Resham Devi vs Vijaya Bank And Anr
2014 Latest Caselaw 6531 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 7417/2013

                                            Reserved on : 17.11.2014
                                            Pronounced on : 08.12.2014

IN THE MATTER OF:
RESHAM DEVI                                           ..... Petitioner
                         Through: Mr. Prabhat Kiran, Advocate

                         versus


VIJAYA BANK AND ANR                                  ..... Respondents
                         Through: Mr. Kush Sharma, Advocate with
                         Mr. Anshul Pathak, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J.

1. The petitioner is the wife of late Shri Ram Phal, who was

working as an Armed Guard in the respondents/Bank and she has

filed the present petition praying inter alia for issuance of directions to

the respondents/Bank to grant compassionate appointment to her son

upon her husband's demise, and in the alternate, to release ex gratia

payment in lieu of the aforesaid relief and further, to permit her and

her family members to participate in the pension scheme floated by

the respondents/Bank.

2. Briefly stated, the facts of the case are that Shri Ram Phal was

working on the post of Armed Guard in the respondents/Bank with

effect from the year 1993. After rendering service for sixteen years

with the respondent/Bank, he had died in harness on 18.05.2009,

having suffered a heart attack while on duty. On the very same day,

the respondents/Bank had issued a letter to the petitioner informing

her of the Bank's Scheme for payment of ex gratia relief in lieu of

appointment on compassionate grounds that is applicable to the

dependents of the deceased employees. It is an admitted position

that the petitioner had received the aforesaid letter alongwith the

form that was required to be filled up by her and submitted to the

Bank within six months from the date of Shri Ram Phal's demise, in

order to claim the benefit under the aforesaid Scheme. However, she

failed to submit the said form to the respondents/Bank within the

prescribed timeline.

3. As per the petitioner, after her husband's demise, the

respondents/Bank had paid her a sum of `1,72,496/- towards the

gratuity dues, a sum of `1,17,270/- under the Family Welfare Scheme

and a sum of `2,64,334/- towards the Provident Fund dues. There is

some difference between the parties with regard to the extent of the

gratuity amount received by the petitioner. While the petitioner has

claimed that she had received gratuity dues of `1,72,496/- from the

respondents/Bank under cover of letter dated 17.06.2009 (Annexure

P-5), as per the respondents/Bank, it had paid a sum of `2,01,840/-

was paid to the petitioner, as per the details submitted by her to the

Bank in an application dated 24.01.2011 (pages 107 to 110 of the

paper book). However, for deciding the issue raised herein, not much

would turn on the aforesaid aspect for the reason that the petitioner

has not raised a grievance in this petition that the gratuity amount

received by her from the Bank, is short.

4. After the passage one and a half year from the date of her

husband's demise, on 01.11.2010, the petitioner had submitted an

application to the respondent/Bank, seeking appointment of her son

on compassionate grounds or for payment of ex gratia relief in lieu

thereof. In the meantime, the respondents/Bank had introduced a

Pension Scheme, without any budgetary support. The terms and

conditions of the said Scheme stipulated that the family members of

the employees, who were in service of the Bank prior to 02.09.1995,

but had died in harness while in service after that date but prior to

27.04.2010, were also eligible to exercise their option in writing of

becoming member of the pension fund within a period of sixty days

from the date of the offer and within thirty days after the expiry of

sixty days, they were required to refund the entire amount of the

Bank's contribution to the Provident Fund and interest accrued

thereon as may have been received by the employee on retirement,

together with his share in the contribution, for meeting 30% of the

estimated funding gap for those eligible under the said Scheme. In

other words, the respondents/Bank required an applicant to pay 56%

of the amount over and above the Bank's contribution to the

Provident Fund and the interest thereon received by an employee on

retirement, for being eligible to claim benefits under the said Scheme.

