Madras High Court
V.Latha vs The Chief Manager on 10 January, 2025
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.NO.6322 OF 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2025
CORAM
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.6322 of 2020
V.Latha ... Petitioner
Vs.
1. The Chief Manager,
Pension Department,
Head Office,
The New India Assurance Company Ltd.,
New India Assurance Building,
87, M.G.Road, Fort,
Mumbai 400 001.
2.The Regional Manager,
The New India Assurance Company Ltd.,
Spencer Towers, 3rd Floor,
770 A, Anna Salai,
Chennai 600 002. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for
issuance of a writ of Certiorarified Mandamus, calling for the records
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W.P.NO.6322 OF 2020
relating to the proceedings of 1st respondent vide order dated 04.10.2019
vide Ref.NIACL/Pension Cell/2019 and quash the same and direct the
respondents to accept the Form – II submitted to the respondents vide
application dated 21.08.2019 under the General Insurance (Employees')
Pension Scheme, 1995 and to grant pensionary benefits to the petitioner
within a time frame that may be fixed by this Court.
For Petitioner : M/s.Raja Shama Gayathri
for Mr.V.Raja Saravanan
For Respondents : Mr.V.Perumal
ORDER
The present writ petition has been filed challenging the impugned
order passed by the first respondent dated 04.10.2019 and quash the same
and consequential direction to the respondents to accept the Form – II
submitted to the respondents vide application dated 21.08.2019 under the
General Insurance (Employees') Pension Scheme, 1995 and to grant
pensionary benefits to the petitioner.
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2. The brief facts of the case are as follows:-
The case of the petitioner is that she is an ex-employee of the
respondents' company and she had opted the Special Voluntary Retirement
Scheme offered by the respondents' company and voluntarily retired from
the service of the respondents' company on 12.03.2004 and the petitioner
had completed 19 years 7 months and 9 days during her tenure in the said
company. The respondents' company made amendment General Insurance
(Employees') Pension Amendment Scheme, 2019 in the Pension Scheme
and made a provision to give one more option to join in the Pension
Scheme and required to submit Form-II as per the Scheme.
3. It is the further case of the petitioner that she submitted Form-II
for the General Insurance (Employees') Pension Scheme, 1995 and as per
the new amendment of the scheme to the respondents' company on
21.08.2019 before the second respondent and forwarded the same to the 1st
respondent. After receipt of the same, the first respondent vide order dated
04.10.2019 rejected the Form II submitted by the petitioner stating that the
petitioner is not eligible for pension under the General Insurance
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( Employees' ) Pension Amendment Scheme, 2019. Aggrieved by the said
order, the petitioner has come forward with the present writ petition.
4. The learned counsel appearing for the petitioner relied on sub
paragraph 11 of para 3 inserted vide Notification of the Ministry of Finance
(Department of Financial Services) , New Delhi dated 23.04.2019, and the
same is extracted hereunder :-
(11) joined the service of the Corporation or a Company, as
the case may be, before the 28th day of June, 1995, but
retired before the said date; and
(a) within one hundred and twenty days from the
said date,
(i) exercise an option in writing to become
the member of the Fund; and
(ii)authorise the Corporation or the Company ,
as the case may be, to transfer the entire
contribution of the Corporation or of the
Company to their provident Fund that may
accrue to them if any revision of scales of pay
is effected from a date prior to the date of
their retirement;
(b)within sixty days after the expiry of
one hundred and twenty days specified
in clause (a)
(i) refund to the Corporation or the
Company, as the case may be, the
entire amount of the Corporation's
contribution or the Company's
contribution to Provident Fun and
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W.P.NO.6322 OF 2020
interest accrued thereon received
by the employee on retirement
along with the entire amount of
non-refundable withdrawal, if any,
made from the Corporation's
contribution or Company's
contribution, as the case may be, to
the Provident Fund account ; and
ii) pay to the Corporation or the
Company, as the case may be , an
amount equal to 0.3 times of the
amount arrived at in sub-clause(i)
above, as a one time contribution
to the fund;
Provided that, notwithstanding anything
contained in paragraph 51 of this Scheme,
pension to such employees shall become
payable from the said date;
5. The learned counsel for the petitioner further relied on Note 3
inserted vide Notification of the Ministry of Finance (Department of
Financial Services) , New Delhi dated 23.04.2019 and the same is extracted
hereunder :-
B. For the purpose of this paragraph, after Note(2), the
following notes will be inserted, namely :-
“Note : (3) Sub-paragraphs (10), (11), (12) and (13)
shall also apply, mutatis mutandis, to
employees who opted for Special Voluntary
Retirement Package under clause 15C of the
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W.P.NO.6322 OF 2020
General Insurance (Rationalisation of Pay
Scales and Other Conditions of Service of
Development Staff) Scheme, 1976 or opted
for special voluntary retirement under the
General Insurance Officers' Special
Voluntary Retirement Scheme, 2004 or the
General Insurance Employees' Special
Voluntary Retirement Scheme, 2004 or opted
for voluntary separation under General
Insurance (Public Sector) Officer's Golden
Gate Scheme for Voluntary Separation,
2009, as the case may be, after rendering
qualifying service for a minimum period of
twenty years;
Provided that the benefits of increase of
qualifying service by maximum five years as
stipulated in sub-paragraph (5) of
paragraph 30 of this Scheme shall not be
admissible to such employees.
