B. Jagath Kumar & P. Sreekrishnan v. Bank of India & Ors. [WA No. 335 of 2017 in WPC 3100/2016]

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 25TH DAY OF JANUARY 2018 / 5TH MAGHA, 1939 WA.No. 335 of 2017 IN WPC. 3100/2016 AGAINST THE ORDER/JUDGMENT IN WP(C) 3100/2016 of HIGH COURT OF KERALA DATED 30.11.2016 ## APPELLANT(S)/PETITIONERS: ## 1 B.JAGATH KUMAR, AGED 66 YEARS, S/O.LATE BALAKRISHNA PILLAI, FLAT NO.3B, CLEARWAY CELESTIALE, PALATHURUTHU, CHURCH ROAD, KADAVANTHRA, KOCHI-682 020. - 2 P.SREEKRISHNAN, AGED 63 YEARS, S/O.DR.T.M.MENON, 103, PRASHANTHI NAGAR, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. BY ADVS.SRI.N.ANAND SRI.MANU.G.RAJAN ## RESPONDENT(S)/RESPONDENTS/: ## 1. BANK OF INDIA, REPRESENTED BY ITS MANAGING DIRECTOR, STAR HOUSE, C-5, BANDRA-KURLA COMPLEX, BANDRA (EAST), MUMBAI-400 051. 2. CHIEF GENERAL MANAGER (HR) BANK OF INDIA (TERMINAL BENEFITS DIVISION), HR DEPARTMENT, STAR HOUSE, C-5, BANDRA-KURLA COMPLEX, BANDRA (EAST), MUMBAI-400 051. ## 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCIAL SERVICES, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001. R1,R2 BY ADV. SRI.JAWAHAR JOSE, SC, BANK OF INDIA R3 BY ADV. SMT.SREEKALA K.L., CGC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 335 of 2017 : 2 : ## APPELLANTS' ANNEXURES: ANNEXURE I: TRUE COPY OF ORDER DATED 14.10.1998. ANNEXURE II: RE-TYPED COPY OF ANNEXURE-I. ## RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ PS TO JUDGE. RV ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** **------------------------------------------W.A. No. 335 of 2017** **-----------------------------------------Dated this the 25[th] day of January, 2018.** ## **JUDGMENT** ## K. Surendra Mohan,J. The writ petitioners in W.P.(C) No. 3100 of 2016 are before us in appeal challenging the judgment dated 30.11.2016 of the learned Single Judge dismissing the writ petition. 2. The appellants are retired employees of the first respondent Bank. They were recruited as Industrial Relations/Personnel Officers, pursuant to a notification that was published in the Indian Express News Paper dated 07.04.1982. The notification was issued by the Banking Service Recruitment Board, Western Group, Bombay. A copy of the notification has been produced as Ext.P1 in the writ petition. Pursuant to the notification, the appellants applied. They were selected and appointed. They joined the service on 16.06.1983 and 30.06.1983 respectively. At the time of joining service, they were aged 33 years and 31 years respectively. The first appellant retired as the Chief Manager on 31.12.2009 and the second appellant retired as the Assistant General Manager on 31.03.2012, upon attaining the age of superannuation. The claim of the appellants is that they are entitled to add an additional period of 5 years to their service on the basis of Regulation 26 of the Bank of India (Employees') Pension Regulations, 1995 (hereinafter referred to as the 'Regulation' for short). W.A. No. 335/2017 -2- 3. According to the appellants, the normal age for recruitment of candidates to the service of the Bank was 28 years. The appellants were recruited when they were aged 33 and 31 years respectively. It is pointed out that, in order to be appointed to the post of Industrial Relations/Personnel Officers each candidate had to be a post graduate degree holder with an essential experience of five years in handling Industrial Relations, disciplinary action matters in reputed Institutions/industries. The upper age limit stipulated for maintaining an application for selection was 35 years, which also was permissible to be relaxed in cases of suitable candidates. Therefore, the candidates, who are recruited to the post of Industrial Relations/Personnel Officers, are persons possessing additional qualifications and an experience and for the acquisition of which a higher age limit was stipulated. It is to compensate such persons for the loss in the period of service on account of the time taken for acquiring superior qualifications that a provision for age relaxation was made in the Pension Regulations. Therefore, it was contended that they were entitled to add on an additional period of 5 years to their qualifying service. 4. The contentions of the appellants were refuted by the respondents by filing a counter affidavit. According to them, the appellants were not entitled to the benefit of Regulation 26, sought for by them. It was contended that, the appellants being persons who were W.A. No. 335/2017 -3- not granted the benefit of any age relaxation at the time of their appointment, they were not entitled to claim the said benefit. It was further contended that at the time of their recruitment, no Recruitment Rules had been brought into force and that they had been recruited in terms of the orders that governed such recruitments at that time. Therefore, they were not entitled to the benefit of Regulation 26. 5. The learned Single Judge considered the respective contentions and found that the appellants being persons who had not been granted the benefit of age relaxation at the time of their recruitment, were not entitled to the benefit of adding on an additional period of 5 years to their qualifying service. Accordingly, the writ petition was dismissed. It is aggrieved by the said judgment that this appeal is filed. 