B.P.RAY, J. W.P. ( C) NO.10629 OF 2003 (Decided on 21.09.2010) KAILASH CHANDRA MAHANTA …………. Petitioner. .Vrs. CHIEF GENERAL MANAGER, S.B.I. & ANR. …………. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.14. For Petitioner - M/s. K.K.Swain, P.N.Mohanty, B.Jena, S.C.D.Dash, P.K.Mohanty. For Opp.Parties – M/s. P.V.Ramdas & P.V.Balakrishna (for O.P.1) Addl.Govt. Advocate (for O.P.2). B.P.RAY J. The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India assailing the order under Annexure-7 dated 4.4.2002 passed by the Asst. General Manager, S.B.I. in which it was stated that the Government Pension was being credited to Branch Sundry Deposit Account, since the petitioner was not eligible to receive both the pensions i.e. pension from the State Government as well as from the State Bank of India in short the ‘Bank’. 2. According to the petitioner, he was employed in the Mayurbhanj State Bank. The Mayurbhanj State was merged with the State of Orissa pursuant to a Merger Agreement executed on 17.10.1948 between the king of Mayurbhanj State and the Governor General of India. It is alleged in the writ petition that in the Merger Agreement the interest of the employees of Mayurbhanj State was given full protection with regard to financial benefits. It is also asserted in the writ petition that the Mayurbhanj State Bank was taken over by the State Bank of India in the year 1960 and resultantly all the employees including the petitioner were retrenched since the petitioner was found surplus. It appears from Anenxure-2 dated 3.5.1961, the petitioner was given appointment in the State Bank of India as a Clerk and the appointment of the petitioner was a fresh one. In the appointment order, under Annexure-2, it was stated that since the petitioner was over 35 years of age, he was not eligible to be admitted to the membership of State Bank of India Employees’ Pension Fund. However, the petitioner was admitted as a member of the Employees’ Provident Fund of the State Bank of India under Annexure-5 subject to the petitioner surrendering gratuity and other terminal benefits availed by him. It was further asserted that the petitioner has surrendered all the benefits. The petitioner stated that pursuant to the Merger Agreement, he was granted compensatory pension by the State Government after his retrenchment from the Mayurbhanj State Bank. The petitioner has retired from service of the State Bank of India on 24.4.1983 on attaining the age of superannuation. It appears that from the date of retirement i.e. 24.4.1983 till the impugned order under Annexure-7 dated 4.4.2002, the petitioner was receiving pension from the State Bank of India as well as the compensatory pension. By virtue of the impugned order, the compensatory pension which was being paid by the State Government is credited to Branch Sundry Deposit Account. To put it differently the compensatory pension, which the petitioner was being paid, has been denied to the petitioner by issuance of the impugned order under Annexure-7, which is assailed in the present writ application. 3. The Bank has filed a counter affidavit as well as an additional counter affidavit. The State Government which has been impleaded as opp. Party No. 2 has also filed a counter affidavit. The petitioner has also filed a rejoinder to the counter affidavit filed by the State Bank of India. The Bank in its counter affidavit has stated that the petitioner was receiving pension from the Government of Orissa as well as the Bank. In the additional counter affidavit of the Bank, it is stated that it has been decided that while the total service rendered by the petitioner in both the Banks, namely, the Mayurbhanj State Bank as well as the State Bank of India would be taken into account for payment of pension by the State Bank of India, the pension already received by the petitioner would be deducted from the arrears of pension payable to him on suitable authorization by such employee and only the net amount shall be paid. It is further stated that the future pension payable by the Govt. of Orissa shall be appropriated by the State Bank of India. The ultimate idea of the Bank is to appropriate pension paid by the State Government in lieu of paying full bank pension to the petitioner. Accordingly, it is stated in the additional counter affidavit that it has been decided to pay only the net amount i.e. the Bank Pension less the Govt. Pension at the end of each month. The State Govt. in his counter affidavit has stated that the petitioner cannot get dual pensions for a particular service rendered in different organizations inasmuch as it is stated that the petitioner has been paid pension taking into account the service rendered in the State Bank of Mayurbhanj as well as the service in the State Bank of India and therefore, the petitioner was not eligible to avail further benefit of compensatory pension from the Govt. of Orissa. In the rejoinder, the petitioner has reiterated the facts stated in the writ application. 