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The Provincial Insolvency Act, 1920
Article 14 in The Constitution Of India 1949
All India Reserve Bank Retired ... vs Union Of India And Others on 10 December, 1991
Article 226 in The Constitution Of India 1949
State Of Maharashtra vs Ministerial Service Association on 8 October, 1965

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Gujarat High Court
Ahmedabad Municipal Corporation ... vs Ahmedabad Municipal Corporation ... on 4 August, 1995
Equivalent citations: (1995) 2 GLR 1856
Author: M Calla
Bench: M Calla



JUDGMENT
 

 M.R. Calla, J.

1. This petition under Article 226 of the Constitution of India has been filed by the Ahmedabad Municipal Corporation Nivrutt Karmachari Sangh and Mr. Madhusudan P. Dave as its Convener. The Ahmedabad Municipal Corporation Nivrutt Karmachari Sangh (here-in-after referred to as "the petitioner-Sangh" for short) is an Association of such retired employees of the Ahmedabad Municipal Corporation, who had retired prior to 1-1-1983 as holders of the Contributory Provident Fund ("CPF" for short). This petition was filed in the year 1988 on 12th July, 1988 seeking to challenge the denial of the benefit of Pension Scheme to the employees who had retired prior to 1-1-1983 as the Pension Scheme itself was introduced and made effective from 1-1-1983. At the time of filing of this petition, details of the members of the petitioner-Sangh had not been furnished but through Civil Application No. 623 of 1995 dated 6-4-1995, list of 86 retired employees had been sought to be placed on record, wherein it has been held out that only 86 retired persons, as per the list enclosed with this Civil Application, are the members of the petitioner-Sangh claiming the relief of Pension Scheme introduced by the Municipal Corporation, Ahmedabad from 1-1-1983. Said list is taken on record. The learned Counsel for the petitioner-Sangh, under the instructions from the present President of the petitioner-Sangh, namely, Mr. M.H. Tripathi, who is present before the Court, submits that there may be more employees falling in the category of 86 employees, who have been included in the list filed by the petitioner-Sangh but they are not the members of the petitioner-Sangh and the list of 86 retired employees, as filed by the petitioner-Sangh, is the list of employees, who had retired from the services of the Municipal Corporation, Ahmedabad on different dates ranging between 3-11-1968 to 31-12-1982. There is only one employee at Sr. No. 21 in the list, who had retired in the year 1968 on 3-11-1968 and most of the employees included in this list have retired between 1970 and 1980, few have retired in the year 1981 and few in the year 1982 including the employees at Sr. Nos. 13, 25, 26, 62, 84 and 85, who retired on 31-12-1982. It appears from the list that out of 86 employees that it includes, 56 employees are those who had retired after 1-1-1978 and before 1-1-1983; i. e. within the period of five years prior to 1-1-1983, i.e., the date from which the Pension Scheme had been introduced by the Ahmedabad Municipal Corporation ("the Corporation" for short). That prior to 1-1-1983, the only welfare scheme for the employees of the Corporation was the Scheme of CPF in which certain amount was regularly contributed by the employees as holders of the CPF and equal amount was contributed by the Corporation. All the employees of the Corporation under the CPF Scheme receive the amount of their Provident Fund on attaining the age of superannuation. All the members of the petitioner-Sangh and other similarly situated persons received amount of Provident Fund at the time of their retirement and at that time, there was no question of any pension because there was no such Pension Scheme.

2. The Pension Scheme was conceived later on and the Standing Committee of the Corporation vide its Resolution No. 790 dated 10th June, 1983, proposed new Scheme called the Pension Scheme alongwith the then continuing CPF Scheme.

Thus, two alternatives were made available to the employees of the Corporation, i.e., CPF Scheme as well as Pension Scheme but the option to choose between the two was made available and kept confined only to such employees, who were in service prior to 1-1-1983 and were continuing in service on 1-1-1983. The contents of Annexure "A" filed with the petition, i.e., the Resolution No. 790 of the Standing Committee of the Corporation passed on 10th June, 1983 shows that the sanction of the Government was sought under Section 465(1)(h) of the Bombay Provincial Municipal Corporations Act, 1949 ("B.P.M.C. Act" for short) and for framing the Regulation to introduce the Pension Scheme from 1-1-1983. Item No. 3, as contained in this Resolution passed by the Standing Committee, is reproduced in Gujarati as under:

This Resolution No. 790 dated 10th June, 1983 passed by the Standing Committee of the Corporation was approved by the Corporation vide its Resolution No. 428 of 1983 dated 21 st July, 1983 as per Annexure "B" to this petition. The Pension Scheme to be introduced from 1-1-1983 as proposed by the Resolution No. 428 of the Corporation with reference to the Resolution passed by the Standing Committee of the Corporation vide No. 790 dated 10th June, 1983, was also sanctioned by the State Government as required under Section 465(3)(a) of the B.P.M.C. Act as is apparent from the Resolution dated 16th January, 1984 of the Government in Urban Development and Housing Department, annexed as Annexure IV to the affidavit-in-reply dated 19th September, 1989 filed by Corporation. Accordingly, the Pension Scheme became effective and relevant portion thereof, i.e., item 3, around which hinges the entire controversy, which is mentioned on the reverse of the aforesaid Government Resolution dated 16th January, 1984, is reproduced as under:

3. These regulations shall apply to the permanent and acting employees of Ahmedabad Municipal Corporation on permanent Schedule on 1-1-1983 who opt for these regulations and shall apply to all permanent and acting employees of the Ahmedabad Municipal Corporation appointed after that date.

This Regulation, therefore, applies to the permanent and existing employees of the Corporation on permanent Schedule as on 1-1-1983, who opt for these regulations.

3. It appears that after the filing of the petition, amendment was moved challenging the validity of this Regulation on the envil of ArticleS 14 and 16 of the Constitution of India and this amendment was allowed on 24th October, 1991. The petitioner-Sangh has enclosed document Annexure "C", which is a representation dated 15th January, 1987, which was made by the employees of the Sangh to the Municipal Commissioner claiming the benefits of the Pension Scheme for the employees, who had retired prior to 1-1-1983. A reply dated 2-7-1987 Annexure "B" appears to have been sent to the Secretary of the petitioner-Sangh by the Municipal Commissioner informing that the Pension Scheme had been introduced only from 1-1-1983 and the employees, who had retired prior to 1-1-1983, were not entitled to the benefits of this Scheme. It further appears that a reply to the same effect was sent on 17th July, 1987 to the Secretary of the petitioner-Sangh by the Corporation. The petitioner-Sangh also appears to have represented their grievances before the Chief Minister of the State of Gujarat and such representation has been placed on record with the main petition. Again a reply Annexure "G" dated 6-10-1987 appears to have been sent by the Municipal Corporation to the Secretary of the petitioner-Sangh and Annexure "H" is the note which was prepared by the Municipal Commissioner for consideration of the Standing Committee in which Municipal Commissioner had highlighted the need of the Pension Scheme for consideration of the Standing Committee. Having failed before the respondents in getting the relief, the petitioner-Sangh preferred this petition on 12th July, 1988. On 28th July, 1988 rule returnable on 24-10-1988 was issued. The petitioners claim is that they are covered by the relevant Regulation under the relevant Resolution passed by the Standing Committee of the Corporation, which was approved by the Corporation and sanctioned by the Government.

