IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 21045 of 2006(E) ------------------------------------ PETITIONER(S): ---------------------- MRS.SANTHA SAKKU BAI, CLERK/CASHEER (RETD.), STATE BANK OF TRAVANCORE, ANANDAVALEESWARAM BRANCH, NOW RESIDING AT FLAT 5A, CENTRAL ZONE APTS., ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): ------------------------ 1. STATE BANK OF INDIA, REP. BY ITS CHAIRMAN, STATE BANK BHAVAN, MUMBAI-400 021. 2. STATE BANK OF TRAVANCORE, REP. BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM. SENIOR ADV. SRI.P.G.PARAMESWARA PANICKER, FOR R1 ADV. SRI.P.GOPAL FOR R1 ADV. SRI.P.RAMAKRISHNAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21045/2006-E APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE SBT VOLUNTARY RETIREMENT SCHEME ISSUED BY R1. EXT.P2 COPY OF THE APPLICATION FOR VOLUNTARY RETIREMENT EXT.P3 COPY OF THE APPLICATION FOR RECOMMENDATION FOR SUPERANNUATION PENSION EXT.P4 COPY OF THE APPLICATION FOR COMMUTATION OF PENSION. EXT.P5 COPY OF REPRESENTATION DT.10.7.01 TO R1. EXT.P6 COPY OF THE LETTER DT.28.9.01 ISSUED BY R1. EXT.P7 COPY OF THE LETTER DT. 5.12.01. EXT.P7(a) COPY OF THE DRAFT MODEL NOTIFICATION ENCLOSED WITH EXT.P7 EXT.P8 COPY OF THE LETTER ISSUED BY MINISTRY OF FINANCE, GOVT.OF INDIA EXT.P9 COPY OF THE ORDER DT.7.5.02 PASSED BY R1. EXT.P10 COPY OF THE JUDGMENT DT.1.7.05 IN OP.33127/2002. EXT.P11 COPY OF THE REPRESENTATION DT. 21.10.04. EXT.P12 COPY OF THE LETTER DT. 10.10.05. EXT.P13 COPY OF THE REPRESENTATION DT.26.9.05 TO R1. EXT.P14 COPY OF THE LAWYER NOTICE DT.28.4.06 TO R1. RESPONDENTS' EXHIBITS : EXT.R1(a) COPY OF THE AFFIDAVIT FILED BY BANK DT. 16.9.05. EXT.R2(a) COPY OF THE JUDGMENT IN O.P.5633/2002 EXT.R2(b) COPY OF THE STATEMENT DT.24-4-02 OF PETITIONER TO MD OF R2. / TRUE COPY / PA TO JUDGE. “CR” P.N.RAVINDRAN, J. ---------------------------------------------- W.P.(C) No. 21045 of 2006-E ---------------------------------------------- Dated this the 27th day of August, 2009 JUDGMENT The petitioner was an employee of State Bank of Travancore. She entered service on 28.7.1980. When Ext.P1 voluntary retirement scheme was introduced, the petitioner opted for voluntary retirement with effect from 31.3.2001, while she was working as Clerk/Cashier. Her application for voluntary retirement was accepted and she retired from service on 31.3.2001. She was also paid the ex-gratia and other amounts payable under the voluntary retirement scheme. Pension in terms of the State Bank of Travancore (Employees) Pension Regulations on the relevant date was also a benefit available to those employees who opt to voluntarily retire under Ext.P1 scheme. As per Regulation 29, employees having a qualifying service of 20 years are eligible for superannuation pension. As on 31.3.2001, the petitioner had 20 years, 8 months and 4 days of service. Under Regulation 18 of W.P.(C) No.21045/2006-E 2 the State Bank of Travancore (Employees) Pension Regulations, 1995, hereinafter referred to as “the Regulations” for short, the said period of service was liable to be reckoned as 21 years of service. It is not in dispute that while in service, the petitioner had availed leave for a total period of 259 days under various heads. If the said period of leave is reduced from the total length of service, the petitioner had to her credit, as on 31.3.2009, a total service of 19 years, 11 months and 11 days. On the basis that applying Regulation 18, the said period of 19 years, 11 months and 11 days was liable to be treated as qualifying service of 20 years, entitling her for superannuation pension, the petitioner submitted Ext.P3 application for payment of superannuation pension as per the Regulations. That request was rejected by Ext.P6 letter dated 28.9.2001 issued by the second respondent on the ground that she did not have 20 years of qualifying service as on 31.3.2001. 2. Along with some others who did not admittedly have 20 years of service, the petitioner moved the General Manager of State Bank of Travancore seeking an amendment of the Regulations to reduce the length of qualifying service from W.P.(C) No.21045/2006-E 3 20 years to 15 years. She along with others thereafter filed O.P.No.5633 of 2002 in this Court. By Ext.R2(a) judgment delivered on 21.2.2002 this Court directed the Managing Director, State Bank of Travancore to consider the said representation after affording the petitioners therein a reasonable opportunity of being heard. The Managing Director of State Bank of Travancore thereafter passed Ext.P9 order declining to reduce the length of qualifying service from 20 years to 15 years. That decision was challenged by the petitioner and others by filing O.P.No.33127 of 2002 in this Court. By Ext.P10 judgment delivered on 1.7.2005 the said original petition was dismissed. However, this Court directed the State Bank of India to consider whether the Regulations can be amended in exercise of the power conferred on the State Bank of India under Section 63 of the State Bank of India (Subsidiary Banks) Act, 1958. The petitioner thereafter filed Ext.P11 representation dated 20.10.2004 before the respondents claiming payment of superannuation pension contending that as on 31.3.2001 she had an actual service of 19 years, 11 months and 11 days, which has to be rounded off to 20 years of service W.P.(C) No.21045/2006-E 4 applying Regulation 18. That request was rejected and the decision communicated to the petitioner by the State Bank of Travancore by Ext.P12 letter dated 10.10.2005 wherein reference is made only to the fact that her request for amendment of the Regulations has been declined. Exts.P6, P9 and P12 are under challenge in this writ petition wherein the petitioner seeks the following reliefs:- (i)to issue a writ of certiorari or any other writ, order or direction quashing Exts.P6, P9 and P12, so far as it affects the petitioner. (ii) to declare that the petitioner is entitled and eligible for pension under State Bank of Travancore (Employees) Pension Regulations 1995. (iii) to issue a writ of mandamus or any other writ or direction directing the 2nd respondent to pay the petitioner the monthly pension applicable to her taking the qualifying service of the petitioner as 21 years and also to pay the pension and commuted amount together with arrears thereon till date. (iv) to issue a writ of certiorari or any other writ, order or direction quashing Ext.P12 as illegal, arbitrary and also discriminatory. W.P.(C) No.21045/2006-E 5 3. I heard Sri.George Cherian, the learned counsel appearing for the petitioner, Sri.P.Gopal, the learned counsel appearing for the State Bank of India and Sri.P.Ramakrishnan, the learned counsel appearing for the State Bank of Travancore. The petitioner contends that the authority which passed the impugned orders has not considered the impact of Regulation 18 and has also not taken note of the fact that petitioner had physically attended duty for 19 years, 11 months and 11 days. The petitioner contends that irrespective of the question whether she was entitled to seek reduction in the length of qualifying service, the Bank ought to have applied Regulation 18 and reckoned the service of 19 years, 11 months and 11 days rendered by her as 20 years of service, which would entitle her to claim superannuation pension under Regulation 29. The second respondent has filed a counter- affidavit contending that the claim of the petitioner is barred by the principle of res judicata. Reliance is placed on Ext.R2(a) and Ext.P10 judgments of this Court in support of the said contention. However, the petitioner's contention that the service of 19 years, 11 months and 11 days, which she admittedly had as on W.P.(C) No.21045/2006-E 6 31.3.2001 is liable to be reckoned as 20 years of qualifying service applying Regulation 18, is not controverted by the second respondent. 4. I have considered the pleadings and the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that the petitioner had a total service of 20 years, 8 months and 4 days. It is also not in dispute that during the said period of service, she had availed 259 days of leave under various heads. Thus, the petitioner admittedly had a total service of 19 years, 11 months and 11 days. Regulation 18 of the Regulations reads as follows:- “18. Broken period of service of less than one year.- If the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less, it shall be ignored.” On the terms of Regulation 18, since the petitioner had more than 19 years and 6 months of service, it has to be treated as 20 years of service. Regulation 29, which deals with payment of W.P.(C) No.21045/2006-E 7 superannuation pension stipulates that an employee, who has completed 20 years of qualifying service is entitled to superannuation pension. Therefore, applying Regulation 18 it has to be held that the petitioner had 20 years of qualifying service as on 31.3.2001. Then the short question is whether by reason of Ext.R2(a) and Ext.P10 judgments it can be said that the claim of the petitioner is barred by res judicata. A reading of Ext.R2(a) and Ext.P10 judgments discloses that the issue involved in the writ petitions disposed of by the said judgments related to the request made by the petitioner and others to reduce the length of qualifying service from 20 years to 15 years. The said claim was not entertained. In the said writ petitions it was not necessary for the petitioner to plead and this Court to decide whether the petitioner had the prescribed length of qualifying service. The issue raised was whether the petitioners therein are entitled to seek a writ in the nature of mandamus directing the respondents to reduce the length of qualifying service for superannuation pension from 20 years to 15 years. Therefore, the question whether the petitioner had 20 years of qualifying service did not W.P.(C) No.21045/2006-E 8 really arise for adjudication in the said writ petitions. As held by the Apex Court in Sajjadanashin Sayed MD. B.E.EDR.(D) BY LRS v. Musa Dadabhai Ummer and others, (2000) 3 SCC 350, as it was not necessary to raise that issue for the purpose of deciding the issues raised in the writ petitions that were disposed of by Ext.R2(a) and Ext.P10 judgments, it cannot be said that on the principles of res judicata the petitioner is disabled from staking a claim for superannuation pension on the grounds raised in this writ petition. I accordingly overrule the contention of the respondents that this writ petition is barred by res judicata. 5. From a reading of Ext.P6 and the counter-affidavits filed by the respondents it is evident that they had not adverted to Regulation 18 when it was held that the petitioner did not have 20 years of qualifying service on the date of retirement. In other words, the respondents failed to take note of Regulation 18 and the resultant position that the length of actual service which the petitioner had as on 31.1.2001, namely, 19 years, 11 months and 11 days was liable to be treated as 20 years of qualifying service W.P.(C) No.21045/2006-E 9 under Regulation 18. I therefore hold that the stand taken by the respondents in Exts.P6, P9 and P12 cannot be sustained. In the result, the writ petition is allowed, Exts.P6, P9 and P12 are quashed and it is declared that the petitioner is entitled to superannuation pension on the basis that she had 20 years of qualifying service as on 31.1.2001. The respondents shall issue orders fixing the superannuation pension payable to the petitioner under the Regulation on that basis, within two months from the date on which she produces a certified copy of the judgment before the second respondent. Payment of monetary benefits shall be made within one month thereafter. Sd/- P.N.RAVINDRAN,JUDGE. dkr / TRUE COPY / PA TO JUDGE.