Allowed

Govind Purohit v. Bank of Inida and Ors.

Rajasthan HC10 Jan 2014CW/97/2009

Case brief

AI extract

What is this about?

Petitioner challenged denial of five years additional qualifying service for pension under Regulation 26. Court held petitioner met conditions regarding age relaxation and professional qualifications. Court rejected retrospective effect argument, ruling regulation applies to employees recruited before 1995 when pension extended. Petitioner entitled to benefit.

What did the court decide?

Petitioner entitled to addition of five years service in qualifying service for superannuation pension per Regulation 26; impugned order set aside.

Govind Purohit Vs Bank of Inida and Ors. — Pension and Retirement Benefits | Rajasthan HC (2014)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

¶3

S.B. Civil Writ Petition No.97/2009

Govind Purohit

Versus

Bank of India & Ors.

DATE OF ORDER : 10/01/2014 HON'BLE MR. JUSTICE M.N. BHANDARI

¶8

Mr. Mahendra Shah, for petitioner Mr. Ajay Shukla, for respondents

¶9

¶10

The petitioner is aggrieved by denial of benefit of 5 years service in pension as per Regulation 26 of Bank of India (Employees) Pension Regulations, 1995 (in short “Regulations, 1995” ).

¶11

Learned counsel submits that petitioner was appointed on the post of Industrial Relation Officer vide the order dated 14.02.1983. After the appointment, option for pension was sought and given by the petitioner. On retirement, he was extended pensionary benefits under the Regulations, 1995 but without adding 5 years service as per Regulation 26. The petitioner was thus denied benefit arising out of the Regulations of 1995.

¶12

Learned counsel for respondents submits that pension regulation came in the year 1995 thus having prospective effect, did not apply to the recruitment of 1983. The Calcutta High Court in the case of Sankar Nath Das Vs. Union of India

¶13

& Ors., reported in (2001) 3 CALLT 49 HC held that

¶14

¶15

Regulations of 1995 are having prospective effect and therein similar claim was rejected. In view of the above, the petitioner is not entitled to the benefit as per Regulation 26 of Regulations, 1995. Apart from the aforesaid, the petitioner is not conforming the conditions as given under Regulation 26(a) (b)(c) of the Regulations, 1995. If the second proviso to the said regulation is also looked into, the concessions are made admissible if the recruitment rules in respect of said service or the post contain specific provision that the service or post is one which carries benefit of this regulation. At the time when the petitioner was recruited, the service rule was not containing provision for benefit of regulation, rather it was not even possible as regulation came much subsequent in the year 1995. The recruitment rules were then amended subsequently in the year 2003 by adopting Regulations of RBI, though the petitioner retired somewhere in the year 2005. In view of the above, the petitioner is not entitled to the benefit under Regulation 26.

¶16

I have considered the rival submissions made by the parties and perused the record.

¶17

The denial of benefit of Regulation 26 is on two counts. Firstly, that Regulations are not having retrospective effect and secondly, the petitioner is not conforming the condition given under Regulation 26. I am deciding the second issue first.

¶18

¶19

To address the issue as to whether the petitioner is conforming all the conditions of Regulation 26 of Regulations, 1995 or not, the Regulation 26 is quoted hereunder for ready reference:

¶20

26. Addition to qualifying service in special circumstances .

¶21

An employee shall be 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 -

¶22

(a) for which post-graduate research, or specialist qualification or experience in scientific, technological, or professional fields, is essential; and

¶23

(b) to which candidates of age exceeding the upper age limit specified for direct recruitment are normally recruited.

¶24

(c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience:

¶25

Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits the service in the Bank is not less than ten years;

¶26

Provided further that this concession shall be admissible if the recruitment rules in respect of the said service or post contain specific provision that the service or post is one,

¶27

¶28

which carries benefit of this regulation;

¶29

Provided also that the recruitment rules in respect of any service or post, which carries the benefit of this regulation, shall be made with the approval of the Central Government.”

