Hon'ble Mr. Justice Arun Mishra
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5525 OF 2012
BANK OF BARODA & ANR. ... APPELLANT(S)
VS.
G. PALANI & ORS. ... RESPONDENT(S)
WITH
C.A.NOS.6254/2012, 5611/2012, 3026-3253/2013, 3257-
3262/2013, 11205-11340/2014, 11342-11435/2014,9533-
9649/2014, 8357/2014, 4711-4800/2014
AND
C.A.NO.1880/2018 @ SLP(C)NO.23773/2012,
C.A.NOS.1881-1888/2018 @ SLP(C)NOS.20661-20668/2012,
C.A.NO.1890/2018 @ SLP(C)NO.24851/2012,
C.A.NOS.1892-1912/2018 @ SLP(C)NOS.23777-23797/2012,
C.A.NO.1918/2018 @ SLP(C)NO.23848/2012,
C.A.NOS.1919-2087/2018 @ SLP(C)NOS.15640-15808/2013 &
C.A.NOS.2088-2092/2018 @ SLP(C)NOS.31470-31474/2012
O R D E R
1. Heard learned counsel for the parties.
2. I.A.Nos.3, 4 & 5 of 2012 for intervention are
permitted to be withdrawn, with liberty to avail
appropriate remedy. Applications stand dismissed as
Signature Not Verified
SARITA PUROHIT
Date: 2018.07.14
withdrawn.
Digitally signed by
13:11:12 IST
Reason:
3. Leave granted in all the special leave petitions.
2
4. In these civil appeals, question arises with respect
to the calculation of the pension on the basis of the
definition of average emoluments given in Regulation 2(d)
read with definition of the pay, as defined in Regulation
2(s) of the Bank (Employees) Pension Regulations, 1995
(hereinafter referred to as, �the Regulations of 1995), of
the concerned Banks.
5. The dispute is with respect to the employees who
retired or died while in service on or after 1.4.1998 and
before 31.10.2002. The Banks are governed by the Banking
Companies (Acquisition and Transfer of Undertakings Act,
1970 (hereinafter referred to as, �the Act of 1970�). The
regulations have been framed in exercise of powers
conferred under Section 19 of the Act of 1970.
6. We are concerned in the instant cases with the
officer�s class of the Banks. The provisions of the
Industrial Disputes Act, 1947 are admittedly not
applicable to them.
7. On 29.9.1995, the Board of Directors of the
respective nationalized banks, in exercise of their powers
under Section 19 of the Act of 1970, in consultation with
Reserve Bank of India (RBI) and with prior sanction of
Central Government, had notified in Gazette the aforesaid
Regulations of 1995.
3
8. It appears that Indian Banks� Association was
negotiating with the Officers� Association and a Joint
Note had been entered into and was signed on 14.12.1999,
with regard to periodical pay revision of the officers of
the member Banks. Joint Note indicated the date of effect
of scale of pay, dearness allowance and pension, as was
agreed to be with effect from 1.4.1998. Thereafter, on
18.1.2003 amendment had been made in the definition of
�pay�, as defined in Regulation 2(s) of the Regulations of
1995 and explanation thereof was added.
9. The dispute arose after the amendment had been made
with respect to pension which would be payable to the
Officers who have died or retired after 1.4.1998. Though,
the definition of �average emoluments�, as defined in
Regulation 2(d) of the Regulations of 1995, specified that
the average of the pay drawn by the employee during the
last ten months of his service in the Bank shall be taken
as �Average Emoluments�, so as to work out the pension
under Regulation 35(2). Regulation 35(2) provided that the
basis of the calculation to be 50% of average emoluments,
as defined in Regulation 2(d). Regulation 38 of the
Regulations 1995 provided the method of determination of
the period of ten months for average emoluments. In the
case of voluntary retirement/premature retirement, the
Bank shall reckon the period of �preceding� ten months for
4
the purpose of average emoluments, from the date on which
the employee voluntarily retires or prematurely retires.
By virtue of the explanation (c) that was added in
Regulation 2(s) of the Regulations of 1995, it was
provided that the pay shall be taken to mean the pay and
emoluments that had been drawn before 1.4.1998 for the
category of the officers, who have retired or died on or
after 1.4.1998. The provisions contained in Regulations
2(d), 2(s)(c), 35, 37 and 38,are extracted hereunder:
�Regulation 2(d):
2. (d) "Average Emoluments" means the average of the
pay drawn by an employee during the last ten months
of his service in the Bank;�
�Regulation 2(s)(c):
�2(s) "Pay" includes, -
(a) �..
