Surya Prakash Kesarwani, J.@mdashHeard Sri Kshetresh Chandra Shukla, Sri Pankaj Verman, Sri Ajay Sharma, Sri Surendra Nath Ojha, Sri
Anil Kumar, Sri M.W. Faridi, Sri A.K. Trivedi, Smt. Gajala Bano, Sri Anand Srivastava, Sri Anil Bhushan, Sri Satyendra Kumar Mishra, Sri B.P.
Yadav, Sri K.B. Srivastava, Sri Sachin Upadhyay. Sri Arvind Srivastava, Sri Krishna Bihari, Sri Saurabh Pratap Singh,, Sri Ajay Sharma, Sri Lal
Babu Lal, Sri Vidya Bhushan Srivastava, Mrs. Anupama Parasar, Sri Siddharth Khare, learned counsels for the petitioners and Sri Vivek Mishra,
learned Additional Advocate General assisted by Sri B.P. Singh Kachhwah, learned standing counsel for State-respondents and Sri Samir
Sharma, learned counsel for the U.P.S.R.T.C.
2. This bunch of writ petitions were heard on 20.5.2014, 21.5.2014, 22.5.2014, 26.5.2014, 27.5.2014, 28.5.2014 and 29.5.2014. On
21.5.2014, the following questions were framed for deciding the controversy involved in these writ petitions:
QUESTIONS
(i) Whether the writ petitions are highly belated and hit by principles of latches?
(ii) Whether the post held by the petitioners are pensionable post, and if so which are the relevant Government orders, rules, regulations which
confers right on the petitioners for pension?
(iii) Whether the petitioners who were members of the Employees Provident Fund Scheme and received E.P.F. amount on their retirement are
entitled for pension?
(iv) Whether the petitioners who received gratuity for non-pensionable post may claim pension?
(v) Whether the claim of the petitioners is hit by principles of approbate and reprobate?
BRIEF FACTS
Briefly stated the facts of the present case are as under:
3. The erstwhile Uttar Pradesh Roadways was created in the year 1947 as a temporary department of the State Government for providing
transport service facilities to travelling public. On 16.9.1960, a Government order was issued providing service conditions of Roadways
employees inasmuch as the service conditions of Roadways employees were completely different to the service conditions as existing in other
Government departments. On 28.10.1960, another Government order was issued by the State Government providing for pension to permanent
employees of the erstwhile U.P. Government Roadways department. As per paragraph 2 of this Government order it was issued under note 3 of
Article 350 of Civil Service Regulations, prescribing that remaining non-gazetted employees of U.P. Roadways would be entitled for benefits under
the Employees Provident Fund Scheme. On 1.6.1972, the U.P. State Roadways Transport Corporation (hereinafter referred to as the
corporation) was created under Section 3 of the Road Transport Corporation Act, 1950 (hereinafter referred to as the Act, 1950) and all the
employees of the U.P. Roadways were treated on deputation in the corporation.
4. Another Government order dated 5.7.1972 was issued by the State Government whereby assurance was given to the employees of the
erstwhile U.P. Government Roadways that their service conditions in the corporation will not be inferior as compared to their service conditions
prior to their absorption in the corporation. On 20.4.1977, Article 350 of Civil Service Regulations was amended with retrospective effect.
However, no amendment was made in the note 3 of Article 350 which provides that the non-gazetted post in Government technical industrial
institution is not qualified for pension. On 19.6.1981, the corporation framed service regulations under the power conferred under Section 45(2)(c)
of the Act, 1950. On 28.4.1982, U.P. Government Roadways (Abolition of Post and Absorption of Employees) Rules, 1982 was framed
providing for absorption of all employees of the Government Roadways in the services of the corporation after three months. Thus, the employees
of the Government Roadways were absorbed in the corporation on 28.7.1982.
5. According to the corporation all the petitioners were temporary employees and thus, they were working on non-pensionable post. Undisputedly
all the petitioners were members of Employees Provident Fund Scheme. On their retirement they received all the post retiral benefits including the
amount of E.P.F.
6. There are three sets of petitioners as under:
(i) Those who were appointed in the U.P. Roadways prior to the G.O. dated 16.9.1960 and have retired.
(ii) Those who were appointed after 16.9.1960 but prior to creation of the corporation as on 1.6.1972 and have retired.
(iii) Those who were appointed after 1.6.1972 when the corporation was created and have retired.
