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PETITIONER: DHAN RAJ & OTHERS

       Vs.

RESPONDENT: STATE OF J & K AND OTHERS

DATE OF JUDGMENT:       23/03/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Misra, J.      The short  question for  consideration is,  whether the appellants, who were all drivers and conductors in the Jammu and Kashmir  State Road  Transport Corporation, are entitled to the  pensionary benefits  in terms  of  Government  order dated 3rd  October, 1986  when they  retired from service of the Corporation prior to 9th June, 1981.      In the  year 1947, the Government Transport Undertaking (hereinafter refereed  to as ’Undertaking’ was formed in the State of  Jammu and  Kashmir to render transport services to its people.  The appellants  were employed  as  drivers  and conductors from  the year 1950 onwards. Initially, they were in service with the aforesaid undertaking and later with the Road  Transport  Corporation  (hereinafter  referred  to  as ’Corporation’). This  corporation was  formed  in  the  year 1976. All  the appellants  served in the State organisations for various terms ranging from 30 to 40 years. On 9th April, 1969 the  State Undertaking  was made a permanent department of  the  State  Government.  On  1st  September,  1976,  the aforesaid Corporation  was formed  in terms  of  State  Road Transport corporation  Act, 1950,  which was made applicable to the State of Jammu and Kashmir by virtue of Act No. 25 of 1968. As  a consequence,  the Government  employees  serving with the  State Undertaking  were treated on deputation with the State  Corporation. The  Government oscillated  with its decision the  terms on  which to confer pensionary benefits. Hence, it  issued various orders in the years 1972 and 1974, all  being   made  applicable  from  9th  April,  1969  vide Government’s order  dated 27th  March, 1979.  By  this,  the option for  drawing pension  and other benefits was given to the appellants and others retired or seek to retire from the Corporation. The  appellants, however,  continued to  be the State Government  employees. Thereafter,  on 9th  June, 1981 through  Regulation   No.  177  the  States  Civil  Services Regulation was  amended by  adding 3rd  proviso to  it. By t hat, a  temporary Government  servant with 20 years’ service on the  date of  superannuation was  also entitled  to  draw pension. Then  came the aforesaid Government order dated 3rd October, 1986  for exercising  option even  to those already

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retired for  drawing pension  as admissible under the normal rule applicable to a permanent government employee which was also given  to  the  appellants  and  others  to  which  the appellants  opted.   Admittedly,  with   reference  to  this Government order dated 3rd October, 1986 vide a Notification dated 20.4.1987,  the appellants and others belonging to the erstwhile  Undertaking   were  declared   permanent  in  the aforesaid Corporation  retrospectively to all those who were temporary upto 31st August, 1976. The case of the appellants is that  some of  the drivers  similarly placed were granted pension under it but the same is refused to the appellants.      The appellants  forcefully on  the aforesaid Government order  dated  3rd  October,  1986,  urged  that  the  order, clearly, unequivocally  without and  reservation grants  the pensionary benefits to all the retired personnel who retired from the  Corporation  including  the  appellants.  For  the respondents, the  stand is,  yes it is applicable but not to those who  retired prior  to 9th June, 1981. Admittedly, all the appellants  retired prior to this date. Aggrieved by the said stand,  the appellants  filed a writ petition which was allowed  by  he  learned  Singly  Judge,  who  directed  the respondents to give them pensionary benefits under the order dated  3.10.1986.   Aggrieved  by   the  said   order,   the respondents  filed   a  Letters  Patent  Appeal  before  the Division Bench  of the  High  Court.  The  said  appeal  was allowed in  which it  was held that the aforesaid Government order dated  3rd October,  1986 was  contrary to the service conditions and  the law  governing the writ petitioners. The writ petition  stood dismissed.  As against  this order, the present appeal arises.      It is  clear that the question of absorption and giving pensionary  benefits  to  the  employees  in  the  aforesaid Undertaking and the Corporation was drawing the attention of the State  Government right  from the  year  1969  which  is evident from  the various  orders and  letters  issued.  The first step  towards it  is a  Cabinet decision and the order dated 9th  April, 1969  by  which  the  aforesaid  Transport Undertaking  was   declared  as   a   permanent   department prospectively. The  employees were  given option  either  to become permanent  or continue  to be  temporary  on  certain condition. on  7th  March,  1972  the  aforesaid  order  was clarified that  the permanent  and temporary  posts  in  the Undertaking will  be notified by the Government from time to time. Further,  those employees,  who opened for permanency, will be  confirmed subject  to the  availability  of  posts. Further, the Government recast para 4 in the order dated 7th March, 1972  by means  of Government  order dated  6th July, 1973. Under  this, it  was  clarified  that  all  the  posts declared as permanent shall only for the purposes of pension be desired  to have been made permanent retrospectively from the  date   of  their   creation.  This   order   was   made retrospectively with  effect from 9th April, 1969. Then came the Government  order dated 11th April, 1974 under which the order for  refund of  bonus/reward/ex-gratia payments by the aforesaid earlier three orders were withdrawn. Then came the Central road  Transport corporation  Act under which all the employees  of   the  erstwhile  Undertaking  were  taken  on deputation  in  the  Road  Transport  Corporation  from  1st September, 1976. All the Government servants, who opened for service in  the said  Corporation, were treated to have been on deputation with the said Corporation from the date of its formation to  the date  of their  exercising  option.  Under Section 124  of the  Constitution of Jammu and Kashmir which is similar  to Section 309 of the Constitution of India, the Government in exercise of the powers conferred by proviso to