(b) �..
(c) in relation to an employee who retired or
died while in service on or after the 1st
day of April, 1998-
i) the basic pay including stagnation
increments, if any; and
ii) all other components of pay counted for
the purpose of making contribution to the
Provident Fund and for the payment of
dearness allowance; and
iii) increment component of Fixed Personal
Allowance; and
5
iv) dearness allowance thereon on the above
calculated up to Index Number 1616 points
in the All India Average Consumer Price
Index for Industrial Workers in the series
1960 = 100.�
�Regulation 35:
35. Amount of Pension: -
(1) Basic pension and additional pension
wherever applicable, shall be updated as
per the formulae given in Appendix-I.
(2) In the case of an employee retiring in
accordance with the provision of the
Service Regulations or Settlement after
completing a qualifying service of not less
than thirty-three years the amount of basic
pension shall be calculated at fifty per
cent of the average emoluments.
(3) (a) Additional pension shall be fifty
per cent of the average amount of the
allowance drawn by an employee during the
last ten months of his service;
(b) no dearness relief shall be paid on
the amount of additional pension.
Explanation: - For the purpose of this sub-
regulation "allowance" means allowance
which are admissible to the extent counted
for making contributions to the Provident
Fund.
(4) Pension as computed being aggregate of
sub-regulation (2) and (3) above shall be
subject to the minimum pension as specified
in these regulations.
(5) An employee who has commuted the
admissible portion of his pension as per
the provisions of Regulation 41 of these
Regulations shall receive only the balance
of pension, monthly.
6
(6) (a) In the case of an employee retiring
before completing a qualifying service of
thirty-three years, but after completing a
qualifying service of ten years, the amount
of pension shall be proportionate to the
amount of pension admissible under sub-
regulations (2) and (3) and in no case the
amount of pension shall be less than the
amount of minimum pension specified in
these regulations.
(b) Notwithstanding anything contained
in these regulations, the amount of invalid
pension shall not be less than the ordinary
rate of family pension which would have
been payable to his family in the event of
his death while in service.
(7) The amount of pension finally
determined under these regulations shall be
expressed in whole rupee and where the
pension contains a fraction of a rupee, it
shall be rounded off to the next higher
rupee.�
�Regulation 37:
37. Dearness Relief: -
(1) Dearness relief shall be granted on
basic pension or family pension or invalid
pension or on compassionate allowance in
accordance with the rates specified in
Appendix II.
(2) Dearness relief shall be allowed on
full basic pension even after commutation.�
�Regulation 38:
38. Determination of the period of ten months
for average emoluments: -
(1) The period of the preceding ten months for
the purpose of average emoluments shall be
reckoned from the date of retirement.
7
(2) In the case of voluntary retirement or
premature retirement, the period of the
preceding ten months for the purpose of
average emoluments shall be reckoned from
the date on which the employee voluntarily
retires or is premature retired by the
Bank.
(3) In the case of dismissal or removal or
compulsory retirement or termination of
service, the period of the proceeding ten
months for the purpose of average
emoluments shall be reckoned from the date
on which the employee is dismissed or
removed or compulsorily retired or
terminated by the Bank.
(4) If during the last ten months of the
service, an employee had been absent from
duty on extraordinary leave on loss of pay
or had been under suspension and the period
whereof does not count as service, the
aforesaid period of extraordinary leave or
suspension shall not be taken into account
in the calculation of the average
emoluments and equal period before the ten
months shall be included.
Emphasis supplied�
10. Reading of Regulation 2(d) makes it clear that the
average emoluments means the average pay drawn by the
employee during last ten months of his service in the
Bank. Thus, the person becomes entitled for computation
of the salary drawn in the last ten months, along with its
components, for computation of the pension and other
benefits. The amended provision was added on 18.01.2003
by way of explanation (c) to Regulation 2(s) giving
retrospective effect.
8
11. The High Court of Delhi had opined that once the
benefit had been taken under the Joint Note of revision of
the salary, estoppel is created against the officers to
claim the pension as per the existing formulae, which
prevailed before its amendment and amendment could have
been made with retrospective effect. Thus, the Delhi High
Court had dismissed the writ petition filed by the
Officers� Association, against which an appeal had been
preferred. The High Court of Madras and High Court of
Karnataka have taken the contrary view. They have
observed that Joint Note of 1999 could not have supplanted
the existing rules/regulations. Pension was required to
be determined under the existing Regulations. By amending
the Regulation and adding the Explanation (c) in
Regulation 2(s) in the month of January 2003 benefit that
has accrued could not have taken away. Thus, we have two
contrary views of the High Courts to adjudicate upon in
the instant matters.
