TMI Blog2002 (12) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1970 (hereinafter referred to as '1970 Act'). The banks were said to be over-staffed. For the purpose of effective management , man power planning was contemplated by the Ministry of Finance, Government of India, pursuant whereto and in furtherance whereof, the Government considered the desirability of introducing voluntary retirement scheme to help the banks to right-size their force. In a letter dated 22.5.200, the Director (IR BOII), Ministry of Finance, intimated to the concerned banks that different committees and experts opined that most of the banks have 25% surplus manpower. It was observed : While there is a need for inducting new workforce, which had adequate knowledge of new skills such as modern technology, foreign exchange, venture capital, e-commerce, money management, etc. it is also essential to rationalize the existing manpower. In doing so, it has to be ensured that there should be adequate opportunities for promotions for all and proper balance between promoted and direct recruit officers at entry level. Sufficient promotional opportunities should be created for the entrants in non-executive grades by creating graded scales within the cadre an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as Employees Voluntary Retirement Scheme . We may, however, observe that the scheme adopted by the State Bank of India (hereinafter referred to 'SBIVRS') in certain respects differ from the scheme of the Nationalised Banks (hereinafter referred to the 'said scheme'). For our purpose, we would consider them separately. The said scheme was applicable in relation to employees who on the date of application had completed 15 years of service or 40 years of age. The employees specified therein including specialised officers were not eligible to seek voluntary retirement. However, in certain scheme they were ordinarily ineligible for being considered. The period during which the said scheme was to remain operative varies from bank to bank. However, as far as Punjab National Bank was concerned, the said scheme was to remain in operation from 1.11.2000 to 30.11.2000. In terms of the said scheme those who sought for voluntary retirement were entitled to ex-gratia payments as specified therein as also other benefits which are as follows :- AMOUNT OF EX-GRATIA An employee seeking voluntary retirement under the scheme will be entitled to the ex-gratia amount mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the bank or any of its subsidiaries. 10.13. The benefits payable under this scheme shall be in full and final settlement of all claims of whatsoever nature, whether arising under the scheme or otherwise to the employee (or to his nominee in case of death). An employee who voluntarily retired under this scheme will not have any claim against the bank of whatsoever nature and no demand or dispute or difference will be raised by him or on his behalf, whether for re-employment or compensation or back wages including employment of any of his relative on compassionate grounds in the service of the bank or for any other benefit whatsoever. 10.14. The vacancy caused by voluntary retirement shall not be filled up by new recruitment. 10.15. The ex-gratia payable to an employee on opting for Voluntary Retirement under this scheme would be paid to him within 45 days from the date of his relieving. PROCEDURE An employee eligible to seek voluntary retirement under this scheme should make a request on the prescribed application enclosed with this scheme as Annexure-A or Annexure A-1 as the case may be through proper channel addressed to the Competent Authority before the last d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it applications were also filed by some employees seeking for issuance of writ of mandamus directing the respective banks to pay unto them their lawful dues strictly in terms of the scheme. The Punjab Haryana High Court by reason of its judgment impugned herein dated 3.4.2002, inter alia, held :- That the V.R. Scheme as framed is not a valid piece of subordinate legislation inasmuch as the provision of Section 19 sub clause (1) and sub clause (4) of the Act have not been complied with and has, therefore, to be set aside. Even if it is assumed for the sake of arguments that the scheme is validly framed, it would be open to an employee to withdraw his option before the same has been accepted and effectively enforced. For the reasons recorded above, we allow 71 writ petitions i.e C.W.P. Nos.1458, 1472 of 2001 and C.W.P Nos. 303 and 1765 of 2002 etc. etc. in which the petitioners have made a prayer for the withdrawal of their options and the impugned orders accepting the options of voluntary retirement stand quashed. All these petitioners shall be reinstated in service with all consequential benefits. It is however, made clear that those petitioners who have received the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that having regard to the purport and object sought to be achieved by the scheme, clause 10.5 of the General Conditions cannot be said to be illegal as by submitting themselves thereto, the concerned employees must be held to have resigned in prasenti and in that view of the matter the contractual bar contained therein cannot be held to be bad in law. The learned Attorney General would urge that the High