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
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
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
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.
G.N.
Petitions allowed.