12. It was urged by learned counsel on behalf of the
Banks that in view of the Joint Note that was prepared,
parties were bound as the benefits were to be given as
agreed to after revision of the pay in the method and
manner, which was agreed to by the officers. Thus, there
was estoppel created against the Officers to claim
contrary to the Joint Note. They cannot claim/take one
benefit out of the Joint Note and deny the other part of
9
the same. There is power to amend the Regulations with
retrospective effect and it cannot be said that any
accrued right has been taken away in view of the Joint
note. Parties were aware of the situation, as such; the
Joint Note that had been signed was binding and became
enforceable. It was also the methodology adopted for
industrial workers under conciliation agreement entered
into under the provisions of the Industrial Disputes Act,
1947.
13. It was contended by Mr. B.B. Sawhney, learned senior
counsel appearing on behalf of the respondents-Officers
that accrued rights could not have been taken away. The
definition of average emoluments in Regulation 2(d) has
not been amended. The only amendment made is by way of
insertion in the Explanation (c) to Regulation 2(s) of the
Regulations of 1995. Regulations 35 and 38 have also not
been amended. As such, the emoluments payable under the
aforesaid Regulation for the preceding ten months have to
be considered. The Explanation is ineffective to take
away the rights conferred under the Regulation 2(d), read
with Regulations 35 and 38 of the Regulations of 1995.
14. It was also contended on behalf of officers that
pension is not a bounty. The right to receive pension
under the prevailing formulae could not have been taken
away with retrospective effect by amending the provisions
10
of the Regulations. The requisite amendments were not made
in other provisions of the Regulations, which were
necessary to take away the said rights. It was also
contended that only for few years the said provision had
been incorporated so as to deny the benefit from 1998 to
2002. Thereafter, by amending the Regulations in the year
2005 the benefit has again been restored and pension had
been paid all throughout on the basis of emoluments, which
were drawn in the preceding ten months from the date of
retirement.
15. First we come to the rigour of the Regulations. The
Regulations have statutory force, having been framed in
exercise of the powers under Section 19(2)(f) of the Act
of 1970 and are binding. They could not have been
supplanted by any executive fiat or order or Joint Note,
which has no statutory basis. The Joint Note of the
officers also had no statutory force behind it and could
not have obliterated any of the provisions of Act of 1970
or the existing Regulations. Thus, Joint Notes could, not
have taken away the rights that were available under the
Pension Regulations of 1995 to the Officer.
16. Now what is provided under the Regulations is that
an employee is entitled to calculation of his pension, as
provided in Regulations 38(1) and 38(2) in the case of
voluntary retirement or pre-mature retirement, and the
11
period of the preceding 10 months for the purpose of
emoluments shall be reckoned from the date on which the
employee had been voluntarily retired or prematurely
retired by the Bank. A plain and literal reading of the
provisions contained in Regulation 38 makes it crystal
clear that its emphasis is on the preceding 10 months. The
average emoluments no doubt take into consideration the
pay but by deeming fiction, by simply amending and adding
Explanation (c) in Regulation 2(s) the mandate of
Regulation 38(2) had not been taken away and even
otherwise could not have been taken away that too with the
retrospective effect, which provides pension to be worked
out on the basis of average emoluments of preceding ten
months. It is apparent that Regulations 38(1) and 38(2)
have not been amended in any manner whatsoever. Thus, the
provisions are in conflict to the Explanation (c) of
Regulation 2(s) that had been added, which defined pay
with retrospective effect. Apparently for the purpose of
pension, the clear provisions in Regulations 38(1) & 38(2)
have to be considered as preceding ten months �from the
date of retirement� and not as per the Explanation (c) to
Regulation 2(s) what was drawn in the preceding ten months
before 1.4.1998. The interpretation of regulation 38(2) as
per deeming fiction of Regulation 2(s)(c) is wholly
impermissible. That it is not permissible to add or
subtract any word in a provision is a settled principle of
statutory interpretation.