5. Vide letter dated 09.10.2010, the respondents/Bank informed

the petitioner about the aforesaid Pension Scheme and it had

specified therein that a sum of `2,45,175/- was required to be

refunded by her. The petitioner claims that in response to the

aforesaid family pension option form received by her on 22.11.2010,

she had deposited a sum of `1,48,636/- in her saving account

maintained with the respondents/Bank. It has been averred in the

petition that the petitioner was unaware of the cut-off date for deposit

of the total amount with the Bank and thereafter, she had to be

admitted in the hospital with a heart problem and she remained there

from 25.11.2010 to 29.11.2010. On recovering, the petitioner claims

to have deposited the balance amount in her account on 03.01.2011

and vide letter dated 06.01.2011, she had informed the

respondents/Bank of making the said deposit and explained the

reasons for the delay in making compliance.

6. On 07.02.2011, the petitioner sent an application to the

respondents/Bank, requesting for lump sum payment of the ex-gratia

amount in lieu of appointment on compassionate grounds. Vide letter

dated 13.04.2011, the petitioner's application for release of ex gratia

payment was rejected on the ground of belated submission.

Aggrieved by the aforesaid rejection order, after the passage of over

two years, the petitioner had filed the present petition in July, 2013.

7. Notice was issued on the present petition on 27.11.2013. After

the pleadings were completed and the matter was placed before the

Court on 12.09.2014, it was noticed that the petitioner had not

furnished the complete information with regard to the family

members left behind by late Shri Ram Phal. As the purpose of

compassionate appointment is to provide financial succor to the family

members of the deceased employee as a tide over, the petitioner was

directed to file an additional affidavit furnishing the details of her

family members, the place of their residence, the nature of vocation

being pursued by them, their source of income and the immovable

property/land, if any, owned by her and her family members. Liberty

was also granted to the counsel for the respondents/Bank to file some

additional documents as prayed for by him.

8. Subsequently, the petitioner filed an affidavit dated

07.11.2014, stating inter alia that the deceased Ram Phal was

survived by his wife (the petitioner herein), two sons and a daughter.

Shri Rajkumar, the elder son, is aged 30 years and stated to be

employed in a private company. Mr. Karan, the second son, is aged

20 years and studying in college. Ms. Geeta, the school going

daughter of the petitioner is 18 years old. The affidavit states that the

total monthly income of the family is `13,000/- (Family pension from

the Army: `7,000/- per month + salary of Mr.Rajkumar: `6,000/- per

month). The petitioner has also stated that she has a fixed deposit of

`2 lacs in the respondents/Bank that is in the name of her daughter,

Ms. Geeta and she owns a dwelling house admeasuring 88 sq. yards

situated at Narela, Delhi.

9. Learned counsel for the petitioner argued that having expired in

harness in the course of his employment with the respondents/Bank,

a family member of Late Ram Phal is entitled for appointment on

compassionate grounds with the respondents/Bank. It was urged that

in lieu of appointment on compassionate grounds, the petitioner is

entitled to receive ex gratia payment and the said entitlement cannot

be dislodged on the ground of belated submission of the application.

Lastly, it was contended that as per the Family Pension Scheme

floated by the respondents/Bank, upon the demise of her husband,

the petitioner is entitled to receive pension but the respondents/Bank

has flatly refused to extend the said benefit to her and her family

members. In support of his submission that the limitation period of six

months prescribed under the Scheme of compassionate appointment

cannot be construed as a statutory limitation to non-suit the

petitioner, learned counsel had relied on the judgment dated

14.02.2008 in W.P.(C) 2490/2007 entitled Smt. Vidyawati vs.

Vijaya Bank.

10. Per contra, learned counsel for the respondents/Bank opposed

the maintainability of the present petition on the ground that the

petitioner has approached this Court with unclean hands as at the

threshold, she had failed to reveal all the material information with

regard to the financial status of the legal heirs of the deceased

employee and in view thereof, this Court should decline to exercise its

discretion in her favour. To substantiate the said submission, he had

pointed out that at the time of filing the present petition, the

petitioner had concealed the total monthly income received by her

and her family members, which is to the tune of `13,000/- per month.

