SK GUPTA Vs. AIRPORT AUTHORITY OF INDIA

JUDGEMENT

(1.) Both these petitions can be disposed of by a common judgment as the Petitioners herein are aggrieved by the inaction of the Respondents in not implementing the Office Memorandum dated 5 th July, 1989 (in short "the OM?) and granting them pensionary benefits in terms thereof.

(2.) Learned counsel for the Petitioner contends that in terms of this Office Memorandum the Petitioners were entitled to be given an option to retain the pensionary benefits available to them under the Govt. Rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body, that is, avail the Provident Fund Contribution Scheme or the Pension Scheme. In view of the inaction of the Respondents in not offering the options, the Petitioners made representations which were rejected vide letters dated 14 th August, 1995 and 23 rd August, 1995 Annexures P-8 and P-9 in Writ Petition (C) No. 4599 of 1995 and vide impugned letter dated 3 rd October, 2007 Annexure P-11 in WP(C) No. 8789/2007 the Employees Provident Fund Scheme was extended to the Petitioners w.e.f. 1 st April, 1995. The Petitioners seek a direction to the Respondents to give the Petitioners an option to either choose the government pension rules or the rules, if any, framed by the Airport Authority of India or the Contributory Provident Fund Regulations of the Authority.

(3.) Learned counsel for the Petitioners in Writ Petition (Civil) No. 4599 of 1995 contends that the right to retain the government pensionary benefits as envisaged under Clause (a) of the OM was meant to protect the pensionable service rendered under the Government. The Office Memorandum did not prescribe a pre-condition of completing ten years on the date of absorption. Such a condition divides a homogenous class and defeats the very object of clause (a) of the OM. The date of absorption has no nexus with retaining pensionary benefits as pension is payable on combined service rendered under the Government and the PSU. Section 18 of the Airport Authority of India Act, 1994 (in short "AAI Act?) provided for the constitution of two divisions namely International Airports Division and National Airports Division. However their service conditions remain the same as applicable to them before the formation of the Airports Authority of India. The Respondents were required to frame service regulations within one year, further extendable to another one year of the Petitioners becoming members of the National Airports Division. However, till date no rules and regulations have been framed by the Respondents as per the Clause "b? read with sub-section 4 of the Section 42 of the AAI Act, 1994. Thus even today the Petitioners are governed by the rules and regulations applicable to the employees of the Government of India. The request of the Petitioners regarding the option being rejected by the Respondents on the ground that they had not completed ten years of service is illegal and arbitrary. The OM dated 5 th July, 1989 has to be read together and its clauses cannot be bifurcated. As per Clause "a? of the OM dated 5 th July, 1989 option has to be given to all permanent government servants regarding pensionary benefits. Only Clauses (b) and (c) talk about the employees having opted for government benefits or Public Sector Undertakings benefits. Though the Petitioners were given option to be absorbed in National Airports Authority however, no option was given to them in terms of the OM whether they want to retain the pensionary benefits of the government or be governed by the rules of PSU/autonomous body. Clause 4 of the OM dated 5 th July, 1989 clearly provides that until exercise of the option, the Petitioners would be governed by the pay scale, leave entitlement and terminal benefits under the Government. The Respondents having failed to give the option to the Petitioners and also failing to frame the rules and regulations under Section 38 of the National Airports Authority of India Act, 1985, the Petitioners cannot be put to disadvantage. There is no delay in filing the writ petition as immediately on the rejection of the request of the Petitioners in 1995 the Petitioners filed the present writ petition.