REPORTABLE
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CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 894 OF 2020
UP ROADWAYS RETIRED OFFICIALS AND OFFICERS ASSOCIATION ….
APPELLANT
VERSUS
STATE OF U.P. & ANR. …
RESPONDENTS
WITH
C.A. No. 896/2020 , C.A. No. 898/2020 , C.A. No. 957/2020 , C.A. Nos. 959-965/2020 , C.A. No. 897/2020 , C.A. No. 895/2020 , C.A. Nos. 899-901/2020 , C.A. No. 910/2020 , C.A. No. 902/2020 , C.A. No. 912/2020 , C.A. No. 909/2020 , C.A. No. 913/2020 , C.A. No. 958/2020 , C.A. No. 915/2020 , C.A. No. 966/2020 , C.A. No. 914/2020 , C.A. No. 832/2020 , C.A. No. 967/2020 , C.A. No. 905/2020 , C.A. No. 907/2020 , C.A. No. 903/2020 , C.A. No. 911/2020 , C.A. No. 904/2020 , C.A. No. 906/2020 , C.A. No. 908/2020 & C.A. No. (s) /2024 @ SLP (c) /2024 @ Diary No. 10240/2020
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
Delay condoned in filing SLP(C) Diary No. 10240 of 2020 and leave granted.
- Abatement is set aside and applications for substitution are allowed. Application(s) for intervention is allowed.
- By this common judgment a batch of civil appeals arising out of the common order passed by the High Court of Judicature at Allahabad in different writ applications and special appeals is
disposed of. - Civil Appeal No. 894 of 2020 preferred by UP Roadways Retired Officials and Officers Association is taken as the lead case.
CIVIL APPEAL NO. 894 OF 2020 - In this civil appeal challenge is to the common order dated 24.11.2016 passed by the High Court in Special Appeal No. 685 of 2014 and other connected matters which in turn arose out of common order passed by the learned Single Judge of the High Court on 07.07.2014 in Writ Application No. 63469 of 2012 (Suresh Chandra vs. State of U.P. through Secretary & Ors.) and 51 connected writ applications. The learned Single Judge as well as the Division Bench, under the impugned judgment have dismissed the special appeals and writ applications holding that the appellants/petitioners do not hold the pensionable post and, thus, are not entitled for receiving pension.
- The issue falling for consideration is whether the appellants who are the former employees of Uttar Pradesh Roadways, a temporary department of the State Government, are holding any pensionable post before or after their absorption in the U.P. State Roadways Transport Corporation.
Government orders regarding service under U.P. Roadways and thereafter U.P. State Roadways Transport Corporation - In 1947, Uttar Pradesh Roadways was created as a temporary department of the State Government for providing public transport facilities. Since the department itself was temporary, the employees working therein were also appointed temporarily and were not members of regular service.
7.1 On 16.09.1960, a Government Order was issued providing service conditions of the Roadways employees which were different than the service conditions of employees working in different Government departments.
7.2. On 28.10.1960, another GO was issued providing for pension to the permanent employees of the erstwhile Roadways. It was mentioned in this order that remaining non-gazetted employees of the Roadways (who are not permanent) would be entitled for benefits under the Employees Provident Fund Scheme.
7.3. On 01.06.1972, the Corporation was created under Section 3 of the Road Transport Corporation Act, 1950.
7.4. On 05.07.1972, a GO was issued treating all the employees of the Roadways on deputation with the Corporation without specifying the period of deputation and also assuring them that their service conditions in the Corporation will not be inferior as compared to their service conditions prior to their absorption in the Corporation.
7.5. On 20.04.1997, Article 350 of U.P. Civil Service Regulations was amended with retrospective effect. However, no amendment was made in Note 3 of Article 350 which provides that non-gazetted post in Government Technical Industrial Institution is not qualified for pension.
7.6. On 19.06.1981, the Corporation framed service regulations in exercise of power under Section 45 (2) (c) of the Act, 1950.
7.7. On 28.04.1982, the Roadways (Abolition of Post and Absorption of Employees) Rules, 1982 were framed providing for absorption of all employees of the Roadways in the service of the Corporation w.e.f. 28.07.1982.
Appellants’ Case - There are three sets of appellants segregated on the basis of the date of appointment:
(1) Those who were appointed in the Roadways prior to the G.O. dated 16.09.1960 and have retired.
(2) Those who were appointed after 16.09.1960 but prior to creation of the Corporation as on 01.06.1972 and have retired.
(3) Those who were appointed after 01.06.1972 when the Corporation was created and have retired. - Admittedly, the appellants employees have already received their entire post-retiral benefits immediately after their retirement decades ago without any protest or claim that they hold a pensionable post. The appellants started claiming pension after the Division Bench judgment of the High Court in U.P.S.R.T.C. vs. Mirza Athar Beg upholding the judgment of the learned Single Judge dated 25.08.2010 passed in W.P. No. 7728 (S/S) of 1996. The appellants’ claim is also based on other two judgments of the Allahabad High Court in the matter of The Managing Director, U.P.S.R.T.C vs. S.M. Fazil & 03 others (W.P. No. 5440 of 2000 (S/B) and in the matter of U.P.S.R.T.C & Ors. Vs. Shri Narain Pandey in Special Appeal No. 40 of 2007. A Special Leave Petition (SLP (c) No. 7709/2011) against the judgment in the matter of Mirza Athar Beg was dismissed by a non-speaking order dated 10.07.2013.
- The appellants submitted representation basing their claim in the line of Mirza Athar Beg (supra). However, the representation was rejected subsequent to which the subject writ petition was filed.