4. According to the learned Counsel for the petitioner-Sangh, Pension Scheme includes all the employees who were in service prior to 1-1-1983. Alternatively, it has been pleaded that if the employees, who has retired prior to 1-1-1983 are not found to be included in the impugned Regulation, it is ultra vires of ArticleS 14 and 16 of the Constitution and the same is arbitrary inasmuch as there is no rational justification whatsoever for picking up the cut-off date of 1-1-1983 and all the employees, who had remained in service of the Corporation at any time, were entitled to the benefits of this Scheme from 1-1-1983, i.e., the date which the Scheme for Pension was introduced notwithstanding the fact that prior to 1-1-1983 there was no Pension Scheme and the employees, who retired, were the members of the CPF only and even if they may have retired at any time prior to 1-1-1983 with the packet of the amount of Provident Fund which had been drawn by them on attaining the age of superannuation. On this basis, it is claimed that all the employees, who retired prior to 1-1-1983, should also be given option for the pension and that they were prepared to return the contribution of CPF amount (as was given by the Municipal " Corporation) in lieu thereof, and even now, they should be given opportunity to opt for the pension and the pension may be paid to them accordingly on the basis of the service, which was rendered by them to the Corporation.

5. The aforesaid claim of the petitioner-Sangh has been sought to be traversed by the respondent-Corporation through affidavit-in-reply dated 19th September, 1989 filed by Mr. Makwana, Chief Accountant of the repondent-Corporation. It has been pleaded in their reply that employees, who had retired prior to 1-1-1983, are not covered by the Pension Scheme and only those are covered, who were in service of the Corporation prior to 1-1-1983 and were also continuing in service on 1-1-1983 and that there was no question of giving benefits of the Pension Scheme to the employees who had retired prior to 1-1-1983. It is also pleaded that 1-1-1983 is the date from which the Pension Scheme was introduced and, therefore, nothing can be said to be arbitrary about the cut-off date of 1-1-1983. The Corporation had to choose some date after all from which the Pension Scheme was to be introduced and if the cut-off date corresponds to the date from which the Pension Scheme was introduced, such date cannot be said to be arbitrary and/or irrational. In the affidavit-in-reply, it has been pleaded that prior to 1-1-1983, there were 22,000 employees in the Corporation, who were getting benefit of the CPF Scheme and under this Scheme, equal contribution was given by the Corporation. For Provident Fund, interest was also paid to the extent accumulated on the total sum. It has also been pleaded that in the year 1984, there were only 25 pensioners and by now, number of pensioners is approximately 1,300. Figures have also been given as to what was the monthly expenditure of pension at that stage and as to how it has increased after 1984 and how many times optitons have been given. Entire case of the Corporation is that this Scheme is not at all meant for any employee, who had already retired to 1-1-1983 and it covers only two types of employees, viz., those who had been appointed prior to 1-1-1983 and who were continuing in service of the Corporation on 1-1-1983 (for them, it was open to opt between CPF and the pension); and those who joined service on or after 1-1-1983 (for them Pension Scheme only).

6. No return has been filed by respondent No. 2- State but Mr. Uraizee, learned A.G.P. has also contested the petition on the same lines as the Corporation.

7. Dr. Sonia Hurra, learned Counsel for the petitioner-Sangh emphatically submitted that in terms of the Resolution passed by the Standing Committee of the Corporation, all the employees like members of the petitioner-Sangh, i.e., all those employees, who had retired prior to 1-1-1983, are fully covered and the respondents have failed to understand and appreciate the correct import of the language employed in this Resolution and the Regulation. Her argument is that once the Regulation refers to the employees who were in service prior to 1-1-1983, all those who retired prior to 1-1-1983 are automatically included because they were in service at some point of time prior to 1-1-1983. According to Dr. Hurra, the words used in the Resolution, which later on became Regulation, covers all such employees who were in service prior to 1-1-1983 whether retired or continuing in service.

8. On the other hand, Mr. Tanna, learned Counsel for the respondent-Corporation has submitted that according to the applicability clause of the Regulations, the Pension Scheme Regulations are applicable to the permanent and working employees of the Corporation on permanent schedule on 1-1-1983 who opted for pension and by no stretch of imagination, it can be construed to cover all the employees who had retired at any time prior to 1-1-1983 and he has submitted that only those employees who were appointed prior to 1-1-1983 and were continuing on 1-1-1983 in service of the respondent-Corporation are covered.

9. I have considered the submissions made on this aspect of the matter by both the sides. If the meaning, as submitted by Dr. Hurra on behalf of the petitioner-Sangh is taken to be the correct import, the petitioner-Sangh straightway succeeds and there is no scope of further argument but with whatever little understanding of Gujarati language which I have acquired, it can be said, without any hesitation and without any doubt whatsoever, that the Resolution cannot be given the meaning as canvassed by the learned Counsel for the petitioner-Sangh. In my opinion, from the words contained in the basic resolution, which has culminated into the regulation, it is clearly discernible that it refers to the persons continuing and it means only those who were in service on 1-1-1983. Apart from it, applicability Clause 3 of the Regulation, which has been quoted here-in-above which is in English, makes it quite clear that the Regulation shall apply to permanent working employees of the Corporation on permanent Schedule on 1-1-1983 and only they could opt for the pension. Thus, no violence can be done to the language employed and it cannot be held that the Pension Scheme as such by its very provision covers all the employees who were in service prior to 1-1-1983 at any point of time and had retired prior to 1-1-1983 and I have no hesitation in holding that the Scheme as such covers only those employees who had been appointed in the service of the Corporation prior to 1-1-1983 and were continuing in the service of the Corporation on 1-1-1983. This contention raised on behalf of the petitioner, therefore, fails and is hereby rejected.