Court proceeded on a wrong premise insofar as it failed to take into consideration that the scheme would amount to a regulation which would attract the provision of Section 19 of 1970 Act. It was submitted that power to fix the terms and conditions of service of their employees by the Banks is provided for under Section 7 of the said Act. The learned counsel would contend that it is not the case of the writ petitioner-respondents that the aforementioned clause 10.5 is arbitrary or otherwise opposed to public policy or suffers from lack of mutuality and, thus, the High Court must be held to have arrived at a wrong conclusion. Such a clause being an offer, the learned Attorney General would contend, is not violative of any provisions of the Indian Contract Act, 1872 or the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and enjoy a status. According to the learned counsel, having regard to the provisions of the 1970 Act, the terms and conditions of services of the employees of the Nationalised Banks are governed by contract. Mr. Reddy would urge that the purpose of the scheme being down sizing of the employees, the same was required to be considered having regard to the age profile, skill profile, the extent of the response received from the employees and several other relevant factors. In the aforementioned situation, the learned counsel would submit that clause 10.5 was inserted so that in the event, those who had opted for the scheme resile therefrom, the banks may not face practical difficulties. The requirement of the bank, the learned counsel would submit, must prevail over the requirement of the individual employees. As regards the validity of clause 10.5, the learned counsel would submit that the same was at the threshold stage leading to a major contract. Strong reliance, in this connection, has been placed Anson's Law of Contract, 28th Edition, paras 235 and Chitty on Contracts, 28th Edition (1999) pages 3 -160 and 3-161 and Halsbury's Laws of England, 4th Edition, Volume 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last and final figure of number of persons who had opted under the VRS. iv) The scheme was purely voluntary and the conscious decision of the employee, hence there could be no reason for his withdrawal of application at a later date. However, keeping in view the interest of the employee, it was decided that the employee might be permitted to withdraw the application on or before 15.2.2001. v) It was a time bound scheme whereunder the employee was to be relieved and paid entire monetary benefits by 31.3.2001, for which arrangements were to be made. It has been pointed out that around 35,380 employees had applied under the said scheme and around 1,996 employees had withdrawn before the cut off date. Around 21,000 employees had been granted voluntary retirement under the scheme, excluding the ineligible. It was contended that the scheme if read in its entirety would clearly show that the same was an offer and not an invitation to offer and in terms thereof an enforceable rights and duties had been conferred upon both employer and employee which would, subject to certain exception, be enforceable. It was contended that as the concerned employee did not exercise his opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n acceptance of the offer. It was pointed out that the offer is required to be considered at the level of the Branch Manager and Zonal Manager and upon their recommendation the same was ultimately to be taken up by the Personnel Department will clearly go to show that irrevocable nature of option would be relevant only if the same culminates into an acceptance. The learned counsel would submit that mere declaration given by an offerer that he would not withdraw or cancel the offer would not destroy his locus. Strongly relying upon the decisions of this Court in J.N. Srivastava v. Union of India Anr. [(1998) 9 SCC 559], Gopal Chandra Misra (supra), Parthasarathy (supra), Shambhu Murari Sinha (supra), Balram Gupta (supra), the learned counsel would submit that even after acceptance, the offer could be withdrawn, such an action on the part of the optioner is permissible even after the acceptance of the offer and in that view of the matter the application of contractual bar must be held to be applicable only in a case where offerer has been relieved from his part not prior thereto. The decisions of this Court, Mr. Suramanium would submit, lay down the following principles : (1) Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988 Delhi 224], A.S. Khongphai v. Special Judicial Officer [AIR 1981 Gau, 9], it was argued that in absence of any statute or statutory rules governing the field, Section 5 of the Indian Contract Act would be attracted and in that view of the matter clause 10.5 is neudum pactum and thus being a nullity is not enforceable. According to the learned counsel, the terms and conditions of service of employees being governed by a statute or statutory regulations, they enjoy a status. It was urged that as such voluntary retirement scheme affects the status of an employee, a contractual bar cannot be imposed. Reliance, in this connection, has been placed on Delhi Transport Corporation v. D.T.C. Mazdoor Congress Ors. [(1991) Supp.