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2002 DIGILAW 1549 (RAJ)

Ram Narain Upadhyaya v. Union of India

2002-09-06

PRAKASH TATIA

body2002
JUDGMENT 1. - The petitioner who was initially appointed as Field Inspector in Reserve Bank of India, subsequently, after establishment of National Bank of Agriculture and Rural Development (for short the NABARD) was given option to opt for services of the NABARD. Upon petitioner's option, the petitioner's services were transferred to the NABARD finally. The service of the petitioner was governed by the Rules called National Bank for Agriculture and Rural Development (Staff) Rules, 1982. (here in after referred as Rules of 1982) These Rules came into force on 12.12.1982. The Rule 19(1) provides the age of superannuation. The petitioner was employee of Group-A, therefore, his age of superannuation is on completion of 58 years. As per Sub-Clause (a) of Sub-Rule (4) of Rule 19, at the time of retirement, the employees had two options: (a) Either employees may take benefit of leave subject to maximum of six months in respect of ordinary leave earned during these Rules of 1982 and in that case, it is provided that the employee will be deemed to have retired from services at the expiry of the leave. Or, (b) Employees can get lump sum amount which would be equivalent to pay as defined in Rule 3(j) of the Rules. The limit for this lump sum amount is also equivalent to the unavailed ordinary leave up to period of six months plus dearness allowance. 2. The petitioner who attained the age of superannuation on 16.7.1985 was supposed to retire on the said date but in view of Rule 19(1), the petitioner was entitled to work till the last date of the month in which he attained the age of 58 years, therefore, date of superannuation of the petitioner comes to 31.7.1985. The petitioner took the benefit under Clause (a) of Sub-Rule (4) of Rule 19 of the Rules of 1982 of availing leave of six months which was grante to the petitioner. According to the petitioner, as per Sub-Clause (1) of Sub- Rule (4) of Rule 19 of the Rules of 1982, he is deemed to be in service for further period of six months from 31.7.1985. Therefore, according to the petitioner since the petitioner was in ordinary course of employment could not have been retired on 31.7.1985, and was retired by the respondent on 31.1.1986. 3. Therefore, according to the petitioner since the petitioner was in ordinary course of employment could not have been retired on 31.7.1985, and was retired by the respondent on 31.1.1986. 3. At the time of retirement of the petitioner there was no pension scheme available for the employees like the petitioner but in the year 1993, pension regulations known as National Bank for Agriculture And Rural Development Pension Regulations, 1993, (Here in after referred as Pension Regulations, 1993) were framed in exercise of the powers conferred by Section 1 read with Clause (j) of Sub-section (2) of Section 60 of the NABARD Act, 1981. By these regulations, scheme for pension was introduced for the (1) employees who join the National Banks Service on or after 1.11.1993, (2) employees who were in the service of National Bank as on 31.10.1993 except those employees, who within the prescribed period by the National Bank exercise an option in writing not to be governed by these regulations and (3) employees who were in service on 1.1.1986 (excluding those on leave preparatory to retirement) and had retired before 1.11.1993 provided they exercised option to be governed by these regulations and refund the contribution to Provident Fund including interests received by them from the National Bank together with simple interest at 6% per annum from the date of withdrawal till the date of repayment. 4. In view of the introduction of Pension Regulation, 1993, the employees who were in service on 1.11.1986 but retired before 1.11.1993 are entitled to benefit of option of pension. The case of the petitioner is peculiar in nature because of the reason that the as per the date of birth of the petitioner, petitioner was to retire on 31.7.1985 but, since the petitioner availed the benefit of Sub-Clause (a) of Sub-Rule (4) of Rule 19 of Rules of 1982 he finally retired after six months from the date of superannuation which is 31.1.1986. If the petitioner is treated in service till 31.1.1986 as claimed by the petitioner then the petitioner is entitled for the benefit available under Pension Regulation, 1993. If the petitioner is not treated as in service employee as on 1.1.1986 then the petitioner is not entitled to the benefit of the pension under Regulation of 1993. Another hurdle in the way of the petitioner is exclusion clause made in the Sub-Clause (3) of Regulation 3. If the petitioner is not treated as in service employee as on 1.1.1986 then the petitioner is not entitled to the benefit of the pension under Regulation of 1993. Another hurdle in the way of the petitioner is exclusion clause made in the Sub-Clause (3) of Regulation 3. The Sub-Clause (3) of Regulation 3 of Chapter II of Pension Regulations, 1993, specifically excludes the employees who proceeded on leave preparatory to retirement. Therefore, the petitioner is aggrieved of the above exclusion clause made in the Sub-Clause (3) of Regulation 3 and also challenged the part of the Regulation 22 wherein it is provided that leave preparatory to retirement shall not count as qualifying service. The petitioner, therefore, sought relief of grant of pension from the respondents from 1.1.1986 and also challenged the validity of "(excluding those on leave preparatory to retirement)" occurring in Sub-Clause (3), and the words "Leave preparatory to retirement shall not count as qualifying service." which is provided in Regulation 22 Pension Regulations, 1993. 