10. Next comes the question about the date 1-1-1983 being arbitrary and the regulation with regard to the applicability of the Pension Scheme itself being ultra vires and violative of Articles 14 and 16 of the Constitution of India. The learned Counsel for the petitioner-Sangh has submitted that there was no charm in picking up the date 1-1-1983. According to her, there was nothing auspicious about the date 1-1-1983 and the picking up the date of 1-1-1983 is wholly arbitrary and irrational. Her submission is that it is the duty of the welfare State to provide pension to its employees and merely because at the time of retirement of these type of employees, only scheme available was that of CPF, they cannot be denied the option to opt for Pension Scheme. She has vehemently contended that welfare State under the Constitution is under an obligation to take care of its subjects and any model or ideal employer should be able to afford and make available such welfare schemes, for the retired employees of the Corporation also. Her submission is that the list of the members of the petitioner-Sangh, which has been placed on record, shows that there are certain employees in this list who had retired on 31-12-1982, i.e., only a day before the date on which the Scheme has been introduced. She has submitted that the date of retirement itself is a date which corresponds to the date of birth and the difference of days here and there should not result into denial of such benefits of such a welfare scheme. It has also been argued that at the time when the present petition was filed, the number of such retired employees was much more but the same has now been reduced considerably as many of them have died during the pendency of this petition since 1988 and the persons, who are seeking the relief, were mostly holders of low paid posts and it is not going to entail any significant financial burden upon the Corporation and even as a matter of principle autonomous bodies like the Corporation created by the Statute as a part and parcel of the local-self-Government as a model employer should not deny benefits of such welfare scheme to its own retired employees. She has placed reliance on the decision of the Supreme Court reported in AIR 1983 SC 130 in the case of D.S. Nakara v. Union of India and certain other decisions, in which decisions of D.S. Nakara has been followed, and few other unreported decisions of different High Courts. Reliance was placed on:

(1) in the case of TV. L. Abhyankar v. Union of India;

(2) in the case Devkinandcm Prasad v. State of Bihar;

(3) in the case of Unamal v. Union of India;

(4) 1985 (1) SLR 482 in the case of (Punjab & Haryana) Bhagatram v. Union of India;

(5) in the case of B. Prabhakar Rao v. State of A.P.;

(6) 1987 (4) SLR 728 (S.C.) in the case of R.L. Marwad v. Union of India;

(7) , in the case of State of Raj as than v. Gurcharan Singh Grewal;

(8) 1991 (1) GLH 159 : [1991 (1) GLR 168], the case of Gujarat State Retired Professors 'Association v. State of Gujarat;

(9) Writ Petition No 2910 of 1988 decided on 11th January 1990 by the Bombay High Court in the case of Ajeetrai Gulabrai and Ors. v. Khadi and Village Industries Commission;

(10) Civil Writ Petition No. 9586 of 1987 decided on 11th April 1989 by the Punjab and Haryana High Court; Letters Patent Appeal No. 1352 of 1987, decided on 23rd March 1990 by the Division Bench of the Punjab and Haryana High Court; Special Leave Petition against which was dismissed on merits by the Supreme Court of India, being SLP (Civil) No. 932 of 1991 decided on 8th January 1991 in the case of Union of India v. Bedalkar and Ors.

(11) Civil Special Appeal No. 36 of 1986 decided on 11-3-1987 by the Division Bench of Rajasthan High Court in the case of State of Rajasthan v. Retired Contributory Provident Fund Holders' Association against which also SLP perferred before the Supreme Court by the State of Rajasthan was rejected.

11. On the other hand, Mr. Tanna has contended that the Pension Scheme has been introduced from 1-1-1983 and therefore, the respondent-Corporation cannot be accused of choosing cut-off date as 1-1-1983 to be arbitrary or irrational. Members of the petitioner-Sangh had retired prior to 1-1-1983 when only scheme of CPF was operating and, therefore, there was no question of the Pension Scheme being available to them for exercising the option. His submission is that it is not a case of liberalising or modifying any Scheme which was available to these retired employees at the time when they were in service or when they retired, rather it is a case of introducing entirely new Scheme which cannot be made available to the employees who may have retired at any time prior to 1-1-1983; retiral benefits in the form of CPF had already been released in their favour on the respective dates of their superannuation and, therefore, Pension Scheme cannot be made available retrospectively so as to take within its fold even those who had already drawn the amount of CPF. He has submitted that as and when any new scheme is introduced or any Rule or Regualtion is made applicable, some cut-off date has to be chosen and in the instant case, cut-off date corresponds to the date on which the scheme was made applicable and, therefore, there is rational basis to exclude those who had already retired prior to the cut-off date, i.e., prior to 1-1-1983. The object of introducing Pension Scheme was to provide the pension to the existing employees and in doing so, option for pension has been kept open even to those who had been appointed prior to the date of introduction of the scheme if they were continuing in service on such date and, thus, so far as the employees who had been appointed prior to 1-1-1983 and were continuing on 1-1-1983 in service of the Corporation are concerned, both alternatives were kept open so that they can either retain the CPF Scheme or they may opt for the pension and so far as the appointees after 1-1-1983 are concerned, the only scheme available to them is that of pension. Mr. Tanna has submitted that the whole petition filed by the petitioner-Sangh, the grievance raised therein and the challenge to the validity of the Regulation is absolutely misconceived inasmuch as the respondent-Corporation was not at all concerned, while framing the Pension Scheme, with those who had already retired prior to 1-1-1983 with the packet of lumpsum amount of PF. His contention is that it would have been a different thing altogether had it not been the case of entirely a new Scheme but that of variation or modification of any Scheme which was available to such employees when they were in service or when they retired. On these premises, Mr. Tanna has submitted that the principles laid down in D. Section Nakara's case cannot be of any avail to the petitioners and he has further relied on the following decisions:

(1) , in the case of Krishnakumar v. Union of India;

(2) , in the case of State of Rajasthan v. Pensioner Samaj;

(3) , in the case of All India Reserve Bank Retired Officers' Association v. Union of India.

Dt. 18-7-1995

12. A suggestion had been made to the learned Counsel for the parties that if all the parties are agreeable, a Committee headed by the learned Advocate General of the State with the representation on behalf of the Muncipal Corporation and the petitioner-Sangh one each may be formed to evolve out a Scheme for the employees belonging to the category of the members of the petitioner-Sangh and such a Scheme, which may be acceptable to all the parties, may be adopted to bring an end to the entire controversy. Mr. Tanna, learned Counsel, appearing on behalf of the respondent-Corporation, as also the learned A.G.P. for the State, had agreed to this suggestion initially. While Dr. Hurra, learned Counsel for the petitioner-Sangh, was reluctant to accept the same at the initial stage, but on the next day, under instructions of the representative of the petitioner-Sangh, learned Counsel for the petitioner-Sangh expressed that the petitioner-Sangh was agreeable to the aforesaid suggestion made by the Court. Learned Advocate General was also called upon and he was also agreeable to head the Committee to evolve the appropriate Scheme but by this time, Mr Tanna, learned Counsel for the Municipal Corporation, submitted that he may be given time to again consult the authorities of the Corporation and the matter was, therefore, posted on 17th July, 1995. On 17th July, 1995, Mr. Tanna sought further time to seek instructions and, therefore, the matter was kept on 18-7-1995. On 18-7-1995, it was stated by Mr. D.V. Mehta appearing for Mr.Tanna that now the suggestion was not acceptable and the matter may be decided. At this stage, learned Counsel for the petitioner submitted that she wants to place some more material on record and she may be given a day's time to place the same on record by moving proper application. She submits that when the matter is pending since 1988, few days here or there will not be material and in the interest of justice, she may be granted some time. Accordingly, time is granted in the interest of justice. Learned Counsel for the petitioner may supply a copy of the application with the copies of the relevant documents, which she now wants to produce, to the learned Counsel for the Municipal Corporation as well as the learned A.G.P. for the State by tomorrow. The respondents may file reply thereto on or before 24th July, 1995. The matter will now be taken up on 25th July, 1995.

