS, 2004 and Pension Scheme, 1995 as applicable in the case of Kirpal Singh (supra), Hon‟ble the Supreme Court has held that the High Court of Punjab & Haryana has committed no error of law.
14. Learned senior counsel argued that the facts and provisions involved in the case of Kirpal Singh (supra) were clearly distinguishable and, therefore, reliance placed by the learned Single Judge upon the said judgment is untenable in the eyes of law.
15. Mr. Sethi, learned senior counsel navigated the court through para 27 of the memo of appeal and submitted that after the date of actual retirement i.e. on completion of 20 years of service from the date of appointment, the liability of payment of pension is to be borne by the trust and, therefore, learned Single Judge has erred in fastening the entire liability of payment of pension upon the appellant (respondent No.2 in the writ petition). In support of his argument, learned counsel relied upon the judgment of Hon‟ble the Supreme Court reported in C. Jacob v. Director of Geology & Mining and Anr., reported in (2008) 10 SCC 115, more particularly on paras 23 and 24 thereof.
16. Mr. Dalal, learned counsel appearing for the respondent, on the other hand, submitted that the judgment of Hon‟ble the Supreme Court in the case of C. Jacob (supra) relates to disciplinary proceeding and not to pension. He submitted that in para 29 of the impugned judgment, learned Single Judge has aptly distinguished the case of C. Jacob (supra).
17. Learned counsel further submitted that once applications under SVRS have been accepted by the appellant-company, they could not deny the benefit of pension as the SVRS came with unequivocal promise that the employees taking voluntary retirement shall be entitled for pension.
18. Learned counsel for the respondents informed that appellant had paid pension to the respondents for a period of 6 months, whereafter they suddenly stopped the payment and argued that the appellant having paid pension for 6 months could not resile from their promise on the basis whereof the respondents had taken voluntary retirement.
19. He submitted that SVRS was introduced by the appellant-company in order to weed out the employees not only to introduce new and young blood but also with a view to reduce its financial burden. He submitted that as per Section 23 of the Contract Act, a contract can be rescinded only on the basis of fraud and since there is no fraud or misrepresentation by the respondents, the appellant could not have resiled from the contract.
20. Learned counsel submitted that the judgment in case of Kirpal Singh (supra) on the other hand favours the respondents, more particularly paras 16 and 17 thereof, in order to substantiate his contention.
21. Learned counsel relied on judgment of Hon‟ble the Supreme Court in Assistant General Manager & Ors. vs. Radheyshyam Pandey, reported in (2020) 6 SCC 438, especially para 93 thereof.
22. He also submitted that Division Bench judgment in North Delhi Power Ltd. (Supra) is clearly distinguishable on facts.
23. He lastly submitted that because of the allurement given by the appellant-company, the respondents were impelled or allured to apply for voluntary retirement under the SVRS in a hope that they would get additional pension besides the pension, which they were otherwise getting from their erstwhile employers.
24. He lastly argued that in case this Court comes to a conclusion that having not completed 20 years of qualifying service, respondents are not entitled for pension, the court may ask the appellant to pay proportionate pension instead of completely denying them the pension.
25. While rejoining, Mr. Sethi, learned senior counsel for the appellant submitted that the facts of the case in Assistant General Manager (supra) are entirely different inasmuch as the Government of India had issued a direction to the bank to bring down the period from 20 years of service to 15 years of service for the purpose of pension, whereas, no such direction was issued in the present case. He read para Nos. 32, 55, 57, 81 and 84 to point out that the said judgment is based on peculiar facts.
26. Inviting court‟s attention towards the affidavit dated 07.08.2023, learned senior counsel submitted that out of 2489 employees, the pension has been denied only to 33 persons and out of whom, only 7 persons have come, rest 26 have not raised any grievance at all- they have not approached the court.
27. Heard learned counsel for the parties and perused the material on record.
28. Moot question, which should at the outset be considered, and which has remained unanswered by learned Single Judge is, as to whether simply having applied under the SVRS, an employee is entitled to get pension or whether he is supposed to complete qualifying service as given under the SVRS read with applicable Pension Rules of 1972.
