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PETITIONER: J&K STATE ROAD TRANSPORT CORPORATION, JAMMU & ANOTHER

       Vs.

RESPONDENT: OM PARKASH & OTHERS

DATE OF JUDGMENT:       06/08/1998

BENCH: SUJATA V. MANOHAR, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CIVIL APPEAL NOS. 1976-1681 OF 1991                       J U D G M E N T RAJENDRA BABU, J.      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

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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

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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

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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.