6. According to Adv. N. Anand, who appears for the appellant, the normal age stipulated for recruitment of persons to the service of the Bank was 28 years. However, as per Ext.P1 notification, special qualifications have been stipulated. The possession of a Post Graduate Degree/Diploma in Personnel Management/Labour Laws/Industrial Relations from a recognised Institution is one such qualification. Alternatively, possession of a Law degree from a recognised University is also indicated as a preferred qualification. In addition, a five years' experience in handling Industrial Relations/disciplinary action matters in reputed Institutions or industries is stipulated. In view of the additional W.A. No. 335/2017 -4- qualifications and experience stipulated, the upper age limit has been fixed at 35 years. It is also made relaxable by three years in the case of suitable candidates. Therefore, according to the learned counsel, recruitment to the post of Industrial Relations/Personnel Officers was made, relaxing the upper age limit that is stipulated by the Bank for ordinary recruitment. Regulation 26 is a provision that has been made to compensate persons like the appellants who had to forego a substantial period of the service that they would have otherwise put in, for the purpose of acquiring the additional qualifications stipulated by the notification of Ext.P1. Therefore, it is only appropriate that the benefit of the said provision is granted to the appellants, as sought for. 7. The learned Single Judge, according to the learned counsel, has fallen into an error of construing paragraphs (a) and (b) of Regulation 26 conjunctively with sub clause (c). According to the learned counsel, clauses (a) and (b) of Regulation 26 refers to the nature of the post as well as the age of the candidates, while clause (c) refers to a totally different aspect. Therefore, it is contended that Regulation 26 should be understood as stipulating two different classes of persons namely one class that satisfies clauses (a) and (b) thereof and the second class of employees, who are granted the age relaxation under clause (c). In support of his contentions, the learned counsel places reliance on the W.A. No. 335/2017 -5- decision in _**Union of India and another v. S. Dharmalingam**_[1] and the decision of a Division Bench of this Court in _**George K.P. v. Law Secretary, Law (B) Department and others**_[2] . 8. _Per contra_ , Adv. Jawahar Jose, who appears for the respondents stoutly opposes the contentions of the appellants pointing out that their claim would have to be rejected for more reasons than one. In the first place, they are not persons who had been granted the benefit of relaxation in the recruitment age, to facilitate their recruitment. In the absence of any such age relaxation, it is contended that Regulation 26 would have no application. Another contention put forward is that the second proviso to Regulation 26 makes it a condition for the applicability of Regulation 26 that the Recruitment Rules in respect of the service or post should contain a specific provision that such service or post would get the benefit of the regulation. The Recruitment Rules were brought into force only in the year 2003. The appellants having been recruited long prior to the coming into force of the Recruitment Rules, it is contended that they are not entitled to the benefit of Regulation 26. According to the learned counsel, the judgment appealed against has, therefore, rightly denied to the appellants the benefit of Regulation 26 and that there are no grounds to warrant an interference therewith. > 1(1994) 1 SCC 179 22009(1) KHC 832 W.A. No. 335/2017 -6- 9. Heard. The facts in this case are not disputed. The appellants as noticed above, entered service at the age of 33 and 31 years respectively. They have also retired from service on different dates. The dispute in the present case narrows down to the question as to whether they should be held entitled to add on an additional period of 5 years to their qualifying service for the purpose of computing their pensionary benefits. It is not in dispute that their pensionary benefits are governed by the Regulation referred to above. Regulation 26 being the provision that is to be considered by us is extracted hereunder for convenience of reference: 26. Addition to qualifying service in special circumstances:- An employee shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded the upper age limit specified by the Bank for direct recruitment or a period of five years whichever is less if the service or post to which the employee is appointed is one- (a) for which post graduate research, or specialist qualification or experience in scientific, technological; or professional fields is essential; and (b) to which candidates of age exceeding the upper age limit specified for direct recruitment are normally recruited. (c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience. Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits the service in the Bank is not less than ten years. W.A. No. 335/2017 -7- Provided further that this concession shall be admissible if the recruitment rules in respect of the said service or post contain specific provision that the service or post is one which carries benefit of this regulation. Provided also that the recruitment rules in respect of any service or post which carries the benefit of this regulation shall be made with the approval of the Central Government.” 10. A perusal of the above provision shows that it entitles an employee to add an additional period to his qualifying service in “special circumstances”. The special circumstances are contemplated by the said provision itself by providing a number of stipulations. The first among them is that such additional period could be added on only for the purpose of superannuation pension and not for any other class of pension. Secondly, what is permissible to be added on is the actual period not exceeding one-fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded the upper age limit specified by the Bank for direct recruitment or a period of 5 years, whichever is less. Therefore, the period that an employee is permitted to add on is limited to 5 years. Such addition is permissible if the service or the post is one: 1. for which post graduate research or specialist qualification or experience in scientific, technological, or professional fields is essential; and 2. to which candidates of age exceeding the upper age limit specified W.A. No. 335/2017 -8- for direct recruitment are normally recruited. 3. for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience. 11. It is clear from the above that, the post to which the employee was recruited ought to have been one for which post graduate research or specialised qualification or experience in scientific, technological or professional fields was essential. Cumulatively, it was necessary that an age exceeding the upper limit specified for direct recruitment was prescribed. It is true that the post of Industrial Relations/Personnel Officers is a specialised post for which post graduation was an essential qualification and the age limit stipulated was in excess of what was stipulated for the normal direct recruitment of the Bank. According to the learned counsel for the appellant, the third condition of grant of age relaxation is not necessary to be cumulatively satisfied along with the two conditions referred to above. It is contended that the condition regarding the age relaxation refers to a totally different class of persons. However, we are not prepared to accept the said contention for the reason that clause (c) of the Regulation 26 opens with the words “for which, in the same manner as clause (a) meaning thereby that the reference in both the clauses is to the post to which reference has been made in the first part of Regulation 26, namely the post for which post W.A. No. 335/2017 -9- graduate research or specialist qualification or experience etc. was stipulated. It is, therefore, clear that the age relaxation that is contemplated ought to have been granted at the time of recruitment to the post with respect to which the benefit of Regulation 26 is sought. 12. The learned counsel for the appellants in support of his contentions that clauses (a) and (b) of Regulation 26 shall not be read conjunctively, has taken us through the judgment of a learned Single Judge of the Madras High Court in _**Thirikooda Rajappan P. v. Chairman**_ and _**Managing Director, Vijaya Bank[1]**_ . We notice from the facts of the said case that, the person there was a person who had applied for the post of Officer in the Bank after completing merely 10 years in service. We notice from the other cases on which reliance was placed before us that, they were all cases where age relaxation had been granted to the candidates, at the time of recruitment. In the instant case, since the appellants are persons, who were not given age relaxation at the time of their recruitment, one of the conditions stipulated for the application of Regulation 26 is not satisfied and therefore, the appellants are not entitled to the benefits claimed by them. 13. Another contention vehemently canvassed by the learned counsel for the respondents is that going by the second proviso to 1 2005(1) LLJ 442 W.A. No. 335/2017 -10- Regulation 26, it is necessary for the application of the said provision that the Recruitment Rules of the employee should have specified that the said provision would be applicable. We find that there is a conflict of opinion between the judgments of the High Court of Rajasthan and Culcutta holding that stipulation in the Recruitment Rules was necessary for the application of Regulation 26 and the judgments of the High Courts of Alahabad and Madras and Ext.P8 judgment holding that such stipulation in the Recruitment Rules was not necessary. Since we have already held that the appellants in this case are not entitled to the benefit of Regulation 26, we refrain from considering the said question in this case. For the foregoing reasons, the appeal fails and the same is accordingly dismissed. **K. SURENDRA MOHAN, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_ W.A. No. 335/2017 -11-