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Judgment
Tarlok Singh Chauhan, J
The instant petition has been filed for grant of following substantive reliefs:
i) Issue a writ of mandamus directing the respondents to release the pension along with dearness relief upon pension since March 2019 along with 9% interest till the date of realization.
ii) Issue a writ of mandamus directing the respondents to release the dearness relief due and payable to the petitioners from March 2018 along with 9% interest till the date of realization.
iii) Issue a writ of mandamus directing the respondent Corporation to continue to release the pension/family pension/pensionary benefits of the petitioners without any interruption in future.
Petitioners No. 1 to 3 are retired employees of respondent No.3Corporation, whereas petitioner No.4 is wife of erstwhile employee of respondent No.3. Petitioners No. 1 to 3 joined the service in the years 1973, 1977 and 1971 respectively and retired on 31.10.2001, 31.12.2002 and 2000 respectively. Husband of petitioner No.4 joined service in the year 1975 and died in service on 7.2.2000.
The petitioners were getting their respective pension/family pension with dearness allowance till February 2018 and thereafter were getting pension/family pension without dearness allowance till February 2019, however, after March 2019, they have not received any pension/family pension.
The State of Himachal Pradesh had framed a scheme known as Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme 1999 (for short, 'the Scheme") vide notification dated 29.10.1999. It is under this scheme that the petitioners were getting pension/family pension, however the above notification was later on repealed vide notification dated 1.12.2004 with saving clause.
According to the petitioners, their cases are squarely covered by the saving clause contained in notification dated 1.12.2004 and even after the scheme despite having been repealed, they were still getting pension/family pension.
It is lastly averred that the claims of identical nature were raised before the Himachal Pradesh Administrative Tribunal in O.A. No. 1395/2016, titled as B. S. Himalvi vs. State of Himachal Pradesh and another, which were allowed by the erstwhile Tribunal vide order dated 8.1.2018 and the same, in turn, had been upheld by learned Division Bench of this Court in batch of cases lead being CWP No. 910/2018, titled as Himachal Pradesh Tourism Development Corporation Ltd. vs. B. S. Himalvi and another, vide judgment dated 3.1.2019.
The only defence taken by the respondents in the reply is that the Scheme, provisions of CCS (Pension) Rules, 1972 and the CCS (Commutation of Pension)Rules, 1981 at no point of time were made applicable to the Corporate Sector employees. The Scheme provides for grant of pension, family pension, commutation of pension and gratuity to be determined in accordance with CCS Pension Rules, 1972 and CCS commutation of Pension Rules, 1981. Therefore, provisions of Rule 55 of CCS (Pension) Rules 1972 providing grant of dearness relief on pension do not apply to the corporate sector employees.
We have heard learned counsel for the parties and have also gone through the records of the case carefully.
It is not in dispute that the Scheme was framed vide notification dated 29.10.1999. Subclause (2) of Clause 1 of the Scheme reads as under:
"All pensionary benefits of the employees of the participating H.P. Corporate Sector shall be determined in accordance with the provisions laid down in Central Civil Services (Pension) Rules, 1972, the Central Civil Services (Commutation of Pension) Rules, 1981 as amended and adopted by the Himachal Pradesh Government for the State Government Employees save as otherwise provided in this Scheme."
It is further not in dispute that the Scheme was repealed vide notification dated 2.12.2004, but with the saving clause, which reads as under:
"Not withstanding 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 repealed provided such retired employees have opted for such scheme and have otherwise become eligible for pension under the Scheme."
Lastly, it is not in dispute that petitioners No. 1 to 3 so also husband of petitioner No.4 are retirees of the period from 2000 to 2002 and thus, entitled to the protection of the saving clause.
As regards the petitioners' claim of dearness allowance, this issue is no longer res integra and has been duly considered in detail by this Court in B. S. Himalvi's case (supra), wherein it was observed as under:
"6. In our considered view, there is inherent contradiction in the contention of learned counsel for the petitioners. It is not in dispute that the right to receive pension of the respondents is governed by the provisions of the Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 (Annexure P1) (hereinafter referred to as 'the 1999 Pension Scheme'). Sub clause (2) of Clause 1 of this Scheme provides as under:
"...(2) All pensionary benefits of the employees of the participating H.P. Corporate Sector shall be determined in accordance with the provisions laid down in Central Civil Services (Pension) Rules, 1972, the Central Civil Services (Commutation of Pension) Rules, 1981, as amended and adopted by the Himachal Pradesh Government for the State Government employees save as otherwise provided in this Scheme."