¶30

Perusal of regulation shows that benefit of additional service for pensionary purpose would be available on certain conditions. Petitioner's appointment was pursuant to the advertisement at Annexure-12. Therein, maximum age provided for the post of Industrial Relation Officer was 35 years as on 01.01.1982. It was relaxable by 3 years in case suitable candidates with sufficient experience would not be available. The petitioner was given appointment, though he was more than 35 years as on 01.01.1982. Thus, it becomes clear that relaxation in age was given and accordingly appointment was made exceeding upper age limit.

¶31

Learned counsel for respondents submitted that recruitment rules came in the year 2003. Thus, in absence of rules, no upper age limit was existing. The aforesaid has been contested by learned counsel for petitioner by referring to the Bank of India (Officers) Service Regulations, 1979.

¶32

I find that in both the circumstances, Regulation 26 has application on this case because even if regulation for recruitment was existing or not, the advertisement provided maximum age for appointment and the petitioner was over age as per the aforesaid. If Regulation 26 is looked into, it does not

¶33

¶34

refer for upper age limit specified under the Regulations but what has been mentioned is upper age limit specified for direct recruitment. The upper age limit for direct recruitment was specified in the advertisement thus the petitioner fulfils the conditions given under Regulation 26(b) and (c).

¶35

The other issue is as to whether the petitioner conforms requirement of Regulation 26(a). If advertisement is looked into, the post of Industrial Relation Officer requires professional education in the field of Labour Laws, Personal Management and Indian Industrial Relations. All those qualifications are related to professional field and possessed by the petitioner. Thus, it was a post which required special qualification in the professional field and possessed by the petitioner. In view of the above, the petitioner has conformed requirement of Regulation 26(a)(b) and (c) of the Regulations, 1995.

¶36

The question now comes regarding proviso. The proviso provides that concession shall be admissible if recruitment rules in respect of said service or post contain specific provision that service or the post is one which carries benefit of this regulation. The respondents have admitted amendment in the recruitment rules in the year 2003 by adopting Regulations of RBI. The petitioner retired from service in the year 2005. At the time of retirement, there was a rule to carry benefit as provided under Regulation 26. In view of the above, even proviso does not come as an obstacle for grant of benefit.

¶37

¶38

The other issue is as to whether Regulations, 1995 operate prospectively or retrospectively. The issue of application of Regulations prospectively comes in the picture only when a person retired prior to the Regulations and claimed pensionary benefits under it. The case in hand is not of that nature. It is therefore only, petitioner was extended benefit of the Regulation by giving pension.

¶39

The question aforesaid does not come in picture for those who are already in service and even asked to opt for pension under the Regulations. It is for that reason alone the petitioner was extended benefits of pension under Regulation, 1995 only. If Regulations of 1995 are having prospective effect then benefits should not have been extended to those who were recruited prior to 1995. The respondents have extended benefits of pension under Regulations of 1995 even to those who were recruited prior to the Regulation and opted for it. In view of the above, the regulations have been applied even on those who are recruited prior to the Regulations, 1995. The Regulation 3 also clarifies that it would be applicable to all the employees. The said regulation is quoted hereunder for ready reference:

¶40

“ 3 Application - These Regulations shall apply to employees who – (1) (a) were in the service of the bank on or after the 1st day of January 1, 1986 but had retired before the 1st day of November, 1993; and

¶41

¶42

(b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and

¶43

(c) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (d) the entire amount of the bank’s contribution to the Provident Fund including interest accrued thereon together with a further simple interest at the rate of six per cent annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or till the 1st day of April, 1995, whichever is earlier; or

¶44

(2) (a) have retired on or after the 1st day of November, 1993, but before the notified date; and

¶45

(b) exercise on option in writing within one hundred and twenty days from the notified date to become member of the Fund; and

