1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R (1) S. B. CIVIL WRIT PETITION NO. 4953/2004 PADAM SINGH GAHLOT V. THE STATE OF RAJASTHAN & ORS. (2) S. B. CIVIL WRIT PETITION NO. 5958/2003 POONA RAM V. THE MANAGING DIRECTOR, SBBJ & ORS. (3) S. B. CIVIL WRIT PETITION NO. 1482/2006 DHARURAM MALDA V. THE CHAIRMAN AND MANAGING DIRECTOR, NATIONAL INSURANCE COMPANY & OTHERS. DATE OF ORDER 21/02/2008 PRESENT HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. R.S.Saluja, Mr.K.R.Choudhary and Mr. D.R.Gurjar, for Petitioners. Mr.M.S.Singhvi, Mr. Jagdish Vyas, Mr. M.S.Godara and Mr.L.D.Khatri, for Respondents. BY THE COURT: Since a common question is involved in all these writ petitions, therefore, they are decided by a common order. As per 2 request of the learned counsel for the parties, pleadings in the writ petition of Padam Singh v. S. B. B. J. would be referred while discussing the matter for this judgment. By these writ petitions, the petitioners have claimed the benefit of pension on grant of voluntary retirement under the S.B.B.J. Voluntary Retirement Scheme in first two writ petitions whereas in writ petition No.1482/2002 under General Insurance Special Voluntary Retirement Scheme 2004 (hereinafter referred to as 'Scheme'). Petitioners sought voluntary retirement under the Scheme as they had completed 15 years of service. After retirement under the Scheme, petitioners claimed pension but same was denied due to non-completion of 20 years service. It is contended by the learned counsel for the petitioners that as per Regulation 14 of the State Bank of Bikaner & Jaipur (Employees') Regulations, 1995 (for short, 'the Regulations of 1995') qualifying service period for pension is only of 10 years, whereas the respondents have denied the benefit of pension by taking qualifying service period to be 20 years by treating it to be a case falling under Regulation 29 of the Regulations of 1995. It is contended that since voluntary retirement was sought 3 under the specific scheme, where the same was permitted on completion of 15 years of service, instead of 20 years under the Regulations. Thus, necessarily having permitted for voluntary retirement on completion of 15 years of service itself petitioners become entitled for pensionary benefits, even as per Regulation 29 of the Regulations apart from the fact having completed already 10 years service, they are otherwise entitled for pensionary benefits under Regulation 14 of the Regulations. But the respondents have wrongly invoked the provisions of Regulation 29 of Regulations of 1995 for grant of pension to the petitioners. Under Regulation 29 of Regulations of 1995, an employee who has completed minimum 20 years of service, becomes eligible for seeking voluntary retirement. According to the learned counsel for the petitioners, since it was a retirement under a specific scheme, therefore, when relaxation in service period was given for taking voluntary retirement, then obvious outcome is that having permitted voluntary retirement on completion of 15 years of service, the consequential benefits of pension are required to be given even if the Regulations pertaining to grant of pension on voluntary retirement provides 20 years qualifying service. According to petitioners, when the respondents themselves have reduced the requirement of completion of 20 years service, the necessary import is that acceptance of voluntary retirement on completion of 15 years 4 should also be construed to mean that the petitioners are entitled for pension even as per Regulation 29 of Regulations of 1995. The learned counsel for the petitioners, in that regard, referred to various provisions of Regulations, 1995, as well as specific scheme floated by the respondents for grant of voluntary retirement. It is contended that even as per the scheme, it was provided that the petitioners would be entitled for the benefit of Pension Regulations of 1995, but the same has wrongly been denied. Referring to the judgment reported in the case of Ganpat Singh v. Jang Bahadur, D. B. Civil Special Appeal No.481/2005, it is urged that similar issue has already been decided by the Division Bench and thereby, pursuant to the aforesaid judgment also, the petitioners are entitled for the benefit of pension. Learned counsel for the respondents, on the other hand, submitted that the petitioners are not entitled for benefit of pension as they have failed to attain the qualifying service of grant of pension applicable to the cases of voluntary retirement under Regulations of 1995. It was urged that ten years qualifying service is provided in the case of normal superannuation and is not otherwise applicable to the cases, 5 where an employee seeks voluntary retirement. As per the provisions of Regulation 29 for the benefit of voluntary retirement can be sought only on completion of twenty years of service thus, an employee becomes entitled for the pensionary benefits, when such retirement is taken under Regulation 29 of the Regulations of 1995 on completion of 20 years of service. It was, thus, submitted that petitioners have taken voluntary retirement under the scheme, would not otherwise be entitled to seek the benefit of pension, unless completed twenty years of service. Even referring to the scheme, it was submitted that in the voluntary retirement scheme, it was made clear that pension would admissible to the employee in terms of the Regulations of 1995. In view of the clause 6 pertaining to “Other Benefits” under the scheme, it was canvassed that even if the Regulations of 1995 are looked into, then also, for the reason that under the Regulations for grant of pension on voluntary retirement, qualifying period is of twenty years, thus, an employee who seeks voluntary retirement under the scheme, cannot seek benefits dehors the Regulations, more so, when no separate provision exists in the scheme to grant benefit of