Madras High Court
T.M.Subbulakshmi vs The Secretary To Government Of India on 18 June, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.34223 of 2007 T.M.Subbulakshmi .. Petitioner Vs. 1.The Secretary to Government of India, Ministry of Finance, Banking Division, Jeevan Deep Building, Sansad Marg, New Delhi-110 001. 2.The Secretary to Government, Ministry of Pension, Pensioner's Welfare, Government of India, Lok Nayak Bhavan, Khan Market, New Delhi-110 003. 3.The General Manager, P.P.G. Department, Madras Local Head Office, State Bank of India, College Road, Chennai-600 006. 4.The Chairman, Central Board of Trustees, State Bank Bhavan, SBI Employees Pension Fund, SBI Madame Cama Road, Mumbai-400 021. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that Rule 22 of the State Bank of India Employees Pension Fund Rules as unconstitutional and null and void and consequently direct the respondents to grant pension to the petitioner by fixing the qualifying service as 10 years for pensin as per the Bank Employees (Pension) Regulation 1993 and Government of India Rules and to grant arrears of pension and other consequential pensionary benefits and to pay monthly pensin regularly. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr.R.Murali, CGSC for R1 Mr.K.S.Sundar for R3 - - - - ORDER
The petitioner has filed the present writ petition seeking for declaration that Rule 22 of the State Bank of India Employees Pension Fund Rules as unconstitutional and null and void and for a consequential direction to respondents to grant pension to the petitioner by fixing qualifying service as 10 years as per the Bank Employees (Pension) Regulation 1993 as well as the Government of India Rules and grant arrears of pension.
2.The petitioner had joined the third respondent State Bank of India as a Clerk with effect from 10.01.1983. Subsequently, her services were confirmed with effect from 10.7.1983. The petitioner got herself promoted as an Assistant. She applied to go for voluntary retirement under the State Bank of India Voluntary Retirement Scheme. She was also relieved from duty on 31.3.2001. Subsequently, she was given payment as per the Voluntary Retirement Scheme and her accounts were settled. Thereafter, the petitioner claimed pension on the basis of State Bank of India Employees Pension Fund Rules. The petitioner had completed only 18 years of service in the Bank. She found that Rule 22 of the State Bank of India Employees Pension Fund Rules is against her. Hence she has now come forward to challenge the same.
3.Rule 22 of the said Rule reads as follows:
"22.(i)A member shall be entitled to a pension under these rules on retiring from the Bank's service-
(a)After having completed twenty years' pensionable service provided that he has attained the age of fifty years;
(b)after having completed twenty years' pensionable service, irrespective of the age he shall have attained, if he shall satisfy the authority competent to sanction his retirement by approved medical certificate or otherwise that he is incapacitated for further active service;
(c)After having completed twenty years pensionable service, irrespective of the age he shall have attained at his request in writing.
(d)After twenty five years' pensionable service."
4.It is the case of the petitioner that the Government of India has been granting pension for employees, who had retired after having a qualifying service of not less than 10 years. The said Rule came to be amended on 8.11.2001 subsequent to the voluntary retirement of the petitioner. Under the amended rule, it is stated that if a person who is in pensionable service, retires after completion of 20 years and if he had completed 50 years of age or if he is in service of the Bank on or after 1.11.1993 and completed 10 years of service and attained the age of 58 years, he will be eligible for pension. It is claimed that the Rules have been amended in terms of Section 50 of the State Bank of India Act with the previous sanction of the Central Government. Therefore, it was argued that there is no rationale in fixing the qualifying service as 20 years for getting pension. Hence the said rule is challenged as arbitrary.
5.Reliance was placed upon the judgment of the Supreme Court in D.S. Nakara v. Union of India, (1983) 1 SCC 305 . Further reliance was also placed upon a division bench judgment of this court in N.Eswaran and another Vs. State Bank of India and another in W.A.Nos.2822 and 3939 of 2004, dated 25.7.2007.
