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PETITIONER: HARI SHANKAR GAUR AND ANR. ETC.

       Vs.

RESPONDENT: DELHI TRANSPORT CORPORATION AND ORS.

DATE OF JUDGMENT30/11/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR  374            1988 SCR  Supl. (3)1003  1989 SCC  (1) 240        JT 1988 (4)   552  1988 SCALE  (2)1473

ACT:     Civil 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 upto 60 years.

HEADNOTE:     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 Corporation.     All  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.     Allowing  the  special leave petition as also  the  writ petition, this Court,                                                  PG NO 1003                                                  PG NO 1004

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   HELD: 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]

JUDGMENT:     CIVIL/ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1244 of 1986.       (Under Article 32 of the Constitution of India).                             WITH     S.L.P. (Civil) No. 8948 of 1986.     From  the  Judgment and Order dated 1().4. i986  of  the Delhi High Court in C.W.P. No. 795 of 1986.     Jitender Sharma for the Petitioners.     T.U. Mehta and G.K. Bansal for the Respondents.     The 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.                                                  PG NO 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".     Clause 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

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were treated as protected employees.     These  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.     In  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:                         "CHAPTER l-A     7(a)(1)  Every employee has a right to  seek  retirement from service after attaining the age of 55 years.     (2)  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.     (3)  In 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.     (4)   Every  employee  shall  compulsory  retire   after attaining the age of 60 years provided his services are  not ordered to be terminated earlier.     (5)  An employee who retires under these rules shall  be entitled  for  pension or Gratuity to which he  is  entitled according to the rules.     Note  (1):  These  Rules will not apply  to  the  Police Personnels.     Note  (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

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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.     Counsel  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. Our  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. 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. 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 reads:                 DELHI 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 years.     We  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.     In the result the writ petition and the SLP are  allowed to the extent indicated above. No order as to costs.

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G.N.                                           Petitions allowed.