6. The learned counsel further submitted that the petitioner joined
the respondents' company on 03.08.1984 and retired under the Special
Voluntary Retirement Scheme (SVRS) on 12.03.2004. The petitioner
submitted an application on 21.08.2019 for grant of pension in view of the
Notification dated 23.04.2019 issued by the Ministry of Finance
(Department of Financial Services) , New Delhi and the same was rejected
on 04.10.2019 by the respondents' company.
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7. A counter affidavit was filed on behalf of the respondents 1 and 2
on 29.12.2021. Relevant paragraphs of the said counter affidavit are
extracted hereunder :-
5. I submit that in exercise of the powers conferred
by Section 17A of the General Insurance Business
(Nationalisation) Act, 1972 (57 of 1972), the
Central Government formulated and gazetted the
General Insurance (Employees') Pension Scheme,
1995 (hereinafter to be referred as 'Pension
Scheme, vide S.O.No.585(E) dated 28.06.1995,
for the employees, who were in the services of the
company before 28.06.1995 and continue to be in
service on or after 28.06.1995, as mentioned in
paragraph 3(3)(a) of the said Pension Scheme.
The petitioner had consciously not opted for the
said benefit within the period of 120 days from
28.06.1995, as mentioned in Paragraph 3(3)(b)
of the said Pension Scheme.
7. I further submit that in exercise of the powers
conferred by Section 17 A of the General
Insurance Business ( Nationalisation) Act, 1972
(57 of 1972), the Central Government formulated
the General Insurance Officers Special Voluntary
Retirement Scheme 2004 (hereinafter called as
'SVRS Scheme') vide gazette Notification
No.S.O.7 (E) dated 01.01.2004, the petitioner had
applied for voluntary retirement in accordance
with the terms and conditions of the said SVRS
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W.P.NO.6322 OF 2020
Scheme. Further, the Company had accepted her
voluntary retirement under the SVRS Scheme on
12.03.2004 and relieved her from services of the
Company at the close of office hours on
12.03.2004 and all her dues towards SVRS
payable amount namely Ex-gratia amount of
Rs.6,14,916/- out of which, the company paid
Rs.77,782/- after making recoveries including
audit recoveries of Rs.5,37,134/- Leave
Encashment of Rs.23,794/- Gratuity of
Rs.1,64,966/- P.F.amount of Rs.3,56,619/-
( Company PF amount + own PF amount) and
payable G.S.L.I amount were released.
8(b). I submit that the petitioner has not rendered
minimum qualifying service i.e. period of 20 years
(the petitioner has completed only 19 years of
service). In view of the same, the Respondent
expressed their inability to consider the
petitioner's request for the said pensionary
benefits, as requested by her by option Form No.II
dated 21.08.2019 vide registered A/D letter
No.NIACL/Pension Cell/2019 dated 04.10.2019."
8. The learned counsel for the respondents submitted that the petitioner
has completed only 19 years of service and she had received all the
retirement benefits on 12.03.2004, immediately after attaining the age of
superannuation and further drew attention of this court to paragraph 30 in
Chapter-5 of the General Insurance (Employee') Pension Scheme, 1995.