5. The learned Senior Advocate Shri M. Mridul vehemently submitted that the petitioner was in service employee till 31.1.1986. He was treated as in service employee by the respondents themselves, treating the petitioner as in service employee; the petitioner was paid salary month by month from August 1985 to 31.1.1986, Provident Fund was deducted every month by the Bank from the salary of the petitioner and the Bank too also contributed towards the Provident Fund for petitioner till 31.1.1986. Whenever there was change in D.A., it was accordingly changed and paid to the petitioner till January, 1986. The petitioner was paid not only D.A. but also paid adhoc D.A., House Rent Allowance, Compensatory Allowance, Family Allowance till January 1986. The petitioner annexed the schedule of statement of salary from August 1985 to January 1986 showing the deductions made and net salary paid to the petitioner. Even in order dated 1.4.1986, copy of which was submitted by the petitioner along with his affidavit on 8.8.2002, the bank wrote that "...you have been finally retired from the national Bank's service as at the close of business on 31 January 1986." It is also submitted that the petitioner was governed by the Rules of 1982 till 1986. Even in order dated 1.4.1986, copy of which was submitted by the petitioner along with his affidavit on 8.8.2002, the bank wrote that "...you have been finally retired from the national Bank's service as at the close of business on 31 January 1986." It is also submitted that the petitioner was governed by the Rules of 1982 till 1986. The petitioner was liable for all disciplinary actions under the Rules of 1982 and was prohibited to do anything which was prohibited for the employee in service under the same service rules. The Chapter IV of the Rules of 1982 starting from Rule 25 to Rule 57 provides the conduct and discipline for employee. Under Chapter IV, the petitioner was bound by the number of obligations as well as restricted from doing the things which an employee is prevented to do. The petitioner was under Rule 33 restrained from contributing to press, radio or television relating the affairs of National Bank without prior sanction of competent authority and was also prevented from making or publishing any document, paper or information which may come into his possession in his official capacity etc. The petitioner was prevented under Rule 37 from undertaking any part time work for private or public body etc. Therefore, the petitioner was in fact, in service employee during period of entire period of leave preparatory to retirement. 6. learned Counsel for the petitioner further submits that explanation to the Sub-Rule (4) of Rule 19 provides different dates of retirement which includes, retirement at the age of superannuation or date of which employee is retired from the National Bank under Sub-Rule (1) of Rule 19 or when he seeks voluntary retirement. Sub-Clause (a) of Sub-Rule (4) of Rule 19 very specifically provides that employee, who avails leave under this rule, shall be deemed to finally retire from service at the expiry of the leave. Therefore, the petitioner was in service, treated in service by the Bank and Sub-Clause (a) of Sub-Rule (4) of Rule 19 says that the petitioner was in service till he availed the benefit of leave preparatory to retirement which ended on 31.1.1986. 7. Therefore, the petitioner was in service, treated in service by the Bank and Sub-Clause (a) of Sub-Rule (4) of Rule 19 says that the petitioner was in service till he availed the benefit of leave preparatory to retirement which ended on 31.1.1986. 7. The learned Counsel for the petitioner also submits that if the words quoted above mentioned in Sub-Clause (3) of Regulation 3 of Pensions Regulations, 1993 comes in a way of the petitioner depriving him from the benefit of Regulations of 1993, then this part of the Sub-Clause (3) of Regulation 3 is discriminatory in nature making discrimination to the petitioner as the petitioner is in service but being denied the benefit of pension which is made available to the employees who are in service along with petitioner on 1.1.1986. It is also submitted that the exclusionary clause is absolutely arbitrary and contrary to the Rules of 1982 and also does not stand to reasons in the light of the various provisions contained in the Rules of 1982 as well as Pension Regulations, 1993 itself. 8. The learned Counsel for the respondents vehemently submitted that the present Pension Regulation, 1993 is more or less is on the same lines as the Reserve Bank of India Pension Regulations, 1990. These regulations were subject matter of litigation and the Rules were examined by the Hon'ble Apex Court in the case of All India Reserve Bank Retired Officers' Association and Ors. v. Union of India and Anr. reported in 1992(3) SLR(SC) 35 and, thereafter followed by the Delhi High Court in the case of H.L. Sethhi v. Reserve Bank of India reported in 1996(4) SCT 307 : 1996(6) SLR 533 (Delhi) and in recent judgment of the Madras High Court delivered in the case of P.N. Radhakrishnan and Ors. v. Reserve Bank of India reported in 2001(3) SLR 209 . In these judgments, it was held that since the petitioners settled their entire retiral benefits once for all, therefore, exclusion of the petitioner from new pension scheme is justified and it cannot be said to be arbitrary or discriminatory. 