Jammu & Kashmir High Court - Srinagar Bench
All J&K Workers Union Srtc vs The State Government Prior To ... on 27 January, 2021
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
(Through Video Link)
SWP no.1148/2016
IA no.01/2016
Reserved on: 08.10.2020/10.11.2020
Date of pronouncement: 27.01.2021
All J&K Workers Union SRTC ...Petitioners
Through: Mr. Moomin Khan, Advocate
v.
State of J&K & ors.
...Respondent(s)
Through: Mr. Hakim Amaan Ali, Dy. AG for 1 to 3;
Mr. Altaf Haqani, Advocate, for 4 & 5.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Judgment
1. This petition has been filed by the Association of Employees of
the Jammu and Kashmir Road Transport Corporation through its
Coordinator on behalf of 389 of its members enlisted in annexure A to
the petition, mostly comprising Sweepers, Helpers, Cleaners, Bus
Washers, Assistant Fitters, Fitters, Conductors and Drivers, primarily,
seeking a direction to the respondents to treat them as Government
employees and, consequently, entitled to retiral benefits, including
gratuity, pension etc. as extended to its such of the employees who
were earlier working in the erstwhile Government Transport
Undertaking etc.
2. During the pendency of this writ petition the Court passed an
interim direction dated 02.06.2016 directing the respondents to
consider the petitioners' pending representation. Purportedly in
compliance thereof, the respondents rejected the same vide order
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no.JKSRTC/Pen/II/1157 dated 29.10.2016 in consequence whereof the
petitioners amended the writ petition to seek certiorari for quashing the
said consideration order. The background facts of the case are noted
hereunder.
3. The J&K Road Transport Corporation (for short, the
Corporation) was established on 01.09.1976 under the Road Transport
Corporation Act, 1950 (hereinafter, the Act), by conversion of the
erstwhile Government Transport Undertaking (GTU). The employees
of the erstwhile GTU, who were Government employees, were taken
on deputation in the Corporation.
4. With a view to settling the terms of adjustment of the staff of the
erstwhile GTU in the Corporation, the then State Government in the
Transport Department, pursuant to Cabinet Decision no.51 dated
19.02.1979, issued order no.25-TR of 1979 dated 27.03.1979 whereby
different options were given to different categories of these employees.
It was, inter alia, provided therein that the Government servants
(erstwhile GTU employees) could seek retirement or permanent
absorption in the Corporation. Those who opted for service of the
Corporation, were given the option to either retain the pensionary
benefits available to them under the Government Rules or be governed
by the rules of the Corporation insofar as it related to the benefits
consequent upon retirement. Insofar as those of the employees who
would opt for the Corporation service and rules were to cease to be
Government servants from the date of their exercising option for
regulation of their pensionary benefits and would be deemed to be the
employees of the Corporation and their service conditions so far as
they related to pay, allowances, leave, TA, discipline and conduct etc.
would be governed by the rules of the Corporation. The options so
provided for by the Government in terms of the aforesaid order dated
27.03.1979 were to be exercised by the employees by 01.05.1979.
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5. Meanwhile, the Corporation promulgated the Jammu and
Kashmir Road Transport Corporation Employees Service Regulations,
1979 (hereinafter, Service Regulations, 1979). The Service
Regulations, 1979 were made operative with effect from 01.05.1979.
6. Thus, from 01.05.1979 onwards, there were mainly two groups
of employees in the Corporation: one group comprised of those of the
erstwhile GTU employees, who had opted to be governed by the
normal Government rules as Government servants and the other group
comprised of the employees of the Corporation. The second group
comprised of the employees appointed by the Corporation on or after
01.09.1976 and governed by the Service Regulations, 1979 and those
of the erstwhile GTU employees who, pursuant to Government order
no.25-TR of 1979 dated 27.03.1979, had opted for the Corporation
service to be governed by the Corporation Service Rules.
7. The petitioners herein were appointed in the Corporation from
the year 1976/77 onwards, mostly upto 1986. Obviously, those of the
erstwhile GTU employees who had opted for Corporation service to be
governed by its rules and the petitioners herein constituted a
homogeneous group of employees of the Corporation, for, both these
groups were governed by the Service Regulations, 1979. However,
that practically was not the case, in that more than 7½ years after the
options were sought by the Government from, and exercised by, the
erstwhile GTU employees, who had opted for the service of
Corporation and had thus become its employees, the Government vide
order no.38-GR(TR) of 1986 dated 03.10.1986, sought fresh options
from them to retain the retirement benefits that they had already
availed of from the Corporation or to draw the pension benefits under
the rules applicable to the permanent Government employees subject
to the conditions mentioned therein.
8. The case of the petitioners is that whereas the aforesaid group of
employees were given an option to draw the pensionary benefits under
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the rules applicable to the permanent Government employees, the
petitioners constituting the same class of employees of the
Corporation, on the one hand were not given any such option and on
the other hand they were always equally treated as Government
employees, governed by the Government service Rules, so much so
that none of the benefits available to the Corporation employees under
the Service Regulations, 1979, like bonus, share in the profit of the
Corporation and a role in the running of the affairs of the management
of the Corporation, as provided under the Act have been provided to
them.
9. It is averred in the petition that the petitioners approached and
requested the respondents that since they were performing the same
duties and functions and were being treated in the same manner and
given only the same benefits as other employees who had been
appointed prior to 1976 in the erstwhile GTU, but were being
discriminated against by not giving them the same retiral benefits. It is
averred that it was also brought to the notice of the respondents that
the petitioners were also not being paid the benefits envisaged by the
Act and the Service Regulations of the Corporation.
