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2003 DIGILAW 239 (PAT)

Sheojee Chaubey v. Union Of India

2003-02-27

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of writ in the nature of mandamus commanding the respondents to accept the petitioners voluntarily retirement under the S.B.I. Voluntary Retirement Scheme. By way of amendment the prayer made by the petitioner is to quash the communication as contained in letter dated 13.3.2001 (Annexure-10) whereby petitioner has been informed that his request for retirement under the S.B.I. Voluntary Retirement Scheme has been rejected as he was below the cut off age. 2. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner is an officer in MMGS-II Scale. The respondent-State Bank of India, hereinafter referred to as the Bank, in order to optimise their efforts to human resources and achieve a balanced age and skills profile rn keeping with their business strategies came out with a Scheme known as State Bank of India Voluntary Retirement Scheme (hereinafter referred to as the Scheme). Clause 3 of the said Scheme inter alia provides for eligibility. Same reads as follows : 3. Eligibility: The Scheme will be open to all permanent employees of the Bank, except those specifically mentioned as ineligible who have put in 15 years of service or has completed 40 years of age as on 31st December, 2000. Age will be reckoned on the basis of the date of birth as entered in service record. Ineligible The following categories of employee are ineligible under the Scheme ; i) Staff members who have executed bonds and have not completed it; staff members serving abroad under the special arrangements/bonds. The Board of Directors may, however, waive this, subject to fulfilment of the bond/ other requirements. ii) Employees against whom Disciplinary Proceedings are contemplated/ pending or who are under suspension. This will also include employees against whom action has been initiated by Government Agencies/other law enforcing agencies. iii) Employees appointed on contract basis. iv) Watch and ward staff. v) Specialist Officers. vi) Highly skilled and qualified staff. 3. Clause 7 of the said Scheme has conferred discretion to the Bank in regard to the acceptance or rejection of the request for retirement under the Scheme. Same reads as follows:- "7. Other Features The Bank intends to control the outflow according to its requirements. Towards this end, the Bank retains the discretion to limit the number of employees allowed to retire in each category of staff viz. Same reads as follows:- "7. Other Features The Bank intends to control the outflow according to its requirements. Towards this end, the Bank retains the discretion to limit the number of employees allowed to retire in each category of staff viz. officer/clerical-cash/subordinate, to be covered under SBIVRS. As such the Bank will have the sole discretion as to the acceptance or the rejection of the request for retirement under SBIVRS depending upon the requirements of the Bank. For the purpose of exercising discretion in this regard, category wise lists of eligible applicants would be prepared in descending order of their age and applications of employees coming in higher age groups above cut-off age would be accepted; the cut-off age in each categories will of course depend upon the acceptable number of employees who can be permitted to retire. No voluntary retirement shall be deemed to have come into effect unless the decision of the competent Authority has been communicated in writing. 4. Clause 8(ix) of the Scheme inter reserves the right of the Bank to modify/ amend or cancel any of the aforesaid Clauses of the Scheme and to give effect thereto from any dates it may deem fit. 5. Petitioner having put in 15 years of service in the Bank and completed 40 years of age on 31st of December, 2000, opted for voluntary retirement under the Scheme. It seems that in pursuance of the Scheme large number of employees of different categories working in the Bank opted under the Scheme and in the light of Clause 7 of the Scheme category-wise lists of eligible applicants were prepared. On consideration of the number of applications filed seeking voluntary retirement under the Scheme, the respondent-Bank decided that request of only those officers, who have completed 55 years of age as on 31st of December, 2000 shall be accepted. Relevant portion of the decision is herein after quoted:- "2. Accordingly, the scheme was kept open during the period 15th January, 2001 to 31st January, 2001 (inclusive both days). During this period, 35,380 applications have been received. The category-wise break-up of these applications is as under:- CATEGORY ACTUAL STRENGTH NO OF APPLICANTS PERCEN TAGE Officers 50,474 19,295 32.44 Cl-Case 1,15,424 12,948 11.22 Sub-Staff 58,535 3,137 5.36 3. While the Scheme is voluntary nature and in the decision to seek retirement under SBIVRS rests with the eligible employees only. During this period, 35,380 applications have been received. The category-wise break-up of these applications is as under:- CATEGORY ACTUAL STRENGTH NO OF APPLICANTS PERCEN TAGE Officers 50,474 19,295 32.44 Cl-Case 1,15,424 12,948 11.22 Sub-Staff 58,535 3,137 5.36 3. While the Scheme is voluntary nature and in the decision to seek retirement under SBIVRS rests with the eligible employees only. The managent has retained the discretion to limit the number of employees allowed to retire under the SBIVRS, in each category of Staff, so as to ensure against an exodus of a very large number of staff which may destablise the normal operations of the Bank. 4. This aspect was also discusse earlier in a meeting of the CENMAC when a view emerged that in each, category of staff around 10% employee may be allowed to retire under SBIVRS, From the above data it may be observed that the percentages of applications received from Clerical Staff and Subordinate Staff work out to 11.22 and 5.36 respectively. However, in respect of officers the percentage works out to 32.44. If such a large number officers are allowed to retire, it would certainly destablise the operation. With a view to restricting therefore, the number of officers to be allowed to retire under SBIVRS to an acceptable number, we have ascertained the age profile of the applicants and observed as under:- AGE NUMBER OF OFFICERS APPLYING FOR VRS AS A PERCENTAGE OF TOTAL NUMBER OF OFFICERS IN THE BANK 54 and above 10,590 17.81 55 and above 7,983 13.42 56 and above 5,709 9.60 It appears that while at the cut-off age of 56 and above, 9.60% officers will retire, in case of 54 and above, a much higher 17.81% of officers will retire; at the mid point of 55 and above, 13.42% of officer will quality for retirement,which is closer to 10% with a positive bias. Moreover, the undernoted factors also weigh in favour of the mid point cut-off XXX XXX XXX 6. Accordingly, while all the eligible applications of workmen staff may be accepted as far as officers are concerned all the eligible applications of the officers who have completed 55 years of age as on 31st December, 2000 may be accepted. 