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3. The facts necessary to decide these proceedings are as follows. The GNCT decided to reorganize electricity generation, transmission and distribution in the territory of Delhi. In the wake of of the policy announcement by GNCT to so reorganize electricity generation and distribution, employees of the existing service provider, namely, the Delhi Vidyut Board, a statutory corporation (hereafter referred to as 'DVB') voiced grave apprehensions about their fate and the likelihood of their being prejudiced, even thrown out of the employment. The employees through their representatives contended that in the event of re- organization and introduction of private participation, their accumulated service benefits, right to pension and terminal benefits Page 1796 would be jeopardized. To allay these fears, tripartite agreements were entered into between the DVB, the GNCT and representatives of the employees through their unions/associations. The tripartite agreements were executed on 28.10.2000. The relevant terms of the two tripartite agreements entered into (which are in identical terms between different sections of the employees,the GNCT and DVB) are extracted below:

13. Reliance has been placed upon Rules 6 (7) (8)(9) to say that the Trust and the GNCT are, at all relevant times, under the obligation to effectuate guarantees in the tripartite agreements regarding payment of terminal benefits. They have to ensure that if there is any shortfall in the pension fund, the GNCT, to the extent such fund is unfunded, will bear the liability.

14. The DISCOMS allude to a previous proceeding which had been filed by the employees of the DVB with the advent of the Act and Rules being WP 1864/02, Ashok Kumar -v- GNCT (hereafter 'Ashok Kumar 's case'). It is averred that the GNCT had taken the stand that it and DVB were to discharge pensionary liabilities of employees of DVB for the duration of their service. This was a clear acknowledgment of liability of the GNCT towards the employees of DVB to the extent of their services with the latter.

69. The Division Bench of This Court in Ashok Kumar v. GNCT of Delhi (in CWP 1864/2002,decided on 16th September, 2002) had to decide whether Rule 37 of the CCS Pension Rules applied to the employees of the erstwhile DVB. That petition too was filed in the wake of the un-bundling process of DVB. The court noticed, in para 11 of the judgment that the predecessor of the DVB i.e. DESU was a department of the Municipal Corporation of Delhi. The Corporation (MCD) had framed Regulations in 1973 granting benefits to employees of DESU. Subsequently, in 1977 the DESU (DMC) Service Regulations were approved. They stipulated that service rules applicable to Government Servants would also apply to DESU employees. Regulation 4 indicated that unless provided in the Act or the Regulation, the rules applicable to Government Servants in the service of the Central Government, were to, so far as may be, regulate the service of Municipal employees except in regard to the matters relating to provident fund. The Division Bench noticed that upon incorporation of the DVB the assets and liabilities of the DESU and its undertaking devolved on it. The DVB later issued a circular protecting existing service conditions and expressly mandating 'there must be no retrenchment or change in service conditions to the detriment of the staff. Pension and all terminal benefits must be safeguarded by the Delhi Government.'

70. The Division Bench after considering the assurances held out by the DVB and analysing the provisions of Section 16, rules and the tripartite agreement, held that Rule 37 of the Pension Rules could not be applied as there was no question of deemed retirement. The Court held that Rule 37 could apply where by legal fiction a person superannuated but not otherwise. Accordingly where there was no retirement in terms of legal fiction, the question of payment of pro-rata pension did not arise. As far as the decision of the court in O.P Gupta's case is concerned, the contention raised was that in terms of Rule 9 of the CCS Pension Rules, the authority and jurisdiction to effect a cut in pension was with the President of India and not DVB. This was negatived; the court held that Pension Rules are not automatically applicable to employees of DVB and they were adopted mutates mutants. The President of India is not the employer of the employees of DVB nor were the employees holders of civil posts. They were not governed by Articles 309 of the Constitution of India. DVB was held to be a body constituted and being an autonomous body, required to act according to its own rules etc. As the Board of the DVB was the supreme authority, it was entitled to pass necessary orders under Rule 9 of CCS Pension Rules in the case of employees of DVB. The court did not rule out applicability of the CCS Pension Rules, but held them to be applicable, in so far as exercise of powers under Rule 9 were concerned.