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Paragraph 30 deals with Pension on voluntary retirement and the relevant
portion reads as under :-
(1) At any time after an employee has completed
twenty years of qualifying service, he may, by
giving notice of not less than ninety days, in
writing to the appointing authority, retire from
service.
9. He would further submit that she received all the benefits under
VLRS in the year 2004, she is not eligible for pension under Notification
dated 23.04.2019. The petitioner after the amendment which came into
effect on 23.04.2019 has given the application for pension under Form II
which is after a delay of 15 years from the date of superannuation on
10.07.2004 under Special Voluntarily Retirement Scheme opted by the
respondent's company. Therefore, the petitioner is not eligible for the
pension scheme since she retired 15 years back and also received all the
retirement benefits. Hence, this writ petition is liable to be dismissed.
10. The learned counsel for the respondents has placed reliance on
the following decisions of the Hon'ble Supreme Court:-
i) In DTC v. Balwan Singh, (2019) 18 SCC 126
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ii) In LIC v. Shree Lal Meena, (2019) 4 SCC 479,
iii) In U.P. Roadways Retired Officials & Officers
Assn. v. State of U.P., (2024) 9 SCC 331 :
11. The learned counsel further submitted that in the case of
National Insurance Company Limited and Another vs. Kirpal
Singh(2014) 5 Supreme Court Cases 189 and Indian Bank and Another
vs. N.Venkatramani relied by the petitioner is not applicable to the case of
the petitioner since the amendment came into effect only on 23.04.2019 and
the relied/cited case is pertaining to 2004 Scheme.
12. Heard the learned counsel for the petitioner and the learned
counsel for the respondents and also perused the materials available on
records.
13. In the case on hand, the petitioner joined her service of the
respondents' company on 03.08.1994 and retired from service on
10.07.2004 under the benefit offered by her i.e. Special Voluntary
Retirement Pension Scheme. The respondents' company made an
amendment to General Insurance (Employees')Pension Scheme only in the
year 2019 wherein the petitioner's retired 15 years back i.e. 10.07.2004 .
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W.P.NO.6322 OF 2020
14. It is pertinent to note that the petitioner has received all the
retirement benefits as early as 12.04.2004 from the respondent company
and the petitioner has not rendered minimum qualifying service i.e. period
of 20 years but whereas, the petitioner has only rendered as 19 years 7
months 9 days of service. As per the amendment in the gazetted
notification S.O.1627(E) dated 23.04.2019 for employees an option to join
the said Pension Scheme, who joined the Company before 28.06.1995 but
had retired from services of the company before 23.04.2019 as mentioned
in paragraph 3(11) of the said Pension Scheme. Further, Note No.3 to
paragraph 3 of the said Gazette Notification dated 23.04.2019, the said
pensions scheme was made applicable to employees, who opted for Special
Voluntary Retirement Package under SVRS Scheme and have rendered
qualifying service of minimum period of 20 years. Further, the benefit of
increase of qualifying service by maximum 5 years as stipulated in sub
paragraph 30 of this Scheme ( Paragraph 30 refers to Pension on voluntary
retirement) shall not be admissible to such employees (SVRS Optees)
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W.P.NO.6322 OF 2020
15. It is also pertinent to note that the respondent's company had
accepted the voluntary retirement of the petitioner under SVRS Scheme and
relieved her from service on 10.07.2004. It is also to be mentioned that the
employees who were in the services of the company before 28.06.1995 and
continued in service on or after 28.06.1995 as mentioned in para 3(3)(a) of
the said Pension Scheme can opt for pension but the petitioner had not
opted for the said benefit within the period of 120 days from 28.06.1995, as
mentioned in paragraph 3(3)(b) of the said Pension Scheme. Hence, the
petitioner had not opted the benefit for the first time on 28.06.1995 and for
the 2nd time on 22.04.1997 for the said scheme while in service and now the
petitioner submitted the application in Form II dated 21.08.2019 after 15
years from the date of voluntary retirement i.e. on 10.07.2004 and the
amendment which came into effect on 23.04.2019. Therefore, the petitioner
is not eligible for the said pension scheme.