12
17. Similarly, the provisions contained in Regulation 35
also make an incumbent entitled for opting the pension on
the basis of average emoluments. The average emoluments
have to be calculated on the basis of the preceding ten
months. Adding Explanation (c) to Regulation 2(s), as
done, could have created no fictional basis in view of
clear and unambiguous provisions in other provisions of
the Regulations. Besides, the definition of the average
emoluments in Regulation 2(d) itself makes it clear that
it is average pay drawn �during the last ten months� of
his service by an employee. It cannot mean pay drawn by
the employee even before several years. Mentionably there
is no amendment made in the aforesaid provision of
Regulation 2(d) and the expression during the preceding
last ten months before date of retirement is clearly
culled out in Regulation 38(1) and 38(2). Thus, in our
considered opinion, the view taken by the then Chief
Justice Vikramajit Sen as he then was, at Karnataka High
Court and by the High Court of Madras are appropriate and
the view taken by the Delhi High Court cannot be said to
be sustainable for the various other reasons too mentioned
hereinafter.
18. It is settled proposition, that pension is not a
bounty, as has been held by this Court in Deokinandan
Prasad vs. State of Bihar & Ors. 1971 (2) SCC 330 = 1971
13
Supl. SCR 634, as under:
�...But we agree with the view of the majority
when it has approved its earlier decision that
pension is not a bounty payable on the sweet will
and pleasure of the Government and that, on the
other hand, the right to pension is a valuable
right vesting in a government servant�..
�..we are of the opinion that the right of the
petitioner to receive pension is property under
Act. 31(1) and by a mere executive order the
State had no power to withhold the same.
Similarly, the said claim is also property under
Art.19(1)(f) and it is not saved by sub-article
(5)of Art.19��...�
19. In Grid Corporation of Orissa & Ors. vs. Rasananda
Das, (2003) 10 SCC 297, this Court held as under:
��.The appellants having given better pay scales,
as early in 1969, cannot reduce the pay scales
when it comes to granting pensionary/ retiral
benefits for the period between the age of 58 to
60 years. The argument advanced in this regard
that although the employees are entitled to
continue in service up to the age of 60 years but
during the period of 58 to 60 years �..
�.There cannot be two types of pay scales one for
the purpose of continuing in service up to the
age of retirement and the other for the period
between 58 to 60 years. It must be kept in mind
that pension is not a bounty but it is hard-
earned benefit for long service, which cannot be
taken away.�
20. In Bharat Petroleum (Erstwhile Burmah Shell)
Management Staff vs. Bharat Petroleum Corporation Ltd. &
Ors., (1988) 3 SCC 32 = 1988 (1) Supp. SCR 312, this Court
has observed :
�Pension is no longer considered as a
bounty and is has been held to be property. In
14
a welfare State as ours, rise in the pension of
the retired personnel who are otherwise
entitled to it is accepted by the State and the
State has taken the liability��.�
21. In All India Reserve Bank Retired Officers
Association & Ors. vs. Union of India & Ors., (1992)
Suppl.1 664, this Court observed:
�5. The concept of pension is now well
known and has been clarified by this Court time
and again. It is not a charity or bounty nor is
it gratuitous payment solely dependent on the
whim or sweet will of the employer. It is earned
for rendering long service and is often described
as deferred portion of compensation for past
service. It is in fact in the nature of a social
security plan to provide for the December of life
of a superannuated employee. Such social security
plans are consistent with the socioeconomic
requirements of the Constitution when the
employer is a State within the meaning of Article
12 of the Constitution.�
22. In U.P. Raghavendra Acharya & Ors. vs. State of
Karnataka & Ors., (2006) 9 SCC 630, this Court has
observed thus:
�Pension, as is well known, is not a bounty. It
is treated to be a deferred salary. It is akin
to right of property. It is co-related and has a
nexus with the salary payable to the employees
as on the date of retirement.
�..Such emoluments were to be reckoned only in
terms of the statutory rules.�
This Court in Raghavendra Acharya (Supra) further
observed that number of times it has been held that
executive instructions cannot take away the vested or
15
accrued right. If the incumbent became entitled to the
benefits of the revised scale of pay, and consequently to
the pension calculated on the said basis in terms of the
impugned rules, there would be reduction of pension with
retrospective effect, it would violate Articles 14 and 16
of the Constitution of India. This Court observed thus:
�28. The impugned orders furthermore is opposed
to the basic principles of law inasmuch as by
reason of executive instructions an employee
cannot be deprived of a vested or accrued right.
