HARI SHANKAR GAUR AND ANR. ETC.versusDELHI TRANSPORT CORPORATION AND ORS.

             I
           HARi SHANKAR GAUR AND ANR. ETC.                                  A
                                    v.
       DELHI TRANSPORT CORPORATION AND ORS.

                        NOVEMBER 30, 1988

       [G.L. OZA AND K. JAGANNATHA SHETTY, JJ.]                             B

      Civil Services: Delhi Transport Corporation-Employees of erst-
while Gwalior and Northern Indian Transport Corporation-Protected
employees under the Agreement of Take-over-Right to continue in
service upto 60 years.

      The Gwalior and Northern India Transport Company (GNIT
                                                                            c
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 ser\·ices of all
employees of the GNIT company were taken over by the Government of
India, but they continued to be governed by the rules in force before the   D
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 Govern-     E
ment 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 o.f retirement
at 60. Option however was there for the employee to seek voluntary
retirement at SS years and for the Government to compulsorily retire
an employee at SS. The Delhi Transport Corporation retired the              F
petitioners on the ground that they attained the age of superannuation
at S8 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 SS, but superannuation
could be only on reaching 60, and not at SS as claimed by the Corpora-
tion. The Delhi High Court rejected the petition. Against this, the         G
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,
                                                                            H
                                  1003
                                                                    ,
    1004         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.
                                                                '
A         HELD: The persons who were originally in the employment of
    GNIT Company and were employed prior to October 28, 1946 and
    continued in service till May 14, 1948 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
B   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
c   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; l007E-G; 1008C]

D        CIVIL/ORIGINAL JURISDICTION: Writ Petition (Civil)
    No. 1244 of 1986.

           (Under Article 32 of the Constitution of India).

                                      WITH

E          S.L.P. (Civil) No. 8948 of 1986.

         From the Judgment and Order dated 10.4.1986 of the Delhi High
    Court in C.W.P. No. 795 of 1986.

           Jitender Sharma for the Petitioners.
F
           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
G   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 iti the erstwhile Gwalior and Northern India Transport
H   Company ('GNIT Company' for short) in 1946 or before that.
                      H.S. GAUR v. D.T.C. !OZA, J.]                  1005

      It is not in dispute that before 1948 these petitioners were
                                                                             A
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 Indla, the Ministry of
Transport and it was named as "Delhi Transport Service". The                 B
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 civer. Subse-
quently 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".
                                                                             c
      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 14th May, 1948 shall not be taken over
on the terms not less liberal than those they were governed and there-       D
fore 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 petit;oners, be-
fore they were taken over, the service conditions of the employees of
GNIT Company were governed by the Gwalior State Civil Service                E
Rules. But the respondent denied that and said that they were gover-
ned 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 give!] 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.               F
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         G
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            H
    1006        SUPREME COURT REPORTS              [1988] Supp. 3 S.C.R.

A   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 perso'ns who were in employment before the taking
    over, were 'governed by the Rules of the Gwalior State Civil servants.
B   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
c   provided:

                                    "CHAPTER 1-A

               7(a)(l) Every employee has a right to seek retirement
D              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.

E              (3) In case an employee does not seek retirement from
               service after attaining the age of 55 years or the Govern-
               ment also does not order his retirement from service, than
               he shall continue in service till he attains the age of 60
               years.

F              (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 ac-
G              cording to the rules.

               Note (1): These Rules will not apply to the Police
               Personnels.

               Note (2): The concerned Departments shall initiate retire-
H              ment proceeding against those employees who have
                      H.S. GAUR v. D.T.C. (OZA, J.]                    1007

            attained the age of 60 years at the time of enforcement of the
                                                                               A
            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 sanctione.d they s_hall 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        B
            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       c
>ervice 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 retire-            D
ment at 55 years and for the Government to compulsorily retire him at
55.

      Counsel for the respondent does not dispute the above provi-
sions. He, however, argued that the age of 55 years at which an
employee could be asked to retire has been raised by the corporation           E
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 in his erstwhile
company only at 55. Our attention was invited to Service Regulations
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              F
petitioners on attaining the age of 58 years, the argument would have
been tenable. But that was not done by the Corporation. The Corpora-
tion retired the petitioners on the ground that they attained the age of
>aperannuation at 58 years. It is so stated by the notice (Annex. E)
dated January 2, 1986 issued by the Deputy Personnel Officer,! to
Hari Shankar Gaur-petitioner in W.P. No. 1244/86. The notice reads:            G

                   "DELHI TRANSPORT CORPORATION
                A GOVERNMENT OF INDIA UNDERTAKING
                       l.P. ESTATE: NEW DELHI

No. PLD-IX(PF)/85/128                                         Dt. 2.1.1986     H
    1008        SUPREME COURT REPORTS               [ 1988] Supp. 3 S.C.R.

                      Shri Hari Shankar Gaur s;o Shri M.L. Gaur, Office
A
                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 JO of the D.R.T. Act (Conditions of Appoint-
                ment & Service) Regulations, 1952 read with office order
B               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.
    That means the Corporation was under the impression that the
    petitioners have no right to continue beyond the age of 58 years.
c          We are, therefore, pf 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.
D
         In the result the writ petition and the SLP are allowed to the
    extent indicated above.

    No order as to costs.

E   G.N.                                                  Petitions allowed.