Orissa High Court
Prasanta Kumar Pani vs Managing Director & on 24 September, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.2334 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Prasanta Kumar Pani Aged about 70 years Son of Late Narayan Pani Flat No.A-1/204, Bright Residency Jagannath Nagar Road No.12, GGP Colony Bhubaneswar District: Khordha. ... Petitioner.
-VERSUS-
1. Managing Director & Chief Executive Officer, Indian Bank Head Office: 254-260 Avvai Shanmugam Salai Royapettah Chennai - 600 014.
2. Deputy General Manager Indian Bank, Zonal Office B2-East, Sahid Nagar Bhubaneswar - 751 007. ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Saswat Das and Abhishek Mohanty, Advocates W.P.(C) No.2334 of 2021 Page 1 of 44 For the Opposite parties : M/s. Sitanshu Kumar Dey, Rita Dey, N. Pattanaik, Bibaswan Das and Anquib Ansari, Advocates R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 12.08.2024 :: Date of Judgment : 24.09.2024 J UDGMENT Challenging an order dated 28.09.2020 passed by the Managing Director-Chief Executive Officer, Indian Bank, wherein and whereby the prayer of the petitioner to include him as member of Pension Fund in terms of Allahabad Bank (Employees') Pension Regulations, 1995 has been declined purportedly in compliance of the order dated 04.03.2020 passed by this Court in W.P.(C) No.231 of 2018 with a direction to consider his grievance keeping in view of the new Scheme being introduced by the said Bank on 20.06.2018, this writ petition has been filed craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with the following prayer(s):
"It is, therefore, humbly prayed that this Hon‟ble Court may graciously be pleased to:
(i) Admit the writ petition;W.P.(C) No.2334 of 2021 Page 2 of 44
(ii) Call for the records,
(iii) Issue Rule Nisi calling upon the opposite parties to show cause as to why the impugned order dated 28.09.2020 issued by the opposite party no-1(Bank) under Annexure-9 shall not be quashed;
(iv) If the opposite parties do not show cause or show insufficient cause, issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders and direction/directions thereby quashing the impugned order dated 28.09.2020 passed by the opposite party No.1 (Bank) under Annexure-9 and declare the same is illegal, arbitrary and non-est in the eye of law.
(v) Issue a writ in the nature of Mandamus or any other appropriate writ/writs, order/orders, direction/ directions directing the opposite parties particularly opposite party No.1 (Bank) to allow the petitioner to join the pension scheme in terms of Allahabad Bank (Employees‟) Pension Regulations, 1995 and the Instructions Circular No.11143/PA/2010-11/27 dated 15.09.2010 under Annexure-3 with all pensionary benefits as is admissible to the post of Senior Manager of the erstwhile Allahabad Bank and keeping in view the last pay drawn by the petitioner in consequence of his superannuation as a regular employee of the bank with effect from 31.08.2010 with 12% interest within a reasonable time to be stipulated by this Hon‟ble Court.
(vi) Pass such other order/orders, direction/directions as this Hon‟ble Court may deem fit and proper.
W.P.(C) No.2334 of 2021 Page 3 of 44And for this act of kindness, the petitioner as in duty bound shall ever pray."
Facts:
2. Facts, as adumbrated by the writ petitioner, reveal that having joined in service as an Agricultural Field Officer on 10.01.1978 in erstwhile Allahabad Bank (Presently known as Indian Bank/Allahabad Bank after amalgamation) at Regional Office, Kolkata, the petitioner was promoted to the rank of Officer Scale-II on 19.03.1986 and posted as Deputy Manager (Advance) at Cuttack Main Branch, Odisha on 14.07.1986.
2.1. He performed his duty in different capacities being promoted and transferred, but while working in the post of Senior Manager (Advance) in the Regional Office, Mumbai, he was issued with a charge sheet on 17.03.1997 containing eleven charges with respect to transactions related to the period of posting as Senior Manager at Parel Branch, Mumbai from 12.10.1991 to 02.07.1995.
2.2. The penalty of "removal from service" vide order dated 19.08.1999 imposed by the Disciplinary Authority got affirmed by the Appellate Authority vide order dated 19.12.2000 with the rejection of the appeal of the petitioner preferred on 04.09.1999 and the Reviewing W.P.(C) No.2334 of 2021 Page 4 of 44 Authority by order 22.02.2002 declined to interfere in the review filed on 15.01.2001.
2.3. Assailing the said order(s) of punishment as confirmed by Authorities of the Bank, writ petition being W.P.(C) No.5845 of 2003 was preferred with prayers to quash the charge sheet as well as the punishment of removal from service and direct the opposite parties to extend all consequential service benefits, which came to be disposed of by a Single Judge vide judgment dated 04.08.2015, relevant portion of which reads as follows:
"***
19. Applying the above mentioned provisions and law laid down by the Apex Court to the present context, it appears that the Enquiry Officer has acted in gross violation of 1976 Regulation by not adhering to the principles of natural justice as required under law, inasmuch as, there is inordinate delay in conducting the enquiry, in consequence thereof the proceeding is vitiated. Accordingly, issue nos.(ii) and
(iii) are answered.
20. This Court though was inclined to remit the matter back to the Enquiry Officer for re-adjudication, but it has been brought to notice of the Court that during pendency of the writ application, the petitioner has already attained the age of superannuation and after removal of service, he is residing at his permanent address at Bhubaneswar within territorial jurisdiction of this Court. Therefore, this Court is of the considered view that the entire W.P.(C) No.2334 of 2021 Page 5 of 44 proceeding is vitiated due to non-compliance of Principles of natural justice and Rules governing the field. Accordingly, the order of punishment imposed by the Disciplinary Authority in Annexure-4 and confirmation thereof by Appellate Authority in Annexure-5 and re-confirmation made by Reviewing Authority in Annexure-6 are hereby quashed and opposite parties are directed to extend all consequential service benefits as due and admissible to the petitioner in accordance with law forthwith.
21. Accordingly, the writ petition is allowed."
2.4. The fact of no action taken by the opposite parties was brought to the notice of this Court by way of contempt petition, being CONTC No.1833 of 2015, which was disposed of on 23.12.2015 with further direction to the opposite parties to comply with the terms of the judgment dated 04.08.2015 within stipulated period.
