IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.01.2010 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT APPEAL NO.156 OF 2007 P.M. Prabakaran ... Appellant Vs. 1. The State Bank of India rep. by its Chief General Manager Local Head Office Madras – 1. 2. Union of India rep. by its Secretary Ministry of Finance Department of Economic Affairs New Delhi (Banking Division). ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent Act against the common order passed in W.P.No.1782/1994, dated 22.7.2005. Presented under Article 226 of the Constitution of India, to issue a writ of declaration, declare Rule 8(a), 20 in so far as its seeks to exclude service rendered by an employee before the date of his Admission to the SBI Employees Pension Fund and after the age of completion of 58 years of age and Rule 22 of the SBI employees Pension Fund Rule 1955 and the Foot Note to Staff Circular No.PER 48/85 dated 09-10-1985 and the consequential letter dated 12-08-1992 of the Branch Manager, Chetpet Branch as illegal, arbitrary and violative of Article 14 of the Constitution of India consequently direct the respondent to pay the petitioners pension on the RBI (Pension Regulations)90 counting the entire period of the service from February 1970 till 31-05-1992, the date of retirement together with penal interest at 24% per annum. For Appellant : Mr. B. Divakaran https://hcservices.ecourts.gov.in/hcservices/ For Respondent No.1 : Mr. G. Masilamani Senior Counsel for M/s. G.M. Mani Associates J U D G M E N T N. PAUL VASANTHAKUMAR, J. This writ appeal is directed against the order of the learned single Judge made in W.P.No.1782 of 1994, dated 22.7.2005, wherein the learned single Judge dismissed the writ petition along with the connected writ petitions. 2. The prayer in the writ petition filed by the appellant herein is for a declaration declaring Rule 8(a) & 20 of the State Bank of India Employees' Pension Fund Regulations, in so far as it seeks to exclude service rendered by an employee before the date of his admission to the State Bank of India Employees' Pension Fund and after the age of completion of 58 years of age and Rule 22 of the said Rules, 1955 and the foot note to Staff Circular No.PER/48/85, dated 9.10.1985 and the consequential letter dated 12.8.1992 of the Branch Manager, Chetpet Branch, as illegal, and direct the respondent-bank to pay pension to the appellant on par with the Reserve Bank of India (Pension Regulations), 1990, counting the entire period of service from February, 1970 till 31.5.1992, the date of retirement together with penal interest at 24% per annum. 3. The brief facts necessary for the disposal of this appeal are that the appellant is an ex-serviceman. After the discharge from military service, he was appointed in Nungambakkam Branch of State Bank of India as an Armoured Guard temporarily in February, 1970 and on 10.10.1973, he was temporarily appointed as Havildhar in the respondent-bank. The appellant's service was confirmed as Havildhar from 10.4.1974 and he retired from service on 31.5.1992 as his date of birth is 16.5.1932. After retirement, the appellant submitted an application for pension and the same having been rejected on 12.8.1992, the appellant has filed the above writ petition with the above said prayer contending that he has completed more than 20 years of service in the bank including the temporary service both as Armoured Guard and Havildhar and as such he is entitled to get pension and the rejection of his request based on the State Bank of Employees' Pension Fund Rules relying on Regulation 7(a), 20 and 22 are illegal and for consequential prayer for the sanction of pension. The main ground of attack is that the Regulation, which states that the services rendered to the bank prior to the confirmation is not eligible for pension is arbitrary and the appellant having rendered the service for over 22 years cannot be denied of pension. https://hcservices.ecourts.gov.in/hcservices/ 4. The contention of the respondent-bank is that the Regulations of the year 1955 are applied uniformly to all the State Bank of India Employees and it is a scheme prescribing certain eligibility to become a member of the pension funds and the employee concern should also contribute towards the pension fund and the management will also bound to contribute if an employee is eligible to become a member of the fund and the quantum of contribution will be ascertained based on the length of service available to the concerned employee and therefore, grant of pension cannot be made automatic on completion of certain number of years of service. The learned single Judge dismissed the writ petition having found that there is no merit in the writ petition. 5. The learned counsel for the appellant argued that the impugned Regulations are arbitrary and the power of giving confirmation to the service being vested with the bank, the appellant cannot be put to prejudice merely because he was confirmed after about three years and if the appellant's service from the date of appointment is counted, he is having more than 20 years of service and no demand being made to contribute to the said pension fund, the appellant cannot be blamed for not contributing the same and the appellant is willing to pay his share of contribution with interest. 6. The leaned Senior Counsel appearing for the bank on the other hand submitted that though the appellant was temporarily appointed as Armoured Guard in February, 1970 and from 10.10.1973, he was appointed as Havildhar on temporary basis and his service being confirmed only from 10.4.1974 and after confirmation, the appellant did not care to make a claim for pension by paying his contribution either submitting the application prescribed in form under Regulation 26 or making a representation during his entire service and only after his retirement, he has given representation for the grant of pension. The learned Senior Counsel also submitted that as per Regulation 7 to claim pension, one should join as a member of the pension fund and also satisfy the other conditions of the bank contained in Regulations 8, 9, 20 and 22 and as per the said Regulations, mere confirmation in the bank service is not sufficient and the employee should not have completed 38 years of age on confirmation in service and the appellant had completed more than 40 years of age on the date of confirmation and therefore, he is ineligible to be a member of the pension fund. 7. The learned Senior Counsel also submitted that unless and until the appellant signs a declaration as required under Regulation 26, which is accepted by the bank and contribute 5% of his salary towards the fund, he will not be admitted as a member of the fund and thereafter only 10% of the salary will be paid by the bank towards the pension fund of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned Senior Counsel for the respondent-bank submitted that the Pension Regulation is a self-contained scheme, which is in vogue from 1.7.1955 and also the employees who have not joined in the pension fund are not given pension for all these years and therefore, there is no discrimination or arbitrariness as alleged by the appellant. The learned Senior Counsel also submitted that there is an unreasonable delay on the part of the appellant in filing the writ petition, as the appellant joined in the confirmed service of the bank on 10.4.1974 and retired from service on 31.5.1992 and thereafter only, he has chosen to submit a representation in June, 1992 and filed the writ petition in the year 1994. The learned Senior Counsel also submitted that the appellant is aware of the Regulations even in the year 1974 and the appellant acquiesced himself and received full pay without paying contribution and therefore the same is liable to be dismissed. 9. We have considered the rival submissions made by the learned counsel for the appellant as well as the learned Senior Counsel for the first respondent. 10. The facts in this case are not in dispute. The appellant was appointed as a temporary Armoured Guard in February, 1970 and again appointed temporarily as Havildhar on 10.10.1973 and his service was confirmed as Havildhar on 10.4.1974 and from the date of confirmation, the appellant received full salary without any deduction or paying contribution towards pension funds. The Pension Regulation of the State Bank of India is in existence from 1.7.1955 and the appellant is aware of the entire Regulation. Rule 7 of the State Bank of India Employees' Pension Fund Rules clearly states that the permanent employee of the bank, who is entitled to pension benefits under the terms and conditions of his service shall become a member of the funds from the date from which he is confirmed in the service of the bank. Rule 7 reads as follows:- " 7. Save as provided in rule 8, every permanent employee (including a permanent part-time employee who is required by the Bank to work for more than six hours a week) in the service of the Bank who is entitled to pension benefits under the terms and conditions of his service shall become a member of the Fund from- a) the date from which he is confirmed in the service of the bank, or b) the date from which he may be required to become a member of the Fund under the terms and conditions of his service." 11. The eligibility to become a member of the fund is stated in Rule 8. Rule 8 reads as follows:- " 8. Save as provided in Rule 25, no employe shall be eligible to become a member of the fund:- https://hcservices.ecourts.gov.in/hcservices/ a) if he is a member of the Imperial Bank of India Employees' Pension and Guarantee Fund or if he is engaged in any country outside India and appointed for service in such country; b) if he is below 21 years of age c) If he is over 38 years of age ; or d) Whose service is specially declared by the Bank to be non-pensionable." 12. Rule 9 deals with the contribution and the maintenance of the pension fund, which is stated as follows:- " 9 (i) subject as hereinafter provided every employee shall, as from the date of his admission to the fund, contribute to the fund every month an amount equal to five percent of his salary subject to a maximum contribution of Rs.90/- per mensem. In respect of any period in which the full salary of an employee is not payable to him, his contributions shall be calculated on his reduced salary, if any. The contributions shall be made by deductions from salary and shall cease when an employee ceases to be in pensionable service in terms of Rule 20." 