1998 Supreme(SC) 1059

1998(8) Supreme 66
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
V. Kasturi -Appellant
versus
Managing Director, State Bank of India, Bombay & Anr. -Respondents
Civil Appeal No. 5048 of 1998
(Arising out of SLP (C) No. 4207 of 1998)
Decided on 9-10-1998
Counsel for the Parties :
For the Appellant : N.G.R. Prasad and S.R. Setia, Advocates.
For the Respondents : Anil B. Divan, Sr. Advocate, Rajiv Kapur, K. Mohandas, Sanjay Kapur, Advocates.

IMPORTANT POINT
If an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of relevant Pension Rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such a scheme even if they survive such new scheme.

Headnote:Service Law - Pension - State Bank of India Employees Pension Fund Rules-Rule 22(1)(c)-Constitution of India-Article 14-Originally Rules 22(1)(c) prescribed 20 years of service and 50 years of age as qualification for eligibility for pension-Appellant aged 45 years having put in 20 years of service resigned from service on 31.7.1984-Subsequently Rule 22 (1)(c) amended in September 1986 providing that an employee retiring after completion of 20 years of service irrespective of age could get benefit of pension scheme by his request in writing-Appellant s claim that amended provision of Rule available to him atleast prospectively from September 1986 -Whether sustainable-Held, No-At the time of his retirement is not eligible for earning pension and stands outside the class of pensioners-Subsequent amendment of Pension Rules extended to cover new class of Pensioners-New scheme prospective-Appellant not entitled to claim benefit of amended Rule-Amendment creates new class of pensioners-Article 14 not violated.

       Held : A mere look at the aforesaid relevant provisions of the Rules shows that even though the appellant was a member of the pension Fund, when he ceased to be a Bank employee after 31st July, 1984 on his resignation from the Bank service, he was not entitled to pension as none of the conditions of Rule 22(1) sub-rules (a) to (c) then existing applied in his case. Even though he had completed 20 years of pensionable service at that time he had not attained the age of 50 years. He was only 44 years of age. Hence Rule 22(1)(a) did not apply in his case. Rule 22(1)(b) also was out of picture for him as he had not retired because of any incapacity. He was in good health but for his own personal reasons he walked out of the Bank service at the age of 44 years. Then remains only clause (c) of Rule 22(1) as then existing which laid down that if a member of the fund who retired from Bank service after 25 years of pensionable service could get entitlement for full pension to be changed on the said fund. Thus as Rule 22(1) stood in those days when the appellant resigned from Bank service he was not eligible to earn any pension at all. Once that happened, he could invoke the benefit of only Rule 9 sub-rule (5) and claim the amount of his own contributions remaining to the credit of his account in the fund with the interest accrued thereon. It is not in dispute that he did receive the said amount of his personal contribution with interest accrued thereon. As the situation then existed no further relief could have been given or was available to the appellant and he could not have claimed anymore amount from the fund. However, the appellant stakes his case for pension under the said scheme only on the basis of the amended Rule 22(1) by insertion of a new sub-rule (c) with effect from 20th September, 1986. It is also not in dispute between the parties that the said amended sub-clause (c) became operative only from 20th September, 1986 and that it had no retrospective effect. The short question is whether the appellant could stake his claim for pension on the ground that he had completed 20 years of pensionable service by the time he ceased to be a Bank employee in 1984, when he had survived till the amended clause (c) Rule 22(1) came into force. (Para 9)

       The appellant, in order to earn pension under Rule 22(1) sub-clause (c) as amended in 1986 has to satisfy the following twin conditions :

        (i) At the time when the amended sub-clause (c) applied i.e. from 22nd September, 1986, he should be a member of the pension fund;

        (ii) He should have by then completed 20 years of pensionable service, and should have put forward his requisition in writing for availing the benefit of the said provision.

