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2013 DIGILAW 159 (UTT)

Abdul Salam Khan v. State of Uttarakhand

2013-03-20

ALOK SINGH, BARIN GHOSH

body2013
JUDGMENT Barin Ghosh, J. 1. At the time of creation of the State of Uttarakhand, appellants were employees of the Uttar Pradesh State Transport Corporation working as drivers. As such employees, they were entitled to the benefit of contributory provident fund and not to pension. They were also entitled to applicable gratuity. After creation of the State of Uttarakhand, they continued to serve the Corporation in relation to its activities carried out within the territory of the State of Uttarakhand. On 19th January, 2002, a proposal was given to the appellants, whereby and under, they were given an offer of being merged in the State Government. In the offer, it was indicated that the employer’s contribution to the contributory provident fund lying to the credit of the appellants in their contributory fund account will be transferred to the State Government and the employees’ contribution therein will be transferred to the new GPF account to be opened in the name of the appellants. It was stated that the work done in the Corporation shall be taken into account for the purpose of pension, gratuity etc. It was also mentioned that the appellants will be placed below the existing Government employees working in the Estate Department. The fact remains that at the same time, the Government was proposing to bring within the Estate Department many a drivers working in different other Government Departments. On 9th July, 2002, the Government made Rules for merger of people as that of the appellants and other drivers working in other Government Departments in the Estate Department of the Government. The said Rules were made in exercise of power under proviso to Article 309 of the Constitution of India. In terms thereof, appellants became newly appointed drivers of the Government in its Estate Department. Clause (8) of Rule 6 of the said Rules made it clear that the past service of the appellants in the Corporation shall be taken into account for the purpose of pension and gratuity. Under the said merger Rules, in addition to people like the appellants, who were previously working in the Corporation, other drivers working in other Departments of the State, were also merged in the Estate Department of the State. Subsequent thereto, a seniority list was prepared. Under the said merger Rules, in addition to people like the appellants, who were previously working in the Corporation, other drivers working in other Departments of the State, were also merged in the Estate Department of the State. Subsequent thereto, a seniority list was prepared. In that, it was shown that whoever was working in the Estate Department prior to coming into force of the said Rules, were senior to those who stood merged in the Estate Department in terms of the said merger Rules. It was shown in the seniority list that those, who have come from the Corporation, are junior to those who came from other Government Departments. This action on the part of the Estate Department of the State was the subject matter of the challenge in the writ petition at the time when the same was filed. It was contended in the writ petition that having regard to clause (2) of Rule 6 of the merger Rules, the seniority was to be determined in accordance with the respective seniority in the respective Departments of the people, who would stand merged in terms of Government decisions issued from time to time. It was contended that before the said Rules came into force, the Government had taken a decision, as contained in clause-6 of the said proposal that the inter se seniority of those who will be coming from the Corporation and who shall be coming from other Departments of the Government will be determined on the basis of their respective seniority in their original place of employment and, accordingly, putting those who had come from the Government Departments enbloc above the appellants who have come from the Corporation, is contrary to the Government decision and contrary to clause (2) of Rule 6 of the merger Rules, inasmuch as subsequent to making of the said Rules, the Government has not issued any other decision. It was contended that even otherwise having had represented in the manner as contained in the proposal dated 19th January, 2002, the Government could not act contrary thereto to the determent of the appellants after they had acted on the basis of said representation. 2. It was contended that even otherwise having had represented in the manner as contained in the proposal dated 19th January, 2002, the Government could not act contrary thereto to the determent of the appellants after they had acted on the basis of said representation. 