10. It is stated in the petition that meanwhile the Employees
Association of the Jammu and Kashmir Industries Ltd. (JKI), which is
a Government Company, who were similarly situated with the
petitioners, filed a writ petition before this Court seeking pensionary /
retiral benefits on the analogy of the other group of employees of the
Corporation, and that the said writ petition, being SWP no.1250/2002
was allowed by the Court vide judgment dated 12.03.2009 with
direction that the employees of the JKI be given retiral benefits.
11. The petitioners state that in the given circumstances they have a
right to be treated equally and held entitled to the retiral benefits in the
same manner as the other set of employees of the Corporation. They
have, accordingly, filed this writ petition.
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12. Respondents 4 and 5 on their part in their reply to the amended
writ petition have stated that Government order no. 25/TR of 1979
dated 27.03.1979, providing option to different categories of
employees either to retire from the service of the Government or seek
discharge / termination from service as the case may be, or to continue
in services of the newly constituted Corporation either retaining their
pensionary benefits available to them under the Government Rules or
be governed by the rules of the Corporation insofar as the same related
to the benefits consequent to retirement was implemented in letter and
sprit at the relevant time. However, in order to provide further
opportunity to the employees of the erstwhile GTU for retaining their
pensionary benefits as Government servants, the Government issued
order no.38-GR(TR) of 1986 dated 03.10.1986. It is further stated that
the mandate provided under the said Government order was made
applicable for entertaining the option only for a period of three months
from the date of issue of the order and that, notwithstanding the said
mandate of exercising option by the employees has since expired,
pursuant to judgments of the Court passed in series of writ petitions,
including SWP no.1414/2009 (J&K SRTC Pensioners Welfare
Association v. State & ors.), SWP no.3082-J/2010 (All J&K Workers
Union SRTC v. State & ors.) all the employees of erstwhile GTU,
including permanent, temporary and daily wagers stand conferred the
pensionary benefits as Government servants. It is denied by the
respondents that employees of the Corporation were continued to be
governed by Government Rules. It is, however, admitted that
provisions of J&K CSRs were made applicable to the employees of the
Corporation for limited purpose to govern the areas not dealt with by
the Corporation Regulations. It is averred that the Corporation, besides
providing for the regulations, has since enforced the rules governing
the recruitment/promotion in the Service. It is also denied that the
Corporation did not provide the incentives to its employees. It is stated
that in terms of the Regulations, the services of the employees of the
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Corporation are non-pensionable. It is, however, admitted that
Government order no.38-GR(TR) of 1986 dated 03.10.1986 was made
applicable to those employees of GTU who had opted for the services
of the Corporation pursuant to Government order dated 27.03.1979.
13. The further case of the respondents 4 and 5 is that the
petitioners, engaged as employees of the Corporation after its
incorporation between 1976 to 1986, constitute a separate class as
against the employees who were appointed in the erstwhile GTU;
therefore, the judgment passed by the Court in SWP no.1250/2002 is
not applicable to the case of the petitioners. It is further stated that the
claim raised by the petitioners is stale, infested with inordinate and
unexplained delay and latches.
14. So far as respondents 1 to 3 are concerned, they did not choose
to file any rely to the amended writ petition, despite opportunities
given in that behalf. Consequently, their right to file the same was
closed by order dated 28.09.2020. However, thereafter, on 22.10.2020,
Mr. Hakim Amaan Ali, learned Dy. AG, sought permission to place on
record copy of a communication bearing no.Tr-20/SRTC/L/2019 dated
21.09.2020 received by him from Deputy Secretary to Government,
Transport Department, to make a statement to adopt the reply filed by
respondents 4 and 5. The submission made at the Bar and the
document produced were taken on record.
15. The petitioners have filed Rejoinder affidavit dated 06.10.2020
to the aforesaid reply of respondents 4 and 5. Therein they have
submitted that the Government of Jammu and Kashmir in compliance
to the orders of the Court granted pensionary and other benefits in
favour of the employees of J&K Industries and J&K Handloom
Corporation, and that the case of the petitioners stands on the same
pedestal and deserves to be treated in the same manner. In fact, it is
averred that respondent no.5 vide communication dated 17.02.2020
addressed to respondent no.2, i.e. the Principal Secretary to the
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Government, Transport Department, has categorically recommended
that the employees of the Corporation cannot be discriminated against
and are equally entitled to pension to prevail equity of justice. Not only
that, it is further averred in the Rejoinder affidavit that respondent no.5
in terms of another communication dated 15.06.2020, wrote to
respondent no.2, that the Board of Directors of the Corporation in their
81st meeting vide Agenda Item no.81.16 considered the matter with
regard to grant of pensionary benefits in favour of the Corporation
employees and resolved that the matter be taken up with the Finance
Department through Administrative Department, and that the said
communication dated 15.06.2020, thus, in light of the resolution of the
Board of Directors of the Corporation made the requisite
recommendation for release of pensionary benefits in favour of the
petitioners.
16. This matter was heard on 08.10.2020 and the judgment was
reserved with liberty to the learned counsel for the parties to submit
written arguments. On submission of his written arguments, Mr. A.
Haqani, learned counsel for respondents 4 and 5, on 16.10.2020
submitted that he wanted to explain his written arguments.
Consequently, it was thought appropriate to list the case for re-hearing
to enable not only Mr. Haqani to explain his written arguments, but
also to provide an opportunity to learned counsel for the petitioners to
rebut the same. Accordingly, the case was re-heard and in that
connection it was listed on 27.10.2020, 28.10.2020, 03.11.2020,
09.11.2020 and 10.11.2020.
17. I have considered the matter. Put in the simplistic terms, the
case of the petitioners is that they are entitled to be given the same
treatment vis-à-vis grant of pensionary/retiral benefits as has been
given to their colleagues who had earlier been working in the erstwhile
GTU and had later opted for the service of the Corporation, and their
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counter parts working in other Corporations in the UTs of Jammu and
Kashmir and Ladakh, such as the employees of JKI, etc.
