Gaur & Anr Vs. Delhi Transport Corporation & Ors  INSC 361 (30 November 1988)
G.L. (J) Oza, G.L. (J) Shetty, K.J. (J)
1989 AIR 374 1988 SCR Supl. (3)1003 1989 SCC (1) 240 JT 1988 (4) 552 1988 SCALE
Services: Delhi Transport Corporation--I employees of erstwhile Gwalior and
Northern Indian Transport Corporation--Protected employees under the Agreement
of Take-over--Right to continue in service up to 60 years.
The Gwalior and Northern India Transport
Company (GNIT Company) was operating transport services in and around Delhi. It was taken over on May 14, 1948 by the Government of India,
Ministry of Transport and named as Delhi Transport Service. The services of all
employees of the (IT company were taken over by the Government of India, but
they continued to be governed by the rules in force before the take-over.
Subsequently it was taken over by the Delhi Municipal Corporation and later on
by the Delhi Transport Undertaking and came to be known as Delhi Transport
employees of GNIT Company employed before 28.10.46 and were in continuous
service at the time it was taken over by the Government of India were treated
as protected employees as per clause 7 of the take-over agreement. Prior to the
take-over they were governed by the Gwalior State Civil Service Rules which
stipulate the age of retirement at 60.
Option however was there for the employee to seek voluntary retirement at 55
years and for the Government to compulsorily retire an employee at 55. The
Delhi Transport Corporation retired the petitioners on the ground that they
attained the age of superannuation at 58 years. It was challenged in a writ
petition before the Delhi High Court and the petitioners contended that option
was there both for the Corporation as also the employees to retire at 55, but
superannuation could be only on reaching 60, and not at 58 as claimed by the
Corporation. The Delhi High Court rejected the petition. Against this, the
petitioners have come to this Court by way of a special leave petition. A writ
petition has also been filed claiming the same relief.
the special leave petition as also the writ petition, this Court, PG NO 1003 PG
The persons who were originally in the employment of GNIT Company and were
employed prior to October 28, l946 and continued in service till May 14, l948
and onwards will have the right to remain in service upto 60 years unless the
option to retire was exercised by the person or the Corporation at 55 years.
The argument that the age of 55 years at which an employee could be asked to
retire has been raised by the Corporation to 58 years and if an employee has
been retired at 58, it was not prejudicial to him since he could have been
retired in his erstwhile Company only at 55, has little merit in it. If the
Delhi Transport Corporation had exercised its right to retire the petitioners
on attaining the age of 58 years, the argument would have been tenable. But
that was not done by the Corporation. The Corporation retired the petitioners
on the ground that they attained the age of superannuation at 58 years. That
meant the Corporation was under the wrong impression that the petitioners had
no right to continue beyond the age of 58 years. [1008C-D; 1007E-G; 1008C]
JURISDICTION: Writ Petition (Civil) No. 1244 of 1986.
Article 32 of the Constitution of India).
(Civil) No. 8948 of 1986.
the Judgment and Order dated 1().4. i986 of the Delhi High Court in C.W.P. No. 795
Sharma for the Petitioners.
Mehta and G.K. Bansal for the Respondents.
Judgment of the Court was delivered by OZA, J. This special leave petition is
filed against the judgment of the Delhi High Court rejecting a petition filed
by the petitioners. A separate writ petition for the same relief is also filed
in this Court. The two matters raise a simple question about the age of
retirement of the employees in the Delhi Transport Corporation, who were
originally employed in the erstwhile Gwalior and Northern India Transport Company ('GNIT Company' for short) in 1946
or before that.
1005 It is not in dispute that before 1948 these petitioners were employed in
the GNIT Company which was a company owned by the Rulers of Gwalior in the
erstwhile native State of Gwalior. The said company was operating the transport
services in Delhi and areas around upto 13th May, 1948. On 14th May, 1948 the transport services in Delhi were taken over by the Government of India, the Ministry of
Transport and it was named as "Delhi Transport Service". The services
of all the employees of the erstwhile GNIT company were taken over by the
Government of India but they were continued to be governed by the rules which
were in force before taking over. Subsequently it was taken over by the Delhi
Municipal Corporation. Later on by the Delhi Transport Undertaking which came
to be termed as Delhi Transport Corporation".
7 of the agreement by which the GNIT services in Delhi were taken over by the
Government of India provided that the services of the employees who were
employed prior to 28th October, 1946 and were in continuous service till i4th
May, 1948 shall not be taken over on the terms not less liberal than those they
were governed and therefore the employees who were in employment prior to 28th
October, 1946 were treated as protected employees.
