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2000 DIGILAW 342 (PAT)

Moti Ram Kusum v. Central Bank Of India

2000-03-01

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. In this writ petition the petitioner has sought for quashing the proviso to Service Regulation 46 of the Central Bank of India (Officers) Service Regulation, 1979, contained in Annexure 4 to the writ petition and for issuance of a writ in the nature of mandamus directing the respondents to grant him pension by adding five years to his qualifying service on the basis of Regulation 26 of the Central Bank of India (Employees) Pension Regulations, 1995 (for short "the 1995 Regulations") and also to compute his pension and gratuity accordingly. 2. In short, the relevant facts are that the petitioner joined the service of the respondent-Bank as Law Officer under specialised cadre having special qualification and experience in his field on 5.6.1975 at the age of 39 years. The petitioner on attaining the age of superannuation retired from service on 31.1.1994. 3. The only question for consideration is as to whether the petitioner can get the benefit of addition to his qualifying service in the special circumstances as provided 1or in Regulation 26 oi the 1995 Regulations and also as to whether the amended provisions contained in the proviso to Regulation 46 of the said 1979 Regulations (Annexure 4), which provides that the pay for the purpose of gratuity for an officer who ceased to be in service during the period 1.7.1993 to 31.10.1994 shall be with regard to the scale of pay as specified in sub-regulation (1) of Regulation 4 as amended on 12.10.1996 can be held to be invalid. 4. It has been contended on behalf of the petitioner that as per the provision contained in Regulation 46 as existed before amendment the amount of gratuity payable to an officer was one months pay for every completed year of service, subject to the maximum of 15 months pay. 4. It has been contended on behalf of the petitioner that as per the provision contained in Regulation 46 as existed before amendment the amount of gratuity payable to an officer was one months pay for every completed year of service, subject to the maximum of 15 months pay. In the instant case after revision of pay from retrospective date, i.e. 1.7.1993, i.e. before the date of retirement of the petitioner, he became entitled to get the gratuity calculated on that basis, but by the amended provision whereby the proviso to Regulation 46 of the said 1979 Regulations was added, the officers who ceased to be in service during the period from 1.7.1993 to 31.10.1994, have been deprived of the benefit of the revised scale for the purpose of calculation of gratuity, which according to him, is wholly illegal, arbitrary and violative of Articles 14 and 16 of the Constitution. 5. The learned counsel for the respondent-Bank has submitted that terms of the agreement between the Trade Union of different Organisation and Indian Bankers Association the payment of arrears of gratuity on revised pay was made effective from 1.11.1994 and as such the said Regulation 46 was, accordingly, amended by adding proviso to it, which provides that the pay for the purpose of gratuity for an officer who ceased to be in service on 1.7.1993 which is the effective date of revision of pay to 31.10.1994 shall be with regard to the scale of pay as existed before its revision. The petitioner having retired on 31.1.1994 is thus not eligible to such benefit under the said Regulation. 6. It is not disputed by the petitioner that as per aforesaid agreement the arrears of gratuity on revised pay were made effective from 1.11.1994. i.e. after the date of the petitioners retirement. The agreement binds the employees who are represented by the concerned Union. It has, however, been submitted that the agreement itself was unreasonable as it deprives the persons of the benefit of arrears of gratuity on the revised pay to those who retired before 1.11.1994. This Court does not find any merit in the said submission of the learned counsel for the petitioner. 7. It has, however, been submitted that the agreement itself was unreasonable as it deprives the persons of the benefit of arrears of gratuity on the revised pay to those who retired before 1.11.1994. This Court does not find any merit in the said submission of the learned counsel for the petitioner. 