PEPSU ROAD TRANSPORT CORPORATION, PATIALA THROUGH ITS MANAGING DIRECTOR & ANR.versusS. K. SHARMA & ORS.

                             [2016] 4 S.C.R. 24



A       PEPSU ROAD TRANSPORT CORPORATION, PATIALA
           THROUGH ITS MANAGING DIRECTOR & ANR.
                                      v.
                          S. K. SHARMA & ORS.

8                      (Civil Appeal No. 4703 of2009)
                             AUGUSTOS,2016
          [SHIVA KIRTI SINGH AND R. BANUMATHI, JJ.)
           . Service Law : .Retiral benefits - Claim for pension instead of
    Contributory Provident Fund (CPF) - Validity - Respondents,
c   government employees transferred to Corporation - In terms of the
    then prevailing regulation, Corporation provided only for CPF and
    not pension - Respondents on retirement obtained such retiral
    benefits, without any pmtest - However, when Corporation
    introduced pension in 1992 respondents claimed entitlement to
D   pension - Held: The respondents participated and contributed to
    the scheme of CPF and obtained the benefits of retirement from the
    Corporation, without any protest -1.f the employees chose to accept
    the transition of their service from one concern to another and
    acquiesced then they cannot be permitted to turn back and challenge
    the entire developments after a gap of decades especially after their
E
    retirement - Respondents had accepted to continue as employees of
    Corporation pursuant to order of merger/tran.~fer, therefore, on
    completing their service under the Corporation and reaching the
    age of retirement they were entitled to receive only the benefits of
    CPF and gratuity - Since they accepted those retiral benefits, there
F   11 1as no relationship left between the Corporation and the
    respondents and in such a situation further claim was totally
    untenable.
          D.R. Gurushantappa v. Abdul Khuddus Anwar and Ors.
          1969 (3) SCR 425 : 1969 (1) SCC 466 - followed.
G
          Mysore State Road 7hmsport Corporation v. A. Krishna
          Rao and Anr. 1973(1) SLR 1080; PEPSU Road
          Tramport Corporation, Patiala v. Mangat Singh and
          Ors. 2011 (6) SCR 564 : 2011 (11) SCC 702 - referred
          to.
H
                                      24
         PEPSU ROAD TRANSPORT CORP., PATIALA                            25
              THR. ITS M. D. v. S. K. SHARMA

     National Insurance Company Ltd. v. Kirpal Singh 2014 (1)           A
     SCR 380 : 2014 (5) SCC 189 - distinguished.
      Vice Chancellor, Utkal University & Ors. v. S.K. Ghosh &
      Ors.1954 AIR 217 : 1954 SCR 883; S.R. Bhanrale v. U1iion
      of India and Ors. 1996 (3) Suppl. SCR 763 : 1996 (10) SCC
      172; Fertilizer Corporation of India Ltd. v. Union of India B
      & Ors.1996 (2) SCR816 : 1996 (3) SCC 325; S.K. .Rattan v.
    · Union qf India & Ors. 2013 (12) SCR 743 : 2014 (4) SCC ·
      144; State of Haryana & Ors. v. Amar Nath Bansal 1997
      (1) SCR 262 : 1997 (10) SCC 700 - distinguished.
     State of Punjab v. Nirmal Singh 2007 (8) SCC 108 - held            C
     inapplicable.
                      Case Law Reference
  2~11 (6) SCR 564                referred to            para8
  1954 SCR 883                    distinguished         para9           D
  2007 (8) SCC108                 held inapplicable      para 10
  1996 (3) Suppl. SCR763          distinguished         .rara 11
  1996 (2) SCR 816                distinguished          para 12
   ~973(1) SLR 1080               referred to            para 12         E
  2014 (1) SCR 380               ·distinguished          para 13
  2013 (12) SCR 743               distinguished          para 13
   1997 (l)SCR 262                distinguished          para 13
   1969 (3) SCR 425               followed               para 16         F
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4 703
of2009.
      From the Judgment and Order dated 24~04.2006 of the High Court
of Punjab and Haryana at Chandigarh in L.P.A. No. 700 of 2002 in
C.W.P. No. 11908of1992.                                                  G

       Rakesh Dwivedi. Sr. Adv., K. K. Mohan, Ms. Apoorva Garg, Advs.
for the Appellants.
      S. K. Sharma, Abhishek Puri, Mrs. Reeta Dewan Puri, P; N. Puri,
M. K. Dua, Advs. for the Respondents.                                    H
26             SUPREME COURT REPORTS                       .[2016] 4 S.C.R.



