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TMI Blog2016 (9) TMI 1629X X X X Extracts X X X X X X X X Extracts X X X X ..... er and his employees, where there is a quid pro quo a trade off based on a relationship (as between, an employer and employee). It is however concluded, that there was no such relationship between the State Government, and the respondent-employees. All the corporate bodies in which the respondent-employees were/are engaged, are independent juristic entities. It is therefore apparent, that the claim raised by the respondent-employees, is not based on any right or obligation between the parties. The issue whether administrative review was permissible, after the 1999 Scheme had become operational, has been answered in the affirmative. And finally, it is concluded, that the exercise of such power, while issuing the repeal notification, was based on due consideration. The legality and constitutionality of the notification dated 2.12.2004 is upheld - appeal allowed. - CIVIL APPEAL NOS.9750-9819 OF 2016 (Arising from SLP(C) Nos. 10864-10933 of 2014) - - - Dated:- 28-9-2016 - KHEHAR,JAGDISH SINGH AND NAGAPPAN, C., JJ. JUDGEMENT Jagdish Singh Khehar, J. 1. The State of Himachal Pradesh came to be created, with effect from 25.1.1971. Consequent upon the creation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the concerned employee would continue to be governed by the Employees Provident Funds Scheme, 1995. Failing which, every employee, whether he opted for the 1999 Scheme , or chose not to make any option, would be regulated by the 1999 Scheme , with effect from the day the scheme was made operational 1.4.1999. 4. It is also essential to indicate, that only those employees who had been appointed on regular basis, in corporate bodies, to which the 1999 Scheme was applicable, could avail of the benefits of the 1999 Scheme . In other words, employees engaged ...on part time basis, daily wage basis, piece-meal rate basis, casual and contract basis... were not entitled to opt for the 1999 Scheme . 5. Paragraph 4 of the 1999 Scheme further provided, that those regular employees, who were entitled to the benefits postulated by the 1999 Scheme , would automatically forfeit their claim, to the employer s contribution in their provident fund account (including interest thereon), under the prevailing Employees Provident Funds Scheme, 1995, to the Government. The forfeited amount, would include the amount due and payable, under the Employees Provident Funds Scheme, 1995, up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought from the Regional Provident Fund Commissioner, Shimla, for the transfer of the accumulated provident fund corpus, to the proposed pension fund under the 1999 Scheme . It is also relevant to notice, that the Regional Provident Fund Commissioner, through a communication dated 23.2.2000, declined to accord the above permission, because the 1999 Scheme included only regular employees. Part time, daily wage, piece rate, casual and contract employees, were not covered by the 1999 Scheme . According to the Regional Provident Fund Commissioner, there was no provision under the Provident Fund Act, to exclude a part of the employees, from the purview of the Provident Fund Act. The Regional Provident Fund Commissioner was of the view, that permission sought by the State Government could be accorded, only if all employees of the concerned corporate bodies, were to be regulated by the substituting scheme ( the 1999 Scheme ). The Regional Provident Fund Commissioner accordingly, through his communication dated 23.2.2000, advised the concerned corporate bodies, to continue to comply with the provisions of the Provident Fund Act, in respect of all their employees. The above commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing directors of state public sector undertakings and corporations. The high level committee was entrusted with the task of examining, the financial viability of the 1999 Scheme . The committee submitted its report on 15.11.2003. Briefly stated, the high level committee arrived at the conclusion, that the pension scheme for regular employees of corporate bodies, given effect to under the 1999 Scheme , would not be financially viable on a self- sustaining basis. One of the observations recorded in the report of the high level committee was, with reference to the Himachal Road Transport Corporation. It was pointed out, that the pension fund cash flow chart (year-wise) revealed, that in case new appointments were not made against retirees, it would have extremely grave financial consequences, inasmuch as, after the year 2009-10, the income by way of income tax, as well as, the contribution to the pension fund would continue to reduce, whereas pension payment expenditure, would continue to increase. It was expected, that by the year 2015-16, the balance amount left with the Himachal Road Transport Corporation Pension Fund, would be reduced to approximately Rs.10.82 crores, whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of interest regime; secondly, decline in recruitment in the corporate sector; and thirdly, on account of the fact that the respondent-employees would be entitled to pension at the rate of 50% of the basic pay last drawn, with linkage to an additional dearness allowance. And as such, it was not possible for the pension fund, to cater to the payment towards pension, under the 1999 Scheme . It would also be relevant to mention, that besides the above three reasons depicted in the committee s report, the Cabinet Memorandum dated 12.10.2004, expressly took into consideration the poor financial health of the concerned corporations, and the current financial health of the State Government. Both the above factors also indicated, that it was not possible for the State Government to take upon itself, the financial burden of the 1999 Scheme . And, there were also more pressing alternative claims. It was submitted, that as on 31.3.2014, the cumulative losses of Government owned corporations, stood at Rs.2,819.86 crores. The aforesaid Cabinet Memorandum was appended to the special leave petition, as Annexure P-4. The Cabinet in its meeting held on 29.11.2004, also approved, that the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Shimla is directed to transfer the entire amount of the CPF to a corpus fund to be administered and maintained by the Government of Himachal Pradesh in the Finance Department including upto date interest, within a period of two weeks. Thereafter, the Pension Sanctioning Authority is directed to sanction the pension/gratuity/commutation of pension after proper scrutiny of the cases forwarded by the concerned Public Sector Undertaking and issue pension payment order to Pension Disbursing Authority strictly as per para 6 of the scheme notified on 29.10.1999 with interest @ 9% per annum, within a period of 12 weeks from today. 12. Dissatisfied with the judgment rendered by the High Court, dated 19.12.2013, the State of Himachal Pradesh has approached this Court, challenging the common impugned judgment dated 19.12.2003. 13. Leave granted. 