Appellants’ submissions - Learned senior counsel appearing for the appellants would submit that the appellants are entitled for pension in terms of the Government Order dated 16.09.1960 as they were appointed prior to establishment of the Corporation in the year 1972. According to them, once the appellants have been made permanent in the Corporation vide Government Orders dated 16.09.1960 and 28.10.1960 they should be treated to be holding a pensionable post. It was also their case that Article 350 of U.P. Civil Service Regulations was amended by a Notification dated 20.04.1977 whereby the word ‘Post’ was replaced by the word ‘Establishment’ and as such employees of all establishments under the State Government are deemed to be working on a pensionable post unless the establishment is
excluded. Therefore, on a conjoint reading of Government Oder dated 28.10.1960 with the amendment made in the year 1977 in Article 350, the appellants are entitled to pension. - The appellants also relied on the judgment in the matter of Mirza Athar Beg (supra), S.M. Fazil (supra) & Narain Pandey (supra). The main focus of the appellants’ claim is on the amendment to the Article 350 of the Regulations, after which, according to the appellants, Government has not issued any order excluding the establishment in which the appellants were employed and holding a pensionable post. It is also argued that after the establishment of the Corporation under Section 3 of the Act, 1950, no rule or regulation has been framed in exercise of power under Section 44 denying pension to the appellants. Therefore, the general provisions under Article 350 of the Regulations would be applicable and the appellants are entitled for pension.
- Apropos the objection that the writ petition was filed belatedly, after decades from the date of retirement, it is submitted that the appellants have recurring cause of action and delay in filing the writ petition is not fatal.
- Per contra, Ms Garima Prasad, learned senior counsel appearing for the Corporation vehemently argued that all the appellants have already opted for and availed the post-retiral benefits under the Employees Provident Fund Scheme, therefore, their present claim preferred after huge delay ranging between 8 to 32 years has rightly been dismissed by the High Court. Reference is made to Union of India & Ors. Vs. M.K. Sarkar
- Ms. Prasad would distinguish the fact situation in the matters of Mirza Athar Beg (supra), S.M. Fazil (supra) & Narain Pandey (supra) by pointing out that in these cases the High Court has not considered the effect of Note 3 of Article 350 of the Regulations which has neither been amended nor deleted even by the amendment dated 20.04.1977. It is further submitted that the Roadways was an establishment having workshops both major and smaller, thus, included in the category of technical institution as has been held by the Allahabad High Court in the judgment rendered in Bachai Lal v. U. P. S. R. T. C., Allahabad and others. The Roadways is also an industry according to the test prescribed in the matter of General Manager, Telecom vs. A. Srinivasa Rao & Ors.11. Therefore, the non-gazetted post in the Roadways did not qualify for pension in view of Note 3 of Article 350 of the Regulations. It is then argued that the service conditions of employees of the Roadways as existing prior to their absorption in the Corporation were never protected by GO dated 05.07.1972 under which the appellants are not entitled for pension as they have never worked on any pensionable post as indicated in para 1 of GO dated 28.10.1960 till their absorption in the Corporation w.e.f 28.04.1982. Further distinguishing the above three cases on which the appellants have placed reliance, it is argued that the appellants in the three above cited cases were working on pensionable post even as per GO dated 28.10.1960 whereas none of the appellants in the present batch of appeals have worked on any pensionable post as per the said GO, therefore, the appellants derive no benefit out of the above three cited cases.
- In respect of the employees appointed after creation of the Corporation w.e.f. 01.06.1972 it is argued that such appellants are not entitled to the benefit of pension on the basis of GO dated 05.07.1972 or the provisions of the Regulations relating to employees of the erstwhile Roadways sent on deputation to the Corporation and thereafter absorbed therein.
- In respect of the appellants who were appointed subsequent to 01.06.1972 i.e. after creation of the Corporation, the State Government subsequently issued GO dated 20.10.2004 according approval for payment of pension to those employees who had been appointed on pensionable post in the Corporation till 18.06.1981. Therefore, such appellants who were never appointed/worked on pensionable post as per GO dated 28.10.1960 till 18.06.1981, are not entitled to pension.
- Learned Single Judge of the High Court dismissed the writ petition on the ground of delay and laches; waiver and acquiescence but at the same time proceeded to decide the
petitions on merits and after threadbare discussion of the
applicable GOs and Regulations rejected the claim on merits.
Learned Single Judge distinguished the case of the present
batch of the appellants from that of the Mirza Athar Beg
(supra), S.M. Fazil (supra) & Narain Pandey (supra). - On appeal before the Division Bench, the claim of the
appellants was once again dismissed and the order passed by
the learned Single Judge has been upheld on all material issues
including the appellants’ claim on the basis of parity vis-à-vis
the earlier cases in the matter of Mirza Athar Beg (supra),
S.M. Fazil (supra) & Narain Pandey (supra)
ANALYSIS - The Roadways was created as a temporary
department in 1947. A Government Order was issued on
16.09.1960 providing service conditions of the Roadways
employees. The said GO is reproduced hereunder for ready
reference:
“G.O. No. 3014 D/XXX- 135/59 dated Sept. 16, 1960
Subject: Terms and conditions of service of temporary
employees in the U.P. Roadways – Revisions of.
I am directed to say that the question of revising the
terms and conditions of service of the Roadways employee,
which is a nationalized commercial undertaking and has to
work in conditions different from those prevailing in regular
government offices, has been under the consideration of
Government for some time past.
The passenger and goods services have to run
irrespective of the fact whether it is a Sunday or a festival.
The schedule of passenger services run by the State
Undertaking cannot be altered off an on. In order to keep
the Roadways services going the maintenance and repairs of
vehicles has to be attend to even at odd hours at the
workshops. At present the conditions of service of the
employees of the U.P. Government Roadways and the
Central Workshop, Kanpur are governed by the various rules
and standing orders of Government applicable to other
temporary government servants under the rule making
powers of the Governor. In view of the special service
conditions of employees of the Roadways it seems
necessary to evolve a new set of service conditions for its
employees which may be compatible with the nature of work
and functions of the organization. Accordingly, in super
session of all previous orders on the subject, the Governor
has been pleased to pass the following orders prescribed
revised terms and conditions of service of temporary
employees of the U.P. Roadways including those detailed in
para 2 below. The revised terms and conditions of service
shall be applicable to all future entrants in the Roadways
organization and shall be enforced in the manner mentioned
hereinafter in the case of temporary employee including
those on the work charge strength and paid on monthly
basis.