29. In this regard, Clause 1 and 4 of the SVRS are very relevant, which are being reproduced hereinunder: “1 SCOPE & ELIGIBILITY 1.[1] The Scheme shall apply to all the regular employees of BYPL, who have completed 10 years of service from the date of joining Delhi Vidyut Board (DVB) or have attained the age of 40 years as on the date of this Office Order. 1.[2] Any eligible employee of BYPL as at Clause 1.[1] above may seek special voluntary retirement under this SVRS, by making a request in writing to the Competent Authority in the standard format enclosed herewith, within the time limit prescribed. 1.[3] However, following are not eligible to apply for this SVRS:03: 1.3.[1] The employees who have executed service bonds and have not completed the obligation under it and employees serving abroad under Special arrangement / Bonds will not be eligible for SVRS. 1.3.[2] Any other, person, who is not a regular employee like those appointed on contractual, casual, adhoc, Daily rated basis, work charge basis and trainees, since the scheme is only for regular employees. 4 OTHER BENEFITS ON VOLUNTARY RETIREMENT 4.[1] Various other Benefits shall depend upon age of the employee and other factors as applicable: 4.1.[1] Encashment of Earned Leave (EL) accumulated on 31st Dec. 2003 as per CCS (Leave) rules, 1972 payable by DVB Pension Trust. 4.1.[2] Payment of Savings element with interest in the BYPL Employees Group insurance Scheme as per rules. 4.1.3. TA/DA on retirement for self and family for Home town as per traveling allowance rules for retirement payable by BYPL. 4.1.[4] Gratuity as per rules payable by DVB Pension Trust. 4.1.[5] Pension as per rules payable by DVB Pension Trust. 4.1.[6] Hospitalization / Medical scheme as per rules payable by DVB Pension Trust. 4.1.[7] Any other benefit as applicable as in the case of retirement as per the rules as applicable to the retiring employee.”
30. A perusal of Clause 1 more particularly para 1.[1] and 1.[2] of the SVRS reveals that the scheme shall apply to the regular employees of the appellant-company, who have completed 10 years of service from the date of joining or have attained the age of 40 years on the date of said office order i.e. 18.12.2003.
31. Clause 1.[1] of SVRS further stipulates that the eligible employees of the appellant-company as per Clause 1.[1] may seek voluntary retirement under this scheme by making a request in writing to the company in the standard format enclosed therewith.
32. On the other hand, Clause 4 of the SVRS ibid which provides for other benefits on voluntary retirement stipulates that the employees taking voluntary retirement under SVRS shall be entitled for the enumerated benefits, such as encashment of Earned Leave, payment of savings element with interest, TA/DA on retirement for self and family for hometown as per Travelling Allowance Rules, gratuity as per rules payable by DVB Pension Trust and pension as per rules payable by DVB Pension Trust, etc.
33. A simple look at the SVRS may give an impression that any person who is eligible to opt for voluntary retirement as per the provisions of SVRS is also entitled for the benefits encapsulated under clause 4 of the scheme. However, if clause 4 is read carefully, it shows that the payment of gratuity and pension are not automatic; they are circumscribed or stringed with a further condition “as per rules payable by DVB Pension Trust”.
34. Clause 4.1.[4] and 4.1.[5] clearly provides that gratuity and pension shall be governed by the rules in this regard and paid by DVB Pension Trust. For the purpose of the applicable rules for payment of pension and gratuity, one has to refer to take into consideration, the provisions of DVB Pension Trust governed by the trust deed dated 26.03.2002 and Rule 49(2) and Rule 3(q) of Pension Rules of 1972 which reads thus: “Rule 49(2)
2. (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years, the amount of pension shall the appropriate amount as set out below, namely: (b) Notwithstanding anything contained in clause (a), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54. Rule 3(q) (q) „Qualifying Service‟ means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules;”
35. A conjoint reading of Clause 1.1, 1.2, 4 of the SVRS vis-a-vis relevant provisions of the Pension Rules of 1972 particularly, Rule 3(q) and Rule 49 thereof reveals that an employee is entitled for pension on completing at least qualifying service of 10 years. The expression qualifying service has been defined in Rule 3(q) of the Pension Rules of 1972, which provides that service rendered while on duty shall be taken into account for the purpose of pensions and gratuities admissible under these Rules.
36. A look at the definition of qualifying service shows that it simply indicates 10 years‟ service rendered while on duty and not 10 years‟ service after becoming member of the Trust Fund. It is to be noted that Pension Rules of 1972 had been brought into force on 01.06.1972 while the SVRS was introduced on 18.12.2003. Respondent nos. 1-7 (writ petitioners) had been allowed to voluntarily retire after completing 10 years of service from the date of joining the board, which period otherwise would have been 20 years. Therefore, there is no reason why the services rendered by them with the appellant, which is admittedly more than 10 years should not constitute qualifying service as defined in Rule 3(q) of the Rules of 1972.