Further, the petitioner did not inform the Court that she had a fixed

deposit of `2 lacs and she owns a dwelling house measuring 88 sq.

yards at Narela, Delhi. He stated that on the aforesaid ground of

concealment/suppression of material facts alone, the present petition

ought to be dismissed without examining the merits of the case. In

support of the said submission, he referred to the decision of the

Supreme Court in the case of K.D. Sharma vs. SAIL and Ors. reported

as (2008) 12 SCC 481.

11. On merits, learned counsel submitted that the petitioner did not

adhere to the prescribed timelines either for seeking appointment on

compassionate grounds or for submitting an application for payment

of ex gratia amount and resultantly, vide letter dated 22.01.2011, the

Bank had rejected her application on the ground that it was highly

belated.

12. Further, it was submitted that when the Bank had introduced a

Pension Scheme and informed the petitioner in writing about the said

Scheme and the period within which she was required to submit her

option form with the requisite payment, she had again defaulted. As a

result, she was not admitted under the said Scheme. In support of his

submission that ordinarily, the courts ought not to interfere with the

cut-off date as it is a policy decision, which falls within the domain of

the executive authority, learned counsel for the respondents/Bank

had referred to the decision of the Supreme Court in the case of

Sudhir Kumar Consul vs. Allahabad Bank reported as (2011) II LLJ

199 (SC) and of the High Court in the case of Central Bank Retirees

Association and Ors. vs. UOI and Ors. reported as (2011) II LLJ 111

Del.

13. The broad principles that have been laid down in a catena of

judgments for considering a case of compassionate appointment are

well settled by now. Compassionate appointment is given solely on

humanitarian grounds with the object of providing immediate succor

to a deceased employee's family to enable them to overcome the

grave and sudden financial crisis faced by them on the death of the

sole breadwinner. However, mere death of an employee in harness

does not entitle his family to compassionate appointment. It is

necessary for the Government/public authority to examine the

financial condition of the family of the deceased and only upon being

satisfied that the family will not be able to meet the crisis that a job

ought to be offered to the eligible member of such a family. For

compassionate appointment, posts in class III and class IV, being the

lowest posts, can be offered, the aim being to enable the family to

overcome financial destitution faced by them.

14. Further, compassionate appointment is permissible only to one

of the dependents of the deceased/incapacitated employee, i.e.,

parents, spouse, son or daughter and not to all relatives. The

favourable treatment given to such a dependent of the deceased

employee in such posts has a rational nexus with the object sought to

be achieved, viz., relief against destitution and the Court is expected

to be mindful of the fact that as against the destitute family of the

deceased, there are several other families that are equally, and may

be more destitute and an exception to the rule that is made in favour

of the family of the deceased employee is purely in consideration of

the services rendered by him and to meet the legitimate expectations

of his legal heirs.

15. The provisions for compassionate appointment are required to

be guided by the rules/executive instructions/scheme/policy framed

by the Government or the concerned public authority that can

withstand the test of Articles 14 and 16 of the Constitution of India,

the object being that an employment of such a nature cannot be

offered by an individual officer or on an ad hoc basis. Such a

rule/scheme/policy/guideline, as framed, is binding on both, the

employer and the employee. Compassionate appointment ought not

to be granted after a lapse of a reasonable period as may be

stipulated in the rules. The family member of the deceased, who

approach the employer for being considered for compassionate

appointment cannot claim a vested right to such an appointment and

nor can such a right be exercised at any time in the future. As the

sole object of such an appointment is to extend a helping hand to the

family of the deceased employee for them to tide over the immediate

financial crisis faced on account of the death of the breadwinner while

in service or on medical invalidation, compassionate appointment

cannot be claimed or offered after the crisis blows over. Another

factor that ought to be examined by the courts when approached by

the family members of the deceased employee for seeking

compassionate appointment, is the extent of retiral benefits received

by the heirs of the deceased employee.