7. Undisputedly, the petitioners received all their post retiral benefits after their retirement. Most of the petitioners have retired decades ago. They
never claimed their post to be a pensionable post either during their service period or after their retirement. They never claimed for pension. They
were undisputedly members of Employees Provident Fund Scheme and received E.P.F. Amount after the retirement. They started claiming
pension only after the Division Bench Judgment of Lucknow Bench of this Court in the case of U.P.S.R.T.C. v. Mirza Athar Beg and others, 2011
(2) ALJ 327, decided on 29.11.2010, whereby the judgment of learned single Judge dated 25.8.2010 passed in Writ Petition No. 7728 (S./S.) of
1996. Mirza Athar Beg and others v. State of U.P. and others, was upheld. A Special Leave to Appeal (Civil) No. 7709 of 2011 filed against the
Division Bench judgment in the case of Mirza Atahr Beg (supra) was dismissed on 10.7.2013 by the following order:
Delay condoned.
Dismissed.
8. Number of petitioners have moved representations before the Corporation and also filed writ petitions seeking relief that their representations be
decided. Pursuant to the orders of this Court passed in several writ petitions, the Corporation decided the representations and rejected the claim of
the petitioners. One such order dated 27.9.2012 rejecting representation passed by the Corporation filed as Annexure-1 in Writ Petition No.
63469 of 2012 is reproduced below:
SUBMISSION ON BEHALF OF PETITIONERS
9. Sri Kshetresh Chandra Shukla has submitted as under:
(i) Petitioners who were appointed prior to coming into force of Uttar Pradesh State Road Transport Corporation in the year 1972, are entitled
for pension in terms of the Government order dated 16.9.1960.
(ii) There was no provision providing for service conditions of temporary employees of U.P. Roadways. By the Government order dated
28.10.1960 service conditions for permanent employees of U.P. Roadways were provided in which it was specifically stipulated that temporary
employees, who are made permanent shall have a choice to opt for pension. According to this Government order dated 28.10.1960, the petitioner
are entitled to pension, as they were made permanent. The petitioners were appointed on a pensionable post. They were promoted on a
pensionable post and retired from a pensionable post and as such they are entitled for pension.
(iii) Although, there is no pleading in the writ petition that the petitioners were made permanent, but they were permanent employee. They retired
from the post of Store Keeper in the office of the Divisional General Manager, U.P.S.R.T.C.
(iv) Article 350 of Civil Service Regulation was amended by a Notification dated 20.4.1977, whereby the word ''Post'' was replaced by word
''Establishment'' and as such employees of all establishment under the State Government shall be deemed to be working on a pensionary post,
unless the establishment is excluded.
(v) The Government order dated 28.10.1960 should be considered in the light of the amendment of the year 1977 in Article 350. Since, the word
''Post'' has been replaced by the word ''Establishment'' and, therefore, the aforesaid Government order dated 28.10.1960 has lost significance with
regard to exclusion of posts for the purposes of pension. When confronted that the word ''Service'' as used in proviso to Article 350 and the
provisions of Article 4 of Civil Service Regulations, Sri Shukla submits that the provision should be read in the manner that only whole
establishment may be excluded by the State Government and not a particular post.
(vi) After the amendment in Article 350 of the Civil Services Regulations, the State Government has not issued any Government order to exclude
any establishment for the purposes of pension.
(vi) By G.O. dated 5.7.1972 the employees of erstwhile U.P. Roadways department were treated to be on deputation with the condition that as
and when they are absorbed, their service conditions shall not be inferior to that as were applicable to them while working as employees of the
U.P. Roadways.
(vii) Assurance so given in the said Government order was complied by Regulation 83 of the Uttar Pradesh Road Transport Corporation
Employees (other than officers) Service Regulation, 1981. The admissibility of pension as a service condition as was available to the employees of
U.P. Roadways was protected by Regulation 39.
(viii) On a question put to him that under which Government order the petitioners while working in the U.P. Roadways were entitled to pension, Sri
Shukla submits that the Government order dated 28.10.1960 cannot be read in isolation but it has to read in the light of the subsequent
Government orders. On question further put to him that which is the subsequent Government orders, he merely refers to a copy of an alleged letter
dated 11.12.1962 filed as Annexure-6 to the Writ Petition No. 63469 of 2012, allegedly sent by Mukhya Lekha Adhikari to some one.
(ix) On question put to him that it is merely an unauthentic letter and not a Government order he submits that this letter is in continuation of the G.O.
dated 28.10.1960 and, therefore, it should be treated as part of the Government order. On a further question put to him that how this unauthentic
alleged letter can be treated as part of the Government order he submit no reply.
10. Sri K.S. Shukla has relied upon Division Bench judgment of Lucknow Bench of this Court in Writ Petition No. 5449 of 2000, (S./B.)
Managing Director, U.P.S.R.T.C. v. S.M. Fazil and 3 others, decided on 5.12.2002 against which Special Appeal to Leave (Civil) Nos. 8690 of
2004 and 8691 of 2004 was dismissed on 16.8.2005 on the ground of delay. He also relied upon Division Bench judgment in the case of U.P.
