WP(C) 9612/2003 BEFORE THE HON’BLE MR. JUSTICE H.N. SARMA JUDGMENT AND ORDER (ORAL) 1. The petitioner was appointed as Arm Guard in the UBI, Narayanpur Branch vide order dated 21/7/1988 issued by the Regional Manager of UBI and accordingly he joined on 5..8.1988 as Arm Guard. In due course of time, the petitioner was promoted to the rank of Cashier in the year 1991 by the competent authority of t he Bank. 2. While the petitioner was serving in the aforesaid capacity as Cashier un der the respondent Bank in the same branch and was posted in the Hatilung Branc h in North Lakhimpur, the Bank floated a voluntary retirement scheme for Office rs and other staffs, with a view to streamline the functioning of the Bank by in creasing market competition and customer’s expectation for initiating Bank’s op timum productivity and profitability. The said scheme was titled as ’United Ban k of India’s Employees Voluntary Scheme, 2000.’ 3. The relevant eligibility criteria for seeking benefit under the said sc heme by an employee as provided under Clause 4, 5 and 6 are quoted below : 4 ELIGIBILITY : (i) All permanent full time employees of the Bank will be eligible for seeki ng voluntary retirement under the Scheme provided they met the following eligibi lity criteria on the date of application. a) They have completed 15 years of service, or b) Attained 40 years of age. (ii) However, the employees falling in the following categories are not eligi ble to seek voluntary retirement under the Scheme - a) Specialist officers b) Employees who have executed service bonds and have not completed it. Employees serving abroad under special arrangements /bonds. d) Employees against whom disciplinary procee - dings are contemplated/pending or who are under suspension. e) Employees appointed on contract ba sis. f) Highly skilled and qualified employees who have attended specialized training. g) Any other category of employees as may be specified by the Board. 5. AMOUNT OF EX-GRATIA : An employee seeking voluntary retirement under the Scheme be entitled to the Ex-gratia amount mentioned below in para(a) of (b), whichever is less. a) Two months’ salary (pay plus stagnation increment plus; special pay plus dearness relief) for each completed year of service, or b) Salary (pay plus stagnation increment plus; special dearness relief) for the number of months service left. 6. OTHER BENEFITS : An employee seeking voluntary retirement under the Scheme will be eligible for t he following benefits in addition to the Ex-gratia amount mentioned in para No. 5 of the Scheme- i) Gratuity as per Gratuity ct/Service gratuity as the case may be, ii) a) Pension(including commuted value of pension) as per United Bank of India (Employees) Pension Regulations, 1995, or b) Bank’s contribution towards Staff Provident Fund as per existing rules, as the case may be. iii) Leave encashment as per rules. 4. The petitioner having fallen within the eligibility criteria by attaini ng 40 years of age became eligible to opt for voluntary retirement under the sai d scheme made such an offer. The respondents after scrutiny of the application o f the petitioner, duly accepted the same and this acceptance was intimated to hi m vide letter dated 14.3.2001 issued by the Manager of the Bank. 5. After passing of the aforesaid order, vide letter dated 5.6.2001, the petitioner changed his mind and expressed his willingness for withdrawal from th e Scheme and accordingly he wrote to the authority to the effect but the said re quest was turned down by the respondents vide letter dated 12.10.2001. The petit ioner again indicated that his dues regarding leave encashment and SPF has been settled and he was prepared to refund the same, if he is allowed to withdraw th e voluntary retirement scheme. The Bank vide letter dated 16.7.2003 intimated th e petitioner that since the petitioner has not completed 15 years of service at the time of retirement under VRS-2000 which is the eligibility criteria for gett ing pensionary benefits under amended Regulation 28 of United Bank of India (Emp loyees’) Pension Regulations, 1995, the petitioner is not eligible to get such p ensionary benefits. 6. Pleading in the aforesaid manner, the petitioner approach this Court by filing this writ petition, challenging the decision of the Bank not to provide t he pensionary benefits as well as PF and Gratuity to him. A counter affidavit ha s been filed on behalf of the respondents denying the claim of pension to the pe titioner on the basis of the amended Regulation 2002. In the counter affidavit t he claim for entitlement of leave encashment benefit as well as gratuity were al so denied. 7. I have heard B.D Goswami and Mr. S.R. Borthakur for the petitioner and also Mr. S. Dutta, learned counsel appearing for the respondents. 8. Pleadings of the parties disclose that there was no dispute to the fact regarding floating of the Scheme for voluntary retirement in the year 2000 and a s per the said scheme the petitioner having completed 40 years of service was en titled to apply for getting benefits under the said scheme. It is also not in di spute that the prayer of the petitioner for voluntary retirement was accepted by the authority vide letter dated 14.3.2001 and during the relevant time i.e at t he time of floating the said Scheme as well acceptance of the prayer of the peti tioner of UBI (Employees’) Pension Regulation 1995 was in operation. After acce ptance of the prayer of the petitioner the said Regulation was amended vide Noti fication No. GSR 1/2003 dated 14.8.2003. As per the said amendment a proviso was added under Clause 28 of the Regulation. 9. For our ready reference the amended provision of Regulation 28 is quoted herein below : ’’28 Superannuation Pension Superannuation Pension shall be granted to an employee who has retired o n his attaining the age of superannuation specified in the Service Regulations o f Settlements. Provided that, with effect from 1st September, 2000 pension shall also b e granted to an employee who opts to retire before attaining the age of superann uation, but after rendering service for a minimum period of 15 years in terms of any Scheme that may be framed fro such purpose by the Board with the approval o f the Government. 10. The learned counsel for the respondents during the course of argument, h as fairly submitted that, although the Bank has taken the stand that the petitio ner is not entitled to get gratuity and pensionary benefits, the said stand of the Bank is not in consonance with law and as on date, the petitioner would be e ntitled to get PF as well as gratuity and leave encashment amount as per Rules. 11. Situated thus, the entitlement of the petitioner as to the pensionary be nefits is now left to be decided by this Court. 12. As stated hereinabove the prayer for voluntary retirement was accepted b y the Bank on 14.3.2001 and since then he retired from the service of Bank. At that time the unamended UBI (Employees’) Pension Regulations, 1995 was not force. Clause 14 of the said Regulation provides that subject to other condition s contained in the Regulations, an employee who had rendered a minimum of 10 yea rs of service in the Bank on the date of his retirement, shall qualify for pensi on. Clause 28 provides for entitlement of superannuation pension to an emp loyee who has retired on attaining his age of superannuation. Clause 29 provides for entitlement of pension on voluntary retirement af ter completion of 20 years of qualifying service providing thereof the methodolo gy of regulation on the basis of ’average emoluments’ as defined in Clause 2(d) of Regulations. 13. By virtue of the amendment affected as per Notification dated 14.8.2003, the qualifying service for getting pension by an employee who retired before at taining age of superannuation after rendering minimum period of 15 years of serv ice in terms of any scheme which is required to be framed for such employee was brought into force w.e.f. 1-9-2000 i.e. with retrospective effect. 14. Mr. Dutta contends that in the Voluntary Retirement Scheme there is no provision for pension and in order to provide certain benefits to such employee s who accept voluntary retirement, an amendment of the Regulation was effected on 14.8.2003 with retrospective effect from 1-9-2000 and this was done in order to provide benefits to a section of employees including the petitioner to which otherwise they are not entitled under the scheme and the petitioner not having c ompleted 15 years of service at the time of voluntary retirement is not entitled for pensionary benefits under the scheme. 15. Meticulous scrutiny of the relevant provisions of the Scheme and the Pen sion Regulation disclose that it is one of the eligibility criteria for allowing to go on voluntary retirement under the scheme is attainment of 40 years of a ge. The petitioner having attained 40 years of age though not completed 15 years of service in the Bank was naturally entitled to opt for the scheme and in fact he opted for the same and this was duly accepted by the Bank. Clause 6 of the S cheme provides for payment of gratuity as per the Gratuity Act and Pension as pe r Pension and Regulation Act, 1995. It is also provided for giving the benefit o f leave encashment as per Rules. Now turning to the Pension Regulation, it is s een that Clause 14 of the Regulation prescribes minimum qualifying service of 10 years on the date of retirement in order to qualify for pension by an employee. Clause 14 do not restrict the term ’retirement’ to ’superannuation’ only. Claus e 28 and 29 provides for pension and superannuation and voluntary retirement aft er completion of 20 years as per the existing Service Regulations or Settlements . These provisions apparently do not cover the entitlement otherwise of pension by an employee who retires under as per the Scheme of Voluntary Retirement. The Scheme having provided that an employee would be entitled for pension as per Reg ulation 1995, naturally the said Employee is entitled to claim pension on render ing his qualifying service of 10 years as provided in Clause 14 of the Regulatio n. In fact although the proviso to Clause 27 was amended with retrospective ef fect, there is no amendment to Clause 14 or 29 of the Pension Regulation. Though reference of pension Regulation noted in the scheme, this apparently mean for calculation of such pension in terms of clause 29(B) of the Regulation. That ap art the petitioner having been allowed to retire from service w.e.f. 14.3.2001, his case would be guided under the unamended Regulation. Whatever right that had been accrued under the unamended Regulation prevalent at the time of his retire ment cannot be taken by amending the same with retrospective effect in as much a s an accrued right cannot be taken away with retrospective effect. 16. Situated in the aforesaid position, if the relevant provision referred t o above is analyzed, it is evident that the petitioner’s entitlement for pension can be traced to Clause 14 of the Pension Regulation and the provision of Claus e 28 would not be applicable, so far, the case of the petitioner is concerned. C lause 28 of the Regulation speaks of superannuation pension on attaining the age of superannuation and the same is not applicable in the case of the petitioner Clause 29(6) would be applicable in so far as for calculating the amount of pens ion to an employee retired in terms of Clause 28. 20. Accordingly, it is found that the decision of the respondent authorities not to allow pensionary benefits to the petitioner on the basis of amended Regu lation 28 cannot be said to be supported under the law. The said decision has ad versely affected the vested right of the petitioner to which he is entitled unde r the scheme. 17. In view of the above discussion, the impugned decision not to pay the pe nsionary benefits to the petitioner stands set aside and quashed and the authori ties are directed to calculate and pay the pension of the petitioner, as per his entitlement, in terms of Clause 14 Regulation forthwith. The amount regarding PF and Gratuity and leave encashment, payment of which the Bank has not defuted shall also be paid to the petitioner. The decision of the authority not to pay P F to the petitioner as per decision of the Indian Bank Association also does not hold good, and in fact, the learned counsel for the Bank has fairly accepted th e said position. It is further observed that the authority would be entitled to recover and adjust and unrecovered amount payable by the petitioner to Bank afte r making calculation as indicated above and the balance amount shall be paid for thwith. The whole exercise shall be completed within a period of 45 days from th e date of receipt of the certified copy of this order. 18. With the aforesaid directions and observations this writ petition stands allowed. No costs.