Adarsh Kumar Goel, J.:— The petitioners herein (60 in number and 16 subsequent applicants) challenge Rule 1(2) of the Haryana Affiliated Colleges (Pension and Contributory Provident Fund) Rules, 1999 (hereinafter referred to as the Rules) to the extent it provides that enforcement of the rules will be with effect from 11.5.1998 They claim that they are entitled to the benefit of the said rules as they have retired on or after 1.4.1995 from which the pension is made available to employees of Kurukshetra University and Maharshi Dayanand University who were holding non-pensionable posts till 1997–98.

2. Contention is that there cannot be discrimination among the retired employees of the affiliated colleges inter se in the matter of retiral benefits Case of the petitioners further is that there is parity of the employees working in Government-aided private affiliated colleges with the teachers working in government colleges in the matter of pay scale, working hours and other service conditions except that while in government colleges, age of retirement is 58 years, in private colleges, the age of retirement is 60 years. There is also parity in the service conditions of the teachers of private colleges with the teachers working in Kurukshetra University, Kurukshetra, Maharshi Dayanand University, Rohtak and Guru Jameshwar University, Hisar whose age of retirement is 60 years. The petitioners and employees of Universities were covered by the Contributory Provident Fund Scheme though they made a demand for grant of Page: 57pension and other retiral benefits is admissible to Haryana Government employees and the employees of Government-run colleges in lieu of Contributory Provident Fund. This demand was accepted and a statement was made by the Governor on the floor of the Assembly on 6.3.1995 to this effect which was followed by notification of Kurukshetra Employees Pension Scheme, 1997 applicable to employees who were in service on 1.4.1995 and similar scheme was notified on 20.2.1998 in respect of Maharshi Dayanand University, Rohtak. The Government had also taken a decision regarding pension scheme for employees of private colleges as reflected in letter dated 16.3.1994 but matter remained pending for want of some information for which reference is made to a letter dated 9.4.1997, Annexure P. 4. A letter dated 12.5.1998 was also written to the Principals of the colleges seeking details of Contributory Provident Fund shared by managements and further letter dated 12.6.1998, Annexure P. 6. However, in the notification dated 31.5.1999 introducing pension scheme, provision had been made to enforce the scheme w.e.f 11.5.1998 which was an arbitrary cut off date. Since the petitioners had retired prior to 11.5.1998, they have been deprived of the pension.

3. In the written statement filed on behalf of the Higher Education Commissioner, Haryana, it is stated that employees of private affiliated colleges and employees of Universities and State Government were governed by different set of rules. There is no right of parity of the employees of affiliated colleges in the matter of pension with the employees of Universities or the State of Haryana. In Chaudhary Charan Singh Agricultural University, pension scheme is in operation since 1.1.1992 while in Kurukshetra University, Maharshi Dayanand University and Guru Jameshwar University, this was introduced w.e.f 1.4.1995 The Government was under no obligation to introduce pension scheme for employees of private college and cut off date was fixed having regard to financial liability and the said date was not arbitrary. Introducing pension scheme was a policy decision of the Government and mere asking for information did not create any right for introduction of a pension scheme from a particular date. Learned counsel for the petitioners relied on judgment of this court in CWP No. 15808 of 2000 (Gurucharan Singh v. State of Punjab). In the said judgment, it was held that prerogative to fix a particular date of introduction of pension scheme was well-recognised but when the Government decides to revise or liberalise the existing scheme, there could not be any discrimination. It was held that cut off date for implementing the pension scheme was unconstitutional when similarly situated employees had been given benefit of this scheme.

4. Learned counsel for the State submitted that judgment of this court in CWP No. 15808 of 2000 had not become final and SLP No. 9345 of 2002 was pending in the Supreme Court. He also submitted that the said judgment was distinguishable on facts as in that case, a policy decision had been taken by the Government to implement pension scheme but introduction of scheme’ was delayed by five years. It was also submitted that the petitioners are employees of private colleges and if pension scheme is to be introduced, the Government had to make a provision for additional grant-in-aid. It is submitted that financial constraints are relevant considerations as held by the Supreme Court in All India Reserve Bank Retired Officers Association v. Union of India, 1992 Supp (1) SCC 664 : AIR 1992 SC 767 : [1992 (3) SLR 35 (SC)] and State of Rajasthan v. Amrit Lal Gandhi, (1997) 2 SCC 342 : [1997 (1) SLR 528 (SC)]. Reliance is placed on judgment of the Apex Court in State of Punjab v. J.L Gupta, JT 2000 (2) SC 265 : [2000 (4) SLR 231 (SC)] to submit that principle of parity will not apply when employees are governed by different rules. Reliance is also placed on a judgment of this court dated 2.1.2002 in CWP No. 14245 of 1997 (Dr. Bani Singh v. Kurukshetra University) Page: 58dismissing the writ petitions of employees of Kurukshetra University and Maharshi Dayanand University seeking parity with the employees of Chaudhary Charan Singh Agricultural University in the matter of fixation of date of applicability of pension scheme. Reliance is also placed on judgment of the Apex Court in Tamil Nadu Electricity Board v. R. Veeraswamy, JT 1999 (2) SC 429 : (1999) 3 SCC 414 : [1999 (2) SLR 182 (SC)] wherein it was held that employees governed by Contributory Provident Fund cannot compel introduction of pension scheme from retrospective date. Reliance is also placed on Union of India v. Lieu (Mrs.) E. Lacats, JT 1997 (7) SC 279.