(1) SCC 600]. In a case, Mr. Dwivedi would urge when the employee has voluntarily withdrawn the offer, the doctrine of election will have no application as by reason thereof the employee has not received the benefit in one part of the contract and then questioned the rest thereof. Mr. Jagdeep Dhankar would, inter alia, submit that in some cases the letters of withdrawal reached before the option. In any event, as the orders had been passed in many cases on 8.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om vice of non-application of kind inasmuch as in a case of this nature, the concerned authority should have passed a speaking order. The learned counsel appearing in SLP (C) CC No.7966 would submit that the Punjab Haryana High Court had rejected ten writ petitions filed by the petitioners, inter alia, on the ground that as the scheme is ultra vires, no relief can be granted in their favour. The learned counsel contended, that as the scheme is contractual in nature, the benefits which were otherwise available to them in terms of the scheme could not have been curtailed. Before we advert to the rival contentions, we may take note of the relevant provisions of 1970 Act. Sections 7(2), 19(1), 19(2)(f) and 19(4) of 1970 Act read as follows :- 7(2) The general superintendence, direction and management of the affairs and business of a corresponding new bank shall vest in a Board of Directors which shall be entitled to exercise all such powers and do all such acts and things as the corresponding new bank is authorised to exercise and do. 19. Power to make regulations. - (1) The Board of Directors of a corresponding new bank may, after consultation with the Reserve Bank an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service; 2) Provided that this sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year; 3) Provided further that this sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement; Provided that this sub-regulation shall not apply to an employee who is deemed to have retired in accordance with clause (1) of regulation 2. 4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority; It is not in dispute that on or about 23.12.2000 a proviso to Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of service of six months and above will be taken as one year and accordingly service of less than six months will not be counted) or salary for the number of months service is left, whichever is less. Fraction of a month, if any, will be ignored. 6. Other benefits : a) Gratuity as payable under the extent instructions on the relevant date. b) Provident Fund contribution as per State Bank of India Employees' Provident Fund Rules as on relevant date. Pension in terms of State Bank of India Employees' Pension Fund Rules on the relevant date (including commuted value of pension). c) Encashment of balance of Privilege Leave, as applicable, on the relevant date. d) Respective facilities extended to officers/others such as retention of accommodation, telephone, car, continuation of housing loan etc. will be extended to officers/others retiring under SBIVRS as per present dispensation, at the discretion of Competent Authority. However, in such cases of retention of physical facilities, 50% of the amount of ex-gratia payable will be released only after the employee surrenders the facility. No interest, however, will be paid for the amount so withheld. All other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VRS is voluntary in nature, the employee seeking retirement under the SBIVRS will not be eligible for any retrenchment compensation payable under the provisions of the Industrial Disputes Act. vi. SBIVRS is independent of and without prejudice to the rights of the Bank to dispense with the services of an employee either under the contract of employment, service rules, awards or under the applicable Standing Orders/Law/Rules/terms and conditions of service as may be applicable to the employee concerned. vii. The SBIVRS shall not be construed as a revision of any of the previous retirement schemes of the Bank and as such no claim from the employee who has retired/will be retiring under the existing schemes shall be entertained. viii. In case of disputes as to the interpretation of any of the terms and conditions of the scheme, the decision of the Bank shall be final and binding on all the parties concerned. ix. Bank reserves the right to modify, amend or cancel any or all of the aforesaid clauses and to give effect thereto from any dates it may deem fit. Pursuant to in furtherance of the powers conferred under Section 50(3), the Reserve Bank of India with the previous san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service are governed by the constitutional provisions and/or the statutes and the statutory rules; but there is no gainsaying that the employees of the Nationalized banks enjoy security of their employment. So far as the employees of the State Bank of India are concerned their terms and conditions of service, as noticed hereinbefore, are governed by statutory rules. However, so far as the employees of the nationalized banks are concerned except for the matter of grant of pension which is covered by the regulations framed in terms of Section 19 of the 1970 Act, other terms and conditions of their service are not statutory in nature. But the State Bank of India as also the nationalized banks are 'States' within the meaning of Article 12 of the Constitution of India. The services of the workman