4. The main thrust of argument of Mr. Swain, learned counsel appearing for the petitioner is that the compensatory pension which was being paid to the petitioner cannot be taken away unilaterally by the State Bank of India particularly, in view of the provisions contained in the Merger Agreement. The second submission of Mr. Swain is that 12 numbers of employee of the erstwhile Mayurbhanj State Bank, who were similarly placed alike the petitioner having availed compensatory pension from the Govt. of Orissa as well as regular pension from State Bank of India, the petitioner cannot be denied the said benefits and such action of the authorities violates Article 14 of the Constitution of India. In this connection, emphasis has been laid on the averments made in paragraph 8 of the writ application wherein six persons have been named in support of such contention of the petitioner. Although, the State Bank of India has filed a counter affidavit as well as an additional counter affidavit, yet there is no denial to the said assertion of the petitioner. Nonetheless, it is evident from the averments made in paragraph 7 of the additional counter affidavit filed by the State Bank of India that the State Bank of India while calculating the pension of the petitioner has counted the past service rendered by the petitioner in the Mayurbhanj State Bank. At the same time, the State Govt. in its counter affidavit has stated that eh pension is being paid to the petitioner counting the service rendered by him in Mayurbhanj State Bank as well as the service rendered in the State Bank of India. It was further stated in the counter affidavit of the State Govt. that the petitioner was not eligible to avail further benefit of 2 compensatory pension from the Govt. of Orissa inasmuch as, according to the State Govt., one cannot get dual benefit for a particular service rendered in two different organizations. 5. Undisputedly, the past services of the petitioner render in Mayurbhanj State Bank have been taken into account for the purpose of making available the superannuation pension to the petitioner by the State Bank of India. Therefore, I do not find any illegality or irregularity in the action of the State Bank of India so far it relates to superannuation pension. But at the same time, the assertion of the petitioner that 12 nos. of employee of Mayurbhanj State Bank who are similarly placed alike the petitioner having been granted compensatory pension as well as superannuation pension which fact having not been disputed by the State Bank of India, without entering into the arena of controversy, I would permit the petitioner to make a representation to the appropriate authority of the State Bank of India highlighting these aspects and the competent authority of the State Bank of India shall examine such factual aspect and if it is found that the persons similarly situated like the petitioner were being paid both categories of pension, the same shall be made available to the petitioner without a person of one month from the date of receipt of the representation of the petitioner. I have so directed keeping in view the fact that the petitioner is presently 88 years old and is in the fag end of life. 6. It appears from paragraph 7 of the additional counter affidavit filed by the State Bank of India that the State Bank of India has decided to pay only the net amount i.e. the Bank Pension less the Govt. Pension at the end of each month inasmuch as it is stated that the State Bank of India had decided to appropriate the pension paid by the State Govt. in lieu of full pension to the petitioner. Such decision of the State Bank of India, in my considered opinion, is impermissible for the reasoning that the State Bank of India cannot appropriate the compensatory pension and again deduct the same from the Bank Pension payable to the petitioner. It the petitioner is not entitled to receive the compensatory pension, the same may not be made available which shall be subject to the outcome of the representation made by the petitioner pursuant to the direction herein about. But at the same time, the said amount cannot be appropriated by the State Bank of India and again it cannot be deducted from the superannuation pension payable to the petitioner, which has been arrived at by taking into consideration the length of service rendered by the petitioner in the Mayurbhanj State Bank as well as the State Bank of India. With the aforesaid directions and observations, the writ petition is disposed of. Writ petition disposed of. 3