1. Rule. Mr. Darshan Parikh, learned advocate appearing for the respondents waives service of notice of Rule. With the consent of parties the petitions are taken up for final hearing today. Heard learned advocates for both the sides at length.
2. By way of filing these petitions, the petitioners have challenged the legality and validity of the action of the respondents in denying the benefits of Bank of Baroda Contributory Medical Assistance Scheme for Retired Employees to the employees who had opted to retire under the Bank of Baroda Employees' Voluntary Retirement Scheme, 2001.
3. The facts in brief leading to the filing of the present petitions are set out as under:
3.1 The respondent bank introduced a scheme vide circular dated 09.11.2000 with effect from 01.09.2000 called the Bank of Baroda Contributory Medical Assistance Scheme for Retired Employees (hereinafter referred to as 'the scheme'). In the year 2000, vide circular dated 14.12.2000, the respondent bank also introduced voluntary retirement scheme known as Bank of Baroda Employees' Voluntary Retirement Scheme, 2001 (hereinafter referred to as the BOBEVRS-2001). The petitioners opted for voluntary retirement under the said BOBEVRS-2001.
3.2 The petitioners being retired employees of the respondent bank made several representations for availing medical benefits under the scheme for the employees who opted for BOBEVRS-2001. However, under one pretext or the other, the benefit of the said scheme was not extended to them.
3.3 Approximately 59 retired employees who had opted for BOBEVRS-2001 and those who were not extended the benefit of the said scheme approached this court by way of Special Civil Applications No. 14978 to 15036 of 2010 wherein this Court vide order dated 25.11.2010 directed them to make fresh representations to the respondents. The said employees accordingly represented their case through authorized representatives but the respondent bank vide communication dated 14.02.2011 rejected the request contained in the representation and held that the benefits of the scheme cannot be extended to the retired employees who had opted for voluntary retirement under BOBEVRS-2001. Being aggrieved by the said communication dated 14.02.2011, the petitioners have approached this court by way of the present petitions.
4. Mr. Dakshesh Mehta, learned advocate appearing for the petitioners submitted that the communication/order dated 14.02.2011 and the circular dated 07/08.05.2001 issued by the respondent bank are illegal, arbitrary and discriminatory. He submitted that the respondents have wrongly drawn distinction between the employees who retired in other manner and can avail benefit under the said scheme and the employees who have retired under the BOBEVRS-2001 to whom the said benefit is not extended.
4.1 Mr. Mehta submitted that the bank has denied to extend the benefit of the scheme even after reliance was placed by the petitioners on a decision of the Apex Court in the case of Bank of India and Others vs. Bank of India Retd. Emp. Welfare Assn. & Others.
4.2 Mr. Mehta submitted that the scheme was made effective from 01.09.2000 whereas the BOBEVRS-2001 was made operative between 15.01.2001 and 14.02.2001 and thus the scheme was prior in time even before BOBEVRS-2001 came into force and that there was no scope of excluding the employees of BOBEVRS-2001 from the scheme.
4.3 Mr. Mehta also submitted that in fact Clause 11(iv) of BOBEVRS-2001 provides for additional retirement benefit wherever eligible and applicable and therefore there is no specific exclusion from taking benefit of the scheme. He submitted that denial to extend benefits of the scheme on this ground is arbitrary and unjust.
5. Mr. Darshan Parikh, learned advocate appearing for the respondent bank supported the stand of the bank and submitted that the petitions are barred by delay and laches. He submitted that the scheme for medical benefits was floated in 2000 and the BOBEVRS in 2001. He submitted that the petitioners were denied the benefit of medical scheme on voluntary retirement in 2001 and that they had given up the issue and in fact racked up the same in 2010 only after the consensus order in case of Bank of India passed in 2009.
5.1 Mr. Parikh submitted that the petitions deserve to be dismissed in limine on the ground of delay and in support of the same he has relied upon the following decisions:
(i) Shiv Dass vs. Union of India & Ors. reported in AIR 2007 SC 1330.
(ii) C. Jacob vs. Director of Geology and Mining and Another reported in 2008(10) SCC 115.
(iii) Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai reported in (2012)5 SCC 157.
(iv) Eastern Coalfields Ltd. vs. Dugai Kumar reported in 2008(10) SCALE 449.
(v) Vijay Kumar Kaul and Others vs. Union of India and Others reported in (2012) 7 SCC 610.
(vi) State of Punjab vs. Gurdev Singh, Ashok Kumar reported in AIR 1991 SC 2219(1).
(vii) M/s. A.P. Steel Re-Rolling Mill Ltd. vs. State of Kerala and Others reported in AIR 2007 SC 797(1).
(viii) Delhi Administration (Now NCT of Delhi) vs.
Manoharlal reported in AIR 2002 SC 3088.
