Punjab-Haryana High Court
M.C. Singla Son Of Shri Baru Mal vs Union Of India on 16 April, 2012
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.6233 of 2008 (O&M)
Date of decision: 16.04.2012
M.C. Singla son of Shri Baru Mal, resident of House No.5138/2,
MHC, Manimajra, Chandigarh, and others.
...Petitioners
versus
Union of India,through the Secretary to Government of India,
Ministry of Finance, Department of Economic Affairs, Banking
Division, New Delhi, and others.
....Respondents
II. Civil Writ Petition No.12211 of 2010 (O&M)
Punjab & Sind Bank Retired Employees Welfare Association,
through Captain P.L. Tandon (Retired), House No.186, Sector 11-A,
Chandigarh.
...Petitioner
versus
Union of India, through Secretary to Government of India, Ministry
of Finance, Department of Economic Affairs, Banking Division,
New Delhi, and others.
....Respondents
III. Civil Writ Petition No.14624 of 2010 (O&M)
S.P. Sharma, House No.322, Housing Board Colony, Jind (Haryana)
...Petitioner
versus
Union of India, through Secretary to Government of India, Ministry
of Finance, Department of Economic Affairs, Banking Division,
New Delhi, and others.
....Respondents
Civil Writ Petition No.6233 of 2008 (O&M) -2-
IV. Civil Writ Petition No.14625 of 2010 (O&M)
L.R. Singla son of Shri Bhawani Shankar, resident of House No.273,
Housing Board Colony, Jind (Haryana).
...Petitioner
versus
Union of India, through Secretary to Government of India, Ministry
of Finance, Department of Economic Affairs, Banking Division,
New Delhi, and others.
....Respondents
V. Civil Writ Petition No.14626 of 2010 (O&M)
P.C. Jain son of Shri Sukh Dev Jain, resident of House No.63,
Housing Board Colony, Jind (Haryana).
...Petitioner
versus
Union of India, through Secretary to Government of India, Ministry
of Finance, Department of Economic Affairs, Banking Division,
New Delhi, and others.
....Respondents
VI. Civil Writ Petition No.14627 of 2010 (O&M)
V.K. Mittal son of Shri Suraj Bhan, resident of House No.17,
Housing Board Colony, Jind (Haryana).
...Petitioner
versus
Union of India, through Secretary to Government of India, Ministry
of Finance, Department of Economic Affairs, Banking Division,
New Delhi, and others.
....Respondents
Civil Writ Petition No.6233 of 2008 (O&M) -3-
VII. Civil Writ Petition No.14635 of 2010 (O&M)
Roshan Lal Jindal, House No.2963, Urban Estate, Jind (Haryana).
...Petitioner
versus
Union of India, through Secretary to Government of India, Ministry
of Finance, Department of Economic Affairs, Banking Division,
New Delhi, and others.
....Respondents
VIII. Civil Writ Petition No.18706 of 2010 (O&M)
The Punjab & Sind Bank Retired Officers Association (Regd.),
through Shri G.S. Sidhu, son of Mehar Singh, President, having its
registered office at Chandigarh.
...Petitioner
versus
Union of India, through the Secretary to Government of India,
Ministry of Finance, Department of Economic Affairs, Banking
Division, New Delhi, and others.
....Respondents
IX. Civil Writ Petition No.18745 of 2010 (O&M)
The Oriental Bank Retired Officers Association (Regd.), through
Shri M.S. Sidhu son of Gurmel Singh, Secretary, having its Head
Office at # 1509, Sector 11-D, Chandigarh.
...Petitioner
versus
Union of India, through the Secretary to Government of India,
Ministry of Finance, Department of Economic Affairs, Banking
Division, New Delhi, and others.
....Respondents
Civil Writ Petition No.6233 of 2008 (O&M) -4-
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Dr. Balram Gupta, Senior Advocate, with Mr. Praveen
Gupta, Advocate, Advocate, for the petitioner(s).
Mr. Gautam Kaile, Advocate, for Mr. Rajiv Sharma,
Advocate, for Union of India.
Mr. Rajat Arora, Advocate, and Mr. R.N. Lohan,
Advocate, for respondent No.2 in CWP Nos.12211,
14624 to 14627, 14635 of 2010; for respondent No.3 in
CWP No.18706 of 2010 and for respondents 2 to 4 in
CWP No.18745 of 2010.
Mr. G.S. Bajwa, Advocate, for respondent No.3 in CWP
No.6233 and respondents 3 and 4 in CWP No.14635 of
2010.
Mr. I.P. Singh, Advocate.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.
1. All the writ petitions are at the instance of persons, who are retired officers from the Punjab National Bank. They claim that they have retired between 01.01.1986 to 31.10.2002. Their grievance is that there has been no updation of their pension in the manner that was contemplated at the time when pension scheme was introduced through Punjab National Bank (Employees) Pension Regulations, 1995. This was pursuant to a settlement between the Bank employees and the Management on 29.10.1993. Originally as it was contemplated that the scheme was applicable to all Civil Writ Petition No.6233 of 2008 (O&M) -5- employees, who had retired from 01.11.1993, but later through independent notification, it had been applied also to persons, who had retired from 01.01.1986 onwards. The petitioners have a grievance that the Regulations provided for the application of pension in the manner that the Reserve Bank of India and Civil Services Pension Rules provided, but in the scheme which had been introduced, it has not provided for periodical updation of the pension with reference to the increase in scales of pay coming through various Pay Commissions' recommendations. The talks of the Management with the Union representatives have not properly addressed the claims of persons, who had retired prior to the coming into force of the scheme with the result that amongst the class of pensioners, there are persons, who were drawing higher pension, although they had occupied lower posts to persons, who had retired before 1993. In some of the talks, it had transpired that the cost of servicing pension was sought to be raised from 18.2% to over 20% if the updation was required to be done, but it could not be accepted by the Union representatives.
2. The claim of the petitioners is resisted by the Union and the Bank Management, contending that the Reserve Bank of India's scheme or the Central Civil Service Pension Scheme could not be applied, since the Bank had an independent scheme which was introduced in the year 1995 and the Bank Regulations which provided through Regulation 56 that in case of a doubt, the Central Civil Writ Petition No.6233 of 2008 (O&M) -6- Civil Services Rules or the Reserve Bank of India Pension Rules would apply was only to be taken when there existed some problem of interpretation. The respondents would claim that the settlement which had been effected in the year 1993 that gave rise to the regulation merely paved way for a negotiation for parties for creating a scheme that could take note of payment of pension, commutation of pension and updation on the lines that were in force in Reserve Bank of India and if the negotiations or talks did not yield to any specific provisions like the way the Reserve Bank of India Pension Regulations provided for, they cannot have any vested right to demand the pension regulations in the manner that they are applied either for the Reserve Bank of India's employees or for the civil servants.
3. The petitioners' claim to a right for seeking for updation of pension came in the wake of a rejection of the petitioners' plea through a cryptic order issued by the Government of India, Department of Economic Affairs that there was no scope for updation of post-01.11.1987 retirees from the Banks through its letter dated 04.01.2005. The impugned letter stated that since the Pension Scheme of the public sector Banks was passed on funding by the Banks, unlike the case of Government employees, there was no scope for parity. Yet another reason that had been proffered in its notice was that the pensioners were appropriately compensated over the period of years by the rise in the Consumer Price Index (for Civil Writ Petition No.6233 of 2008 (O&M) -7- short, CPI) from time to time in the dearness allowance component of pay and hence, there was no case for updation of pension.
4. The point that has to be examined is whether the ex- employees, who were governed by the Pension Regulations of 1995, could seek for the application of Reserve Bank of India's regulations or the Central Civil Services Pension Regulations by reference to the residuary clause in the Regulations of the year 1995 and the outcome of the talks indicating certain proposals between the employees and the Management. The petitioners' claim is sourced to Clause 12 of the terms of the settlement between the Bank and the Management on 29.09.1993 and Regulation 56 of the Pension Scheme that had been drawn up subsequent to the talks. Clause 12 reads as under:-
"12. Provisions will be made by a scheme, to be negotiated and settled between the parties of this settlement by 31st December, 1993 for applicability, qualifying service, amounts of pension, payment of pension, commutation of pension, family pension, updating and other general conditions etc. on the lines as are in force in Reserve Bank of India."
This clause was one of the terms that the Bank had agreed before the scheme was actually brought into force. It shows what the parties had contemplated that they would do including updation and other conditions on the lines that were in force in Reserve Bank of India. Civil Writ Petition No.6233 of 2008 (O&M) -8- When the Regulations actually were introduced after further rounds of talks, it only provided through a residuary clause 56 that read as follows:-
"56. Residuary provisions: In case of doubt, in the matter of application of these regulations, regard may be had to the corresponding provisions of Central Civil Services Rules 1972 or Central Civil Services (Commutation of Pension) Rules, 1981 applicable for Central Government employees with such exceptions and modifications as the Bank, with the previous sanction of the Central Government, may from time to time determine."
It can be noticed that the Bank Regulation was not making any incorporation of either the Central Civil Services Rules or the Reserve Bank of India Pension Regulations but merely provided that in the matter of application of these regulations, regard could be had to the provisions with such exceptions and modifications when there existed any doubt in the manner of the application of the regulations. This Regulation 56 could not, therefore, be treated as making possible certain benefits which the Reserve Bank of India's Regulations or the Central Civil Services Pension Regulations provided for.
5. The petitioners point out to the fact that there has been gross prejudice caused by not making periodical updation of pension Civil Writ Petition No.6233 of 2008 (O&M) -9- and would give a tabulation of the disparity of pensions amongst the pensioners retired at one common stage/scales of pay during the tenure of the 5th, 6th , 7th and 8th Bipartite Settlement. To take one instance relating to a person, who was a scale-I officer, who retired after reaching at the top in the pay scale, the settlement provided for a pension of Rs.10,318 if the retirement had taken place after the 8th Bipartite Settlement on 02.06.2005. This was even more than the highest that an officer in scale-V would get as pension if he had retired in the top of his pay scale after the 5th Bipartite Settlement that was made on 29.06.1990. Scale V officers would have got only 10,086 which was even lower than a Scale-1 officer. The tabulation gives several other instances providing for disparity that an officer that retired at a higher post would receive lower pension than the officer, who had retired in a lower post, but after the date of introduction of the Pension Scheme. The revision of pension/family pension of pre-1996 pensioners/family pensioners and the implementation of the 5th Central Pay Commission to pensioners prior to 01.01.1996 did not actually translate the aspirations of the pensioners in the manner contemplated when a memorandum of settlement was entered into through the Indian Banks Association on 29.10.1993.
6. The learned senior counsel appearing on behalf of the petitioners in the above said batch of cases would rely on the judgment of the Hon'ble Supreme Court in V. Kasturi Versus Civil Writ Petition No.6233 of 2008 (O&M) - 10 - Managing Director, State Bank of India, Bombay and another- (1998) 8 Supreme Court Cases 30 that invoked the decision of the Constitutional Bench of the Hon'ble Supreme Court in D.S. Nakara Versus Union of India-(1983) 1 SCC 305, that pensioners constituted a homogeneous class and an amendment that enhanced the pension with a new formula of computation of pension could not place the earlier retirees, who at the time of retirement were eligible for pension and survived till the amendment was brought to be denied the benefit of the amended pension scheme, while applying the benefits only to a new class of pensioners. The Hon'ble Supreme Court was considering an amendment to Rule 22(1)(c) of the State Bank of India Employees' Pension Fund Rules that reduced the minimum period of qualifying service for eligibility of a member for pension fund from 25 years to 20 years made it applicable only to persons, who had retired after a particular date. This was held by the Hon'ble Supreme Court to be discriminatory and the petitioners would rely on the observations of the Hon'ble Supreme Court that provided as follows to support their plea that there existed a discrimination which was bad in law:-
"22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the Civil Writ Petition No.6233 of 2008 (O&M) - 11 - new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara case would cover this category of cases."
7. They would also place reliance on a subsequent decision of the Hon'ble Supreme Court in Union of India and another Versus SPS Vains (Retd.) and others-2008(9) SCC 125, that dealt with the special army instructions. Clause 12(c) admitted of a revision of pay scale w.e.f. 01.01.1996 and excluded officers of equivalent rank in defence services, who had retired prior to the introduction of the revised pay scales. The Court held that the result of the decision was that an officer, who retired in a higher rank prior to 01.01.1996, would get less pension than what was payable to an Civil Writ Petition No.6233 of 2008 (O&M) - 12 - officer of a lower rank due to the benefit of revision of pay scales and held that it would be arbitrary to allow for such a situation to continue. The Hon'ble Supreme Court held that the date of retirement could not form a valid criterion for classification and the division that resulted in differential and discriminatory treatment to equals in the matter of pension, was not based on any rational principle and had no nexus with object sought to be achieved in view of decision in D.S.Nakara's case.
8. These two decisions must be understood in the context of the well known exceptions to Nakara jurisprudence. The fixation of the cut off date for application of certain pension rules could not be stated to be arbitrary and that between the same class of pensioners, the fact that the benefit of increased scale could apply to persons, who had retired after a particular date is not also anathema to law. Different mode of calculation will be impermissible but there could be sufficient constraining factors like the financial outlay, availability of resources etc. for giving certain benefits to be effective from a particular date only, which cannot be available to all pensioners, who had retired before that date. The excepted situations have been brought through several decisions of the Hon'ble Supreme Court and they are relied on by the respondents. All the averments that would answer the petitioners' claim, in my view, would be a Supreme Court's ruling in State of West Bengal Versus West Bengal Government Pensioners Associations-2002(2) Civil Writ Petition No.6233 of 2008 (O&M) - 13 - SCC 179, where the Hon'ble Supreme Court was dealing with West Bengal Services (Revision of Pay and Allowances) Rules of 1990. That was a case where pay scales were revised w.e.f. a particular date and retirees prior to the date sought for a claim to pension equal to those covered under the revision of pay scales. Referring to the application of principle in D.S.Nakara's case, the Court held that the Constitutional Bench in Nakara did not strike down the definition of "emoluments" not did it lay down that the same amount of pension must be paid to all persons retiring from Government service irrespective of their date of retirement. Nakara decision directed parity in the principle of calculation of pension and not parity in the actual quantum of pension payable. If the formula adopted for computation of pension of all pensioners was the same, namely, 50% of the last pay drawn by the incumbent before retirement, the fact that those who had retired prior to the date of revision of pay scales could not avail themselves of the revised pay scales recommended through the 4th Central Pay Commission could not be said to be discriminatory. The case in West Bengal Government Pensioners Associations presented the following facts which are very similar to the case in hand. The pre-1986 retirees were not entitled to recalculation of pension on the basis of revised pay scales. Consequently, the formula for calculation for pre- 01.01.1986 and post-01.01.1986 retirees, namely, 50% of the last pay drawn though remained the same, actual pay scales themselves Civil Writ Petition No.6233 of 2008 (O&M) - 14 - did not get periodically upgraded for computation of pension for persons, who had retired before 01.01.1986. It was in that context that the Hon'ble Supreme Court held that so long as there was homogenous principle of method of calculation of pension, it could not be stretched as far as to seek parity in the actual pension realized also irrespective of the date of retirement and the date when the increased scales of pay were made applicable owing to Pay Commission recommendations. The same view also has been expressed by the Hon'ble Supreme Court in State of Punjab and others Versus Amar Nath Goyal and others-2005(6) SCC 754, that considered the issue of a cut-off date that allowed for an increased ceiling of gratuity of persons, who had retired after a particular date. The Court said that a policy decision to restrict the benefit to persons after a particular cut-off date on the basis of financial implications for the implementation of such a decision ought not to be taken as a discriminatory action. This judgment was applied in a still later judgment in State of Punjab and others Versus Swaranjit Kaur and others in Civil Appeal No.9148 of 2011, decided on 01.11.2011 while rejecting a similar claim for increased retiral benefits for persons, who had retired before a particular cut-off date. In Union of India Versus S.R.Dhingra and others-(2008) 2 Supreme Court Cases 229, the Hon'ble Supreme Court observed, while dealing with the disparity of pension payable to certain railways staff where certain running allowance had been taken into Civil Writ Petition No.6233 of 2008 (O&M) - 15 - account for pension and other benefits for persons, who had retied after 01.01.1986, but the same was not to be taken into account for pre-1986 retirees, in para 25 as follows:-
"25. It is well settled that when two sets of employees of the same rank retire at different points of time, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the same class or homogeneous group. Hence Article 14 has no application. The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut-off date arbitrarily thereby dividing a single homogenous class of pensioners into two groups and subjecting them to different treatment......"
9. If we find that Regulation 56 itself cannot be a source for claiming a right at par with the Reserve Bank of India employees or the Central Civil Services employees, the fact that the persons, who retired on different dates at different scales came by disparity in pension amounts by the fact that the increased pay scales were applicable only to persons, who had retired after a particular date, cannot be said to be discriminatory. The petitioners have no legal Civil Writ Petition No.6233 of 2008 (O&M) - 16 - right to canvass for, where they failed to negotiate and obtain the parity.
10. It is set out through the written statement itself that the decision was communicated in the year 2005, but the writ petitions came to be filed more than 3 years in CWP No.6233 of 2008 and more than 5 years later in the batch of writ petitions in CWP No.12211 of 2010. No explanation has been given in the petitions as to why the petitioners had not immediately approached this Court. I am merely stating this in the passing that the petitioners could not have come to the High Court for enforcement under Article 226 when they could have only pressed for better rights through negotiations in the manner that the settlement talks provided. It would be open for the petitioners to make the demands for parity if they are so advised and use their bargaining skills through their associations and press for the reliefs though the mechanism provided under the Industrial Disputes Act. There existed no vested right now for the petitioners to claim the benefits in the manner sought.
11. All the writ petitions are consequently dismissed, however, subject to the above observations.
(K.KANNAN) JUDGE 16.04.2012 sanjeev