LETTERS PATENT APPEAL No.1111 OF 2004 ***** Against the order dated 16.9.2004, passed by a learned Single Judge of this Court in CWJC No.4080 of 2003. ***** THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, Local Head Office, Judges Court Road, Patna-800 001. …..Respondent-Appellant. Versus 1. DR. PRAN NATH KAPOOR, son of late Lok Nath Kapoor, resident of Road No.8, Near Little Lambs School, Rajiv Nagar, P.O. Keshri Nagar, P.S. Digha, District- Patna. ….. Petitioner- Respondent. 2. The Dy. General Manager (P.P.G.), State Bank of India, Pension, Provident Fund & Gratuity Department, Corporate Center, Post Box No.12, Mumbai. 3. The Chairman cum Managing Director, State Bank of India, Central Office, Nariman Point, Mumbai-400021. …. Respondents-Proforma Respondents. ****** For the Appellant: Mr. S.D. Sanjay, Advocate with Mr. Gautam Kejriwal, Mr. Akash Chaturvedi and Mr. Gopal Prasad Gupta, Advocates. For Respondent no.1: Mr. Shivaji Pandey, Sr. Advocate with Mr. Arun Kumar Singh, Advocate. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ***** S.K. Katriar, J. The State Bank of India has preferred this appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna, and raises a grievance with respect to the order dated 16.9.2004, passed in C.W.J.C. No.4080 of 2003 (Dr. Pran Nath Kapoor vs. The Chairman Cum Managing Director, S.B.I. and others), whereby the writ petition preferred by respondent no.1 herein has been allowed, and the Bank has been directed to make payment of the post-retirement benefits to the 2 petitioner as per the S.B.I. Employees‟‟ Pension Fund Rules 1955 (hereinafter referred to as the „Rules‟). 2. A brief statement of facts essential for the disposal of this appeal may be indicated. Respondent no.1 herein had served the Indian Army from 13.10.1963 to 30.6.1968. The Bank had published an advertisement on 2.12.1969, inviting applications for appointment to the post of Technical Officers (Agriculture). The advertisement stipulated that the maximum age limited for consideration for selection was 30 years of age, and could be relaxed in case of persons with experience. It was further stated therein that the persons exceeding 35 years of age would not be eligible for becoming member of Pension Fund of the Bank under the Rules, but instead be entitled to gratuity and such other superannuation benefits. The petitioner had completed 35 years of age on the cut-off date mentioned in the advertisement, being an Agricultural graduate and having served the Indian Army. He was, however, selected even though he was 35 years of age. He was appointed on 19.2.1973 on contractual basis, and was regularized in the services of the Bank with effect from 1.6.1976. He superannuated with effect from 30.9.1992, after having served for 16 years. The terminal benefits were finally paid to his full satisfaction which he had withdrawn in March 1993. 2.1) The Bank liberalized the aforesaid Rules relating to post-retirement benefits admissible to the employees of public 3 sector undertakings and the Reserve Bank of India on 8.11.2001, the eligibility criterion was raised from 38 years to 48 years, and was made retrospectively applicable so as to cover the employees who had retired on or after 1.11.1993. The petitioner instituted the writ petition on 25.4.2003, praying therein that he may be given the post-retirement benefits as per the Liberalized Rules. 3. The writ petition has been allowed, wherein it has been held that the petitioner had completed 19 years 7 months and 12 days, and was thus short by 4 months and 18 days, if counted under the pre-amended Rules. The learned Single Judge has, however, held that the writ petitioner is entitled to the benefits of Clause (c) of the Rules which, if prefixed to the service put in by the writ petitioner. 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. Respondent no.1 had joined the services of the Bank on 19.2.1973, on contractual basis. He was given regular appointment with effect from 1.6.1976. No material has been placed before us whether or not the bank had added to the length of service from 19.2.1973 to 31.5.1976, the period served on contractual basis. This issue was not raised in the writ proceeding also. Therefore, it is not clear whether or not the petitioner‟s length of service for the purpose of calculation of post-retirement benefit shall be counted from 19.2.1973 or 1.6.1976. If counted from 19.2.1973, he completed 19 years 7 months and 12 days of 4 service on 30.9.1992, and if counted from 1.6.1976 he completed 16 years 3 months and 29 days of service on 30.9.1992. The entire onus was on respondent no.1 (the writ petitioner) to establish his entitlement from the relevant date. The primary onus in this behalf is on the writ petitioner. Not having been discharged, we may proceed on the footing that the services may be counted with effect from 1.6.1976 for the purpose of his eligibility under the Rules. It is, therefore, open to us to proceed on the footing that it shall count from 1.6.1976. The terms and conditions of appointment and the letters of appointment, confirmation etc. have not been placed on record. 5. We next consider the question of applicability of Clause (c) of the unrevised Rules and are reproduced hereinbelow: “ (c) In respect of members who retired prior to 01.11.93, service rendered by such employees from the date of their admission to the fund to the date of attaining 58 years of age shall be reckoned as service for pension provide that if on the date of attaining the age of 58 years, the employees have to their credit any ordinary or privilege leave, the period of such leave shall be reckoned as service for calculation of pension to the extent they remain in the Bank‟s service.” It appears to us on a plain reading of the same that the writ petitioner‟s entitlement to ordinary privilege leave will have a bearing only on the question of actual computation of pension and shall have no bearing on the issue of determination of 5 eligibility. We, therefore, disagree with the view taken by the learned Single Judge on this issue. 6. The writ petitioner superannuated with effect from 30.9.1992, and received all his post-retirement benefits in March 1993, to his full satisfaction. The amended Rules were enforced on 8.11.2001, and the present writ petition was lodged in this Court on 25.4.2003. The issues relating to post-retirement benefits settled way back on March 1993, and cannot be permitted to be re-opened in the manner suggested by the writ petitioner. Allowing the writ petition would be tantamount to changing the entire system of payment of post-retirement benefits to the writ petitioner which we find it difficult to uphold. 7. In the result, this appeal is allowed. We respectfully disagree with the order of the learned Single Judge. Consequently the writ petition is dismissed. In the circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 24th day of August, 2010. S.K.Pathak/(NAFR).