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Judgment
R.K. Deshpande, J
The petitioner was appointed as Development Officer inthe respondent National Insurance Co. Ltd. on 10Â2Â1985. After completion of 17
years, 1 month and 18 days, he gave notice for voluntary retirement from service on 14Â2Â2003 to take the benefit of Special Voluntary Retirement
Package introduced on 2Â1Â2003. Though the petitioner was permitted to opt for
voluntary retirement, he is denied the gratuity payable under the Payment of Gratuity Act, 1972 and also the pension as per the General Insurance
(Employees') Pension Scheme, 1995 on the ground that he has not completed 20 years of qualifying service in terms of Clause 30 under Chapter V of
the said Pension Scheme.
Shri Bapat, the learned counsel appearing for the petitioner, has relied upon the decision of the Apex Court in the case of National Insurance Co.
Ltd. and another v. Kirpal Singh, delivered in Civil Appeal No.256 of 2014 and other connected matters on 10Â1Â2014. It is urged that in terms of
the said decision, the employees who have completed continuous service of 10 years become entitled to pension, and the provision of Clause 30 under
Chapter V of the said Pension Scheme is not applicable, but the case of the petitioner is covered by Clause 14 under Chapter IV, which requires
minimum service of 10 years in the Company so as to become entitled to get the pension. He does not press the relief of gratuity claimed.
Prima facie, we are of the view that the case of the petitioner is covered by the decision of the Apex Court in Kirpal Singh's case, cited supra.Â
However, none appears for the respondents. Put up this matter tomorrow, i.e. 6Â6Â2018, for further hearing, as partÂheard.
On 06/06/2018
Shri Khanzode, the learned Counsel appears for the respondents. We have heard him at length. He has placed heavy reliance upon the application
for special voluntary retirement package submitted by the petitioner on 14/2/2003 and the administrative instructions issued vide letter dated 13/2/2003.
He invites our attention to the administrative instructions contained in Clause no.4 (B) (ii), which is reproduced below:Â
“ClauseÂ4 (B) (ii): Pension (including commuted value of pension) as per the General Insurance (Employees') Pension Scheme, 1995, if eligible
(Those who have not completed twenty years of minimum service for eligibility of pension shall not be entitled for any pension. The five years notional
benefit under Para 30 (5) of the Pension Scheme will not be available for those opting under Special Voluntary Retirement Package).â€
He submits that when the petitioner submitted his application on 14/2/2003, he was well aware of the administrative instructions issued on 13/2/2003,
under which he became ineligible for getting pension as he did not complete 20 years of minimum service. He has relied upon unreported decision of
the learned Single Judge of the Delhi High Court delivered on 17/11/2015 in Writ Petition (C) No.6408/2014 (Arun Oswal...Versus...M/s. Oriental
Insurance Company Limited) and has urged that similar claim was rejected after taking into consideration the decision of the Apex Court in the case
of Kirpal Singh, cited supra.
It is not possible for us to accept the contentions raised by learned Counsel for the respondents for several reasons. Firstly, in our view, the present
case is covered by the decision of the Apex Court in the case of Kirpal Singh, cited supra. Secondly, perusal of the application dated 14/2/2003 for
special voluntary retirement scheme in the prescribed form indicates that the petitioner has carefully read and understood the contains of General
Insurance (Rationalisation of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003 and this is the title of the
scheme shown in Clause (1) (1) published by way of Notification issued by the Ministry of Finance and Company Affairs, Government of India on
2/1/2003. Three things are significantly required to be noted â€" (a) there is nothing to show that the administrative instructions dated 13/2/2003 were
part and parcel of the Scheme, (b) there is nothing to show that the petitioner read and understood the administrative instructions and then signed the
application and (c) the Scheme published in Government Gazette could not be altered or amended or explained and clarified by issuing a letter giving
administrative instructions, so as to bind the petitioner by it. Be that as it may, in our view, unless it is the stand taken by the respondents and
substantiated that the administrative instructions dated 13/2/2003 were brought to the notice of the petitioner before submitting an application on
14/2/2003, it would not be binding upon him. Had this letter been brought to the notice of the petitioner, he would have thought of giving option for
voluntary retirement.
The petitioner relied upon the representation in the original scheme which did not define the minimum eligibility of service for getting pension under
the scheme. It was defined only in the letter dated 13/2/2003, which cannot be contrary to the General Insurance (Employees') Pension Scheme 1995
contained in Clause no.14, as under : Â
“14. Qualifying Service: Subject to the other condition contained in this scheme, an employee who has rendered a minimum ten years of service in
the Corporation or a Company, on the date of retirement shall qualify for pension.â€
In our view, the petitioner was entitled to pension after completion of minimum 10 years of service on the date of his retirement. The petitioner
completed 17 years 01 month and 18 days continuous service and in terms of Rule 14 under ChapterÂIV of the General Insurance (Employees')
Pension Scheme, 1995 he was entitled to pension. The decision of the Delhi High Court, cited by the learned Counsel for the respondents, turns upon
the facts of that case and in our view, the defence is totally unsubstantiated.
With the result, the writ petition is allowed. The communication dated 2/12/2003, informing the petitioner that he is ineligible to get pension because
he failed to complete 20 years of continuous service, is hereby quashed and set aside.
The petitioner is held entitled to pension under Sub Clause (ii) of ClauseÂ3 under Scheduled â€" I of the General Insurance (Rationalisation of Pay
Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003.
The respondents are accordingly directed to release regular monthly pension of the petitioner from the date of his acceptance of voluntary
retirement. The respondents are directed to pay arrears of monthly pension to the petitioner within a period of three months from today, failing which
the arrears shall carry interest @ 12% per annum from the date of the acceptance of voluntary retirement of the petitioner.
Rule is made absolute in the aforesaid terms. No order as to costs.