ORDER
V. Kanagaraj, J.
1. The petitioners have filed this writ petition praying to issue a writ of Declaration to declare the provisions of Regulation 3(3) of the Reserve Bank of India Pension Regulations, 1990 insofar as it tries to exclude those on leave preparatory to retirement (the petitioners herein) as unconstitutional, ultra vires of the Constitution and the very object of the Pension Regulation.
2. In the averments of the accompanying affidavit of the writ petition, the petitioners would state that they are all retired employees of the Reserve Bank of India having served the Bank till they attained superannuation; that the services of the petitioners were regulated by Reserve Bank of India (Staff) Regulations, 1948, which regulates, among other things, the superannuation and retirement; that the Regulation 26 reads:
“26(1) An employee, other than an employee in Class IV, shall retire at 58 years of age and an employee in Class IV at 60 years of age.
Provided that in the case of an employee Class IV who has reached the age of 55 years, the Bank may, in its discretion, retire him after giving two months’ notice in writing if in the opinion of the competent authority his efficiency is found to have been impaired. Provided further that the Bank may, in its discretion, retire an employee, other than an employee in Class IV, at any time after completion of 50 years of age.
Provided further in the case of an employee, other than an employee in Class IV, who has attained the age of 55 years, his continuance in service up to the age of 58 years shall be subject to his being found suitable to be retained in service.
(2) The power conferred by the provisions to Sub-regulation (1) shall be exercised by the Governor, with the prior approval of the Central Board in the case of officers and by the Manager, subject to such general or special instructions as may be issued by the Governor, in the case of other employees.
(3) An employee who has attained the age of 50 years may voluntarily retire after giving to the competent authority three months’ notice in writing.
(4) Notwithstanding anything contained in this regulation, where an employee has ordinary leave earned, but not availed of as on the date of retirement, he may be permitted to avail of the leave subject to a maximum of six months in respect of leave earned under these Regulations and in that case, the employee will be deemed to retire from service at the expiry of the leave.”
3. The petitioners would further submit that according to Regulation 26(4), it is evident that any staff is deemed to retire from service on superannuation after the expiry of leave to his credit to a maximum limit of six months; that therefore, all the employees are deemed to have retired on the expiry of the leave to his credit and the services stand extended by this mode to a maximum period of six months; that while matters stood like this, the respondents promulgated a Scheme regarding the pension called ‘Reserve Bank of India Pension Regulations, 1990’, which came into force on November 1, 1990; that the definition with reference to retirement inso far as the pension Regulations are concerned is given in Regulation 2(12), which reads:
“Retirement means retirement in terms of staff Regulation 26 and other instructions issued by the Bank under settlements/ awards.”
4. The petitioners would further state that according to the Regulation 3, the Regulation shall apply to three categories viz.
(1) Employees who joined the Bank’s services on or after November 1, 1990 (the date on which the regulation came into force).
(2) Employees who were in the services as on November 1, 1990; and
(3) Employees who were in service as on January 1, 1986 (excluding those on leave preparatory to retirement) and retired before November 1, 1990; that so far as the third category is concerned, the staff are bound to exercise an option and bound to refund the Bank’s contribution to the Provident Fund including interest received by them together with interest at 6%; that since the petitioners were all on leave preparatory to retirement, as on January 1, 1986, the date from which the scheme was made effective for the purpose of eligibility, the respondents are refusing to entertain the option exercised by the petitioners and hence the writ petition.
5. In the counter filed on behalf of the respondents 1 and 2, it would be contended that the Reserve Bank of India Pension Regulations, 1990, which have been broadly framed on the lines of CCS Pension Rules governing the. Central Government Employees, were the subject matter of challenge in the writ petition No. 10 of 1990 before the Supreme Court and the Apex Court by its order dated December 10, 1991 held that there is no substance in the -allegation that the cut-off date had been’ arbitrarily fixed, that the respondents acted mala fide in fixing the cut off date to deprive those who had retired on or before December 31, 1985 of the benefit of the Pension Scheme and that the rationale for fixing the cut-off date as January 1, 1986 was the same as in the case of Central Government employees, based on the Fourth Pay Commission, thus, when the question had already been decided in the said manner, it is not open for the petitioners again’ to challenge the same on other frivolous grounds; that the Reserve Bank of India Pension Regulations, 1990 were framed in pursuance of the powers conferred on the Bank under Section 58(2)(j) of the Reserve Bank of India Act, 1934 and therefore, the regulations are statutory in nature.
6. The further contentions of the petitioners are that the said regulations have been framed by the Central Board of the Bank and they came into force on January 1, 1986; that Regulation 2(6) defines “date of retirement”; that Regulation 3 provides that it shall apply to the employees, who were in service as on January 1, 1986 (excluding those on leave preparatory to retirement) and had retired before November 1, 1990; that the expression “attains the age of superannuation” appearing in Sub-regulation (6) of Regulation 2 has not been defined in the said regulations; that however, Sub-regulation (1) of Regulation 26 of the Reserve Bank of India (Staff) Regulations 1948 stipulates that an employee, other than an employee in Class IV shall retire at 58 years of age; that Regulation 26(1) of Staff Regulations which indicates “superannuation and retirement” shall be taken as the age of superannuation/retirement for purposes of Regulation 3(3); that admittedly, the petitioners retired from the Bank’s service on attaining the age of superannuation i.e. 58 years before January 1, 1986 on which date, the Reserve Bank Pension Regulations have come into force; that Regulation 26(4) of the Reserve Bank of India (Staff) Regulations,-1948 permits an employee, who has, to his credit, ordinary leave but not availed of as on the date of his retirement, at his option, either avail the leave or receive cash payment of eight months; that therefore the Reserve Bank Pension Regulations, 1990 clearly provides that the employees who are on leave preparatory to retirement are none other than the employees, availing ordinary leave after attaining the age of superannuation and they are excluded from the pension.
7. During arguments, the learned senior counsel for the petitioners would contend that the petitioners are retired pensioners; that they have accumulated the leave not availed of during service; that they could avail six months leave, for instance, though a person retires on January 31, 1999, he is deemed to be in service till June 30, 2000. After reading out Regulations 2(12) and (3), the learned senior counsel would point out that the original verdict was not ‘excluding’ but ‘including’; that an error has crept in during drafting and instead of ‘including’ now it shows ‘excluding’; that so far as Regulation 3(3) is concerned, there should be some purpose for those to go on leave preparatory to retirement on January 1, 1986, when the scheme was introduced; that it covers persons from January 1, 1990, when the Regulation came into force with retrospective effect from January 1, 1986, which was based on the fourth pay commission; that all benefits that the petitioners get in the extended period, such as annual increments, medical facilities, official residence, official telephone, salary etc., they must get and there should not be a limited definition contrary to the service regulations and this period of leave preparatory to retirement is taken as in service for all purposes except for pension; that therefore, the exclusion is perceived arbitrary and there is no relevance for the object sought to be achieved.
8. The learned counsel for the petitioners would then point out that in Railway service, they take leave preparatory to retirement as qualified service for even pension; that for State Bank of India, they have the State Bank of India Pension Fund Rules and they also take period of leave preparatory to retirement as service and in Reserve Bank of India alone it is excluded and it must be a typographical error; that but for the pension, the extended period is taken as service only at the end of the period; that the counter filed by the other side also does not specifically mention anything against except to state that the Regulation excludes the petitioners and they are not entitled to the benefit that the very regulation has been challenged in All India Reserve Bank Retired Officers’ Association v. U.O.I. and it was upheld to a limited extent and would cite a judgment delivered in D.S. Nakara v. Union of India wherein it is contemplated that artificially you cannot fix the cutoff date. He would further contend that the Supreme Court has upheld the fixation of the date as January 1, 1986 and that the petitioners retired only after January 1, 1986.
