Bses Rajdhani Power Ltd v. Satya Prakash Vashisht & Ors

PRADEEP NANDRAJOG, J. For orders see LPA No.677/2011. AUGUST 31, 2015/mamta (PRADEEP NANDRAJOG) JUDGE (MUKTA GUPTA) JUDGE * IN THE HIGH COURT OF DELHI AT NEW DELHI Jud2ment Reserved on: August 24, 2015 % Judsment Delivered on : Ausust 31,20i 5 + LPA 677/2011 GOVT OF DELHI& ORS Appellant Represented by: Mr.Satyakam, Advocate versus NORTHDBLEQ POWERLTD & ORS Respondents Represented by: Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, V Advocates for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.AnishChawla,Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager, for Pension Trust/R-2 + LPA 680/2011 GOVT OF NCT OF DELHI Appellant Represented by: Mr.Satyakam, Advocate versus BSES RAJDHANI POWER LTD & ANR Respondent ^ Representedby: Mr.SandeepSethi,Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates for R-I & 2 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocateswith LPA 677/2011&conn.matters 1of23 + Mr.P.Narayan, Manager, for Pension Trust/R-2 LPA 738/2011 DELHIVIDYUTBOARDETBF-2002 Appellant Represented by: Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhanha Nagpal, Advocates with Mr.P.Narayan, Manager, Pension Trust versus NORTHDELHIPOWERCOMPANYLTD &ORS Respondents Representedby: Mr.SandeepSethi,Sr.Advocate instructedby Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates for R-1 Mr.Satyakam, Adv. for R-2/GNCTD + LPA 739/2011 DELHI VIDYUT BOARD-ETBF 2002 PENSION TRUST Appellant Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan,Manager,Pension Trust Represented by: versus BSES RAJDHANI&YAMUNAPOWERLTD Respondent Representedby: Mr.SandeepSethi,Sr.Advocate instructedby Mr.Anupam Varma, LPA 677/201} & conn.matters Page 2 3f 33 y b Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates for R-1. Mr.Satyakam, Adv. forR-2/GNCTD + LPA 722/2013 TATA POWER DELHI DISTRIBUTION LTD Appellant Represented by; Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus + TRILOK CHAND & ORS. Represented by: Respondents Mr.Tenzing Tsering, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager, for Pension Trust/R-2 Mr.Raman Duggal, Advocate with Mr.Mr.Arun Panwar, Advocate, Ms.Aayushi Gupta, Advocates for GNCTD/R-3 LPA 723/2013 BSES RAJDHANI POWER LIMITED Appellant Represented by: Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus PAWAN VOHRA & ORS. Represented by: LPA 677/2011 & conn, matters Respondents Mr.Vinay Sabharwal, Advocate with Page 3 of33 + + < L-Ms.Neha Sabharwal, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust LPA 45/2014 BSES RAJDHANI POWER LTD Appellant Represented by; Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus SH NARESH KUMAR & ANR Respondents Representedby: Ms.Kittu Bajaj, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkarna, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager, for Pension Trust LPA 46/2014 BSES YAMUNA POWER LIMITED Appellant Representedby: Mr.SandeepSethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus SMT JAWAITRI & ORS LPA 677/2011 & conn.matters Respondents + + Represented by: Ms.Kittu Bajaj, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust LPA 48/2014 BSES RAJDHANI POWER LTD Appellant Represented by: Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus UMA RAWAT & ORS Represented by: Respondents Ms.Kittu Bajaj, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust LPA 50/2014 BSES RAJDHANIPOWERLTD Appellant Representedby: Mr.SandeepSethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus LPA 677/2011 & conn, matters + f(i SATYA PRAKASH VASHISHT & ORS Respondents Representedby; Ms.KittuBajaj,Advocatefor R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust LPA 54/2014 BSES RAJDHANI POWER LTD Appellant Representedby: Mr.SandeepSethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus VIJAY KLMAR & ORS Represented by: Respondent Ms.Kittu Bajaj, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan,Manager for Pension Trust + LPA 178/2014 BSES RAJDHANIPOWERLIMITED Appellant Representedby: Mr.SandeepSethi,Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates LPA 677/2011 & conn.matters versus SH N K SHARMA & ORS Respondents Represented by: Ms.Kittu Bajaj, Adv for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust + LPA179/2014 BSES RAJDHANI POWER LIMITED Appellant Represented by: Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus SANDEEP KUMAR MITTAL & ORS Respondents Represented by: Ms.Kittu Bajaj, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkarna, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA PRADEEP NANDRAJOG. J.

¶1Challenge by the Government of NCT of Delhi and its Principal Secretaryin LPA No.677/2011and LPA No.680/2011and the challengeby LPA 677/2011& conn,matters in the DelhiVidyutBoardEmployeesTerminalBenefitFund, 2002 (a Trust)in LPA No.738/2011and LPANo.739/2011is to an order dated April 20, 2011 passed by the learned Single Judge disposing of Civil Miscellaneous Applicationfiled by the NorthDelhi PowerLtd. and BSBS RajdhaniPower Ltd. seeking clarificationof the judgmentdated July 02, 2007 passed in a batch of writ petitions filed by North Delhi Power Ltd., BSBS Rajdhani Power Ltd. and BSBS Yamuna Power Ltd. which was followed by an order dated October 08, 2007 and finally the order dated January 25, 2008. Challengein the remainingcaptionedappeals is by BSBS Rajdhani Power Ltd. BSBS Yamuna Power Ltd. and TATA Power Delhi Distribution Ltd. (the successor-in-interestof North Delhi Power Ltd.) to the judgmentand order dated May 17, 2013 passed in W.P.(C)No.1680/2012by the learned Single Judge and to the subsequentorders dated May 20, 2013, July 10, 2013, July 10, 2013, July 10, 2013, July 10, 2013, July 10, 2013, September 27, 2013 and September27, 2013 passedby the learnedSingleJudge in the writ petitionsfiled by the respondentNo.l in LPAs No.722/2013,45/2014, 46/2014, 48/2014, 50/2014, 54/2014,178/2014 and 179/2014, in which ordersthe learnedSingleJudge has simply held that in view of the decision datedMay 17, 2013 passedin W.P.(C)No.1680/2012the writ petitionsfiled by said respondentNo.l in eachappealis allowed.