9. The learned Counsel for the respondents further submitted that the petitioner retired on 31.7.1985 for all purposes. The Rule 19 in unambiguous language says that an employee in Group-A, in which the petitioner is covered, shall retire at 58 years of age. 9. The learned Counsel for the respondents further submitted that the petitioner retired on 31.7.1985 for all purposes. The Rule 19 in unambiguous language says that an employee in Group-A, in which the petitioner is covered, shall retire at 58 years of age. Therefore; the date of retirement of the petitioner is 31.5.1985 and not 31.1.1986. Sub-Clause (4) gives only an additional benefit to the employee, that he can, during his period of service if earned leave and he has not exhausted above earned leave before his age of superannuation, he was given two options, either (1) of the leave subject to maximum period of six months, or (2) to take lump sum amount under Clause (b) of the Sub-Rule (4), Therefore, this is not a continuation of service of the employee but this is an additional benefit which is made available to the petitioner even after his retirement. It is also submitted by the learned Counsel for the respondents that the petitioner cannot be made liable for any disciplinary proceeding nor he is governed by the Chapter IV of the Rules of 1982. According to the learned Counsel for the respondents proviso to Rule 36 makes it clear that an employee on leave preparatory to retirement need not to seek permission for his continuance in employment in commercial employment, therefore, according to the learned Counsel for the respondents when nothing has been said for other Rules in respect to the employee on leave preparatory to retirement, it suggests that the employee of such category cannot be subjected to Chapter IV of the Rules of 1982. 10. After consideration of the above submissions, it comes out that facts are not in dispute with respect to the employment of the petitioner, his age of superannuation, date on which petitioner attained the age of superannuation, taking benefit of Sub-Clause (a) of Sub-Rule (4) of Rule 19 by availing six months' leave preparatory to retirement. The dispute centers around the questions: (1) Whether the petitioner can be treated as in service employee till the expiry of period of six months of leave preparatory to retirement? (2) Whether the exclusionary clauses in Sub-Clause (3) of Regulation 3 of the Pension Regulations, 1993, excluding the employees availing benefit of leave preparatory to retirement from pensioner benefit are violative of Article 14 of the Constitution of India being discriminatory? 11. (2) Whether the exclusionary clauses in Sub-Clause (3) of Regulation 3 of the Pension Regulations, 1993, excluding the employees availing benefit of leave preparatory to retirement from pensioner benefit are violative of Article 14 of the Constitution of India being discriminatory? 11. To find out whether person employed and governed by the Rules of 1982 availing the benefit of leave preparatory to retirement can be treated as employee in service, the Rule 19 is having important bearing. It is no doubt that Sub-Rule (1) of Rule 19 provides that employee in Group-A shall retire at 58 year's of age and employee in Group-C, at 60 year's of age but Sub-Rule (4) starts with non-obstanate clause "Notwithstanding anything contained in this rule....." and thereafter, in Sub-Rule (a) is said "deemed to have finally retired from the service on the expiry of the leave", therefore, age of retirement given in Sub-Rule (1) of Rule 19 is subject to period given in Sub-Rule 4 (a) and cannot be at the age given in Sub-Rule (1). Otherwise also when law requires a position is to be deemed then it is not only required to be deemed but it required to be given effect to also. If law itself provide restricted application of the deeming clause then it is to be applied for the limited purpose for which the deeming clause was enacted. It is clear from the rules of 1982 that the rules nowhere says that employees on leave preparatory to retirement are to be treated as in service employees for any limited purpose or for the purpose of availing leave only. An employee in service may need leave but not retired employee. Employer can grant leave to an employee in-service and not to a retired employee. The Rule 36 which was referred by the learned Counsel for the respondents contains a proviso which says that an officer who was permitted by the National Bank to take up commercial employment during his leave preparatory to retirement shall not be required to obtain subsequent permission for his continuance in such employment after retirement. This proviso undoubtedly supports the case of the petitioner rather than case of the respondent. This proviso undoubtedly supports the case of the petitioner rather than case of the respondent. There is restriction upon the employees, that even after their retirement, within the period of two years from the date of their final retirement, they shall not accept or undertake a commercial employment without previous permission in writing from the bank. The same restriction is applicable for the employees who are availing the benefit of leave preparatory to retirement, therefore, any permission granted by the bank to these employees, who are on leave preparatory to retirement, are treated employees in service for further period of six months, they finally retire after six months of their age of superannuation, to exempt these employees from any further written permission from the bank after their retirement, this proviso was needed so that prohibition against acceptance or undertaking of such employment for two years equally applies for both category of employees namely who retires on attaining age of superannuation and who finally retires after period of leave preparatory to retirement. The proviso only suggests that wherever rule making authorities thought it fit that some relaxation is required to be given to the employees who are on leave preparatory to retirement, it was given by specifically providing relaxation in the rules itself. If such employees are retired employees for all purposes then there was neither any need to make separate provisions, here and there, granting relaxation nor there was any need for making provision for their exclusion either in the Rules of 1982 or Pension Regulations, 1993. A person who is not governed by rule neither needs relaxation nor needs exclusion with the help of any rule. In same way, if the employees availing benefit of leave preparatory to retirement are to be treated as retired employees then there was no reason for making provisions of relaxation in the Rules of 1982 or provisions of their exclusion from the applicability of Pensions Regulations, 1993. Therefore, only logical conclusion can be, that they were treated as employees in service by the rule framing authorities and sum relaxations were given to these employees in the Rules of 1982 and though they are in service they were excluded from applicability of the Pensions Regulations, 1993, by making specific provision of their exclusion. Therefore, only logical conclusion can be, that they were treated as employees in service by the rule framing authorities and sum relaxations were given to these employees in the Rules of 1982 and though they are in service they were excluded from applicability of the Pensions Regulations, 1993, by making specific provision of their exclusion. Though provisions of exclusion have been made in the Pensions Regulations, 1993 but in this case it is yet to be examined whether they can be excluded or their exclusion stands to the touchstone of the validity. 12. Not only rule suggests that employees on leave preparatory to retirement are to be treated as in-service-employees but facts also proves that such employees are being treated as in-service-employees, therefore, are getting benefits which are available to the employees who are in service such as, petitioner was paid salary month by month from 1st August, 1985 to 31st January, 1986. The petitioner was paid benefits of all the changes made in the Dearness Allowance during this period and also given allowances which were admissible to the petitioner. The petitioner was given gratuity benefits by deeming him to be in service as on 1st January, 1986 and this fact has specifically been admitted in the reply filed by the respondent. The deductions from the salary of the petitioner which were required to be deducted during the period of service were also deducted and this fact is also admitted by the respondent in their reply. Not only have these respondents admitted the petitioner to be in employment till 31.1.1986, passed order finally retiring the petitioner from the service from 31.1.1986. The petitioner was by this way, treated as employee in service till 31st January, 1986. The learned Counsel for the respondent though submitted that after attaining the age of superannuation petitioner's name was struck off from the seniority list but fact has not been proved by placing any proof even when fact was disputed by the petitioner. Petitioner submitted that not only petitioner but all other persons who availed the benefit of leave preparatory to retirement are shown as in service employee in the seniority list. Petitioner submitted that not only petitioner but all other persons who availed the benefit of leave preparatory to retirement are shown as in service employee in the seniority list. In reply to respondent's plea that immediately after grant of leave preparatory to retirement to the petitioner, consequential vacancy was filled up by immediately granting promotion to the eligible officer, the learned Counsel for the petitioner submits that filling up of vacancies occurred due to the leave of any employee is also permissible under the Rules and appointment or promotion can be given against leave as well as against anticipated vacancies. Therefore, this contention is not relevant for finding out whether the petitioner was treated as in service employee during period of leave preparatory to retirement. The learned Counsel for the respondent also could not substantiate his contention by showing any rule that the person proceeded on leave preparatory to retirement are not entitled for housing loan, consumer loan, conveyance loan, study leave and sick leave. Assuming for the sake of argument that these benefits are not available to a employee who proceeded on leave preparatory to retirement even then the nature of benefits itself are sufficient indicative to the fact that either these benefits are of no use to the such employee or no will try to avail this type of benefit when he is bound to retire after six months period of such leave. If these minor things can be taken for saying that because of mere these disentitlement employees cannot not be treated as employee in service then we cannot ignore the all major benefits, liabilities and incidences with which the petitioner is fully attached which proves the clear relationship of employee and employer between the petitioner and the Bank. 13. If the persons on leave preparatory to retirement were not to be treated as in service employee as per the Rules of 1982 then even there was no need to insert exclusionary clause "excluding those on leave preparatory to retirement" in Sub-Clause (3) of Rule 3 in Chapter II of the Pension Regulations, 1993. It appears that while framing Pensions Regulations, 1993, the Rules framers were knowing it well that this category of employee are employee in service and retires only on completion of six month's period of their leave, therefore, the above exclusionary clause was inserted, validity of which is under challenge. It appears that while framing Pensions Regulations, 1993, the Rules framers were knowing it well that this category of employee are employee in service and retires only on completion of six month's period of their leave, therefore, the above exclusionary clause was inserted, validity of which is under challenge. The exclusion of these employees by these Regulations of 1993 are to be put to the test whether they are violative to Article 14 of the Constitution of India due to the fact that it creates two different classes of person from amongst the similarly situated persons and it amounts artificial classification to deprive such employees from the benefit of the Regulations of 1993. 