J&K
State Road Transport Corporation, Jammu & Anr Vs. Om Parkash & Ors [1998] INSC 395 (6 August 1998)
Sujata
V. Manohar, S. Rajendra Babu Rajendra Babu, J.
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NOS. 1976-1681 OF 1991
The
respondents in each of these cases were employees of the appellant No.1 having
joined the services of the Jammu & Kashmir Government Transport which was
later on designated as the Government Transport. Undertaking and subsequently,
the said Undertaking was converted into the Road Transport Corporation
(hereinafter referred to as "the Corporation") in terms of Section 3
of the Road Transport Corporation Act (hereinafter referred to as "the
Act") and the employees of the Transport Undertaking are stated to have
been absorbed in the said Corporation though they were treated to be on
deputation with effect from 1.9.1976 in terms of Section 45 of the Act. The
State Government by an order made on 27.3.1979 called upon the employees in the
Undertaking who are now serving the Corporation to convey their option
regarding their services making it clear that the permanent Government
servants, quasi-Government servants with 5 years or more such service as on the
date of the formation of the Corporation have the option to either retain the pensionary
benefits available to them under the Government Rules or to be governed by the
Rules of the Road Transport Corporation insofar as it related to the benefits
consequent upon retirement. In case they exercise the former option, they would
be entitled to receive that pension under the Pension Rules as may be in force
in the Government at the time of their retirement from the Corporation. it was
further clarified on 29.3.1979 that such of the employees who do not exercise
the option as stipulated in the order referred to just now, shall be deemed to
have opted for service in the Road Transport Corporation and for retirement
benefits the rules of the Road Transport Corporation would be applicable.
The
age of retirement was 55 years as provided under the relevant rules either in
the Government Civil Service or the rules of the Corporation. Subsequently, the
Government amended the rules by a Notification made on 25.1.1987 providing that
an employee in service on 1.1.1987 or appointed on or after that date shall
retire on attaining the age of 58 years. The J&K Civil Service Regulations
were amended by inserting a proviso in between two existing provisos below
Article 124 (1) and in J&K Work Charged Employees Service Rules 1972 by
providing a proviso below first paragraph of rule 10. The Corporation also
wanted to raise the age of retirement to 58 years and the Government accorded
sanction to the same by an order made on 13th October, 1987 in the following
terms:- "8. Raising of the retirement age of the employees of the J&K State
Public Sector Undertakings to 58 years with prospective effect subject to the
condition that all these employees shall be screened on attaining the age of 55
years and only those of them shall be allowed to continue in service beyond 55
years as will stand the tests of physically fitness and proficiency." The respondents,
however were ordered to have retired with effect from the dates on which they
attained the age of 55 years by various orders issued in the month of October,
1987.
The
respondents filed writ petitions in the High Court contending that they should
not have been retired on attaining the age of 55 years inasmuch as in
exercising their option to continue in the service of the Corporation, they
have opted for pensionary benefits under the Government rules and not the rules
prevalent in the Corporation.
Alternatively
it was contended that in any event Corporation intended to apply the benefit
arising out of the enhancement of the age of retirement in respect of the
Government servants to such of the employees in the Corporation who were
employees of the Government earlier and they having been continued in service,
they should be deemed to have continued in the service of the Corporation until
they attained the age of 58 years.
The
learned Single Judge of the high Court allowed the writ petitions and quashed
the relevant orders made by the Corporation declaring the age of retirement of
each of the employee as 55 years. The matter was carried in appeal
unsuccessfully the same having been dismissed in limine. It is against these
orders these appeals have been preferred before this Court by special leave.
It is
urged on behalf of the appellant that the view taken by the High court in
interpreting the Government order that the age of retirement is covered in the
expression "pensionary benefits" which are protected by the Rules of
the Government as made applicable to the Corporation is incorrect. It was also
urged on behalf of the appellants that continuation of the respondents in the
service of the Corporation should not be treated as extending the age of
retirement and this position was made clear as per the Circular issued on
11.3.1987 that the respondents were treated to be serving the Corporation on
the basis of re- employment and not by extension of service until they attained
the age of 58 years and it was made clear that the respondents had
superannuated on attaining the age of 55 years. The respondents fairly
contended that the meaning attributed to "pensionary benefits" would
include age of superannuation and, therefore, the view of the High Court does
not call for any interference.
The
respondents submitted that the intention of the Corporation was clear to apply
the relevant. Government rules in respect of the erstwhile Government employees
working in the Corporation and who had opted for applicability of the
Government rules for their pensionary benefits, the Corporation having
understood the relevant Government orders in that sense and respondents having
continued in the service, the same should not be disturbed by this Court in
exercise of its power under Article 136 of the Constitution of India. Reliance
was also placed on the decisions of this Court in B. Prabhakar Rao and Others
vs. State of Andhra Pradesh and Others 1985 (Supp) SCC 432 and Collector of
Customs and Central Excise and Another vs. Oriental Timber Industries (1985) 3
SCC 85 both in regard to the wavering stand of the Corporation at different
stages in not enunciating its clear cut policy and as to the nature of the
relief that should be granted in a matter of this nature.
We
have given our anxious consideration to the pleadings and the contentions pul
forth before us. We are afraid that we cannot subscribe to the view expressed
by the High Court, while construing the expression 'pensionary benefits'. The
said expression should be restricted to mean the amount of pension or other incidential
benefits, but should not include the age of retirement. The relevant Government
order pursuant to which the respondents became employees of the Corporation
makes it very clear that the pensionary benefits available to them under the
Government rules could be applicable insofar as it related to the benefits
consequent upon their retirement. Pensionary benefit would arise only upon
retirement and not before. The age of retirement is determined by a different,
rule while the pensionary benefit would arise on retirement and the expression
'pensionary benefit' would, therefore, not determine the age of retirement at
all. It is obvious from the reasoning of the High Court that it was also
conscious of this aspect as this was spelt out in saying that pensionary
benefits would be conferred only after retirement from service in accordance
with rules applicable in the case. However, it felt that if the orders of the
Government were applied in letter and spirit, then the age of retirement would
also be covered by the expression 'pensionary benefits'. Therefore, the view
taken by the High Court in this regard cannot be sustained.
We may
now deal with another aspect of the matter raised on behalf of the respondents,
namely, that respondents have been continued in service even after attaining
the age of 55 years and were retired only on attaining the age of 58 years.
This contention cannot be supported at all and becomes untenable in view of the
fact that the Circular dated 11.3.1987 makes it very clear that the period for
which they had worked in the Corporation should be treated as re-employment and
raising the age of retirement in the Corporation will be effective only for
prospective period and such of those employees who had attained the age of
superannuation during that period should be deemed to have superannuated on the
date after attaining the age of 55 years. It is true that while the question
that the age or retirement in the Corporation should be enhanced to 58 years
was under consideration of the Corporation after the Government raised the age
of retirement from 55 to 58 years. The Government accorded sanction to the
Corporation to raise the age of retirement only with effect from 13.10.1987
and, therefore, such of the employees as had attained 55 years during the interregum
were treated only as case or re-employment. Re-employment in such case should
arise only when employment has ceased and such cessation in the present case
had arisen on attaining the age of 55 years. The regulations in the Corporation
until their alteration on 13.10.1987 provide for the age of retirement at 55
years and such rules were available in the Civil Service Rules of J&K Government
also. Therefore, the respondents could not have continued in service on
attaining the age of 55 years and if they had continued in the service of the
Corporation, it must be deemed to be taken to be on the basis of re-employment.
In the circumstances of the case, we do not think the mere fact that they had
been continued in service beyond the age of 55 years will not tantamount to
treating them as of regular service and having retired until they attained the
age of 58 years. In this view of the matter, we do not find any merit in this
contention advanced on behalf of the respondents and it is rejected
accordingly.
The
decision in B. Prabhakar Rao and Others vs. State of Andhra Pradesh and Others 1985 (Supp) SCC 432
refers to the case of Andhra Pradesh Civil Servants whose age of retirement was
originally 55 years. Thereafter it was enhanced to 58 years, further reduced to
55 years and yet again raised to 58 years. When the Government was wavering as
to the fixation of age of retirement to 55 and 58 years and was not clear in
its policy, certain observations were made by this Court in the aforesaid case
but those are not the circumstances obtaining in the present case. It is clear
that the age of retirement in the present case had been enhanced from 55 to 58
years, but before the same could be given effect to, the respondents had
attained the age of 55 years and therefore, they could not be given the benefit
of raising the age of superannuation retrospectively. hence we do not think
that the ratio of the said decision can have any application to the facts
arising in the present case.
The
reliance placed on Collector of Customs and Central Excise and Another vs.
Oriental Timber Industries (1985) 3 SCC 85 is to the fact of grant of nature of
relief. In the present case it is submitted that the respondents have all been
given the benefit of the orders of the High court and that the respondents are
small employees who are not very well-off economically to repay the amounts
received by them.
We do
not think in this case at any rale we should accede to this request because the
Corporation was throughout contesting against the position taken by the
respondents.
Firstly,
they made their position very clear in the objections in the writ petition and
when the matter was decided against them, challenged the same in appeal and
when unsuccessful, approached this Court for appropriate reliefs. During the pendency
of these matters on the threat of contempt proceedings, the respondents have
availed of the benefits arising under the orders made by the High Court.
Therefore,
we do not think it proper to mould the relief as applicable to respondents in
any manner other than what is natural and probable as arising in the case.
In the
result, these appeals are allowed, the order made by the High court in the writ
petitions as affirmed by the T.P.A. stands set aside. We direct the dismissed
of the writ petitions. However, in the circumstances of the case, there will be
no order as to costs.
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