Navnitlal Punjalal Shah vs Bank Of Baroda
2021 Latest Caselaw 18107 Guj

      C/SCA/11760/2019                                       ORDER DATED: 06/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 11760 of 2019
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                           NAVNITLAL PUNJALAL SHAH
                                    Versus
                               BANK OF BARODA
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Appearance:
MR NANDISH CHUDGAR WITH MS NIDHI N PRAJAPATI(10572) for the
Petitioner(s) No. 1
MR DARSHAN M PARIKH(572) for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 06/12/2021
                       ORAL ORDER

1. The present petition has been filing seeking the following prayers:-

" 25(a) Your Lordships may pleased to issue a writ of or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 07/09/2018 (at Annexure-A)

(b) Your Lordships may be pleased to issue a writ or or a writ in the nature of mandamus or any other appropriate writ, order or direction mandating the Respondent to grant the benefit of Regulation No.26 of the Bank of Baroda (Employees') Pension Regulation 1995."

2. Thus, the petitioner is claiming the benefit under Regulation No.26 of the Bank of Baroda Employees Pension Regulation, 1995 (for short "the Pension Regulation, 1995").

3. The brief facts of the case are as under:-

3.1 It is the case of the petitioner that after completing his M.A. from university of Sheffield, UK and having worked with Midland Bank Ltd., London, he applied for recruitment with the respondent-Bank in the year 1965 and got selected vide appointment letter dated 11.08.1965 as an officer in Bank's Grade E. It is asserted that the petitioner the upper age limit of 25/26 years was relaxed as he was aged about 31 years and 6 months at the relevant time.

C/SCA/11760/2019 ORDER DATED: 06/12/2021

3.2. The petitioner served with the respondent-Bank and ultimately, retired on attaining the age of superannuation of 60 with effect from 31.01.1994 and thus, having served with the respondent-Bank for 28 years and 5 months, he is claiming the benefits of 33 years of service as per the Regulation No.26 of the Pension Regulation, 1995.

4. Learned advocate Mr. Nandish Chudgar appearing for the petitioner has submitted that it is not in dispute that the petitioner has served for all these years under the respondent-Bank and pursuant to the judgment of the Supreme Court dated 20.07.2017 passed in the case of V. Vijayan vs. Chairman and Managing Director-Bank of Baroda and Ors. in Civil Appeal No.9371-9374 of 2017, interpreting the Regulation No.26 of the Regulation 1995, the petitioner applied for claiming the benefit under Regulation No.26 of the Pension Regulation since the respondent-Bank issued a circular dated 15.05.2018 to all its branches and offices inviting the application from the retired employees for re-calculation of pension. It is submitted that the petitioner accordingly made an application for refixation of pension as per the prescribed form and filled the same on 28.05.2018 It is submitted that thereafter ultimately the respondent-Bank refused to grant the benefit under the provisions of Regulation No.26 for the reason that there was no evidence to show that the petitioner at the relevant point of time was granted any age relaxation and no material was produced to show that the actual age of appointment, which was required in the year 1965.

5. Learned advocate Mr. Nandish Chudgar for the petitioner has submitted that the other employees, who are appointed in the year 1968 onwards were also extended the benefits, however, the petitioner has been denied only for want of information. It is submitted that the respondent- Bank may be directed to produce the relevant record in order to examine the actual age criteria required for the appointment in the respondent-Bank. No further submissions are advanced.

C/SCA/11760/2019 ORDER DATED: 06/12/2021

6. In response to the aforesaid submissions, learned advocate Mr.Darshan Parikh has submitted that in fact the initial appointment of the petitioner itself in cloud as the form, which was filled by him for seeking benefit under the provisions of Regulation No.26 of the Pension Regulation, the petitioner has specifically stated that he has been appointed in the manner as provided in clause 3. It is submitted that the petitioner has himself submitted that he was recruited by approaching directly to the bank by making an application without issuance of any advertisement.