9. The learned senior counsel would further point out that the petitioners’ services have been extended by virtue of Regulation 26(4) and the same should not be taken away by Regulation 3(3) for persons, who retired, but deemed to be in service. The learned counsel would also cite another judgment of the Apex Court delivered in State of Karnataka v. K. Vasudeva Mayya reported in, wherein it is held:
“Service Law – Retirement – Pension -Length of Qualifying service – Computa tion of – Retirement on superannuation immediately followed by re-employment on contract basis subject to Rule 313(b) -Meanwhile age of superannuation of all Government servants enhanced and by an order even such re-employed persons treated as continuing in service till they attain the revised superannuation age with the stipulation that the terms of re-employment would remain unchanged -Period of service between the earlier retirement and retirement on attaining the revised age of superannuation, held, would count for computing pensionary retirees and applying Rule 313(b) – Re-employment -Continuance in service.”
Emphasizing that the petitioners were deemed to be in service as on January 1, 1986 and they cannot be excluded, the learned senior counsel for the petitioners would end up his argument praying for the relief sought for.
10. In reply, the learned senior counsel appearing for the respondents would contend that Regulation 26(4) cannot be read as such, but subject to Regulation 3; that the Supreme Court upheld the Regulations in their entirety and would read out the relevant portions from the judgment of the Apex Court delivered in All India Reserve Bank Retired Officers Association v. Union of India (supra) which read as follows:
“……….We have, therefore, to consider the limited question whether the classification introduced by Clauses 3(3) and 31 of the Regulations is inconsistent with Article 14 of the Constitution as alleged by the petitioners.
The scheme introduced by the Regulations is a totally new one. It was not in existence prior to its introduction with effect from November 1, 1990. The employees of the Reserve Bank who had retired prior to that date were admittedly governed by the CPF scheme. They had received the benefit of employer’s contribution under that scheme and on superannuation the amount to their account was disbursed to them and they had put it to use also. There can, therefore, be no doubt that the retiral benefit admissible to them under the extent Rules of the Bank had been paid to them. That was the social security plan available to them at the basis of their retirement. The Bank employees were, however, clamouring for a pension scheme, firstly on a restricted basis as a third retiral benefit and later in lieu of the CPF scheme. The Central Government had not approved of a pension scheme, as a third retiral benefit. After that proposal was spurned it appears that the employees of the Bank demanded a pension scheme on the pattern of the scheme available to Central Government employees in lieu of the CPF scheme. This was approved by the Central Government and consequently, it was introduced with effect from November 1, 1990 under the Regulations. There can, therefore, be no doubt that if the CPF retirees were not admitted to this new scheme they could not make any grievance in that behalf. They had no right to claim coverage under the new pension scheme since they had already retired and had collected their retiral benefits from the employer. But the moot question is whether it was open to the employer to grant the benefit of the pension scheme to one group of CPF retirees who had retired from Bank service on or after January 1, 1986 and deny the same to all those who had retired on or before December 31, 1985. Is this division of CPF retirees discriminatory and violative of Article 14 of the Constitution?
………..But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realised that in the case of an employee governed by the CPF scheme, his relations with the employer came to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara’s case (supra) drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in Krishena Kumar v. U.O.I. .
Last the justification for fixing the cut-off date as January 1, 1986 is that the newly introduced pension scheme is modelled on the lines of a similar scheme applicable to Central Government employees. The proposal to have a scheme similar to the one applicable to Central Government employees in lieu of the existing CPF scheme was mooted by the in-service Bank employees some time in 1986 and on the Central Government according sanction, it was brought into effect from November 1, 1990. That is why it was made applicable to those who retired in the meantime on or after January 1, 1986. The underlying reason is to operate the scheme on the pattern of the scheme governing Central Government employees and to extend the benefit to those Bank employees who had demanded the same ………
The rationale for fixing the cut-off date as January 1, 1986 was the same as in the case of Central Government employees based on the recommendations of the Fourth Central Pay Commission.”