A          The Judgment of the Court was delivered by
            SHIVA KIRTI SINGH, J. I. This appeal by special leave assails
     the judgment and order dated 24.04.2006 passed by a Division Bench of
     High Cou1t of Punjab and Haryana dismissing LPA No. 700 of 2002
     preferred by the appellants and affirming the judgment oflearned Single
B    Judge dated 11.01.2002 whereby Writ Petition bearing CWPNo. 11908
     of 1992 preferred by some of the respondents was allowed. Some had
     preferred to file suits and Civil Appeals which were dismissed. Their
     Regular Second Appeal No. 430 of 1995 was tagged with the above
     writ petition and was allowed by the same common judgment enabling
     all the 21 respondents to refund a pa1t ofCPF (Govt. Contribution) or
c    agree for adjustment, to obtain pensionary benefits.
            2. The respondents filed the writ petition in 1992 claiming that
     they were appointed originally in a department of PEPSU described as
     PEPSU Roadways, between January 1955 and September 1956. It is
     not in dispute that in the PEPSU Roadways the respondents' appointment
D    was only on temporary basis. PEPSU Roadways lost its utility due to
     creation of PEPSU Road Transport Corporation (hereinafter referred
     to as the ·corporation'). Copy of notification dated 07.01.1956 available
     on record shows that Corporation was created by this notification under
     the provisions of the Road Transport Corporation Act, 1950 enforced
E    with effect from I 0.08.1954. The State Government through the Chief
     Secretary issued a letter dated 16.10.1956 informing the General
     Manager, PEPSU Roadways, Patiala (with reference to PEPSU
     Roadways' communication dated 14.10.1956) that His Highness the
     Rajpramukh had ordered the transfer of PEPSU Roadways to the PEPSU
     Road Transport Corporation (with effect from 15.10.1956 forenoon) on
F    various terms and conditions in respect to evaluation of the assets of the
     PEPSU Roadways as well as sharing the burden for payment of the
     employees of the Corporation. The letter indicates that the Corporation
     was requested to draw up the agreement required by clause (h) of sub-
     section (2) of Section 19 of the Road Transport Corporation Act, 1950
G    and forward the same to the Government for approval and signatures.
     On account of the States Reorganization Act the merger of State of
     PEPSU with the State of Punjab became effective from 01.11.1956.
     Through an Order no. 61 dated 30.11.1956 the Corporation admitted
     that PEPSU Roadways stood taken over by the Corporation from
      16.10.1956 (before noon), so the services of all the temporary employees
H
    PEPSU ROAD TRANSPORT CORP., PATIALA THR. ITS                               27
      M. D. v. S. K. SHARMA [SHIVA KIRT! SINGH, J.l