Dt. 2-8-1995

13. Accordingly, Civil Application was moved by the learned Counsel for the petitioner on 19th July, 1995 and when the aforesaid Civil Application came up before this Court on 20th July, 1995, time was sought on behalf of the respondent-Corporation and the aforesaid Civil Application, which came up today on 2nd August, 1995, has been decided and allowed by separate order recorded in the Civil Application and two more documents which had been filed by the learned Counsel for the petitioner today on 2nd August, 1995 itself, have been taken on record after hearing both the parties and for that purpose, a reference has been made to the order passed today on 2nd August, 1995 while deciding Civil Application No. 1499 of 1995, which has been allowed.

14. In this view of the matter, both the parties were further heard with reference to these documents and, now, I may proceed further with the judgment.

15. On the basis of the submissions made on behalf of both the parties, following points arise for consideration:

(i) Whether the date 1-1-1983, i.e., the date from which the Pension Scheme was made applicable in case of the employees of the respondent-Corporation can be said to be arbitrary and unreasonable so as to declare the following Clauses 2 and 3 of the Pension Regulations to be violative of ArticleS 14 and 16 of the Constitution of India?

2. These regulations shall come into force from 1-1-1983.

3. These regulations shall apply to the permanent and acting employees of Ahmedabad Municipal Corporation on permanent Schedule on 1-1-1983 who opt for these regulations and shall apply to all permanent and acting employees of the Ahmedabad Municipal Corporation appointed after that date.

(ii) Whether the total exclusion of the already retired employees (prior to the introduction of the Pension Scheme) altogether from the benefit of Pension Scheme without considering the relevant factors is justified?

16. So far as the choosing of the date 1-1-1983 so as to make the Pension Scheme applicable in the case of the employees of the Corporation is concerned, aforesaid date has been assailed by the learned Counsel for the petitioner to be arbitrary, on the ground that there is nothing significant to pick up 1-1-1983 so as to choose this particular date to apply the Pension Scheme. Her submission is that the grievance to make available the Pension Scheme was being voiced for past so many years and while making a reference to the statement enclosed with the Civil Application No. 623 of 1995 in which the details have been given about the members of the petitioner-Sangh, she has submitted that some of the employees, who had retired just on 31-12-1982, also stand denied of the pensionary benefits whereas the question with regard to the Pension Scheme being applicable was under active consideration while they were in service and no justification can be offered for choosing the date 1-1-1983. She submits that merely because the members of the petitioner-Sangh had retired on the dates prior to 1-1-1983, they could not be deprived of the pensionary benefits by applying the Scheme from 1-1-1983 and according to her, there is no valid basis or justification for choosing the date of 1-1-1983. In the affidavit filed on behalf of the respondent-Corporation, it has been stated that a proposal for introducing the Pension Scheme was made by the then Councillor and Mayor of the Ahmedabad Municipal Corporation Shri Jayendrabhai Pandit and it was supported by the present Mayor of the Corporation Shri Gopal Solanki. Said proposal was moved on 25th March, 1981 by both of them and an application was made under Section 12(4) of the Industrial Disputes Act, 1947 by the Municipal Navkar Mandal on 24th March, 1982 before the Labour Court for introduction of the Pension Scheme. Aforesaid proposal was forwarded by the Commissioner to the Municipal Secretary with a request to place the same before the Standing Committee of the Corporation and this proposal clearly stated that the date of application of the Pension Scheme would be 1-1-1983. In para 4 of this reply filed by the respondent-Corporation, it is also stated at page 5 that condition was also stipulated that those employees, who were working with the Corporation as on 1-1-1983 or before that, should be given option either to contiune under the CPF Scheme or to accept the new Pension Scheme and this proposal was sent to the Standing Committee of the Corporation, which approved the same by Resolution No. 790 dated 10th June, 1983 and the same, as forwarded, was then approved by the General Body of the Corporation vide its Resolution dated 21st July 1983. It was then approved by the Government in Urban Development and Urban Houshing Department vide its Resolution dated 16th January, 1984 and it has been stated in para 25 on page 18 that the draft Regulations were framed around period of 1983 and that some date had to be fixed so as to make the Pesion Scheme applicable in the year 1983 and 1-1-1983 could be the earliest date in close proximity with the point of time when the Scheme was conceived, proposed and considered.

17. On the question of choosing the above particular date, considerable argument has been made on behalf of the petitioner with reference to the Supreme Court's decision in D.S. Nakara 's case (supra). In Nakara 's case, liberalised Pension Scheme was made effective from March 31, 1979. The grievance was raised by the retired employees, who were pension holders, and thus, grievance was of discrimination between pensioners and the pensioners. The pension holders, who had retired prior to 31st March, 1979 and who had already availed benefit of commutation, had been denied the benefits of the liberalised Pension Scheme whereas those who retired after 31st March 1979 could avail the benefit of the liberalised Pension Scheme and while dealing with this controversy between the pensioners inter-se, the Supreme Court found that there was no charm in making a further classification within the classified category, i.e., the pensioners. Class of the pensioners was not found to be available for further division for the purpose of entitlement of the payment on the basis of the date of retirement. It was considered that if the retirement date is valid, criterion for classifying those who retired at the end of every month shall form class by themselves and the Supreme Court found that this was too microscopic classification to be upheld for any valid purpose and such classification based on the date of retirement on the basis of a particular date of retirement amongst holders of pension inter-se was found to be unreasonable and accordingly, date of 31st March, 1979 and the words "who were in service on 31st March, 1979 and retired from service on or after that date for commencement of the Scheme" were held to be the words of limitation introducing mischief and vulnerable as denying equality and introducing arbitrariness. Accordingly, arbitrary and discriminatory portion of the Scheme was found to be severable. Thus, unconstitutional part contained therein was struck down. The case at hand is a case in which the Scheme of Pension is introduced for the first time and while introducing this Scheme for the first time, if the respondent-Corporation has chosen cut-off date to be 1-1-1983 because the Pension Scheme was conceived in close proximity with the aforesaid date and 1-1-1983 was the earliest date in the year 1983 and has chosen 1-1-1983 as the date for the purpose of making the Pension Scheme applicable, it does not give rise to the legitimate cause of grievance to anyone, what to talk of the members of the petitioner-Sangh. As and when new Scheme or any new Rule or Law is applied, some effective date has to be chosen where a line can be drawn as the line of demarcation. This Pension Scheme, which has been made applicable from 1-1-1983, primarily deals only with the case of those employees, who were in service prior to 1-1-1983 and were continuing in service on 1-1-1983 and those who were appointed on or after 1-1-1983 and thus, the Pension Scheme, which has been made applicable from 1-1-1983, does not deal with and has no room in itself so far as the empoyees, who had retired prior to 1-1-1983, are concerned and, therefore, in my considered opinion, so far as the choosing of the date of 1-1-1983 for making this Pension Scheme applicable with regard to the employees, who were already in service on 1-1-1983 and who were to join on after 1-1-1983, are concerned, it cannot be said to be arbitrary, irrational or unreasonable and, therefore, it is held that taking up of the date 1-1-1983 cannot be said to be arbitrary or unreasonable.

Dt. 3-8-1995

18. Learned Counsel for the petitioner has cited cases and cases on the question of choosing and picking up an arbitrary date. The principle that any law picking up an arbitrary date cannot sustain the challenge of Article 14 of the Constitution of India is well settled, but in the facts of this case, when it is found that the choosing of the date of 1-1-1983 for the purpose of making applicable the Pension Scheme is neither arbitrary nor unreasonsble, such decisions relied upon by the petitioner are of no avail and I, therefore, need not deal with these cases.

19. Now comes the second question which has been formulated as above to the affect that even if the date of 1-1-1983 chosen by the respondent-Corporation for the purpose of making applicable the Pension Scheme is held to be lawful and fair, the total exclusion of all the retired employees as a whole from any date prior to the date of commencement of the Pension Scheme is justified or not has to be considered in the light of the entire backdrop of the service rendered by the members of the petitioner-Sangh and the obligations of the respondent-Corporation in the matter of giving retiral benefits, whether in the form of Provident Fund or in the form of pension. As and when the Pension Schemes are introduced, by any model employer or an agency, instrumentality or a functionary of a welfare State, there may be three categories of the employees if the Pension Scheme is introduced as an entirely new scheme. Employees already retired, employees continuing in service on the date of introduction of the new Scheme and those who may join the service on or after the date when the new Scheme is introduced. It is not in dispute that so far as the servants of Ahmedabad Municipal Corporation are concerned, prior to 1 -1-1983 the only Scheme for the retiring persons was that of Provident Fund and there was no scheme of pension. The Pension Scheme was introduced from 1-1-1983 for the first time and this Scheme has taken care of the two categories of the employees, i.e., those who were continuing in service prior to 1-1-1983 with the scheme of Provident Fund and those who joined the service from 1-1-1983. So far as the employees belonging to the category, i.e., those who are continuing in service prior to 1-1-1983 are concerned, the respondent-Corporation has made available the option of pension to them and such employees can choose whether they wanted to go ahead with the Scheme of Provident Fund or with the Pension Scheme and so far as the new employees, who joined the service of the Corporation on or after 1-1-1983 are concerned, they have to keep their retiral benefits under the Pension Scheme introduced on 1-1-1983. The Pension Scheme, as has been introduced, therefore, does not take care of any employee, who had retired even a day before 1-1-1983 and in the present case, the petitioner-Sangh had pointed out more than one cases in which even those employees, who retired just a day before, i.e., on 31-12-1982 have not been taken care of. The very Preamable of the Constitution shows that We, the people of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens, JUSTICE; social, economic and political, and it has been provided in the Directive Principles of the State policy under Article 38 that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life and the State shall, in particular, strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people residing in different areas or engaged in different vocations. Under Article 39, the State shall, in particular, direct its policy towards securing adequate means of livelihood and under Article 39(e) the State has to direct its policies so that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strengh. Article 41 obligates that the State shall, within the limits of its ecomonic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of indeserved want. Article 43 requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities. The State and its agencies and instrumentalities are, therefore, supposed to direct its policies so as to strive and endeavour to achieve such goals set up by the Constitution and such sacrosanct principles enshrined in the Constitution. In this background, as and when any agency or instrumentality of a welfare State introduces a scheme for the welfare of its subjects and employees, it cannot afford to be oblivious of an important class of employees, which, in the instant case, is the retired employees. The scheme, as has been evloved and applied, to cover in-service candidates and the candidates, who may join the service from the date the Pension Scheme is made applicable, is definitely a welfare scheme, but it is a matter to be considered as to whether the respondent-Corporation in the present case was justified in not taking into account the retired employees as a class, merely because they had retired prior to the date on which the Pension Scheme was introduced. No doubt, at the time of their retirement, the Pension Scheme was not there and only scheme was that of Provident Fund, but that by itself does not mean that the retired employees, as a calss, should be ignored as and when the scheme with regard to the pension is made applicable. The Scheme could be made effective for the retired employees also from a certain date. It may be open for the model employer to choose any particular period prior to the date of introducing the Pension Scheme and for that purpose on consideration of serveral factors to restrict period accordingly for the availability of the Pension Scheme to the employees retired with Provident Fund, but their total exclusion, without considering the relevant factors, puts a question mark against the discharge of the obligation vis-a-vis the retired employees at the hands of a model employer.

20. Mr. Tanna appearing on behalf of the respondent-Corporation has placed strong reliance on the Supreme Court decision rendered in All India Reserve Bank Retired Officers' Association v. Union of India (supra) and has submitted that it was a petition filed by the Association of retired officers, like present petitioners and the Supreme Court after considering D.S. Nakara 's case (supra) has found that the case of introduction of an entirely new scheme has to be considered on different footing than the cases in which an existing scheme is amended, modified or liberalised. In D.S. Nakara's case (supra), the pensioners had approached the Court and their grievance was against liberalisation of the Pension Rules. True it is, that in D. Section Nakara's case (supra) the grievance was raised by the pensioners, i.e., those employees, who were already governed by the Pension Scheme, but in the case of All India Reserve Bank Retired Officers' Association (supra), on which reliance has been placed by Mr. Tanna, while dealing with the cases of retired officers, who are similarly situated to the members of the petitioner-Sangh, the Pension Scheme under attack was the scheme, which took care of the employees, who had retired within five years from the date on which the Pension Scheme was introduced. In the case of All India Reserve Bank Retired Officers' Association (supra), the Pension Scheme was introduced from 1-11-1990, but the employees, who had retired between 1-1-1986 and 1-11-1990 had also been given the benefit of the Pension Scheme and Regulation 3(3) and Regulation 31, which were challenged in that case, had provided that the employees, who were in service as on 1-1-1986 and had retired before 1-11-1990 could also opt for pension and they were made eligible for pension from 1-11-1990 or after expiry of leave preparatory to retirement, on the condition of refunding Bank's contribution including interest received from the Bank, together with simple interest at the rate of 6% per annum from the date of withdrawal till pension with effect from 1-11-1990. At page 774 in para 7 of the judgment the Supreme Court has observed that while in the case of pension retirees who were alive, the Government has a continuing obligation in the case of Provident Fund retirees, each one's right had finally crystallised on the date of retirement and there was no continuing obligation thereafter to be treated at par with pension retirees. The moot question posed in the end of para 9 at page 775 is as to whether it was open to the employer to grant the benefits of the Pension Scheme to one group of CPF retirees who had retired from Bank service on or after 1st January, 1986 and deny the same to all those who had retired on or before 31-12-1985 and as to whether this division of CPF retirees is discriminatory and violative of Article 14 of the Constitution. While noting the distinction of the introduction of an entirely new scheme vis-a-vis the other set of cases, where the Pension Scheme is not at all there, at page 776 in para 10, the Supreme Court itself has observed as under:

But in case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. etc.

