Full Judgment Text
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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: