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UP Roadways Retired Officials and Officers Association vs State OF U.P. & ANR.

REPORTABLE

IN THE SUPREME COURT OF INDIA
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.

  1. Abatement is set aside and applications for substitution are allowed. Application(s) for intervention is allowed.
  2. 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.
  3. 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
  4. 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.
  5. 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
  6. 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
  7. 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.
  8. 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.
  9. 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
  10. 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.
  11. 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.
  12. 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.
  13. 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
  14. 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.
  15. 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.
  16. 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.
  17. 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).
  18. 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
  19. 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.
  20. 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.
  21. 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) “
  22. 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.
  23. Service in Dak Bungalow and District Garden
    Establishments does not qualify.
  24. 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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)
  29. 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.
  30. 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.
  31. 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.
  32. 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”
  33. 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. “
  34. 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.
  35. 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
  36. 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.
  37. 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
    .
  38. 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
  39. 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.”
  40. 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.”
  41. 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.
  42. 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.
  43. 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.”
  44. 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
  45. 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.
  46. 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.
  47. 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.
  48. 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
  49. 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
  50. 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,
  51. This judgment, therefore, cannot be relied upon as
    binding precedent as the same has been rendered without
    referring to the applicable GOs and Regulations.
  52. 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.
  53. 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
  54. 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.
  55. 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
  56. 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.
  57. 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.
  58. 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.
  59. 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.
  60. 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
  61. 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.
  62. 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.
  63. 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.
  64. 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
  65. 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.