5.2 Mr. Parikh submitted that the BOBEVRS-2001 offered distinct and additional benefits to those who opted for voluntary retirement under the said scheme and such benefits were otherwise available only to the employees who retire on attaining age of superannuation. He submitted that over and above the said benefits, the employees were also offered a separate ex-gratia compensation. Such benefits were much more and distinct from the benefits available to the persons who opted for voluntary retirement under the Regulations of 1979 or under the Pension Regulations of 1995 and therefore it was considered appropriate by the Bank not to offer the benefit under the scheme to those employees who opted for voluntary retirement under the BOBEVRS-2001.
5.3 Mr. Parikh has drawn attention of this Court to the circular dated 07/08.05.2001 issued by the respondent bank through General Manager, Ahmedabad informing all its branches/offices in North Gujarat Zone not to accept any application from the BOBEVRS-2001 optees for obtaining membership in the scheme on the ground that the said retired employees are not covered under the scheme.
5.4 Mr. Parikh has also drawn the attention of this Court to clause (e) of circular dated 14.02.2001 which provides that all such employees who had opted for The Bank of Baroda Employees' Voluntary Retirement Scheme, 2001 (BOBEVRS- 2001) in terms of Bank's circular no. CO:BR:92/151 dated 14.12.2000 were not eligible for membership under the scheme for Contributory Medical Assistance. They have also received an ex-gratia compensation amount and other specific benefits which were clearly outlined in the Scheme and which are not available for those Officers who have taken retirement on superannuation.
5.5 Mr. Parikh has further drawn attention of this Court to clause (l) of the same circular which provides that extension of the Contributory Medical Assistance Scheme to BOBEVRS 2001 optees in such a precarious fund position will only result in making it unsustainable and may ultimately lead to scrapping of the entire scheme altogether.
5.6 Mr. Parikh submitted that order of the Apex Court in the case of Bank of India apart from being an order on consensus and concessions without going into the merits of the case does not lay down any law or proposition of law and no ratio can be said to be emanating from the order. He submitted that the petitioners, therefore, cannot place reliance on the said order.
5.7 Mr. Parikh further submitted that some other persons had preferred Special Civil Application No. 9107 of 2001 and Special Civil Application No. 6010 of 2002 seeking relief with respect to two issues i.e. (a) direction to give option of pension who had opted for voluntary retirement under Bank of Baroda Employees' Voluntary Retirement Scheme-2001 and (b) for direction to pay Medical Assistance under the Bank of Baroda Contributory Medical Assistance Scheme to those who had opted for voluntary retirement. The said petitions came to be rejected and therefore the same issue cannot be re- agitated in this petition.
5.8 Mr. Parikh has also placed reliance on the following decisions of the Apex Court which shall be discussed at length hereinafter:
(i) State Government Pensioners' Association vs. State of A.P. reported in AIR 1986 SC 1907.
Bombhate and Others vs. Ordnance Factory, Ambazari, Nagpur and Others reported in AIR 1992 SC 570.
(iii)State of Rajasthan and Another etc. vs. Amrit Lal Gandhi and Others reported in AIR 1997 SC 782.
6. Mr. Dakshesh Mehta, learned advocate appearing for the petitioners, in rejoinder, contended that as far as the contention regarding delay and laches is concerned, the same is far from truth. He contended that the decisions cited by the respondent bank are on a different footing and do not help the case of the Bank in any way. He submitted that the petitioners have made continued efforts by way of correspondence/representations with the management of the respondent Bank from time to time for extending the medical assistance to the employees who have retired under the scheme. He further contended that when the Apex Court decided the issue in favour of Bank of India retirees, the petitioners within a reasonable time, preferred the present petitions and therefore the issue of delay and laches cannot come in their way.
6.1 Mr. Mehta in fact relied on the decision cited by Mr. Parikh in the case of Shiv Dass vs. Union of India and submitted that delay would depend upon the facts of each case and that the two circumstances always important in cases of delay are the length of delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.
7. This court has gone through the materials placed on record of the case. The scheme came into existence in November 2000 with effect from September 2000. The petitioners retired under the BOBEVRS-2001 around March- April 2001. The respondent bank vide circular dated 07/08.05.2001 denied the claim of such voluntary retirees for joining the scheme. It is required to be noted that no proceedings were preferred challenging the said action of the respondent bank. It was only after the Apex Court passed an order in case of Bank of India & Others vs. Bank of India Retired Employees' Welfare Association and Others in Special Leave to Appeal (Civil) No. 18484/2007 that the petitioners decided to make a representation relying on the said decision. The petitioners also preferred earlier set of petitions wherein this Court directed them to make fresh representations in light of the aforesaid decision of the Apex Court.
7.1 However, the important point to be noted is that the petitioners since 2001 sat silent and did not challenge the decision of the Bank not granting them the benefit of the Scheme. As soon as the order of the Apex Court in the case of Bank of India was pronounced, the petitioners made a representation and filed the earlier round of petitions seeking a direction for considering their representations thereby trying to get the bar of limitation and the latches obliterated and ignored.
7.2 The law on the issue of delay is very clear. The Apex Court in such cases has held that such an order of making or considering representations would not revive the stale claim nor amount to any kind of acknowledgement of jural relationship to give rise to a fresh cause of action. In the present case also no such fresh lease of life can be given to the petitioners.
8. The decisions relied upon by Mr. Parikh are applicable to the facts of the present case and are hereby referred to one after the other:
(i) In the case of Shiv Dass (supra), the Apex Court relying upon the decision reported in AIR 1987 SC 251 has upheld the view that if there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
(ii) In the case of C. Jacob, the Apex Court has held as under every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department.
Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of `acknowledgment of a jural relationship' to give rise to a fresh cause of action.
(iii) In the case of Maniben Shah (supra), the Apex Court has held that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
(iv) In the case of Eastern Coalfields Ltd. (supra), the Apex Court has held that even in cases of violation or infringement of Fundamental Rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the Court and if there is gross or unexplained delay, the Court may refuse to grant relief in favour of such a petitioner.
8.1 Similar view is taken by the Apex Court in the decisions in the case of Vijay Kumar Kaul (supra) and State of Punjab (supra), M/s. A.P. Steel Re-Rolling(supra) and Delhi Administration (supra).
9. Moreover, it appears that the BOBEVRS-2001 offered distinct and additional benefits to those who opted for voluntary retirement under the said scheme. The employees were also offered a separate ex-gratia compensation. Such benefits were much more and distinct from the benefits available to the persons who opted for voluntary retirement under the Regulations of 1979 or under the Pension Regulations of 1995. Thus it was considered appropriate by the Bank not to offer the benefit under the medical scheme to those employees who opted for voluntary retirement under BOBEVRS-2001. It is required to be noted that BOBEVRS- 2001 was totally different from the scheme of voluntary retirement under Regulation 29 of the Pension Regulations.
10. Therefore, the case of the petitioners who retired under the BOBEVRS-2001 cannot be equated with the emplyees who retired on superannuation or voluntarily under the Regulations of 1979/1995. Mr. Mehta is not in a position to show that any person who voluntarily retired under BOBEVRS-2001 has been given the benefit of the medical scheme.
11. In fact circular dated 14.02.2001, more particularly, clause (e) provides that all such employees who had opted for The Bank of Baroda Employees' Voluntary Retirement Scheme, 2001 (BOBEVRS 2001) in terms of Bank's circular no. CO:BR:92/151 dated 14.12.2000 were not eligible for membership under the scheme for Contributory Medical Assistance. They have also received an ex-gratia compensation amount and other specific benefits which were clearly outlined in the Scheme and which are not available for those Officers who have taken retirement on superannuation.
12. As far as the decision in the case of Bank of India employees is concerned, this court is of the opinion that the same being a consensual order, no ratio can be culled out from the same. The said order does not lay down any law nor has decided any issue between the parties. In the said order, directions were issued considering the consensus between the parties and the Bank of India therein has conceded to such a benefit which is not the case here. Thus the said order cannot be treated as a precedent in the facts of the cases and cannot be relied upon on the facts of these cases.
13. It is also pertinent to note that the medical scheme in question is not a part of service conditions or a term in the employment contract to which the petitioners can have claim as a matter of right. It is only a staff welfare measure introduced by the bank and the committee members decide about the applicability/coverage of the scheme. Therefore, considering the circular dated 14.02.2001 which does not include the petitioners in the ambit of the scheme, this Court does not think it fit to pass any directions otherwise.
14. In the case of State Government Pensioners' Association (supra) the Apex Court in para 2 has held as under:
“We fully concur with the view of the High Court. The upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect. The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara's case, AIR 1983 S.C.130. There is no illegality or unconstitutionality (from the platform of Article 14 of the Constitution of India) involved in providing for prospective operation from the specified date. Even if that part of the Notification which provides for enforcement with effect from the specified date is struck down the provision can but have prospective operation-not retrospective operation. In that event (if the specified date line is effaced), it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who have already retired before the said date. In order to make it retrospective so that it applies to all those who retired after the commencement of the Constitution on 26 January, 1950 and before the date of issuance of the notification on 26 March, 1980, the Court will have to re- write the notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively. Merely striking down (or effacing) the alleged offending portion whereby it is made effective from the specified date will not do. And this, the Court cannot do. Besides, giving prospective operation to such payments cannot by any stretch of imagination be condemned as offending Art 14. An illustration will make it clear. Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision. Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the then prevailing cost of living structure and pay-scale structure, cannot invoke Art. 14 in order to claim the higher pay-scale brought into force say, in 1980. If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made. Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement. The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision in the context of upward of downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides restrospectively (downward revision may not be legally premissible even). It would be futile to contend that no upward revision of gratuity amount can be made in harmony with Article 14 unless it also provides for payment on the revised basis to all those who have already retired between the date of commencement of the Constitution in 1950, and the date of upward revision. There is therefore no escape from the conclusion that the High Court was perfectly right in repelling the petitioners' plea in this behalf. For the sake of record we may mention that our attention was called to an order of a Division Bench of the High Court of Gujarat LPA 280 of 1983 dated 8.9.83 per P.D. Desai Acting C.J., which does not discuss the issues involved but is based on a concession said to have been made by the Advocate General who appeared for the State. And also to a decision of the Allahabad High Court, (M.P. Tandon v. State of U.P., [1984] Lab. I.C. 677) and (Punjab & Haryana High Court (V.P. Gautama v. Union of India, A.I.R. SLJ [1984] (1) 120.) In none ot these decisions the relevant passage from D.S. Nakara v. Union of India, [1983] SC 130, was considered. Nor was the aspect regarding prospective operation considered on principle. The High Court considered it shocking and was carried away by the fact that an employee who retired even one day before the enforcement of the upward revision would not get the benefit if the specified date of enforcement was not effaced by striking down the relevant provision. But in all cases of prospective operation it would be so. Just as one who files a suit even one day after the expiry of limitation would lose his right to sue, one who retires even a day prior to enforcement of the upward revision would not get the benefit. This cannot be helped, there is nothing shocking in it unless one can say legislation can never be made prospective, and nothing turns on it. These are the reasons which impelled us to dismiss the Special Leave Petition on 18 July, 1986.”
14.1 In the case of Union of India (supra), the Apex Court in para 4 has observed as under:
“4. The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis. The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose. These directions are indeed amazing. It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose. There is no law requiring the Central Government to sanction the Secondary School. the Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level. It is a policy matter involving financial burden. No Court or the Tribunal could compel the Government to change its policy involving expenditure.”
14.2 In the case of State Of Rajasthan (supra), the Apex Court has observed in para 17 has observed as under:
“17. The Syndicate and Senate of the Universities, when they had forwarded their recommendations in 1986, did not contain a specific date with effect from which the pension scheme was to be made applicable. Their recommendations were subject to approval. The approval was granted by the Government, after the State Legislature had passed University Pension Rules and General Provident Fund Rules. The Government had stated in its affidavit before the High Court that the justification of the cut-off date of 1.1.1990 was "wholly economic". It cannot be said that the paying capacity is not a relevant or valid consideration while fixing the cut-off date. The University could, in 1991, validly frame Pension Regulations to be made applicable prospectively. It, however, chose to give them limited retrospectively so as to cover a larger number of employees by taking into account the financial impact of giving retrospective operation to the Pension Regulations. It was decided that employees retiring on or after 1.1.1990 would be able to exercise the option of getting either pension or provident fund. Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1.1.1986 for 1.1.1990.”
14.3 Therefore, considering all the aforesaid decisions of the Apex Court, it is very clear that in a policy matter involving financial burden, no Court or Tribunal should compel change of policy involving expenditure.
15. Even otherwise, similar issue regarding Medical Assistance to the BOBEVRS-2001 retirees had come up before this Court by way of Special Civil Application No. 6010 of 2002. The petitioners therein did not press the issue regarding medical scheme and the petition was ultimately rejected vide order dated 28.07.2006. The said rejection has become final and the same cannot be re-agitated in this petition.
16. In light of the aforesaid discussions, the main factors which weigh against the petitioners in deciding these petitions are :
(i) The petitions have been filed after a considerable lapse of time thereby causing gross delay and therefore the petitioners cannot claim the benefits of the year 2000 after a period of almost 11 years;
(ii) Apart from that, the case of Bank of India (supra) does not lay down any ratio being an order on consensus and therefore the petitioners cannot gain any advantage from the said order;
(iii) The issue involved in this petition has already been decided by way of Special Civil Application No. 6010 of 2002 and therefore the petitioners are not entitled to get any similar relief or benefit;
(iv) This Court should not involve in policy matters involving expenditure as the scheme in the present case is devised keeping in view the various welfare activities undertaken under the auspices of the Welfare Fund and it is upto the management or the committee of the respondent bank to decide the coverage and applicability of the scheme.
17. For the foregoing reasons, this court does not find any merits in the petitions and therefore they are dismissed accordingly. Rule is discharged. No costs.
(K.S. JHAVERI, J.) Divya//