¶2Since two distinct issues were decided, we propose to note the facts at the first instance concerningLPA No.677/2011,LPA No.680/2011,LPA No.738/2011 and LPA No.739/2011, followed by the decision thereon and thereafter note the facts concerning the remaining LPAs followed by the decision thereon.

¶3To appreciate the controversy and the ramifications thereof concerningLPA No.677/2011,LPA No.680/2011,LPA No.738/2011 and LPA 677/2011 & conn.matters LPA No.739/2011, one would have to go back by a decade and a half. On November 23, 2000 the Delhi Electricity Reforms Act, 2000 was passed by the LegislativeAssemblyof the National Capital Territory of Delhi which was brought into force on March 08, 2001. One object of the Act was participationby the private sector in the distributionof electricityin Delhi which function hitherto fore was being carried out by the Delhi Vidyut Board (DVB). The Act envisaged taking over the functions of the Delhi Vidyut Board by variouscompanies,three of which were to be distributing companies i.e. to distribute electricity in Delhi, which were given the nomenclature DISCOM-1, DISCOM-2 and DISCOM-3. Three other companiesfor generationand transmissionof power and a holdingcompany were also to be formed. DISCOM-1, DISCOM-2 and DISCOM-3 became BSES Yamuna Power Ltd., BSES Rajdhani Power Ltd. and North Delhi PowerLtd. (now TATA PowerDelhiDistributionLtd.). The unbundlingof DVB took place on July 01, 2002, but before that the Delhi Electricity Reform (Transfer Scheme) Rules, 2001 were promulgated and simultaneouslyDVB and the employeesunion as also the Governmentof NCT of Delhi had discussions regarding the rights and status of the employees of DVB who would be transferred to the six successor companies, and in particular the discussion centred on the pensionery benefitsof the employeesbecausethe employeesof DVB were entitledto pensionerybenefitsas per the CCS (Pension)Rules, 1972. UnderRule 6(1) of the Delhi ElectricityReform (TransferScheme) Rules, 2001 benefit of existingserviceconditionswere guaranteedto the transferredemployeesand thus on October 28, 2000 a tripartite agreement was entered into which guaranteedthe existingservicebenefitsto the transferredemployeesand it was agreedunderthe tripartiteagreementthat apensionfund in the form of LPA 677/2011&conn.matters ^ to a trust would be created with a corpus so that pension could be paid to the transferred employees-from out of the said fund, and thus was born the Delhi Vidyut Board Employees Terminal Benefit Fund.

¶4The three DISCOMS notified Special Voluntary Separate Schemes containing almost identical terms on November 29, 2003 and December Is, 2003. Those who sought voluntary retirement were offered a package as per the scheme, and relevant would it be to highlight that the scheme categorically held out that pension would be payable as per Rules payable by the DVB Pension Trust. Parties were not at dispute that the pensionery benefits would be as per the CCS (Pension) Rules, 1972.

¶5Many employees of the three DISCOMS applied under the scheme and the offers seeking voluntary retirement were accepted. Issue arose as to who would disburse the pensionery benefits. The three DISCOMS took the stand that the Delhi Vidyut Board Employees Terminal Benefit Fund would disburse the pension and the fund denied the liability on the ground that its liability to pay pension was limited only to such employees who superannuated on attaining the age of superannuation and not those employeeswho voluntarilyretired under the Special VoluntaryRetirement Schemes notified by the three DISCOMS. It was the case of the Trust that the superannuationfund whichwas createdwas premisedon the assumption that the contributed funds with annual growing contributions would be locked up and would continueto generateinteresttill the employeesretired on attainingthe age of superannuation,thereforeif the invested securities were encashed ahead of the schedule to fulfil the Special Voluntary Retirement Scheme Demands, a huge loss of income from interest would ensue apart from unwarranted erosion of the corpus and loss of future contribution. LPA 677/2011 & conn.matters Page 10 ol 33

¶6IndraprasthaPower GenerationCompany Ltd. (IPGCL) one of the successor entities of DVB had also promulgateda VRS Scheme which envisagedthatthe pensionfund was not to dischargethe additionalliabilities arisingout ofthe voluntaryretirementschemesnotifiedby the new entities. A decisionwas taken by the GovernmentofNCT of Delhi, IPGCL and the fund that onetimepaymenton accountofcommutationofpensiongratuity and leave encashmentwill be made by IPGCL and the recurringpaymenton account of residual pension to the employees of IPGCL who severe relationshipunder the Voluntary Retirement Scheme would be paid by IPGCLtill these employeeswouldhave superannuatedfrom serviceor their death, whicheverwas earlier. Meaningtherebythese employeesof IPGCL would receive pensionfrom the trust with effect from the date they would have superannuatedfrom serviceon attainingthe age ofsuperannuation.

¶7The issues which arose before the learned Single Judge in the writ petitionsfiledby the threeDISCOMSwere as under:- a. The nature of Special Voluntary Retirement Schemes (SVRS) formulatedby electricityDistributionCompanies(DISCOMS)and whether these were in the natureofvoluntaryrecognisedschemesunderRule 48 and Rule 48-A of the CCS Rules? b. Whetherthe paymentof claims and liabilitiestowards employeesof suchDISCOMSwere payableby the DISCOMSthemselvesor whetherthey were to the account of the Governmentof NCT/the Pension Trust set up pursuantto atri-partiteagreementdated 28"" Oct 2009 betweenthe Delhi VidyutBoard(DVB)the predecessorofthe DISCOMS,the employeesand the Govt. of NCT? LPA 677/2011&conn.matters 11 of33 l1'' c. Whether such Tripartite Agreementand the resultant Pension Trust formedwas restrictedonly to paymentto employeeswho superarmuatedand not those who voluntarily retired?