pension. It was lastly urged that when the scheme was framed, after relaxing the required qualifying period of voluntary retirement, additional benefits were given to the employees for the reason that the employees may not be entitled for the pensionary 6 benefits in certain cases. Thus, an employee taking additional benefit by seeking voluntary retirement under the scheme cannot further claim the benefit of pension dehors the Regulations, inasmuch as the scheme itself does not provide benefit of pension in violation of the Regulations. Again, referring to the clause of “Other Benefits” of the scheme, it is submitted that the grant of pensionary benefit under the scheme was made subject to the provisions of Regulations of 1995 and outcome of the said provision is that the employee would be entitled for the benefit of pension as per the Regulations of 1995 only thus a claim cannot be made de-horse the Regulation. As per Regulation of 1995, pension is admissible on completion of 20 years of service in case of Voluntary Retirement. Referring to the judgment of Santosh Singh v. Punjab and Singh Bank, 2007 (1) WLC (Raj.)13, it was urged that the same issue has already been decided therein. In the judgment aforesaid, this Court has even considered a judgment of Hon'ble Supreme Court in the case of Union of India & Others v. Rakesh Kumar, reported in (2001) 4 SCC p.309. Hence, learned counsel prayed for dismissal of the writ petitions. Learned counsel for the petitioners, in rejoinder, submits that the judgments in the case of Rakesh Kumar (Supra) has 7 further been considered by the Apex Court in the case reported in (2006) 1 SCC 737, Raj Kumar & Others v. Union of India & Another, therefore, keeping in mind the subsequent judgment of the Hon'ble Apex Court on the issue, the judgment by this Court in the case of Santosh Kumar (Supra) no more stand good. It was further submitted that otherwise in view of the judgment of the Division Bench in the case of Ganpat Singh Devra (Supra), no more issue survives for decision where considering almost the identical issue the benefit of pension under the Regulations of 1995 were made admissible. I have considered the rival submissions of the learned counsel for the parties and gone through the record, as well as the judgments referred in support of the rival submissions. The facts quite relevant and material and required to be taken into consideration are that all the petitioners had taken voluntary retirement before rendering 20 years of qualifying service as is otherwise provided under the Regulations of 1995, therefore, in all the cases, voluntary retirement has been taken and permitted pursuant to the special scheme floated by the respondents permitting of voluntary retirement, even on completion of 15 years of service and all the petitioners involved in these petitions had taken voluntary retirement under the 8 scheme itself. The perusal of the scheme shows that the voluntary retirement was permitted even on completion of fifteen years of service and there exists a condition even regarding grant of “Other Benefits” which included the benefit of pension in accordance with the Regulations of 1995. Relevant portion of Clause 6 of the Scheme and clarification are quoted hereunder:- “OTHER BENEFITS- Pension in terms of State Bank of Bikaner & Jaipur (Employees) Pension Regulations, 1995 on the relevant date (including commuted value of pension). However the benefit of increased qualifying service as provided under Regulation 29 (5) of SBBJ Pension Regulations 1995 will not be applicable to those who seek voluntary retirement under this scheme. SBBJ VOLUNTARY RETIREMENT SCHEME (SBBJVRS) CLARIFICATION TO PROBABLE QUERIES. 1. ... .... .... ..... .... ..... 2. ... .... .... ..... ..... ..... 3.Whether or not the employees, completing 15 years of pensionable service as on relevant date (date of retirement under SBBJVRS will be entitled for pension benefits ? The payment of pension to the 9 employees retiring under SBBJVRS would be governed by State Bank of Bikaner & Jaipur Employees Pension Fund Rules on the relevant date (including commuted value of pension). However, as per existing rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension.” Now, coming to the Regulations of 1995, two provisions are quite relevant and material. Firstly, the general eligibility for seeking benefit of pension which otherwise is treated as qualifying service provided under Regulation 14. According to this provision, the qualifying service, is minimum of ten years of service. Regulation 14 is quoted hereunder for ready reference :- “14.Qualifying service – Subject to the other conditions contained in these regulations an employee who has rendered a minimum of ten years of service in the Bank's on the date of his retirement or on the date on which he is deemed to have retired shall quality for pension.” 10 However, subsequent provision provides not only different types of pensions, but a specific clause (6) of Regulation 29 provides pension on voluntary retirement. According to the relevant provision pertaining to voluntary retirement, a candidate can seek voluntary retirement only on completion of twenty years of qualifying service and as per clause, (6) of Regulation 29, the pension can be made admissible to the employee under said Regulation which means Regulation 29. Relevant provision of Regulation 29 is quoted hereunder for ready reference : “29. Pension on Voluntary Retirement -- (1) On or after the 1st day of November, 1993, at any time after an employee has completed twenty years of qualifying service may by giving notice of not less than three months in writing to the competent authority retire from service; (2) to (5) .... ..... ... ... ... ..... (6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase not 11 exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.” The outcome of the aforesaid