18. During the course of arguments, Mr. M. Moomin Khan, learned
counsel for the petitioners, apart from reiterating the facts of the case,
as narrated hereinabove, made his submissions highlighting the
concept of pensionary benefits and, in that connection, drew attention
of the Court to the judgment of the Supreme Court in Kerala State
Road Transport Corporation v K. O. Varghese, (2003) 12 SCC 293,
and a judgment of the Kerala High Court in WP(C) No.2644 of 2014
(E), titled Shri Jose Jacob v State of Kerala, decided on 10.12.2014.
He submitted that it is within the powers and competence of the
Corporation to provide suitable conditions of service for its employees
and to grant concessions outside the Regulations framed by it in case
where the Regulations operate harshly or unfairly. In this regard, the
learned counsel referred to the relevant provisions of the Act and the
Regulations, with specific reference to Sections 5, 19, 45 read with
Regulations 6 and 31 of the Service Regulations, 1979. The learned
counsel laid stress on the language of Regulation 6 of the Service
Regulations, 1979, submitting that the said Regulation saves the power
of the Corporation to grant concessions outside the Regulations.
Invoking the meaning of the word 'outside' given in Concise Oxford
Dictionary, Tenth Edition, Indian Edition, the learned counsel
submitted that the word is defined to mean, inter alia, as 'beyond the
limits or scope of'. He submitted that thus, what the Regulation
essentially provides for is the power of the Corporation which, as
defined in Section 5 of the Act, means that the Board of Directors
assisted by its committees or Managing Director can provide to its
employees something which may not be within the limits or scope of
the Regulations. Thus, by operation of Regulation 6, the Corporation
can provide and, as a matter of fact, has provided pension to its
employees. The learned counsel further referred to and relied upon the
decisions of this Court in SWP no.3082-J of 2010, titled All J&K
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Workers Union, SRTC v. State of J&K, decided on 11.12.2013 in
compliance whereof a section of the employees of the Corporation
have been granted pensionary benefits.
19. On the other hand, Mr. A. Haqani, learned counsel for
respondents 4 and 5, submitted that the case of the petitioners is
distinct from the employees of the JKI, in that the Board of Directors
of JKI vide its decision dated 06.12.2004 had resolved and stipulated
to adopt the provisions of Jammu and Kashmir Civil Service
Regulations in the cases wherever rules were silent. He submitted that
insofar as the petitioners are concerned, they are governed by the
Regulations framed by the Corporation in terms of Section 45 of the
Act, and that Regulation 31 thereof clearly states that the service in the
Corporation will be non-pensionable. As regards the erstwhile
employees of the GTU, who had opted for the service of the
Corporation, it is argued that, having been Government employees in
the GTU, they constituted a class of their own and the petitioners
cannot claim equality with them.
20. There is no dispute that the Corporation has been established
under Section 3 of the Act. Section 5 of the Act provides for the
management of the Corporation and its Board of Directors. It states
that the general superintendence, direction and management of the
affairs and business of the Corporation shall vest in the Board of
Directors which, with the assistance of its committees and Managing
Director, may exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation. Section 14 of the Act
provides for officers and servants of the Corporation. It, inter alia,
says that the Corporation may appoint a Secretary and such other
officers and employees as it considers necessary for the efficient
performance of its functions, and that the conditions of appointment
and service and the scales of pay of such officers and employees of the
Corporation shall be such as may, subject to the provisions of Section
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34, be determined by regulations made under the Act. Section 14 is
extracted hereunder:
"14. Officers and servants of the Corporation. -
(1) ...
(2) A corporation may appoint a Secretary and such other
officers and employees as it considers necessary for the
efficient performance of its functions.
(3) The conditions of appointment and service and the
scales of pay of the officers and employees of a
Corporation shall-
(a) ...
(b) as respects the other officers and employees,
be such as may, subject to the provisions of
section 34, be determined by regulations made
under this Act."
Section 19 of the Act, specifically providing for powers of the
Corporation, says that subject to the provisions of the Act, the
Corporation shall have power, inter alia, to provide for its employees
suitable conditions of service.
21. Section 34 of the Act, referred to in Section 14, in its first sub-
section, says that the State Government may, after consultation with
the Corporation established by such Government, give to the
Corporation general instructions to be followed by the Corporation,
and such instructions may include directions relating to the
recruitment, conditions of service and training of its employees, wages
to be paid to the employees, reserves to be maintained by it and
disposal of its profits or stocks. Sub-section (2) of Section 34 says that
in exercise of its powers and performance of duties under the Act, the
Corporation shall not depart from any general instruction issued under
sub-section (1) except with the previous permission of the State
Government. Section 34 of the Act is quoted hereunder:
"34. Direction by the State Government.--(1) The State
Government may, after consultation with a Corporation
established by such Government, give to the Corporation
general instructions to be followed by the Corporation, and
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such instructions may include direct ions relating to the
recruitment, conditions of service and training of its
employees, wages to be paid to the employees, reserves to
be maintained by it and disposal of its profits or stocks.
(2) In exercise of its powers and performance of its duties
under this Act, the Corporation shall not depart from any
general instructions issued under sub-section (1) except
with the previous permission of the State Government."
22. Section 45 of the Act empowers the Corporation to make
regulations not inconsistent with the Act and the rules made
thereunder, with the previous sanction of the State Government and by
notification in the official Gazette, to provide for, inter alia, the
conditions of appointment and service and the scales of pay of officers
and other employees of the Corporation other than the Managing
Direct or, the Chief Accounts Officer etc.