6. Moreover, the undernoted factors also weigh in favour of the mid point cut-off XXX XXX XXX 6. Accordingly, while all the eligible applications of workmen staff may be accepted as far as officers are concerned all the eligible applications of the officers who have completed 55 years of age as on 31st December, 2000 may be accepted. 6. It is not the stand of the petitioner that he had completed 55 years of age on 31st of December, 2000, In the light of the aforesaid decision of the respondent-Bank, by the impugned order petitioner was informed about non-acceptance of his request for retirement under the Scheme. 7. Mr. K.N. Choubey, Sr.Advocate appearing on behalf of the petitioner submits that the petitioner is eligible for seeking voluntary retirement under the Scheme and in that view of the matter, respondent Bank had no option than to accept his request for voluntary retirement. He emphasises that the petitioner is a permanent employee of the Bank, has put in 15 years of service and has also completed 40 years of age on 31st December, 2000 and in that view of the matter, he is eligible in terms of the Scheme. He also points out that the petitioner does not suffer any disqualification as provided under the heading "ineligible" under Clause 3 of the Scheme. He submits that once the petitioner is held eligible under the Scheme, respondent Bank has no option than to accept his voluntary retirement and it is a fit case in which mandamus be issued commanding the respondent-Bank to accept the voluntary retirement. In support of his submission he has placed reliance on a judgment of a learned single Judge of Karnataka High Court in the case of Adhilesesha Reddy vrs. Bharat Gold Mines Ltd. (1992 II CLR 1053) and my attention has been drawn to the following passage of the said judgement: "In the case of compulsory retireent, it is the discretion that is given to the Management of the Employer to retire an unwanted employee irrespective of whether the employees strength is Surplus or otherwise, whereas, voluntary retirement is the choice given to an employee. For the reason best known to him he can seek for his retirement voluntarily without any objection from the Management. For the reason best known to him he can seek for his retirement voluntarily without any objection from the Management. The factors of financial stringency, non-surplus staff or requirement of service of the employees are not sufficient grounds to refuse the request for voluntary retirement. Further the request for voluntary retirement can be refused only when the Rules or the service conditions give such options to the Employer." 8. Mr. Shailesh Kumar Sinha, Sr. Advocte appearing on behalf of the respondents however submits that merely the fact that the petitioner is eligible in terms of the Scheme, that shall not itself entitle him for acceptance of voluntary retirement. He points out that the matter was considered by the respondent-Bank in terms of Clause 7 of the Scheme and it was decided that officers who have attained the age of 55 years on 31st of December, 2000, their offer for voluntary retirement shall only be accepted. Petitioner admittedly had not attained the age of 55 years on 31 st December, 2000, mandamus sought for by him not fit to be granted. 9. Having appreciated the rival submission, 1 do not find any substance in the submission of Mr. Choubey. It is relevant here to state that while fixing the eligiblity criteria, discretion has been conferred on the Bank in regard to the acceptance or rejection of the request for voluntary retirement under the Scheme which would be evident from Clause 7 of the Scheme. The object of the Scheme was to optimise the human resources and achieve a balanced age and skills profile in keeping with the business strategy of the Bank and in view of more number of applicants seeking voluntary retirement, the respondent-Bank decided to accept the applications of only those officers who have attained the age of 55 years. It is one thing to say that some one is eligible for an office but eligibility itself shall not confer such person the right to hold the office itself. It is relevant here to state that while framing the Scheme, the Bank had made it clear that for the purpose of exercising discretion in this regard, caitegory-wise lists of eligible applicants shall be prepared in descending order of their age and applications of employees coming in higher age groups above cut-off age shall be accepted. It is relevant here to state that while framing the Scheme, the Bank had made it clear that for the purpose of exercising discretion in this regard, caitegory-wise lists of eligible applicants shall be prepared in descending order of their age and applications of employees coming in higher age groups above cut-off age shall be accepted. Hence I am of the opinion that the decision taken by the respondent-Bank is on consideration of the relevant materia! and cannot be faulted on any account. 