21. Thus, according to this decision rendered by the Supreme Court in the case of All India Reserve Bank Retired Officers' Association (supra), even when a new scheme is introduced, in respect of which the retired employees have no vested right, the employer can restrict the same to certain class of retirees and for that purpose the regard has to be kept to the following conditions (as enumerated by the Supreme Court in the observations quoted here-in-above):

1. The fact-situation in which the pension scheme was introduced.

2. The extent of additional financial burden, which it would entail.

3. The capacity of the employer to bear the same.

4. The feasibility of extending the scheme to all retirees regardless of the dates of their retirement.

5. The availability of records of every retiree.

The Supreme Court in the case of All India Reserve Bank RetiredOfficers'Association (supra), while considering the challenge to Regulation 3(3) and Regulation 31 of the Pension Scheme has noted that the demand of Bank employees for introduction of a Pension Scheme as a third retiral benefit as recommended by the Study Group in its report submitted in 1981 was rejected by the Central Government sometime in 1982 and, thereafter, a fresh demand was made for the introduction of a pension scheme in substitution of the CPF Scheme on the pattern of the Pension Scheme admissible to Central Government employees. This proposal met with the approval of the Central Government and accordingly the Bank introduced the Regulations. Under the Regulations, new entrants joining on and after 1-11-1990 automatically become governed by the Pension Scheme and for them, the CPF Scheme has no existence. Those employees, who were in the employment of the Bank, prior to 1-11-1990 were given an option to switch over to the Pension Scheme and simultaneously an option was also given to those employees who had retired between 1-1-1986 and the date of coming into force of the Regulations on the condition that they were willing to refund the employer's contribution under CPF Scheme with interest thereon. The Supreme Court found that the Pension Scheme introduced under the Regulations is patterned on the Pension Scheme governing the Central Government employees which was brought into effect from 1-1-1986 on the basis of the recommendations of the Fouth Central Pay Commission and thus, this Pension Scheme, though made applicable from 1-11-1990, had taken care of the PF retirees even prior to 1-11-1990 upto 1-1-1986 in past. While the date of 1-11-1990 was held to be justified so as to correspond with the date on which the recommendations of the Fourth Central Pay Commission came into effect and so as to be in conformity with the pattern of the Pension Scheme governing the Central Government employees, the Supreme Court also took into consideration that while applying this Pension Scheme and while dealing with Regulations 3(3) and 31 a care had been taken to the relevant considerations, as were considered to be so relevant by the Supreme Court itself, i.e., the fact-situation in which the Scheme came to be introduced, the financial burden, the employer's capacity to bear the same, the feasibility of extending the Scheme to all retirees and availability of the records of retirees. In para 11 the Supreme Court has also noticed that under Bank's Manual, service details pertaining to an employee, who had retired, are maintained for five years and justification given by the Bank authorities for not extending the benefit to those, who retired before five years or more was also noticed.

22. I called upon the learned Counsel for the respondent-Corporation, Mr. Tanna to show as to whether such considerations, as enumerated by the Supreme Court, were taken into consideration with regard to the employees, who had retired prior to 1-1 -1983 at the time of framing the scheme and in answer, Mr. Tanna has placed reliance on certain pleadings contained in the affidavit-in-reply. He took the Court through the entire pleadings in the various paragraphs of the affidavit-in-reply and submitted that the Pension Scheme was proposed on 25-3-1981. He has referred to the pleadings in para 7 wherein it is stated that in the year 1984 in the beginning there were only 25 pensioners, whereas by now the number of pensioners are approximately 1,300 and number of persons are increasing day by day, the monthly expenditure of pension at the initial stage was about Rs. 25,000/- whereas now it is about Rs. 8 lakhs and figure of commuted pension along with yearly pension at present is to the tune of Rs. 2.25 crores. He has also referred to para 8 of the affidavit-in-reply and submitted that after introducing the Pension Scheme, options have been given five times, i.e., once in the year 1984, two times in 1985, once in the year 1987 and again in the year 1988. Naturally, these options must have been given even to those, who might have retired in the intervening period, i.e., after 1983 and before 1988. Thus, regardless of the fact that those employees, who have retained the P.F, could again opt for pension, if not in the year 1983, in the year 1984 and such employees even if they retired in 1984, they were given two options in 1985, those who had retired in the year 1985 without option for pension were, again given opportunity of option of pension in the year 1987 and similarly in the year 1988. Thus, it is a case in which even after the date on which the Pension Scheme is made applicable, i.e., 1-1-1983, the employees who might have not opted for pension in the first instance, were again offered opportunity to opt for pension and even if they are retired in the meantime, they could give option for pension although they may have retained the P.F. Scheme earlier. On this aspect of the matter, one fails to understand as to how the employees, who had retired proir to 1-1-1983 should be excluded vis-a-vis those retired pensons, who retired after 1-1-1983 with option of P.F. and then again they were given the opportunity to opt for pension. Pleadings in para 9 of the affidavit-in-reply show that from 1984 onwards, five times the advertisements were issued for giving options and lastly such advertisement was issued in the year 1988, the advertisement was issued in the Gazette and also circulated in all the offices of the Corporation so that any one who had not made option could have made it. Reference has been made to the Gazette dated 7-7-1988 Annexure V. This advertisement dated 29-6-1988 published in the Gazette of 7-7-1988 states, inter alia, that those employees, who were working at the relevant point of time and had retired after 1-1-1983 were informed by Notification that subject to the compliance of certain requirements, they could get the benefit. The Notification, inter alia, states that it was the last opportunity to exercise option and, thereafter, no application for joining Pension Scheme would be permitted. It was also pointed out that the Union, which represents the employees, who are retired after 1-1-1983, should look after the welfare of the employees and should take care of the same. The last date for exercising the option was 1-11-1988 and those persons, who opted for Pension Scheme between 1-1-1983 and 1-11-1988 were given the benefit of the option of Pension Scheme. Thus, the employees who retired after 1-1-1983, were given several opportunities to opt for pension even after their retirement and, therefore, it cannot be said that the respondent-Corporation has not made available opportunity of option for pension to any person, who had retired with the P.F. and the opportunity to opt for pension has been given even after the retirement in certain cases particularly those who retired after 1-1-1983.

23. Mr. Tanna took me through the pleadings in detail and all that I find from the pleadings is that the justification has been offered for choosing the date of 1-1-1983 for the purpose of making the Pension Scheme applicable, but except for the averments made in para 7, pointing out the figures of the liability on account of the Pension Scheme in the year 1984 and, thereafter, there is nothing to show that while framing this Pension Scheme and making it applicable to Ahmedabad Municipal Corporation, it addressed itself to those relevant considerations, which have been considered to be of great importance by the Supreme Court in the case of All India Reserve Bank Retired Officers' Association (supra), which have already been enumerated in the earlier part of the judgment and which have been discussed as above.