14. The first contention advanced at the hands of Mr. P.P. Rao, learned senior counsel for the appellants, was premised on the proposition, that the State Government which had promulgated the 1999 Scheme , was well within its rights to repeal the same, for good and sufficient reasons. It was submitted, that it stands establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment should give financial support to meet the additional expenditure incurred in that regard. xxx xxx xxx 17. The legal position is that identity of the government company remains distinct from the Government. The government company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire shareholding is owned by the Central Government will not make the incorporated company as Central Government. It is also equally well settled that the employees of the government company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (Pyare Lal Sharma v. Managing Director, (1989) 3 SCC 448). Since employees of government companies are not government servants, they have absolutely no legal right to claim that government should pay their salary or that the addition expenditure incurred on account of revision of their pay scale should be met by the government. Being employees of the companies it is the responsibility of the companies to pay them salary and if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... labour in People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235. It has been held to embrace within its field the right to livelihood by means which are not illegal, immoral or opposed to public policy in Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545. But to hold that mere non-revision of pay scale would also amount to a violation of the fundamental right guaranteed under Article 21 would be stretching it too far and cannot be countenanced. Even under the industrial law, the view is that the workmen should get a minimum wage or a fair wage but not that their wages must be revised and enhanced periodically. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that the salary currently being paid to them is wholly inadequate to lead a life with human dignity. What should be the salary structure to lead a life with human dignity is a difficult exercise and cannot be measured in absolute terms .. xxx xxx xxx 22. In South Malabar Gramin Bank v. Coordination Committee of S.M.G.B Employees' Union and S.M.G.B Officers' Federation, (2001) 4 SCC 101, relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure of any organisation which may have been shaped by negotiated settlements with employees' unions or through industrial adjudication or with the help of expert committees. The economic capability of the employer also plays a crucial part in it; as also its capacity to expand business or earn more profits. It was also held that a simplistic approach, granting higher remuneration to workers in one organisation because another organisation had granted them, may lead to undesirable results and the application of the doctrine would be fraught with danger and may seriously affect the efficiency and at times, even the functioning of the organisation. Therefore, it appears to be the consistent view of this Court that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves. The material on record clearly shows that both FCI and HFC had been suffering heavy losses for the last many years and the Government had been giving a considerab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel, that the decision of the State Government to repeal the 1999 Scheme , on the basis of the report of the high powered committee, dated 28.10.2003, cannot be faulted. It was submitted, that the determination rendered by the High Court, was in clear disregard to the decisions in the cited cases. It was accordingly urged, that the option exercised by the State Government, on the basis of legitimate material and consideration, could not be interfered with, as the same constituted a legal and valid basis, for the discontinuation of the 1999 Scheme . 16. In order to support the State Government s claim, it was also the contention of learned counsel, that the State Government has an inherent right to review its policy decisions, and as long as the decisions of the State Government are based on bonafide consideration, the same cannot be assailed in law. In order to support the instant contention, learned counsel placed reliance on BALCO Employees Union v. Union of India, (2002) 2 SCC 333, and invited our attention to the following observations, expressed therein: 45. In Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, there was a challenge to the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servants can be terminated if posts are abolished. If such employee cannot make a grievance based on Part III of the Constitution or Article 311 then it cannot stand to reason that like the petitioners, non-government employees working in a company which by reason of judicial pronouncement may be regarded as a State for the purpose of Part III of the Constitution, can claim a superior or a better right than a government servant and impugn it's change of status. In taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. While it is expected of a responsible employer to take all aspects into consideration including welfare of the labour before taking any policy decision that, by itself, will not entitle the employees to demand a right of hearing or consultation prior to the taking of the decision. 17. Learned counsel submitted, that the respondent-employees could not claim a vested right, with reference to the provisions of the 1999 Scheme . In this behalf, it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , sovereign or executive powers. To demonstrate that the principle of promissory estoppel could not be invoked by the respondent-employees, reference was also made to Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369, wherein it has been held as under: 13. Of course we must make it clear, and that is also laid down in Motilal Sugar Mills case, (1979) 2 SCC 409, that there can be no promissory estoppel against the Legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel invited our attention to Commissioner of Income-tax, Kerala and Coimbatore v. L.W. Russel, (1964) 7 SCR 569, wherefrom our attention was drawn to the following: Before we attempt to construe the scope of s. 7(1) of the Act it will be convenient at the outset to notice the provisions of the scheme, for the scope of the respondent's right in the amounts representing the employer's contributions thereunder depends upon it. The trust deed and the rules dated July 27, 1934, embody the superannuation scheme. The scheme is described as the English and Scottish Joint Co-operative Wholesale Society Limited Overseas European Employees' Superannuation Scheme, hereinafter called the Scheme. It is established for the benefit of the male European members of the Society's staff employed in India, Ceylon and Africa by means of deferred annuities. The Society itself is appointed thereunder as the first trustee. The trustees shall act as agents for and on behalf of the Society and the members respectively; they shall effect or cause to be effected such policy or policies as may be necessary to carry out the scheme and shall collect and arrange for the payment of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the service of the Society for any reason whatsoever or shall die while in the service of the Society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the Society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the Society or shall leave or be dismissed from the service of the Society on account of permanent breakdown in health (as to the bona fides of which the Trustees shall be satisfied) such further proportion (if any) of the total amount of the portions of the premiums paid by the Society in respect of that member shall be payable in accordance with Table C in the Appendix to the Rules; if the total amount of the portions of the premiums in respect of such member paid by the Society together with interest thereon as aforesaid shall not be paid by the Trustees to him or his legal personal representatives under sub-s. (1) of r. 15 then such proportion or the whole, as the case may be, of the Society's portion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put it in other words, till a member attains the age of superannuation the employer's share of the contributions towards the premiums does not vest in the employee. At best he has a contingent right therein. In one contingency the said amount becomes payable to the employer and in another contingency, to the employee. For the same proposition, learned counsel, placed reliance on Krishena Kumar v. Union of India, (1990) 4 SCC 207, and drew our attention to the following: 32. In Nakara, (1983) 1 SCC 305, it was never held that both the pension retirees and the P.F. retirees formed a homogeneous class and that any further classification among them would be violative of Article 14. On the other hand the court clearly observed that it was not dealing with the problem of a fund . The Railway Contributory Provident Fund is by definition a fund. Besides, the government's obligation towards an employee under C.P.F. Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to picking out a date from the hat , as was said by this Court in the case of D.R. Nim v. Union of India, AIR 1967 SC 1301, in connection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative, because the benefit has to be allowed within the financial resources available with the Government. Reliance was also placed on State of West Bengal v. Ratan Behari Dey, (1993) 4 SCC 62, and our attention was drawn to the following conclusions: 7. In our opinion, the principle of Nakara, (1983) 1 SCC 305, has no application to the facts of this case. The precise principle enunciated in Nakara (supra) has been duly explained in Krishena Kumar, (1990) 4 SCC 207, by a coordinate Bench. For reasons to be assigned hereinafter, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot say that the Government acted unreasonably in specifying the said date. It may also be said that, that was the year in which the Left Front came into power in that State, but does not detract from the validity of the aforesaid reasons assigned by the State in its counter-affidavit filed before the Division Bench of the High Court. We are not in agreement with the opinion expressed by the High Court that the reasons assigned by the State Government are neither relevant nor acceptable. 8. In this context, it may be remembered that the power of the State to specify a date with effect from which, the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail. 9. Now coming to the argument of Sri P.P. Rao that the Regulations bring about an unreasonable classification between similarly placed employees, we must say that we are not impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a court. We see no force in this submission of the learned counsel. The appeal is, therefore, dismissed. 20. Mr. R. Venkataramni, learned senior counsel, supplemented the submissions advanced by Mr. P.P. Rao. In his opening statement, he endorsed the submissions advanced by Mr. P.P. Rao, and accordingly, adopted the same. 21. In addition, it was contended, that the 1999 Scheme was introduced for the first time on 29.10.1999, with retrospective effect - from 1.4.1999. It was asserted, that through the 1999 Scheme , it was proposed to supplement the post-retiral financial benefits of employees, engaged in corporate bodies, in the State of Himachal Pradesh. It was urged, that employees of corporate bodies, were hitherto before, recipients of Contributory Provident Fund (CPF), as the sole post-retiral financial benefit. It was submitted, that the 1999 Scheme , required employees of corporations to switch over from the CPF scheme, by exercising their option. And, such of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the postulated conditions, and till the fulfillment of all the conditions, the mere exercise of option, to switch over to the 1999 Scheme , would not result in vesting a right in the respondent-employees, to receive pension. 24. In order to effectively project the assertion canvassed by him, the learned counsel highlighted, that the exercise of option by the employees who were engaged in corporations in the State of Himachal Pradesh, did not result in the employees having in any manner, altered their position to their disadvantage. It was averred, that the employees did not forego any pre-existing better or higher benefit, while exercising their option to switch over to the 1999 Scheme . Based cumulatively on the factual position projected above, it was urged, that it was not open to the employees of corporations in the State of Himachal Pradesh, to call into question, the repeal of the 1999 Scheme , through the impugned notification dated 2.12.2004. 25. In order to canvass the above proposition, that rights which were contingent upon the occurrence of an event, could not be described as vested rights, reliance was placed on Howrah Municipal Corporation v. Ganges Rope Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a settled expectation or the so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. Based on the conclusions drawn in the cited judgment, it was submitted, that a legitimate or a settled expectation , suggesting the possibility of drawing pension after retirement, could not be treated as a vested right. It was submitted, that the respondent-employees were not justified in raising a claim based on the assumption, that they had a vested right, or settled expectation , under the 1999 Scheme , particularly in the light of the fact, that the 1999 Scheme had been partly nullified, by the notification dated 2.12.2004. 26. It was also the assertion of learned counsel, that the repeal notification dated 2.12.2004, had the consequence of termination/cessation of benefits, as would emerge from the analogy of the principles expressed in Section 6 of the General Clauses Act. It was further submitted, that the requirement of dealing with rights and liabilities insofar as the present controversy is concerned, is clearly based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for the High Court having substituted the date of 1-1- 1986 in lieu of 1-1-1990. It is evident that for introducing a pension scheme, which envisaged financial implications, approval of the Rajasthan Government was required. In the letter of 16-4-1991, written to the Vice- Chancellors of different universities of Rajasthan, it was stated as follows: As per the direction in regard to the aforesaid subject, the State Government has decided to introduce Pension Scheme in the Universities of the State w.e.f. 1-1-1990. In this regard the State Legislature has passed University Pension Rules and General Provident Fund Rules. Therefore, by enclosing a copy of University Pension Regulations and General Provident Fund Regulations with this letter, it is requested that by obtaining approval of the competent body or Syndicate of the University, these Regulations be implemented in the University together and necessary information regarding implementation be intimated. 17. The Syndicate and Senate of the University, 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r have been claimed by the technical personnel comparing themselves to the non-technical persons, by invoking Article 14. 12. If, however, the Government thought it fit to bring some sort of equalisation in the matter of commencement of their increments, it was obviously by way of a sheer concession and was not as a matter of right nor was it to avoid any violation of any principles of equality under Article 14. In fact, the very official memorandum of the Government dated 22-10- 1990 stated that under the Fundamental Rule 26 read with Rule 9(6)(a)(i) it was only in cases of probationers and apprentices where such appointments were followed by a confirmation that the said period of probation or apprenticeship would be counted for the purpose of scale of pay attached to the posts. This principle would not as per the Rules be applicable to the training period. However, during the meetings of the National Council (JCM) it was represented that where the training period was long, as in the case of technical personnel, the disparity would become perpetual. Therefore, it is obvious that the concession was not based on Article 14 nor was it on the basis of any rule but was clearly ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and of public opinion, as well as other reasons of public policy, are all the time calling for changes in the laws, and these changes must more or less affect the value and stability of private possessions, and strengthen or destroy well-founded hopes; and as the power to make very many of them must be conceded, it is apparent