stood transferred to the Corporation with effect from 16. I 0. 1956 on the     A
prevailing terms and conditions till the approval of new terms and
conditions by the Corporation. The respondents never challenged this
declaration, got promotions etc. and continued to serve the Corporation
till they all retired between 1989 and 1991. It is not in dispute that PEPSU
Road Transport Corporation Regulations which was framed in I 957
                                                                               8
provided for Contributory Provident Fund (CPF). There was no provision
for grant of pension. Much after the retirement of the respondents, only
with effect from 15.06.1992 the Corporation framed PRTC Employees
Pension/Gratuity and General Provident Fund Regulations, ~992
(hereinafter described as 'Regulations of 1992'). Under t'hese
Regulations, for the first time pension was introduced in the Corporation.     c
       3. Soon after the enforcement of Regulations of 1992 the
respondents who had already received their retiral benefits under the
1957 Regulations filed the writ petition at hand. Or!ginally the grievance
of the respondents in the writ petition was as to why the Regulations of
1992 have not been made retrospective but through an amendment in              D
1998, the writ petition was substantially amended so as to claim that
they continued to be employees of the State in the department of PEPSU
Roadways till PEPSU State was reorganized and from 01.11.1956, the
date of reorganization they became employees of State of Punjab with
right to pension as available to Government servants. The Single Judge
allowed the writ petition on the premise that the respondents had simply        E
been transferred from the parent department to serve in the Corporation
and therefore they continued to be Government servants because there
was no order passed for their absorption in the Corporation. The Letters
Patent Appeal preferred by the appellants was dismissed by the judgment
and order dated 24.04.2006 which is under challenge in this appeal.             F
       4. It is significant to note that the letter of Chief Secretary dated
16.10.1956 informing the General Manager, PEPSU Roadways of
Government's decision on the subject of transfer ~f PEPSU Roadways
to the Corporation was not placed before the High Court by the writ
petitioners although it finds a specific mention in Order no. 61 dated          G
30.11.1956 passed by the General Manager, PEPSU Road Transport
Corporation. Hence this Court, apparently in the larger interest ofjustice,
by order dated 20.08.2015 permitted the appellants to place on record
the consent of the respondents and necessary documents to show that
the respondents accepted transfer from PEPSU Roadways to the
                                                                                H
28             SUPREME COURT REPORTS                        [2016) 4 S.C.R.



A    Corporation. The additional fresh documents were filed after service
     upon the respondents who were granted accommodation on that ground
     on 24.11.2015. The additional documents were filed with an affidavit on
     behalfofappellants and include a copy ofletter dated l 6.10.1956. The
     respondents have not objected to the correctness and authenticity of the
     additional documents and hence those documents have been taken on
8
     record and used by learned senior counsel for the appellants in support
     of his contentions.
            5. On behalf of the appellants learned senior counsel Mr. Rakesh
     Dwivedi first took us through the letter dated 16.10.1956 and also the
     subsequent order dated 30.11.1956. He showed by way of illustration
c    that one of the respondents Mr. 0.P. Trehan through letter dated
     01.03.1965 had opted to serve the Corporation. He also placed reliance
     on order dated 02.06.1986 of the Corporation by which Mr. S.K. Shanna,
     another respondent was promoted as Sr. Depot Manager which he
     accepted. That order clearly stipulated that he will be governed by the
D    rules in force and those that may subsequently be fra1ned for the officers
     of the Corporation. Before advancing submissions in respect of issues
     of law, Mr. Dwivedi emphasised that being temporary employees of
     PEPSU Roadways till 15.10.1956, the respondents under then prevailing
     service rules of the State Government were not entitled to pension as
     temporary employees even till their department i.e, PEPSU Roadways
E    was merged with the. Corporation by the decision of the State
     Government. Therefore, it is contended that they have not suffered any
     adverse consequences on account of merger; rather they became
     permanent employees of the Corporation, obtained promotions and on
     retirement availed all the lawfully admissible benefits ofCPF and gratuity
F    without any protest and demur.
           6. On behalf ofappellants Mr. Dwivedi has advanced the following
     submissions:
        (I) The relevant Depa1iment, PEPSU Roadways itself ceased to
           exist and be a Department and was merged with the Corporation
G          totally and completely by 16.10.1956. The Depa1iment merged
           along with the posts, assets, liabilities and the respondent
           employees. There was no protest or challenge to such merger by
           way of transfer of the entire Department to the Corporation.
        (2) The word "transfer" is not used in the Government's decision
H          evidenced by letter dated 16.10.1956 in the narrow sense of
    PEPSU ROAD TRANSPORT CORP., PATIALA THR. ITS                              29
      M. D. v. S. K. SHARMA [SHIVA KIRT! SINGH, J.]