¶8On November 01, 2004, i.e. before the writ petitions were filed by the three DISCOMS a Memorandum of Understanding was drawn up and pursuantthereto a SpecialVoluntaryRetirementScheme (SYRS) Terminal Benefit Fund was created by the DISCOMS for disbursement of terminal dues to such employees who were voluntarily retired in which money was transferred by the respective DISCOM. Vide decision dated July 02, 2007 the learned Single Judge has noted the relevant provisions of the tripartite agreement dated October 28, 2009, the Delhi Electricity Reforms Act, 2000 and the Delhi Electricity Reform (Transfer Scheme) Rules, 2001 and has also noted the terms of the SVRS in paragraphs 3 to 10 of the decision followed by the exhaustive arguments advancedby the DISCOMS, the Pension Trust and GNCTC, which are to be found in paragraphs 11 to 52 of the said decision. Thereafter the learned Single Judge has noted the applicableCCS (Pension)Rules, 1972 in paragraphs52 to 56 and has then set out the three issues which arose for determination in paragraph followedby an analysisof the distinctionbetweenconceptsof resignation, voluntary retirement and superannuation,in paragraphs 58 to 59 of the decision.

¶9In the ultimateanalysis,the learnedSingleJudge has held as under;- a. The purport, intent and therefore scope of the Pension Trust set up pursuantto the TripartiteAgreementdated 28"^ Oct 2009 was to allay fears ofexistingemployeesgiventhe corporatisationand transferofthe electricity utility-DVB to corporate entities. It was not intended as a measure to achieve future manpower reduction but was to ensure retention ot the LPA 677/2011&conn.matters D of 33 existing force. It was implemented by Section 16(2) of the Act and thus all existing conditions of service would stand included and protected when read with Rule 6(9). Such condition of service would include the right to voluntary retirement under Rule 48-A of the CCS( Pension) Rules. The next issue would be whether the SVRS as formulated by the DISCOMS was of the nature envisaged by Rule 48/48-A of the CCS (Pension) Rules, 1972 and hence within the ambit of the Pension Trust? b. On this, the learned Single Judge held that the schemes as formulated by the DISCOMS were in the nature of special schemes, they were in the nature of an offer and proposal and hence were not subject to statute but rather in the realm of contract law. Their objective was to change the employeeprofileand more than 1/3'^'^ of the employeesopted for it. There was a fundamental distinction between the DISCOMS' schemes and those contemplated by Rule 48/48-A of the CCS Pension Rules, in that, they drastically reduced the qualifying years of service and they were premised on a huge financial inducement. They were thus not of the nature contained in Rule 48/48-A of the CCS (Pension) Rules, 1972. Further GNCT had made the DISCOMS aware in communication as well as by caveats in Board Resolutions (in which Nominee Directors of GNCT attended) that such costs of this SVRS would be to the account of the DISCOMS and not GNCT. Hence there was no estoppel against the GNCT rather the DISCOMS had been forewarned. Lastly, allowing the Pension Trust to be applied to the SVRS would not only fmically prejudice and deplete the Trust as it was never intended to cater to such a large exodus of employees but would also cause grave prejudice to the persons legitimately covered by such fund under VRS Schemes formulated in terms of Rule 48/48-A of the CCS Pension Rules. Hence in conclusion, the learned Single Judge held that the LPA 677/2011 & conn.matters u SVRS formulated by the DISCOMS could not be equated to schemes under Rule 48/48-A and hence would not be payable from the Pension Trust, c. However given the position of parties, in that, a vast number of employees had accepted such SVRS and the DISCOMS had changed their position on this basis, the learned Single Judge noted a via media solution in the form of the IPGCL model whereby the DISCOM would make the payment in the first instance to be refunded by the Pension Trust, without interest, at the time when the employee would otherwise have superannuated.

¶10In light of the above, enumerated directions passed in para 93 were as under:- "I(i) The Pension Trust and GNCT are not liable to make payment towards terminal benefits and residual pension arising to those who opted VRS/VSS, formulated by the petitioners DISCOMS namely, BSES Rajdhani Power Ltd., BYPL and the NDPL employees of the above (referred to as DISCOMS ). The employees of the DISCOMS who opted by VRS/VSSor the Scheme by whatever name called and were relieved from employment are entitled to payment of terminal dues (which expression would include all accrued benefits such as gratuity, provident fund, leave travel concession, leave encashment, payment towards medical facilities, commutation of pension and residual pension and such other payments as they are entitled to in terms of the protected terms and conditions of service under the Act and Rules) from the date of their respectiveseverancefrom employment. Such date ofseverance shall be hereafterreferred to be called 'entitlementdate'.

(ii) It is open to the DISCOMSto adopt the IPGCL Modelof payingpension,gratuity,leaveencashmentand otherliabilities to the optees, in termsofthe letteroj the GovernmentofNCTof Delhi dated 11.11.2004. This has been described in para 87 above. LPA 677/2011&conn.matters 14 of33

(Hi) The DISCOMS shall indicate to the pension trust, in writing within two weeks from the date of this judgment whether they are willing to accept IPGCL Model or not.

(iv) In the event of acceptance of the IPGCL Model, the liabilities of the DISCOMS to make payments from the entitlement date of each VRS/VSSoptee till the date ofpayment shall be discharged within three monthsfrom today. In other words, the payments for the period commencing from entitlementdate till f ofJuly, 2007 shall be made within three months. The payment for the period ending three months from today shall also be after 1.7.2007 and included in this regard while discharging this liability. In the event of this option being exercised and any default in payment, the VPS optees concerned shall be entitled to interest @ 8% per annum for the entire amount till the date ofpayment.

(v) In the event ofoption being exercised by DISCOMS, they shall also be liable to make payments towards family pension and terminal benefits of all optees who died during the interregnum iefrom the date ofentitlement till today. II (i) In the event of the concerned DISCOMS not accepting the IPGCL Model and opting out of direction No. I (ii) above, they shall be liable to pay additional contributions to the pension trust, in the manner to be determined hereinafter.

(ii) For the purpose of deciding the additional contributions to be made by DISCOMS to the Trust's Pension Fund, on account ofpayment ofcommuted value pension and all terminal benefits and liabilities, due to such optees, the matter shall be referred to two Arbitral Tribunals within four weeks of receipt of communication by the pension trust from the concerned DISCOMS.

