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State of U.P. v. Roadways Ministerial Staff Asson.

Supreme Court of India · 8 May 1996 · [1996] SUPP. 2 S.C.R. 565

Court
Supreme Court of India
Decided
8 May 1996
Case no.
C.A. No. 9040 of 1996
Reported as
[1996] SUPP. 2 S.C.R. 565
Result
Appeal(s) allowed
Bench
Ramaswamy, K.
Length
4 pages
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PETITIONER:
STATE OF U.P & ANR.
Vs.
RESPONDENT:
ROADWAYS MINISTERIAL STAFFASSOCIATION U.P. & ANR.
DATE OF JUDGMENT: 08/05/1996
BENCH:
RAMASWAMY, K.
FAIZAN UDDIN (J)
G.B. PATTANAIK (J)
CITATION:
JT 1996 (6) 208 1996 SCALE (5)18

ACT

HEADNOTE

JUDGMENT

THE 8TH DAY OF MAY, 1996 Present: Hon’ble Mr. Justice K. Ramaswamy Hon’ble Mr. Justice Faizan Uddin Hon’ble Mr. Justice G.B.Pattanaik K.S.Chauhan and R.B.Misra, Advs. for the appellants Aseem Mehrotra and A.P.Medh, Advs. for the Respondents

ORDER The following Order of the Court was delivered: State of U.P.& Anr. V. Roadways Ministerial Staff Association U.P.& Anr.

ORDER

Leave granted.

We have heard counsel on both sides.

The respondent-Association filed writ Petition No.3273/82 in the High Court of Allahabad, Lucknow Bench seeking to declare Rule 9(II) of the U.P. State Roadways Organization (Abolition of Posts & Absorption of Employees) Rules, 1982 made in exercise of the power under Article 309 of the Constitution (for short, the ’Rules’), as ultra vires and also for issue of a mandamus restraining the appellants from changing their status of Government servants as the Corporation employees. The Division Bench in the impugned order held as under:

"In view of what has been stated

above, part or Rule 8 is valid and

the absorption rules of the

employees are perfectly valid. The

writ petition to the above extent

deserves to be dismissed and

regarding pensionary benefits it is

allowed. A direction is issued to

the opposite parties to opt those

options who were sent on deputation

vide G.O. dated 7.6.1972 as amended

by G.O. dated 5.7.1972 to the

Corporation notwithstanding the

fact that they have not attained

the age of superannuation and on

the date of absorption they will

still continue in service, they

will be entitled to all pensionary

benefits and for that purpose they

will be treated in Government

service. But for the above relief,

the writ petitions are hereby

dismissed and interim order, if any

stands discharged. However, there

will be no order as to costs."

The question, therefore, is: whether the view taken by the High Court is correct in law? It is not in dispute that the members of the respondent Association had their status as Government employees but they had come on deputation to the Corporation. Rule 4(1) of the Rules envisages as under:

"4(1) An employee of the U.P. State

Roadways Organization, who was

placed on deputation with the

Corporation and who does not wish

to be absorbed in the service of

the Corporation shall, within 3

months from the notification of

these Rules in the Gazette,

intimate the Secretary to

Government in the Transport

Department that he does not wish to

be so absorbed."

Rule 5 envisages as under:

"The relevant posts in the U.P.

State Roadways Organization shall

stand abolished,

(i) Where the employee is

deemed to have opted for absorption

in the service of the Corporation,

in accordance with sub-rule (2) of

rule 4, from the date of expiry of

three months from the date of

notification of these rules;

(ii) Where the employee

intimates the Government his option

for being not absorbed in the

service of the Corporation from the

date on which the period of notice,

as provided in rule 6, expires or,

as the case may be, when the

services stand terminated or

dispensed with the accordance with

the said rule."

Rule 8 envisages as under:

"On the absorption of an employee

in the service of the Corporation,

the following consequences in

regard to his services under the

Government shall follow:-

(i) Leave account of the

employee shall be transferred to

the Corporation and the Corporation

shall not be entitled to receive

any contribution or compensation on

this account from the Government.

(ii) Government shall bear the

liability for pension,(which dies

not include family pension) and for

gratuity, (if admissible to an

employee), in proportion to the

qualifying service in the

Government rendered by an employee

before the date of his being placed

on deputation with the Corporation,

the entire liability for family

pension shall be borne by the

Corporation.

(iii) In respect of an

employee who did not hold any

pensionable post but was a member

of an Employee’s Provident Fund

Scheme, the liability for

contribution required to be made by

an employer, for the period prior

to 1.6.1972, shall be that of the

Government and with effect from

1.6.1972, it shall be that of the

Corporation.

(iv) An employee shall, from

the date of his absorption, cease

to subscribe to his General

Provident Fund account, if any,

under the State Government and the

amount to his credit in the fund,

together with interest thereon,

according to rules, till the month

preceding the date of transfer of

his account shall be transferred to

his new account to be opened under

the Corporation."

A bare reading of these Rules clearly indicates that a Government employee who was sent on deputation and who does not wish to be absorbed in the service of the Corporation was required to intimate within three months from the notification of these Rules to the Government in the Transport Department that he does not wish to be so absorbed in the Corporation. If he fails to avail of that remedy, the Rules envisage that he shall be deemed to be absorbed as a Corporation employee, Admittedly, none of the persons had exercised the option. As a result, by operation of Rule 5, the employee is deemed to have opted for absorption in the service of the Corporation, in accordance with sub-rule (2) of rule 14 from the date of expiry of three months from the date of the notification of the Rules. The consequence envisaged in Rule 8(ii) is that the Government shall bear the liability for pension which does not include family pension and for gratuity, if admissible to an employee, in proportion to the extent of the period of service with the Government rendered by an employee before the date of his being placed on deputation with the Corporation. The entire Liability for the family pension shall be borne by the Corporation. It would thus be clear that the three months’ cut off period given under the Rules from the date of the publication of the Rules is the appropriate and reasonable cut off period. Any employee who failed to avail of the same, by giving notice to the Secretary in Transport Department that he did not wish to be absorbed as Corporation employee, must be deemed to be an employee of the Corporation. Corporation, therefore, is liable to bear the liability of a deemed employee from the date mentioned in Rule 8(ii) read with Rule 4(2) and Rule 5 thereof. Resultantly, such employees are not entitled to cont the period from the date of the deputation till date of absorption to be the Government employee for computation of the pensionary benefits in their favour.

The appeal is accordingly allowed and the writ petition stands dismissed. But in the circumstances without costs.

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