¶46

(c) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (b) the entire amount of the bank’s contribution to the Provident Fund and interest accrued thereon together with a further simple interest at rate of six per cent per annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the bank; or

¶47

(3) (a) are in the service of the bank before the notified date and continue to be in the service of the bank on or after the notified date; and

¶48

(b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the fund; and

¶49

¶50

¶51

interest accrued thereon to the credit of the Fund constituted for the purpose under Regulation 5; or

¶52

(4) Join the service of the bank on or after the notified date; or

¶53

(5) were in the service of the bank during any time on or after the 1st day of November,1993 and had died after retirement but before the notified date, their family shall entitled for the amount of pension payable to them from the date on which they would have been entitled to pension under these regulations, had they been alive till the date on which they died, if the family of the deceased

¶54

(a) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and

¶55

(b) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (a) above the entire amount of the banks contribution to the provident Fund and interest accrued thereon together with a further simple interest at the rate of six per cent per annum from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or (6) Joined the service of the Bank on or after the 1st day of November, 1993 but who have died while in the service of the bank before the notified date, their family shall be entitled to the family pension under these Regulations :

¶56

Provided that the family of such a deceased employee refunds within one hundred and eighty days from the notified date the entire amount of the bank’s contribution to the Provident Fund, if any, and interest accrued thereon together with further simple interest at the rate of six per cent per annum, from the date of settlement of the provident fund till the date of refund of the aforesaid amount to the Bank;

¶57

Provided further that the family of such a deceased employe

¶58

¶59

shall apply in writing for grant of family pension; or

¶60

(7) Were in the service of the Bank during any time on or after the 1st day of January,1986 and had died while in service on or before the 31st day of October,1993 or had retired on or before the 31st day of October ,1993 but died before the notified date, in which case their family shall be entitled to the pension or the family pension as the case may be under these Regulations, if the family of the deceased,-

¶61

(a) exercise an option writing within one hundred and twenty days from the notified date to become member of the Fund ; and

¶62

(b) refund within sixty days of the expiry of the said period of one hundred and twenty days specified in clause (a) above the entire amount of the bank’s contribution to the Provident Fund and interest accrued thereon together with a further simple interest at the rate of six per cent per annum, from the date of settlement of the provident account till the date of refund of the aforesaid amount to the bank or till the 1st day of April,1995, whichever is earlier, or

¶63

(8) Joined the service of the bank on or before the 31st day of October,1993 and who died while in service on or after the 1st day of November, 1993 but before the notified date, in which case their families shall be entitled to family pension under these Regulations if the family of the deceased employee,-

¶64

(a) exercise an option in writing within one hundred and twenty days from the notified date to become a member of the Fund; and

¶65

(b) refund within sixty days of the expiry of the said period of one hundred and twenty days specified in clause (a) above the entire amount of the bank’s contribution to the provident Fund, including interest accrued thereon from the date of settlement of the provident Fund account of the employee till

¶66

¶67

the date of refund of the aforesaid amount to the banks.

¶68

(9) Notwithstanding anything contained in sub regulations (1), (2), (3), (5) and (8) an option exercised before the notified date by an employee or the family of a deceased employee in pursuance of the settlement shall be deemed to be an option for the purpose of this chapter if such an employee or the family of deceased employee refund within sixty days from the notified date, the amount of the Bank’s contribution to the Provident Fund including interest accrued thereon together with a further simple interest in accordance with provisions of this Chapter and in case employer’s contribution of provident Fund has not been received from Provident Fund Trust has authorized or authorizes within sixty days from the notified date the trustees of the Provident Fund of the Bank to transfer the entire contributions of the Bank to the Provident Fund including interest accrued thereon in accordance with the provisions of this Chapter to the credit of the Fund constituted for the purpose under Regulation 5.