Dt. 4-8-1995

24. In case of All India Reserve Bank Retired Officers' case Supreme Court has distinguished the case of D.S. Nakara on facts, on the basis that in Nakara's case, the petitioners were the pensioners and it was not a case in which a new Scheme was introduced. Nevertheless the law laid down in D.S. Nakara's case as such holds the field and it cannot be said that had the Regulation, which was impugned in All India Reserve Bank Retired Officers' case had not provided for pensionary benefits to the employees, who had retired within the period of five years prior to the date on which the Pension Scheme was made applicable, the Supreme Court would have still upheld the same or not and it has already been discussed hereinabove that in the case of All India Reserve Bank Retired Officers, the Supreme Court has itself given in detail as to what considerations should prevail with an employer while framing new Scheme in respect of the retired employees who have no vested right and that the employer can restrict the same to certain class of retirees having regard to the humanitarian factors. Mr. Tanna, learned Counsel for the respondent-Corporation, has vehemently argued that in the case of All India Reserve Bank Retired Officers, the Bank itself had provided in the Scheme of Pension that even the retires between 1-1-1986 and 1-11-1990, i.e., the date on which the Pension Scheme was made applicable, would be covered by it and the Supreme Court in the facts of that case found that the provision was not liable to be struck down at the instance of the employees, who had retired even prior to 1st January, 1986. Therefore, according to Mr. Tanna merely because the respondent-Corporation in this case has not given benefit to opt for pension to any employee retired prior to 1-1-1983 does not mean that the Regulation provided for the pension in the instant case is unlawful or bad. So far the Regulation making applicable the Pension Scheme for the employees is concerned, it may not be bad by itself but the question is as to whether the respondent-Corporation is justified in excluding all the retired employees, who retired prior to 1-1-1983 without addressing itself to the relevant considerations which could and should have been taken into consideration. May be that these retired employees were governed by the CPF Scheme and till the date of their retirement, no Pension Scheme was there, their relations also came to an and on their retirement on receipt of CPF amount and the relationship of Master and Servant may have snapped altogether as observed by the Supreme Court in para 10 of the All India Reserve Bank Retired Officers' case, but no agency or instrumentality of a Welfare State is supposed to be totally oblivious of the relevant considerations, which may weigh in favour of the employees retired prior to the date of coming into force of the Pension Scheme in the light of the considerations to which the respondent-Corporation ought to have addressed itself keeping in view the object of the socio-economic justice and the Constitutional goals set up in the Constitution itself. In the case ofD. Section Nakara, rendered by the Constitutional Bench of five Judges, the Supreme Court has even considered the agruments of the financial burden, which is often pleaded. Although in the affidavit-in-reply, which has been filed in this case, it has not been shown that what financial burden the Corporation shall have to carry out in case of granting of pension to the employees, who had retired prior to 1-1-1983 and so far as this aspect of the matter is concerned, affidavit-in-reply is conspicuously silent and no exercise appears to have been done, the fact remains that the payment of pension is recognized as an item of expenditure, which is budgeted and prepared every year and so far the pension is concerned, it is not contributory Scheme but the pension is a liability incurred and care thereof has to be taken while preparing budgets. It is, therefore, not at all discernible from the affidavit-in-reply filed on behalf of the respondent-Corporation nor the learned Counsel appearing for the respondent-Corporation could otherwise show that the respondent-Corporation ever applied its mind to the relevant considerations which are real, vital and germane so as to take care of the employees, who had already retired, as was done in the case of All India Reserve Bank Retired Officers' case and the entire class of the retired employees, who retired with CPF Scheme and at the time of whose retirement, Pension Scheme was not at all there, have been left totally out of focus while preparing the Pension Scheme. Merely because the Pension Scheme, as it has been made applicable from 1-1-1983, does not cover the retired employees, as aforesaid, the Regulation, as applicable to the Pension Scheme, may not be open to be struck down as such, nevertheless the fact remains that the respondent-Corporation cannot be absolved from its duty to evolve an appropriate Scheme so as to afford an opportunity of pensionary benefits to the retired employees like the members of the petitioner-Sangh. These employees had no option but to go home with the CPF because at the time of their retirement, Pension Scheme was not available. It has been submitted that the Pension Rules were there in other Municipalities of this very State. In case of Surat Municipality, Pension Scheme appears to have been there right from 1955. The submission made on behalf of the petitioner-Sangh by the learned Counsel that in certain cases, teachers of the Municipal School Board were granted pension may not be sufficient for the purpose of claiming parity in view of the submissions made by Mr. Tanna that the teachers, who were working in the School Boards, were not the employees of the Municipal Corporation but they were the employees of the concerned Municipal School Board under the Bombay Primary Education Act, 1947, which is a separate entity, but at the same time, I find that the Rules, which were framed in exercise of the powers conferred under Sub-sections (1) and (2) of Section 63 of the Bombay Primary Education Act, 1947 and Bombay Primary Education Rules, 1949, did provide for the Provident Funds, Gratuity and Pension. Rule 193 to Rule 196 and Rule 193(3) have authorised the Municipalities (which on the date when these Rules came into force had established only Pension Funds for its employees or teachers) to establish Provident Fund under Sub-rule (1). Of course, these Rules governed the employees of the Municipal School Boards only and the Corporation has only right of representation in the constitution of the School Boards of sending its own representative by electing from amongst the members of such Corporation and the Corporation only shares burden to the extent of 20% of the grant to such School Boards. It is not understood as to why in the Municipal Corporation of Ahmedabad, introduction of the Pension Scheme did not occur when the Pension Schemes were available in the cases of other Municipalities in the very State as has been referred to by the learned Counsel for the petitioner by making reference to Surat, Nadiad, etc. The retired employees like the members of the petitioner-Sangh had, therefore, no choice but to go ahead with the Provident Fund Scheme and, therefore, their grievance that as and when the Pension Scheme is introduced, care has to be taken of such employees also, even if it is open for the Corporation to restrict the period upto which the availability of the Pension Scheme is restricted. The repondent-Corporation has, thus, failed to discharge such obligation, which is cast upon it by the very foundational principles on which our Constitution rests, when every obligation has a corresponding right. I, therefore, hold that the respondent-Corporation has failed to address itself to those relevant considerations to which it ought to have addressed with regard to making the Pension Scheme available to the retired employees like the members of the petitioner-Sangh and they could not have been ignored altogether and subject to the restrictions of any period prior to the date of the introduction of the Pension Scheme, the respondent-Corporation is supposed to evolve out a proper Pension Scheme for such retired employees.