Such a right to draw pension to the extent of 50%
of the emoluments, computed in terms of the
rules, w.e.f. 1.1.1996, vested to the appellants
in terms of Government notification read with
Rule 296 of the Rules.
29. As the amount calculated on the basis of the
revised scales of pay on and from 1.1.1996 to
31.3.1998 have not been paid to the appellants by
the State of Karnataka as ex gratia, and in fact
was paid by way of emoluments to which the
appellants became entitled to in terms of their
conditions of service, which in turn are governed
by the statutory rules, they acquired a vested
right therein. If the appellants became entitled
to the benefits of the revised scales of pay, and
consequently to the pension calculated on the
said basis in terms of the impugned rules, there
would be reduction of pension with retrospective
effect which would be violative of Articles 14
and 16 of the Constitution of India.�
23. Pension is a right and is not a bounty, and cannot
be dealt with arbitrarily. In the instant cases the
existing provisions could not have been amended with
retrospective effect, taking away accrued rights on the
basis of joint note which had no statutory backing.
16
24. The rights that have accrued cannot be taken away
with retrospective effect, as laid down by this Court in
Chairman, Railway Board & Ors. vs. C.R. Rangadhamaiah &
Ors., (1997) 6 SCC 623. This Court has dealt with the
vested rights and whether they can be taken away by
retrospective amendments. This Court observed:
�24. In many of these decisions the expressions
"vested rights" or "accrued rights" have been
used while striking down the impugned provisions
which had been given retrospective operation so
as to have an adverse effect in the matter of
promotion, seniority, substantive appointment,
etc. of the employees. The said expressions have
been used in the context of a right flowing
under the relevant rule which was sought to be
altered with effect from an anterior date and
thereby taking away the benefits available under
the rule in force at that time. It has been held
that such an amendment having retrospective
operation which has the effect of taking away a
benefit already available to the employee under
the existing rule is arbitrary, discriminatory
and violative of the rights guaranteed under
Articles 14 and 16 of the Constitution. We are
unable to hold that these decisions are not in
consonance with the decisions in Roshan Lal
Tandon vs. Union of India, (1968) 1 SCR 185;
B.S. Yadav Vs. State of Haryana, (1980) Supp.SCC
524; and State of Gujarat Vs. Raman Lal Keshav
Lal Soni & Ors., (1983) 2 SCC 33.
25. In these cases we are concerned with the
pension payable to the employees after their
retirement. The respondents were no longer in
service on the date of issuance of the impugned
notifications. The amendments in the rules are
not restricted in their application in futuro.
The amendments apply to employees who had
already retired and were no longer in service on
the date the impugned notifications were issued.
26. In Deokinandan Prasad v. State of Bihar
&Ors., [1971] Supp.) SCR 634, decided by a
Constitution Bench it has been laid down :
17
�31. ���.Pension is not to be treated
as a bounty payable on the sweet will
and pleasure of the Government and that
on the right to superannuation pension
including its amount is a valuable
right vesting in a government servant."
(emphasis supplied)
In that case the right to receive pension was
treated as property under Articles 31(1) and
19(l)(f) of the Constitution.
27. In D.S. Nakara & Ors. v. Union of India,
[1983] 2 SCR 165, this Court, after taking note
of the decision in Deokinandan Prasad (supra),
has said :
"Pension to civil employees of the
Government and the defence personnel as
administered in India appears to be a
compensation for service rendered in
the past. However, as held in Douge v.
Board of Education, 302 US 74, a
pension is closely akin to wages in
that it consists of payment provided by
an employer, is paid in consideration
of past service and serves the purpose
of helping the recipient meet the
expenses of living."
29. ���.Thus the pension payable to a
Government employee is earned by
rendering long and efficient service
and therefore can be said to be a
deferred portion of the compensation or
for service rendered."
28. It has also been laid down by this Court
that the reckonable emoluments which are the
basis for computation of pension are to be taken
on the basis of emoluments payable at the time
of retirement. (See : Indian Ex-services League
& Ors. Etc. v. Union of India & Ors. Etc.,
[1991] 2 SCC 104.
18
29. Rule 2301 of the Indian Railway
Establishment Code incorporates this principle.
