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PETITIONER: TRANSPORT MANAGER, PUNE MUNICIPAL CORPORATION, TRANSPORTUNDE

       Vs.

RESPONDENT: VASANT GOPAL BHAGWAT (DAD) BY LRS.  AND OTHERS

DATE OF JUDGMENT:       27/08/1998

BENCH: S.C. AGRAWAL, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Rajendra Babu, J.      Leave granted.      Respondents   1 to  7  are  retired  employees  of  the Transport Undertaking  of  the  Pune  Municipal  Corporation ("Municipal Corporation  "  for  short).  Respondent  No.  1 retired on  20.10.1962,   respondent  No.  2  on  15.8.1968, respondent No. 3 on 1.7.1974,  respondent No. 4 on 1.8.1977, respondent No.  5 on 31.3.1975, respondent No. 6 on 2.1.1967 and the  respondent No. 7 on 13.9.1961 under section 462 (3) (a) of  the Bombay  provincial  Municipal  Corporation  Act, 1949,  the   Pune  Municipal   Corporation  had   introduced Provident Fund  Regulations for  its employees  in  November 1950 which were made applicable to officers and employees of the transport Undertaking in the Corporation. At the time of retirement these  respondents had  received  provident  fund amount  standing   to  their  credit  in  the  account.  The Municipal  Corporation   framed  Pension   Scheme  for   its employees in  the  year  1954.  However,  employees  of  the Transport Undertaking  were not  included in the said Scheme because  Transport   Undertaking  itself   was  a   separate autonomous body.  The 1954  Scheme was replaced by a revised Pension Regulation  Scheme of  1960. In  the year 1970,  the Corporation framed  Pension Regulations for the employees of the  Transport   Undertaking  which  were  approved  by  the Government of Maharashtra dn became effective from 1.4.1967. Respondents 1,  6 and  7 had  retired prior to 1.4.1967 and, therefore, the  benefits under the said Pensions Scheme were not available  to them. 2nd respondent though he had retired was covered  by the  Scheme  as  he  retired  subsequent  to 1.4.1967. Respondents  3, 4 and 5 were still in service when the Scheme  was introduced and these respondents 2,3,4 and 5 were informed  of the  Pension Scheme and were asked to give their option  to have  the benefit of the said. Scheme. None of them opted for the new Scheme. A modification was made to the Pension  Scheme of  1970 on 16.1.1975 and sub-regulation No. IV  of the  Pension Scheme  which is  relevant  for  our purpose was inserted which reads as follows:-      "Notwithstanding anything contained      in   sub-Rule    (ii)   and   (iii)

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    Municipal Officers and Servants who      were appointed  in Poona  Municipal      Transport before  1st July 1970 and      are  still   in  service  in  Poona      Municipal Transport  on  or  before      1st August  1973 and  who have been      deemed  to  have  opted  to  remain      under    the     Provident     Fund      Regulations of  Employees Provident      Fund  Act,   1952,  shall   have  a      further  option   to  elect  to  be      governed by these Regulations or to      remain under the Regulations of the      Employees’ Provident Fund Act, 1952      applicable  to   him.  This  option      shall  be  exercised  within  three      months  of   the  date   on   which      approval of Government to this rule      is   communicated.    Option   once      exercised will be final."      Again the said Scheme was modified on 8.1.1985 and sub- Regulation V of the modified Scheme reads as Follows:-      " The  officers and Servants of the      Pune      Municipal       transport      Undertaking who were in the service      before 1st April 1971 and those who      are in  the service on or after 1St      April 1978 and who have been deemed      to have  opted to  remain under the      Provident Fund Act, 1952 shall have      a  further   option  to  elect  the      pension Rules of the Pune Municipal      Transport Undertaking  or to remain      under  the   Regulations   of   the      Employees’ Provident Fund Act, 1952      applicable  to  them.  This  option      shall  be  exercised  within  three      months  from   the  date  on  which      approval of Government to this Rule      is   communicated.    Option   once      exercised final."      The  Municipal   Corporation  passed  a  resolution  on 18.11.1986 extending the benefit of the Pension Rules to the employees with  retrospective effect from 1st January, 1957. Even in  cases where  a pensioner  had died, the benefit was made available  to his  heirs. A  Writ Petition was filed in the year 1990 to apply the resolution dated 18.11.1986 so as to extend  the benefit of pension Scheme to the employees of the Transport Undertaking even though they had opted or were governed by  the Provident  Fund Scheme  and  retired  after 1.1.1957 but  prior to  29.11.1986. The appellants contested the  said   position  on   the  basis   that  the  Transport Undertaking was a separate autonomous body and the employees of the  Transport Undertaking  had separate  set of  Pension Rules and  they cannot  claim parity in the pension with the employees of the Pune Municipal Corporation. the High Court, however, took  the view  that the employees of the Transport Undertaking are also employees of the Municipal Corporation; that they are entitled to the same benefits which  have been granted to  the employees of the Pune Municipal Corporation; that therefore,  allowed the Writ Petitions and directed the extension of  the benefits  of the Revised Pension Scheme to respondents 2  to 5.  The Corporation  was also  directed to extend the  benefits of  the said Scheme to the employees of the Transport  Undertaking who  had retired  after  1.4.1957