(1) All temporary employees except those referred to in
para 2 shall get one day’s rest in every period of seven days
in accordance with the rules to be framed by Government. In
case the employees is deprived of any of the days or rest,
he shall be allowed within the same or following month
compensation holidays of equal number of the days of rest
so lost.
(2) They shall be entitled to get one days paid holidays for
every 20 days of work performed by them during the
previous calender year, subject to the condition that the
employee has worked for a period of 240 days or more
during the previous calender year. In case the employees is
not able to avail of full or part of the leave admissible to him
during the calender year, it will be carried over to the
following year, subject to a maximum of 30 days.
(3) They shall got five days festival holidays in a calender
year as prescribed by Government and subject to the rules
to be framed for the purpose.
(4) They shall be paid extra wages at the rate of twice of
ordinary rate of wages in respect of work performed by them
beyond the prescribed hours of work.
(5) Their services are liable to termination on one month’s
notice on either side, or one month’s pay in lieu thereof.
(6) In other respect the conditions of service will remain the
same as at present.
The revised terms and conditions of services mentioned in
para 1 above shall not apply to the following category of
employees:-
(a) All employees working in the offices establishment of the
Asstt. General Manager, General Manager, Service Manager,
Chief Mechanical Engineer, Roadways Central Workshop,
Kanpur and the Head Quarter Office of the Transport
Commissioner.
(b) Supervisory staff of the rank of Junior Station Incharge
and above on the traffic side;
(c) Technical staff of the rank of Junior Foreman and above
on the engineer side;
The above three categories of Roadways staff will
continue to be treated as regular government servants and
will be entitled to the benefits admissible to any other
government servant of the same category. - The Roadways and Central Workshop employees to whom
the revised service rules are being made applicable shall be
entitled to the provident fund benefits according to the
provisions of the Employees Provident Fund Act. For this
necessary orders have already been issued separately in
G.O. No. 1488-D/XXX 2198/59 dated July, 29, 1960.
Immediate step may please be taken for the implementation
of the orders issued in the above G.O. The employees
governed by the new terms and conditions of service will
continue to get facilities for medical treatment so far
enjoyed by them. All future entrants shall also be entitled to
facilities for medical treatment admissible to Government
servants. The canteen and rest house facilities as may be
prescribed by government shall also be made available to
them in course of time. - These order shall come into force w.e.f. October 1, 1960
and shall apply to all future entrants in the service of the
Roadways organization and also the existing temporary
employees who accept to continue to work on the revised
terms and conditions of service. The status of Roadways
employees already made permanent remains unaffected. All
the existing temporary employees except those mentioned
in para 2 above may be asked to indicate in writing if the
new service conditions mentioned above are acceptable to
them. Those who accept the new terms and conditions of
service will be required to fill in a separate acceptance for
which will be kept with their service records. If, however,
any of the employees do not accept the new terms their
services are to be terminated in accordance with the terms
of their employment. I am to suggest that the implications of
the revised orders may be explained to all concerned by the
General Managers and Asstt. General Mangers and Chief
Mechanical Engineer and that necessary action may please
be intimated forthwith in order to implement the above
orders.” (Emphasis supplied) “ - Thereafter another GO was issued on 28.10.1960
providing for pension to the permanent employees of the
Roadways. This GO was issued under Note 3 of Article 350 of
the Regulations. We shall first reproduce Article 350 of the
Regulations and thereafter GO dated 28.10.1960:
“350. All establishments whether temporary or permanent,
shall be deemed to be pensionable establishments;
Provided that it is open to the State Government to rule
that the service in any establishment does not qualify for
pension. - Service in Dak Bungalow and District Garden
Establishments does not qualify. - The service of a Patwari, whether appointed before or
after the abolition of the Patwari or Village Officers’ Cases
and Funds, does not qualify in any case in which it did not
qualify prior to that abolition. - Service in non-gazetted posts in Government Technical
and Industrial institutions in the Uttar Pradesh does not
qualify in the case of persons appointed to such posts on or
after November 15,1938.”
Exceptions– This rule does not apply to the posts declared
pensionable in Shram (Kha) Vibhag G.O.No.810 (E) XXXVIB– 106/56, dated May 29, 1963 and Udyog (Gha) Vibhag
G.O.No.375-ED/XVII-D-AQ-19-ED,60, dated JUNE 5, 1963.”
“GO No. 3567-P/XXX-2198/99 dated 28.10.1960 – In
continuation of G.O. No. 30140/XXX-135-V/1959 dated
16.9.1960, I am directed to say that the question or
declaration the permanent posts in the Roadways
Organization (including the Roadways Central Workshop
Kanpur) as pensionable has been under consideration of
Government for some time past. In this connection, the
Governor has been pleased to order that the permanent
gazetted and non-gazetted incumbents of the following
three categories would be entitled to the contributory 10
Provident Fund cum Pension Rules:-
(a) The employees working in the office establishment of
the Asstt. General Manager, General Managers, Service
Managers, Chief Mechanical Engineer, Roadways Central
workshop, Kanpur and the Headquarter office of the
Transport Commissioner.
(b) Supervisory staff of the rank of Junior Station Incharge
and above on the traffic side.