6.On notice from this court, the third respondent has filed a counter affidavit, dated 17.4.2010. In the counter affidavit, it is stated that the petitioner had only completed 17 years 8 months and 21 days. Inasmuch as she had not completed 20 years as per Pension Rule, she is not eligible for pension. It was also claimed that since she had applied for SBI Voluntary Retirement Scheme and pension rule has not been made applicable, there cannot be any legitimate expectation. It was also claimed that 10 years pensionable service coupled with 58 years age of superannuation was brought into effect only from 1.11.1993, which was subsequently modified after retirement age was increased to 60 years with effect from 22.5.1998. Therefore, the changed rule is valid. Since the petitioner had applied for Voluntary Retirement Scheme and all her accounts were settled, she cannot file a writ petition after six years after her retirement. She is also guilty of laches.
7.In this context, reliance was placed upon the judgment of the Supreme Court in Karnataka Power Corporation Ltd. Through its Chairman and Managing Director and another Vs. K.Thangappan and another reported in 2006 (4) SCC 322.
8.With reference to the division bench judgment relied on by the petitioner, it is brought to the notice of this court that the said judgment was taken on appeal by the State Bank of India in Civil Appeal Nos.4495 and 4496 of 2009. The Supreme Court had set aside the said judgment by a judgment, dated 17.7.2009. It is necessary to extract the following passage found in the said judgment, which is as follows:
"Admittedly, both the respondents joined the services of the appellants' Bank at the age of 38 years of age and they retired on 31st January, 1984 and 31st July, 1992 respectively on attaining the age of superannuation.
Under the relevant rules which were prevalent at the time of their joining, pension was payable to only those employees who were below 35 years of age at the time of their appointment.
Since, admittedly, both the respondents joined their services at the age of 38 years, in our opinion, they are not entitled to any pension under the said rules. Subsequent amendment of the Rules will not confer any right to the respondents."
9.The short question that arises for consideration is whether the petitioner's claim to challenge the cut off date is permissible and whether it is valid under Articles 14 and 16 of the Constitution of India?
10.In order to appreciate the contention, it is necessary to refer to certain decisions of the Supreme Court cited at the Bar.
11.In respect of the very same Bank with respect to cut off date, the Supreme Court in V. Kasturi v. Managing Director, State Bank of India reported in (1998) 8 SCC 30 dealt with the very same pension rules. Incidentally, it had dealt with the arguments based upon Nakara's case (cited supra). Therefore, it is necessary to refer to the following passages found in paragraphs 12 and 17, which is as follows:
"12. On a close look at the relevant provisions of the Rules, it is not possible to agree with this contention. The appellant, in order to earn pension under Rule 22(1) clause (c) as amended in 1986 has to satisfy the following twin conditions:
(i) at the time when the amended clause (c) applied, i.e., from 22-9-1986, he should be a member of the pension fund;
(ii) he should have by then completed 20 years of pensionable service, and should have put forward his requisition in writing for availing the benefit of the said provision.
Unless both these conditions are satisfied the amended clause (c) of Rule 22(1) cannot apply in his case. We have to note that the service biodata of the appellant contra indicates the applicability of those two conditions. He was not a member of the fund on 21-9-1986. He had ceased to be a member of the fund on his retirement in 1984. As laid down in the definition of the term member the employee concerned should be in service of the Bank and he should have been admitted to the membership of the fund. So far as the admission into the membership of the fund is concerned, the appellant has not satisfied the requirement inasmuch as he was a member of the fund but the second requisition of the definition was not fulfilled by him in 1986 as he was not in service of the Bank on 20-9-1986 when clause (c) of Rule 22(1) as amended came into force. Consequently the first condition for applicability of the amended clause (c) of Rule 22(1) did not apply to the facts of the present case. Consequently, the question of compliance of the second condition that he should have completed 20 years of pensionable service would pale into insignificance as even though he had completed 20 years of pensionable service when he ceased to be a bank employee in 1984, he did not come within the beneficial sweep of Rule 22(1) clause (c) as amended, as he was not a member of the pension fund in 1986 as he had ceased to be a member of the fund after 31-7-1984. He was, therefore, out of the sweep of the pension fund scheme on 20-9-1986 when Rule 22(1)(c) got amended. The very opening part of Rule 22(1) lays down that a member should be entitled to pension under the Rules if he satisfies the conditions laid down in the said Rule but if he is not a member on the relevant date, the question of his being covered by any of the clauses of the said Rule would not survive at all. Thus on the very scheme of the Rules and the amended provision of clause (c) of Rule 22(1) the appellants case would fail and consequently he would not be entitled to claim any benefit from the aforesaid amended provision even prospectively from 20-9-1986 as he was not at all covered by the said provisions on that date.