It lays down :
�A pensionable railway servants claim
to pension is regulated by the rules in
force at the time when he resigns or is
discharged from the service of
Government."
xxxxxxx
33. Apart from being violative of the rights
then available under Articles 31(1) and 19(1)
(f), the impugned amendments, insofar as they
have been given retrospective operation, are
also violative of the rights guaranteed under
Articles 14 and 16 of the Constitution on the
ground that they are unreasonable and arbitrary
since the said amendments in Rule 2544 have the
effect of reducing the amount of pension that
had become payable to employees who had already
retired from service on the date of issuance of
the impugned notifications, as per the
provisions contained in Rule 2544 that were in
force at the time of their retirement.�
25. In this regard in Indian Ex-services League & Ors.
vs. Union of India, (1991) 2 SCC 104, this Court has laid
down thus :
�24. The learned Solicitor General has stated
that the impugned GOs dated November 22, 1983
(Annexure I) and dated December 3, 1983
(Annexure II) issued by the Government of India
(Ministry of Defence) in the present case are
based on recomputation of pension of pre-April
1, 1979 retirees of Armed Forces according to
the liberalised pension scheme consequent upon
the decision in D.S. Nakara Vs. Union of India,
(1983) 1 SCC 305. He also added that if any
error in computation is pointed out in respect
of any particular person or rank or otherwise,
the same would be promptly corrected. On the
above view taken by us, the prayer made in
these writ petitions for quashing these orders
has to be rejected. For the same reason, its
corollary that the same amount of pension be
paid to all pre-April 1, 1979 retirees of Armed
19
Forces as to post-April 1, 1979 retirees must
also be rejected�
26. In Secretary (Estt.) Railway Board & Anr. vs.
D.Francis Paul & Ors., 1996 (10) SCC 134, on the aspect of
retrospective provision, this Court has further observed
thus :
�4. Relying upon this proviso by later
amendment, it is contended that since no
specific provision was made in the conditions of
service at the time of appointment, the
respondents are not entitled to the benefit of
the rule. It is not in dispute that the rule
came to be amended on 15.11.1976 long after
their appointment. Under these circumstances,
the amendment would be prospective. It is not
in dispute that this amendment came to be made
pursuant to recommendation made by the IIIrd Pay
Commission and on acceptance thereof the rule
came to be amended. Under these circumstances,
the amendment cannot have retrospective effect
in respect of the persons already in service but
would be prospective; it would be applicable
only to those candidates appointed after the
date of the amendment introducing the proviso.�
27. In N.S. Giri Vs. Corporation of City of Mangalore &
Ors., (1999) 4 SCC 697, also this Court has observed that
even an Award made under the Industrial Disputes Act,
1947, cannot be inconsistent with the law laid by the
legislature or by the Supreme Court and if it does so, it
is illegal and cannot be enforced.
28. Thus joint note/agreement could not have been in
derogation of the existing statutory Regulations and
regulation 2(s)(c) could not have been given retrospective
effect. It is also apparent from the decisions of this
20
Court in P. Sadagopan Vs. Food Corporation of India,
(1997) 4 SCC 301, that executive instructions cannot be
issued in derogation of the statutory Regulations. The
settled position of law is that no Government Order,
Notification or Circular can be a substitute of the
statutory rules framed with the authority of law. In Dr.
Rajinder Singh Vs. State of Punjab & Ors. (2001) 5 SCC
482, this Court had reiterated that the settled position
of law is that no government order, notification or
circular can be a substitute of the statutory rules framed
with the authority of law. In K. Kuppusamy & Anr. Vs.
State of Tamil Nadu, (1998) 8 SCC 469, this Court has
observed that statutory rules cannot be overridden by
executive orders or executive practice. Merely because
the Government had taken a decision to amend the rules,
does not mean that the rule stood obliterated. Till the
rule is amended, the rule applies.
29. Thus, in our opinion, the Regulations which were in
force till 2003, would apply with full force and as a
matter of fact, the amendments made in it by addition of
Explanation (c) in Regulation 2(s) did not have the effect
of amending the Regulations relating to pension, as
contained in Regulation 38 read with Regulations 2(d) and
35 of the Regulations of 1995. Even otherwise, if it had
the effect of amending the pay and perks �average
emoluments�, as specified in Regulation 2(d), it could not
21
have operated retrospectively and taken away accrued
rights. Otherwise also, it would have been arbitrary
exercise of power. Besides, there was no binding statutory
force of the so called Joint Note of the Officers�
Association, as admittedly, to Officers� Association even
the provisions of Industrial Disputes Act were not
applicable and joint note had no statutory support, and it
was not open to forgo the benefits available under the
Regulations to those officers who have retired from
1.4.1998 till December 1999 and thereafter, and to deprive
them of the benefits of the Regulations. Thus, by the
Joint Note that has been relied upon, no estoppel said to
have been created. There is no estoppel as against the
enforcement of statutory provisions. The Joint Note had
no force of law and could not have been against the spirit
of the statutory Regulations and the basic service
conditions, as envisaged under the Regulations framed
under the Act of 1970. They could not have been tinkered
with in an arbitrary manner, as has been laid down by this
Court in Central Inland Water Transport Corporation
Limited & Anr. vs. Brojo Nath Ganguly & Anr., (1986) 3 SCC
156 & Delhi Transport Corporation vs. D.T.C. Mazdoor
Congress, (1991) Supp.1 SCC 600.