37. True it is, that Rule 48(a) and 48(b) of Pension Rules of 1972 prescribe completion of 20 years of service, in order to seek voluntary retirement but the appellant's contention edificed on Rule 48(a) and 48(b) of the Rules of 1972 cannot be an impediment in the way of the respondents in claiming pension, because SVRS being Special Voluntary Retirement Scheme, which was promulgated in order to reduce the burden of cost of the employees and to infuse new and young workforce being an exception to the general Rule relating to voluntary retirement shall prevail over the normal law (Pension Rules of 1972).
38. It is a settled position of law that the provisions having general applicability shall have to concede to the provisions of a special law. According to us, SVRS permitting voluntary retirement on completion of 10 years of service to the regular employees of erstwhile BYPL on completion of 10 years of service or attaining 40 years of age as on 18.12.2003 shall, therefore, prevail over Rule 48(a) and 49 of Pension Rules of 1972, which are applicable to all other employees not covered by SVRS 2003.
39. Since the applications of the respondents having attained 10 years of service were accepted and they were allowed to take voluntary retirement under the SVRS, it cannot be said that for the purpose of grant of pension and other benefits, they will have to complete 20 years of qualifying service especially, when Rule 49(2)(b) of the Pension Rules unequivocally provides that a government servant retiring in accordance with the provisions of the Pension Rules of 1972 on completing qualifying service of 10 years, shall be entitled for pension.
40. However, such pension shall be proportionate to the amount of pension applicable under Rule 49(2)(a). On close reading of the provisions of SVRS 2003 and Rule 49 in the backdrop of Rule 48(a) and Rule 48(b), we are of the firm view that the respondents who have completed between 10 to 20 years of service with the appellant are entitled to get proportionate pension as envisaged in Rule 49(2)(b) of the Pension Rules of 1972.
41. A perusal of the Trust deed dated 26.03.2002 executed between Delhi Vidhyut Board and the Fund particularly Clause XXIV also suggest that qualifying service shall be as defined in Rule 3 (q) of the Pension Rules, 1972 and Rule 3(q) indisputably provides service rendered while on duty and not the services rendered after being member of the fund or the Trust.
42. We have also perused the Trust Deed and the Terminal Benefit Rules carefully, Clause 2 (xi) whereof defines eligible members, which means an employee, who is covered under the Pension Rules of 1972, which shall not include the employees directly recruited by the New Entities/Corporate Entities.
43. Clause 2(xi) of the Terminal Benefit Rules framed under Clause 2 of the Trust Deed provides that the eligible members shall be those members as per the Pension Rules of 1972 with an exception that the same shall not include the employees directly recruited by the New Entities/Corporate Entities. The respondents, who had earlier joined BYPL and have later become the employees of the present appellant were earlier not covered by the Pension Rules of 1972 as they were recruited by Corporate Entities.
44. We are of the opinion that Rule 48(a), 48(b) and 49 relied upon by Mr. Sandeep Sethi deal with the amount of pension and not with rights of an employee to get pension. It is Rule 48 of the Rules of 1972, which provides that qualifying service for the purpose of retiring pension or the pension under the Rules of 1972 is 30 years qualifying service. The expression qualifying service has been defined in definition Clause 3(q) of the Rules. Rule 48(1) of the CCS Rules reads thus: “48. Retirement on completion of 30 years' qualifying service (1) At any time after a Government servant has completed thirty years' qualifying service- (a) he may retire from service, or (b) he may be required by the Appointing Authority to retire in the public interest and in the case of such retirement the Government servant shall be entitled to a retiring pension: Provided that- (a) a Government servant shall give a notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire; and (b) the Appointing Authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice: Provided further that where the Government servant giving notice under Clause (a) of the preceding proviso is under suspension, it shall be open to the Appointing Authority to withhold permission to such Government servant to retire under this rule: Provided further that the provisions of Clause (a) of this sub-rule shall not apply to a Government servant, including scientist or technical expert who is-
(i) on assignments under the Indian Technical and Economic
(ii) posted abroad in foreign based offices of the Ministries/Departments.
(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.”
45. Whereas, Rule 48(A) only provides retirement on completion of 20 years of qualifying service while Rule 49 deals with the amount of pension. Rule 48(A) of the Rules of 1972 is a provision which in a way is exception to Rule 48 of the Rules and is a provision providing for voluntary retirement and in case of voluntary retirement the amount of pension shall be proportionate to the amount of pension admissible under Clause (a).
46. The appellant‟s contention that pursuant to application for voluntary retirement being accepted by the appellate, the respondents only becomes entitled to be a member of pension fund is misconceived to say the least and the same does not find support from the pension Rules of 1972 or from the trust deed.
47. We have no hesitation in holding that once an employee working with the appellant was allured to move an application for voluntary retirement in the hope that he would be entitled for the benefits as enumerated in SVRS including gratuity and pension and his application for voluntary retirement having been accepted, his employee cannot take a somersault and deny him the pension on the plea which has been raised before us.