.....
17......Such pensionary benefit was not available to them prior to the amendment of clause (c) of Rule 22(1). Hence, it was certainly a new pension scheme for them and not old wine in a new bottle. For such class of employees, there was no question of any mini-classification as for the entire class of such employees for the first time the benefit of the pension scheme was made available by the amendment. The decision of the Constitution Bench in Nakara case1 therefore, cannot advance the case of learned counsel for the appellant. We may also mention that the ratio of Nakara case1 was distinguished by two latter Constitution Bench decisions of this Court....."
12.The Supreme Court in Ramrao v. All India Backward Class Bank Employees Welfare Assn., reported in (2004) 2 SCC 76, quoted with approval Kasthuri's case (cited supra). In paragraphs 29, 31 to 34, the Supreme Court observed as follows:
"29. It is now well settled that for the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cut-off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cut-off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary, irrational, whimsical or capricious.
......
31. It is not in dispute that a cut-off date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary1 it has been observed: (SCC p.546, para 21) 21. ... It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works2, SCC at 310 : SCR at p.579 and Sushma Sharma (Dr) v. State of Rajasthan3, SCC at 66 : SCR at p.269.)
32. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India.
33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date, but, the fact that some persons or a section of society would face hardship, by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution.
34. In State of W.B. v. Monotosh Roy4 it was held: (SCC pp.76-77, paras 13-15)
13. In All India Reserve Bank Retired Officers Assn. v. Union of India5 a Bench of this Court distinguished the judgment in Nakara6 and pointed out that it is for the Government to fix a cut-off date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cut-off date and had collected their retiral benefits from the employer. A similar view was taken in Union of India v. P.N. Menon7. In State of Rajasthan v. Amrit Lal Gandhi8 the ruling in P.N. Menon case7 was followed and it was reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis has to be fixed for extending the benefits.
14. In State of U.P. v. Jogendra Singh9 a Division Bench of this Court held that liberalized provisions introduced after an employees retirement with regard to retiral benefits cannot be availed of by such an employee. In that case the employee retired voluntarily on 12-4-1976. Later on, the statutory rules were amended by notification dated 18-11-1976 granting benefit of additional qualifying service in case of voluntary retirement. The Court held that the employee was not entitled to get the benefit of the liberalized provision which came into existence after his retirement. A similar ruling was rendered in V. Kasturi v. Managing Director, State Bank of India10""
13.The Supreme Court also in Government of Andhra Pradesh vs. N. Subbarayudu reported in (2008) 14 SCC 702 dealt with the power of judicial review over the cut off date fixed by the executive. It is necessary to refer to the following passages found in paragraphs 5 to 9, which is as follows:
"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal1.)
6. No doubt in D.S. Nakara v. Union of India2 this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case2 as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal1.
7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad3, Union of India v. Sudhir Kumar Jaiswal4 (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn.5 (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary6, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Aravali Golf Club v. Chander Hass7 and in Govt. of A.P. v. P. Laxmi Devi8 the court must maintain judicial restraint in matters relating to the legislative or executive domain."
14.If it is seen in the above context, the petitioner has not made out any case to claim pension de hors the rules. No case is made out to set aside the regulation impugned in the writ petition. Hence the writ petition will stand dismissed. However, there will be no order as to costs.
vvk To
1.The Secretary to Government of India, Ministry of Finance, Banking Division, Jeevan Deep Building, Sansad Marg, New Delhi-110 001.
2.The Secretary to Government, Ministry of Pension, Pensioner's Welfare, Government of India, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
3.The General Manager, P.P.G. Department, Madras Local Head Office, State Bank of India, College Road, Chennai-600 006.
4.The Chairman, Central Board of Trustees, State Bank Bhavan, SBI Employees Pension Fund, SBI Madame Cama Road, Mumbai 400 021