provision is that if employee has taken voluntary retirement then, without completing twenty years of service, he would not be entitled for benefit of pension, because voluntary retirement can be taken only on completion of twenty years of service. The facts, however, remains as to whether the same provision can be made applicable in the case of voluntary retirement under the scheme, where the employee is permitted to seek voluntary retirement even on the completion of fifteen years of qualifying service and, more so, when there is a provision even for grant of the pensionary benefits therein. For this propose, the terms and conditions of the voluntary retirement scheme were looked into which provides certain additional benefits if an employee seeks voluntary retirement on completion of fifteen years of service. The relevant clause in that regard is grant of “Other Benefits” where reference has been made for grant of pensionary benefits in accordance with the Regulations of 1995. Perusal of the Regulations of 1995 reveals that if the benefit of pension is to be claimed under the Regulations in the 12 case of voluntary retirement, the pension is made admissible on completion of twenty years of service, inasmuch as the voluntary retirement is permissible under the Regulations only on completion of twenty years service and not otherwise. Hence, a plain reading of the Regulations makes it clear that the petitioners are not entitled for the benefit of the pension under the Regulations without completion of 20 years of service. However, now, the question remains as to whether with the reduction of the qualifying service from twenty years to fifteen years under the special scheme for voluntary retirement, can it be construe to mean that even there exists relaxation in the Regulations regarding qualifying service, for that purposes. The perusal of the scheme does not show that any such provision has been made thereunder so as to provide that irrespective of the provisions of the Regulations of 1995, an employee would be entitled for the pensionary benefit on seeking voluntary retirement on completion of fifteen years of service. Hence, it cannot be said that pursuant to the voluntary retirement scheme itself, an employee would be entitled for the pensionary benefits under the Regulations of 1995 without completion of 20 years of service of qualifying service. It is otherwise a fact that under a special scheme for voluntary retirement, the petitioners were given additional benefits which are over and above the benefits otherwise made admissible while granting benefit of voluntary 13 retirement under clause 29 of the Regulation, 1995, therefore, a plain reading of the Regulations as well as the scheme does not entitle the petitioner to seek pensionary benefits in absence of completion of twenty years of qualifying service which otherwise to mean a claim de horse the Regulation without amendment. The scheme cannot otherwise mean an amendment in the regulation and cannot be considered under the Regulation of 1995 So far as the judgment in the case of Gan Pat Singh Devra's case is concerned, the facts of the aforesaid case show that there under the Regulations itself, qualifying period for seeking voluntary retirement said to be reduced pursuance to Scheme and taking into consideration, it to be as amendment in the provisions, a direction was given for grant of benefits of pension and as an alternative clause pertaining to premature retirement was considered to justify the claim of pension. However, it is not in dispute herein that there exists no amendment in the Regulations and by virtue of provision of Scheme, it cannot be held to be amendment in the Regulation in view of the Judgment of Apex Court in the case of Union of India v. Rakesh Kumar (Supra). Under the Regulations qualifying service is still twenty years, whereas, under the scheme, qualifying service for voluntary retirement, is of 15 years. In 14 these circumstances, it cannot be said that Scheme should be read de horse the regulation for grant of pension and without there being any provision to treat Scheme to be under Regulation of 1995 as otherwise considered in the case of Ganpat Singh Devra (Supra). The Judgment of the Apex Court in the case of Union of India v. Rakesh Kumar was not otherwise referred therein, thus Devra's case cannot be applied in view of the Judgment of the Apex Court. The provision of pre-mature retirement are not applicable in this case. So far as the judgment of Santosh Singh (Supra) is concerned, the issue raised therein was somewhat same as involved in the present matter. In the aforesaid case of Santosh Singh, this Court while giving interpretation to similar provisions, came to the conclusion that if as per Regulations, an employee has not completed qualifying service, then he would not be entitled for the pensionary benefits. The judgment of the Hon'ble Apex Court reported in (2001) 4 SCC 309, Union of India v. Rakesh Kumar also provides directions. The relevant portion of the said judgment is quoted herein for ready reference :- 19. In our view, there cannot be any doubt that the Government cannot amend or 15 substitute statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with the rules. The Government also can confer certain benefits on its employees by an administrative order. 