(Hi) Thefirst Arbitral Tribunal shall be comprised a nominee of the Institute ofActuaries, 302, Indian Globe Chambers, 142, Fort Street, Off D.N. Road, Fort, Mumbai, incorporated under Section 3 of the Actuaries Act (which was enacted and received assent ofthe President on 27.8.2006 and was brought intoforce on 8.11.2006). The nominee of the Institute shall be indicated LPA 677/2011& conn.matters s7 by the President, Governing Council of the Institute. The second member of the Tribunal shall be a common nominee of the GNCT and the Pension Trust and the third nominee shall be nominated by the NDPL. The provision of composition of the Tribunal shall be completed within six weeksfrom the date of exercise ofoption by the NDPL.

(iv) The second Tribunal shall comprise a nominee of the Institute ofActuaries, to be indicated in the manner as directed in clause ll(iii) above the second member shall be; a common nominee ofthe GNCT Pension Trust and the third member shall be a common nominee ofBSES and BYPL.

(v) All members of the two arbitral tribunals should be actuaries, having knowledge and experience in the field of pension funds;

(vi) The proceedings before the Tribunals shall be regulated by the provisions of the Arbitration and Conciliation Act, 1996 and its Award would be an Award within the terms ofthat Act;

(vii) The terms of reference of the Arbitral Tribunal concerned would be the determination of additional contributions payable by the concerned DISCOMS on account ofpremature pay-outs by the pension trust due to the exercise of option by the VRS optees. The Tribunal shall decide on an application of actuarial principles, the cost of such pay-outs, which shall include loss of interest and also such other incidental matters including but not confined to premature paymentofcommutedvalueofpension,providentfund, gratuity and all other terminal benefits to the concerned opteesfrom the date of their entitlement.The Arbitral Tribunalshall complete its proceedingsand publish its award within six monthsfrom the date of its Constitution.All parties shall cooperate in this regard.

(viii) The arbitrationproceedingsshall be conductedby the Tribunal in accordance with law. Ill (i) The liabilitytopay residualpension i.e. monthlypension from the date of this judgment in the event the DISCOMS LPA 677/2011 & conn.matters exercise the second option i.e. of going in for actuarial calculation; shall be borne by the concerned DISCOMSfor the period till the award ispublishedby the Tribunaland payment made to the trust on the basis ofsuch award, by the concerned DISCOMS.

(ii) Thepaymentsmade by DISCOMSto the opteesshall also be subject to suitable adjustment/reckoningfor the actuarial exercise adjudication by the Tribunal.

(in) The liability of the Trust to make payments to the VRS/VSS optees shall arise after the DISCOMS deposit the amounts determined as additional contributions with the pension trust.

(iv) The VRS optees are entitled to interest on the terminal benefits, i.e. gratuity, provident fund, commuted value oj pension, arrears ofpension, etc. @ 8% p.a. from the date of entitlement, topayment. This shall bepaid by the DISCOMS."

¶11It is apparent that the learned Single Judge was alive to the circumstancethat mere adjudicationof the respective rights and liabilities of the DISCOMS on the one hand and the Government of NCT of Delhi and the Pension Trust on the other would result in a declaration and may lead to further uncertainties, therefore in para 91 of the decision, after considering a human aspect the learned Single Judge considered the options available before the Court and in para 93 the operative directions were outlined.

¶12The DISCOMS did not opt for direction No.I(ii) issued in paragraph 93 and opted to charter the course envisaged by direction II i.e. make additional contributions to the Trusts Pension Fund. Thereafter two DISCOMS filed applications seeking clarification of the decision dated July 02, 2007 which were disposed of on October 08, 2007 permitting one instead of two Tribunals to decide the matter in terms of direction Il(ii), (iii) and (iv) of para 93 of the decision dated July 02, 2007. The relevant part of LPA 677/2011 & conn.matters the saidorderreadsas follows:- ^ xxxxx xxxxx xxxxx

(iv) The VRS optees are entitled to interest on the terminal benefits, i.e. gratuity, provident fund, commuted value of pension, arrears of pension, etc. @ 8% p.a. from the date of entitlement, to payment. This shall be paid by the DISCOMS. xxxxx xxxxx xxxxx

¶3The third clarification sought is essentially by the Pension Trust. Its position is that the pay-outs in terms of this Court's judgment, subject to other directions should be made from the new Fund created specifically, catering to the SVRSof the electricity companies. This request is innocuous since the respective rights and liabilities of the parties having been discussed and dealt with in detail in the main judgment. It is, therefore, clarified that the liabilities determined in terms ofthe judgment shall be paid into and shall be discharged by the SVRS, RTBF-2004, created as a specially purpose fund, by the Pension Trust, has not been created in this regard vis-a-vis all the three companies. It is not in dispute that the residual pension is being paid through these newfunds even today. "

¶13By another order dated January 25, 2008, the learned Single Judge disposed of CM Nos.17040/2007and 15652/2007, in terms of the following order:- "xxxxx xxxxx xxxxx Learned counsel for the Writ Petitioners (BRPL and BYPL) state that the liability would be paid to the VRS/SVR Scheme 2003 optees through the SVRS/RTPF 2004 Trust within six weeks, for which purpose a sum of Rs.l03 crores would be deposited in the said Trust/SVRS/RTPF. All pending applications are disposed of in terms of the above statement. NDPL and BSES Rajdhani shall adhere to the time schedule and ensure that the entitlement of optees are worked out and paid to them within the said period. All pending LPA 677/2011 & conn.matters 5^' applications are disposed of. xxxxx xxxxx xxxxx