30. Reliance has been placed on the decision of this
Court by learned counsel appearing for the Banks, on
Manojbhai N. Shah & Ors. vs. Union of India & Ors., (2015)
22
4 SCC 482, where the position was converse. Revision of
pay was granted with retrospective effect to the eligible
employees. Instant cases are not the cases of the
revision of benefits being given with retrospective
effect, but taking away of a right that had accrued with
retrospective effect. Thus the decision in the aforesaid
case has no application.
31. Similarly, the decision in Union of India vs. P.N.
Menon & Ors., (1994) 4 SCC 68, has been pressed into
service in which this Court has laid down with respect to
dearness allowance granted to a Government servant, who
retired on or after 30.9.1977. It was claimed that the
said benefit should be given retrospectively to all the
employees irrespective of their date of superannuation.
It was not the case of taking away of vested right or
accrued right with retrospective amendment. Thus, the
decision has no application.
32. Reliance has also been placed on the decision of
this Court in D.S. Nakara vs. Union of India, (1983) 1 SCC
305. It was observed in the context of pension scheme
that was non-contributory in character that the benefit,
which was given under the scheme, was prospective. In all
cases wherever they retire, they would be governed by the
liberalized pension scheme, because the scheme was a
scheme for payment of the pension governed by 1972 Rules.
23
The date of retirement would be the relevant date. The
revised scheme would be operative from the date mentioned
in the scheme. It was also not a case of taking away the
benefit that had accrued with retrospective effect or
taking away of the vested or accrued rights. Thus, the
decision has no application, rather the spirit of the
decision runs counter to and fails to buttress the
submissions raised on behalf of the banks.
33. The only purpose of the addition of Explanation (c)
to Regulation 2(s), was to take away the actual
computation of the pension on the basis of the salary,
which was drawn in the preceding ten months. Thus, we have
no hesitation to strike it down being arbitrary and
repugnant to other provisions/Regulations namely 2(d),
38(1)(2) and 35. The Explanation (c) to Regulation 2(s)
is hereby struck down, as it could not have been enacted
retrospectively to take away accrued rights. Even
otherwise also it is held to be arbitrary and irrational.
More so, in view of the fact that only by way of a
temporary measure, that discrimination was created and the
Explanation was deleted with effect from 1.5.2005.
34. Thus, we set aside the judgment rendered by the High
Court of Delhi and affirm that of High Courts of Karnataka
at Bangalore and the High Court of Madras. The appeals
filed by the Banks are dismissed and the appeal filed by
the Association is allowed. Resultantly, let the amount
24
which was due and payable be paid with 9% interest, be
calculated and paid within four months from today.
35. All pending applications stand disposed of.
......................J.
[ARUN MISHRA]
.......................J.
[AMITAVA ROY]
New Delhi;
13th February, 2018.
25
ITEM NO.104 COURT NO.10 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).5525/2012
BANK OF BARODA & ANR. Appellant(s)
VERSUS
G. PALANI & ORS. Respondent(s)
WITH
C.A.No.6254/2012 (XIV)
SLP(C)No.23773/2012 (IV-A)
C.A.No.5611/2012 (IV-A)
SLP(C)Nos.20661-20668/2012 (IV-A)
C.A.Nos.3026-3253/2013 (IV-A)
SLP(C)No.24851/2012 (IV-A)
SLP(C)Nos.23777-23797/2012 (IV-A)
SLP(C No.23848/2012 (IV-A)
SLP(C)Nos.15640-15808/2013 (IV-A)
(With appln.(s) for intervention/impleadment)
SLP(C)Nos.31470-31474/2012 (IV-A)
C.A.Nos.3257-3262/2013 (IV-A)
SLP(C)No.12038/2013 (IV-A)
SLP(C)No.12041/2013 (IV-A)
C.A.Nos.11205-11340/2014 (IV-A)
(With appln.(s) for bringing on record LRs. c/delay in filing
substitution, setting aside abatement and exemption from
filing O.T.)