7. It appears that the revision of pay itself was made pursuant to the agreement and not by virtue of any statutory provision creating any right to the petitioner to get all benefits of the said revision from retrospective date. In my opinion, there is no unreasonableness in fixing the dates for payment of arrears of gratuity on the revised pay, as the same is based on the terms of the revision of pay itself, which was done pursuant to the agreement. Under such circumstances, in my opinion, the petitioner would not be legally entitled to assail the validity the agreement itself by virtue of which he has availed the benefit of revision of pay from the retrospective date which was subject to the condition that the payment of arrears of gratuity on revised pay shall be made effective from 1.11.1994. Moreover, this Court does not find any in firmity in fixing the said date by adding the proviso, as before that date the petitioner had already retired on the pay existing before retirement and such employees in terms of the agreement have been treated as a class other than those who were still in service. This cannot be held to be unreasonable classification, more so, when it was done pursuant to the agreement. 8. Mr. Pandey, learned counsel for the petitioner, has contended that in absence of any dispute that the petitioner possessed requisite qualification for getting the benefit of addition to qualifying service in the special circumstances under Regulation 26 of the said 1995 Regulations the respondent- Bank was not justified in denying the said benefit to him. Mr. Sinha, learned counsel appeaing for the respondent-Bank, on the other hand, submitted that the petitioner does not qualify for grant of such benefit of addition to qualifying service in the special circumstances under Regulation 26 of the 1995 Regulations as the conditions mentioned in the proviso attached thereto are admittedly not fulfilled. This Court finds substance in the submission of the learned counsel for the respondent-Bank. 9. This Court finds substance in the submission of the learned counsel for the respondent-Bank. 9. Under Regulation 26 of the said 1995 Regulations an employee is eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded the upper age limit specified by the Bank for direct recruitment or a period of five years whichever is less if the service or post to which the employee is appointed is one. It is not disputed by the respondent-Bank that under Regulation 26 of the 1995 Regulations the petitioner fulfilled other conditions, but the said benefit/concession was made admissible if the Recruitment Rules in respect of the said service or post contain specific provision that the service or post is one which carries benefit of the said Regulations and that such Recruitment Rules had the approval of the Central Government. 10. The learned counsel for the petitioner admits that there was no such condition provided in the Recruitment Rules till the retirement of the petitioner. However, he has submitted that once the said Regulations came into force and the petitioner fulfilled other conditions, then the denial of such benefit only in absence of such Recruitment Rules which are in the hand of the Bank authority will be wholly unreasonable and unjustified. 11. This Court does not find any merit in the said submission of the learned counsel for the petitioner. Once the said Regulation itself provides regarding its applicability then unless the conditions mentioned therein are fulfilled no person can get the benefit of the said Regulations. It has rightly been submitted by Mr. Sinha learned counsel appearing for the respondent-Bank that the very provision contained in Regulation 26 of the 1995 Regulations granting said benefit was made effective prospectively and not retrospectively. 12. The learned counsel for the petitioner in support of his contention has placed reliance on the order of the Apex Court in the case of Secretary, Railway Board vs. D.P.Paul reported in 1996 Lab I.C.2445 (S.C.). This Court fails to appreciate as to how the said order of the Apex Court is of any help to the petitioner. 12. The learned counsel for the petitioner in support of his contention has placed reliance on the order of the Apex Court in the case of Secretary, Railway Board vs. D.P.Paul reported in 1996 Lab I.C.2445 (S.C.). This Court fails to appreciate as to how the said order of the Apex Court is of any help to the petitioner. In the said order the Apex Court while dealing with a case under Railway Establishment Manual has held that the amended rule is operative prospectively and not retrospectively. It is true that the Apex Court was dealing in a context as to whether the proviso incorporated later on would apply to the person in whom the right already accrued before the said amendment was brought in, but this Court does not find that any different view can be taken with respect to applicability of Regulation 26 of the 1995 Regulations. It is by now well settled that the Statute is prospective unless specifically provides for its applicability from the retrospective date which too subject to the provisions mentioned in Part III of the Constitution. 13. Under such circumstances this Court does not find any merit in this writ application and the same is, accordingly, dismissed but without costs.