       Unless both these conditions are satisfied the amended clause (c) of Rule 22(1) cannot apply in his case. We have to note that the service bio-data of the appellant contra indicates the applicability of those two conditions. He was not a member of the fund on 21st September, 1986. He had ceased to be a member of the fund on his retirement in 1984. As laid down in the definition of the term "member" the concerned employee should be in service of the Bank and he should have been admitted to the membership of the fund. So far as the admission into the membership of the fund is concerned, the appellant has not satisfied the requirement inasmuch as he was a member of the fund but the second requisition of the definition was not fulfilled by him in 1986 as he was not in service of the Bank on 20th September, 1986 when clause 22(1)(c) as amended came into force. Consequently the first condition for applicability of the amended clause (c) of Rule 22(1) did not apply to the facts of the present case. Consequently, the question of compliance of the second condition that he should have completed 20 years of pensionable service would pale into insignificance as even though he had completed 20 years of pensionable service when he ceased to be a Bank employee in 1984 he did not come within the beneficial sweep of Rule 22(1) clause (c) as amended, as he was not a member of the pension fund in 1986 as he had ceased to be a member of the fund after 31st July, 1984. He was, therefore, out of the sweep of the pension fund scheme on 20th September, 1986 when Rule 22(1)(c) got amended. The very opening part of rule 22(1) lays down that a member should be entitled to pension under the Rules if he satisfies the conditions laid down in the said Rule but if he is not a member on the relevant date, the question of his being covered by any of the clauses of the said rule would not survive at all. Thus on the very scheme of the Rules and the amended provision of sub-rule (c) of Rule 22(1) the appellant s case would fail and consequently he would not be entitled to claim any benefit from the aforesaid amended provision even prospectively from 20th September, 1986 as he was not at all covered by the said provisions on that date. We may also note that the second requirement for the applicability of rule 22(1)(c) as amended is that after having completed 20 years of pensionable service the concerned member of the fund irrespective of age i.e. even being less than 50 years of age can invoke the benefit of the said provision by making a request in writing for getting proportionate pension. Even if such request is made it is in the hands of the Executive Committee of the Central Board of the Bank to accept such a request or not as seen from Rule 15. Any officer who leaves the service without such sanction would forfeit all the claims under the fund for pension. Consequently occasion for an employee who is a member of the fund to make a request in writing to the Bank for getting the benefit of pension scheme as per Rule 22(1)(c) as amended would arise provided such an employee has completed 20 years of pensionable service and has obtained the right under the amended sub-clause (c) of Rule 22(1) to make his request in writing. Thus, even the second condition for applicability of Rule 22(1) sub-clause (c) as amended would pre-suppose that the concerned member of the fund having completed 20 years of service must be in a position at the time of retirement to make his request in writing for getting the benefit of the said provision such an eventuality would arise only on and from the date on which the said amended provision came into force. Meaning thereby those employees like the appellant who had ceased to be members prior to the said date and who might have completed 20 years of service in past will not be able to invoke the amended clause (c) Rule 22(1) at any time after their earlier retirement. Thus even the second condition of giving a requisition in writing would not be available to such employees like the appellant. It is also axiomatic that when the appellant resigned on 31st July, 1984 at the age of 44 years there was no occasion for him to give any such written request for proportionate pension as in those days clause (c) in amended form was not available for being invoked by him. The second condition for applicability of the amended clause (c) of Rule 22(1) must of necessity therefore, mean that only those employees who were even less than 50 years of age and who retired on and after 20th September, 1986 having then completed 20 years of pensionable service could invoke the said amended provision by requesting in writing. The appellant did not and could not comply with this second condition for invoking amended clause (c) of Rule 22(1). We must also keep in view Rule 26 of the pension Rules which clearly shows that when a person enters the Bank service, he becomes a member of the fund and agrees to be governed by the Rules of the scheme. He becomes the beneficiary of the trust fund if he satisfies all the requisite conditions of the pension fund. If he is not a beneficiary of the fund at the time when he retires, as it happened in the case of the appellant in 1984, no benefit under the said scheme of the fund would be available to him subsequently as he will be out of the class of beneficiaries. Consequently, no question of his being given any discriminatory treatment vis-a-vis other existing beneficiaries under the scheme of the fund that where already in Bank service as members of the fund on 20th September, 1986 when the beneficial provisions of the amended Rule 22(1)(c) came into force, would at all survive for consideration. For all these reasons, the solitary point for consideration has to be answered against the appellant. (Paras 11 to 14)

       It is difficult to appreciate how the appellant can be said to be forming the same class of employees who came to be later on governed for the first time in 1986 by the pension scheme by being conferred the benefit of newly introduced pension eligibility as per amended clause (c) of Rule 22(1). The new class of employees covered by it was consisting of all the then existing members of the fund who had completed 20 years of pensionable service and who could be below the age of 50 years at the time of their retirement as the earlier restriction of age of 55 years as found in clause (a) of rule 22(1) was revised by re-enacting clause (c). It is also to be noted that earlier clause (a) gave retirees at the age of 50 years full pension. And clause (c) sought to give retirees below 50 years only proportionate pension for the first time after September, 1986. This view class of employees were for the first time made eligible to get the benefit of pension scheme under Rule 22(1). Such pensionary benefit was not available to them prior to the amendment of clause (c) of rule 22(1). Hence, it was certainly a new pension scheme for them and not old wine in a new bottle. For such class of employees there was no question of any mini-classification as for the entire class of such employees for the first time the benefit of pension scheme was made available by the amendment. When the appellant retired in 1984, no right had accrued to him to get pension from the fund as per Rule 22(1)(c) as existing then. He was not a pensioner at all when he retired. Consequently, any subsequent amendment in the said pension scheme by which a new class of pensioners was brought in cannot be said to be enhancement of a prior existing retiral benefit already earned by the concerned employee. (Para 16)

       From the resume of relevant decisions of this Court spread over years was the following legal position clearly gets projected :

       Category I:-If the person retiring is eligible for pension at the time of his retirement and if he survives till the time by subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara s case (supra) would cover this category of cases.

       Category II :-However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of relevant Pension Rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep. If the claimant for pension benefits satisfactorily brings his case within the first category of cases he would be entitled to get the additional benefits of pension computation even if he might have retired prior to enforcement of such additional beneficial provisions. But if on the other hand the case of a retired employee falls in the second category, the fact that he retired prior to the relevant date of coming into operation of the new scheme, would disentitle him from getting such a new benefit. The appellant falls in the second category of cases. Consequently, no fault can be found with the judgment of the Division Bench of the High Court non-suiting the appellant. (Para 20)