are also governed by several standing orders and bipartite settlements which have the force of law. The banks, therefore, cannot take recourse to 'hire fire' for the purpose of terminating the services of the employees. The banks are required to act fairly and strictly in terms of the norms laid down therefor. Their actions in this behalf must satisfy the test of Articles 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and do business. An invitation of this nature, if it is not intended to be binding, is known as an 'invitation to treat. Chitty on Contract states the law thus: Tenders A statement that goods are to be sold by tender is not normally an offer to sell to the person making the highest tender; it merely indicates a readiness to receive offers. Similarly, an invitation for tenders for the supply of goods or for the execution of works is, generally, not an offer, even though the preparation of the tender may involve very considerable expense. The offer comes from the person who submits the tender and there is no contract until the person asking for the tenders accepts one of them. These rules, may, however, be excluded by evidence of contrary intention: e.g. where the person who invites the tenders states in the invitation that he binds himself to accept the highest offer to buy (or as the case may be, the lowest offer to sell or to provide the specified services). In such cases, the invitation for tenders may be regarded either as itself an offer or as an invitation to submit offers coupled with an undertaking to accept the highest (or, as the case may be, the lowest) offer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s Laws of England, 4th Edition, Volume-9, meaning of 'offer' has been stated in paragraph 227 at page 98 in the following terms: 227; Meaning of offer. An offer is an expression by one person or group of persons or by agents on his behalf, made to another, of his willingness to be bound to a contract with that other on terms either certain or capable of being rendered contain. An offer may be made to an individual or to a group of persons or to the world at large. It may be made expressly by words, or it may be implied from the product of the offerer. The request of employees seeking voluntary retirement was not to take effect until and unless it was accepted in writing by the competent authority. The Competent Authority had the absolute discretion whether to accept or reject the request of the employee seeking voluntary retirement under the scheme. A procedure has been laid down for considering the provisions of the said scheme to the effect that an employee who intends to seek voluntary retirement would submit duly completed application in duplicate in the prescribed form marked offer to seek voluntary retirement and the application so received would be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme admittedly being contractual in nature, the provisions of the Act shall apply. The Scheme having regard to its provisions as noticed hereinbefore would merely constitute invitation to treat and not an offer. A proposal is made when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of the other to such act or abstinence (See Section 2(a)). Herein the banks by reason of the scheme or otherwise have not expressed their willingness to do or abstain from doing anything with a view to obtaining assent of the employees to such act. It will bear repetition to state that not only the power of the bank to accept or reject such application is absolutely discretionary, it, as noticed herein before, could also amend or rescind the scheme. The Scheme, therefore, cannot be said to be an offer which, on the acceptance by the employee, would fructify in a concluded contract. The proposal of the employee when accepted by the Bank would constitute a promise within the meaning of Section 2(b) of the Act. Only then the promise becomes an enforceable contract. In the instant case the banks when floating the scheme did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or statute or statutory rules to the contrary would come into play. In Cheshire, Fifoot Furmston's Law of Contract (14th edition) at Page 62 the law is stated as under:- It has been established ever since the case of Payne v Cave in 1789 that recovation is possible and effective at any time before acceptance: up to this moment ex hypothesi no legal obligation exists. Nor, as the law stands, is it relevant that the offeror has declared himself ready to keep the offer open for a given period. Such an intimation is but part and parcel of the original offer, which must stand or fall as a whole. The offeror may, of course, bind himself, by a separate and specific contract, to keep the offer opn; but the offeree, if such is his allegation, must provide all the elements of a valid contract, including assent and consideration. In Routledge v Grant the defendant offered on 18 March to buy the plaintiff's house for a certain sum, 'a definite answer to be given within six weeks from the date'. Best CJ held that the defendant could withdraw at any moment before acceptance, even though the time limit had not expired. The plaintiff could only have held the defendant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of offeree either expressly or impliedly had not promised to do or refrain from doing something in exchange for