7. While inviting the attention of this Court to the column no.10 of such form, learned advocate Mr.Parikh has submitted that the petitioner has himself stated that since he has applied directly to the Bank and not through an advertisement. In other column he has mentioned "the upper age limit was not prescribed". It is submitted that the number of years of relaxation availed at the time of joining is mentioned as 6 years and 7 months, however, in the initial application, which was made by him, the petitioner has mentioned relaxation of 1 year and 7 months.

7.1 Learned advocate Mr.Parikh has further submitted that in 1965 the bank was not a nationalized bank. He has submitted that there is no material to suggest that at the time of joining of the petitioner in the Bank of Baroda Ltd. i.e. prior to nationalization, the upper age limit was 25/26 years. He has submitted that there was no promotional post of Development Manager or Regional Manager and the petitioner was appointed as a Staff Assistant in the year 1965. Thus, it is submitted that the petitioner is not entitled to any benefit under the Regulation No.26 of the Pension Regulation as the petitioner has not produced any proof with regard to his age criteria when he was appointed and there is nothing to show that he was appointed by giving age relaxation in the upper age limit in the year 1965.

C/SCA/11760/2019 ORDER DATED: 06/12/2021

8. Learned advocate Mr.Parikh has submitted that since the petitioner had not applied pursuant to any advertisement for direct recruitment, such information would not be available and the assertion made by the petitioner with regard to his relaxation in upper age limit cannot be relied upon. It is submitted that the basic rule of evidence enshrined in Section 101 of the Evidence Act is that a person, who asserts must prove the same and the petitioner must prove with independent documentary evidence that the was conferred any age relaxation at the time of appointment. Thus, it is submitted that in wake of the fact that there is nothing to suggest in Bank of Baroda Ltd. in the year 1965, the upper age criteria was 25 or 26 years of age and he was appointed by seeking the age relaxation. He has further submitted that the petitioner can very well avail the civil remedy where the disputed question of fact can be considered.

9. I have heard the learned advocates appearing for the respective parties.

10. As the facts narrated hereinabove would suggest that there is dispute with regard to age relaxation and the requisite age for appointment prevailing in the year 1965 when the petitioner was appointed as Staff Assistant in the Bank of Baroda Ltd. The appointment of the petitioner was prior to the nationalization of the Bank. It is also admitted by the petitioner that he was not appointed through any advertisement, but had approached directly by making an application. Even the documents on record i.e his application and his form also suggest that the age relaxation which he is asserting, is also not specific as it varies from one year to seven months and six years to seven months. The Regulation No.26 of the Pension Regulation under which the petitioner has claimed the benefits reads as under:-

"26. Addition to qualifying service in special circumstances. An employee shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one fourth of the length of his service or the actual period by which his age at the time of recruitment

C/SCA/11760/2019 ORDER DATED: 06/12/2021

exceeded the upper age limit specified by the Bank for direct recruitment or a period of five years, whichever is less, if the service or post to which the employee is appointed is one -

(a) for which post-graduate research, or specialist qualification or experience in scientific, technological, or professional fields, is essential; and

(b) to which candidates of age exceeding the upper age limit specified for direct recruitment are normally recruited.

(c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience:

Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits the service in the Bank is not less than ten years;

Provided further that this concession shall be admissible if the recruitment rules in respect of the said service or post contain specific provision that the service or post is one, which carries benefit of this regulation;

Provided also that the recruitment rules in respect of any service or post, which carries the benefit of this regulation, shall be made with the approval of the Central Government."

11. In order to claim the benefits under Regulation No.26 of the Pension Rules, the petitioner has to make a specific case of having satisfied the criteria, as mentioned therein with regard to the appointment made at the relevant time by taking the benefit of age relaxation. The onus lies on the petitioner to prove about the age relaxation or the age criteria fixed by the Bank in the year in 1965.

12. Since there are highly disputed questions of fact involved in this petition and this Court, while exercising the powers under Article 226 of the Constitution of India, cannot venture into deciding such disputed question of facts, the writ petition fails. Notice is discharged.

(A. S. SUPEHIA, J) ABHISHEK/24