16. The learned counsel appearing for the respondents placed
reliance on the following Judgments of the Hon'ble Supreme Court of
India:-
i) In DTC v. Balwan Singh, (2019) 18 SCC 126, it has
been held as under :-
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W.P.NO.6322 OF 2020
23. We have, thus, no hesitation in coming to the
conclusion that to avail of the benefit of the
Pension Rules, an employee must qualify in
terms of the Rules. In the present case, the
respondents unfortunately do not do so, as the
period which is sought to be excluded from
their qualifying service is one where they have
admittedly not been paid leave salary. The
qualifying period for the VRS would have to
be governed by that Scheme and cannot ipso
facto be imported into the entitlement of
pension, contrary to the plain wordings of the
Pension Rules. We see no conflict in this, apart
from the fact that the Pension Rules came into
force actually much later, though the intention
was announced just before the VRS. The
respondents were governed prior to that by the
Employees Contributory Provident Fund
Scheme.
ii) In LIC v. Shree Lal Meena, (2019) 4 SCC 479, relevant
portion is extracted hereunder :-
26. There are some observations on the principles
of public sectors being model employers and
provisions of pension being beneficial
legislations. [Shashikala Devi v. Central Bank
of India, (2014) 16 SCC 260 : (2015) 3 SCC
(L&S) 319; Asger Ibrahim Amin v. LIC,
(2016) 13 SCC 797 : (2015) 3 SCC (L&S) 12]
We may, however, note that as per what we
have opined aforesaid, the issue cannot be
dealt with on a charity principle. When the
legislature, in its wisdom, brings forth certain
beneficial provisions in the form of Pension
Regulations from a particular date and on
particular terms and conditions, aspects
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which are excluded cannot be included in it by
implication. The provisions will have to be
read as they read unless there is some
confusion or they are capable of another
interpretation. We may also note that while
framing such schemes, there is an important
aspect of them being of a contributory nature
and their financial implications. Such
financial implications are both, for the
contributors and for the State. Thus, it would
be inadvisable to expand such beneficial
schemes beyond their contours to extend them
to employees for whom they were not meant
for by the legislature.
iii) U.P. Roadways Retired Officials & Officers Assn. v. State
of U.P., (2024) 9 SCC 331 : 2024 SCC OnLine SC 1818 at
page 348 relevant portion is extracted hereunder :-
44. In Prabhu Narain v. State of U.P. [Prabhu Narain.
v. State of U.P., (2004) 13 SCC 662] , this Court
held that to receive pension the employees must
establish that they are entitled to pension under a
particular rule or scheme. The following has been
held in para 5 : (SCC p. 664)
“5. … No doubt pension is not a bounty, it is a
valuable right given to an employee, but, in
the first place it must be shown that the
employee is entitled to pension under a
particular rule or the scheme, as the case
may be.”
45. In yet another judgment rendered in Rajasthan
SRTC v. Madu Giri [Rajasthan SRTC v. Madu
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W.P.NO.6322 OF 2020
Giri, (2013) 11 SCC 603 : (2013) 3 SCC (L&S)
141], it is held thus in paras 7, 8 & 9 : (SCC pp.
605-606)
“7. The Division Bench [Rajasthan SRTC v.
Madugiri, 2006 SCC OnLine Raj 1702] has
considered the Regulations but failed to notice
that there is apparent error in the order
[Madugiri v. Rajasthan SRTC, 2006 SCC
OnLine Raj 1703] passed by the learned Single
Judge. Indisputably, the employees concerned
retired from service in 1991 and 1992 and after
retirement they were paid CPF including the
share of employer's contribution. Hence, as per
Regulation 3 of the Regulations, no right
accrued to the appellants/employees to claim
pensionary benefits without first depositing the
amount and complying with the Regulations.
8. The matter was examined by this Court in PEPSU
RTC v. Mangal Singh [PEPSU RTC v. Mangal
Singh, (2011) 11 SCC 702 : (2011) 2 SCC (L&S)
322] wherein it was held as under : (SCC p. 722,
paras 51-52)
‘51. The common thread which runs through
all these appeals canvassed before us is
that the respondents have failed to comply
with the terms and conditions of the
Regulations, which govern the Pension
Scheme. We have already considered the
nature and effect of the Regulations,
which are made under a statute. These
statutory regulations require to be
interpreted in the same manner which is
adopted while interpreting any other
statutory provisions. The Corporation as
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well as the respondents are obliged and
bound to comply with its mandatory
conditions and requirements. Any action
or conduct deviating from these conditions
shall render such action illegal and
invalid. Moreover, the respondents have
availed the retiral benefits arising out of
CPF and gratuity without any protest.
52. The respondents in all these appeals, before
us, have made a claim for pensionary
benefits under the Pension Scheme for the
first time only after their retirement with
an unreasonable delay of more than 8
years. It is not in dispute, in some appeals,
that the respondents never opted for the
Pension Scheme for their alleged want of
knowledge for non-service of individual
notices. In other appeals, although the
respondents applied for the option of the
Pension Scheme but indisputably never
fulfilled the quintessential conditions
envisaged by the Regulations which are
statutory in nature.’
9. We are, therefore, of the opinion that, in the facts and
circumstances of the case and in view of the law laid
down by this Court in the judgment referred to
hereinabove, the impugned orders passed by the
learned Single Judge [Madugiri v. Rajasthan SRTC,
2006 SCC OnLine Raj 1703] and the Division Bench
[Rajasthan SRTC v. Madugiri, 2006 SCC OnLine
Raj 1702] of the High Court cannot be sustained in
law.”
46. The common thread in the above referred judgments of
this Court is that pension is a right and not a bounty. It
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is a constitutional right for which an employee is
entitled on his superannuation. However, pension can
be claimed only when it is permissible under the
relevant rules or a scheme. If an employee is covered
under the Provident Fund Scheme and is not holding a
pensionable post, he cannot claim pension, nor the writ
court can issue mandamus directing the employer to
provide pension to an employee who is not covered
under the rules.
17. The petitioner is not eligible for the above Pension Scheme by
relying on the amendment which came into effect by way of notification on
23.04.2019 for the following reasons:-
i) The petitioner voluntarily retired from the
respondent company under the Special Voluntary
Retirement Scheme (SVRS) with effect from
12.03.2004.
ii) The petitioner received all her retirement benefits
which she is entitled as per the rules of the
Respondent Insurance Company in the year 2004
itself i.e on 12.03.2004.
iii) This amendment was introduced on 23.04.2019 that
is 15 years after the superannuation of the
petitioner in the year 2004.
iv) The petitioner have not completed 20 years of
service as stipulated in para 30 of Chapter-5 of the
General Insurance (Employees') Pension Scheme,
1995.
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v) The petitioner has completed service of only 19
years, 7 months and 9 days and does not have the
minimum qualifying service of 20 years as stated
supra.
vi) The petitioner has not opted for the General
Insurance (Employees') Pension Scheme, 1995
introduced on 28.06.1995 within a period of 120
days from 28.06.1995.
vi) The respondent for the second time allowed the
employees to join the Pension Scheme as on the
date of notification i.e. on 22.04.1997 and the
petitioner failed to utilize this opportunity for the
second time also.
vii) In view of the above ratio laid down by the
Hon'ble Supreme court of India as stated supra.
18. In view of the above factual matrix of the case, reasons and the
ratio laid down by the Hon'ble Supreme Court of India, the impugned order
passed by the first respondent dated 04.10.2019 vide Reference
NIACL/Pension Cell/2019 does not warrant any interference by this Court
and the same is liable to be confirmed and accordingly it is confirmed.
19. In the result, this writ petition stands dismissed. No costs.
10.01.2025
Index : Yes/No.
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Internet : Yes/No.
Neutral Citation : Yes/No
Speaking : Non-speaking Order
kkd
To
1.The Chief Manager,
Pension Department, Head Office,
The New India Assurance Company Ltd.,
New India Assurance Building,
87, M.G.Road, Fort, Mumbai 400 001.
2.The Regional Manager,
The New India Assurance Company Ltd.,
Spencer Towers, 3rd Floor,
770 A, Anna Salai, Chennai 600 002.
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J.SATHYA NARAYANA PRASAD, J.
kkd
(1/3)
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10.01.2025
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