20. The aforesaid GO makes it clear that there was a demand for grant of pensionary benefit on acceptance of the resignation under Rule 19 and that demand was accepted by the Government. Para 2 of the GO makes it clear that the Government has agreed that a member of BSF is entitled to get pensionary benefits on resignation under Rule 19 provided he has put in requisite number of years of service and fulfills all other eligibility conditions. This para only reiterates Rule 19. It also clarifies that the authority competent to grant permission to resign is also empowered to make reduction in pension if the member of BSF is eligible to get such pension. Para 5 provides that in future the competent authority who accepts the resignation would specify in the order the reduction to be made in the pension if any and if no such reduction is specified in the order, it would imply that no reduction in the pension has been made. Under para 6, directions are issued for pending cases where resignation was accepted but pensionary benefits were not allowed and provide that 16 necessary orders should be passed within the shortest possible time. Reading the aforesaid GO as a whole, it nowhere reveals the Government's intention to confer any additional pensionary benefits on the members of BSF who retired before completing the requisite qualifying service as provided under CCS (Pension) Rules. It neither supplements not substitutes the statutory rules. The GO read with Rule 19 of the BSF Rules wold only mean that in case of resignation and its acceptance by the competent authorities, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible for getting the same under the CCS (Pension) Rules and to that extent Rule 26 which provides for forfeiture of service on resignation would not be applicable. Hence, there is no substance in the contention of the learned counsel for the respondents that in view of the GO or specific orders passed by the competent authority granting pension, the appellants are estopped from contending that such officers are not entitled to get pensionary benefits. As stated above, the GO does not confer any additional benefit. Even in the specific order whichis quoted above in favour of Naik Rakesh Kumar, the authority has stated that he would get pensionary benefits as admissible under the Rules. Under the Rules, he is not entitled to get such benefits. 17 “21. No person can claim any right on the basis of decision which is dehors the statutory rules nor can there be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If the Rules are not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but the Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a government servant who is required to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions.” Perusal of the aforesaid judgment reveals that the issue in hand has otherwise been dealt with, holding that no person can claim any right on the basis of an order dehors the Rules. In the present matter, a separate scheme for voluntary retirement was issued by the respondents giving out the objectives and all necessary terms and conditions, including grant of other benefits and even the general conditions etc. Thus, complete scheme was formulated for grant of benefit of voluntary retirement for a limited period and while giving clarification 18 therein, it was clarified that employees who have not completed twenty years of pensionable service, would not be eligible for pension. The copy of the scheme as well as clarification is Annexure 1 to the writ petition of Padam Singh. In view of the above, it cannot be said that the scheme evolved by the respondents for limited period is to construe under the Regulations of 1995 in absence of any such provision and condition in Scheme. In view of the above, as the Division Bench held in the case of Ganpat Singh Devra that the special scheme for voluntary retirement is to be treated under the Regulations literally amounts to amendment in the Regulation by way of an administrative decision which otherwise is not permissible in the light of the judgment of the Apex Court. Hence, judgment in the case of Ganpat Singh Devra cannot be applied as in absence of amendment in the statutory provisions, administrative order cannot supplant the rules. However, if something has not been provided under the Regulations, necessary provisions can be made by issuing administrative order. In the present case, when Regulation 29 specifically provides requirement of twenty years of service for seeking voluntary retirement and under Regulation 29 (6), it is further provided that pension would be admissible, if voluntary retirement is sought under the Regulations. Therefore, it cannot be treated that without amendment in the Regulations, the scheme should be read dehors the statutory 19 provisions for grant of pensionary benefits. Again, in Ganpat Singh Devra's case, clause pertaining to premature retirement was taking into consideration to justify the grant of benefit of pension as an alternative ground. Perusal of relevant provision for premature retirement reveals that it governs only those cases where employee retires on account of the orders of Bank to retire employee prematurely in public interest or for other reasons or settlement. The case of voluntary retirement under the scheme cannot be treated as a case of premature retirement, for the reason that field of premature retirement is different than of voluntary retirement, therefore, only even in the Regulations of 1995, provision for premature retirement is given under separate clause than of voluntary retirement, otherwise there is no reason for providing separate Regulations in two different cases of retirement aforesaid. It is rather necessary to add that in the case of premature retirement, order of retirement is passed by the bank on the grounds specified under Regulation 32 whereas in the case of voluntary retirement, the request is made by the employee for retirement after giving three months' notice as per Regulation 29. The aforesaid difference between the two clauses has not otherwise been considered and dealt with by the Hon'ble Division Bench, more so, when in view of the judgment of the Hon'ble Apex Court in the case of Rakesh Kumar (Supra), benefit dehors the 20 Regulations are not permissible, thus judgment in the case of Ganpat Singh Devra is of no assistance to the petitioners, especially when therein the judgment of the Apex Court in