23. It is thus seen that in terms of Section 14 if the Act, the
conditions of appointment and service and the scales of pay of the
employees of the Corporation have to be such as may be determined
by the Corporation in the Regulations made by it under Section 45 of
the Act. However, Section 34 vests a discretion in the State
Government to give to the Corporation, after consulting it, general
instructions to be followed by the Corporation, which may include
directions relating to, inter alia, the conditions of service of its
employees. Once any such instruction is given by the Government, the
Corporation, in exercise of its powers vested in it under the provisions
of the Act, is not to depart from any such general instruction except
with the previous permission of the State Government.
24. In terms of the powers so vested under Section 45 of the Act, the
Corporation, with the previous sanction of the State Government, has
framed the Service Regulations 1979. These Regulations have come
into force with effect from 01.05.1979. Regulation 2(a) thereof
provides that the same are intended to define the service conditions of
the employees of the Corporation, and Regulation 2(b) says that all
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rules, orders and instructions which may be issued by the Corporation
from time to time and not expressly provided therein shall, insofar as
they are not inconsistent with the rules, continue to be in force unless
repealed or modified. Regulation 4 states the scope of the Regulations
and clause (a) thereof says that except where it is otherwise expressed
or implied, the rules with such amendments as may be affected by the
Corporation from time to time shall apply to the employees who have
opted for service under the Corporation and to employees recruited by
the Corporation on or after 01.09.1976. Regulation 6 of the
Regulations provides for the right of changing or interpreting the
Regulations. It says that the Corporation shall have the right to modify
amend or cancel any or all of the Regulations, and that it has also the
right of granting concessions outside the Regulations in cases where
the regulations operate harshly or unfairly. Chapter III of the
Regulations prescribes the general conditions of service. Regulation 31
thereunder says that the service in the Corporation will be non-
pensionable.
25. There is, of course, no dispute that Regulation 31 of the Service
Regulations provides that the service in the Corporation will be non-
pensionable. However, as rightly argued by the learned counsel for the
petitioners, this Regulation is neither a permanent feature of the
Service Regulations nor does it prohibit or debar the Corporation from
modifying, amending or cancelling it or any of the Regulations
contained in the Service Regulations. Not only that, as mentioned
above, Regulation 6 of the Service Regulations further proceeds to
provide that the Corporation has also the right of granting concessions
outside the Regulations in cases where the same operate harshly or
unfairly.
26. It is, however, seen that in terms of Section 34 of the Act, the
Corporation is to follow the instructions given to it by the Government
relating to, inter alia, the recruitment and conditions of service of its
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employees, and, in terms of Section 45 of the Act, the Service
Regulations have to be made by the Corporation with the previous
sanction of the State Government. One cannot lose sight of the fact
that the Service Regulations have, in fact, been made by the
Corporation in consultation with the Government and therein the
provision of Regulation 6 has been incorporated, vesting the right of
changing or interpreting the Regulations in the Corporation. It would
be apt to quote hereunder Regulation 6 of the Service Regulations. It
reads thus:
"6. Right of changing or interpreting Requisitions.
(a) The Corporation shall have the right to modify, amend
or cancel any or all of these. It has also the right of
granting concessions outside the regulations in cases where
the regulations operate harshly or unfairly or the
concession is intended as a special reward in recognition of
merit."
So, the Corporation has been vested with the powers not only of
interpreting the Regulations, but also of modifying, amending or
cancelling any or all of the Regulations and of granting concessions
outside the regulations in cases where the regulations operate harshly
or unfairly. The discretion to amend, modify or cancel any regulation
is solely of the Corporation. Similarly, the decision, opinion or the
view whether any regulation operates harshly or unfairly is solely of
the Corporation. In view of the clear language used in the Regulation 6
of the Service Regulations quoted above, it becomes axiomatic that
Regulation 31 of the Service Regulations is not absolute; it is subject
to the exercise of discretion and power vested in the Corporation in
terms of Regulation 6 read with the relevant enabling provisions of the
Act and the Regulations. Any instruction that the Government could
have issued under Section 34 of the Act stands incorporated in the
Service Regulations, 1979 referred to hereinabove, conferring upon the
Corporation the powers described above.
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27. During the course of hearing Mr. Moomin Khan, learned
counsel for the petitioners submitted that in view of the fact that the
Corporation has lately acceded to the requests of the petitioners to
declare their services pensionable and has passed necessary resolutions
in relation thereto, the arguments advanced by Mr. Haqani do not hold
water. He submitted that in recognition of the fact that by not
providing pension to the petitioners, they were being discriminated
against as compared to the Corporation employees who were being
provided pension, as also the employees of other Corporations or
Public Sector Undertakings, such as JKI, JK Handloom Corporation,
JK Forest Corporation, JK SIDCO, etc., in addition to the fact that
such denial was operating harshly and unfairly against the petitioners,
the Board of Directors of the Corporation in their 81st Meeting, vide
Agenda no.81.16 resolved to take up the matter with the Government
in the Finance Department. In this connection, the learned counsel
invited the attention of the Court to communication
no.JKSRTC/MD/PS/J/GMA/870 dated 15.06.2020 written by the
Managing Director of the Corporation to the Administrative
Department.
28. When the aforesaid communication was brought to the notice of
Mr. Haqani, learned counsel for respondents 4 and 5, he sought time to
verify the same. His prayer was allowed and on the subsequent date he
admitted that the case of the petitioners had been considered by the
Board of Directors of the Corporation and necessary recommendation
stands made to the Government. Mr. Haqani, in fact, produced the
Agenda for the 81st Meeting of Board of Directors of the Corporation
and the resolution passed thereon by the Board of Directors. Mr.
Hakim Amaan Ali, Dy. AG for 1 to 3, in fact, made a statement before
the Court that the recommendations made by the Corporation /
Managing Director are under consideration of the Government.
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29. The above developments that have taken place at the
Corporation's level and statements made before the Court in that
regard have shortened, rather, resolved the major part of the
controversy involved in this petition. Obviously, therefore, the
arguments advanced before the Court by Mr. Haqani lose their weight
and deflate. Otherwise also it sounds extremely discriminatory,
unjustified and unreasonable that those of the employees of the
erstwhile GTU, who had opted for the services of the Corporation and
were as such governed by the very same Service Regulations, would
be paid pensionary benefits as admissible to Government employees;
whereas the petitioners who are similarly placed with them are being
denied such benefit. It is reiterated here that Regulation 2(a) clearly
provides that the Service Regulations are intended to define the service
conditions of the employees of the Corporation. Once the employees
of the erstwhile GTU had opted for the services of the Corporation
they merged with the employees of the Corporation and were governed
by the Service Regulations. All the employees of the Corporation
constituted one class and they could not be treated differently in the
matter of grant of retiral benefits.
30. Coming to the Agenda for 81st Meeting of the Board of
Directors of the Corporation held on 05.03.2020 at Meeting Hall, Civil
Secretariat, Jammu, Agenda item no. 81.16 thereof reads as under:
"AGENDA ITEM NO. 81.16
Pension Benefits in favour of RTC employees.
The State Government prior to decision of
conversion enacted in the Year 1976 was directly
controlling the affairs of erstwhile Government Transport
Undertaking. The GTU was liberally funded both in nature
of plan and non-plan to enable the only department in
Transport Sector to meet its financial requirement
including wages of employees.
The erstwhile GTU employees were entitled for all
service benefits similarly like their counterparts working in
other State Departments. The Service Conduct Rules, CSR
and benefit of leave salary and gratuity was uniform and
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applied in the case of GTU employees. The erstwhile GTU
was placed in the category of Corporation ending the
benefit of pension to employees who after conversion
opted for Corporation benefits and these employees
appointed after conversion in the year 1976. The
conversion from GTU to Corporation was enacted in the
face of provisions contained in Road Transport
Corporation Act, 1950.
After conversion, the Government issued order
No.TR-25 of 1979 dated 27.03.1979 and in the said order,
the guidelines were prescribed for both group of
employees viz. pensionary/non-pensionary and in view of
these guidelines, the employees on the establishment of
Corporation were declared as not eligible for pension.
Pertinently the GTU employees with pension benefits were
contributing towards GP Fund and the corporation
employees are contributing towards CP Fund.
The employees of JKSRTC are always on forefront
and work neck to neck with other State Government
Departments including Security Agencies during the
period of crisis like flood, war, election earthquake etc.
The SRTC also plays a vital role in distribution of good-
grains of FCS&CA department to inaccessible areas. The
non-pensionary employees of JKSRTC in view of fact that
they are carrying duty in identical circumstances like the
pensionary group of employees have time and again
applied for according of similar treatment and extending of
pension benefit.
The employees of other similar Corporation
including JK Industries and J&K Handloom Development
Corporation were benefited with pension vide Government
order No.35-IND of 2018 dated 25.01.2018. The pension
claim of the employees of these Corporations was justified
by Hon'ble Court while concluding SWP No.1250/2002
titled JKI Employees V/s State.
The employees of JKSRTC are similar situated with
their counterparts working in JKI and J&K Handloom. In
the (case) of employees of these Corporations, the issue of
pension has been declared as legitimate right by Hon'ble
Court, therefore, the JKSRTC employees cannot be
discriminated against and are equally entitled for pension
to prevail equity of justice.
Besides, issue of pension the demands projected by
employees in their application are:
1. Arrears of DA and COLA with effect from year
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2. Arrears of 6th Pay Commission
3. Implementation of 7th Pay Commission
4. Leave salary and gratuity of retired SRTC
employees
The employees of JKRTC are not being extended
benefits against the issues highlighted above and are worth
consideration.
The Board of Directors are requested to kindly
deliberate on the matter."
31. From the minutes of the 81st meeting of the Board of Directors
of the Corporation held under the Chairmanship of Advisor (B) to
Lieutenant Governor (Chairman of the JKRTC Board of Directors) on
05.03.2020, it is seen that the following authorities, comprising the
Board of Directors, were present and considered the above agenda
item:
1. Mr. Rajeev Rai Bhatnagar,
Advisor (B) to Hon'ble Lieutenant Governor,
(Chairman, JKRTC Board of Directors);
2. Mr. Arun Kumar Mehta, IAS,
Financial Commissioner,
Finance Department,
(Vice Chairman);
3. Mr. Deeraj Gupta, IAS
Principal Secretary to Government,
Housing & Urban Development Department,
(Director);
4. Dr. Asgar Hassan Samoon, IAS
Principal Secretary to Government,
Transport Department,
(Director);
5. Er. Fareed Ahmed Chowdhary,
Chief Engineer,
Mechanical Engineering Department,
(Director);
6. Mazhar Hussain,
Director (Finance)
Public Work (R&B) Department,
(Representative of Commissioner/Secretary,
Public Works (R&B) Department.
It is seen that the agenda was duly considered by the Board of
Directors of the Corporation and a decision / resolution to the
following effect was passed thereon:
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"AGENDA ITEM NO. 81.16
PENSION BENEFITS IN FAVOUR OF RTC
EMPLOYEES.
The Board desired that the matter shall be taken up
with Finance department through Administrative
Department."