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including respondents No.s 1,6 and 7.      We shall first deal with the question whether Scheme as applicable to  the employees  of the  Municipal  Corporation should  be   applied  to  the  employees  of  the  Transport Undertaking. At para 13 of its order, the High Court records as follows:-      " It  is true that the employees of      the said  undertaking are  governed      by different  service rules  but it      is equally  true that  the  pension      undertaking is  similar to  the one      applied    to    other    municipal      employees and  if that  is so  then      there cannot be any differentiation      in the  treatment  as  far  as  the      fixation  of   cut  off   date   is      concerned.      The position  is that  the employees  of the  Transport Undertaking are  governed by  different set  of  rules.  The employees  of   the  transport   Undertaking  are  appointed pursuant to  Chapter XX  of the Act and are subject to Poona Municipal Transport  Service Regulations.  The nature of the work done by them and other municipal employees cannot prima facie be  identical.  There  was  a  provident  Fund  Scheme introduced to  the employees  of the  Transport  Undertaking framed under  the Employees Provident Fund Act, 1952 and all the respondents had drawn the benefits of the Provident Fund Scheme. Under  the  Provident  Fund  Scheme  a  contribution matching that  of the  employees is  made by  the  Transport Undertaking.  Therefore,   the  scheme  applied  insofar  as pension is  concerned to  the  employees  of  the  Transport Undertaking  was   entirely  different   from  that  of  the Municipal Corporation.      The Scheme  provided that modifications thereof were to be effective  from 1.4.1967.  The High  Court took  the view that the  cut of  date is arbitrary and there is no rational basis in  fixing the  Same. It is brought to out notice that an agreement  was entered  into with  the employees  of  the Transport Undertaking  Corporation and  the Corporation  and the agreement  became effective  from 1st April, 1967 and in those circumstances  the particular  date had been fixed. If that is  so, it  cannot be  said that  the  appellants  have chosen  the   cut  of  date  arbitrarily  and  is  therefore violative of Article 14 of the Constitution.      It is only for the first time in the year 1970 that the Corporation framed  Pension Regulations for the employees of the Transport  Undertaking. until  then there was no pension scheme  available   to  the   employees  in   the  Transport Undertaking of the Corporation. The said Scheme was modified from time  to time  and the  resolutions were  passed by the Municipal  Corporation   whenever  it   wanted  to  make  it applicable specifically  to the  employees of  the Transport Undertaking, the same was specifically mentioned. When there was no such mention of the benefit of the Scheme, it was not open to the High Court to extend the benefit thereof from an anterior date  to the  employees in question. The basis upon which the distinction was maintained between the two classes of employees was not appreciated by the High Court. The same was brushed aside by stating that such a reason could hardly be a  basis for  meting out different treatment to different department in  vital matters  like pension  and  other  post retirement benefits.      One cannot  be dogmatic in such matter. Introduction of the Provident  Fund Scheme  and application  of the  Pension Scheme only  from the  year 1970  was in  the background set

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forth above.  If these  aspects make  it clear that the High Court appears to have slipped into such an error.      In the  circumstances, the view taken by the High Court cannot be  sustained. The  order made  by  the  High  Court, therefore, is  set aside  and the writ petition filed by the respondents shall stand dismissed. The appeal is allowed. No Costs.