1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. REVIEW PETITION (LODG.) NO.25 OF 2006 IN APPEAL NO.1136 OF 1996 IN WRIT PETITION NO.1825 OF 1996 Madhukar Rangnath Kulkarni ..Petitioner. Vs. The New India Assurance Co. Ltd. and others ..Respondents. ....... Ms Gayatri Singh with Ms Seema Chopda for the Petitioner. Mr. V.Y. Sanglikar for Respondent No.1. ..... CORAM : DR.D.Y.CHANDRACHUD & J.P.DEVADHAR, JJ. 27th January, 2010. P.C. : 1. At the hearing of the Notice of Motion for the condonation of delay, counsel appearing on behalf of the Review Petitioner requested the Court to evaluate the merits of the case of the Petitioner in order to consider as to whether a case has been made out for the grant of relief. We have by an order passed today condoned the delay in filing the Review Petition. Thereupon, with the consent of the learned counsel and at their request, the Review Petition has been taken on Board and has been heard. 2 2. The Appeal filed by the Petitioner was dismissed by a Division Bench on 23rd September, 2004. The advocate appearing on behalf of the Petitioner was absent. However, the Division Bench has recorded that all the available material on the record was perused with the assistance of the learned counsel for the First and Second Respondents and that thereupon the Division Bench has found no substance in the Appeal. 3. The Appellant joined service with the New India Assurance Company Limited on 4th April, 1962 and submitted his resignation on 8th August, 1991. The pension scheme was notified by the Government of India on 28th June, 1995. The Review Petitioner sought pensionary benefits by moving the Learned Single Judge in a petition under Article 226. The only challenge in the petition was to the correctness of an order dated 8th October, 1995 by which the application for the grant of pension submitted by the Petitioner by a letter dated 20th September, 1994 was rejected on the ground that under Clause 22 of the Pension Scheme resignation from service would entail a forfeiture of the entire past record and shall not qualify for pensionary benefits. At this stage, for the sake of clarity it would be necessary to record that there was no challenge to the constitutional validity of the Pension Scheme. The Petition was dismissed by a Learned Single Judge of this Court on 25th September, 1996. The Learned Single Judge held that Clause 3(1)(a) of the Scheme applied only 3 to a retired employee and the learned Single Judge held that the Petitioner had not retired on superannuation but had resigned. The Court held that resignation from service could not be treated on par with retirement. In the circumstances, the Petition was dismissed. The judgment of the Learned Single Judge has been affirmed in appeal. 4. Counsel appearing on behalf of the Review Petitioner has urged, in support of the Review Petition that the Petitioner had fulfilled the qualifying service for the grant of pension under Clause 30 of the Scheme of 1995. The expression retirement in Clause 2(t) is defined to include voluntary retirement “ ” in accordance with the provisions contained in paragraph 30 of the Scheme. The Scheme applies to employees who are in service on or after 1st January, 1986 but had retired before 1st November, 1993. Hence, it was urged that the Petitioner had duly fulfilled the conditions for the grant of a voluntary retirement on the date on which he submitted his resignation from service. Hence, there was no reason to deny to him the benefit of pension under the Scheme of 1995 and there is an error apparent on the face of the record. 5. Clause 3 of the General Insurance Employees Pension Scheme 1995 provides that the Scheme shall inter alia apply to employees who are in service of the Corporation on or after 1st January, 1986 but had retired before 1st 4 November, 1993. The Petitioner admittedly resigned from service on 8th August, 1991 and had not retired from service. In law retirement and resignation are two different and well defined concepts and one cannot be equated with the other. Clause 22 of the Pension Scheme provides that resignation from the service of the Corporation shall entail forfeiture of the entire past service and shall not qualify for pensionary benefits. The Petitioner having resigned on 8th August, 1991, he did not fulfill the condition for eligibility and in view of the express provisions of Clause 22, he would not qualify for pensionary benefits. The Petitioner did not fulfill the condition of an employee who had retired before 1st November, 1993 since he had resigned from service. 6. The Division Bench while dismissing the appeal relied upon the judgment of the Supreme Court in Reserve Bank of India v. Cecil Dennis Solomon1 in which a clear distinction has been made between voluntary retirement and resignation. The Supreme Court has consequently held that an employee who resigned from service would not be entitled to the benefit of pension in view of the provisions of the Reserve Bank of India Pension Regulations. The same view has been reiterated in UCO Bank v. Sanwar Mal2. The Supreme Court has emphasized that in the case of voluntary retirement the acceptance of the resignation is necessary. Moreover, in the case of a voluntary 1 AIR 2004 SC 3196. 2 AIR 2004 SC 2135. 5 retirement the employee has to fulfill a requirement of a minimum length of service. On the other hand in the case of resignation, an employee can upon resignation demit service irrespective of the length of service. The Supreme Court has also held that there is no arbitrary or unreasonable classification in making a distinction between employees who had retired and employees who had resigned and such a distinction would not be violative of Article 14. In the present case, it must be noted that Clause 30(2) of the Pension Scheme requires notice of voluntary retirement to be accepted by the appointing authority. Therefore, voluntary retirement does not ensue as a matter of a vested right but it is dependent upon the acceptance of the request. In the recent judgment of the Supreme Court in Padubidri Damodar Shenoy v. Indian Airlines Limited3 it has been held that the requirement of the approval of the employer even to a notice of voluntary retirement is imperative or mandatory. Be that as it may, it is evident that the conclusion that was arrived at by the Division Bench in appeal is consistent with the law laid down by the Supreme Court in successive judgments. Since the Petitioner was not present before the Division Bench when the appeal was heard, we have heard the learned counsel at a significant degree of length in order to consider whether any case has been made out in the exercise of the review jurisdiction. Before concluding, we may deal with the judgment of a Division Bench of this Court 3 (2009) 10 SCC 514. 6 in Naram Mohan Rao v. The Secretary, Ministry of Defence (Writ Petition 4597 of 2000 decided on 28th November, 2000). In that case, the Pension Rules of 1972 specifically provided for voluntary retirement on completion of twenty years qualifying service. The employee had resigned from service. The Division Bench, however, held that the Petitioner could have claimed voluntary retirement under Rule 48A when he tendered his resignation in 1976. Hence, the Court held that the Petitioner would be entitled to pension in accordance with the Pension Rules. The case is clearly distinguishable since the recital of facts in the unreported judgment would show that on the date on which the employee had resigned, there was also a provision for voluntary retirement which was duly fulfilled by the employee. 7. For all these reasons, we are of the view that the judgment of the Division Bench does not suffer from any error apparent on the record. The Review Petition is dismissed. (Dr. D.Y.Chandrachud, J.) (J.P. Devadhar, J.)