5. I have considered the rival submissions and perused the record of the case.

6. Question to be considered is whether when a new scheme for pension is introduced for first time, is there an obligation on the authorities to cover all those employees who have already retired and have been given retiral benefits as per the law existing on the date of retirement? Further question is whether scheme dated 31.5.1999 when applied to persons who retired on or after 11.5.1998 will be invalid on the ground that it should have been made applicable from 1.4.1995 when a similar scheme was made applicable to set of employees whose service conditions may be similar though who may be working under different employer.

7. In D.S Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130 : [1983 (2) SLR 246 (SC)], liberalising formula for computing pension was made applicable to employees who retired on or after March 31, 1979. The same was challenged on the ground that there was discrimination against those who had retired prior to the said date though they had rendered the same service. This plea was accepted. It was, however, observed at Page 413 as under:—

“And beware that it is not a new scheme, it is only a revision of the existing scheme. It is not a new retiral benefit, it is an upward revision of an existing benefit. It was a wholly new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not expect it.”

8. The matter was again considered by a Constitution Bench of the Apex Court in Krishena Kumar v. Union of India, (1990) 4 SCC 207 : AIR 1990 SC 1782 : [1990 (4) SLR 716 (SC)] which was a case of retired railway employees who were governed by Provident Fund Scheme. Pension Scheme was introduced in respect of employees retiring on or after 1.1.1986 Those who had retired prior to the said date challenged the same relying on judgment in Nakara's case (supra). This contention was rejected. It was observed that those who were covered by the Provident Fund Scheme could not claim to come over to pension scheme on the ground that the cut off date violated Article 14. The said judgment was followed in Ex-Services League v. Union of India, (1991) 2 SCC 104 : AIR 1991 SC 1182 and in All India Reserve Bank Retired Officer's Association (supra). In para 9, it was held that pension scheme being a totally new scheme, employees who had retired prior to that date and were governed by Contributory Provident Fund Scheme could not make any grievance as they had no right to claim coverage under the new pension scheme since they had already retired and had collected their retiral benefits.

9. Para 10 of the judgment is reproduced below for ready reference:—

“Nakara's judgment ((1983) 1 SCC 305 : AIR 1983 SC 130) has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalised all those who are governed by the said scheme must ordinarily receive the benefit of such revision or to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalisation on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalise an existing pension scheme with a view to Page: 59augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which has not connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara's case this court drew a distinction between continuance of an existing scheme in its liberalised form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing cut off date would ordinarily violate the principle of equality in treatment unless there is a strong rational discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. etc. It must be realised that in the case of an employee governed by the CPF scheme his relations with the employer came to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this court in Nakara's case ((1983) 1 SCC 305 : AIR 1983 SC 130) drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners, it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this court in Krishena's case ((1990) 4 SCC 207 : AIR 1990 SC 1782 (supra).”

10. Similar view was taken in State of Rajasthan v. Amrit Lal Gandhi, Tamil Nadu Electricity Board, Union of India v. Lieu (supra). In Subrata Sen v. Union of India, (2001) 8 SCC 71 relied on by the learned counsel for the petitioners, it was observed that since employees were already governed by pension scheme, there could be no discrimination while introducing a new pension scheme.

11. In view of the above case-law, it is clear that once employees are earlier governed by Contributory Provident Fund Scheme and new pension scheme is introduced, those employees already retired have no vested right to claim to be covered by the pension scheme and any relevant date could be fixed for applicability of the scheme. There will be no question of discrimination merely because some of the employees who have already retired are covered. In the present case, stand of the respondents is that cut off date has been fixed having regard to financial implications. Such a cut off date cannot be held to be arbitrary merely because, some of the employees have been covered and merely because of suggestion has been made by the petitioners that they are willing to return the Contributory Provident Fund already Page: 60received with interest. Since the petitioners have no vested right to claim to be covered by the pension scheme after having already retired and having received the benefits of Contributory Provident Fund as per rule applicable at the time of retirement, they cannot put forward a claim based on parity with the employees of the University or the employees of the State Government, the employer being free to fix a cut off date in such a matter.

12. Judgment of the Division Bench relied on by learned counsel for the petitioners is also distinguishable as there is no question of discrimination when a new scheme for pension is introduced in respect of employees governed by Contributory Provident Fund as held by Constitution Bench judgment of the Apex Court in Krishena Kumar, Ex-services League, All India Reserves Bank Retired Officer's Association and other judgments referred to above.

13. For the above reasons, this writ petition is dismissed.

14. Petition dismissed.