48. On going through the order of the learned Single Judge, we find that learned Single Judge has not only aptly dilated upon the facts of the case but has also correctly considered the applicable provisions of law. Learned Single Judge has also dealt with in great detail, judgment of Hon‟ble the Supreme Court rendered in case of Kirpal Singh (supra), Assistant General Manager (supra), Delhi Transport Corporation vs. Shri Brij Nath Bhargava, LPA 33/1998 decided on 16.03.2000, Bank of India vs. OP Swarnkar & Ors. reported in (2003) 2 SCC 721, HEC Voluntary Retired Employees Welfare Society vs. Heavy Engineering Corporation Ltd. reported in (2006) 3 SCC 708 and has reproduced relevant extract thereof and took guidance from these judgments.
49. For what we have observed above and going through the judgments which have been relied upon by learned Single Judge, we are of the view that the respondents who had opted for voluntary retirement under SVRS are entitled for dual pension in accordance with law.
50. Though, there is no scope for other view, we feel that even if for the sake of arguments, some other view is possible, then, since it has been consistent view of Hon‟ble the Supreme Court dealing with analogous provisions relating to Banks, Insurance Companies and so also of this Court, dealing with the case of employees of Delhi Transport Corporation (supra) holding that if an employee is allowed to take voluntary retirement having rendered qualifying service under the SVRS is entitled to applicable pension, we would be slow rather deter from taking the view, which the appellant is canvassing before us.
51. Because, in any case the SVRS was introduced by the appellant company for their own advantage – in order to reduce the number of excess employees and to infuse new blood, who can be engaged at relatively lower salary.
52. That apart, the respondent Nos. 1 to 7 having served the appellants for a long period of time, might legitimately expect that they would be getting pension from the appellate-company and in such hope, if they have taken voluntary retirement on completion of more than 10 years (however less than 20 years of service), completely oblivious of the plea which the respondent company has devised after 6 months of their retirement and having paid the pension for about 6 months cannot be left in lurch.
53. Though in principle, we agree with the view taken by learned Single Judge so far as respondents‟ entitlement to get pension is concerned, however, on perusal of operative part of the impugned judgment, we find that while quashing the order dated 23.01.2006 impugned in the writ petition, learned Single Judge has directed the respondent no. 2 (appellant herein) to grant pension to the petitioners (respondents herein) from the date of their voluntary retirement alongwith interest at the rate of 12% per annum. It would not be out of place to reproduce the relevant para nos. 31 & 32 of the impugned judgment, which is hereinfra:
54. According to us, the direction which learned Single Judge has issued is not in terms of the understanding, which took place between the appellant company, Delhi Government and Distribution Companies inasmuch as according to the terms agreed, until the age of superannuation i.e. 60 years, the pension is to be paid by a special purpose vehicle, SVRS RTBF, 2004 created by Delhi Government and the Electricity Distribution Companies and thereafter the same is required to be reimbursed by the pension trust and then to be paid by the appropriate authority under the Pension Rules of 1972 once the voluntary retired employees reach the age of superannuation.
55. Hence, we hereby modify para nos. 31 & 32 of the order of learned Single Judge in the manner that respondent nos. 1 to 7 are held entitled for payment of pension, however, the liability to pay the pension for the period up to the date when each of the employee has attained 60 years of age shall be on SVRS RTBF, 2004, which shall be reimbursed by DVB Pension Trust and the remaining part of the pension shall be paid by the appropriate authority under Pension Rules of 1972 or applicable law.
56. So far as interest part is concerned, since the liability of pension has been divided and also because the respondent nos. 1 to 7 are in any case getting one pension from the services which they have rendered in army, we set aside the direction relating to payment with the interest. Because, it will be very difficult to divide the liability of interest amongst various authorities concerned and also because, the rate of interest (12% p.a.) awarded by learned Single Judge is slightly on a higher side.
57. However, para no. 32 of the order of the learned Single Judge, which awarded cost of Rs. 10,000/- to each of the respondent (writ petitioners) to be paid by the appellant herein, is modified and said cost is enhanced to Rs.50,000/- to be paid by the appellant to each of the respondent Nos. 1-7. Said enhanced cost would re-compensate them for the loss of interest, which they would have otherwise received, pursuant to the direction given in para no. 32 of the learned Single Judge‟s order.
58. The appeal alongwith pending application is disposed of in the aforesaid terms.
(DINESH MEHTA) JUDGE (VIMAL KUMAR YADAV)
JUDGE DECEMBER 24, 2025