2.5. Instead of complying, the opposite parties carried the matter further in intra-appeal under the Letters Patent constituting the High Court of Judicature at Patna before the Division Bench of this Court which gave rise to registration of W.A. No.543 of 2015 challenging the judgment dated 04.08.2015. This Court vide judgment dated 17.10.2016, while confirming the aforesaid judgment of the learned Single Judge, rendered judgment with following observation:
W.P.(C) No.2334 of 2021 Page 6 of 44"***
10. In view of the discussion made above, there can be no second opinion that the Enquiry Officer had acted in a manner prejudicial to the respondent. It evinces from the record that the Enquiry Officer had proceeded with the enquiry only to punish the respondent. At all stages, respondent was subjected to harassment and prejudice. The respondent had no contribution for the delay caused in initiation of the disciplinary proceeding, manner of submission of the enquiry report as well as the disposal of the appeal. The respondent at present has crossed the age of superannuation. As such, direction for conducting a fresh enquiry would amount to further harassment of the respondent. Further, no fruitful purpose would be served in issuing such a direction for a de novo enquiry for the discussion made above.
Thus, we are at one with the learned Single Judge. From the analysis made above, we find no merit in the writ appeal, which is accordingly dismissed."
2.6. Dissatisfied thereby, Petition for Special Leave to Appeal (Civil) registered as SLP(C) No.35985 of 2016 being moved before the Hon'ble Supreme Court of India, the following order was passed on 16.12.2016:
"Heard learned counsel for the petitioner.
We do not find any legal and valid ground to entertain this special leave petition.
The special leave petition is, accordingly, dismissed.
However, the question of law is kept open."W.P.(C) No.2334 of 2021 Page 7 of 44
2.7. Consequent upon finality being attained with respect to order passed in the disciplinary proceeding, a representation dated 26.12.2016 was submitted by the petitioner for release of consequential service benefits, responding to which the opposite parties released arrear salary, gratuity and amount of Contributory Provident Fund.
2.8. As the petitioner could not avail opportunity of exercising option under Instruction Circular No.11143/PA/2010-11/27, dated 15.09.2010 during the pendency of his dispute challenging punishment of removal from service, a representation was made on 10.02.2017 with a request to the opposite parties to extend such benefits as per entitlement under the Allahabad Bank (Employees') Pension Regulations, 1995 ("Pension Regulations, 1995", for brevity), relevant portion of said Circular is quoted hereunder:
"***
1. Eligibility criteria for exercising another Option as envisaged in the Memorandum of Settlement/Joint Note dated 27th April, 2010;
1.1. All workmen employees and officers (hereinafter referred to as „employees‟ for both the categories) who are/were in the service of the Bank as on the date of the Settlement/Joint Note, i.e., 27.04.2010, and exercise option to join the Pension Scheme in terms of the Settlement/Joint Note will contribute W.P.(C) No.2334 of 2021 Page 8 of 44 from their arrears on account of wage revision in terms of the Settlement/Joint Note between the parties, an amount of Rs.878 crores and Rs.922 crores respectively towards their share in the amount of Rs.1800 crores offered by UFBU towards 30% of the estimated funding gap of Rs.6000 crores (for the Banking Industry as a whole). The said amount is worked out @ 2.8 times of the revised pay for the month of November 2007 for individual employees.
1.2. Another option for joining the existing Pension Scheme (under ABEPR-1995) shall be extended to those employees who:
1.2.1.(a) were in the service of the Bank prior to 29 th September, 1995 and continue in the service of the Bank on the date of the Settlement/Joint Note;
(b) exercise an option in writing within 60 days from the date of offer, to become a member of the Pension Fund and
(c) authorise the Trust of the Provident Fund of the Bank to transfer the entire contribution of the Bank along with interest accrued thereon to the credit of the Pension Fund.
*** 3.12. Within 30 days from expiry of option period (i.e., 20.09.2010 to 18.11.2010) the optees, except the existing employees who are in the service of the Bank on the date of option, shall refund the entire amount of the Bank‟s contribution to the Provident Fund and interest accrued thereon received on W.P.(C) No.2334 of 2021 Page 9 of 44 retirement or death, as the case may be. Such refund shall be made together with 56% of the said amount of Bank‟s contribution to Provident Fund and interest thereon, towards optee‟s share of „funding gap‟ explained hereinabove, except where an amount equivalent to 2.8 times of revised „pay‟ of the ex-employer for November 2007 has been withheld from his/her arrear salary on account of wage revision. Regarding setting off the communication value against the refund/contribution and modalities of remittance, separate instructions will follow."
2.9. As he was not in service at the relevant period on account of order passed by the Disciplinary Authority, challenge against which was sub judice before the Court, he was deprived of exercising the option in terms of aforesaid Instruction Circular dated 15.09.2010. Reference has also been made to another Instruction Circular No.15748/PA/2018-19/31, dated 20.06.2018 issued inviting "Option for Pension/Family Pension under Allahabad Bank (Employees') Pension Regulations, 1995 to the Officers/Employees, Compulsorily Retired by the Bank" to contend that even in the year 2018 such Pension Regulations, 1995 was in vogue and could be extended to certain class of employees, who were made to retire compulsorily. Since the opposite parties failed to extend the benefit, the petitioner again came up before this Court by way of filing writ petition, registered as W.P.(C) No.231 of 2018, W.P.(C) No.2334 of 2021 Page 10 of 44 which came to be disposed of by order dated 04.03.2020 with the following observation:
"Heard learned counsel for the petitioner and learned counsel for the opposite party nos.1 & 2.
Taking into account the submission of learned counsel for the petitioner that the petitioner is relying on the new scheme being introduced by the Allahabad Bank filed by way of additional affidavit, this Court finds, the claim of the petitioner requires to be considered by the Chairman and Managing Director, Allahabad Bank-opposite party no.1. In such view of the matter, this Court remits the matter to the opposite party No.1 to consider the case of the petitioner and take a lawful decision in the matter keeping in view the new scheme being introduced by the Bank on 20.06.2018.