Consequent to the above, the Managing Director of the Corporation
has addressed communication no.JKRTGC/MD/PS/J/GMA/870 dated
15.06.2020 to the Commissioner / Secretary to Government, Transport
Department, Jammu. The above communication reads as under:
"J&K ROAD TRANSPORT CORPORATION
HEADQUARTER M. A. ROAD, SRINAGAR/RHQ
JAMMU
The Commissioner Secretary to Govt.
Transport Department
Civil Sectt. Jammu.
No.JKRTGC/MD/PS/J/GMA/870 Dated 15.06.2020
Subject: Pension benefits in favour of JKRTC employees.
Sir,
The matter with regard to pension benefits in favour
of JKRTC employees was highlighted in 81st meeting of
Board of Directors vide Agenda item No.81.16. The Board
resolved that the matter shall be taken up with Finance
Department through Administrative Department.
Pursuant to the decision, the pension benefits in
favour of JKRTC employees is focused as under for its
onward submission to the Finance Department.
1. The State Government prior to decision of
conversion enacted in the Year 1976 was directly
controlling the affairs of erstwhile Government
Transport Undertaking. The GTU was liberally
funded both in nature of plan and non-plan to enable
the only department in Transport Sector to meet its
financial requirement including wages of
employees.
2. The erstwhile GTU employees were entitled for all
service benefits similarly like their counterparts
working in other State Departments. The Service
Conduct Rules, CSR and benefit of leave salary and
gratuity was uniform and applied in the case of GTU
employees.
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3. The erstwhile GTU was placed in the category of
Corporation ending the benefit of pension to
employees who after conversion opted for
Corporation benefits and these employees appointed
after conversion in the year 1976. The conversion
from GTU to Corporation was enacted in the face of
provisions contained in Road Transport Corporation
Act, 1950.
4. After conversion, the Government issued order
No.TR-25 of 1979 dated 27.03.1979 and in the said
order, the guidelines were prescribed for both group
of employees viz. pensionary/non-pensionary and in
view of these guidelines, the employees on the
establishment of Corporation were declared as not
eligible for pension. Pertinently the GTU employees
with pension benefits were contributing towards GP
Fund and the corporation employees are
contributing towards CP Fund.
5. The employees of JKRTC are always on forefront
and work neck to neck with other State Government
Departments including Security Agencies during the
period of crisis like flood, war, election earthquake
etc. The SRTC also plays a vital role in distribution
of good-grains of FCS&CA department to
inaccessible areas.
6. The non-pensionary employees of JKSRTC in view
of fact that they are carrying duty in identical
circumstances like the pensionary group of
employees have time and again applied for
according of similar treatment and extending of
pension benefit.
7. The employees of other similar Corporation
including JK Industries and J&K Handloom
Development Corporation were benefited with
pension vide Government order No.35-IND of 2018
dated 25.01.2018. The pension claims of the
employees of these Corporations were justified by
Hon'ble Court while concluding SWP
No.1250/2002 titled JKI Employees V/s State.
8. The employees of JKSRTC are similar situated with
their counterparts working in JKI and J&K
Handloom. In the (case) of employees of these
Corporations, the issue of pension has been declared
as legitimate right by Hon'ble Court, therefore, the
JKSRTC employees cannot be discriminated against
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and are equally entitled for pension to prevail equity
of justice.
The employees of JKRTC are not being extended
the pension benefits highlighted above and are worth
consideration."
32. It is thus seen that the Board of Directors of the Corporation
after considering the relevant facts as put up before it in the shape of
Agenda item 81.16 in its 81st meeting held on 05.03.2020, has decided
that the matter be taken up with the Finance Department through the
Administrative Department, consequent upon which the Managing
Director of the Corporation has duly taken the follow up action by
addressing the above quoted letter dated 15.06.2020 to the
Commissioner Secretary to Government, Transport Department. The
Corporation in terms of the powers vested in it under the relevant
provisions of the Act and the Service Regulations has thus taken the
decision of granting retiral benefits in favour of the petitioners on par
with the employees of other Corporations etc.
33. In view of the contents of the aforesaid Agenda item 81.16 of
the 81st meeting of the Board of Directors of the Corporation, its
decision / resolution to take up the matter with the Finance Department
and the communication dated 15.06.2020 of the Managing Director of
the Corporation, clearly stating that the employees of JKRTC are
similarly situated with their counterparts working in JKI and J&K
Handloom Development Corporation, and that they cannot be
discriminated against and are equally entitled for pension to prevail
equity, this Court has no option but to hold that there is legally no
justification in not granting such benefit to the petitioners.
Consequently, this Court has no option but to hold the petitioners
entitled to pensionary benefits on the same pattern as it has been
granted in favour of their counter parts either in the Corporation itself
or those of the JKI and J&K Handloom Development Corporation.
Resultantly, order no.JKSRTC/Pen/II/1157 dated 29.10.2016 issued by
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respondent no.5 through the General Managing, SRTC (Adm), is
rendered inconsequential and is, therefore, liable to be quashed.
34. Now, coming to the concept and object of pension elaborated by
the Supreme Court in the judgment in Kerala State Road Transport
Corporation v K. O. Varghese (supra) cited and relied upon by the
learned counsel for the petitioners to buttress the claim of the
petitioners, in that case the appellant before the Supreme Court, i.e.,
the Kerala State Road Transport Corporation, was formed in 1965.
Some of the employees of the erstwhile State Transport Department
were absorbed by it and their service conditions were protected in
terms of directions under Section 34 of the Act. On that basis pension
was paid to such employees. In 1978, other employees who opted for
pension were also granted pension on a par with these employees.