      "transfer and posting" to another post or place. Rather, it connotes    A
      transfer as merger of the entire Department with assets, liabilities,
      posts and employees including their service and hence there was
      no occasion or need for any order of absorption in respect of the
      respondents.
   (3) Since the transfer/merger of the Department was complete much          B
      before the date 01.11.1956 when PEPSU State merged with the
       State of Punjab under the States Reorganization Act, the
       respondents cannot claim to have become employees of State of
      Punjab by virtue of Section 115 of States Reorganization Act.
       This provision could have helped them only ifthe Department-
       PEPSU Roadways could have existed till 01.11.1956 or ifthey
                                                                              c
       had been simply deputed to work in the Corporation under usual
      terms of deputation while retaining their lien on posts available
       under the State Government.
       7. Learned senior counsel for the appellants elaborated his
submissions by contending that the High Court erred in relying upon           D
various sub-sections and provisos to Section 115 of the States
Reorganization Act and such e1Tor was on account of failure to appreciate
that the respondents ceased to have for them any post in the Government
due to complete transfer/merger of the PEPSU Roadways with the
Corporation much before 01.11.1956. It was also contended that the            E
High Court failed to appreciate that as temporary employees with very
little service to their credit, the respondents were not put to any
disadvantage on account of transfer/merger because being temporary
employees in 1955 and 1956, they were then not entitled to pension
under the PEPSU Services Regulations governing pensions, particularly
sub-rule (a) of Rule 1.2 in Chapter 1 which contains general rules relating    F
to pensions for superior and inferior service. The rule reads thus:
      "Cases in which claims to pension are inadmissible
       1.2 In the following cases no claim to pension is admitted:-
      (a) When a Government servant is holding an appointment of a            G
      temporary nature or is paid for definite work done for the
      Government without being permanently employed."
      8. Lastly, it was contended on behalf of appellants that the High
Court should not have entertained the writ petition in 1992 or allowed
substantial amendments in 1998 to permit claims made belatedly after          H
30              SUPREME COURT REPORTS                        [2016) 4 S.C.R.


A    decades and after superannuation from the service 0rthe Corporation.
     Such claims should have been rejected on the ground of delay. In support
     of this plea reliance was placed upon judgment in the case of PEPSU
     Road Transport Corporation, Patiala v. Mangat Singh and Ors.'
     In this case the respondents were still in service as the employees of the
     appellant Corporation when the Regulations of 1992 introduced a pension
B
     scheme but they did not exercise option for pension within the stipulated
     time. Moreover, they also availed ofretiral benefits arising out ofCPF
     and gratuity without any protest. This Court held that the respondents on
     account of failure on their part, could not claim benefit under the pension
     scheme. Particular reliance was placed upon the following observations
c    at the end of paragraph 35;
            " ..... On the receipt of CPF amount, the relationship between
            employee and employer ceases to exist without leaving any further
            legal right or obligation qua each other."
            Since most of the respondents in that case also had retired after
D    serving for several years since the enforcement of Regulations of 1992
     and had advanced claim for pension afte!· accepting CPF etc., in para 52
     th is Court counted the delay of about eight years from the introduction
     of pension scheme in 1992 and held such delay was Linreasonable. On
     that basis it has been urged on behalf of appellants that through
E    amendment made in 1998 the respondents gave up their claim for pension
     under the Regulations of 1992 and instead claimed pensionary rights by
     indirectly mounting a challenge to the decision of the State Government
     evident from letter dated 16.10. I956, merging PEP SU Roadways with
     the Corporation. Their claim of being in the employment of State and to
     have suffered the effect of States Reorganization Act and merger of
F    PEPSU State with the State of Punjab on OJ.I 1.1956 was clearly a
     claim made after unusual delay of several decades and the High Court
     should not have condoned such delay.
            9. In reply, Mr. S.K. Sharma learned counsel for the respondents
     advanced arguments in support of the impugned judgment. As per his
G    submissions, even after the transfer of Roadways Department to the
     Corporation, there was legal necessity of issuing formal orders showing
     absorption of respondents as employees of Corporation under a valid
     resolution of the Corporation. He relied upon findings of the High Court
     that there was no order or resolution for such absorption. On behalf of
     1 (2011) 11sec102
H
    PEPSU ROAD TRANSPORT CORP.. PATIALA THR ITS                                31
      M. D. v. S. K. SHARMA [SHIVA KIR1 I SINCJH. .I ]

respondents reliance was placed upon judgment in the case of Vice              A
Chancellor, Utkal University & Ors. v. S.K. Ghosh & Ors.', to
support the proposition that a corporate body like University acts through
formal resolution arrived at in a proper manner by the competent body.
The facts of this case were entirely different. The appellant before this
Court was Vice-Chancellor of a University who was aggrieved by the
                                                                               B
High Court judgment interfering with the cancellation of an examination
through resolutions of the University Syndicate. The High Court
invalidated the resolution for want of proper notice vi de agenda for the
meeting as well as lack ofjustification for cancellation of the examination.
This Court reversed the judgment of the High Court on both counts. The
ratio of the judgment does not help the respondents.                           c
       l 0. Respondents next relied upon judgment in the case of State
of Punjab v. Ni rm al Singh.3 In this case State of Punjab was aggrieved
by impugned judgment of the High Court whereby minor punishment
imposed upon Nirmal Singh was set aside. This Court allowed the appeal
and reversed the judgment of the High Court on a finding that there was        D
no requirement under the rule to grant a personal hearing for imposition
of a minor penalty and that the High Cou1i had erred in treating the
order of the competent authority as a non-speaking order. This case also
is not relevant for deciding the controversy at hand.
       11. To meet the allegation of delay, reliance was placed upon S.R.       E
Bhanrale v. Union oflndia and Ors) The appellant in that case retired
as an officer in the Department ofTelecommunications, Government.of
India and received pension immediately on retirement. For no good
reasons his other retiral benefits and claims remained unsettled in spite
of several representations. After serving the notice under Section 80
CPC and approximately after three years he moved the Central                    F
Administrative Tribunal. While the matter was pending with this Court,
upon directions of the Department, the appellant was paid some of the
benefits. At the stage of final hearing, this Court considered the
circumstances and observed that in the facts of the case the Union of
India was not justified in raising the bar oflimitation against the dues of     G
the appellant. It cannot be claimed by way of general rule simply on the
basis of aforesaid judgment that in all cases of claim for pension, the
plea of delay or limitation cannot be considered by a writ court. Only
2
  AIR 1954 SC 217
' (2007)s sec os
              1
' (1996) 10sec 112                                                              H
32              SUPREME COURT REPORTS                         [2016] 4 S.C.R.


A    where the retiral benefits have been wrongly withheld and not paid despite
     numerous representations and as observed in para 4 of the aforesaid
     judgment the delay is not of decade or so the Court may not appreciate
     a plea of limitation raised by the Government. In the present case
     admission or declaration made by the Corporation on 30.11.1956 through
     Order no. 61 that services of the respondents, i.e., of all temporary
B
     employees stood transferred to the Corporation with effect from
     16.10.1956 and shall be governed by the new terms and conditions as
     and when approved by the Corporation was within the knowledge of the
     respondents and they accepted such orders of the Government and the
     Corporation from 1956 till their retirement and even thereafter till the
c    enforcement of Regulations of 1992 which led to tiling of writ petition by
     them in 1992. Clearly the respondents acquiesced to the entire situation
     and accepted their status as employees of the Corporation leading to
     admissible retiral benefits. In such circumstances, the aforesaid judgment
     cannot help the respondents. The appellant Corporation was fully justified
     in raising the plea of delay and latches. The High Court erred in ignoring
D
     such plea when the delay was quite unusual. We tii1d no material to
     satisfactorily explain such delay.
            12. Appearing for some of the respondents, further reply was
     advanced by Mr. M.K. Dua, Advocate. He contended that as per Section
     11 of the States Reorganization Act, the merger of PEPSU with Punjab
E    State was effected on 01.11.1956 and therefore from such date, by virtue
     of Section 115( I) of the States Reorganization Act the respondents were
     rightly treated by the High Court to have acquired the status of
     Government servant in the successor State of Punjab. He referred to
     pleadings in the writ petition to the effect that in 1956 the respondents
F    were transferred to the Corporation without being given any opportunity
     of exercising option. It was also urged that in reply the other side did not
     controvert such a plea nor there was any reply to the claim that the
     respondents were not issued with any formal order of absorption. He
     relied upol1judgment of this Court in Fertilizer Corporation oflndia
     Ltd. v. Union oflndia & Ors. 5 in support of a proposition that unless
G    the absorbing body/authority issues an order fo1' absorption of a
     Government officer in its service on a permanent basis, mere
     correspondence or any order of notification issued by others cannot confer
     benefits of absorption on such Government officer. It would suffice to
     note that the claim ofabsorption made by an individual officer was being
H    ' ( t996) 3 sec 325
    PEPSU ROAD TRANSPORT CORP., PATIALA THR. ITS                              33
      M. D. v. S. K. SHARMA [SHIVA KIRT! SINGH, J.]

denied by the absorbing body and the proposition noted above was mooted       A
by the Court in the facts where such individual claim is being denied by
the concerned organization. The facts in the present case are entirely
different. In support of same proposition oflaw reliance has been placed
upon Mysore State Road Transport Corporation v. A. Krishna Rao
and Anr. 6 In Mysore State R.T.C. case the concerned employee of
                                                                              8
Bangalore Transport Company Ltd. by virtue of statutory provisions
became employee of the State. Thereafter there was no order of transfer
or merger of the concerned department with the subsequently formed
Corporation. The Corporation was directed to take over only those
employees who opted for its service. Since the concerned respondent-
employee was not given any notice of option it was held that he could         c
not claim to be an employee of the Corporation.
       13. Respondents have placed reliance also upon case ofNational
Insurance Company Ltd. v. Kirpal Singh 7 to contend that since
provision for payment of pension is beneficial in nature, the provision
ought to receive a liberal interpretation so as to serve the object of the    D
pension scheme as well as any special scheme like a voluntary retirement
scheme. On facts the said judgment dealt with the provisions ofVoluntary
Retirement Scheme which required interpretation. The present case does
not raise any such issue as to interpretation of any pension scheme.
Reliance was also placed upon case of S.K. Rattan v. Union of India
& Ors.• Para 13 of that judgment contains the reasons indicated by this        E
Court for holding that by sheer transfer of an employee from an institution
like CBI to another organization, the officer cannot be made to suffer in
his service conditions without framing appropriate rules under Article
309 of the Constitution as it would amount to discrimination for no
justifiable reasons. In that case, the submission on behalf of the Union of    F
India were not accepted because this Court found that till the officer
retired from service, no separate service rules had been framed for the
officers of the organization where he was transferred but in the case at
hand the PEPSU Road Transport Corporation Regulations providing for
CPF has been framed as back as in 195 7. The said judgment is therefore
of no help to respondents. Reliance placed upon State of Haryana &             G
Ors. v. Amar Nath Bansal9 is equally misconceived because in that
6
  1973(1) SLR 1080
1
        s
  (2014) sec 189
' (2014) 4 sec 144
' (1997) 10sec100                                                              H
34               SUPREME COURT REPORTS                         (2016] 4 S.C.R.