The entire exercise shall be completed giving opportunity of hearing to the petitioner, within a period of two months from the date of communication of a certified copy of this order by the petitioner.
Issue urgent certified copy on proper application."
2.10. In purported compliance of the order dated 04.03.2020 passed by this Court in W.P.(C) No.231 of 2018, the Managing Director-Chief Executive Officer, Allahabad Bank-opposite party No.1 while rejecting the claim of the petitioner made following observation in his order dated 28.09.2020:
"*** W.P.(C) No.2334 of 2021 Page 11 of 44 It is seen that Sri P.K. Pani was treated to have been superannuated on 31.08.2010 as the punishment order was quashed in W.P.(C) No.5845 of 2003 and the consequential benefits were settled. After claiming all benefits like salary, PL encashment, Provident Fund, Gratuity for the entire period. Sri P.K. Pani has requested that the benefit of Pension also may be extended to him. He has further submitted that Compulsorily Retired Employees were given the option to join the Pension Scheme in 2018.
The Scheme introduced on 20.06.2018 submitted by Sri P.K. Pani before the Hon‟ble High Court was for extending the Pension‟s Option to Compulsorily retired employees who had applied to join the Pension Scheme when it was extended in 2010 but were not permitted by Banks for the reason that they were imposed with the punishment of Compulsorily Retirement, is not applicable in the case of Sri P.K. Pani who was treated as having superannuated on 31.08.2010 and had received consequential benefits.
It is pertinent to note here that, many Provident Fund optees who were in the service of the Bank in 2010 have not joined the Pension Scheme and have continued to remain as PF optees. Some of these employees have on a later date, citing various reasons, requested the Bank to be allowed to join the Pension Scheme. However, the same could not be permitted as the Scheme was opened and closed with a stipulated timeframe and the eligibility was subject to fulfilment of terms & conditions specified therein, by the employee.
The Bank has paid all relevant benefits including backwages to Sri P.K. Pani as per Court order, treating him to have superannuated. The Bank however cannot extend the benefit of the Scheme on a presumption that W.P.(C) No.2334 of 2021 Page 12 of 44 had the retiree been in the service of the Bank on the relevant date he might have opted to join the Pension Scheme.
In the light of the above, I find that the request of Sri P.K. Pani to be included in the Pension Scheme and for grant of pension cannot be considered favourably and is hereby declined."
2.11. Assailed in the instant writ petition is said decision of the opposite party No.1.
Hearing:
3. On being noticed, the opposite parties have filed counter affidavit and the petitioner has also filed rejoinder affidavit. Pleadings, being completed and exchanged amongst the counsel for respective parties, on consent of counsel for the parties, this matter is taken up for final hearing at the stage of admission.
3.1. Accordingly, heard Sri Saswat Das, learned Advocate for the petitioner and Sri Sitanshu Kumar Dey, learned Advocate for the opposite parties and the matter stood reserved for preparation and pronouncement of Judgment.
Rival contentions and submissions:
4. Sri Saswat Das, learned counsel appearing for the petitioner submitted that having worked in and for the opposite party-Bank since 10.01.1978, the petitioner W.P.(C) No.2334 of 2021 Page 13 of 44 was not in service by virtue of an order dated 19.08.1999 imposing penalty of removal from service by the Departmental Authority. It is contended that had he not been so removed, he would have continued till 31.08.2010, i.e., the date of attaining the age of superannuation. Therefore, referring to Circular dated 15.09.2010, he submitted that though the petitioner fulfils the conditions stipulated in said Circular, but for the period for exercise of option specified in the said Circular, he ought to have been afforded opportunity to exercise such option condoning such period in consideration of the fact that he was not in service during the period so specified. It is the opposite parties who proceeded further in the matter after the learned Single Judge quashed the punishment of removal from service, but they remained unsuccessful before the Division Bench of this Court as well as the Hon'ble Supreme Court of India. The dispute came to an end with the dismissal of special leave to appeal preferred by the opposite parties on 16.12.2016.
4.1. It is submitted by the learned counsel for the petitioner that though there is no interdiction in Regulation 14 of the Regulations, 1995, with respect to period within which the option for availing pensionary benefit under such Regulations, the stipulation as to such period in the Circular dated 15.09.2010 being contrary to said W.P.(C) No.2334 of 2021 Page 14 of 44 provision, the terms of said Circular is required to be treated as directory. Ignoring such cut-off period restriction, the petitioner should have been granted opportunity to exercise the option as specified under the Pension Regulations read with the Circular dated 15.09.2010.
5. At this stage Sri Sitansu Kumar Dey, learned Advocate for the opposite parties laid objection to the contention of the learned counsel. He would submit that the Instruction Circular dated 15.09.2010, being binding on the opposite parties, no condition laid therein can be ignored or relaxed at the option of the authority concerned.
5.1. In this regard, relying on the judgment dated 20.11.2019 of this Court rendered by a learned Single Judge in W.P.(C) No.7326 of 2012 (Dhirendra Kumar Behera Vrs. Indian Bank), learned counsel for the opposite parties- Bank submitted that in similar circumstances as that of the present case, the cut-off date stipulated for exercise of option from the date of offer to become member of the Pension Fund could not be relaxed.
Analysis and discussions:
6. Undisputed facts are culled out as follows:
W.P.(C) No.2334 of 2021 Page 15 of 44a. The petitioner joined in service on 10.01.1978 and faced disciplinary proceeding being initiated on 17.03.1997 with respect to alleged transactions during 12.10.1991 to 02.07.1995.
b. The Disciplinary Authority imposed penalty of "removal from service" vide order dated 19.08.1999; which being challenged in appeal, the Appellate Authority confirmed such penalty vide order dated 19.12.2000. The review against such order(s) also got dismissed on 22.02.2002.
c. Questioning propriety of such punishment as upheld by the Authorities of the Bank, writ petition under Article 226/227 was preferred leading to registration of W.P.(C) No.5845 of 2003 in this Court, wherein not only the order imposing punishment by the Disciplinary Authority as confirmed by the Appellate Authority as well as the Reviewing Authority was quashed but also the Authorities were directed to extend all consequential service benefit(s). Such view of the learned Single Judge also got confirmed vide judgment dated 17.10.2016 of the Division Bench in the intra-Court appeal, being W.A. No.543 of 2015, preferred by the opposite parties. Further proceeding in SLP(C) No.35985 of 2016 before the Hon'ble Supreme Court of India by the opposite W.P.(C) No.2334 of 2021 Page 16 of 44 parties-Bank remained unsuccessful as said SLP got dismissed on .16.12.2016.