16. The aforesaid legal position has developed over the years

through a number of judicial pronouncements made on the

parameters that the Court must keep in mind when dealing with a

case of compassionate appointment, including the cases of Umesh

Kumar Nagpal vs. State of Haryana and Ors. reported as (1994) 4

SCC 138; Director of Education (Secondary) and Anr. vs. Pushpendra

Kumar and Ors. reported as AIR 1998 SC 2230; Punjab National

Bank and Ors. vs. Ashwini Kumar Taneja reported as AIR 2004 SC

4155(1); State of J&K and Ors. vs. Sajad Ahmed Mir reported as

(2006) 5 SCC 766; V. Sivamurthy vs. State of Andhra Pradesh and

Ors. reported as (2008) 13 SCC 730; Eastern Coalfields Ltd vs. Anil

Badyakar and Ors. reported as (2009) 13 SCC 112 and Bhawani

Prasad Sonkar vs. UOI and Ors. reported as (2011) 4 SCC 209.

17. Coming to the facts of the instant case, the timeline prescribed

for the family members to submit an application under the Scheme

for payment of ex gratia amount in lieu of appointment on

compassionate grounds and appointment of dependents of deceased

employees on compassionate grounds, circulated by the

respondents/Bank on 17.10.2007 and prescribed under Clause 1.14 is

six months, which is to be reckoned from the date of the employee's

demise and for being eligible to seek employment under the Scheme,

twelve months from the date of an employee's demise.

18. A perusal of the records reveals that the petitioner's husband

had expired on 18.05.2009 and on the very same date, the

respondents/Bank had taken steps to write to the petitioner and

apprise her of the Bank's Scheme for payment of ex gratia/relief in

lieu of appointment on compassionate grounds for the dependents of

the deceased employees. Accompanying the said letter was a form

required to be filled up by the applicant.

19. Upon examining the Scheme for Compassionate Appointment

framed by the respondents/Bank, it is noticed that the petitioner and

her family members are not even eligible to apply for the reason that

the said Scheme has been extended to two categories of employees

as envisaged under Clause 1.2 thereof. The first category that has

been carved out is of an employee dying while performing his official

duty, as a result of violence, terrorism, robbery or dacoity and the

second category is of an employee dying within five years of his first

appointment or before reaching the age of thirty years, whichever is

later, leaving a dependent spouse and/or minor children. Neither of

the aforesaid circumstances exist in the present case. Though Shri

Ram Phal had expired on duty, the cause of his death was that he had

suffered a heart attack and further, he was 49 years of age at the

time of his demise and by then he had rendered service of sixteen

years with the Bank. As a result, the family members of the petitioner

cannot claim entitlement for appointment with the respondents/Bank

on compassionate grounds.

20. Moreover, the date of Shri Ram Phal's demise was 18.05.2009.

On the very same day, the respondents/Bank had admittedly taken

steps to write to the petitioner and inform her of the Bank's Scheme

for payment of ex gratia/relief in lieu of appointment on

compassionate grounds. The aforesaid Scheme prescribed a period of

twelve months reckoned from the date of the employee's demise, for

a family member to submit an application for seeking appointment on

compassionate grounds. But the petitioner had filed an application

seeking appointment of her son on compassionate grounds on

01.11.2010, i.e., after the passage of one and a half year from the

date of her husband's demise. In view of the timeline fixed in the

aforesaid Scheme, it is apparent that the said application was filed six

months beyond the period of one year granted for the said purpose,

by which time, the crisis faced by the family, would have blown over.

21. Proceeding further, at the time of filing the writ petition, the

petitioner did not reveal to the Court the fact that the family's

monthly income was to the tune of `13,000/- (Family pension from

the Army: `7,000/- plus monthly salary of Mr.Rajkumar: `6,000/-).

Further, the petitioner had failed to declare that she had a fixed

deposit of `2 lacs and she owned a dwelling house measuring 88 sq.

yards at Narela, Delhi. All the above facts are of significance when

considering the extent of destitution faced by the family members of

the deceased employee.