(c) Technical staff of the rank of Junior Foreman and above
on the Engineering side. - The Governor has been further pleased to order, under
note 3 Below Article 350 of the Civil Service Regulations
that the rest of the permanent non-gazetted Employees
both in the traffic and engineering sections of the
organization, would be treated as non-pensionable posts
referred to above, will be eligible for Provident Fund
benefits in accordance with the provisions of the
Employees Provident Fund Act. - I am also to add that Temporary Employment of the
categories mentioned in para 1 above will be entitled to
Provident fund benefits as provided under the Employees
Provident Funds Act. As and when they became permanent,
they will have the option to elect the contributory Provident
Fund cum Pension Benefits in lieu of Employees Provident
Fund. - As regards the grant of Provident Fund Benefits to other
temporary and work charges employees of the Roadways
organization necessary orders have already been conveyed
to you in G.O. No. 14880/XXX-219/59 dated 29.7.1960.
Sd/-
Jt. Secy.
Copy forwarded under U.P. Parivahan Ayukta (Lekha)
U.P. Lucknow endorsement NO. C-935FA/594FA/57 dated
1.11.1960 to all the General Managers, Asstt. General
Managers, Service Managers, Accounts Officers and all
other concerned for information and necessary action.”
(Emphasis supplied) - A bare reading of Article 350 would manifest that
service in non-gazetted posts in Government Technical and
Industrial Institutions in the State of Uttar Pradesh does not
qualify for pension and it will be covered under Contributory
Provident Fund Scheme. - The State Government felt it necessary to evolve a
new set of service conditions considering the nature of duties
and functions of the Roadways. In the above quoted GO dated
28.10.1960, the State Government considered and declared
some permanent gazetted and non-gazetted posts of the
Roadways to be entitled for pension. Clauses (2) & (3) of GO
dated 28.10.1960 clearly provided that only those covered in
clause (1) of the GO would be entitled to pension whereas the
rest of the permanent non-gazetted employees both in the
traffic and engineering sections of the Roadways would be
treated as non-pensionable posts and will be eligible for
provident fund benefits in accordance with the provisions of the
Employees Provident Fund Act. This provision made a specific
reference to Note 3 of Article 350 of the Regulations. - It was also provided that temporary employment of
the categories mentioned in para 1 will be entitled to provident
fund. However, as and when they became permanent, they will
have the option to elect the contributory provident fund cum
pension benefits in lieu of employees’ provident fund. In yet
another circular dated 21.04.1961, it was again clarified that
the posts mentioned in clause (1) of GO dated 28.10.1960
should be treated as pensionable and those temporary
employees falling in the said clause shall also be treated as
pensionable from the date they were converted into permanent
post. - The Corporation was constituted under Section 3 of
the Act, 1950 w.e.f. 01.06.1972. By GO dated 07.06.1972 all
the employees of the erstwhile Roadways holding permanent
posts as per GO dated 28.10.1960 were declared entitled for
pension except the following:
(i) Those working on daily wages;
(ii) Those appointed on ad-hoc basis;
(iii) Those who had not completed minimum service
period prescribed for the post;
(iv) Those holding posts which were not declared
pensionable;
(v) Those who had been removed from service after
departmental inquiry and those had been found guilty of
criminal charges.
Subsequent to GO dated 05.07.1972, officers/employees
of the Roadways and the officers and staff of the Roadways
working in the Office of the Transport Commissioner, whether
permanent or temporary were considered to be on deputation
under the existing terms and conditions of their services. The
permanent staff of the Roadways were considered on
deputation up till the date of their absorption permanently in
the Corporation. It was also mentioned in the GO dated
05.07.1972 that the Government assures the Roadways
employees that whenever service conditions of the employees
of the Corporation shall be framed, the same shall not be
inferior to the service conditions applicable to them under the
Roadways at the time of absorption. The GO dated 05.07.1972
is reproduced hereunder:
“No. 3414/TEES-2-170 N/72
Sender
Shri Girija Prasad Pandey
Commissioner & Secretary
Government of Uttar Pradesh
To
Chief Manager
Uttar Pradesh State Road Transport Corporation
Lucknow
Dated: Lucknow July 5, 1972
Transport Section-2
Sub: Constitution of Uttar Pradesh State Road Transport
Corporation and merger of the officers/employees of the
Transport Organisation.
Sir,
After merger of the officers/employees working under
Uttar Pradesh Roadways with State Road Transport
Corporation, in connection with merger of services under
the Corporation, I have been directed to issue the
following, amending the Government order no. 3000/30-2-1
70/72 dated June 7, 1972:
(1) According to the provision of para (1) (A) of the above
Government order, all those permanent or temporary
officers/employees who before the constitution of State
Road Transport Corporation were in the services of State
Roadways, their services would be considered in the
Corporation on deputation. For this deputation no period is
being fixed now.
(2) The State Road Transport Corporation has under section
45 of the Transport Corporation Act have not made rules
about the service conditions till now in connection with the
officers and employees under it. Therefore, leaving the
above discussed Annexure 1 (1) A of the above
Government order dated June 7, 1972, the remaining
annexures would be considered dismissed. But whenever
the Corporation would make rules regarding service
conditions, then in them this assurance of the Government
would be included that the service condition of the
officers/employees under the Corporation in any condition
would not be contemptuous than those conditions which
were available to them under the Uttar Pradesh State
Roadways and their government service period, their
seniority under the corporation, promotion, fixation of pay,
right concerning leave and financial benefits would be
considered in that way only as they would have remained
in their being in government service.
Yours faithfully
(Girija Prasad Pandey)
Commissioner & Secretary
No. 2114 (1)/Tees-2-170N/72
Copy submitted to Accountant General, Government of
Uttar Pradesh, Allahabad, for information and necessary
action.
By order,
(Bhagwan Swaroop Saxena)
Dy. Secretary
No. 3414(2)/Tees-2-170N/72
Copy submitted to the following for information: –
(1) Transport Commissioner, Uttar Pradesh, Lucknow.
(2) Finance (Expenditure-7) Section
By order,
(Bhagwan Swaroop Saxena)
Dy. Secretary” - In exercise of power under Section 45 (2)(c) of the
Act, 1950, the State Government framed the Road Transport
Corporation Employees (other than officers) Service
Regulations, 198112. Regulations 4 and 39 of the Regulations,
1981 being relevant are reproduced hereunder:
“4. Option by the employees of the erstwhile Government
Roadways Department and other employees. – (1) An
employee of the erstwhile U.P. Government Roadways
Department who was placed on deputation with the
Corporation and who has or is deemed to have offered for
absorption in the Service of the Corporation in accordance
with Rule 4 of the Uttar Pradesh State Roadways
Organisation ( Abolition of Posts and Absorptions of
Employee) Rules, 1982 ( hereinafter referred to as the said,
Rules), shall with effect from August 28, 1982, sand so
absorbed, and shall, accordingly cense to be an employee of
the State Government with effect from the said date.
Provided that the terms and conditions of service of the
employees so absorbed in the Service of the Corporation
shall, subject to the provisions of G.O. No. 3414/XXX-2-170-
N-72, dated July 5, 1972, and the said rules be governed by
these regulations.
(i) Existing employees, who are not covered by subregulation (1) or those who are not exempted under
Regulation 2, shall within one month of the
commencement of these regulations, inform the
appointing authority or such authority as the General
Manager may in this behalf appoint whether or not
they want to be governed by these regulations.
(ii) If they opt or fail to exercise their option for being
governed by these regulations, their terms and
12 ‘Regulations, 1981’
22
conditions of appointment, so far as they are
inconsistent with these regulations, shall stand
rescinded:
Provided that, in respect of workmen where any of the
provisions of these regulations is less favourable than the
provisions of the U.P. Industrial Disputes Act, 1947, the
Payment of Wages Act, 1936, the Minimum Wages Act,
1948, the Factories Act, 1948 or of any other Act applicable
to them, the provisions of such Act shall apply.
(iii) If such persons do not opt for being governed by
these regulations, their services may be terminated in
accordance with the terms of their appointment.”
“39. Pension and other retirement benefits-(1)(i)
Subject to the provisions of clause (ii) of this subregulation, an employee of the Corporation shall not
be entitled to pension, but he shall be entitled to the
retirement benefits mentioned in sub-regulation (2).
(ii) A person, who was the employee of the State
Government in the erstwhile U.P. Government
Roadways and has opted for the service of the
Corporation, shall be entitled to pension and other
retirement benefits in terms of the G.O. No.3414/302-
170-N-72, dated July 5, 1972.
(iii) Such employees who have come in the service of
the Corporation on pensionable posts on 1st June,
1972 or after that and now those posts have been
declared non-pensionable under this Rule; the
Corporation would contribute in the Provident Fund of
such employees as desired under the provisions of
Employees Provident Fund Scheme, 1952.
(2) Without prejudice to the provisions of subregulation (1) an employee (including an employee
who was in the service of the State Government in the
erstwhile U.P. Government Roadways Department),
shall be entitled to the following retirement benefits:
(i) Employees Provident Fund or the General Provident
Fund, as the case may be;
(ii) Gratuity in accordance with the Payment of
Gratuity Act, 1972 or the relevant Government Rules,
as may be applicable;
23
(iii) Amount due under Group Insurance Scheme,
1976;
(iv) One free family pass in a year for journey within
the State;
(v) A free family pass for his return to his home from
the place of posting at the time of retirement in case
he does not accept railway fare;
(vi) Any other benefit that may be allowed by the
Corporation from time to time. “ - Regulations 4 and 39 of the Regulations, 1981 as
extracted above made it very clear that an employee of the
Corporation shall not be entitled to pension, but he shall be
entitled to the retiral benefits mentioned in sub-regulation (2) of
Regulation 39. Only those employees of the State Government
working in the Roadways who have opted for services of the
Corporation shall be entitled to pension and other retirement
benefits in terms of GO dated 05.07.1972. It is to be understood
that there were temporary and permanent employees working
in the Roadways and there were regular State Government
employees who were also working in the Roadways. Under
Regulation 39, quoted above, it is clearly demarcated that
those State Government employees who have opted for service
of the Corporation will be entitled for pension, otherwise an
employee of the Corporation shall not be entitled to pension
24
and these employees will be entitled to retirement benefits as
mentioned in sub-Regulation (2) of Regulation 39. At this
juncture, it would be relevant to mention that the pension
entitlement of the Roadways employees (who are not State
Government employees) are controlled by GO dated
28.10.1960 which has already been dealt with in the preceding
paragraphs. - By another GO dated 19.08.1993 it was again
clarified that the employees/officers of the Roadways who
before 28.07.1982 are working/promoted on pensionable post
of the previous department, shall be entitled to pension on the
terms set forth in this GO. Those employees who do not want to
avail pensionary benefits shall submit their written consent to
this effect in order to avoid dispute in future. Once again, GO
dated 03.02.1994 was issued to the effect that such employees
who before the constitution of the Corporation and
promulgation of merger rules, had been on the pensionable
post in the State Government, would be considered on
deputation service and will be considered entitled for pension.
25 - In order to examine the appellants’ claim for pension
it is necessary to dwell on the pre-requisites provided in the GO
dated 28.10.1960. To be covered in the GO for receiving
pension it is necessary for the appellants to plead and establish
firstly, that they were holding permanent posts in the
Roadways, and they fall in the three categories of employees
referred to in para (1) of the GO. It is not the case of the
appellants that they were made permanent by any express
order issued by the Roadways management, nor they claim to
be working in any of the three posts referred to in para (1) of
the GO. Since para (2) of the GO clearly provides that the rest
of the permanent non-gazetted employees both in the traffic
and engineering sections of the organization, would be treated
as non-pensionable and similarly, all temporary employees will
also be non-pensionable, the appellants are not entitled to
pension as per GO dated 28.10.1960. Secondly, the appellants
are not covered under Article 350 as amended on 20.04.1997
of the Regulations to hold the pensionable posts inasmuch as
despite amendment in the first part of Article 350 of the
Regulations, Note 3 thereof has not suffered amendment which
provides that service in non-gazetted posts in Government
26
Technical and Industrial Institutions in Uttar Pradesh does not
qualify in the case of persons appointed to such posts on or
after 15.11.1938. Since the Roadways is considered to be
Technical and Industrial Institution, the appellants are covered
under Note 3 of Article 350, and they are not entitled for
pension. - The High Court, under the impugned judgment, has
observed that the appellants having received retiral benefits
including the benefit under the Employees Provident Fund
Scheme, cannot be permitted to turn round and contend that
they should also be given pension. We have also considered
this aspect of the matter and we approve the observations of
the High Court on the principle that a party to the litigation
cannot be permitted to approbate and reprobate. See National
Council of Educational Research and Training vs. Shyam
Babu Maheshwari & Ors.,13 Krishna Kumar vs. Union of
India14 and Union of India vs. Kailas15
. - Similarly, in the matter of V.K. Ramamurthy vs.
Union of India & Anr.,16 this Court considered the claim for
13 (2011) 6 SCC 412
14 (1990) 4 SCC 207
15 (1998) 9 SCC 721
16 (1996) 10 SCC 73
27
pension of those who opted for pension after a long gap of
retirement and held in para 4 that the contributory provident
fund retirees form a different class from those who had opted
for pension scheme and as such they are not entitled to claim
as of right to switch over from Provident Fund Scheme to
Pension Scheme. Similar is the proposition in the matter of All
India Reserve Bank Retired Officers Association & Ors.
Vs. Union of India & Anr.17 - In somewhat similar situation concerning employees
of Oil Natural Gas Commission which was earlier run as a
department of the Government of India prior to the enactment of
Oil and Natural Gas Commission Act, 1959, this Court in The
Committee for Protection of Rights of ONGC Employees
& Ors. Vs. Oil and Natural Gas Commission, through its
Chairman & Anr.,18 held thus in para 13:
“13. This indicates that the scheme of Contributory
Provident Fund, by way of retiral benefit, envisaged by the
Provident Fund Act, is in the nature of a substitute for old
age pension because it was felt that in the prevailing
conditions in India, the institution of a pension scheme
could not be visualised in the near future. It was not the
intention of Parliament that Provident Fund benefit
envisaged by the said Act would be in addition to
pensionary benefits. Section 12 of the Provident Fund Act
seeks to protect the wages of an employee to whom the
scheme framed under the said Act applies as well as the
17 (1992) Supp (1) SCC 664
18 (1990) 2 SCC 472
28
total quantum of certain specified benefits to which he is
entitled under the terms of his employment. With that end
in view, Section 12 prohibits an employer from reducing,
whether directly or indirectly, the wages of an employee to
whom the Scheme applies or the total quantum of benefits
in the nature of old age pension, gratuity, provident fund or
life insurance to which the employee is entitled under the
terms of his employment express or implied. The said
section proceeds on the basis that if an employee is
entitled to any benefit in the nature of old age pension
under the terms of his employment the said benefit would
not be denied to him on the application of the Scheme. It is
not the case of the petitioners that on June 30, 1961, when
the Provident Fund Scheme was made applicable to the
Commission, the petitioners had become permanent and
were entitled to pension. It cannot, therefore, be said that
on the date of the application of the Provident Fund
Scheme to the Commission, the petitioners were entitled to
pension under the terms of their employment. They cannot,
therefore, invoke the provisions of Section 12 of the
Provident Fund Act.” - In the matter of Prabhu Narain vs. State of U.P.19
,
(2004) 13 SCC 662, this Court held that to receive pension the
employees must establish that they are entitled to pension
under a particular rule or scheme. The following has been held
in para 5:
“5. No doubt pension is not a bounty, it is a valuable right
given to an employee, but, in the first place it must be
shown that the employee is entitled to pension under a
particular rule or the scheme, as the case may be.” - In yet another judgment rendered in Rajasthan
Road Transport Corporation & Anr. Vs. Mohini Devi,20 it is
held thus in para nos. 7, 8 & 9:
19 (2004) 13 SCC 662
20 (2013) 11 SCC 603
29
“7. The Division Bench has considered the Regulations but
failed to notice that there is apparent error in the order
passed by the learned Single Judge. Indisputably, the
employees concerned retired from service in 1991 and 1992
and after retirement they were paid CPF including the share
of employer’s contribution. Hence, as per Regulation 3 of the
Regulations, no right accrued to the appellants/employees to
claim pensionary benefits without first depositing the
amount and complying with the Regulations. - The matter was examined by this Court in Pepsu
RTC v. Mangal Singh [(2011) 11 SCC 702 : (2011) 2 SCC
(L&S) 322] wherein it was held as under: (SCC p. 722, paras
51-52)
“51. The common thread which runs through all these
appeals canvassed before us is that the respondents have
failed to comply with the terms and conditions of the
Regulations, which govern the Pension Scheme. We have
already considered the nature and effect of the Regulations,
which are made under a statute. These statutory regulations
require to be interpreted in the same manner which is
adopted while interpreting any other statutory provisions.
The Corporation as well as the respondents are obliged and
bound to comply with its mandatory conditions and
requirements. Any action or conduct deviating from these
conditions shall render such action illegal and invalid.