However, in 1992 and 1994, the Corporation fixed the dates of
entitlement to dearness relief different from, and subsequent to, the
dates fixed by the Government. Financial problems were the reasons
indicated for such deferment. The respondents in the aforesaid case
before the Supreme Court filed several writ petitions seeking
declaration about their entitlement to receive pension and darkness
relief at enhanced rates on a par with the employees of the State
Government. Cross-appeals were filed before the Division Bench of
the High Court. The appeals filed before the Division Bench of the
High Court by the respondents before the Supreme Court were
allowed. The Supreme Court remitted the matter back to the High
Court for fresh consideration. While so doing, the Supreme Court
delineated in the judgment the concept of pension and its importance.
The Court feels inclined to quote hereunder paras 12 to 20 of the
judgment as the contents thereof are enlightening on the subject. The
same read as thus:
"12. Before we deal with their respective contentions, it
is necessary to appreciate the concept of pension. There are
different classes of pensions and different conditions
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govern their grant. It is almost in the nature of deferred
compensation for services rendered. There is a definition
of pension in Article 366(17) of the Constitution of India,
1950 (in short the 'Constitution'), but the definition is not
all pervasive. It is essentially a payment to a person in
consideration of past services rendered by him. It is a
payment to a person who had rendered services for the
employer, when he is almost in the twilight zone of his
life.
13. A political society which has a goal to set up a
welfare State, would introduce and has, in fact, introduced
as a welfare measure wherein the retiral benefit is
grounded on consideration of State obligation to its
citizens who having rendered service during the useful
span of life must not be left to penury in their old age. But,
the evolving concept of social security is a later day
development, and this journey was over a rough terrain. To
note only one stage in 1856 a Royal Commission was set
up to consider whether changes were necessary in the
system established by the operative 1834 Act. The Report
of the Commission is known as 'Northoote-Trevelyan
Report'. The Report was pungent in its criticism when it
says that:
'in civil services comparable to lightness of work
and the certainty of provision in case of retirement
owing to bodily incapacity, furnish strong
inducement to the parents and friends of sickly
youth to endeavour to obtain for them employment
in the service of the Government, and the extent to
which the public are consequently burdened, first
with the salaries of officers who are obliged to
absent themselves from their duties on account of ill
health, and afterwards with their pensions when they
retire on the same plea, would hardly be credited by
those who have not had opportunities of observing
the operation of the system'. (See Gerald Rhodes
Public Sector Pensions, pp. 18-19)
14. This approach is utterly unfair because in modern
times public services are manned by those who enter at a
comparatively young age, with selection through stiff
competitive examinations and ordinarily the best talent
gets the opportunity.
15. Let us, therefore, examine; as was done by this
Court in D.S. Nakara v. Union of India, [(1983) 1 SCC
305] as to what are the goals that any pension scheme
seeks to subserve. A pension scheme consistent with
available resources must provide that the pensioner would
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be able to live: (i) free from want with decency,
independence and self-respect and (ii) at a standard
equivalent at the pre-retirement level. This approach may
merit the criticism that if a developing country like India
cannot provide an employee while rendering service a
living wage, how can one be assured of it in retirement?
This can be aptly illustrated by a small illustration. A man
with a broken arm asked his doctor whether he will be able
to play the piano after the cast is removed. When assured
that he will, the patient replied, 'that is funny, I could not
before'. It appears that in determining the minimum
amount required for living decently is difficult, selecting
the percentage representing the proper ratio between
earnings and the retirement income is harder. But it is
imperative to note that as self- sufficiency declines the
need for his attendance or institutional care grows. Many
are literally surviving now than the past. We owe it to them
and ourselves that they live, not merely exist. The
philosophy prevailing in a given society at various stages
of its development profoundly influences its social
objectives. The law is one of the chief instruments
whereby the social policies are implemented and pension is
paid according to rules which can be said to provide social
security law by which it is meant those legal mechanisms
primarily concerned to ensure the provision for the
individual or a cash income adequate, when taken along
with the benefit in kind provided by other social services
(such as free medical aid) to ensure for him a culturally
acceptable minimum standard of living when the normal
means of doing so failed. (See Social Security Law by Prof.
Harry Calvert, p. 1)
16. Viewed in the light of the present day notions
pension is a term applied to periodic money payments to a
person who retires at a certain age considered age of
disability; payments usually continue for the rest of the
natural life of the recipient. The reasons underlying the
grant of pension vary from country to country and from
scheme to scheme. But broadly stated they are: (i) as
compensation to former members of the armed forces or
their dependants for old age, disability, or death (usually
from service causes), (ii) as old age retirement or disability
benefits for civilian employees, and (iii) as social security
payments for the aged, disabled or deceased citizens made
in accordance with the rules governing social service
programmes of the country. Pensions under the first head
are of great antiquity. Under the second head they have
been in force in one form or another in some countries for
over a century but those coming under the third head are
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relatively of recent origin, though they are of the greatest
magnitude. There are other views about pensions such as
charity, paternalism, deferred pay, reward for service
rendered, or as a means of promoting general welfare (see
Encyclopaedia Britannica Vol. 17, p.575). But these views
have become otiose.
17. Pension to civil employees of the Government and
the defence personnel as administered in India appear to be
a compensation for service rendered in the past. However,
as held in Dodge v. Board of Education, [302 US 74 : 82
L. Ed 57 (1937)] a pension is closely akin to wages in that
it consists of payment provided by an employer, is paid in
consideration of past service and the purpose of helping
the recipient meet the expenses of living. This appears to
be the nearest to our approach to pension with the added
qualification that it should ordinarily ensure freedom from
undeserved want.