the offeror's promise not to revoke the offer. In all fairness to Mr. Reddy, we may set out hereunder the authorities relied upon by him. In Anson's Law of Contract (28th edition page 53), it is stated: Firm Offers: It will be noted that in Offord v. Davies, discussed above, the mere fact that the defendants promised to guarantee payment for 12 months did not preclude that from revoking before that period had elapsed. It is a rule of English law that a promise to keep an offer open needs consideration to make it binding and would thus only become so if the offeror gets some benefit, or the offeree incurs some detriment, in respect of the promise to keep the offer open. The offeree in such a case is said to 'purchase an option'; that is, the offeror, in consideration usually of a money payment, sometimes nominal, makes a separate contract not to revoke the offer during a stated period. The position is similar where the offeree expressly or impliedly promises to do or refrain from doing something in exchange for the offeror's promise not to revo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed him from simply deciding not to sell at all; but the practical effect of a binding lock-out agreement may be to prevent the vendor from withdrawing his offer; and the reasoning quoted above could apply to the case of a firm offer. The reasoning gives rise to some difficulty in that it does not appear that the purchaser made any promise to exchange contracts within two weeks. It seems more plausible to say that the vendor's promise had become binding as a unilateral contract under which the purchaser had provided consideration by actually making efforts to meet the deadline, even though he had not promised to do so. Similar reasoning can apply if a seller of land promises to keep an offer open for a month, asking the buyer during that period to make efforts to raise the necessary money. If the buyer makes such efforts (without promising to do so), it is arguable that he has by part performance accepted the seller's offer of a unilateral contract to keep the principal offer open. Similarly, it is possible for a person, to whom a promise not to revoke an offer for the sale of a house has been made, to provide consideration for that promise by incurring the expense of a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to certain conditions precedent, such as a time limit, or the occurrence of a certain event, or the duration of a major contract of which it forms a part, or the mode in which it may be exercised. In Chitty on Contract (28th edition para 3-161) it is stated that the position being uncertain as the rule can still cause hardship; a legislation limiting the right to withdraw firm offers is desirable. In Anson's Law of Contracts it is stated at page 51: (a) Revocation of the Offer: The law relating to the revocation of an offer may be summed up in two rules; (1) an offer may be revoked at any time before acceptance, and (2) an offer is made irrevocable by acceptance. (i) Revocable before acceptance: The first of these rules may be illustrated by the case of Offord v. Davies: D made a written offer to O that, if he would discount bills for another firm, they (D) would guarantee the payment of such bills to the extent of Pound 600 during a period of twelve calendar months. Some bills were discounted by O, and duly paid, but before the twelve months had expired D, the guarantors, revoked their offer and notified O that they would guarantee no more bills. O cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, do not find any error in the judgment of the High Court on this score. However, the case of the State Bank of India stand slightly on a different footing. Firstly, the State Bank of India had not amended the scheme. It, as noticed here before, even permitted withdrawal of the applications after 15th February. The scheme floated by the State Bank of India contained a clause (clause 7) laying down the mode and manner in which the application for voluntary retirement shall be considered. The relevant clause as referred to herein before creates an enforceable right. In the event the State Bank failed to adhere to its preferred policy, the same could have been specifically enforced by a court of law. The same would, therefore, amount to some consideration. Furthermore in the case of State Bank of India, the Punjab and Haryana High Court failed to take into consideration the provisions of the State Bank of India Act, 1955 It further failed to take into consideration that the matter relating to grant of pension was not covered by any statutory regulation. We are, however, not prepared to accept the submission of Mr. Salve to the effect that by reason of the said scheme, me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute a juristic act. We may notice that in Jai Ram v. Union of India (AIR 1954 SC 584) it was held: It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer, to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but, he can be allowed to do so as long as he continues in service and not after it has terminated. Yet again in Raj Kumar v. Union of India [(1968) 3 SCR 857] it was held: When a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter . In Balram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further observed: In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case . In P.K. Mittal's case (supra), a question arose as to whether in contravention of Rule 20 of the Punjab National Bank (Officers) Service Rules, 1979, the bank can reduce the notice period. Ranganathan, J. speaking for the bench held that the same could not have been done and the concerned employee was entitled to withdraw his resignation before it became effective. In Power Finance Corporation Ltd. v. Pramod Kumar Bhatia [(1997) 4 SCC 280] a scheme of voluntary retirement was floated and pursuant thereto the Respondents therein had applied for voluntary retirement but subsequently the Corporation had withdrawn the scheme although the offer had been accepted. Such acceptance was to take effect from 31-12-1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that having regard to the offer made on 19-2-1986, the subsequent action taken by the Department on 20th February, 1986 had no effect. In this Court an argument was advanced that having regard to the policy decision to which the Respondent was aware and having given a certificate at the time of submission of application for premature retirement that he was aware of the fact that his request for withdrawal or cancellation subsequently would not be accepted, the impugned judgment of the High Court was erroneous but rejecting the same this court held : We have carefully considered the submissions of the learned counsel appearing on either side. The reliance placed for the appellants on the decision reported in Raj Kumar Case is in appropriate to the facts of this case. In that case this Court merely emphasized the position that when a public servant has invited by his letter of resignation determination of his employment his service clearly stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the condition of the service to the contrary, it will not be open to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nti but the same would be prospective in nature keeping in view of the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to herein before, shall apply to the facts of the present case also. However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the scheme, in our considered opinion, could not have resiled therefrom. The Scheme is contractual in nature. The contractual right derived by the concerned employees, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand. In Lachoo Mal's case (supra) the law is stated in following terms: The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of waiver. In Halsbury's Laws of England, 4th Edition, Vol.16 (Reissue) para 957 at page 844 it is stated: On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The principle that a person may not approbate and reprobate express two propositions: (1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile. (2) That he will be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent. In American Jurisprudence, 2nd Edition, Volume 28, 1966, Page 677-680 it is stated: Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealm of contract. That being so it was not necessary for the Central Government to place the same before the Parliament. Secondly, even if the same was a regulation, the laying down rule is merely a directory one and not mandatory. In Jan Mohammad's case (supra), the law is stated in following terms: Finally, the validity of the rules framed under the Bombay Act 22 of the 1939 was canvassed. By s.26(1) of the Bombay Act the State Government was authorised to make rules for the purpose of carrying out the provisions of the Act. It was provided by sub- s. (5) that the rules made under s.26 shall be laid before each of the Houses of the Provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the Official Gazette, be deemed to have been modified or rescinded accordingly. It was argued by the petitioner that the rules framed under the Bombay Act, 22 of 1939 were not placed before the Legislative Assembly or the Legislative Council at the first session and therefore they had no legal validity. The rules under Act 22 of 1939 were framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in accordance with law. The said matters are, therefore, remitted to the High Court for consideration thereof afresh. For the reasons aforementioned, we direct that : 1. The appeals preferred by the Nationalised Banks arising from the High Courts are dismissed except the cases where the concerned employees have accepted a part of the benefit under the scheme; However, in respect of such of the employees who despite acceptance of a part of the retirement benefit under the scheme had continued under the orders of the High Court and has retired on attaining the age of superannuation, this order shall not apply; 2. The appeals filed by the State Bank of India are allowed; 3. The appeals arising from the judgments of the Uttaranchal High Court are allowed and the judgments of the said High Court are set aside; 4. The appeals arising from the judgments of the Punjab and Haryana High Court in relation to ten writ petitions which were filed by the employees for a direction upon the Bank that the benefits under the scheme be paid to them are set aside and the matters are remitted to the High Court for consideration thereof afresh on merits and in accordance with law; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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