Reading out the above portions from the judgment of the Apex Court, the learned counsel would exhort that the very regulation was challenged and the same had been upheld in its entirety and that the petitioners cannot take one portion of the judgment to their advantage when the case in its entirety had been upheld by the Apex Court. The learned senior counsel would then reveal that the very same argument as it is here had been put forward in the case cited, but rejecting their plea, the Court upheld the validity of the Regulations and would read out the order of the Patna High Court delivered in C. W. J.C. No. 3663 of 1992 wherein it is held:
“Learned counsel appearing on behalf of the Bank, on the other hand, has stated that admittedly, the petitioner’s date of superannuation was November 30, 1985, a date prior to January 1, 1986 which was the cutoff date. The Regulations 1990 has been made applicable only in the case of such employees who had superannuated from service after January 1, 1986. It has been contended that leave preparatory to retirement can be for the purpose of other benefits but the petitioner cannot be deemed to be in service of the bank subsequent to the date of his superannuation. In this regard, reliance has been made on Rule 3(3) of the Regulations, 1990 itself. The said Rule in its first line itself envisages that it will be applicable only in the case of such employees who were in service as on January 1, 1986 and it clearly excluded those who were on leave preparatory to retirement.
“3(3) – Employees who were in service as on January 1, 1986 (excluding those on leave preparatory to retirement) and had retired before November 1, 1990, provided they exercise option to be governed by these Regulations and refund, within such period as may be specified, the Bank’s contribution to Provident Fund including interest received by them from the Bank together with simple interest at six per cent per annum from the date of withdrawal till the date of retirement. Pension shall be payable to them in accordance with Regulation 31.” According to learned counsel, the present Regulation known as Reserve Bank of India Pension Regulations, 1990, has been issued under Clause (j) of Sub-section (2) of Section 58 of the Reserve Bank of India Act, 1934 (2 of 1934) by the Central Board of the Reserve Bank of India, with the previous sanction of the Central Government. As such, the said Regulation was of a binding nature.
It has further been submitted that in view of specific provisions under the said Regulation, the same could not be made applicable in case of the petitioner, as admittedly he was not in service of the Bank on the cut-off date. According to contention of the petitioner himself, he was on leave preparatory to retirement. It has also been contended that Regulations 1948 (sic), itself envisaged that the said Regulation shall not be applicable in cases where there is specific provision in a regulation itself or to such extent as may be specifically or generally prescribed by the Central Board. According to learned counsel, Regulation 1990 has been issued after approval of the Central Board on previous sanction of the Central Government as such, it has superseded the provisions of the Regulations 1948 so far as they are in conflict with the provisions of Regulations 1990.
We find sufficient substance in the argument of learned counsel for the Bank. Regulations 1990 clearly envisages that the same shall only be applicable to the employees who were in service as on January 1, 1986 and it clearly excludes those who were on leave preparatory to retirement. The Central Board of the Bank were authorised to make a regulation excluding the applicability of the 1948 Regulations as and when required. The 1990 Regulations have been made by the Central Board of the Reserve Bank with the sanction of the Central Government as such, it is mandatory in nature and supersedes other Regulations contrary to the said Regulations. Said Regulations clearly envisage the cut-off date for the employees of the Bank on whom it shall be applicable. The Central Board was competent to fix the cut-off date. In that view of the matter, we have no hesitation but to accept the contention of learned counsel for the Bank. It is held that the petitioner cannot be deemed to be in service of the Bank on January 1, 1986. He ceased to be in service with effect from superannuation for the purpose of applicability to grant benefits under the Reserve Bank of India Pension Regulations, 1990. We are not inclined to interfere with the letter issued by the Reserve Bank of India to the petitioner as contained in Annexure-4 by which he has simply been communicated the decision of the Bank in terms of the Reserve Bank of India Pension Regulations, 1990 that he stands superannuated before January 1, 1986 as such, Regulation was not applicable.”
11. Continuing to argue, the learned senior counsel would point out that Regulation 26(4) has got only a limited purpose to serve but the Pension Regulations have been upheld by the Supreme Court. The learned counsel would end up his argument saying that there is absolutely no error much less a typographical error as argued by the other side that has crept in the Regulation and would pray for dismissing the above writ petition.
12. In assessing the facts and circumstances as brought forth in the pleading by the petitioner and the respondent as well, coupled with the materials placed on record and in the light of the arguments of both the learned senior counsel heard, what comes to be known is that the petitioner’s case is that under Regulation 26(4) of the Reserve Bank of India (Staff) Regulations, 1948, they are deemed to retire from service at the expiry of the leave and the said “retirement” means retirement in terms of Staff Regulation 26 and other instructions issued by the Bank under settlements/awards as per Regulation 2(12) of the Reserve Bank of India Pension Regulations and in spite of the policy having been declared in such clear terms, since Regulation 3(3) of the Reserve Bank of India Pension Regulations, 1990 ‘excludes those on leave preparatory to retirement’, the petitioners have not been provided with the payment of pension and they have not been made applicable for the payment of pension contemplated under Regulation 31 of the Reserve Bank of India Pension Regulations, 1990 and hence they would pray to declare the excluding provision of Regulation 3(3) of the Reserve Bank of India Pension Regulations 1990, which stands a stumbling block in their way to become eligible for the payment of pension as contemplated under Regulation 31 as unconstitutional and ultra vires. The petitioners would further submit that instead of ‘including’ in Regulation 3(3), the term ‘excluding’ has crept in most likely due to some typographical error.
13. But, on the contrary, the argument advanced on the part of the respondents is to the effect that in the judgment , wherein the very regulations were challenged, the Supreme Court upheld the said Regulations in its entirety and the petitioners are not entitled to take one portion of the judgment to their advantage when the case in its entirety had been upheld by Apex Court. It would further be argued that the very same argument as it is advanced here by the petitioners, had been put forward in the Supreme Court case cited, but the Supreme Court rejecting their plea, upheld the validity of the Regulation. Besides that, the Patna High Court also, in its judgment delivered in C.W.J.C. No. 3663 of 1992, upheld the said Regulation.
14. It cannot also be simply treated as though the Apex Court, in its judgment stated supra, had not dealt with the crux of the matter and it upheld the validity of the said Regulation to a limited extent. To quote from the very judgment, the Apex Court has fully considered the point in issue and has arrived at its conclusion justifying the exclusion of the category of the petitioners in the following terms:
“……..There can, therefore, be no doubt that if the CPF retirees were not admitted to this new scheme they could not make any grievance in that behalf. They had no right to claim coverage under the new Pension Scheme since they had already retired and had collected their retiral benefits from the employer.”
Again it is held that:
“In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF Scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends.”
Even regarding fixing of the cut-off date as January 1, 1986, the Apex Court would justify the same stating that the newly introduced Pension Scheme is moulded on the similar lines of scheme applicable to Central Government employees based on the recommendations of the 4th Central Pay Commission. Hence, for these and the other reasons assigned in the Apex Court judgment, it cannot in any manner be said that either the wordings in the particular Regulation 3(3) of the Reserve Bank of India Pension Regulations, 1990 had been misplaced nor is there any room to think that any typographical error had crept in and that instead of the term ‘including’, the term ‘excluding’ had been wrongly placed, as it is argued on the part of the petitioners. The exclusion of the petitioners is justified on the ground that though as per Regulation 26(4) of the Reserve Bank of India (Staff) ‘Regulations, the petitioners are deemed to retire from service at the expiry of the leave preparatory to retirement, still, as it is contended on the part of the respondent, it could only serve a limited purpose. But, the Reserve Bank of India Pension Regulations have been upheld in their entirety by the Supreme Court including that of Regulation 3(3), which excludes the category of petitioners based on their entire retiral benefits being (sic) settled once and for all in lumpsum. Hence, the exclusion of the petitioners from the new scheme has been justified treating because of the Reserve Bank of India employees on par with the Central Government employees based on the recommendations of the 4th Central Pay Commission. Hence, I am to conclude that there is no pith or substance nor any justification in the arguments of the petitioners. Based on such arguments, it is not at all necessary on the part of this Court to make interference into the provisions of the Regulation 3(3) of the Reserve Bank of India Pension Regulations, 1990 as sought for by the petitioners in the writ petition especially in view of the fact that the Apex Court confirmed the same.
15. In the result, the above writ petition fails and the same is dismissed. No costs.