¶14It is apparent that since the DISCOMS opted to proceed under directionII(i) of para 93 of the decisiondated July 02, 2007, consequential steps had to be taken in terms of directionIl(ii) to Il(iv). The DISCOMS were to make a onetime contribution to the Pension Trust to augment its corpus so that pension could be paid to the VRS optees. This required the constitution of the Arbitral Tribunal. The terms of reference were as per direction Il(vii). The DISCOMS having exercised option indicated in para 93II(i) of the judgment dated July 02, 2007 were constrained to file applications seeking further clarification from the learned Single Judge which has been disposed of by the impugned decision dated April 20, 2011 challengedin LPA No.677/2011,LPA No.680/2011,LPA No.738/2011and LPA No.739/2011. The clarification was necessitated because the Government of Delhi and the Pension Trust took a decision that there was no necessityto constituteany Tribunalsince most of SVRS opteeshad even otherwiseattainedthe age of superannuation. Holdingthat the view taken by the Governmentof Delhi and the Pension Trust was untenable, the learnedSingleJudge directedthat the Tribunalas requiredto be fonned in terms of the decision dated July 02, 2007 would be formed, and the reasoningwould be in paragraph14 and 15 ofthe decisiondated April 20, 2011, which read as under:- "14. The electricitycompanieswere given the option to apply for the IPGCL model ofpayingout pension (directionin para 93(i)). In the eventoftheir not optingfor it, the mechanismof arbitral tribunal which was to determine the extent ofpayment to be made by the Pension Trust by the concernedelectric companies, to be paid to the optees ofSVRS who would have otherwisehave to waitfor orders to come andget the terminal LPA 677/2011 & conn.matters benefits (not necessarily only residual pension). In other words, the need for such adjudication to ensure that the employees were not put to extreme hardship on account of further litigation and delay, either individually with the Pension Trust or with the concerned electricity companies. The Arbitration Tribunal was to consider all the facts and data and after appraising it,fasten the extent of liability upon individual electricity companies, which was to be paid to the Pension Fund that was to ultimately take-over the responsibility of disbursement of manner of payments to pensioners. The principle or reasoning underlying these directions was that pre mature severance or termination of the employees on his accepting the SVRS should not have otherwise robbed him oj his entitlement that would be ultimately enforceable.

¶15If the judgment and the operative directions are analyzed, it is apparent that the respective rights and liabilities of the parties were clearly delineated. The provision for the interregnum liability, i.e. payments to be made to individual employeesduring thependency of the determination before the Tribunal was also envisioned; the electricity companies were to bear this liability and if necessary, seek adjustment in thefinal determination by the Tribunal. The subsequent orders of

08.10.2007 and 25.01.2008, therefore, are a mere effectuation and extensionof the reasoning embodied in thejudgment dated

02.07.2007. The DISCOMS' clarifications enabling the electricitycompanies/DlSCOMSto make payments through a specifiedTrust, therefore,have to be viewedin the light of the partition directionscasting a liabilityto pay the interregnum amounts to the optees. Therefore, the interpretationplaced by the Govt. ofNCTofDelhi, and adoptedby the Pension Trust is untenable. Their position is also untenablefor the simple reason that it amounts to stating that by two unreasonedand clarificatoryorders, a hotly contested litigation resulting in accrual of rights and liabilitiesand necessitatingdirections, was virtuallyset-aside. That was in thepurportofthe saidtwo ordersof08.10.2007and25.01.2008."

¶15Notwithstandingthe prolix pleadings in the appeals tiled by the GovernmentofDelhi and the PensionTrust,the only argumentadvancedat LPA 677/2011 & conn.matters the hearing of the four appeals which laid a challenge to the order dated April 20, 2011 was that since most of the VRS optees had even otherwise attained the age of superannuation there was no necessity to constitute the Tribunal as directed by the main judgment dated July 02, 2007.

¶16The said contention of the Government of NCT of Delhi and the Pension Trust has simply to be noted and rejected for the reason neither challenged the main judgment dated July 02, 2007 and thus the mandate of the said judgment had to be complied with. We have already noted hereinabove the reasons given by the learned Single Judge for constitution of the Tribunal if the DISCOMS exercised the option as per para 93II(i) of the decision dated July 02, 2007. The reasons given by the learned Single Judge are even otherwise sound. Besides, since the decision dated July 02, 2007 has not been challenged by either party it has attained finality. We see no logic in the argument, and therefore concur with the view taken by the learned Single Judge in the decision dated April 20, 2011 culled out in paragraphs 14 and 15 of the said order, contents whereof have been noted by us in paragraph 14 above.

¶17LPA No.677/2011, LPA No.680/2011, LPA No.738/2011 and LPA No.739/2011 are accordingly dismissed.

¶18Issue concerning LPA No.722/2013, LPA No.723/2013, LPA No.45/2014, LPA No.46/2014, LPA No.48/2014, LPA No.50/2014, LPA No.54/2014, LPA No.178/2014 and LPA No.179/2014 relates to the interpretation of sub-Rule 3 of Rule 49 of the CCS (Pension) Rules, 1972 as also Rule 48-B of the CCS (Pension) Rules, 1972. For record we need to note that Rule 48-B was on the statute book when the issue arose between the parties concerning its applicability and interpretation and thus the learned counsel for the parties were not at variance that the decision in the LPA 677/2011 & conn.matters s -1 / appeals has to be with reference to Rule 48-B of the CCS (Pension) Rules, 1972 as it existed in the statute book when the dispute arose.

¶19The respondent No.l of LPA No.722/2013, LPA No.723/2013, LPA No.45/2014, LPA No.46/2014, LPA No.48/2014, LPA No.50/2014, LPA No.54/2014, LPA No. 178/2014 and LPA No. 179/2014 had sought and was granted voluntary retirement pursuant to the Voluntary Retirement Scheme notified by the predecessor-in-interest of TATA Power Delhi Distribution Ltd., BSES Rajdhani Power Ltd. and BSES Yamuna Power Ltd. Service rendered by Trilok Chand, the respondent of LPA No.722/2013 when cession of service took place was 19 years, 7 months and 10 days. Service rendered by Pawan Vohra, the respondent of LPA No.723/2013 when cession of service took place was 19 years, 10 months and 20 days. Service rendered by Naresh Kumar, the respondent of LPA No.45/2014 when cession of service took place was 19 years, 2 months and 14 days. Service rendered by Jawaitri, the respondent of LPA No.45/2014 when cession of service took place was 15 years. Service rendered by Uma Rawat, the respondent of LPA No.48/2014 when cession of service took place was 16 years, as claimed by the appellant and 17 years as claimed by her, an issue which is of no relevance as regards the fact concerning the number of years she rendered service. Service rendered by Satya Prakash, the respondent of LPA No.50/2014 when cession of service took place was 15 years. Service rendered by Vijay Kumar, the respondent of LPA No.54/2014 when cession of service took place was 16 years and 5 months. Service rendered by N.K.Sharma, the respondent of LPA No.178/2014 when cession of service took place was 14 years and 5 months as per the appellant and 15 years as per him, an issue which is irrelevant. Service rendered by S.K.Mittal, the respondent of LPA No. 179/2014 when cession of service took place was 13 LPA 677/2011 & conn.matters years.

