Cutoff date for pension upon switch from provident fund, denying pre-cutoff arrears, is not arbitrary or discriminatory due to prior opt-out opportunities, financial burden, and scheme as policy package.

JUDGMENT :

R.I. Chagla, J.

1. Rule. Rule made returnable forthwith. Heard by consent of parties.

2. By this Writ Petition, the Petitioners are seeking quashing and setting aside Clauses 3(VIII) and 4(IX) of the impugned Circular dated 29^th June, 2022 (Exhibit-N to the Petition). Further direction is sought against the Respondents to pay all the retired employees and family members of the deceased employees the pension from the respective date of superannuation or the date of retirement and also pay the arrears arising out of such payment of Pension from the date of superannuation / retirement date till the current date.

3. The relevant facts leading up to the filing of the present Writ Petition are as follows:

(i) The Petitioners are the persons who have retired from the Small Industries Development Bank of India (“SIDBI”)in various posts as per the particulars given in Exhibit-A to the Petition and are claiming pensionary benefits from their respective dates of superannuation or date of retirement which has been denied to them by the impugned HRD Vertical Circular No.16/2022-2023 dated 29^th June, 2022 issued by Respondent No.3.

(ii) Respondent No.1 – SIDBI is a statutory corporation created under an Act of Parliament and having its corporate address as shown in the cause title. Respondent No.2 is the Chairman and Managing Director of SIDBI having its address as shown in the cause title. Respondent No.3 is the Head of the HRD in SIDBI who has issued the impugned Circular dated 29^th June, 2022. (iii) SIDBI was created by an Act of Parliament dated 25^th October, 1989 and had initially introduced Pension Regulations of 1993. It is pertinent to note that it is the Petitioners’ case that at the relevant point of time of introduction of the Pension Regulations, it was not disclosed to the employees of SIDBI that the said Pension Regulations of 1993 were not introduced by following mandatory procedure as required under Section 52(1) read with Section 52(3) of the SIDBI Act, 1989 which requires that the said Regulations should be with the prior approval of the Industrial Development Bank of India (“Development Bank”) and that it should be notified in the official gazette and the said Regulations should be placed before both houses of Parliament for a total period of 30 days in one or two sessions and then such Regulations would come into effect as modified by the Parliament. The Petitioners have further claimed that though the Pension Regulations of 1993 were with the approval of the Development Bank, they were not notified in the official gazette nor were the said Pension Regulations of 1993 placed before both houses of Parliament. It is accordingly the Petitioners’ case that the said Pension Regulations of 1993 were never brought into force and can be at the most said to be executive instructions or Regulations in draft form having no effect in law and not creating any rights in favour or against any employee.

(iv) SIDBI had thereafter introduced Pension Regulations of 2002 by following the requisite procedure. Prior to notification of the 2002 Pension Regulations, a Board Memorandum was put up on 6^th May, 2002. It is the Petitioners’ case that the Pension Regulations when placed before the Parliament pursuant to a specific query raised by the Rajya Sabha Committee on Subordinate Legislation as to whether the 2002 Pension Regulations were issued in supersession of the 1993 Pension Regulations, it was admitted by the Ministry of Finance before the said Committee that the 1993 Pension Reg