14. Regulation 24 deals cases of superannuated employees whereas Regulation 25 deals with employees retired permanently. In either case, the pension is not payable during such leave. Rule 24 in Chapter V of the Regulations of 1993 prescribes the classes of pension and conditions governing grant thereof. The learned Counsel for the respondent relies upon the Rule 24 and Sub-Rule (4) of Rule 25 of the' Regulation of 1993 but a bare perusal of these Rules it is clear that it does not support the argument of the learned Counsel for the respondent. In Regulation 24, it is provided that pension shall not be payable "during leave preparatory to retirement", and Sub-Clause (4) of Regulation 25 also says that no pension shall be payable "during" leave preparatory to retirement. Regulation 24, as stated above, says that pension shall not be payable during leave preparatory to retirement clearly indicates that the employee is not entitled for pension during this period which appears to be due to the reason that the employee gets the salary month by month for this period, therefore, he cannot have benefit of the employment of the bank as well as retiral benefits for the same period. Treating such employees in service, it is specifically mentioned that the employee shall not be entitled for the pension "during" this period of leave, therefore, it is clear from the rules that the employees on leave preparatory to retirement are being paid salary and all other benefits during the period of after the age of superannuation and are not entitled for the pension during this period of leave clearly proves that such employees are employees in service and cannot be said to be retired employees. It is further relevant to mention here that if the employees on leave preparatory to retirement are not to be treated as employees in service then what was reason for making specific provisions in Sub-Clause (3) of Regulation 3 and in Regulations 22, 24, 25, 31 of the Pensions Regulations 1993 for such employees. If the employees who were on leave preparatory to retirement on 1st January 1986 were not "in service employees" then only first line of Sub-Clause (3) of Regulation 3 was sufficient to exclude those employees from applicability of Regulations of 1993 and there was no need to insert words (excluding those on leave preparatory to retirement). The legislature has not used superfluous words in the various provisions of the Regulations 1993. The intention of the enactment might be to exclude these employees from pensionery benefits but even if it was the intention even then in must justified on the touchstone of Articles 14 of the Constitution of India. In fact Clause 22 which provides the employees on leave preparatory to retirement will have the choice as provided in Sub- clauses (a) & (b) of the Clause 22. Both these Sub-clauses unambiguously make it clear that if any employee wants to take benefit of pension then, as per Sub-Clause (a), he will have to encash the entire period of a accumulated leave preparatory to retirement, or as per Sub-clause (b), is required to avail of leave preparatory to retirement for completed months and encash the broken period of leave preparatory to retirement and only, thereafter, he can draw pension. It appears these provisions were made because the person on leave preparatory to retirement cannot be treated as retired employees and therefore, cannot be granted benefit during the period of such leave and therefore, he is given option to encash the leave so that he can be put into category of retired employees and can be granted pensionery benefits and no salary will be payable to the employees availing benefit under Sub-clauses (a) & (b) of the Clause 22. 15. In addition to above, the matter if is examined from another angle even then, the employees on leave preparatory to retirement, can be placed along with employees-in-service rather than with employee-who-took-benefit-of-lump- sum-payment under Sub-Clause (b) of Sub-Rule (4) of Rule 19 Rules 1982. 15. In addition to above, the matter if is examined from another angle even then, the employees on leave preparatory to retirement, can be placed along with employees-in-service rather than with employee-who-took-benefit-of-lump- sum-payment under Sub-Clause (b) of Sub-Rule (4) of Rule 19 Rules 1982. As held above, date of retirement given in Sub-rule (1) of Rule 19 is subject to Sub-Rule (4) of the Rule 19 which gives a different date for retirement for the employees on expiry of the leave. A bare reading of Clause (b) of the Sub-Rule (4) it is clear that no such deeming clause of retirement on future date is provided for those employees who took benefit of lump sum payment, no relation of employer and employees subsist between the Bank and the such employees, who took benefit of lump sum payment, and those employees are entitled to the post retirement benefits forthwith, they will not be paid salary from the date of age of superannuation, they will not be required to contribute towards any fund nor the employer will make any contribution towards the funds. They will not be entitled for any enhanced D.A. or any other benefit which will be available to the in-service-employees as well as the employees who are availing the benefit of leave preparatory to retirement. The learned Counsel for the respondent tried to submit that the employees who could not avail the leave during service period were given benefit of leave by this provision cannot be accepted. A person who opts for retirement and avails the benefit under Clause (b) of Sub-Rule (4) of Rule 19, he immediately gets rid of all his obligations and liabilities which a employee has and also gets lump sum payments of the earned leave which is given equivalent to the pay as defined in Rule 3(j) of the Rules of 1982. Therefore, the employees in Clause (b) of above Rules clearly stand with the retired employees whereas the employees of Clause (a) stand with the in service employees till the expiry of the period of leave. Since the employees retired after taking benefit under Clause (b) are treated as retired employees for all purposes, therefore, there was no need to make any provision to exclude them from applicability of the Pension Regulations, 1993; they are automatically excluded being retired employees. Since the employees retired after taking benefit under Clause (b) are treated as retired employees for all purposes, therefore, there was no need to make any provision to exclude them from applicability of the Pension Regulations, 1993; they are automatically excluded being retired employees. The relationship of master and servant is in existence in case of employees availing such leave and no such relationship exits with the employees who either took retirement or availed the benefit of getting lump sum payment under Sub-Clause (b) of Sub-Rule (4) of Rule 19. It is further relevant to mention here that no reason has been given in the reply by the respondents, why an employee who was entitled for all the service benefits and paid salary, has been excluded from the benefits of Pension Regulations, 1993 which are made available to other employees in service. 16. Sub-Clause (11) of the Pension Regulations, 1993, defines "Retirement", according to which, 'Retirement' means retirement in terms of Staff Rule 19 and other instructions issued by the National Bank under Settlements/Awards; Sub-Clause (a) of the Sub-Rule (4) of the Rule 19 of the Rules 1982 (Staff Rules) says final retirement of the employee will be on the expiry of leave preparatory to retirement, therefore, also it is clear from the Regulations, 1993, itself that employees like petitioner retires only after completion of the period of leave preparatory to retirement. If the employees who are availing benefit of leave preparatory to retirement are denied benefit which is available to the other in service employees then it will certainly create two classes among the similarly situated employees which are impermissible under law and hit by Article 14 of the Constitution of India. 17. The learned Counsel for the respondent strongly relies upon the judgment in the case of All India Reserve Bank Retired Officers Association and Ors. v. Union of India and Anr. reported in 1992(3) SLR 35 (SC) . 17. The learned Counsel for the respondent strongly relies upon the judgment in the case of All India Reserve Bank Retired Officers Association and Ors. v. Union of India and Anr. reported in 1992(3) SLR 35 (SC) . It is true that the clause of exclusion of employee of leave preparatory to retirement is available in Regulation 3(3) of the Reserve Bank of India Pension Regulations, 1999, excluding the employees who took the benefit of leave preparatory to retirement from the pensionary benefits but at the same time it is clear from the judgment itself that the matter was taken up by the union of the employees whose members were not affected by the exclusionary clause and controversy before the Hon'ble Supreme Court, was with respect to fixing a cut-off date only. The validity of exclusionary clause was neither under challenge nor any argument was advanced with respect to the legality and the validity of the clause nor any decision was given by the Supreme Court on the point which is under consideration in this writ petition. The facts of the aforesaid case, which was before the Supreme Court, reveals that the challenge by the employee's Association, was against the fixing of the cut-off date which according to the Association was only makes an artificial classification between those who retired on or before 31.12.1985 and those who retired 24 hour's latter, i.e. on or after 1.1.1986. It was submitted that it is artificial division of a homogeneous class of retired employee. The fixing of date was said to be arbitrary and unreasonable. In the light of above contention of the petitioner, matter was considered by the Supreme Court in the light of Regulations 3(3) and 31 of the Regulations of 1990. It was submitted that it is artificial division of a homogeneous class of retired employee. The fixing of date was said to be arbitrary and unreasonable. In the light of above contention of the petitioner, matter was considered by the Supreme Court in the light of Regulations 3(3) and 31 of the Regulations of 1990. The contention may be quoted here: "The petitioners, therefore, contended that obnoxious part of Regulations 3(3) and 31 which limit the benefit of the Pension-plan to only those employees who retired from service on or after 1.1.1986 should be struck down and instead the same should be liberalised and extended to all retired bank employees regardless of the date of their retirement provided they opt for the scheme and are ready and willing to abide by the condition of refunding the bank's contribution to the C.P.F. Scheme together with interest, if any, received by them and with further simple interest @ 6% per annum from the date of withdrawal of said amount till repayment."(Emphasis supplied) The Supreme Court there after observed as under: "The differential treatment accorded to those who retired prior to the specified date and those who retired subsequent thereto must justified on the touchstone of Article 14, for otherwise it would be offensive to the philosophy of equality enshrined in the Constitution. This is quite clear from the ratio of the Nakara's judgment as well as the decision of this Court in B. Prabhakar Rao and Ors. v. State of Andhra Pradesh, 1985 (3) SLR 138 (SC): 1985 Supp. 2 SCR 573 ....(Emphasis supplied) 18. On this background Honorable Apex Court proceeded to decide limited questions by specifically mentioning it as under: "We have, therefore, to consider the limited question whether the classification introduced by Clauses 3(3) and 31 of the Regulations is inconsistent with Article 14 of the Constitution as alleged by the petitioners." (Emphasis supplied) And considered another question which is as under: "But the moot question is whether it was open to the employer to grant the benefit of the pension scheme to one group of CPF retires who had retired from Bank service on or after 1st January, 1986 and deny the same to all those who had retired on or before 31st December, 1985. Is this division of CPF retirees discriminatory and violative of Article 14 of the Constitution?" (Emphasis supplied) Therefore, the Hon'ble Apex Court gave decision only on the point which was involved in the above case and held as under: "Lastly, the justification for fixing the cut-off date as 1st January, 1986 is that the newly introduced pension scheme is modelled on the lines of a similar scheme applicable to Central Government employees. The proposal to have a scheme similar to the one applicable to Central Government employees in lieu of the existing CPF scheme was mooted by the in-service Bank employees some time in 1986 and on the Central Government according sanction, it was brought into effect from 1st November 1990. That is why it was made applicable to those who retired in the meantime on or after 1st January, 1986. The underlying reason is to operate the scheme on the pattern of the scheme governing Central Government employees and to extend the benefit to those Bank employees who had demand the same." 19. After considering the entire background in which the scheme was framed, found that the matter with respect to the reasonableness of fixing of cut of date, the Supreme Court held as under: "The scheme introduced by the Regulation is a totally new one. It was not in existence prior to its introduction w.e.f. 1.11.1990. The employees of the Reserve Bank who had retired prior to that date were admittedly governed by the C.P.F. Scheme. They had received the benefit of employer's contribution under that scheme and on superannuation the amount to their account was disbursed to them and they had put it to use also. There can, therefore, be no doubt that the retiral benefits admissible to them under the extent rules of the bank had been paid to them. That was the social security plan available to them at the date of their retirement." The Hon'ble Supreme Court, after complete consideration of the dispute which was before the Hon'ble Supreme Court held that in fixing the cut off date the respondent had not acted malafide with a view to deprive those who had retired on or before 31.12.1985 of the benefit of the pension scheme and found that for reasons stated in the judgment, it was not practicable to extend the benefit to such retirees. The rational for fixing the cut off date as 1.1.1986 was the same as in the case of Central Government Employees based on recommendations of 4th Central Pay Commission. It examined whether by fixing a particular date any hostile discrimination has been made by the rules framing authorities or not discriminating the employees who retired on or before 31.12.1985. The questions which are raised in this writ petition were neither raised nor were relevant for the purpose of deciding the controversy raised in about All India R.B. Retired Officers Association's case. Since the Clauses 3(3) and 31 of the Regulations of the Regulations of 1990 had two parts. First part of it provides cut-off date, for which after the above decision of the Supreme Court no dispute survives and is also not in dispute here. Second part is the exclusionary clause excluding CPF holder retirees. Two classes were created in CPF holders retirees; one who retired on or after 1st January 1986 and second, who retired before 31st January 1986. Hon'ble Supreme Court held this division is also legal. This dispute is also stands finally settled by the above decision and this controversy is also not in this petition. Here in this case dispute is with respect the provision which alleged to have created two classes between CPF holder retirees, one who had retired on or after 1.1.1986 and another are the employees, who were availing leave preparatory to retirement on 1.1.1986. From the facts of the case and discussion in the judgment it is clear that this controversy was not subject matter before the Hon'ble Apex Court. Therefore, the judgment of All India Reserve Bank Retired Bank Association has no application to the facts of this case. 20. In the light of above decision of the Supreme Court, it is clear that the employees who retired before 1st January 1986 and who took benefit of lump sum payment entire retiral benefit on the date of their retirement, those employees were found not entitled to the benefit of a scheme which