A    case there was no dispute that the respondent was an employee of the
     State of PEPSU and. therefore. on and from the appointed date he
     became amenable to Punjab Service Rules under which he was rightly
     retired at the prescribed age. In reply, learned senior counsel for the
     appellants has rightly taken a stand that most of the cases noted above
     on which respondents have placed reliance relate to individual employees
B
     who had been transferred on deputation and, therefore, are clearly
     distinguishable. They can have no application to the present matter
     because prior to 01.11.1956 the respondents had ceased to be
     Government servants under the PEPSU State with effect from 16.10.1956
     and had become servants of the Corporation.
c             14. Further reply of the appellants is that respondents chose not to
       challenge or resist the decision of the PEPSU State whereby the entire
       department where they were working as temporary employee was by
       transfer merged with the Corporation. They chose this course because
       they had no right to post held by them and cou Id have been out of
D      employment. Since the department itself ceased to exist there were no
       posts on which the respondents could claim lien and in absence of any
       such post or lien they cannot claim to be Government employee of
     · PEPSU State till 01.11.1956, the date of the merger of PEPSU State
       with Punjab. By placing reliance upon Section 34 oftlie Road Transpo11
       Corporation Act, 1950, it has been urged on behalf of the appellants that
E      the State Government has statuto1y power to give the Corporation general
       instructions including directions relating to the recruitment, conditions of
       service and wages to be paid to the employees etc. The Corporation is
       saddled with a statutory obligation not to depart from such general
       instructions. Therefore, the letter of Chief Secretary dated 16.10.1956
F      containing direction of the State Government was binding upon the
       appellant-Corporation and as a result without need ofany individual orders
       of absorption the entire establishment of the transferred department had
       to be taken over by the Corporation. The absorption oftlie employees in
       law was complete on 16.10.1956 due to such order of transfer and
       amalgamation. The Corporation had no option to seek options and to
G      issue orders of absorption as per its discretion or will. The respondents
       being temporary employees had the option either to quit the service of
       the Corporation or challenge the orders or directions of the State
       Government but they chose to do neither.
             15. By relying upon paragrap,h 54 of the unamended writ petition
H
       l'l~PSU ROAD TRANSPORT CORP., PATIALA THR. ITS                                35
           M. D. v. S. K. SHARMA [SHIVA KIRTI SINGH, J J

learned senior counsel for the appellants submitted that in fact the                 A
respondents had admitted in their initial stand that PEPSU Roadways
merged with the Corporation on 16.10.1956. A perusal of said paragraph
54 shows that respondents accepted the aforesaid facts and their only
stand was since "they did not give any option to the effect they would
not claim any pensionary benefits", they will remain Government
                                                                                     B
employees entitled to pensionary benefits.
        16. The main controversy in this case is whether the claim of the
respondents, a group of twenty one employees of PEPSU Roadways
that in spite of transfer of that department to the Corporation they continue
to be actually Government servants and therefore entitled to retiral
benefits instead ofCPF is acceptable or not. Jn this controversy. a judgment
                                                                                     c
of this Court though rendered in slightly different factual matrix is
substantially relevant and helpful. In D.R. Gurushantappa v. Abdul
Khuddus Anwar and Ors. 10 an issue arose in the context of election
of the Mysore Legislative Assembly as to whether the respondent was
holding office of profit under the Government. The respondent no. I of               D
that case was initially a Government servant but subsequently the
Government concern where he was working was taken over by a
company registered under the Indian Companies Act, 1956. The shares
of the company were fully owned by the Government but after the
Government undertaking was taken over by the company, the employees
were no longer governed by the Mysore Civil Services Regulations, their
                                                                                      E
conditions of service came to be determined by the standing orders of
the company. The first contention against respondent no. I was that
since he was initially a Government servant, even after the concern was
taken over by the company he would continue to be in the service of the
Government. While dealing with this issue in paragraph 3, this Court                  F
rejected the contention in the following words:
          "3. So far as the first point is concerned, reliance is placed primarily
          on the circumstance that. when the concern was taken over by
          the Company from the Government there were no specific
          agreements terminating the Government service of Respondent                G
           I, or bringing into existence a relationship of master and servant
          between the Company and Respondent I. That circumstance. by
          itself. cannot lead to the conclusion that Respondent I continued
          to be in government service. When the undenaking was taken
1"   I %9 (I) S('( .. f(,(1                                                          H
36              SUPREME COURT REPORTS                          [2016] 4 S.C.R.