¶69

(10) Notwithstanding anything contained in sub-regulations (2), (5), (6) and (8), in cases where an employee had retired /died after retirement on or after the 1st day November, 1993, but on or before the 1st day of April,1995, or where an employee had died while in service of the bank on or after the 1st day of November,1993, but on or before 1st day of April, 1995, such an employee or the family of the deceased employee, as the case may be, shall refund within the period specified in aforesaid sub-regulation the entire amount of the bank contribution to the Provident Fund including interest accrued thereon with a further simple interest at the rate of six percent per annum on the said amount from the date of settlement of the provident fund account till the date of refund of the aforesaid amount to the bank or till the 1st day of April,1995, whichever is earlier.”

¶70

¶71

The regulation referred to above shows its application on all the existing employees whether appointed prior or after the Regulations of 1995. Thus, question of prospective or retrospective of Regulations of 1995 does not arise in the instant case.

¶72

Now the issue is required to be considered specifically in reference to the second priviso to Regulation 26. According to the learned counsel for respondents, the aforesaid regulation is prospective in nature. At the first instance, it is necessary to clarify that a particular regulation cannot apply prospectively or retrospectively. The entire regulation has to be applied either prospectively or retrospectively. It cannot be that in peace meal it will apply prospective or retrospective.

¶73

The much emphasis has been led on the second proviso to show its prospective effect. The proviso shows that concession as given under Regulation 26 would apply only if such an arrangement is made under the recruitment rules. The respondents have already adopted RBI Regulations for that purpose in the year 2003 itself. The petitioner retired from service in the year 2005 thus it is subsequent to the amendment in the recruitment rules. At the time of retirement, required provision was existing under the recruitment rules so as to give benefit of Regulation 26. It cannot be denied to a person retired subsequent to the year 2003 inasmuch as the condition under second proviso is not to the effect that benefit

¶74

¶75

of Regulation 26 would be available from the date, concession is given in the recruitment rules. If the intention of second proviso would have been, as urged by the learned counsel for respondents then it would have been in different terms. In view of the above, I am unable to agree with any of the arguments raised by learned counsel for respondents. The issue of retrospective of Regulation 26 of Regulations, 1995 has been dealt with by Madras High Court in the case of Thirikooda Rajaapan Vs. Chairman and Managing Director, Vijay Bank in the Writ Petition No.14364/1997 , though Calcutta High Court has taken view otherwise in the case of Sankar Nath Das (supra). The perusal of judgment of Calcutta High Court shows a decision in reference to Annexure-F. Therein, Bank took a decision to apply regulation on the employees recruited subsequently. The similar decision does not exist in the instant case. At the time of retirement of the petitioner, not only recruitment rules were existing to provide required concession but Regulations of 1995 were given effect retrospectively on all the employees recruited prior to it. Thus the respondents cannot take interpretation of a particular regulation so as to have prospective effect and apply on all those who are recruited subsequent to the amendment in recruitment rules. The second proviso to Regulation 26 does not specify its application from the date of amendment in the recruitment rules.

¶76

¶77

The writ petition is accordingly allowed and the impugned order is set aside. The respondents are directed to revise the pension of the petitioner by adding 5 years service as per Regulation 26 of Regulations of 1995. The revised pension may be extended with arrears within a period of three months from the date of receipt of copy of this order.

¶78

[M.N.BHANDARI], J.

¶79

FRBOHRA/97CWP2009.doc

¶80

Certificate:

¶81

“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.”

¶82

FATEH RAJ BOHRA, SR.P.A.

Govind Purohit v. Bank of Inida and Ors.

Case brief

What is this about?

What did the court decide?

Govind Purohit v. Bank of Inida and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ratan Kumar Rana Vs R P S C Ajmer and Anr.

Surendra Pal Singh Vs U O I and Ors.

Gopal Ram Vs State Education Departmentors

Jugal Kishore Vs State of Raj and Ors.

Sumer Chand Jain Vs State of Raj and Ors.

Mohan Lal Saini Vs State of Raj and Anr.