came in to existence after retirement of these employees. The employees were categorised into two categories namely, one employees-in-service and Anr. retired employees. The Supreme Court held as under: "The Bank employees were, however, clamouring for a pension scheme, firstly on a restricted basis as third retiral benefit and later in lieu of the CPF scheme. The employees were categorised into two categories namely, one employees-in-service and Anr. retired employees. The Supreme Court held as under: "The Bank employees were, however, clamouring for a pension scheme, firstly on a restricted basis as third retiral benefit and later in lieu of the CPF scheme. The Central Government had not approved of a pension scheme, as a third retiral in benefit. After that proposal was spurned it appears that the employees of the Bank demanded a pension scheme on the pattern of the scheme available to Central Government employees in lieu of the CPF scheme. This was approved by the Central Government and consequently it was introduced with effect from 1st November 1990 under the Regulations. There can, therefore, be no doubt that if the CPF retirees were not admitted to this new scheme they could not make any grievance in that behalf. They had no right to claim coverage under the new pension schemes since the head already retired and had collected their retiral benefits from the employer." (Emphasis supplied) 21. It is clear from the above decision of the Supreme Court that the CPF retirees were denied the benefit of the pension scheme on the ground that they retired before coming into force of the scheme. It is also true that one of the factors mentioned above is that payment of retiral benefit had been made to these CPF retirees but it appears that that was the fact taken note of by the Supreme Court. The material distinction for grant of pension benefits was only the status of the employee, whether he is retired or in-service? The employees who took the benefit of CPF scheme and retired after 31st December 1985 but before 1st November 1993 are not excluded altogether from the benefit of the scheme and rather are entitled to the benefit of the pension scheme as per the Sub-Clause (3) of Regulation 3 of the Pension Regulations, 1993 itself, they are only required to refund back the benefit which they have received. The employees who were on leave preparatory to retirement at relevant time, cannot be put along with employees whose relations with the employer had come to an end, therefore, they cannot be denied the benefit of Pension Regulations, 1993, merely because they received the payment of CPF amount. The employees who were on leave preparatory to retirement at relevant time, cannot be put along with employees whose relations with the employer had come to an end, therefore, they cannot be denied the benefit of Pension Regulations, 1993, merely because they received the payment of CPF amount. The questions which are raised in this writ petition were neither raised nor were relevant for the purpose of deciding the controversy raised in about All India R.B. Retired Officers Association's case. Since the Clauses 3(3) and 31 of the Regulations of the Regulations of 1990 had two parts. First part of it provides cut-off date, for which after the above decision of the Supreme Court no dispute survives and is also not in dispute here. Second part is the exclusionary clause excluding CPF holder retirees. Two classes were created in CPF holders retirees; one who retired on or after 1st January 1986 and second, who retired before 31st January 1986. Hon'ble Supreme Court held this division is also legal. This dispute is also stands finally settled by the above decision and this controversy is also not in this petition. Here in this it is clearly proved that provision under challenge created two classes between CPF holder retirees, one who had retired on or after 1.1.1986 and another are the employees, who were availing leave preparatory to retirement on 1.1.1986. This is discriminatory. 22. In view of the reasons given above, I respectfully disagree with the view taken by the Madras High Court in the case of P.N. Radhakrishnan v. Reserve Bank of India reported in 2001(3) SLR 208 (Mad.) , and the Delhi High Court in the case of H.L. Sethi v. Reserve Bank of India reported in 1996(4) SCT 307 as both the above decisions proceeded on assumption that the point in controversy with respect to the status of employers on leave preparatory to retirement had been decided by the Hon'ble Supreme Court, in the above said case. 23. Hence, the writ petition of petitioner is allowed with cost. It is held that the petitioner was in service as on 31st January 1986 (till 31st January 1986) and the exclusion of employees, who were on leave preparatory to retirement on 1st January, 1986, from the benefit of the Pension Regulations, 1993, is held to be discriminatory. 23. Hence, the writ petition of petitioner is allowed with cost. It is held that the petitioner was in service as on 31st January 1986 (till 31st January 1986) and the exclusion of employees, who were on leave preparatory to retirement on 1st January, 1986, from the benefit of the Pension Regulations, 1993, is held to be discriminatory. Exclusionary clause "(excluding those on leave preparatory to retirement)" provided in Sub-Clause (a) of Sub-Rule (4) of Rule 19, is declared ultra virus and is in violation to Article 14 of the Constitution of India. The respondents are directed to pay the pension to the petitioner, after adjusting amount of PF in accordance with the rules and regulations, along with interest @ 12 percent per annum from 1st January 1986, the date when pension became due for the petitioner.Petition allowed. *******