18. Summing up it can be said with confidence that
pension is not only compensation for loyal service
rendered in the past, but pension also has a broader
significance, in that it is a measure of socio-economic
justice which inheres economic security in the foil of life
when physical and mental powers start ebbing
corresponding to aging progress and therefore, one is
required to fall back on savings. One such saving in kind is
when you gave your best in the hey day of life to your
employer, in days of invalidity, economic security by way
of periodical payment is assured. The term has been
judicially defined as a stated allowance or stipend made in
consideration of past service or a surrender of rights or
emoluments to one retired from service. Thus the pension
payable to an employee is earned by rendering long and
sufficient service and therefore can be said to be a deferred
portion of the compensation for service rendered. In one
sentence one can say that the most practical raison d'etre
for pension is the inability to provide for oneself due to old
age. One may live and avoid unemployment but not
senility and pecuniary if there is nothing to fall back upon.
19. The discernible purpose thus underlying pension
scheme or a statute introducing the pension scheme must
inform interpretative process and accordingly it should
receive a liberal construction and the Courts may not so
interpret such statute as to render them obscure (see
American Jurisprudence 24.881).
20. From the aforesaid analysis three things emerge: (i)
that pension is neither bounty nor a matter of grace
depending upon the sweet will of the employer and that it
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creates a vested right subject to the statute, if any, holding
the field, (ii) that the pension is not an ex gratia payment
but it is a payment for the past service rendered; and (iii) it
is a social welfare measure rendering socio-economic
justice to those who in the hey day of their life ceaselessly
toiled for employers on an assurance that in their ripe old
age they would not be left in lurch. It must also be noticed
that the quantum of pension is a certain percentage
correlated to the emoluments earlier drawn. Its payment is
dependent upon an additional condition of impeccable
behaviour even subsequent to retirement. That is, since the
cessation of the contract of service and that it can be
reduced or withdrawn as a disciplinary measure."
35. In Shri Jose Jacob v State of Kerala (supra) also, the Kerala
High Court relied upon the observations made by the Supreme Court
in D.S. Nakara v. Union of India, (1983) 1 SCC 305, referred to in the
aforesaid judgment of the Supreme Court.
36. It is thus seen that pension is not an ex gratia payment but it is a
payment for the past service rendered and it is a social welfare
measure rendering socio-economic justice to those who in the hey day
of their life ceaselessly toiled for employers with a legitimate
expectation that in their ripe old age they would not be left in lurch.
37. Seemingly, keeping all the relevant facts and factors in view, the
Board of Directors of the Corporation have taken a decision in favour
of the petitioners. Now the matter is, admittedly, under consideration
with the government. The Court would wish to add only one thing here
which is that Section 5(1) of the Act provides that the general
superintendence, direction and management of the affairs and business
of a Corporation shall vest in a Board of Directors. Sub-section (2) of
Section 5 of the Act says that the Board shall consist of a Chairman
and such other Directors, being not less than five and not more than
seventeen, as the State Government may think fit to appoint. Section
44 of the Act empowers the State Government to make rules to, inter
alia, provide for the conditions and manner of appointment of
Directors of a Corporation. The Court is informed that no such rules
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have been made by the erstwhile State, now the UT. It is seen that the
Government in the Transport Department by Government order no.11-
TR(JK) of 2020 dated 11.02.2020 has accorded sanction to
reconstitution of the Board of Directors of the Corporation in
pursuance to sub-sections (2) and (3) of Section 5 of the Act with the
composition as already mentioned hereinabove which is reiterated
hereunder:
1. Advisor (B) to Lieutenant Governor; : Chairman
2. Financial Commissioner, Finance; : Vice Chairman
3. Administrative Secretary, Transport; : Director
4. Administrative Secretary,
Housing & Urban Development; : Director
5. Administrative Secretary,
Public Works (R&B); : Director
6. Managing Director, : Director/Member
J&K Road Transport Corp.; Secretary
7. Chief Engineer,
Mechanical Engineering Department; : Director
Under law there was no compulsion for the Government to appoint
such high ranking Government officers, who in their official capacities
are empowered to take major governmental decisions in their
respective departments, as Chairman, Vice Chairman and Directors of
the Board of Directors of the Corporation. Yet, the Government having
so done could not have been without any purpose. The purpose,
obviously, is that these authorities, who otherwise have to deal with
specific issues pertaining to their respective departments in their
individual capacities may collective deliberate over an issue and take a
quick and collective decision. In that view of the matter, once a
decision is taken by the high ranking officers collectively constituting
the Board of Directors - a statutory body - and is referred by such
forum to one of them for further action, it ought not take so long a time
at the level of the Finance Department for implementing the decision
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of the Corporation, for, nothing more is required to be done, the matter
having already been considered while sitting in the Board of Directors.
38. Be that as it may, in light of all what has been discussed
hereinabove, this writ petition is allowed. The impugned order issued
by General Manager (Admn), JKSRTC under endorsement
no.JKSRTC/Pen/II/1157 dated 29.10.2016 is quashed. The petitioners
are held entitled to all the retiral benefits, including pension, gratuity
etc. on par and on the analogy of the section of the employees of the
Corporation who were employees of the erstwhile GTU and had opted
for the service of the Corporation, and also on the analogy of their
counter parts in the JKI and other Corporations. The Board of
Directors of the Corporation having already taken a decision in this
regard and referred the matter to the Government in the Finance
Department, by issuance of a writ of Mandams, respondents 1, 2 and 3
are directed to consider the request of the Corporation made in this
regard by the Managing Director of the Corporation in terms of his
communication no. JKRTC/MD/PS/J/GMA/870 dated 15.06.2020
within a period of four months from the date a copy of this judgment is
served on and/or received by them. In consequence thereof, the
petitioners shall be paid the arrears of necessary dues as may be
payable to them from the date of their retirement.
39. No order as to cost.
(Ali Mohammad Magrey)
Judge
Srinagar
27.01.2021
Syed Ayaz Hussain, Secy
Whether approved for reporting: Yes
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