'Pension' is defined under Clause (o) of Rule 3 of the Central Civil Services (Pension) Rules, 1972 as:
"(o) ['Pension' includes gratuity except when the term pension is used in contradistinction to gratuity, but does not incude dearness relief]."
Similarly, 'Dearness Relief' is defined in Rule 55A of the Central Civil Services (Pension) Rules, 1972 and the same reads as under:
"55A. Dearness Relief on Pension/Family Pension.
(i) Relief against price rise may be granted to the pensioners and family pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Government may specify from time to time."
The abovementioned Rule position itself explicitly demonstrates that the contention of the learned counsel for the petitioners that Dearness Relief is not payable to a person, who is otherwise entitled for the grant of pension, is incorrect.
In our considered view, a harmonious reading of the definitions of 'Pension' as also 'Dearness Relief' clearly and categorically leads to one and only one conclusion that though pension does not include Dearness Relief, yet Dearness Relief is an integral part of the pensionary benefits, more so, in the present case, in view of Subclause (2) of Clause 1 of the 1999 Scheme already quoted above.
The 1999 Pension Scheme itself envisages that all pensionary benefits of the employees of the participating H.P. Corporate Sector shall be determined as per the provisions laid down in Central Civil Services (Pension) Rules, 1972, as amended and adopted by the Himachal Pradesh Government for the State Government employees, save as otherwise provided in the Scheme.
It is not the case of the petitioners that the benefit of Dearness Relief upon pension has not been adopted by the Himachal Pradesh Government for the State Government employees or that the same stands excluded under the provisions of the 1999 Pension Scheme. Once the respondents have been found entitled for the grant of pension under the 1999 Pension Scheme, Dearness Relief, by no stretch of imagination, can be denied to them either on the pretext that the Dearness Relief is not payable upon pension or on the ground that whether or not Dearness Relief is to be granted, is the discretion of the employer."
13 It is well settled that the pension payable to an employee is determined as per the Pension Rules, which is operative on the date when concerned employee superannuates. In the present case, as on the date when the petitioners No. 1 to 3 and husband of respondent No.4 superannuated, the Scheme was in force. Once that be so, the petitioners are covered under the saving clause of the Scheme having retired prior to repeal thereof.
As observed above, this issue has also been considered in B.S. Himalvi Case (supra), wherein it was held as under:
It is settled law that the pension payable to an employee is determined as per the Pension Rules which govern the field as on the date when the concerned employee superannuates. In the present case, as on the date when the respondents superannuated between 01.04.1999 to 02.12.2004, the 1999 Pension Scheme was in force. This Scheme envisaged grant of pensionary benefits to the respondents in accordance with the provisions of the Central Civil Services (Pension) Rules, 1972. That being the case, as grant of Dearness Relief is provided for upon pension by the 1972 Rules, denial of the same by the petitioners to the respondents was clearly an arbitrary act and the same has been rightly set aside by the learned Tribunal by holding that the respondents are entitled for the grant of Dearness Relief upon pension.
It has been repeatedly held by the Hon'ble Supreme Court that pension is a right and its payment does not depend upon the discretion of the employer, but is governed by the Rules and an employee coming within those Rules is entitled to pension {See State of Rajasthan and others Vs. Mahendra Nath Sharma, (2015) 9 Supreme Court Cases 540}.
The decision of the learned Coordinate Bench has attained finality and is, thus, binding on this Court. Even otherwise, we have neither been persuaded nor we see any reason to take a different view than the one taken in B.S. Himalvi's Case (supra).
16 In view of aforesaid discussion, we find merit in this petition and the same is accordingly allowed and the respondents are directed to release pension as well as dearness relief upon pension since March 2019 along with interest @ 9% per annum till date of realization to the petitioners; and dearness relief due and payable to the petitioners from March 2018 and report compliance to this Court on 15.10.2020. Pending application(s), if any, also stands disposed of.