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the said  section made amendments through Notification dated 9th June,  1981 in  the  Jammu  and  Kashmir  civil  Service Regulations by  inserting 3rd  proviso to Article 177 of the said Regulation, which is quoted hereunder :-      " Provided  also that  a  temporary      Government  servant   who  on   his      retirement    from    service    on      attaining the age of superannuation      or   on    his    being    declared      permanently    incapacitated    for      further government  service by  the      appropriate Medical authority after      he  than   twenty  years  shall  be      eligible   for    all    pensionary      benefits admissible  to a permanent      Government  servant   under   these      rules and  condition of  holding  a      pensionable post  in a  substantive      capacity    or     a     continuous      quasipermanent service  of 5  years      or more, shall be dispensed with in      his case.           In schedule  ix the  following      shall be  inserted as a 3rd proviso      below Rule 11:           Provided also that a temporary      Government servant  with  20  years      service retiring  on superannuation      or   on    this   being    declared      permanently incapacitated  will  be      granted all  pensinary benefits, as      admissible to  permanent Government      servants."      It is  under this  Notification respondents  demarcated lines to  give the  pensionary benefits  to only  those  who retired after this date, i.e., 9th June, 1981, and not prior and since  all he appellants retired prior to this date they were excluded.  The  appellants    thereafter  made  various representations to the Government for admitting them to this benefit. The  stand taken was, they were all working for the last about  30 to  40 years as temporary Government servants but when  all similarly  placed persons  under the aforesaid amendment were  made eligible  for pension  who have  worked only  for   20  years   service  prior   to  the   date   of superannuation then there is no justification to exclude the appellants from  this benefit  only on the basis of retiring earlier to  this dated  viz. 9th June, 1981. The case of the appellants is  that the Government favourable considered the said representation  and decided  to  grant  the  pensionary benefits  even   to  other   temporary  employees   of   the Corporation, who retired prior to 9th June, 1981. It is this decision which  resulted into  the aforesaid order dated 3rd October, 1986.  it is  not in  dispute that under this order all  the  appellants  are  entitled  to  receive  pensionary benefits, namely,  even those  who have retired prior to 9th June, 1981.      Learned  counsel   for  the   respondent  -  State  has contradicted this  stand and  urged that the order dated 3rd October, 1986 has to be read with the notification dated 9th June, 1981  and hence  the benefit  under it,  can  only  be granted to  such employees  who have retired after 9th June, 1981. In  other words,  the case  of the respondents is that prior to  9th June,  1981,  Article  177  of  the  aforesaid Regulation only  provided permanent  Government employees or such quasi-permanent  employees, who  have been  working for