¶20Whereas the respondents of LPA No.722/2013 and LPA No.723/2013 claimed the benefit of sub-Rule 3 of Rule 49 of the CCS (Pension) Rules, 1972 and pleaded that as per the same the fraction of a year equal to three months and above shall have to be treated as a completed one half year and reckoned as qualifying service, the respondents of the other appeals relied not only upon sub-Rule 3 of Rule 49 of the CCS (Pension) Rules, 1972 but even upon Rule 48-B of the CCS (Pension) Rules, 1972 and urged that as per the said Rule, while determining their qualifying service, a period of fi\'e years had to be added.

¶21The issue arose between the parties because undisputedly in the VRS Scheme introduced by the three DISCOMS there was a stipulation/condition that pensionary benefits as applicable would be paid. Since pensionary benefits as applicable under the CCS (Pension) Rules, 1972 were payable, the stand taken by the DISCOMS was that as per Rule 48-A of the CCS (Pension) Rules, 1972 pension was payable if 20 years' qualifying service was rendered and this meant actual service. The contra-contention of the employees was that as per Rule 48-B of the CCS (Pension) Rules, 1972, while computing qualifying service 5 years had to be added and as per sub-Rule 3 of Rule 49 of the CCS (Pension) Rules, 1972, the fraction of a year equal to three months and above had to be treated as a completed one half year.

¶22Before the learned Single Judge arguments were advanced on the assumption that qualifying service to earn a pension had to be 20 years and the issue debated was as to in what manner said period of 20 years has to be determined. Said issue was debated at the bar before us as also an additional issue, not urged before the learned Single Judge, but argued in appeal with LPA 677/2011 & conn.matters S reference to sub-Rule 1 and sub-Rule 2(b) of Rule 49 of the CCS (Pensio;:) Rules, 1972. The argument was that as per said sub-Rules pension was payable on completing qualifying service of ten years. Since the argument concerned interpretation of a Rule we permitted learned counsel for the respondents in LPA No.722/2013, LPA No.723/2013, LPA No.45/2014, LPA No.46/2014, LPA No.48/2014, LPA No.50/2014, LPA No.54/2014, LPA No. 178/2014 and LPA No. 179/2014 to urge the point because law permits an issue of law, unrelated to facts, to be taken up for the first time even in an appeal.

¶23Our analysis must therefore commence by noting the definition of qualifying service as per Rule 3(q) of the CCS (Pension) Rules, 1972, Rule 48-B and Rule 49 of the CCS (Pension) Rules, 1972. The three provisions read as under:- 3(q) 'Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose ofpensions and gratuities admissible under these rules; X X 48-B Addition to qualifying service on voluntary retirement

(1) The qualifying service as on the date of intended retirement of the Governmentservant retiring under Rule 48(1)

(a) or Rule 48-A or clause (k) of Rule 56 of the Fundamental Rules or Clause (i) of Article 459 of the Civil Service Regulations,with or withoutpermissionshall be increasedby the period not exceedingfive years, subject to the condition that the total qualifyingservice rendered by the Government servant does not in any case exceed thirty-threeyears and it does not taken him beyondthe date ofsuperannuation.

(2) The weightageoffive years under sub-rule(1) shall not be admissiblein cases of those Governmentservants who are prematurelyretired by the Governmentin the public interest under Rule 48(1)(b) or FR 56 (j). LPA 677/2011 & conn.matters X

¶49Amount ofPension

(1) In the case of a Government servant retiring in accordancewith theprovisionsofthese rules beforecompleting qualifyingservice of ten years, the amount of servicegratuity shall be calculatedat the rate ofhalfmonth's emoluments for everycompletedsixmonthlyperiod ofqualifyingservice.

(2)

(a) In the case of a Government servant retiring in accordancewith the provisionsof these rules after completing qualifyingserviceofnot less than thirty-threeyears, the amount of pension shall be calculatedat fifty per cent of average emoluments, subject to a maximum offour thousandandfive hundred rupees per mensum.

(b) In the case of a Government servant retiring accordancewith theprovisionsofthese rules beforecompleting qualifying service of thirty-threeyears, but after completing qualifyingservice of ten years, the amount ofpension shall be proportionate to the amount ofpension admissible under Clause

(a) and in no case the amount of pension shall be less than Rupees three hundred and seventyfive per mensem.

(c) notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalidpension shall not be less than the amount offamily pension admissible under sub-rule (2) of Rule 54.

(3) In calculating the length ofqualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service.

(4) The amount ofpension finally determined under Clause

(a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee. " in

¶24The learned Single Judge has not noted the definition of qualifying LFA 677/2011 & conn.matters service as per Rule 3(q) and has, while interpreting sub-Rule 3 of Rule 49 held that in calculating the length of qualifying service the fraction of a year equal to 3 months and above has to be treated as completed one half year and reckoned as qualifying service. Laying a challenge to said view taken, learned senior counsel Sh.Sandeep Sethi who appeared for the DISCOMS urged that the learnedSingleJudgehas overlookedthat Rule 49 operatedin the field of determiningthe amount of pension, as proclaimedby the head note of the Rule and thus learned senior counsel urged that no part of the Rule could be pressed into aid to determine the qualifying service. With respect to Rule 48-B the learned Single Judge has held that the Rule in question required 5 years weightage to be given while determining the qualifyingservice,and the challengeto the view taken by the learnedSingle Judge was on the argument that determination of qualifying seiwice is distinct from addition to the said period of qualifying service for purposesof computing pension.