facts are not in dispute. According to the petitioners, before they were taken
over, the service conditions of the employees of GNIT Company were governed by
the Gwalior State Civil Service Rules. But the respondent denied that and said
that they were governed by the Madhya Bharat Civil Service Rules. Admittedly,
Madhya Bharat came into existence in 1948 only. Before that there was no State
of Madhya Bharat. Repeatedly opportunity was given
to the respondent counsel to find out as to what rules were applicable to the
employees of the GNIT company before Madhya Bharat was formed. Ultimately they
pleaded their inability to place any rule. So far as Gwalior State Civil
Service Rules are concerned, a copy of it in Hindi has been filed by the
petitioners with the English translation thereof. It is not disputed that these
were the rules governing the civil servants in the Gwalior State. It is also not disputed that GNIT Company was originally a
Company incorporated in India where it was owned by the rules of
the erstwhile Gwalior State. According to petitioners Civil Service Rules of Gwalior
were made applicable to these people. In addition to what has been stated in
the petition and which has not been controverted, they have also filed a
judgment of the Industrial Court in Madhya Pradesh where this question about
the conditions of service about retirement came into dispute after the
formation of PG NO 1006 Madhya Bharat and the part of GNIT Company which was
operating in the territories of the erstwhile State of Madhya Bharat was taken
over by the State of Madhya Bharat Road Transport Corporation. There too, a
similar agreement was reached and the question arose as to whether the persons
who were in employment before the taking over, were governed by the Rules of
the Gwalior State Civil servants. It was held that those were the rules and in
those rules the normal age of retirement was 60 years.
view of these circumstances it appears beyond doubt that these people who were
employed in the GNIT Company before taking over in Delhi by the Government of India were
governed by the Gwalior State Civil Service Rules. The Gwalior Civil Service Rules provided:
l-A 7(a)(1) Every employee has a right to seek retirement from service after
attaining the age of 55 years.
The Government also has authority not to allow any employee to continue in
employment after attaining the age of 55 years and order his retirement.
case an employee does not seek retirement from service after attaining the age
of 55 years of the government also does not order his retirement form service,
than he shall continue in service till he attains the age of 60 years.
Every employee shall compulsory retire after attaining the age of 60 years
provided his services are not ordered to be terminated earlier.
employee who retires under these rules shall be entitled for pension or
Gratuity to which he is entitled according to the rules.
(1): These Rules will not apply to the Police Personnels.
(2): The concerned Departments shall initiate retirement proceeding against
those employees who have PG NO 1007 attained the age of 60 years at the time of
enforcement of the rules but immediate action shall be taken for release of
Pension or Gratuity in case of those who have become entitled for Gratuity or
Pension and till pension or gratuity is not sanctioned they shall not be
retired. In future this procedure shall be followed that action for pension or
Gratuity shall be initiated one year in advance to which he is entitled at the
age of 60 years in case of an employee who retire at the age of 60 years so
that there shall be no delay in retiring him after attaining the age of 60
years." The above rules it indicates clearly an employee who does not seek
retirement from service after attaining the age of 55 years or if the
Government does not order his retirement at that age, shall continue in service
till he attains the age of 60 years. It is also indicated with unmistakably
terms that every employee shall compulsorily retire after attaining the age of
60 years provided his services are not ordered to be terminated earlier. In
other words the age of retirement was 60 years. Option however was there for
the employee to seek voluntary retirement at 55 years and for the Government to
compulsorily retire him at 55.
for the respondent does not dispute the above provisions. He, however, argued
that the age of 55 years at which an employee could be asked to retire has been
retired by the corporation from 55 to 58 and if an employee has been retired at
58 it was not prejudicial to him since he could have been retired at in his
erstwhile. company only at 55.
attention was invited to Service Regulation of the Corporation providing for
these matters. The argument is attractive but on a deeper consideration we find
little merit in it. If the Delhi Transport Corporation had exercised its right
to retire the petitioners on attaining the age of 58 years, the argument would
have been tenable.
that was not done by the Corporation. The Corporation retired the petitioners
on the ground that they attained the age of superannuation at 58 years. It is
so stated by the notice (Annex. E) dated January 2, 1986 issued by the Deputy Personnel
Officer-I to Hari Shankar Gaur-petitioner in W.P. No. ]244/86. The notice
TRANSPORT CORPORATION A GOVERNMENT OF INDIA UNDERTAKING l.P. ESTATE: NEW DELHl
No. PLD-IX(PF)/85/128 Dt. 2.1.1986 PG NO 1008 Shri Hari Shankar Gaur s/o Shri
M.L. Gaur, Office Supdt. will attain the age of superannuation i.e. 58 years on
31.1.1986. He shall, therefore, retire from the service of this Corporation
with effect from 31.1.1986 in accordance with clause l0 of the D.R.T. Act
(Conditions of AppointMent & Service) Regulations, 1952 read with office
order No. PLD/2479 dated 7.3.1974. He may avail earned leave due to him prior
to 31.1. 1986, if he so desires." We are told similar notices were issued
to other employees as well. l hat means the Corporation was under the
impression that the petitioners have no right to continue beyond the age of 58
are, therefore, of the opinion that the persons who originally were in the
employment of GNIT and were employed prior to October 28, 1946 and who
continued in service till May 14, 1948 and onwards will have the right to
remain in service up to 60 years unless the option to retire was exercised by
the person or by the Corporation at 55 years.
result the writ petition and the SLP are allowed to the extent indicated above.
order as to costs.