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more than  five years,  were only  entitled to  the grant of pensionary benefit.  It is  for the  first time  through the aforesaid amendment  dated 9th  June, 1981,  even  temporary Government servants  were conferred with pensionary benefits and who  had rendered  temporary service of not less than 20 years.      It is significant that learned Single Judge has clearly recorded a  finding, which  is also  clear from  the records that the order dated 3rd October, 1986 was the result of the representations made  by the  appellants. At  this  relevant time, the  State was under the Governor’s Rule and by virtue of Section  92 of  the said State Constitution, the Governor accepted  the   demands  of   the  appellants   by  granting pensionary benefits to them also by means of the said order. Learned Single  Judge recorded that this fact is set in para 12 of  the writ petition and the same was not refuted by the State in the counter affidavit. This fact and the finding of the learned  single Judge  to this  extent has  not been set aside.      After hearing learned counsel of the parties, we do not find any substance in the contention of the respondents that this order when read with the earlier notification dated 9th June, 1981  the benefit  is only  to be  give to  those  who retired after  the said  date. if  that be  so, there was no need to  issue this  order on  3rd October, 1986. Government was  aware   of  the  amendment  already  made  through  the aforesaid  notification   to  Article   177  of   the   Said Regulation. If  the stand of the respondent - state is to be accepted then  the representations  of the appellants should have been  rejected but  that was  not so.  We find  that in spite of  the said amendment the Government issued the order dated 3rd October, 1986 making applicable pensionary benefit to temporary  employees of  the  erstwhile  Undertaking  who opened for  temporary service  in the  years 1969,  1972 and 1979. The  relevant portion  of the  said  Government  order dated 3rd October, 1986 is quoted hereunder :-      " It  is hereby  ordered  that  all      temporary  employees  of  erstwhile      Government  Transport   Undertaking      who  have   opted   for   temporary      service in the State Road Transport      Corporation or  those employees who      have opened for Corporation Service      in   the   State   Road   Transport      Corporation, in  pursuance of Govt.      Order  No.   25-TP  of  1979  dated      27.3.1979 shall  be given  a  fresh      option to:      a. ....................      b. ........................      i. ...........................      ii. the  option new exercised shall      be final and shall be available for      a period  of three  months from the      date    of    issue    of    formal      notification in this behalf."      We find  that the  learned Single  Judge has  held with reference to the order dated 3rd October, 1986;      " ............  that the  intention      of  the  Government  while  issuing      order dated  3rd October,  1986 was      very  clear  that,  notwithstanding      Article  177   of  the  C.S.R.  and      notwithstanding the  fact that  the      petitioners had  all retired  prior

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    to  9th   June,  1981,   they  were      declared entitled  to the  grant of      pensionary benefit."      Learned counsel  for the  states that  the  said  order dated 3rd  October, 1986  is not retrospective in operation, hence cannot  confer benefit  to those  prior to  this date. Firstly, no such stand was taken by  the State either before the learned Single Judge nor before the Division Bench. Even otherwise, this  interpretation is misconceived. In fact the heading - ’Subject’, to the said order dispels all the doubt which is quoted hereunder;           "Subject  :  Grant  of  normal      retirement benefits  to the retired      employee   of    the   state   Road      Transport Corporation  sanction  to      the ...................."      The subject  refers to cover and confer benefits to all the retired  employees of the Corporation meaning thereby to those retired  prior  to  the  date  of  the  order.  Hence, contention to  the date  of the  order. Hence, contention to the contrary by the respondents have not merit.      This order  clearly gave  fresh right  to exercise  the option to  all the employees of the Corporation, who retired earlier, to  be made  within a period of three months. It is not in dispute that all the appellants exercise their option within the  said period.  Admittedly, this  benefit, by this order, was conferred on the basis of representations made by the appellants  to the  Government, hence their right cannot be rejected  on the  basis  of  submission  of  the  learned counsel for the State.      Learned counsel  for the State then made an alternative submission that  the order  dated 3rd  October, 1986  is  in violation of  Article 177  of the said Regulation, hence the appellants cannot  draw any  benefit under it. It seems that it is this submission which led to the mis-direction even by the appellate  court. We  are surprised  that the  State  is taking such  a stand  on its  own order  to be  held  to  be ultravires of  a Regulation.  Further such  a submission was made nor any ground raised even in the appeals filed against the order  of learned  single Judge  nor  such  a  stand  is expected to be raised on the facts and circumstances of this case. Even otherwise, examining this submission we find that the amendment  to Article  177 has  given benefit to all the retiring employees,  i.e., it  would accrue  to all retiring after 9th  June, 1981 viz. the date of amendment. But it has not, by  any positive words, excluded expressly to those who retired prior  to the  said date.  If later  the  government itself reconsidering  the matter  confers the  same benefits even to those who retired prior to 9th June, 1986, it cannot be said  to be  either violating  Article 177 or in conflict with that.  It is  a case,  what is not contained in Article 177 is  given later.,  If Government  desired  otherwise  it could have, even after issuing order dated 3rd October, 1986 , withdrawn  the same.  On the  contrary,  it  permitted  to continue. Hence,  even this  submission of  the  said  order being violative of Article 177, has no force.      Even otherwise, we do not find any justifiable criteria for the  State Government to draw the line between those who retired earlier and those retired after 9th June, 1981. Both such set  of employees  were  equally  placed  in  the  same Undertaking/Corporation  temporary   in  character  and  all having served  in the  organisations for more than 20 years. In fact,  appellants have serve with the Government for more than 30  to 40  years. The  person serving  for such  a long period earns his legitimate expectation. It is not something

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which e  seeks as  a begging bowl. It is inappropriate for a State Government  to take up a stand to get its own order to be held  illegal, by  giving restrictive  interpretation  to deny benefit  to its own employees who had worked for such a long period.  In fact, in the Constitution Bench decision of this court  in D.S.  Nakara and  Others Vs.  union of India, [1983 (1)  SCC 305],  this Court held that criterion of date of enforcement  of the  revised scheme entitling benefits of the revision  to those  retiring after  specified date while depriving the  benefits to those retiring prior to that date was  violative   of  Article   14.  Even   otherwise,  while considering the question of grant of pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State as stated and the assurance as given in the Directive  principles of  State Policy.  A pension  is a part and  parcel of  that goal,  which secures  to a  person serving with  the State  after retirement of his livelihood. To deny  such a  right to  such a  person, without any sound reasoning or  any justifiable  differentia would  be against the spirit  of the constitution. We find in the present case the stand  taken by  the State  Government to be contrary to the Said  spirit. In the aforesaid D.S. Nakara (supra), this court has very clearly recorded the following :-           "Para 36.  -  Having  set  out      clearly  the   society   which   we      propose to set up, the direction in      which the  State action  must move,      the welfare  State which we propose      to  build  up,  the  constitutional      goal  of  setting  up  a  socialist      State  and  the  assurance  in  the      Directive   Principles   of   State      Policy especially o security in old      age at  least  to  those  who  have      rendered  useful   service   during      their   active    years,   it    is      indisputable,    nor     was     it      questioned,  that   pension  as   a      retirement benefit is in consonance      with  and  in  furtherance  of  the      goals  of   the  Constitution.  The      goals for  which  pension  is  paid      themselves give  a fillip  and push      to  the  policy  of  setting  up  a      welfare State  because  by  pension      the socialist  goal of  Security of      cradle to grave is assured at least      when it  is mostly needed and least      available, namely,  in the  fall of      life."      For the  aforesaid reasons and the findings recorded on the facts  and circumstances of this case, the appeal stands allowed. The  impugned order  of the  High Court  dated  5th September, 1995  passed in  L.P.A. No.  62 of  1993  is  set aside. The  appellants would  be entitled for the pensionary benefits in  terms of and as held by learned Single Judge in its  order   dated  29th   June,  1993.  On  the  facts  and circumstances of the case, cost on the parties. IN THE MATTER OF: