UP Roadways Retired Officials and Officers Association vs State of U.P. and Another

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

JUDGMENT

PRASHANT KUMAR MISHRA, J.

Delay condoned in filing SLP(C) Diary No. 10240 of 2020

and leave granted.

Signature Not Verified Digitally signed by Jatinder Kaur Date: 2024.07.26 17:08:35 IST Reason: 2

2. Abatement is set aside and applications for substitution

are allowed. Application(s) for intervention is allowed.

3. 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.

4. 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

5. 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 3

the appellants/petitioners do not hold the pensionable post and,

thus, are not entitled for receiving pension.

6. 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 1.

Government orders regarding service under U.P. Roadways and thereafter U.P. State Roadways Transport Corporation

7. In 1947, Uttar Pradesh Roadways2 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 ser

vice.

7.1 On 16.09.1960, a Government Order3 was issued

providing service conditions of the Roadways employees which

1 ‘Corporation’ 2 ‘the Roadways’ 3 ‘GO’ 4

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. 4

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

Regulations5 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. 4 ‘Act, 1950’ 5 ‘Regulations’ 5

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

8. 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.

9. 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 6

pension after the Division Bench judgment of the High Court in

U.P.S.R.T.C. vs. Mirza Athar Beg 6 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

others7 (W.P. No. 5440 of 2000 (S/B) and in the matter of

U.P.S.R.T.C & Ors. Vs. Shri Narain Pandey 8 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.

10. 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

11. Learned senior counsel appearing for the appellants

would submit that the appellants are entitled for pension in

6 2011 (2) ALJ 327 7 W.P. No. 5440 of 2000 (S/B) 8 2009:AHC-LKO:3978-DB 7

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.

12. 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 8

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.

13. 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.

14. 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. Sarkar9 9 (2010) 2 SCC 59 9

15. 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. 10 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 10 (1991) 2 UPLBEC1095 11 (1997) 8 SCC 767 10

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.

16. 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.

17. 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 11

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.

18. 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).

19. 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 12

20. 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.

13 (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 14

will be entitled to the benefits admissible to any other government servant of the same category.

3. 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.

4. 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) “

21. 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 15

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.

1. Service in Dak Bungalow and District Garden Establishments does not qualify.

2. 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.

3. 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) XXXVI- B-- 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.

16 (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.

2. 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.

3. 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.

4. 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)

22. 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.

17

23. 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.

24. 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 18

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.

25. 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 19

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, 20

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.

21 (2) Finance (Expenditure-7) Section

By order, (Bhagwan Swaroop Saxena) Dy. Secretary”

26. 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 sub- regulation (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 sub- regulation, 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 sub- regulation (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. "

27. 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.

28. 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

29. 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.

30. 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.

31. 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

32. 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.”

33. 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.”

34. 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.

8. 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.

52. 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 non- service 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.”

9. 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

35. 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.

36. 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.

37. 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.

38. 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

1961. 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

39. 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,

1981. This judgment, therefore, cannot be relied upon as

binding precedent as the same has been rendered without

referring to the applicable GOs and Regulations.

40. 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.

41. 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

42. 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.

43. 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

1982. 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.

44. 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.

45. 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.

46. 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.

47. 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

48. 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.

49. 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 sub-

Regulations (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.

50. 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.

51. 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

52. 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.