2. At the time when the writ petition was pending, the Uttarakhand State Estate Department Drivers Absorption (First Amendment) Rules, 2007 was notified on 6th July, 2007 and thereby, amongst others, clause (8) of Rule 6 was substituted by providing that past service only in those Autonomous Bodies/Corporations etc. shall be added for the purpose of pension, gratuity etc. wherein pension, gratuity facilities were already admissible and other benefits of the past service shall not be admissible in the merged service. The proviso appended thereto provided that earned leave and medical leave shall be in accordance with the liability after absorption and the balance of the leave credited to the leave account during past service shall not be added in the present service and provided further that the past service of the employees being covered under the new contributory pension scheme shall not be counted for the purpose of pensionary and other benefits in the present service on or after 1st October, 2005. Appellants, accordingly, amended the writ petition and challenged the said substitution. It was contended that the said substitution is not only contrary to the expressed promise, as was made at the time of offering merger, but is also contrary to the merger Rules, and that the substitution took away all together whatever the appellants had earned, while serving the Corporation towards their superannuation benefit, inasmuch as, they will lose the contribution made by the employer at the time they were employees of the Corporation and, at the same time, the services rendered in the Corporation will not be counted for the purpose of pension, gratuity etc. A learned Single Judge dealt with the writ petition and by the judgment and order under appeal, dismissed the same on the premise that the appellants accepted the merger as well as the rules framed therefor. Being aggrieved thereby, the present appeal has been preferred. 3. In preferring the appeal, there has been 25 days delay and, accordingly, an application for condonation of delay has been filed. Being aggrieved thereby, the present appeal has been preferred. 3. In preferring the appeal, there has been 25 days delay and, accordingly, an application for condonation of delay has been filed. The learned counsel appearing on behalf of the State/respondents made it clear that the State will not file any objection to the application for condonation of delay. We have considered the averments made in the application for condonation of delay and being satisfied with the reasons furnished therein, allow the application. 4. From the offer letter dated 19th January, 2002, it is clear that the proposal of merger was not compulsory; the same was optional. Proposal held out that the contributory part of the provident fund will go to the State. That suggests that the State was aware that the appellants were entitled to the benefit of contributory provident fund while working with the Corporation. It must be deemed that the State, in such circumstances, was also aware that the appellants were not entitled to pension for they were entitled to the benefit of contributory provident fund. It goes without saying that under the Payment of Gratuity Act at least, the appellants were entitled to gratuity. In that background, while proposing to take away the benefit of contributory part of the provident fund, it was held out in the proposal dated 19th January, 2002 that the services rendered in the Corporation will be taken note of for the purpose of pension and gratuity; the appellants accepted the same. When originally the Rules were framed on 9th July, 2002, there was no alteration of the proposal, as was made on 19th January, 2002. In 2007, while contributory part of the provident fund was not returned to the appellants, it was held out by the impugned amendment that the appellants shall not be entitled to count their services rendered in the Corporation for pension, inasmuch as the service in the Corporation was not pensionable. The said First Amendment Rules of 2007 also sought to substitute Rule 6(5) of the Merger Rules. The substituted rule made it further clear that the contributory part of the provident fund shall belong to the State. The said First Amendment Rules of 2007 also sought to substitute Rule 6(5) of the Merger Rules. The substituted rule made it further clear that the contributory part of the provident fund shall belong to the State. Conclusion would be that in effect Rule 6(8) sought to deprive the appellants exchange of a benefit, to which they were otherwise entitled to, namely, contributory part of the provident fund till such time they remained employees of the Corporation, with the promised benefit of counting service rendered in the Corporation for the purpose of calculation of pension, as was held out in the original proposal and repeated in the original merger Rules. We, accordingly, interfere and set aside the First Amendment Rules, 2007 to the extent the same purported to substituted Rule 6(8) of the merger Rules. 5. Having regard to the fact that in the original proposal it was held out that the inter se seniority between merged employees coming from the Corporation and from other Departments of the Government, will be counted from the date of their original appointment in the Corporation and in other Departments and there being no contrary decision thereto preparation of the impugned seniority list showing the employees of the Corporation enbloc as junior to those who have come from other Departments, is also struck down being contrary to the expressed provisions contained in the Rules. 6. Accordingly, the appeal is allowed. The judgment and order under appeal is set aside and the writ petition is allowed to the extent as above.