A          over by the Company as a going concern, the employees working
           in the undertaking were also taken over and since, in law, the
           Company has to be treated as an entity distinct and separate from
           the Government, the employees, as a result of the transfer of the
           undertaking, became employees of the Company and ceased to
           be employees of the Govern"''""'·"
B
              17. In the facts of the cas~, we have no hesitation to hold that the
     High Court erred in allowing the writ petition and second appeal of the
     respondents and in dismissing the Letters Patent Appeal of the appellants.
     The judgments on which the respondents have relied upon for advancing
     the submission that they cannot lose the status of a Government servant
c    till they are absorbed in the Corporation after offering an option in favour
     of such absorption is entirely misconceived and inapplicable in the facts
     of the present case. The stand of the respondents could have been
     acceptable had there been no decision of the PEPSU State as evidenced
     by the letter of Chief Secretary dated 16.10.1956 which finds mention
D    and reiteration by way of admission by the Corporation in order dated
     JO. I I. J956. There can be no such belated challenge to the decision of
     PEPSU State whereby PEPSU Roadways, one of the departments came
     into and merged with the Corporation lock, stock and barrel before the
     merger of PEPSU with Punjab on 0 J. J J. J956. Hence, the provisions of
     the States Reorganization Act ceased to have any significance in the
E    matter because the respondents ceased to be employees of State
     Government of PEPSU prior to OJ. J J. J956. They accepted such merger
     and alteration of their service conditions without any protest. Since J957,
     under the Regulations of the Corporation they participated and contributed
      to the scheme of CPF and obtained the benefits of retirement from the
F    Corporation between J985 and 199 J without any protest. The High Court
     clearly erred in ignoring such conduct of the respondents, the effect of
      the Chief Secretary's letter dated 16. I 0.1956 containing decision of
      PEPSU State and its acceptance by the Corporation reflected by the
     order dated 30.11.1956. The High Court further erred in relying upon
      Jaw which is applicable when there is no merger of Government concern
G     with the private concern but only individual employees are transferred
     on deputation or on foreign service to other organizations/services. The
     ordinary rules providing for asking of option or issuance of letters of
     absorption depend upon nature of stipulations which may get attracted
     to a case of deputation. There may be similar stipulations in case of
H     merger by transfer. But if there are no such stipulations like in the present
    PEPSU ROAD TRANSPORT CORP., PATIALA THR. ITS                             37
      M. D. v. S. K. SHARMA [SHIVA KIRT! SINGH, J.]

case then the transferee concern like the Corporation has no obligation      A
to ask for options and to issue letters of options to individual employees
who become employees of the transferee organization simply by viiiue
of order and action of transfer of the whole concern leading to merger.
No doubt in case of any hardship, the affected employees have the
option to protest and challenge either the merger itself or any adverse
                                                                             B
stipulation. However, if the employees choose to accept the transition of
their service from one concern to another and acquiesce then after
decades and especially after their retirement they cannot be permitted
to turn back and challenge the entire develop1nents after a gap of
decades.
       18. On the basis of laws and facts discussed above, we are
                                                                             c
constrained to hold that the respondents had accepted to continue as
employees of Corporation pursuant to order of merger/transfer of PEPSU
Roadways with effect from 16.10.1956 and on completing their service
under the Corporation and reaching the age of retirement they were
entitled to receive only the benefits ofCPF and gratuity as admissible to    D
them under then prevailing regulations of the Corporation. Since they
accepted those retiral benefits there is no relationship left between the
Corporation and the respondents and in such a situation further claim
against the Corporation that it should treat the respondents to be
Government servants and adjust their retiral benefits accordingly was
totally untenable and wrongly allowed by the High Court. The impugned        E
judgment of the High Court granting relief to the respondents is therefore
set aside. The second appeal and the writ petition of the respondents
shall stand dismissed. This appeal is accordingly allowed but the parties
are left to bear their own costs.
Divya Pandey                                               Appeal allowed.   F