All J&K Workers Union Srtc vs State Of J&K & Ors

,,

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.,,

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 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.,,

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.",,

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.,,

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.",,

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.,,

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.,,

The case of the petitioners is that whereas the aforesaid group of employees were given an option to draw the pensionary benefits under 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.,,

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.,,

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.,,

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.",,

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 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.,,

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.,,

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.,,

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 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.,,

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.",,

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-Ã -",,

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 counter parts working in other Corporations in the UTs of Jammu and Kashmir and Ladakh, such as the",,

employees of JKI, etc.",,

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 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.,,

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.,,

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 34, be determined by regulations made under the Act. Section 14 is extracted",,

hereunder:,,

“14. Officers and servants of the Corporation. â€",,

(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 shallâ€",,

(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.â€​,,

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.",,

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.â€"(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 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.â€​,,

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.",,

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.,,

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 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.,,

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.,,

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 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.â€​,,

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.,,

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.,,

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.,,

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.,,

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 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:",,

Arrears of DA and COLA with effect from year 1999,,

Arrears of 6th Pay Commission,,

Implementation of 7th Pay Commission,,

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.â€​,,

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:,,

Mr. Rajeev Rai Bhatnagar,",,

Advisor (B) to Hon’ble Lieutenant Governor,",,

(Chairman, JKRTC Board of Directors);",,

Mr. Arun Kumar Mehta, IAS,",,

Financial Commissioner,",,

Finance Department,",,

(Vice Chairman);,,

Mr. Deeraj Gupta, IAS",,

Principal Secretary to Government,",,

Housing & Urban Development Department, (Director);",,

Dr. Asgar Hassan Samoon, IAS Principal Secretary to Government, Transport Department, (Director);",,

Er. Fareed Ahmed Chowdhary, Chief Engineer,",,

Mechanical Engineering Department, (Director);",,

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:,,

“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.â€​,,

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.,,

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 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 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.,,

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 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.,,

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.,,

The employees of JKRTC are not being extended the pension benefits highlighted above and are worth consideration.â€​,,

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.,,

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 respondent no.5 through the",,

General Managing, SRTC (Adm), is rendered inconsequential and is, therefore, liable to be quashed.",,

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 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.,,

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)",,

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.,,

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 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,,

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,

J&K Road Transport Corp.;",": Director/Member

Secretary

7.,"Chief Engineer, Mechanical Engineering Department;",: Director