22. It is a settled law that a party, who invokes the extraordinary

jurisdiction of the Supreme Court under Article 32 and the High Court

under Article 226 of the Constitution of India is under a mandate to

be truthful and honest in disclosing all the material facts without any

reservation for the reason that the very foundation of writ jurisdiction

lies in disclosure of true and complete facts. Failure to disclose

material facts fairly and truly or an attempt to distort/twist the facts

so as to mislead the Court, would be a ground for the Court to reject

a petition outright without examining the merits of the case. Having

regard to the contents of the affidavit filed by the petitioner pursuant

to the specific directions issued by the Court, it has now emerged that

she did not fairly reveal the full and the correct facts that would be

necessary for the Court to consider granting the relief of

compassionate appointment to a member of her family.

23. In any event, the retiral benefits received by the petitioner upon

her husband's demise are to the tune of `5,54,100/- (an undisputed

amount of `1,72,496/- towards the gratuity dues, a sum of

`1,17,270/- under the Family Welfare Scheme and a sum of

`2,64,334/- towards the Provident Fund). The aforesaid amount is

considered as a substantial amount and would have provided enough

succor to the petitioner and her family members to meet their

immediate financial contingencies on the sudden demise of Shri Ram

Phal.

24. In this backdrop, the request made by the petitioner for grant of

compassionate appointment to her son under the Scheme framed by

the respondents/Bank is turned down on the ground that not only was

the application submitted beyond the timeline prescribed, but the

petitioner and her family members were not even eligible for making

such an application under Clause 1.2 thereof. Further, the petitioner

has failed to reveal to the Court the correct position with regard to

her financial status and that of her family members and added to it is

the fact that she and her family members had received a substantial

amount towards the terminal benefits of the deceased. Lastly, the

delay on the part of the petitioner in approaching the

respondents/Bank as also in approaching this Court, if reckoned from

the date of Shri Ram Phal's demise, adds up to one and a half year for

filing an application for compassionate appointment and to four years,

when filing the present petition, which is quite fatal to her claim. By

the time the present petition is being decided, another year has

passed by and all the above factors when taken together, compel this

Court to draw an inference that the financial condition of the

petitioner and her family members is not so penurious as claimed and

they have been able to overcome the sudden distress on account of

stoppage of income over the past five years. Resultantly, they are

not entitled to the relief of compassionate appointment.

25. Coming next to the claim of the petitioner for ex gratia payment

in lieu of compassionate appointment under the Scheme framed by

the respondents/Bank, apart from the eligibility criteria which is

common and has been noted above, the same stipulated that the

family members of the deceased must submit an application for

payment of the ex gratia amount within a period of six months from

the date of the employee's demise. The petitioner herein had

submitted such an application with the respondents/Bank on

01.11.2010, i.e., after a passage of one and a half year from the date

of Shri Ram Phal's demise. In other words, the application was filed

after the lapse of one year beyond the period of six months granted to

the family members for seeking ex gratia relief under the Scheme.

26. When examining the Scheme of the respondents/Bank, the

Court is expected to apply the actual terms of the Scheme to a case

and not to examine what would be more beneficial to a party. In the

present case, the Scheme as it stands, is clear and unambiguous and

is not found to be so arbitrary or unreasonable that it deserves

interference. As observed in the case of V. Sivamurthy (supra), a

policy is not open to interference merely because the court feels that

it is not practical or is less advantageous for government servants for

whose benefit it is made or because it considers that a more fairer

alternative is possible. These are matters of policy and the courts

should refrain from interfering with the terms of policy unless it is

opposed to any constitutional or statutory provision or suffers from

manifest arbitrariness and unreasonableness. The relief of ex gratia

payment in lieu of compassionate appointment under the Policy

framed by the respondents/Bank has to be examined strictly in

accordance with the terms of the Scheme and not by seeking

relaxation of the said terms.

27. The petitioner has not offered any explanation, much less just

or sufficient cause in belatedly applying to the respondents/Bank for

seeking appointment on compassionate grounds or in lieu thereof, ex

gratia payment under the Scheme. Resultantly, a glaring lapse of one

and half years in submitting the form in question reckoned from the

date of Shri Ram Phal's demise remains unexplained. In such

circumstances, the Court finds merit in the submission made by the

counsel for the respondents/Bank that the Bank was justified in

denying ex gratia payment to the petitioner as her application for the

said relief was highly belated.

28. Reliance placed by the learned counsel for the petitioner on the

judgment in the case of Smt. Vidyawati (supra), would also not be of

any assistance for the reason that the facts of the said case reveal

that the employee of the respondent/Bank had expired on 15.01.2005

and the petitioner therein had submitted an application for

appointment on compassionate grounds in less than a month, on

05.02.2005. Thereafter, the respondent/Bank had addressed a letter

dated 01.04.2005 to the petitioner, intimating her that the Scheme

for appointment on compassionate grounds had been kept under

suspension and relief in lieu of appointment on compassionate

grounds to the family members of the deceased employee in place of

the earlier Scheme could be offered and the petitioner was called to

collect the relevant information to do the needful in terms of the 20th

November, 2004 Scheme of the Bank.

29. In view of the aforesaid information conveyed to her, the

petitioner in the aforecited case had filed an application on

03.08.2006 furnishing the details sought by the Bank under the said

Scheme. The said application was rejected by the respondent/Bank on

the ground that the same was submitted beyond the prescribed

period of six months from the date of the death of the employee.

What weighed with the Court in the above case was the delay on the

part of the respondent/Bank therein in informing the petitioner that

the earlier Scheme of the year 1999 for grant of compassionate

appointment had been kept under suspension and that she could avail

of the subsequent Scheme of November, 2004 for grant of ex gratia

payment in lieu of appointment. The Court had therefore made an

observation that the limitation of six months is not a statutory

limitation and ought not to be construed so strictly that after expiry of

the said period, relief would not be granted on any ground.

30. In the case in hand, the facts reveal that the Bank was very

prompt in informing the petitioner about the Scheme but it was the

petitioner, who did not take timely steps to submit an application with

the respondents/Bank either for grant of compassionate appointment

to her son or for grant of ex gratia payment in lieu of compassionate

appointment. Furthermore, there is no explanation offered for the

delay in filing the present petition, when the impugned order was

passed on 13.04.2011. Resultantly, the prayer made by the petitioner

for grant of ex gratia payment in lieu of compassionate appointment

is also rejected.

31. Coming next to the grievance of the petitioner that the

respondents/Bank had declined her the permission to participate in

the Pension Scheme, as noted above, the respondents/Bank had

voluntarily introduced a Pension Scheme without any budgetary

support. Vide letter dated 09.10.2010, the petitioner was informed

about the Scheme and called upon to submit an option letter for

joining the said Scheme, by refunding 56% of the Bank's contribution

to the Provident Fund already received by her, on or before

06.12.2010. As per the respondents/Bank, the petitioner did not remit

her contribution to the tune of `2,45,175/- and though she had

claimed that she had made available a sum of `1,48,636/- in her SB

account on 22.11.2010, she did not give any instructions for the Bank

to adjust the said amount towards her contribution under the Scheme

and nor did she remit the balance contribution by the cut-off date.

32. The petitioner has sought to explain the delay in depositing the

entire sum of `2,45,175/- with the respondents/Bank by submitting

that she had to be admitted in the hospital with a heart problem in

the last week of November, 2010 and on recovering, she had

deposited the balance amount in her saving account maintained with

the respondents/Bank on 22.11.2010 and vide letter dated

06.01.2011, she had informed the Bank of the said position and

explained the reasons for the delay in applying for

Pension/commutation of Pension.

33. A perusal of the pleadings and the documents placed on record

reveals that the respondents/Bank did not convey its decision on the

request made by the petitioner for extension of Family Pension to her.

It is the respondents/Bank's case that vide letter dated 09.10.2010,

it had forwarded the necessary forms to the petitioner for filling up

and applying for the Pension/commutation of Pension and she was

required to submit the said form on or before 06.11.2010, alongwith a

sum of `2,45,175/- towards her contribution to the Pension Fund.