C.A.Nos.11342-11435/2014 (IV-A)
C.A.Nos.9533-9649/2014 (IV-A)
..2/-
26
.2.
C.A.No.8357/2014 (IV-A)
C.A.Nos.4711-4800/2014 (IV-A)
Date : 13-02-2018 These matters were called on for hearing today.
CORAM :
HONBLE MR. JUSTICE ARUN MISHRA
HONBLE MR. JUSTICE AMITAVA ROY
For Appellant(s)/Petitioner(s)/Applicant(s) :
Mr. Rajesh Kumar,Adv.
Mr. Gaurav Kumar Singh,Adv.
Mr. Anant Gautam,Adv.
Mr. Aakash Sehrawat,Adv.
Mr. V. Govinda Ramanan,Adv.
Mr. Soumu Palit,Adv.
For M/s. Mitter & Mitter Co.,AOR
Mr. Adarsh B. Dial,Sr.Adv.
Mr. Rajiv Nanda,AOR
Ms. Ananya Datta Majumdar,Adv.
Mr. Sumati Anand,Adv.
Mr. Jagat Arora,Adv.
Mr. Rajat Arora,Adv.
Mr. Anuvrat Sharma,AOR
Mr. Aayush Agarwala,Adv.
Mr. Pramod B. Agarwala,AOR
Mr. Shanthakumar Mahale,Adv.
Mr. Rajesh Mahale, AOR
Mr. Amith J.,Adv.
Mr. Manoj Swarup,Adv.
Mr. Mukul Kumar,Adv.
Ms. Mansi Jain,Adv.
For Mr. Rohit Kumar Singh,AOR
Mr. Romy Chacko,Adv.
Mr. Chandan Kumar Mandal,Adv.
Mr. S.C. Jaidwal,Adv.
Mr. Pulkit,Adv.
..3/-
.3.
27
For Respondent(s) :
Mr. B.B. Sawhney,Sr.Adv.
Mr. Shashank Mishra,Adv.
Ms. Naresh Bakshi,AOR
Ms. Aparna Jha,AOR
Mr. S. Rajappa,AOR
Mr. Sanjay Kapur,AOR
Ms. Megha Karnwal,Adv.
Ms. Mansi Kapur,Adv.
Ms. Shubhra Kapur,Adv.
Mr. O.P. Gaggar,AOR
Mr. Aditya Gaggar,Adv.
Mr. Ajit Wagh,Adv.
Mr. M. Khairati,Adv.
Mr. Irshad Ahmad,AOR
Mr. Naveen R. Nath,AOR
Mr. Abhimanyu Verma,Adv.
Mrs. Lalit Mohini Bhat,Adv.
Mr. Shailesh Madiyal,AOR
Mr. Sudhanshu Prakash,Adv.
Mr. Mahesh Thakur,Adv.
Mrs. Vipasha Singh,Adv.
For Mr. E.C. Vidya Sagar,AOR
Mr. R.S. Hegde,Adv.
Mrs. Farhat Johan Rehmani,Adv.
Mr. Chandra Prakash,Adv.
Mr. Prashant Jain,Adv.
For Mr. Rajeev Singh,AOR
UPON hearing the counsel the Court made the following
O R D E R
SLP(C)Nos.12038 & 12041/2013 :
List on 20.2.2018.
..4/-
28
.4.
C.A.Nos.5525/2012, 6254/2012, 5611/2012, 3026-3253/2013,
3257-3262/2013, 11205-11340/2014, 11342-11435/2014, 9533-
9646/2014, 8357/2014, 4711-4800/2014 & SLP(C)Nos.23773/
2012, 20661-20668/2012, 24851/2012, 23777-23797/2012, 23848/
2012, 15640-15808/2013 & 31470-31474/2012 :
I.A.Nos.3, 4 & 5 of 2012 for intervention are
permitted to be withdrawn, with liberty to avail
appropriate remedy. Applications stand dismissed as
withdrawn.
Delay condoned.
Applications for substitution and setting aside
abatement are allowed.
Leave granted in all the special leave petitions.
The appeals filed by the Banks are dismissed and the
appeal filed by the Association is allowed in terms of the
signed order.
(Sarita Purohit) (Jagdish Chander)
Court master Branch Officer
(Signed order is placed on the file)
