GOVERNMENT OF TAMIL NADU Vs. M ANANCHU ASARI

JUDGEMENT

(1.) THE above appeals may be dealt with together, since they involve common and identical questions and submissions have been made also in common.

(2.) WRIT Appeal No. 522 of 1992 has been filed against the order of a learned single Judge of this Court, dated 9 january 1992, whereunder, while allowing the writ petition filed seeking for a declaration declaring that G. O. Ms. No. 378, Finance (FR. II) Department, dated 18 April 1975 read with G. O. Ms. No. 1028, Transport Department, dated 23 september 1985 is illegal and unconstitutional in so far as they deny pension to the petitioners, who were also government servants, by fixing the date of absorption for qualifying service for pension as 1 May 1975 or the date from which the employees were continuously working in the Corporation, whichever is later, and for a consequential direction to suitably amend the scheme so that the services in Government as well as in the respondent-Corporation of the employees absorbed from Government service is taken into account, came to be allowed by the learned Single Judge by partially declaring illegal the fixation of cut-off date as 1 May 1975 and issuing consequential direction.

(3.) THE writ-petitioner's stand before the learned Single Judge was that in g. O. Ms. No. 651, Transport, dated 18 october 1973, a separate Corporation called Kattabomman Transport corporation, Ltd. (hereinafter called k. T. C.) was formed to take over from 1 january 1974 all the existing assets of the Tamil Nadu State Transport department in Kanyakumari and tirunelveli Districts, except such of those assets required by the department for its express services. In the year 1974, k. T. C, Ltd. , was said to have been incorporated as a Government company under S. 61 7 of the Companies Act, 1956 and subsequently Kattabomman Transport corporation was bifurcated and nesamony Transport Corporation was incorporated on 1st April 1983 in respect of Kanyakumari District. On 18 April 1975, the Government issued G. O. Ms. No. 378, Finance (F. R. II), to regulate the grant of terminal benefits to Government servants, who were permanently absorbed in the various public undertakings, who opted to the services of the stated owned corporations/boards/undertakings, stipulating among other things that in addition to pay in the public undertakings, the persons who opted for absorption in the State owned Transport Corporations or undertakings would be entitled to pension and gratuity earned by them in government service prior to such absorption and if the qualifying service under Government was less than ten years, gratuity and death-cum-retirement gratuity will be payable. Subsequently, in G. O. Ms. No. 284, Finance (CFC), dated 31 March 1980 it was stated that the pension in respect of workers who got themselves absorbed in State owned corporations will be calculated at the time of transfer, but it will be payable by the State Government only at the time of retirement and that the pension may be nationally calculated and noted at the time of finalising the option and entered in the services register, indicating that it is payable after retirement from the service of the Corporation. The said government order was challenged before this Court in Writ Petitions Nos. 1917 and 1928 of 1980 and a learned Single judge of this Court by an order, dated 17 January 1983 struck down the said government order. It is in the meantime, on 11 January 1982, K. T. C. informed the employees, who were serving in the erstwhile Tamil Nadu state Transport Department shall exercise their option on or before 28 February 1982, failing which it will be construed that they were not willing to continue in the State Transport Undertaking. By then, it appears that eight years had already elapsed from the date of joining the Transport Corporation and since any lapse in exercising the option would result in even losing their job, it appears options have been exercised. On 23 september 1985, G. O. Ms. No. 1028, transport, was said to have been passed, under which such persons who have exercised option were to be taken to have been permanently absorbed in the corporation and that the crucial date for permanent absorption in the Transport corporation was fixed as 1 May 1975. The writ-petitioners before the learned single Judge were said to have joined government services in the years 1965 and 1967 respectively, and if the government order is to be implemented for calculation their terminal benefits, the first of the writ-petitioners will be falling short for entitlement by 56 days and the second writ-petitioner by one year and seven months. It is in such circumstances, the writ petition was filed for the relief noticed (vide supra) and reliance was placed in support of their claim on the decision of the Supreme Court in D. S. Nakara v. Union of India [1983 (1) L. L. N. 289].