that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense. In many cases the courts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be transferred to another, either through a statutory power, or by the force of their judgments or decrees, or by compulsory conveyances. If in these cases the court has jurisdiction, they proceed in accordance with the law of the land, and the right of one man is divested by way of enforcing a higher and better right in another. Of these cases we do not propose to speak; as constitutional questions cannot well arise in regard to them, unless they be attended by circumstances of irregularity which are supposed to take them out of the oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2004, and the respondent- employees had retired after 2.12.2004, cannot be accepted as a legitimate basis, to treat them differentially. It was asserted, that the mandate of paragraph 1(2) of the 1999 Scheme extended pensionary benefits to employees engaged in corporate bodies, in the State of Himachal Pradesh, in accordance with the provisions laid down under the Central Civil Services (Pension) Rules, 1972, and the Central Civil Services (Commutation of Pension) Rules, 1981 as amended and adopted by the Himachal Pradesh Government for the State Government employees, save as otherwise provided in this scheme . In the above view of the matter, it was asserted on behalf of the respondent-employees, that the division of a homogenous class, so as to deprive one set of employees benefits, which still remained extended to another set of employees, was clearly unsustainable in law. It was pointed out with some emphasis, that the High Court had taken conscious notice of the fact, that the 1999 Scheme was introduced by the State Government, after due deliberation by all concerned stake holders, and upon approval by the Chief Minister and his Cabinet. In the factual background high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commended by the Pay Revision Committee became applicable to the appellants with effect from 1-1-1986. It is also not in dispute that the UGC scales of pay were applicable to them. The Government of Karnataka, by a letter dated 17-12- 1993, directed that the matter relating to the fixation of pension on the basis of UGC pay scales would be governed by Rule 296 of the Karnataka Civil Services Rules (hereinafter referred to as the Rules ), providing for computation of emoluments for the purpose of pension and gratuity of a government servant. In the said letter it was stated: The term emoluments has been defined and redefined from time to time whenever pension has been revised by executive orders. The term emoluments for purpose of pensionary benefits as defined in GO dated 17-8-1987 includes among other things the last pay drawn. It is, therefore, clarified that the pay drawn by the teachers of degree colleges in respect of whom UGC scales have been extended by GO No. ED 88 UNI 88 dated 30-3-1990 w.e.f. 1-1-1986 and who have opted to UGC scales of pay, the last pay drawn by them in UGC scales of pay among other things may be treated as emoluments for purpose of pensionary ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of pay, do not stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1-1-1996. It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the employees concerned despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 1-1-1996. By reason of such notification, as the appellants had been deprived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions. *** *** *** 25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on the date of retirement. *** *** *** 28. The impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab v. Iqbal Singh, (1976) 2 SCC 1 . Reference was also made to Chairman, Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623, wherefrom our attention was drawn to the following observations:- 24. In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, AIR 1967 SC 1889, B.S. Yadav, AIR 1969 SC 118, and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yees to have their pension computed on the basis of their average emoluments being thus calculated is being taken away by the amendments introduced in Rule 2544 by the impugned notifications dated 5-12-1988 inasmuch as the maximum limit has been reduced from 75% to 45% for the period from 1-1-1973 to 31-3-1979 and to 55% from 1-4-1979 onwards. As a result the amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement has been reduced. 31. In Salabuddin Mohamed Yunus v. State of A.P., (1984) Supp SCC 399, the appellant was employed in the service of the former Indian State of Hyderabad prior to coming into force of the Constitution of India. On coming into force of the Constitution the appellant continued in the service of that State till he retired from service on 21-1-1956. The appellant claimed that he was entitled to be paid the salary of a High Court Judge from 1-10-1947 and also claimed that he was entitled to receive pension of Rs.1000 a month in the Government of India currency, being the maximum pension admissible under the rules. The said claim of the appellant was negatived by the Government. He filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement. Based on the above cited judgments, it was submitted, that the determination rendered by the High Court in the impugned judgment, that the respondent-employees acquired a vested right, the moment they had subscribed to the 1999 Scheme , was unexceptionable. 31. Learned counsel for the respondent-employees also contested the submission advanced on behalf of the appellants, that the right to receive pension accrues to an employee, on the date on which he attains the age of superannuation, and not earlier. On the instant aspect of the matter it was submitted, that even though pension can formally be claimed by an employee only on his retirement, the seeds for a claim to pension are sown, and the foundation for receipt of pension is laid, the very moment from which an employee commences to render qualifying service. It was submitted, that based on having acquired a minimum qualifying service postulated under the rules, an employee s claim eventually crystalises for entitleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formula enacted in the liberalised pension scheme and effective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benefit. It is an upward revision of an existing benefit. If it was a wholly new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh recruits. Pension is a reward for past service. It is undoubtedly a condition of service but not an incentive to attract new entrants because if it was to be available to new entrants only, it would be prospective at such distance of thirty-five years since its introduction. But it covers all those in service who entered thirty- five years back. Pension is thus not an incentive but a reward for past service. And a revision of an existing benefit stands on a different footing than a new retiral benefit. And even in case of new retiral benefit of gratuity under the Payment of Gratuity Act, 1972 past service was taken into consideration. Recall at this stage the method adopted when pay-scales a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. On 8.8.1995, that is post the promulgation by the Respondent of the Pension Rules, the Appellant enquired from the Respondent whether he was entitled to pension under the Pension Rules, which has been understood by the Respondent as a representation for pension; the Respondent replied that the request of the Appellant cannot be acceded to. The Appellant took the matter no further but has averred that in 2000, prompted by news in a Daily and Judgments of a High Court and a Tribunal, he requested the Respondent to reconsider his case for pension. This request has remained unanswered. It was in 2011 that he sent a legal notice to the Respondent, in response to which the Respondent reiterated its stand that the Appellant, having resigned from service, was not eligible to claim pension under the Pension Rules. Eventually, the Appellant filed a Special Civil Application on 29.3.2012 before the High Court, which was dismissed by the Single Judge vide Judgment dated 5.10.2012. The LPA of the Appellant also got dismissed on the grounds of the delay of almost 14 years, as also on merits vide Judgment dated 1.3.2013, against which the Appellant has approached this Court. 4. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to the time barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh consideration. Reliance was also placed on the decision of this Court in State of Madhya Pradesh v. Yogendra Shrivastava, (2010) 12 SCC 538, wherefrom learned counsel emphasized on the following observations:- 17. The appellants contended that the claims were therefore barred by limitation. It was pointed out that the respondents were paid NPA at a fixed rate as stipulated in the appointment orders and NPA was increased only when it was revised by the government orders from time to time; that the respondents accepted such NPA without protest; and that therefore, they cannot, after periods varying from 5 to 15 years, challenge the fixation of NPA or contend that they are entitled to NPA at a higher rate, that is 25% of their pay. 18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of financial unviability of the 1999 Scheme is concerned, it was submitted on behalf of the respondent-employees, that the State Government was estopped in law, from raising such a plea. In this behalf it was pointed out, that the Law Department and the Finance Department of the State Government, had advised, against the retrospective withdrawal of the 1999 Scheme . If the advice had been accepted, according to learned counsel, persons similarly situated, as the private respondents, would have remained entitled to receive pension under the 1999 Scheme . Additionally it was contended, that in identical circumstances, the State Government had repealed the provisions of the Central Civil Services (Pension) Rules, 1972, as were applicable to State Government employees, through a similar notification, dated 15.5.2003. It was highlighted, that the aforesaid repeal notification, was given a prospective effect, inasmuch as, employees similarly situated as the respondent-employees herein, who had not retired on the date of the repeal notification, were allowed to be governed by the Central Civil Services (Pension) Rules, 1972. At the cost of clarification, it was pointed out, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., (1971) 2 SCC 330, wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. v. Iqbal Singh, (1976) 2 SCC 1 . It is thus hard earned benefit which accrues to an employee and is in the nature of property . This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India. xxx xxx xxx 13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. only when a finding is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognise the right of persons like the petitioners to receive pension under the circumstances mentioned therein. xxx xxx xxx 33. Having due regard to the above decisions, we are of the opinion that the right of the Petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause (5) of Article 19. Therefore, it follows that the order dated 12-6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State itself on the other hand on a par. Even the financial rules were made applicable to them in terms of the notifications, applying the rule of incorporation by reference. Although Rule 296 of the Rules per se may not be applicable so far as the appellants are concerned, it now stands admitted that the provisions thereof have been applied to the case of the appellants also for the purpose of computation of pensionary benefits. Therefore there cannot be any doubt whatsoever that the term Emoluments as contained in Rule 296 of the Rules would also apply to the case of the appellants. Rule 296 of the Rules reads as under: 296. In respect of retirement or death while in service of government servants on or after first day of July, 1993, the term emoluments for the purpose of this Chapter means, the basic pay drawn by the government servant in the scale of pay applicable to the post on the date of retirement or death and includes the following, but does not include pay and allowance drawn from a source other than the Consolidated Fund of the State,- xxx xxx xxx Note:- (a) Basic pay means the pay drawn in the time-scale of pay applicable to the post immediately befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the scales of pay stands on different footing, thus, must be rejected. 25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement. 26. These appeals involve the question of revision of pay and consequent revision in pension and not the grant of pension for the first time. Only the modality of computing the quantum of pension was required to be determined in terms of the notification issued by the State of Karnataka. For the said purpose, Rule 296 of the Rules was made applicable. Once this rule became applicable, indisputably the computation of pensionary benefits was required to be carried out in terms thereof. The Pension Rules envisage that pension should be calculated only on the basis of the emoluments last drawn. No order, therefore, could be issued which would be contrary to or inconsistent therewith. Such emoluments were to be reckoned only in terms of the statutory rules. If the State had taken a conscious decision to extend the benefit of the UGC pay scales w.e.f. 1-1-1996, to the appellants, allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensionary benefits, is clearly unacceptable in law. In this behalf it was pointed out, that this Court on a number of occasions held, that the date of retirement, cannot be a valid criterion for classification. It was submitted, that the fortuitous circumstance (date) of retirement, by a day earlier or a day later (than the cut-off date), would result in discriminatory consequences, for persons who constitute a homogenous class. It was contended, that whilst the 1999 Scheme was in operation, all employees of State owned corporations who had opted for the same, constituted a homogenous class, and there could be no division to segregate such a homogenous class, so as to extend pensionary benefits to one set of employees, and to revoke the same, for another. In order to support the above contention, learned counsel for the respondents placed reliance on the D.S. Nakara case (supra) and drew our attention to the following observations recorded therein:- 42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the classification does not stand the test of Article 14. On the same proposition, reliance was placed on Union of India v. SPS Vains (Retd.), (2008) 9 SCC 125, and the Court s attention was invited to the following observations:- 28. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara v. Union of India, (1983) 1 SCC 305, where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospectively. In this behalf it was submitted, that it could not be forgotten, that consequent upon the respondent-employees having been enrolled in the 1999 Scheme , they had been deprived of the employer s share of provident fund (and the interest which had accrued, thereon). The same ought to be treated as consideration, which passed from the respondent-employees to the State Government, consequent upon their enrollment into the 1999 Scheme . On account of having foregone the employer s contribution which was a pre-requisite for enrollment in the 1999 Scheme , it was submitted, that the respondent-employees must be deemed to have contributed by way of consideration, to earn the benefit which would accrue to them, under the 1999 Scheme . Keeping the above legal proposition in mind, it was pointed out, that the action of the State Government in depriving the respondent-employees of pensionary benefits, while allowing the same to such of the employees, who had retired on or before 2.12.2004, was discriminatory and unsustainable in law. It was also the contention of learned counsel for the respondent-employees, that the only situation where a claim for pension under the 1999 Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same would not be applicable to future employees. And the deficiency in the financial resources was accordingly fastened on the State Government. On the issue in hand, it was submitted, that a number of employees, who became members of the 1999 Scheme , and would retire after 2.12.2004 (i.e. the cut-off date, determined under the repeal notification, dated 2.12.2004) is a definite number. In this behalf it was pointed out, that if the employees, who became members of the 1999 Scheme , are to be taken into consideration, there would be 6,730 employees, who would draw pension on their retirement. It was accordingly submitted, that there would be no further increase in the liability under the 1999 Scheme . In order to demonstrate that the available funds accumulated on account of the employee s contribution to the EPF/CPF concerned, were sufficient to meet the liability, to administer the pension scheme, it was submitted, that the same has increased from 56 crores in 2003 to 253 crores in 2015. It was pointed out, that the aforesaid figures emerged, despite the withdrawal of provident fund amounts, by a number of employees. It was, therefore submitted, that payment of pensionar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... views of 17 corporations/boards covered by the 1999 Scheme , however, it received views of 7 corporations only, namely, Himachal Pradesh Agro Industries Corporation, Himachal Pradesh Tourism Development Corporation, Himachal Pradesh State Industrial Development Corporation, Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd., Himachal Pradesh Housing Board, Himachal Pradesh State Forest Development Corporation Ltd., and Himachal Pradesh SC ST Development Corporation. The above corporations had expressed the opinion, that a unified trust for pension with financial support of the State Government, could salvage the financial position, to enable the corpus fund to cater to payment of pension to employees under the 1999 Scheme . It was therefore the contention of learned counsel for the respondents, that credence should not be given to the proposition propounded at the hands of the State Government, that the 1999 Scheme was not financially viable. 44. In order to controvert the submissions advanced at the hands of learned counsel for the respondent-employees, Mr. P.P. Rao, learned senior counsel emphatically pointed out, that all the judgments reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result the amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement has been reduced. xxx xxx xxx 33. Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement. 34. The learned Additional Solicitor General has, however, submitted that the impugned amendments cannot be regarded as arbitrary for the reason that by the reduction of the maximum limit in respect of Running Allowance from 75% to 45% for the period 1-1-1973 to 31-3-1974 and to 55% from 1-4-1979 onwards, the total amount of pension payable to the employees has not been reduced. The su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the impugned notifications dated 5-12-1988, to the extent the said amendments have been given retrospective effect so as to reduce the maximum limit from 75% to 45% in respect of the period from 1-1-1973 to 31- 3-1979 and reduce it to 55% in respect of the period from 1-4-1979, are unreasonable and arbitrary and are violative of the rights guaranteed under Articles 14 and 16 of the Constitution. For the same proposition, reliance was placed on the U.P. Raghavendra Acharya case (supra), wherefrom our attention was drawn to the following observations:- 2. The appellants in these appeals are retired teachers of the University and Private Aided Colleges (to whom UGC scales of pay were applicable). They have retired during the period 1.1.1996 to 31.3.1998. So far as the teachers of the University or Privates Aided Colleges are concerned, indisputably, they were being paid the same salary as was being paid to the teachers of the Government colleges. The appellants in Civil Appeal No. 1391/2006, have retired from the Karnataka Regional Engineering College, Surathkal, Karnataka, which was established by the Government of India at the request of the Government of Karnataka. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the grant-in-aid was extended for helping CAMUL in its different development activities; that under a Centrally sponsored scheme, between 1981 to 1986, the earmarked amount was released on 50:50 basis by the Central and State Government with 70% loan component and 30% as grant component; that though the loan component was not repaid by CAMUL, the State Government continued the grant-in-aid for purposes of development activities; that the State Government had also provided Rs.43.60 lakhs for developing the milk-processing infrastructure of CAMUL; that despite such assistance, CAMUL became defunct and stopped all its activities and thereafter the Silchar Town Milk Supply Project was being run by the State's Dairy Development Department itself; that at no time, the State Government made any commitment or agreed to bear the salaries of employees of CAMUL or any other similar societies; that CAMUL had to generate its own funds and resources to pay the salaries of its staff; and that as there was no relationship of employer and employee between the State Government and the employees of CAMUL, it was not responsible to bear or pay any amount towards the salaries of the employees of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration in Kapila Hingorani (I) v. State of Bihar, (2003) 6 SCC 1 (for short Kapila Hingorani (I) ) and the issue has been answered in their favour. Reference is invited to the following question, which was set down as one of the questions arising for consideration in that case: (SCC p.17, para 20) 2. Whether having regard to the admitted position that the government companies or corporations referred to hereinbefore are State within the meaning of Article 12 of the Constitution of India, the State of Bihar having deep and pervasive control over the affairs thereof, can be held to be liable to render all assistance to the said companies so as to fulfill its own and/or the corporations' obligations to comply with the citizens' rights under Articles 21 and 23 of the Constitution of India? 16. Reference is also invited to the following observations of this Court in considering the said question (Kapila Hingorani (I), SCC, pp. 20-21, paras 30-31 33-34): 30. The government companies/public sector undertakings being State would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligated to perform. Reference is invited to the fact that this Court directed the Bihar government to release Rs. 50 crores and deposit it with the High Court for disbursing salaries of employees of government corporations/companies. The contention of respondent is that the direction of the High Court, is in consonance with the said view. 17. The learned Counsel for the respondent also relied upon the following observations in Kapila Hingorani (II) v. State of Bihar, (2005) 2 SCC 262 (for short Kapila Hingorani (II)): (SCC p. 268, paras 26-27) 26. We, therefore, do not appreciate the stand taken by the State of Bihar now that it does not have any constitutional obligation towards a section of citizens viz. the employees of the public sector undertakings who have not been paid salaries for years. 27. We also do not appreciate the submissions made on behalf of the State of Bihar that the directions issued were only one-time direction. In Clause 4 of the directions, it was clearly stated that the State for the present shall deposit a sum of Rs. 50 crores before the High Court for disbursement of salaries to the employees of the corporations. Furthermore, the matter had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are necessary for their survival. 