¶25Beforethe implementationof the recommendationsof the 6"' Central Pay Commission with effect from January 01, 2006, resulting in consequential amendments to the CCS (Pension) Rules, 1972, a Government servant on superannuation would receive pension which was proportionately reduced in case full pensionable service was not rendered and the impact thereof on those who sought voluntary retirement was a proportionate reduction in the pension receivable with reference to the full pension receivableupon full pensionableservice rendered. It was in this backdrop that the CCS (Pension)Rules, 1972, vide Rule 48-B was introducedin the statute book. To put it pithily, those who opted for voluntary retirement were given an inducementthat while computingtheir pension and giving effectto the proportionatereductionin the pensionvis-a-visfull pensionthe LPA 677/2011 & conn.matters benefit of five years' service in addition to the service rendered would be given.

¶26Since qualifying service has been defined as per Rule 3(q), wherever the word qualifying service is to be found in the Rules, subject to context, it must be given the meaning as defined in Rule 3(q). As per the Rule it means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under the Rules.

¶27Rule 48-B does not redefine the concept of service otherwise which shall be taken into account (and hence does not relate to the second limb of the definitionofqualifyingserviceas per Rule 3(q)). The Rule simplystates that in case of voluntary retirement,to the period of qualifying service rendered, a weightage of 5 years would be added.

¶28The learned Single Judge has overlooked this fine, but material distinction. Determinationof qualifyingservice is distinct. Additionof five years' period to this period of qualifying service is distinct. The former determines eligibility. The latter concerns the quantificationof pensioii. This distinction has to be kept in mind because the cession of service took place in the year 2003 and the year 2004 when as per the CCS (Pension) Rules, 1972 pro-rata reduction in pension with reference to the maximum pension which was earned on rendering full pensionable service had to be given effect to.

¶29We overrule the view taken by the learned Single Judge that while determining the qualifying service, 5 years' additional service benefit had to be granted as per Rule 48-B.

¶30As regards the interpretation placed by the learned Single Judge on sub-Rule 3 of Rule 49, the view is sound and legal. The argument of the LPA 677/2011 & conn.matters DISCOMS that the head note of the Rule requires the Rule to be interpreted in relation to the amount of pension is noted and rejected for the reason the head note of a Rule does not determine the sweep of the span of the Rule, and if the language of the Rule is clear it has to be given effect to. The language of the Rule proclaims that in calculating the length of qualifying service the fraction of a year equal to 3 months and above shall be treated as a completed one half year, requires it to be held that the Rule contemplates rounding up of a fraction to the next nearest half and thus relates to the calculation of the length of qualifying service. Such persons who attained 20 years qualifying service as a result of the rounding up of the fraction to the next nearest half would thus be entitled to have their qualifying service reckoned by getting the benefit of the rounding up of the fraction to the next nearest half.

¶31That takes us to the issue urged for the first time in the appeal, and the argument was advanced, as noted above with reference to Rule 49 (1) and

(2)(b) of the CCS (Pension) Rules, 1972.

¶32Learned counsel for the respondents relied upon an unreported decision of this Court passed by a Division Bench on March 16, 2000 in LPA No.33/1998 DTC Vs. Baijnath Bharsava & Ors. The view taken in the said decision was that those who rendered 10 years service and are permitted to voluntarily retire would be entitled to pension, and for which view the Division Bench interpretedthe word ''retiring' in sub-Rule 1 of Rule 49 and clause(b) of sub-Rule2 of said Rule to embracing'voluntary retiring'.

¶33NotwithstandingPetition seeking Special Leave to Appeal filed againstthe said decisionof the DivisionBench being dismissedin limine, we are constrained not to follow the ratio thereof because the view taken by the DivisionBenchin said decisionwouldrequireto be treatedas overruled LPA 677/2011&conn.matters Page 28 of33 in view of the law declared by the Supreme Court in the decision reported as

(2008) 10 see 114 C.Jacob Vs. Director of Geolosv & Minins & Anr.

¶34Though concerned with the interpretation of sub-Rule 2 of Rule 43 of the Tamil Nadu Pension Rules, ls978, the Supreme Court noted that Rule 49(2)(b) of the CCS (Pension) Rules, 1972 was a pari-materia provision. The Supreme Court thereafter noted that the CCS (Pension) Rules, 1972 envisaged different kinds of pensions and for which Rule 35, Rule 36, Rule 37, Rule 37(A), Rule 38, Rule 39, Rule 40 and Rule 41 of the CCS (Pensio") Rules, 1972 were noted. Paragraphs 18 to 24 of the said decision are relevant to be noted, and we do soi They read as under "18. The appellant relied on Rule 43(2) of the Tamil Nadu Pension Rules, 1978 ('the TNP Rules', for short) to contend that on completion of 10 years ofservice, a government servant is entitled to pension. Relevant portion of the said rule is extracted below: "43.(2) In the case of a government servant, retiring in accordance with the provisions of these Rules after completing qualifying service of not less than 10 years, the amount ofpension shall be appropriate amount as set out belownamely:" As similar contention is frequently raised under the corresponding Rule 49(2)(b) of CCS Pension Rules ('CCSP Rules', for short), we will for convenience refer to the correspondingprovisionsofthe CSSPRulesalso.

¶19Rule 43(2) reliedon by thepetitionerfalls underChapter VI ofthe TNP Rules (correspondingto Rule 49(2)(b) in chapter VII of CCSP Rules) dealing with 'regulationof amount of pension'. The said rule relates to quantumand lays down how the pension of a retired government servant should be calculatedifhe is entitledto pension.Entitlementto pension is governedby ChapterVofthe saidRules, which enumeratesthe classes of pension and conditions for entitlement. The enumerated classes ofpension are : LPA 677/2011 & conn.matters Classes ofPension (vide Chapter Vofthe Pension Rules) CCSP Rules TNP Rules

(i) Superannuation pension Rule 35 Rule 32

(ii) Retiring pension Rule 36 Rule 33

(in) Pension on absorption in or under a corporation, company or body owned/controlled by State/ . Rule 37 Rule 34 Central Government Rule 37A

(iv) Invalid pension Rule 38 Rule 36

(v) Compensation pension payable on discharge owing to abolition of the post Rule 39 Rule 38

(vi) Compulsory retirement pension Rule 40 Rule 39

(vii) Compassionate allowance to government servants who forfeit their pension on being dismissed or removed Rule 41 Rule 40

¶20A government servant, whose case does not fall under any of the classes ofpensions enumerated in Chapter V, is not entitled to pension. Ifa government servant is not able to make out entitlement to any class ofpension specified in chapter Vof the Pension Rules, there is no question of having recourse to the rules in the Chapter dealing with regulation of amount of pension (Chapter VI of TNP Rules or chapter VII of CCSP Rules) for determining the quantum ofpension.