7. The pertinent question, therefore, emanates from the above factual matrix is that whether the petitioner is entitled to the benefit conferred under the Allahabad Bank (Employees') Pension Regulations, 1995 read with Instruction Circular dated 15.09.2010.
8. It was vehemently argued by the learned counsel that the petitioner had the requisite qualifying service for availing benefit under the Pension Regulations vide Allahabad Bank Head Office Notification dated 29.09.1995, formulated in exercise of powers conferred by clause (f) of sub-section (2) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, Regulation 14 ibid. stands thus:
"14. Qualifying Service.--
Subject to the other conditions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension."
8.1. Having joined in service on 10.01.1978, though the petitioner was handed over the penalty of removal from service on 19.08.1999, he had completed ten years of service in the Bank by the time of his retirement on W.P.(C) No.2334 of 2021 Page 17 of 44 31.08.2010 (as he would have continued in service without the punishment in Disciplinary Proceeding). It is noteworthy that since the punishment was nullified by this Court, it is deemed that the petitioner got retired on 31.08.2010 on attaining the age of superannuation, which fact has been admitted by the opposite parties in counter.
8.2. As per eligibility criteria specified in paragraph 1.2.1(a) of the Instruction Circular dated 15.09.2010, it is admitted by the opposite parties in the counter affidavit that the petitioner has been in service prior to 29.09.1995 and continued as on the date of Settlement/Joint Note, i.e., 27.04.2010 as he is allowed to retire on 31.08.2010 after finality in the dispute regarding removal from service has been attained by dismissal of special leave to appeal by the Hon'ble Supreme Court of India.
8.3. Sri Saswat Das, learned Advocate pointed out the following factual depiction made by the opposite parties in the counter affidavit:
"4. That so far as contention made in paragraph 16(a) to
(d) that since after dismissal of SLP the opposite parties treated the petitioner as in service and allowed him to superannuate as a regular employee with effect from 31.08.2010 on attaining the age of superannuation there is no doubt the service of the petitioner is covered within sub-clause (a) sub-clause W.P.(C) No.2334 of 2021 Page 18 of 44 1.2.1 of clause 1.2 of the Circular dated 15.09.2010 and the petitioner was treated to be a regular employee who was in service of the bank prior to 29.09.1995 and continued in service of the bank on the date of settlement/joint note, i.e., 27.04.2010 and under no circumstances the petitioner can be deprived from availing the opportunity to join the Pension Scheme in terms of Circular dated 15.09.2010 and further that the petitioner had to fight the litigation for sixteen years from the date of termination till the order of dismissal was passed by the Hon‟ble Apex Court in the year 2016 and it is not a fact that the Petitioner knowingly did not exercise option in terms of the circular and subsequently requested the bank to avail the Pension Scheme rather it is a fact that the circumstances with effect from the date of removal till the final order passed by the Hon‟ble Apex Court were not within the control of the Petitioner and the Petitioner was compelled to fight litigation in several court of law to protect his interest and integrity therefore the petitioner under no circumstances can be equated with other employees who did not avail the Pension Scheme and requested the bank at a later date to consider their case and that had there been no departmental proceeding the Petitioner could have availed the Scheme and therefore the case of the petitioner is to be treated as special case and further that the opposite party No.1 was under impression that the petitioner wants to avail pension under 2018 Scheme rejected his claim and that the opposite party No.1 failed to appreciate the amendment brought to different clauses of Allahabad Bank (Employees‟) Regulations, 1995. In terms of the amendment there is no doubt the W.P.(C) No.2334 of 2021 Page 19 of 44 employees of the bank who were in service of the bank prior to 29.09.1995 and continued in the service of the bank as on 27.04.2010 have been brought under the purview of Pension Scheme, are all self-serving contentions for the reason that as per sub-clause 1.1 of Clause 1 of Annexure-10 of the writ petition the circular dated 20.06.2018, pension option to be extended to those officers/employees who were in the service of the Bank before 29the September, 1995 and compulsorily retired on by the bank between 29.09.1995 to 27.04.2010 did not opt for pension under the said pension scheme of 1995 shall be eligible for pension under ABEPR 1995 *** and as per sub-clause 2.3 of clause 2 Officers/ employees who were retired from Bank‟s service other than compulsorily retirement *** shall not be eligible. Thus it is crystal clear that annexure 10 had no applicable to the case of the Petitioner. It is further submitted that the amendment referred to in Paragraph 12(d) at the face of it indicates that the amendment is subject to the proviso that such employees meets the requirement and comply with the condition laid down in the settlement. It is respectfully submitted that annexure-3 to the writ petition i.e. the Circular dated 15.09.2010 specifically provides under the heading of Eligibility Criteria for exercising another Option as envisaged in the Memorandum of Settlement/Joint Notes dated 27.04.2010 under sub-clause 1.2.1 (a) & (b) of clause that "those employees were in the service of the bank prior to September, 1995 and continue in the service of the bank on the date of settlement/joint note exercise an option in writing within 60 days from the date of offer to become a member of the pension fund ***". Thus the W.P.(C) No.2334 of 2021 Page 20 of 44 applicable of the said circular being subject to exercise of option has no application to the case of the Petitioner who initially had not chosen to join the Pension option when the Pension scheme was introduced in 1995 and after claiming all benefits like salary, PL encashment, Provident Fund, gratuity for the entire period has requested that the benefit of Pension also may be extended to him on the ground that had the retiree been in service of the bank on the relevant date he might have opted to join the Pension Scheme is untenable under law and hence there is no illegality in the decision arrived at in annexure-9 providing reasons for such finding."
8.4. As it appeared from the above assertion, only objection that is raised by the opposite parties is that the petitioner having not exercised the option within 60 days from the date of offer to become a member of the Pension Fund, he is disentitled from availing the benefit of Pension Regulations read with Instruction Circular dated 15.09.2010. Such an objection appears to be tainted with non-application of mind and none can be supposed to perform which is impossible due to the prevailing circumstances beyond control at the relevant point of time. From 1999, when he was removed from service, to 2016, when the special leave to appeal got dismissed by the Hon'ble Supreme Court of India, the petitioner had no control over the events and he was outside the Bank service. Therefore, it is obvious that he could not have W.P.(C) No.2334 of 2021 Page 21 of 44 the occasion to exercise his option within 60 days from the date of Settlement/Joint Note.
8.5. In order to draw analogy, Sri Saswat Das, learned Advocate brought on record the fact that by Instruction Circular bearing No.15748-PA/2018-19/31, dated 20.06.2018, period of "sixty days from the date of Circular" has been granted to the employees, who got "compulsorily retired by the Bank" to exercise option to become a member of the Pension Fund. At this juncture referring to order dated 04.03.2020 passed by this Court in W.P.(C) No.231 of 2018, it has been submitted by learned counsel that the opposite party No.1 was directed "to consider the case of the petitioner and take a lawful decision in the matter keeping in view the new scheme being introduced by the Bank on 20.06.2018". It may be pertinent to notice that the opposite party No.1 has ignored to obey the true purport of direction contained in the judgment dated 04.08.2015 rendered in W.P.(C) No.5845 of 2003, wherein this Court inter alia "directed to extend all consequential service benefit as due and admissible to the petitioner in accordance with law forthwith".
8.6. It is manifest from the statement made in the counter affidavit by the Bank (as extracted in foregoing paragraph) read with the impugned order dated 28.09.2020 passed by the opposite party No.1 that the W.P.(C) No.2334 of 2021 Page 22 of 44 Managing Director and Chief Executive Officer misdirected himself while rejecting the relief claimed by the petitioner.
8.7. Sri Saswat Das, learned Advocate in order to countenance his submission that there was no scope to reject the claim of the petitioner, placed on record the fact that the Government of India in Ministry of Finance (Department of Financial Services) vide Letter No.e-F No.4/8/2023-IR, dated 16.03.2024 extended the option of pension to the resignees who were otherwise eligible to join the Pension Scheme under the Bank Employees' Pension Regulations, 1995 (Annexure-12).
8.8. This Court finds force in the submission that the Bank has been extending the benefit under the Pension Regulations in the year 2018 and 2024 to the compulsory retirees and the resignees respectively. Therefore, there is no scope to deny similar benefit to the employees like the petitioner who was before the Appellate Authority, this Court and the Hon'ble Supreme Court of India right since 1999 till 2016, and could not exercise option to become member of the Pension Fund during 2010 due to circumstances beyond his control. After finalisation of his matter, when the petitioner was treated to have been in service seamlessly till he attained the age of superannuation on 31.08.2010, he should W.P.(C) No.2334 of 2021 Page 23 of 44 have been afforded opportunity to exercise the option as contained in the Instruction Circular dated 15.09.2010.
8.9. Thus, denying to reap the benefit of Instruction Circular dated 15.09.2010 on the ground that the petitioner did not exercise option within stipulated period contained therein to become member of the Pension Fund in terms of Pension Regulations, 1995 is illogical and irrational inasmuch as the circumstances which fell upon the petitioner during 1999 to 2016 did not allow him to avail the benefit. At this stage it may be apt to have regard to Popatrao Vyankatrao Patil Vrs. State of Maharashtra, (2020) 3 SCR 789:
"8. In Madras Port Trust Vrs. Hymanshu International, (1979) 4 SCC 176 this Court held: (SCC p. 177, para
2) „2. *** It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the W.P.(C) No.2334 of 2021 Page 24 of 44 purpose of resisting such a claim has become unavailable.‟
9. In a three-Judge Bench judgment of Bhag Singh Vrs.
UT of Chandigarh, (1985) 3 SCC 737 this Court held:
(SCC p. 741, para 3) „3. *** The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.‟ ***"
8.10. It may, in the present context, be fruitful to discuss the maxim Impotentia Excusat Legem (Impossibility excuses the law and Inability excuses the non-observance of the law) or Lex Non-Cogit Ad Impossiblia (the law shall not expect the performance of the impossible) 8.11. In Industrial Finance Corporation of India Ltd. Vrs Cannanore Spinning & Weaving Mills Ltd., (2002) 5 SCC 54 it has been observed that where law creates a duty or charge and the party is disabled to perform it, without any default in him and has no remedy over, there the law will in general excuse him; and though the impossibility of performance is, in general, no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one W.P.(C) No.2334 of 2021 Page 25 of 44 implied by law, the impossibility of performance is a good excuse.
8.12. In Re: Special Reference No.1 of 2002, Ref. by President, AIR 2003 SC 87 = (2002) 8 SCC 237, the use of legal maxim has been enunciated in the following terms:
"The impossibility of holding the election is not a factor against the Election Commission. The maxim of law „impotentia excusat legem‟ is intimately connected with another maxim of „law lex non cogit ad impossibilia‟. „Impotentia excusat legem‟ is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom‟s Legal Maxims, 10th Edn., at pp. 1962-63 and Craies on Statute Law, 6th Edn., p. 268.) These aspects were highlighted by this Court in Special Reference No. 1 of 1974, (1974) 2 SCC 33 = (1975) 1 SCR 504. Situations may be created by interested persons to see that elections do not take place and the caretaker Government W.P.(C) No.2334 of 2021 Page 26 of 44 continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded."
8.13. The Hon'ble Supreme Court of India in HUDA Vrs.
Babeswar Kanhar (Dr.), (2005) 1 SCC 191 = AIR 2005 SC 1491 held, "What is stipulated in clause 4 of the letter dated 30.10.2001 is a communication regarding refusal to accept the allotment. This was done on 28.11.2001. Respondent 1 cannot be put to loss for the closure of the office of HUDA on 01.12.2001 and 02.12.2001 and the postal holiday on 30.11.2001. In fact he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be pressed into service. Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity (see Sambasiva Chari Vrs. Ramasami Reddi, (1898) 8 MLJ 265 = ILR 22 Mad 179). The underlying object of the principle is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility. (See Hossein Ally Vrs. Donzelle, ILR (1880) 5 Cal 906 = 6 CLR 239) Every consideration of justice and expediency would require that the accepted principle W.P.(C) No.2334 of 2021 Page 27 of 44 which underlies Section 10 of the General Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae neminem gravabit (the act of court shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the forums below. However, the rate of interest fixed appears to be slightly on the higher side and is reduced to 9% to be paid with effect from 03.12.2001 i.e. the date on which the letter was received by HUDA."
8.14. A 5-judge Constitution Bench of the Hon'ble Supreme Court of India in the case of Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 laid down that, "29. The contention of the appellants is that when an offence is punishable with imprisonment and fine, the Court is not left with any discretion to impose any one of them and consequently the company being a juristic person cannot be prosecuted for the offence for which custodial sentence is the mandatory punishment. If the custodial sentence is the only punishment prescribed for the offence, this plea is acceptable, but when the custodial sentence and fine are the prescribed mode of punishment, the court can impose the sentence of fine on a company which is found guilty as the sentence of imprisonment is impossible to be carried out. It is an acceptable legal maxim that law does not compel a man to do that which cannot possibly be performed (impotentia excusat legem). This principle can be found in Bennion‟s Statutory W.P.(C) No.2334 of 2021 Page 28 of 44 Interpretation, 4th Edn. at p. 969. „All civilized systems of law import the principle that lex non-cogit ad impossibilia. ***‟ As Patterson, J. said „the law compels no impossibility‟. Bennion discussing about legal impossibility at p. 970 states that: „If an enactment requires what is legally impossible it will be presumed that Parliament intended it to be modified so as to remove the impossibility element.‟ This Court applied the doctrine of impossibility of performance (lex non-cogit ad impossibilia) in numerous cases (State of Rajasthan Vrs. Shamsher Singh, 1985 Supp SCC 416 and Special Reference No. 1 of 2002, In re, (2002) 8 SCC 237).
***
45. What follows from this is that for difficulty in sentencing we need not let the offenders escape prosecution. While laying down criminal liability the statute does not make any distinction between a natural person and corporations. The Criminal Procedure Code dealing with trial of offences contains no provision for exemption of corporations from prosecution if there is difficulty in sentencing them as per statute. How can we allow corporations to escape liability on this specious plea? In such a situation the Latin maxim „lex non-cogit ad impossibilia‟ is attracted which means: law does not compel a man to do that which he cannot possibly perform. Broom‟s Legal Maxims contains several illustrative cases in support of the maxim. This maxim has been referred with approval by this Court in State of Rajasthan Vrs. Shamsher Singh, (1985) Supp SCC 416."
W.P.(C) No.2334 of 2021 Page 29 of 448.15. Thus discussed the legal maxim embodying the doctrine of impossibility, it can be safely stated that as the petitioner having pursuing his challenge against punishment of "removal from service" since 1999 till 2016, he could not have been asked to comply with the terms of benevolent Instruction Circular dated 15.09.2010 which has come to exist in consonance with Pension Regulations, 1995. However, the petitioner could not have been denied his legitimate entitlement by exercising option to become member of the Pension Fund by dint of such stipulation as to period in terms of paragraph 1.2.1(b) of the Instruction Circular, as the petitioner was not in service at the relevant period, he could not have been compelled to do the impossible. It is but natural that where the said Circular created a duty to comply within time-frame, and the petitioner was disabled to perform it during 1999 till 2016, without any fault on his part and had no control over it, the law will in general excuse him. In other words, it appears from the narration of circumstances that the performance of the formalities prescribed by the aforesaid Circular has been rendered impossible since 19.08.1999, i.e., the date of order of punishment of removal from service inflicted on the petitioner by the Disciplinary Authority till 16.12.2016, i.e., the date of dismissal of special leave to appeal filed at the behest of the opposite parties before the Hon'ble Supreme Court of India.
W.P.(C) No.2334 of 2021 Page 30 of 449. The Hon'ble Supreme Court of India has clarified the position of the employee when the order of termination from service is set aside in Anantdeep Singh Vrs. The High Court of Punjab and Haryana, 2024 INSC 673, wherein it has been observed as follows:
"21. Once the termination order is set aside and judgment of the High Court dismissing the writ petition challenging the said termination order has also been set aside, the natural consequence is that the employee should be taken back in service and thereafter proceeded with as per the directions. Once the termination order is set aside then the employee is deemed to be in service. We find no justification in the inaction of the High Court and also the State in not taking back the appellant into service after the order dated 20.04.2022. No decision was taken either by the High Court or by the State of taking back the appellant into service and no decision was made regarding the back wages from the date the termination order had been passed till the date of reinstatement which should be the date of the judgment of this Court. In any case, the appellant was entitled to salary from the date of judgment dated 20.04.2022 till fresh termination order was passed on 02.04.2024. The appellant would thus be entitled to full salary for the above period to be calculated with all benefits admissible treating the appellant to be in continuous service.
22. Insofar as the period from 18.12.2009 i.e., after the termination order of 17.12.2009 was passed till 19.04.2022 the date prior to the judgment and order of this Court, we are of the view that ends of justice W.P.(C) No.2334 of 2021 Page 31 of 44 would be served by directing that the appellant would be entitled to 50 per cent. of the back wages treating him to be in service continuously. Such back wages to be calculated with all benefits admissible under law to the appellant as if he was in service."
9.1. In Allahabad Bank Vrs. Krishna Narayan Tewari, (2017) 2 SCC 308 after the High Court finds enquiry to be deficient and interferes in exercise of judicial review, the next course that would ensue has been discussed by the Hon'ble Supreme Court in the following manner:
"8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.
***
10. The next question is whether the respondent would be entitled to claim arrears of salary as part of W.P.(C) No.2334 of 2021 Page 32 of 44 service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court‟s direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period between the date of dismissal and the date of superannuation would not also be justified."
9.2. Since the quashment of punishment awarded by the Disciplinary Authority attained finality, there is no gainsaying for the opposite parties to treat the petitioner in service since the date of order, i.e., 19.08.1999. In view of Anantdeep Singh (supra) the petitioner is relegated to the position as on 19.08.1999, and therefore, the petitioner is entitled to avail all the benefits conferred on the employees, who were continuing, treating him as if he were not removed from service.
10. Placing reliance on the judgment dated 20.11.2019 passed by this Court in W.P.(C) No.7326 of 2012 (Dhirendra Kumar Behera vs. Indian Bank represented through its Chairman & Managing Director, Chennai and W.P.(C) No.2334 of 2021 Page 33 of 44 others), Sri Sitansu Kumar Dey, learned Advocate for the opposite parties submitted that since cut-off date was fixed in paragraph 1.2.1 of the Instruction Circular dated 15.09.2010, the petitioner cannot be grant benefit as claimed for.
10.1. Whereas in the present case though Regulation 14 of the Pension Regulations, 1995 has not specified any time- frame, yet considering the Instruction Circular dated 15.09.2010 having stipulated period within which the option was to be exercised to come to the fold of member of Pension Fund, it can be ascertained that due to disability as adumbrated in the foregoing paragraphs, the petitioner could not have been asked to perform the impossibility. This apart, the benefit under the Pension Regulations did not get closed in 2010; rather it is demonstrated by the petitioner citing Circular dated 20.06.2018 and Circular dated 16.03.2024 that for certain categories of employees such benefits has been extended.
10.2. The decision in Dhirendra Kumar Behera (supra) being founded on different set of factual matrix, the ratio laid in said decision cannot be applied to the present case. The relevant portions of distinctions on facts are extracted herein below:
W.P.(C) No.2334 of 2021 Page 34 of 44"2. *** The petitioner claims that based on a settlement made between the Indian Banks Association with the Workmen Union, Bank published an extended scheme favouring the employees who were in service of the Bank prior to 29.09.1995 and even continue in service of the Bank on the date of settlement providing them another option to join the pension scheme of Indian Bank (Employees Pension) Regulations, 1995 within sixty days, i.e., from 23.8.2010 to 21.10.2010. It is the further case of the petitioner that the petitioner being aware of the extension of the benefit to the retired employees from his retired friends submitted his option to join the pension scheme within the stipulated time, i.e. 7.10.2010. It is also pleaded that on the date of submission of option, the petitioner was having a sum of Rs.5,70,286/- available in his pension account and the petitioner requested the AGM to intimate him the balance amount, if any, to be deposited by him. This apart, the petitioner also claimed to have a fixed deposit of Rs.2.00 lakh in the Kharavela Nagar Branch of the Indian Bank. Besides a sum of Rs.1,10,352.12 was with the Bank as deducted from the petitioner towards P.F. deposit. ***
5. Considering the rival contention of the parties, this Court finds, there is no dispute that the petitioner was an employee of the Indian Bank but superannuated by the time there was extension of the pension scheme. There is also no dispute that the petitioner was continuing as a Manager, Office of Currency Chest, Bhubaneswar Branch on 31.7.2009. Further there is also no dispute that the petitioner has made an option on W.P.(C) No.2334 of 2021 Page 35 of 44 7.10.2010 but, however, without complying the term of requirement for refund for acceptance of such application in terms of Annexure-1. *** From the above, this Court finds, there is flat denial by the opposite parties on the specific allegation that the petitioner has not been communicated with the scheme at Annexure-1. This apart, looking to the pleadings and the application available at Annexure-B to the Additional Affidavit, this Court finds that petitioner since filed the option application, may be on being intimated by his friends regarding submission of such application in time but however did not make the refund of the amount required thereon. Thus when petitioner could make the application involving his option, he cannot say that he did not know the requirement for refund therein. *** From the above, it clearly appears, the petitioner had neither deposited in terms of scheme nor even he had sufficient money to his credit to balance the refund. Further deposit of petitioner, if any, is his own property and none else has power to utilize the same.
6. This Court here observes once the petitioner files application in terms of Annexure-1, his submission that he was not aware of the condition of deposit cannot be accepted. Similarly, the allegation that the petitioner has never been intimated the amount to be deposited along with the application opting for pension cannot be accepted on the same premises. This Court taking into account the pleading of the petitioner that the petitioner had a request to the W.P.(C) No.2334 of 2021 Page 36 of 44 authority to utilize his pension otherwise available with the Bank by way of representation, finds, since the scheme has given the cut off date for different purposes and further looking to the specific pleading of the opposite parties in paragraph-6 of their counter that with reference to the statement of account of the petitioner that the petitioner had no such amount on the date of filing of the application. This Court further observes, even assuming that the petitioner had some amount lying with the Bank Authority on the date of submission of the application, nothing prevented the petitioner while filing the application to at least to put an application or request to the Bank Authority to adjust any such amount lying with the Bank to make the application complete one. Looking to the conditions in the extended scheme/option, it has the uniform application to all such applicants and relaxation to a single person will open a door to fence sitters, who have also submitted applications with defect. This Court takes into account the cardinal principle of law holding that if a thing is required to be done in a particular manner, it has to be done in that manner or not at all."
10.3. Critical examination of the judgment of this Court in Dhirendra Kumar Behera (supra) makes it ex facie clear that having exercised option for availing benefit of Pension Regulations, the petitioner therein has not refunded the amount to be deposited for this purpose. Nonetheless, in the instant case, the petitioner has been denied to even furnish his option even though the opposite parties were pursuing the lis up to the Hon'ble W.P.(C) No.2334 of 2021 Page 37 of 44 Supreme Court of India. Therefore, the argument advanced by the learned Advocate for the opposite parties that the petitioner has rightly been denied the benefit inasmuch as he failed to exercise the option within the period stipulated in the Instruction Circular dated 15.09.2010 is liable to be repelled.
Conclusion:
11. With the aforesaid material facts and the legal position as discussed in the foregoing paragraphs, natural corollary would be that having treated the petitioner to be in service since 19.08.1999, and but for the disability for which the petitioner had no role and the circumstances beyond his control, he could have been extended the benefit under the Pension Regulations by condoning the period stipulated in the Instruction Circular dated 15.09.2010. In Employees‟ State Insurance Corporation Vrs. Union of India, (2022) 1 SCR 373, it has been restated as a principle that, "15. *** A Constitution Bench in Sant Ram Sharma Vrs.
State of Rajasthan, AIR 1967 SC 1910 considered the applicability of the letters issued by the Government of India detailing the administrative practice for promotions, against the Indian Police Service (Regulation of Seniority) Rules, 1954. The Constitution Bench held that:
„7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any W.P.(C) No.2334 of 2021 Page 38 of 44 statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.‟
16. In Union of India Vrs. Ashok Kumar Aggarwal, (2013) 16 SCC 147 a two judge Bench of this Court speaking in the context of service regulations governing a departmental enquiry re-iterated that an office order or office memorandum cannot contravene statutory rules. Justice B.S. Chauhan noted the position in law in the following terms:
„59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in W.P.(C) No.2334 of 2021 Page 39 of 44 contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of India Vrs. Majji Jangamayya, (1977) 1 SCC 606, P.D. Aggarwal Vrs. State of U.P., (1987) 3 SCC 622, Paluru Ramkrishnaiah Vrs. Union of India, (1989) 2 SCC 541 = AIR 1990 SC 166, C. Rangaswamaiah Vrs. Karnataka Lokayukta, (1998) 6 SCC 66 and Joint Action Committee of Air Line Pilots‟ Assn. of India Vrs. DG of Civil Aviation, (2011) 5 SCC 435 = AIR 2011 SC 2220.‟
17. In P D Aggarwal Vrs. State of U.P., (1987) 3 SCC 622 a two judge Bench of this Court declined to grant primacy to an Office Memorandum issued by the Government of Uttar Pradesh which purportedly amended the method of recruitment of Assistant Civil Engineers in the U.P. Public Service Commission without amending the relevant regulations. The Court held:
„20. The office memorandum dated December 7, 1961 which purports to amend the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 in our opinion cannot override, amend or supersede statutory rules. This memorandum is nothing but an administrative order or instruction and as such it cannot amend or supersede the statutory rules by adding something therein as has been observed by this Court in Sant Ram Sharma Vrs. State of Rajasthan, AIR 1967 SC W.P.(C) No.2334 of 2021 Page 40 of 44 1910 = (1968) 1 SCR 111. Moreover the benefits that have been conferred on the temporary Assistant Engineers who have become members of the service after being selected by the Public Service Commission in accordance with the service rules are entitled to have their seniority reckoned in accordance with the provisions of Rule 23 as it was then, from the date of their becoming member of the service, and this cannot be taken away by giving retrospective effect to the rules of 1969 and 1971 as it is arbitrary, irrational and not reasonable.‟
18. The contesting respondents have referred to certain letters and to an internal communication of the appellant to urge that the DACP Scheme was to be implemented for promotions at the appellant. However, these letters, similar to the Office Memorandum dated 29 October 2008 implementing the DACP Scheme, would not have the force of law until they were enforced through an amendment to the recruitment regulations. In considering a similar factual situation, a three-judge Bench of this Court in Union of India Vrs. Majji Jangamayya, (1977) 1 SCC 606 held that:
"31. The second question is whether the requirement of 10 years‟ experience was a statutory rule. The High Court held that the requirement of 10 years‟ experience is not a statutory rule. Counsel for the respondents contended that the requirement of 10 years‟ experience is statutory because the letter dated January 16, 1950 is by the Government of W.P.(C) No.2334 of 2021 Page 41 of 44 India and the Government of India has authority to frame rules and one of the letters dated July 21, 1950 referred to it as a formal rule. The contention is erroneous because there is a distinction between statutory orders and administrative instructions of the Government. This Court has held that in the absence of statutory rules, executive orders or administrative instructions may be made. (See CIT Vrs. A. Raman & Company, AIR 1968 SC 49 = (1968) 1 SCR 10. ***
34. Counsel on behalf of the respondents contended that the requirement of 10 years‟ experience laid down in the letter dated January 16, 1950 had the force of law because of Article 313. Article 313 does not change the legal character of a document. Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not a statutory rule. The administrative instructions can be changed by the Government by reason of Article 73(1)(a) itself. ***
36. The expression "ordinarily" in the requirement of 10 years‟ experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good reasons cannot confer a right. (See P.C. Sethi Vrs. Union of India, (1975) 4 SCC 67 = (1975) 3 SCR 201).‟ ***"
11.1. As has already been observed that due to certain uncontrollable situation that is faced by the petitioner, W.P.(C) No.2334 of 2021 Page 42 of 44 he could not avail the benefit under the Pension Regulations and after finalisation of his dispute, he should have been asked to exercise the option to come within the fold of Pension Fund and the opposite parties, while complying with the writ of mandamus in the judgment dated 04.08.2015 passed in W.P.(C) No.5845 of 2003, ought to have extended the benefit under the Instruction Circular dated 15.09.2010.
11.2. When it is fact on record that the petitioner was not in service on the date of issue of the Instruction Circular dated 15.09.2010, and he could get back his position in service from 19.08.1999 till he attained the age of superannuation on 31.08.2010 after the matter could attain finality on 16.12.2016 with the dismissal of the special leave to appeal by the Hon'ble Supreme Court of India, the opposite party No.1 committed grave error of record by denying the benefit claimed by the petitioner under the Allahabad Bank (Employees') Pension Regulations, 1995 in terms of Settlement/Joint Note dated 27.04.2010 read with Instruction Circular dated 15.09.2010.
12. In fine, the writ petition is bound to succeed and this Court is, therefore, inclined to set aside the impugned order dated 28.09.2020 passed by the Managing Director and Chief Executive Officer-opposite party No.1 and remit the matter to the said authority (opposite W.P.(C) No.2334 of 2021 Page 43 of 44 party No.1) for reconsideration of the claim of the petitioner in the light of discussion made supra and pass appropriate order within a period of three months hence.
12.1. Needless to observe that the conditions for availing benefit as stipulated in the Allahabad Bank (Employees') Pension Regulations, 1995 in terms of Settlement/Joint Note dated 27.04.2010 read with Instruction Circular dated 15.09.2010 are required to be complied with.
12.2. With the above observation and direction, the writ petition stands disposed of, but there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 24th September, 2024//Aswini/MRS Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 24-Sep-2024 18:56:59 W.P.(C) No.2334 of 2021 Page 44 of 44