20. It is thus clear that directions were not based on legal right of the employees, but were made to meet a human right problem involving starvation deaths and suicides. But in the case on hand, relief is claimed and granted by proceeding on the basis that the employees of corporations/bodies answering the definition of State have a legal right to get their salaries from the State Government. In fact Kapila Hingorani (I) and Kapila Hingorani (II) specifically negative such a right. 46. We shall now endeavour to consider the various legal parameters on the basis whereof, learned counsel for the rival parties have premised their respective submissions. 47. First and foremost, it is essential for us to determine whether or not a vested right came to be created in the employees of the corporate bodies, when they came to be governed by the 1999 Scheme . The submission at the hands of learned counsel for the appellant-State was, that no such vested right was created, by the time the repeal notification was issued on 2.12.2004. The contention of learned counsel representing the State was, that under paragraph 4 of the 1999 Scheme , a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provident fund). Consequent upon an exemption having been granted to the concerned corporate bodies by the competent authority under the Provident Fund Act, the Employees Provident Funds Scheme, 1995, was replaced, by the 1999 Scheme . All direct entrants after 1.4.1999, were also entitled to the rights and privileges of the 1999 Scheme . We are therefore of the considered view, that the submissions advanced on behalf of the State of Himachal Pradesh premised on the assertion, that no vested right accrued to the employees of the concerned corporate bodies, on the date when the 1999 Scheme became operational (with effect from 1.4.1999), or to the direct entrants who entered service thereafter, cannot be accepted. In this behalf it would also be relevant to emphasize, that as soon as the concerned employees came to be governed by the 1999 Scheme , a contingent right came to be vested in them. The said contingent right created a right in the employees to claim pension, at the time of their retirement. Undoubtedly, the aforesaid contingent right would crystalise only upon the fulfillment of the postulated conditions, expressed on behalf of the appellants (on having rendered, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case is, whether or not the State Government was justified in postulating a cut-off date, by which some of the employees governed by the 1999 Scheme (those who had retired prior to 2.12.2004) were entitled to draw pension under the 1999 Scheme , whereas others, who had not retired by the time the repeal notification was issued on 2.12.2004, were deprived of such benefits. In this behalf, the contention of the learned counsel for the respondent-employees was, that all those who had opted (or deemed to have opted) for the 1999 Scheme , and all the new entrants after the introduction of the 1999 Scheme , constituted a homogenous class, and it was impermissible for the State Government, to have treated them differently. It was submitted, that the aforesaid classification was invidious, inasmuch as, there was no reasonable basis for such classification, nor was there any discernable object, for bifurcating the homogenous class of pensioners. It was submitted, that whilst those who had retired on the date of the repeal notification, would be entitled to pensionary benefits, those who retired on the following day, would be deprived of the same. Learned counsel for the rival parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on the U.P. Raghavendra Acharya case (supra). We are of the view, that the above judgment does not have any bearing on the facts and circumstances of this case. In the above judgment, the primary contention which weighed with this Court, in rejecting the contention advanced by the State Government was, that through an executive determination (by a letter, dated 17.12.1993), the State Government had breached a statutory rule, regulating the fixation of pension (Rule 296, of the Karnataka Civil Services Rules). The above position is not available in the present case, inasmuch as, no contention has been advanced at the behest of the respondent-employees, that the action taken by the State Government (in issuing the repeal notification, dated 2.12.2004), violated any legal obligation or statutory right. So also, the judgment relied upon on behalf of the respondent- employees in the D.S. Nakara case (supra), wherein the employees claim for pension, was based on existing rules. And even so, in the Chairman, Railway Board case (supra), wherein it was held, that vested rights under the rules, could not be taken away. It would also be relevant to mention, that in the last judgment r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issuance of the impugned notification, dated 2.12.2004. 58. We are of the considered view, that the principle of estoppel/promissory estoppel cannot be invoked at the hands of the respondent-employees, in the facts and circumstances of this case. It is not as if the rights which had accrued to the respondent-employees under the Employees Provident Funds Scheme, 1995 (under which the respondent- employees were governed, prior to their being governed by the 1999 Scheme ) have in any manner been altered to their disadvantage. All that was taken away, and given up by the respondent-employees by way of foregoing the employer s contribution upto 31.3.1999 (including, the accrued interest thereon), by way of transfer to the corpus fund, was restored to the respondent-employees. All the respondent-employees, who have been deprived of their pensionary claims by the repeal notification dated 2.12.2004, would be entitled to all the rights which had accrued to them, under the Employees Provident Funds Scheme, 1995. It is therefore, not possible for us to accept, that the respondent-employees can be stated to have been made to irretrievably alter their position, to their detriment. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd thirdly, there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an Estoppel. Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterized as misrepresentation. In this context, reference may be made to the decisions of the High Court of Australia in the case of Craine v. Colonial Mutual Fire Insurance Co. Ltd., 1920 28 C.L.R. 305. Dixon, J. in his judgment in Grundt v. The Great Boulder Pty. Gold Mines Pty. Ltd., 1938 59 C.L.R. 641, stated that: In measuring the detriment, or demonstrating its existence, one does not compare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the representor wished to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable man would take the representation to be true and believe that it was meant that he should act upon it. (Freeman v. Cooke, 1848 (2) Exch. 654: at p. 663). Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled (Mercantile Bank v. Central Bank, 1938 AC 287 at p. 304, and National Westminster Bank v. Barclays Bank International, 1975 Q.B. 654). This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparatively recently (Moorgate Mercantile Co. Ltd. v. Twitchings, (1977) AC 890). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations, rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time (Square v. Square, 1935 P. 120). 