¶21Admittedly the petitioner was not 'superannuated'; nor was he absorbed in any corporation/company/body owned by state/central government; nor did he retire on account of any infirmity which incapacitated him for service; nor was he discharged on abolition of his post. Nor is he claiming compassionate allowance (on being dismissed/removedafter putting in service of an extent which would entitle him to pension but for the dismissal/removal). The only other LPA 677/2011 & conn.matters / / ,Sy categories of pension are compulsory retirement pension and the retiring pension. A government servant compulsorily retired from service as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-third admissible to him on the date of his compulsory retirement. If a government servant is not otherwise admissible to pension, he cannot obviously be granted pension on compulsory retirement. There is no such grant in this case. That leaves us with retiring pension.

¶22Rule 33 ofthe TNP Rules provides that a retiring pension shall be granted to a government servant who retires, or is retired, in accordance with theprovisions ofRule 42 ofthe said Rules. Rule 42 of TNP Rules provides that a government servant, who under Fundamental Rule 56(d), retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension (corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48-A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those Rules). Theprovision relating to retiring pension makes it clear that a minimum of 20 years' qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years' service. Therefore, the petitioner is not entitled to retiring pension

¶23The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated 'qualifyingservice of not less than 10 years'. He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to 'not less than 10 years' service', any governmentservant who has put in service of 10 years or more is entitledto retiringpension. The said contention is misconceived. As stated earlier, the said Rule does not relate to 'entitlement'ofpension nor does it prescribe the conditionsfor eligibility,but onlyprovides how the amount of LPA 677/2011 & conn.matters pension should be calculated in cases where the retiring Governmentservant is entitled to pension under the chapter V of the PensionRules. The said Rule regulatesthe 'amount' of pension not only in case of retiring pension, but in case of all classes ofpension.

¶24Under Chapter V, in certain situations, a government servant may be eligible for pension even where the service is less than ten years. Rules 32, 36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules) do not prescribe any minimum servicefor being entitled to pension, where the cessation of service is on account ofsuperannuation, or on account of bodilyor mentalinfirmityor onaccountofabolitionofhispost. When Rule 43(2) of TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to paymentofpensionto a person who has a qualifying service of not less than 10 years, it does not mean that the minimumperiod ofserviceprescribedfor retirementpension is reduced to 10 years or that government servants who are dismissed/removed/compulsorilyretired by way ofpunishment, for those who voluntarilyretire before reaching the age of superannuation with less than 20 years of qualifying seiwice, become entitledtopension. Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier, comes into play only when the governmentservant is entitled to any of the classes ofpension enumeratedunder Chapter Vof the Pension Rules. Therefore, when Rule 43(2) of TNP Rules (or Rule 49(2)(b) of CCSP Rules) dealing with the quantum ofpension refers to a governmentservant retiring in accordance with the said rules after completing qualifying service of not less than 10 years, it does not mean that pension is payable to persons who have not completedthe required minimumnumberofyears (20 years) of service or to persons who have forfeited their service on dismissal/removal from service. Therefore, the appellant is not entitled topension. "

¶35It has therefore to be held that in view of the law declared by the Supreme Court in C.Jacob's case neither respondent would be entitled to seek pension on the strength of sub-Rule 1 of Rule 49 and clause (b) of sub-Rule 2 of said Rule of the CCS (Pension) Rules, 1972, applicability whereof LPA 677/2011 & conn, matters V -'7^ would be only if the retirement is on attainingthe age of superannuationand not when the retirement is voluntary.

¶36LPA No.722/2013, LPA No.723/2013, LPA No.45/2014, LPA No.46/2014, LPA No.48/2014, LPA No.50/2014, LPA No.54/2014, LPA No.178/2014 and LPA No.179/2014 are disposed of partially maintaining the ordersimpugnedtherein,upholdingthe view takenby the learnedSingle Judge that while computing 20 years' qualifying service benefit of sub-Rule 49(3) of the CCS (Pension) Rules, 1972 would be available and while reckoning qualifying service the fraction of year equal to three months and above shall be treated as a completed one half year; but overruling the view taken by the learned Single Judge that while computingqualifyingservice five years' addition would be made. Such respondents who compete 20 years' qualifying service as interpretedhereinabove by rounding up of the fraction alone would be entitled to the pension and to those for whom entitlementof pensionhas been determinedby the learned Single Judge by giving benefit of five years additionalservice would not be entitledto any pension and the writ petitions filed by such respondents are dismissed.

¶37Parties shall beartheir own costs in all the appeals. (PRADEEP NANDRAJOG) JUDGE AUGUST 31, 2015 mamta LPA 677/2011 & conn.matters (MUKTAgIjFTA) JUDGE

% + IN THE HIGH COURT OF DELHI AT NEW DELHI Judsment Reserved on: Ausust 24, 2015 Judsment Delivered on : Ausust 31,2015 LPA 50/2014 BSES RAJDHANI POWER LTD Appellant Represented by: Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Anupam Varma, Mr.Nikhil Sharma, Mr.Rahul Kinra, Advocates versus SATYA PRAKASH VASHISHT & ORS Respondents Represented by: Ms.Kittu Bajaj, Advocate for R-1 Mr.Parag Tripathi & Mr.Bijender Chehar, Sr.Advocates instructed by Mr.Sumit Pushkama, Mr.Anish Chawla, Mr.Siddhartha Nagpal, Advocates with Mr.P.Narayan, Manager for Pension Trust CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA