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.