22. A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the State Government, induced the respondent- employees, to move to the 1999 Scheme . Accordingly, it would not be possible to apply the principle of estoppel/promissory estoppel, to the facts of the present case. 59. We are also of the view, that the principle of estoppel/promissory estoppel, is not applicable in a situation, where the original position, which the individual enjoyed before altering his position (by opting, or deemingly opting - for being governed by the 1999 Scheme ) can be restored. For the instant proposition, reference may be made to the judgment in Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196, wherein it was held as under:- We shall, however, endeavour to deal with the principle of estoppel, so as to figure whether, the rule contained in Section 115 of the Indian Evidence Act could have been invoked, in the facts and circumstances of the present case. Section 115 of the Indian Evidence Act is being extracted hereinabove:- 115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1999 Scheme . Insofar as the appellant-State is concerned, it was asserted on its behalf, that a high level committee, was constituted by the Finance Department of the State Government, on 21.1.2003. The said committee comprised of managing directors, of the concerned public sector undertakings and corporations. The task of the high level committee was, to examine the financial viability of the 1999 Scheme . The said committee submitted a report dated 28.10.2003, returning a finding, that the 1999 Scheme was not financially viable, and would not be self-sustaining. It is therefore, that a tentative decision was taken by the State Government, to withdraw the 1999 Scheme . 61. To determine the modalities for withdrawing the 1999 Scheme , on the basis of the above report, the matter was jointly examined by the Finance Department and the Law Department of the State Government, wherein, in consonance with the advice tendered by the Law Department it was decided, that the 1999 Scheme should not be withdrawn retrospectively. Based on the advice of the Law Department, it was finally decided, that those who had commenced to draw pensionary benefits under the 1999 Scheme , woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rationale for issuing the repeal notification dated 4.12.2004. We are of the view, that the consideration at the hands of the State Government was conscious and pointed. And was supported by facts and figures. It is apparent, that out of 17 corporations/boards who were invited to express their views on the issue, only 7 had actually done so. It is not the case of the respondent- employees, that any one of those who had expressed their views, contested the fact, that the pension scheme was not self-financing. Those who expressed their views, affirmed that the pension scheme could be salvaged only with Government support. Those who did not express their views, obviously had no comments to offer. The position projected by the State Government, therefore, cannot be considered to have been effectively rebutted. Certain facts and figures, have indeed been projected, on behalf of the respondent-employees. These have been recorded by us in paragraphs 39 and 40. Financial calculations can not be made casually, on a generalized basis. In the absence of any authenticity, and that too with reference to all the 20 corporate entities specified in Schedule I of the 1999 Scheme , the projection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view, that the High Court should not (- as it could not) have transferred the financial liability to run the 1999 Scheme , to the State Government. Similar suggestions made by the concerned corporate bodies, cannot constitute a basis for fastening the residuary liability on the Government. 65. The action of the State Government, in revoking the 1999 Scheme vide notification dated 2.12.2004, was also assailed as being discriminatory. And as such, violative of Article 16 of the Constitution of India. In this behalf, the submission advanced on behalf of the respondent-employees was, that the State Government extended similar benefits to Government employees under the Central Civil Services (Pension) Rules, 1972. The said pensionary benefits extended to Government servants, were also sought to be withdrawn. It was however pointed out, that while withdrawing the pensionary benefits from the Government employees, the State Government had taken a decision to protect all existing employees, who had entered into Government service, till the revocation of the pension scheme. It was submitted, that the High Court had, by the impugned order, similarly protected only the existing e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude, that the action of the State Government was not discriminatory is, that despite having revoked the 1999 Scheme through the notification dated 2.12.2004, the State Government had permitted such of the Government owned corporations in the State of Himachal Pradesh, which were not suffering any losses, to promote their own pension schemes, and to extend pensionary benefits to their employees, on an individual basis, in the same/similar fashion as had been attempted by the State Government, through the 1999 Scheme . In the instant view of the matter also, we are of the opinion, that the action of the State Government cannot be assailed, on the ground of discrimination. 68. We shall now consider, whether the State Government which had introduced the 1999 Scheme , had the right to repeal the same. In answering the above issue, it needs to be consciously kept in mind, that the employees of corporate bodies, who were extended the benefits of the 1999 Scheme , as already noticed above, were not employees of the State Government. The 1999 Scheme was, therefore, just a welfare scheme introduced by the State Government, with the object of ameliorating the financial condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees of corporate bodies, will necessarily have to be determined administratively, on the basis of relevant factors. Financial viability, is an important factor, in such consideration. In the facts and circumstances of the present case, it is not possible for us to accept, the contention advanced on behalf of the respondent-employees, that the State Government should provide financial support for sustaining the 1999 Scheme , at least for such of the employees, who were engaged on or before the date of issuance of the repeal notification (- 4.12.2004). We would like to conclude the instant submission by recording, that the respondent-employees have not been able to make out a case, that the notification dated 2.12.2004, repealing the 1999 Scheme , was in any manner, capricious, arbitrary, illegal or uninformed, and as such, we would further conclude, that the respondent-employees cannot be considered as being entitled, to any relief, through judicial process. 69. Having recorded our aforesaid conclusion, it is not necessary for us to examine the submissions advanced at the hands of the respondent- employees, that the action of the State Government, in issuing the repeal no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India. We have deliberated hereinabove, the nature of the right created by the 1999 Scheme . We have examined all the legal submissions advanced on behalf of the respondent-employees. We have arrived at the conclusion, that action of the State Government, was well within its authority. We have also held the same to be based on due consideration. We have therefore, rejected the assertion made on behalf of the respondent- employees, that the impugned notification dated 2.12.2004, was unconstitutional, irrational, arbitrary or unreasonable. It is accordingly not possible for us to accept, the challenge raised by the respondent- employees, that they had been deprived of their right to pensionary benefits, without the authority in law. We are therefore of the view, that the claim raised on behalf of the respondent-employees, by placing reliance on Article 300A of the Constitution of India, is misconceived. 71. Our determination, with reference to all the issues canvassed above, would also answer the question left open in paragraph 52 above. Namely, whether or not the contingent right, as was vested in the respondent- employees, was binding or irrevocable. We may now su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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