25. Apart from it, the learned Counsel for the petitioner-Sangh has placed reliance on certain decisions including certain unreported decisions of this Court and she has submitted that on the parity of those decisions, members of the petitioner-Sangh are also entitled to pension. In Gujarat State Retired Professors' Association v. State of Gujarat 1991 (1) GLH 159, certain retirement benefits were granted only to those Professors and members of the Association who has retired after April, 1982 and not to those who had retired prior to the said date, i.e., the date which was specified in the Resolution and this Court found that the classification was arbitrary and irrelevant and discriminatory and those Professors, who retired prior to 1st April, 1982, were held to be entitled to the pensionary benefits relying upon the principles laid down in D. Section Nakara 's case (supra). In unreported decision of the Bombay High Court, i.e., Writ Petition No. 2910 of 1988 decided on 11th January, 1990 between Ajeetrai Gulabrai and Ors. v. Khadi and Village Industries Commission, the Bombay High Court took into consideration a decision of the Punjab and Haryana High Court and the pensionary benefits were made available to the petitioners from 27th September, 1984 were on the same terms as mentioned in the Punjab and Haryana case. In case of Civil Writ Petition No. 95 of 1987 the Bombay High Court considered the grievance made by the petitioners in that case depriving them from the Pension Scheme and declaration was sought that the Khadi and Village Industries Commission Employees (Pension Regulation), 1984 were violative of Article 14 of the Constitution of India inasmuch as the distinction was made between those who retired from service on or after 30th October, 1980 and those who retired prior to 31st October, 1980 for the purpose of entitlement of pension. Thus, all the retired employees of the Khadi and Village Industries Commission were allowed pensionary benefits under the Pension Scheme. The decision of the Punjab and Haryana High Court, on the basis of which the Bombay High Court decided Writ Petition No. 2910 of 1988, as stated above, was challenged upto the Supreme Court and the Supreme Court dismissed the Special Leave Petition (Civil) No. 932 of 1991 on 8th January, 1991, i.e., Union of India v. Bedalkar and Ors. In the case of State of Rajasthan v. Retired CPF Holders' Association Jodhpur i.e., Special Civil Appeal 36 of 1986 decided on 11th March, 1987, the Division Bench rejected the Letters Patent Appeal and the members of the CPF Holders' Association were held to be entitled to the Pension. In this case, it was considered that the State Government itself by issuing Notification had allowed retired employees upto a particular date to opt for pension even after retirement whereas such opportunity of exercise of option had not been afforded to the members of the Retired CPF Holders' Association, Jodhpur after their retirement. After rejection of the Appeal by the Division Bench of the Rajasthan High Court, the Government had preferred Special Leave Petition before the Supreme Court against this judgment and the Supreme Court did not grant leave against this Judgment and the Special Leave Petition was thus, rejected. In Special Civil Application No. 3520 of 1985, Narenbhai Ukabhai Vaghela v. Ahmedabad Muni. Corporation decided on 14th October, 1987, employees of the Ahmedabad Municipal Board, who had retired from service after 1st June, 1971, were aggrieved and they had filed petition claiming benefits of Pensionary Scheme, which had come into force in the year 1986 and this Pension Scheme was available since 1966 and the grievance had been made on behalf of the teachers of the School Board. Since Pension Scheme was already in force since 1966 and it relates to the employees of the School Board and not to the employees of the Corporation, this judgment by itself does not render any assistance for decision of the present controversy.

26. Special Civil Application No. 1556 of 1983 decided on 4th September, 1986 by Gujarat High Court was a case filed on behalf of the widow of one Shri A.N. Patel, who died on 29th September, 1963. It was directed against the Government and, therefore, no parity can be claimed as this case relates to a Government servant and in the case of Special Civil Application No. 3684 of 1983, decided on 26th September, 1984 by this Court, a Writ was issued directing the respondent to cover the petitioners under the Pensionary Scheme and the directions were given accordingly in that case. This case was on behalf of the Municipal Employees Teachers' Union and not of any of the employees of the Municipal Corporation.

27. Apart from the distinctions pointed out by Mr. Tanna, with regard to the principles laid down in the aforesaid cases, Mr. Tanna, learned Counsel for the first respondent, has submitted that these decisions have been rendered prior to the decision of the Supreme Court in All India Reserve Bank Retired Officers' case and accordingly, after the decision in Reserve Bank's case, it cannot be said that such employees have any case for pension when an entirely new Scheme is introduced.

28. On the basis of the consideration of the various authorities, which have been discussed here-in-above, and the provisions to which the reference has been made, it cannot be said that the statutory Corporation functioning as the Agency and Instrumentality of the State may act in an arbitrary and unreasonable manner so as to ignore all the retired employees as a class while introducing new Pensionary Scheme only because they have already retired. All India Reserve Bank Retired Officers' case helps the case of the petitioner-Sangh to the extent that any employer while introducing a new Scheme has to give due regard to the relevant factors and such employer may follow the restrictions of the period, i.e., with reference to the date of retirement and the date on which the Pension Scheme is introduced but it cannot be said that such retired employees are not even entitled to be considered for the purpose of framing and evolving the Scheme of Pension for them and I have no hesitation in holding that such retired employees are also entitled to pensionary benefits on appropriate terms and conditions and it is the obligation of the respondent-Corporation to come out with such appropriate Scheme for pension for such retired employees after addressing itself to the relevant factors and considerations such as those, which have been referred to here-in-above, on the basis of the All India Reserve Bank Retired Officers' case and only, thereafter, depending upon the fact-situation and with due regard to such relevant considerations, they could restrict period upto an appropriate date from the date on which the Pension Scheme was introduced and such failure on the part of the respondent-Corporation had given rise to the legitimate cause of grievance to the members of the petitioner-Sangh. Justice is a virtue which transcendents all barriers. Even the Law has to bend before Justice and the arm of this Court under Article 226 of the Constitution of India is long enough to reach the injustice whenever and wherever it is perpetrating in any form.

29. The upshot of the discussion of various aspects of the case at hand is that this petition is partly allowed. While the validity of the Regulation with regard to the Pension Scheme, as has been framed by the respondent-Corporation, does not call for any interference, the respondent-Corporation deserves to be directed to evolve out an appropriate Pension Scheme for the retired employees, who had retired from the service of the Corporation prior to 1-1-1983 keeping in view the observations, which have been made in this judgment, and after addressing itself to the important factors such as:

(1) The fact-situation existing at the time when the Pension Scheme was introduced.

(2) Financial liability and the capacity of the respondent-Corporation.

(3) Feasibility of extending the pensionary benefits to those who had retired prior to 1-1-1983.

(4) Availability of the records of such retirees.

(5) The fact that the respondent-Corporation itself had allowed option not only once but five times even to those who had retired after 1-1-1983 although such employees could opt for pension before their retirement but failed to do so at that time.

(6) Whether the Pension Scheme were available in the other Municipalities of the State of Gujarat.

It will of course be open for the respondent-Corporation to choose the period on the basis of the consideration of the aforesaid relevant factors and to decide as to for what number of years and upto which date, the pension benefits are to be extended in case of the employees, who had retired prior to 1-1-1983.

30. The respondents are accordingly directed to evolve, prepare and finalise the Pension Scheme in accordance with law, for the persons belonging to the categories of the employees, who had retired prior to 1-1-1983, as aforesaid, subject to the restriction of such period as they may consider appropriate, at the earliest possible opportunity but in no case later than the period of three months from the date the certified copy of this order may be directly served. After finalisation of this Pension Scheme, all such employees, who are retirees prior to 1-1-1983 and who are found to be covered by such Pension Scheme, may be called upon to exercise their option for pension within a period of one month thereafter and their pension cases may then be processed, finalised and pension be paid to them accordingly.

Rule is made absolute in the terms as aforesaid. No order as to costs.