13. Rule 20 deals with reckoning of the period of service for a member of the fund to get pension. Rule 22 deals with payment of pension to a person required from the bank service, who is the member of the fund. 14. From the above said Rules, it is clear that the following conditions are to be satisfied by a person to become a member of the fund. i) Employee must have been in confirmed service. ii) He must not be aged below 21 and above 38 years and he should submit an application in the prescribed form required under Rule 26 and thereafter, he should contribute from his salary towards pension fund, 5% of his monthly salary subject to a maximum of Rs.90/- per month and if the contribution is made by the employee, the management will contribute the same equal to 10% of the salary of the employee. Thus, it is manifest that the Employees Pension Fund Rules is a self-contained code and the provisions contained therein are to be satisfied for claiming pension. As rightly contended by the learned Senior Counsel appearing for the respondent-bank, unlike the pensioners of central and the State Government service, there must be a contribution on the part of the employee towards the pension fund and the quantum of contribution will be decided depends upon the number of years of service. Mere completion of certain number of years of service is not the criteria for claiming the pension in so far as the State Bank of India Employees' are concerned. The appellant has not placed any material to show that the State Bank of India Employees Pension Fund Rules is unreasonable or arbitrary. When there is a scheme to pay https://hcservices.ecourts.gov.in/hcservices/ subscription towards the pension fund, without paying the subscription to become a member of the fund, it is not open to the appellant to claim pension. We are unable to see any arbitrariness or unreasonable in the pension Regulation, as it has been applied uniformly to all the employees. 15. The appellant also cannot compare the Reserve Bank of India Pension Regulation, 1990 as it governs the Reserve Bank of India Employees alone. The Supreme Court repelled a similar contention for payment of enhanced amount of gratuity claimed from the very same respondent bank employees who retired from service prior to 24.9.1997 in the decision reported in JT 2001 (5) SC 635 (Shitla Sharan Srivastava & Others vs. Government of India & Others). 16. The learned Senior Counsel appearing for the respondent- bank also vehemently contended that the writ petition is liable to be dismissed on the ground of acquiescence. From the materials available on record, it is evident that the appellant has not chosen to raise any grievance for not admitting him in the pension fund or attempted to pay contribution towards pension fund during his entire period of service i.e. from 10.4.1974 to 31.5.1992. The appellant is fully aware of the Regulation, which is in force from 1.7.1955. Admittedly, the appellant received full salary during his entire service without paying any contribution of 5% of his pay and therefore, he has taken advantage of even not remitting the pension contribution. It is not open to the appellant after retirement to contend that he should have been permitted to remit contribution so that he could have contributed towards pension fund and eligible to get pension. The appellant is also age barred even on the date of confirmation under the Regulation, as he has crossed the age of 38 years as on 10.4.1974. By not challenging the Regulation, while he was in service, the appellant himself received all benefits and therefore, he is not entitled to challenge the Regulations after retirement that too after receiving all the benefits. Hence, the doctrine of acquiescence will apply to the facts of this case. 17. Admittedly, the writ petition is filed in the year 1994 and even the representation was submitted by him only on 5.6.1992 i.e. after his retirement. The terminal benefits of the appellant were sanctioned by the respondent-bank on 15.5.1992. The rejection order passed by the bank even though is dated 12.8.1992, the appellant being aware of the said Rules, there is an unreasonable delay on the part of the appellant in filing the writ petition challenging the Rules in the year 1994. Hence, the appellant is not entitled to get any relief in the writ appeal. No case is made out to allow the writ appeal filed by the appellant seeking either to grant declaration or for the sanction of pension. https://hcservices.ecourts.gov.in/hcservices/ The writ appeal is dismissed. No costs. kb Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Chief General Manager State Bank of India Local Head Office Madras – 1. 2. The Secretary Union of India Ministry of Finance Department of Economic Affairs New Delhi (Banking Division). + 1 cc to Mr. B. Divakaran, Advocate SR No.2191 + 1 cc to M/s.G.M.Mani, Advocate SR No.2142 W.A.No.156 of 2007 TEJ(CO) SR/25.1.2010 https://hcservices.ecourts.gov.in/hcservices/