Moreover, the respondents have availed the retiral benefits
arising out of CPF and gratuity without any protest. - The respondents in all these appeals, before us, have
made a claim for pensionary benefits under the Pension
Scheme for the first time only after their retirement with an
unreasonable delay of more than 8 years. It is not in dispute,
in some appeals, that the respondents never opted for the
Pension Scheme for their alleged want of knowledge for nonservice of individual notices. In other appeals, although the
respondents applied for the option of the Pension Scheme
but indisputably never fulfilled the quintessential conditions
envisaged by the Regulations which are statutory in nature.” - We are, therefore, of the opinion that, in the facts and
circumstances of the case and in view of the law laid down
by this Court in the judgment referred to hereinabove, the
impugned orders passed by the learned Single Judge
[Madugiri v. Rajasthan SRTC, WP (C) No. 5425 of 1993 (Civil
Writ 5425/1993), order dated 5-1-2006 (Raj)] and the
Division Bench [Rajasthan SRTC v. Madugiri, Civil Special
Appeal (Writ) No. 212 of 2006, decided on 11-10-2006 (Raj)]
of the High Court cannot be sustained in law.”
30 - The common thread in the above referred judgments
of this Court is that pension is a right and not a bounty. It is a
constitutional right for which an employee is entitled on his
superannuation. However, pension can be claimed only when it
is permissible under the relevant rules or a scheme. If an
employee is covered under the Provident Fund Scheme and is
not holding a pensionable post, he cannot claim pension, nor
the writ court can issue mandamus directing the employer to
provide pension to an employee who is not covered under the
rules. - The appellant(s) have relied upon three earlier
judgments of the Allahabad High Court in the matter of Mirza
Athar Beg (supra), S.M. Fazil (supra) and Shri Narain
Pandey (supra), therefore, it would be appropriate to discuss
about the status of the said employees. - Mirza Athar Beg was promoted on the post of Junior
Clerk in the Roadways w.e.f 07.09.1958 in the office of
Assistant General Manager at Charbagh Depot, Lucknow and
his promotion was regularised on 16.04.1960. The Division
Bench of the High Court noted the fact that it is not the case of
31
the Corporation that the respondent Mirza Athar Beg was not a
permanent employee of the Roadways. Thus, he was
admittedly a permanent employee and, therefore, he was found
to be falling in the category of pensionable post as per GO
dated 28.10.1960. - S.M. Fazil was appointed as Assistant Traffic Inspector
in the Roadways on 19.04.1949. He was promoted as Junior
Station Incharge on 05.11.1956 and thereafter selected as
Traffic Superintendent by the U.P. Public Service Commission in - He was thereafter promoted to the gazetted class post of
Assistant Regional Manager in 1981. His claim before the
Tribunal was to the effect that pension, gratuity and
commutation was sanctioned taking into account the services
rendered w.e.f 05.11.1956 till 28.02.1983 leaving his earlier
services from 19.04.1949 to 05.11.1996. Therefore, in view of
Articles 350 and 370 of the Regulations, his period of service in
temporary capacity or on temporary post was countable
towards qualifying services for pension and gratuity and he was
never absorbed in the services of the Corporation. Thus, the
case of S.M.Fazil is entirely distinguishable on facts.
32 - True it is that Shri Narain Pandey was granted
pension by the High Court despite he having been appointed on
the post of Junior Station Incharge on 05.05.1978. However, this
judgment was rendered without any reference to GOs dated
16.09.1960 and 28.10.1960 as also Note 3 of Article 350 of the
Regulations and the provisions of the Service Regulations, - This judgment, therefore, cannot be relied upon as
binding precedent as the same has been rendered without
referring to the applicable GOs and Regulations. - In view of the above discussion, the appellant’s
reliance on the judgments rendered by the Allahabad High
Court in the matter of Mirza Athar Beg (supra), S.M. Fazil &
03 others (supra) and Shri Narain Pandey (supra) are
misplaced as in the said matters, the respective appellants
were found to be holding permanent posts which were
pensionable whereas in the present case, the appellants were
neither holding permanent posts nor holding any pensionable
posts as per GO dated 28.10.1960. Therefore, judgments in the
matter Mirza Athar Beg (supra), S.M. Fazil & 03 others
(supra) and Shri Narain Pandey (supra) rendered by the High
Court are distinguishable on facts. The judgment in Shri
33
Narain Pandey (supra) has not considered the legal effect
flowing from the GO dated 16.09.1960 and 28.10.1960 as also
Note 3 of Article 350 of the Regulations. Therefore, the said
judgment of the Allahabad High Court is of no assistance to the
appellants. - For all the forestated reasons, civil appeal is liable to
be and is hereby dismissed.
C.A. No. 895 of 2020, C.A. No. 896 of 2020, C.A. No. 897
of 2020, C.A. No. 898 of 2020, C.A. No. (s) of 2024
@ SLP (c) of 2024 @ Diary No. 10240 of 2020 &
C. A. Nos. 899-901 of 2020.
CIVIL APPEAL NO. 895 OF 2020 - This appeal has been preferred by UPSRTC assailing
the order passed by the Division Bench of the High Court of
Allahabad (Lucknow Bench) in Special Appeal No. 780 (S/B) of
2013 (UPSRTC & Anr. Vs. Roadways Karmchari Sanyukta
Parishad, Uttar Pradesh & Anr.). Before the Division Bench,
UPSRTC challenged the order passed by the learned Single
Judge allowing the writ petition preferred by Roadways
Karmchari Sanyukta Parishad, Uttar Pradesh,21 consequently,
21 ‘RKSP’
34
directing the UPSRTC to extend the pensionary benefits and
pay pension w.e.f 27.08.1982 onwards in the light of GO dated
05.07.1972 and in pursuance of order dated 22.05.1989 passed
by the Division Bench of the High Court in Writ Petition Nos.
3273 of 1982, 3380 of 1982, 3400 of 1982, 3489 of 1982 and
4119 of 1982. - The issue before the Division Bench was in relation to
extending pensionary and other benefits in respect of such
employees who have been promoted on pensionable posts after - According to the Division Bench, in other words, the issue
is whether the cutoff date of 1982 fixed by the UPSRTC basing
upon the provisions of absorption rules and the regulations
framed thereunder are rational having nexus with the object of
denying the benefit of pension to the members of the RKSP. - The Division Bench has referred to two GOs dated
07.06.1972 and 05.07.1972. In the first GO, the
Officers/employees of the Roadways and those working in the
Transport Commissioner’s office and Head Office, whether
permanent or temporary, shall be considered on deputation
under existing terms and conditions of their service. After
35
period of six months, the Corporation shall take steps for their
formal appointment and prepare service rules and those who
are willing to be absorbed shall be absorbed in the Corporation
for which required number of posts, both permanent and
temporary, shall be created. It was also provided in Clause (4)
of the GO dated 07.06.1972 that on absorption their service
conditions shall not be inferior to those under the Government
immediately before the absorption and their tenure of
government service shall be considered for their seniority,
promotion, pay fixation, entitlement for leave and for the
benefits of retirement in the same way as would have been
under the Government service. - In the second GO dated 05.07.1992, the earlier GO
dated 07.06.1972 was amended. The GO dated 05.07.1972 as
is quoted in impugned judgment passed in Special Appeal No.
780 (S/B) of 2013 has already been quoted in the preceding
para 24. - The High Court referred to the above GOs as also the
provisions of U.P. State Road Transport Corporation Employees
(other than Officers) Service Regulations, 1981 to hold that in
36
view of the clear provisions in the GOs that the Roadways
employees sent on deputation shall enjoy the same service
conditions and whenever rules are framed their service
conditions shall not be inferior to the conditions as were
available under the Government immediately before their
absorption, therefore, in view of Regulation 39 of the
Regulations, 1981 notified on 19.06.1981, the erstwhile
employees of the Roadways who have been promoted on
pensionable posts after 1982 are entitled for pension. - Ms. Garima Prasad, learned senior counsel appearing
for the UPSRTC would argue that the High Court has completely
misread the contents of GOs dated 07.06.1972 and 05.07.1972
as also the rules and regulations. She would submit that these
GOs have not made any specific provision concerning
admissibility of pension which is dealt with in the earlier GO
dated 28.10.1960. She would thus submit that GOs dated
07.06.1972 and 05.07.1972 would not be applicable to the
employees of the erstwhile Roadways insofar as entitlement of
pension is concerned and the same is restricted to the
government employees who were absorbed in the services of
the Corporation.
37 - Per contra, Mr. Rakesh Khanna, learned senior
counsel appearing for RKSP would submit that the High Court
has correctly applied the GOs as also the rules and regulations
while allowing the writ petition. He would also submit that the
Division Bench has erred in directing, in the operative part of
the order, that the pension shall be calculated from the date,
employee(s) of the Corporation became member of the cadre of
the post which is pensionable. According to him, the entire
length of service should have been calculated for the purpose
of pensionary benefits. - We have already discussed the legal effect of the
GOs dated 07.06.1972 and 05.07.1972 read along with Clause
(4) of Regulation 39 of the Regulations, 1981. To reiterate, only
those employees of the State Government working in the
Roadways who have opted for services of the Corporation shall
be entitled for pension and other retirement benefits in terms of
GO dated 05.07.1972. However, other employees of the
Corporation shall not be entitled to pension, but they shall be
entitled to the retirement benefits mentioned in subRegulations (1) and (2) of Regulation 39. Thus, it is amply clear
38
that only State Government employees absorbed in the
Corporation shall be entitled to pension, “phrase that their
service conditions shall not be inferior to the conditions as were
available under the Government” would be applicable to the
State Government employees for the purposes of according
benefit of pension. The employees of Roadways who were not
holding any pensionable post prior to their deputation or
absorption in the Corporation, are not entitled to pension, as
their service conditions in the erstwhile Roadways did not
provide that they are entitled to pension. Thus, they have not
been put to any inferior service conditions on their joining the
services in the Corporation. In our considered opinion, the
Division Bench of the High Court was not correct in holding that
the members of the RKSP are entitled to pension even if they
have been promoted after the cutoff date of 27.08.1982. - Insofar as the employees who were promoted in the
UPSRTC on a pensionable post between 1972 to 1981, they are
getting pension in view of GO dated 03.02.1984. This position
has been admitted by Ms. Garima Prasad, learned senior
counsel appearing for the UPSRTC. However, the members of
the Union of RKSP for whose benefit the writ petition was
39
preferred, who were promoted on a pensionable post after the
cutoff date, are not entitled for pension. - Accordingly, we set aside the order passed by the
Division Bench and the learned Single Judge of the Allahabad
High Court under the impugned judgment (s). Accordingly, the
appeals filed by UPSRTC being C.A. No. 895 of 2020, C.A. No.
896 of 2020, C.A. No. 897 of 2020, C.A. No. 898 of 2020 and
C.A. No. (s) __ of 2024 @ SLP (c) __________of 2024 @
Diary No. 10240 of 2020 are allowed and the appeals filed by
Roadways Karamchari Sanyukta Parishad, UP being C.A. Nos.
899-901 of 2020 are dismissed.
C.A. No. 957/2020 , C.A. Nos. 959-965/2020 , C.A. No.
910/2020 , C.A. No. 902/2020 , C.A. No. 912/2020 , C.A. No.
909/2020 , C.A. No. 913/2020 , C.A. No. 958/2020 , C.A. No.
915/2020 , C.A. No. 966/2020 , C.A. No. 914/2020 , C.A. No.
832/2020 , C.A. No. 967/2020 , C.A. No. 905/2020 , C.A. No.
907/2020 , C.A. No. 903/2020 , C.A. No. 911/2020 , C.A. No.
904/2020 , C.A. No. 906/2020 & C.A. No. 908/2020 - In view of our judgment allowing the appeals preferred by
UPSRTC, these civil appeals are dismissed.
………………………………………J.
40
(HRISHIKESH ROY)
………………………………………J.
(PRASHANT KUMAR MISHRA)
JULY 26, 2024
NEW DELHI.