IMPORTANT POINT
Employees directly recruited by a corporation under non-pensionable regulations are not entitled to pensionary benefits, even if they claim parity with employees of a predecessor government entity who had different employment terms.

JUDGMENT :

Sanjeev Kumar, J.

LPA No. 39/2021

1. This intra-Court Appeal by the Union Territory of J&K is directed against the judgment dated 27.01.2021 passed by the learned Single Judge ['the Writ Court'] in SWP No. 1148/2016 titled 'All J&K Workers Union SRTC v. State of J&K & Ors'.

2. Before we advert to the grounds of challenge urged by Mr. A Haqani learned Senior Advocate in support of the appeal, we find it appropriate to give brief resume of the factual antecedents leading to the filing of this appeal.

3. The respondent-Association of Road Transport employees [writ petitioners] filed a writ petition claiming, inter alia, a direction in the nature of mandamus to the appellants herein to treat them as Government employees and consequently hold them entitled to all retiral benefits available to the Government employees of the UT of J&K and those extended to the similarly situate employees of erstwhile Government Transport Undertaking [GTU]. The writ petitioners also sought the relief prayed for in the writ petition on the analogy of employees of JK Industries. The case projected by the writ petitioners before the Writ Court was predicated on the following factual matrix.

4. The public transport in the erstwhile State of J&K was earlier managed and run by the GTU which was a limb of the Government of Jammu and Kashmir. The employees serving in the GTU on substantive basis were treated as Government employees for all purposes including post retiral benefits. In the year 1950, the Parliament enacted Central Road Transport Corporation Act 1950 ['the Act of 1950'] which was extended to the State of Jammu and Kashmir w.e.f 01.09.1976. The extension of the Act of 1950 paved way for establishment of a Road Transport Corporation in the State of Jammu and Kashmir. Accordingly, the J&K State Road Transport Corporation ['Corporation'] came to be incorporated vide Notification No. SO 263(E), dated 01.04.1976. This was followed by the issuance of Government Order No. 25-TR of 1979, dated 27.03.1979, which, inter alia, provided that the employees of erstwhile GTU, which had been converted into a Corporation, would be treated as on deputation to the Corporation. The relevant extract of the Government Order (supra) reads thus:

"(i) the Government servant placed at the disposal of RTC was to exercise option whether to continue in the services of the Corporation or not;

(ii) A government servant exercising option not to continue in the services of the Corporation was to further opt for any of the following consequences:

(a) seek for retirement from the Government service if he is permanent in service or has more than five years qasi permanent services and receive the pensionary benefits as admissible under Rules.

(b) Seek for discharge from service, if he is a temporary Government servant or has less than five years quasi permanent services (not contributing to CP Fund) and receive the terminal gratuity benefits as admissible under rules.

(c) Seek for termination from service if he is temporary, contributing to CP Fund and receive the entire CP Fund contributions along with interest.

(iii) A government servant exercising his option for rendering his services in RTC was also to opt:

(a) To retain his pensionary benefits available under the Government Rules or be governed by the rules of RTC in so far as the same relates to benefits consequent upon retirement in such eventuality such government employees would receive his pension under the Pension Rules as may be in force to the Government at the time of his retirement.

(b) Such Government servant retaining his pensionary benefits under the Government will not be allowed employees Contribution on Provident Fund on the date of his retirement and his services rendered by him in the Corporation after option would qualify for pension.

(c) In the event of death of such Government servants while in service of the Corporation, family pension/death-cum-retirement gratuity will be admissible in terms of Government Ru