IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.4245 OF 2018
1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent.
2. All these petitions are being disposed of by common judgment as they have in them identical issue which is about the manner in which pensionable service is required to be calculated.
3. There is also one more grievance raised by the petitioners, and it is about the fixation of amount of pensionable salary. But, during the course of the argument, this grievance has been given up and now the common grievance of the petitioners is regarding the way the pensionable service has been determined by the respondent.
4. According to the learned counsel for the petitioner, the pensionable service, which is one of the essential components of the formula applied for determining the number of members monthly pension, has to be reckoned not in terms of years but in terms of months and if this is done, the petitioners would get substantial hike in the amount of the pension that presently they are receiving it. This has been strongly disputed by the learned counsel for the respondents. He submits that the pensionable service is never determined in terms of months and is always determined in terms of the years and for his such submission, he places his reliance upon Paragraphs 9 and 10 of the Employees' Pension Scheme, 1995.
5. On going through the definition of the pensionable service given in Paragraph 2(xv) and also the provisions of Paragraphs 9 and 10 of the Employees' Pension Scheme, 1995, we find great substance in the argument of learned counsel for the respondent and no merit in the submission of the learned counsel for the petitioner.
6. Paragraph 2(xv) defines “pensionable service” as the service rendered by the member for which contributions have been received or are receivable. Plainly conveyed, it means the number of years during which the contributions have been actually made or ought to have been made as per the scheme by the employee. Paragraph 10 further elaborates the concept of pensionable service. It reads thus:
“10. Determination of pensionable service.
(1) The pensionable service of the member shall be determined with reference to the contributions [received or receivable] on his behalf in the Employees' Pension Fund.
(2) In the case of the member who superannuates on attaining the age of 58 years, 13[and] who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years.”
7. The language used in Paragraph 10 is plain and unambiguous. It conveys in no uncertain terms that the pensionable service is in terms of years and not in terms of months and that is why in subparagraph (2), a specific reference to the years of pensionable service has been made. Subparagraph (1) of Paragraph 10 is nothing but a reiteration of the definition given under Paragraph 2 (xv). But subparagraph (2) throws sufficient light on the intention of the legislature regarding determination of pensionable service in terms of years and not in terms of months. It has been made clear in this provision that a member who superannuates on attaining the age of 58 years and who has rendered 20 years "pensionable service or more", would be entitled to be given a "weightage of two years" while determining the pensionable service. It is noteworthy to mention here that the Central Government has avoided the use of the word “month” and has employed the word “year”, while giving weightage to the pensionable service of two years in those cases in which the member has retired on attaining superannuation at the age of 58 years and has also rendered 20 years of pensionable service or more. If the Government intended that the pensionable service was to be determined by taking into account the months and not the years of service, it would have certainly made use of the word "month" instead of "year" but that is not the case here. Therefore, we find that the pensionable service in terms of Paragraph 10 read with Paragraph 2(xv) means only that service which is calculated in terms of years and not months, for the years in which the contributions are received or are receivable.
8. The interpretation so made by us receives further support from the other provisions made in the Scheme, 1995. Paragraph 12(1) and Paragraph 9 stand in support of what we have held so far. These provisions are reproduced thus:
“12. Monthly member's pension.
(1) A member shall be entitled to(a) superannuation pension, if he has rendered eligible service of 10 years or more and retires on attaining the age of 58 years.
(b) early pension, if he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years.
9. Determination of eligible service.
The eligible service shall be determined as follows:
(a) In the case of “new entrant” the “actual service” shall be treated as eligible service. The total actual service shall be rounded off to the nearest year. The fraction of service for six months or more shall be treated as one year and the service less than six months shall be ignored.
Explanation. In the case of employees employed seasonally in any establishment the period of 11a [“contributory service”] in any year, notwithstanding that such service is less than a year shall be treated as a full year.
(b) In the case of the “existing member” the aggregate of actual service and the “past service” shall be treated as eligible service:
Provided that if there is any period in the “past service” for which the contributions towards the Family Pension Scheme, 1971 has not been received, the said period shall count as eligible service only if the contributions thereof have been received in the Employees' Pension Fund.
12 [Explanation. For the purpose of this subparagraph, the aggregate of actual service and past service for less than six months shall be ignored and six months and above shall be rounded off to a year.]
9. A close scrutiny of these provisions would show that to determine entitlement of a member to superannuation pension, the member has to render certain eligible service and the eligible service to be rendered by the member has been referred to not in terms of months but only as completed years of service. Two explanations appearing in Paragraph 9 also indicate that whatever has been contemplated by the Government under the Scheme is only a pensionable service or eligible service determined by taking completed years of service as the unit of calculation. These provisions pave the way for rounding off service rendered for certain number of months or more to one year or ignoring the months which are less than the requisite months, for considering the completed years of service.
10. The provisions mentioned earlier only show that the Government had considered that a difficulty may arise while calculating the years of eligible service or pensionable service and in order to counter the same, the explanations to subparagraph A and B of Paragraph 9 have been inserted. If the Government had intended that pensionable or eligible service was to be determined in terms of months, the explanations to subparagraphs A and B would not have found their place in Paragraph 9 of the Scheme, 1995.
11. Learned counsel, Shri Mishra, for the petitioner places reliance upon the recent order of the Hon'ble Apex Court in the case of R.C. Gupta and others etc. etc. vs. Regional Provident Fund Commissioner Employees Provident Fund Organisation and others etc., passed in Civil Appeal No(S).1001310014/2016, on 4th October 2016. With due respect, we would say that the ratio of this order is entirely different and, therefore, would have no application to the facts of the case. The ratio arises from the interpretation given to the option contained in proviso to Paragraph 11(3) of the Pension Scheme, 1995 and it is regarding the choice of the members to make more contributions exceeding the earlier ceiling of Rs.6500/. In that case, there was no interpretation given to the expression "pensionable service" appearing in Paragraph 10 of the Pension Scheme, 1995. In this case, the issue involved is about meaning of “pensionable service” which we have deliberated over and concluded earlier.
12. In the present case, the respondents have determined the pensionable service in terms of years, and we find nothing wrong in it. We thus see no merit in these petitions.
13. The writ petitions stand dismissed.
14. Rule is discharged. No costs.
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