10. Now reverting to the decision of the Karnataka High Court in the case of Adhisesha Reddy (supra), relied on by the petitioner, I am of the opinion that the same instead of supporting the case of the petitioner goes against him. In the said case it has been held that the request for voluntary retirement can be refused only when the rules or the condition give such option to the employer. Here in the present case, in the Scheme itself the discretion has been conferred on the Bank either to accept or reject the request for voluntary retirement. Prayer of the petitioner for voluntary retirement under the Scheme has not been rejected on flimsy ground. It is the decision of respondent-Bank that voluntary retirement of only those officers shall be accepted, who had completed 55 years of age on 31st December, 2000. It is not the case of the petitioner that voluntary retirement of any person less than 55 years of age on 31st December, 2000 has been accepted or for that matter he was 55 years of age on 31.12.2000. 11. Mr. Choubey then submits that even if it is held that the respondent-Bank had discretion in regard to the acceptance or rejection of the prayer for voluntary retirement is rejected on extraneous consideration, same cannot be said to be iegal and has to be set aside by this Court in exercise of its writ jurisdiction. In support of his submission reliance has been placed on a decision of the Supreme Court in the case of Manjushree Pathak vrs. In support of his submission reliance has been placed on a decision of the Supreme Court in the case of Manjushree Pathak vrs. The Assam Industrial Development Corporation Ltd. and others ( AIR 2000 S.C. 2769 ] and my attention has been drawn to paragraph15 of the judgment, which reads as follows : "The Division Bench of the High Court has failed to see that the scheme conferred discretion on the corporation under Clause 8.1 coupled with the duty to act judiciously when application for voluntary retirement was made by an employee. The said clause did not confer any unfettered discretion upon the corporation to refuse the benefit of the scheme to any employee being an authority coming within the meaning of Article 12 of the Constitution. It was not open to the Managing Director of the respondent-Corporation to act on extraneous consideration by issuing a show cause notice dated 15/16-2-1996 so as to deprive the appellant of the benefit flowing from acceptance of her voluntary retirement. It is true that under clause 8.1 of the Scheme discretion was available to the respondent-corporation but that discretion was not absolute." 12. There is no difficulty in accepting the broad submission of Mr. Choubey that when discretion is conferred upon authority, it cannot be said to be absolute or subjective. It has to be guided by reasons but this itself does not advance the case of the petitioner. As stated earlier, the respondent Bank decided to accept the prayer of the petitioner for voluntary retirement of only those officers who have attained the age of 55 years on 31.12.2000. In that view of the matter, it cannot be said that the discretion exercised by the Bank was in any way arbitrary based on irrelevant consideration. 13. Mr. Choubey lastly submits that Voluntary Retirement Scheme was open to all permanent employee of the Bank and the respondent-Bank illegally accepted the voluntary retirement of those employees who were not permanent employees of the Bank. In this connection Mr. Choubey has drawn my attention to Rule 19(1) of the State Bank of India Officers Rules and contends that an officer of the Bank had to retire on attaining the age of 58 years of service or upon completion of 30 years pensionable service if he is a member of the Pension Fund whichever occurs first. In this connection Mr. Choubey has drawn my attention to Rule 19(1) of the State Bank of India Officers Rules and contends that an officer of the Bank had to retire on attaining the age of 58 years of service or upon completion of 30 years pensionable service if he is a member of the Pension Fund whichever occurs first. Rule 19(1) of the Rules which is relevant for the purpose reads as follows : "19(1). An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completion of thirty years service or thirty years pensionable service if he is a member of the Pension Fund, whichever occurs first : Provided that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight years or has completed thirty years pensionable service as the case may be, should such extension be deemed desirable in the interest of the Bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension : Provided further that an officer who had joined the service of the Bank either as an officer or otherwise on or after july19,1969 and attained the age of 58 years shall not be granted any futher extension in service : Provided further that an officer may, at the discretion of the Executive Committee, be retired from the Banks service after he has attained 50 years of age or has completed 25 years service or 25 years pensionable service as the case may be, by giving him three months notice in writing or pay in lieu thereof : Provided further that an officer who has completed 20 years service or 20 years pensionable service, as the case may be, may be permitted by the competent authority to retire from the banks service, subject to his giving three months notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived by it." 14. Mr. Mr. Choubey submits that persons who have completed 30 years of service and whose services have been extended under the proviso of the said Rule and thus ceasing to be permanent employee have also been covered under the Scheme and as such ineligible persons have been conferred with the benefit and the eligible person denied the same. Mr. Sinha however submits that on completion of 30 years of service the cases of officers for extension of services are considered and after the extension is granted they continue as permanent employee of the Bank upto the age of superannuation and in that view of the matter, it cannot be said that benefit has been conferred on ineligible employee. 15. Having appreciated the rival submission I do not find any force in the submission of Mr. Choubey. Officers whose services have been extended on completion of 30 years of service before attaining the age of superannuation do not cease to be the permanent employee of the bank and as such their cases are also covered under the Scheme. I do not find any illegality in the same. 16. In the result, I find no merit in the application and it is dismissed with costs to be paid by the petitioner to respondent no.3, quantified at Rs. 1200/- (Rupees one thousand two hundred).