34. It is not denied by the respondents/Bank that the petitioner had

made available a sum of `1,48,636/- in her savings account,

maintained with the Bank. As for the balance amount of `96,539/-,

vide letter dated 06.01.2011, the petitioner had informed the

respondents/Bank that she had arranged sufficient funds in her

account, which could be withdrawn towards deposit of balance

amount towards her 56% share in the Pension Account. The said

letter was forwarded by the Rohini Branch of the respondents/Bank to

the General Manager (Personnel) at Bangalore on the very same day

(Annexure P-3). However, while passing the impugned rejection order

dated 13.04.2011, the respondents/Bank had only turned down the

petitioner's request for payment of ex gratia amounts but said nothing

about her request to participate in the Pension Scheme.

35. Reliance placed by the counsel for the respondents/Bank on the

case of Sudhir Kumar Consul (supra) to urge that the court ought not

to interfere with the cut off date as it is a policy decision, would not

be of any assistance in the present case, for the reason that in the

aforesaid case, the Court was examining as to whether the appellant

therein was eligible for pensionary benefits under the 1980 Employees

Pension Scheme floated by the respondent/Bank in terms of

Regulation 46 of the 1979 Service Regulations. The appellant therein

had argued that Regulation 46 discriminates against the officers

appointed on or before 01.07.1979, the cut-off date fixed for an

officer for eligibility to receive pension under the old Pension Scheme.

Rejecting the said argument, the Supreme Court held that fixing the

cut off date for granting retiral benefits such as gratuity, pension

under different schemes incorporated in the subordinate legislation

thereby creating two distinct and separate classes of employees is

well within the ambit of Article 14 of the Constitution of India. On the

aspect of choice of date as the basis for classification, the past

precedent was cited and the appeal was dismissed.

36. The other decision referred to by the counsel for the

respondents/Bank is the case of Central Bank Retirees Association

(supra), wherein the appellants, who were pre-01.01.1986 retirees

from various public sector banks, had challenged the cut-off date of

01.01.1986 for applicability/eligibility to the benefits under the

Pension Regulations introduced by the respondents. The said appeals

were dismissed by the Division Bench with an observation that there

was a distinction between liberalization of an existing scheme and the

introduction of a new scheme and the provident fund retirees, who

had retired and had received their retiral benefits from the employer

cannot claim a vested right of coverage under the Pension

Regulations.

37. The facts of the present case are entirely different. This is not a

case where the Court is required to examine the "cut off date" in that

sense of the term. Here, the Court is only called upon to examine as

to whether the respondents/Bank is justified in declining to grant

permission to the petitioner and her family members to participate in

the Pension Scheme on the ground that she had not submitted the

requisite form on or before 06.11.2010, the date communicated to

her by the Bank.

38. In the opinion of this Court, the respondents/Bank ought to

have independently considered the request made by the petitioner in

her representation dated 06.01.2011, for condonation of delay of

sixteen days in depositing the substantial amount of `1,48,636/- and

two months in depositing the balance amount of `96,539/- towards

her share in the Pension Account. However, there is nothing on

record to demonstrate that the said letter was considered on merits

and the explanation offered for the delay in making the deposit

examined and thereafter, a decision was taken and duly intimated to

the petitioner.

39. In this view of the matter, it is deemed appropriate to direct the

respondents/Bank to consider the letter dated 06.01.2011 submitted

by the petitioner for participating in the Pension Scheme in the light of

the explanation for the delay offered by her and keeping in mind the

objective of the said Scheme, which is benevolent in nature and ought

not to be construed so strictly and technically as to oust those for

whom it has been tailored. The respondents/Bank are directed to take

a decision on the aforesaid aspect and convey the same to the

petitioner in writing within six weeks from today.

40. The petition is partly allowed on the aforesaid lines while leaving

the parties to bear their own costs. Needless to state that if the

petitioner's grievance still survives, she shall be entitled to seek her

remedies in accordance with law.

                                                     (HIMA KOHLI)
DECEMBER      08 , 2014                                 JUDGE
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