State Road Transport Corporation, Lucknow and another v. Mirza Athar Beg and others, 2011 (2) ALJ 327 paras 31 and 32, against which
Special Appeal to Leave (Civil) No. 7709 of 2011 was dismissed by an order dated 10.7.2013 as under:
Delay condoned. Dismissed.
11. He also relied upon the Government order dated 26.6.1991 and 3.2.1994 as well as Rule 4 of the State Roadways Organization (Abolition of
Post and Absorption of Employees) Rules, 1982 as amended by the first Amendment Rules on 27.7.1982.
12. Sri Satya Prakash has submitted as under:
(i) Regulation 350 of the Civil Services Regulation provides that all establishments, whether temporary or permanent shall be deemed to
pensionable establishments, provided that it is open to the State Government to rule that the service in any establishment does not qualify for
pension. Since, the respondents have not placed any evidence on record that the Government order dated 16.9.1960 and 28.10.1960 were
notified and as such proviso to Article 350 shall not apply and the petitioners shall be deemed to have worked on pensionable posts.
(ii) The State Road Transport Corporation Act, 1950 was enacted on 4.12.1950. Section 3 thereof provides for establishment of State Road
Transport Corporation. Section 44 confers power to make rules. Section 45 confers power to make regulations. Since, no rules or regulations
have been framed prior to the year 1972 and as such the general provisions of Article 350 of the Civil Service Regulation shall be applicable to the
petitioners.
(iii) In the aforesaid circumstances, the Government order dated 16.9.1960 which provides for service conditions, has no force of law. On a
question put to him that whether after several decades and after the retirement, the petitioners can question the validity of the aforesaid Government
orders under which they came in service and, which has also not been challenged in these writ petitions, he submits that since, the respondents
have not placed any evidence on record that the Government orders were notified and as such it has no force of law.
(iv) Paragraph 3 of the Government order dated 28.10.1960 provides that as and when the temporary employees of the categories mentioned in
para-1 are made permanent, they will have option to elect contributory provident fund-cum-pension benefits in lieu of employees provident fund.
The petitioners have rendered such a long service and they were made permanent. On a query put to him to show either from the pleadings of the
writ petition or from any documents that when the petitioners were made permanent, he submits that no such pleadings have been made in the writ
petition. There is no pleading in the writ petition that the petitioners come under any of the categories mentioned in Class-a, b or c, as mentioned in
para-1 of the Government order dated 28.10.1960.
(v) The objection raised by the respondents that the writ petition is highly belated, is incorrect, inasmuch as right to receive pension is a
constitutional right under Article 300A of the Constitution and as such the petitioners have continuous cause of action. Therefore, writ petitions
even though filed after 20 or 30 years of retirement are liable to be entertained and are not hit by principles of latches.
(vi) Since, no rule has been framed under Section 44 of the Act of 1950, hence, the Government orders dated 16.9.1960 and 28.10.1960 are bad
in law.
(vii) The respondents have not deposited their share of Employees Provident Fund as per employees provident fund and Miscellaneous Provisions
Act, 1952, and the petitioners are ready to return the Employees Provident Fund amount to the respondents and, therefore, the respondents may
be directed to pay pension to the petitioners. On a question put to him that what is the basis to argue that respondents did not deposit their share of
E.P.F., he submits no reply.
13. Sri Arvind Srivastava appearing in Writ Petition No. 915 of 2014 has submitted as under:
(i) Even if it is assumed that the alleged orders dated 16.9.1960 and 28.10.1960 are Government orders yet they are not law and therefore, the
petitioner''s right to pension which was earlier a fundamental right and now a constitutional right under Article 300A cannot be taken away. In other
words petitioners cannot be deprived of their constitutional right. The executive instructions issued by the State Government is not a law. Reliance
is placed on the judgment of Hon''ble Supreme Court in Hindustan Times and Others Vs. State of U.P. and Another, .
(ii) There is no evidence on record that the G.O. dated 16.9.1960 was notified and as such in the absence of any notification, the aforesaid alleged
orders cannot be said to be Government orders. A Government order must be notified. Reliance is placed on the judgment of Hon''ble Supreme
Court in Shanti Sports Club and Another Vs. Union of India (UOI) and Others, and Union of India (UOI) and Another Vs. Kartick Chandra
Mondal and Another, .
(iii) The law which governed the service conditions of the petitioners was the Rule 56 of the fundamental rules read with Regulation 350 and not
Government orders of 1960.
(iv) The classification made in the Government order dated 28.10.1960 is unreasonable and arbitrary and therefore, hit by Article 14 of the
Constitution of India. The classification of pensionable and non-pensionable post cannot be made. Reliance is placed on the judgment of Hon''ble
Supreme Court in Dakshin Haryana Bijli Vitran Nigam and Others Vs. Bachan Singh, and Full Bench judgment of Punjab and Haryana High Court
in Kesar Chand Vs. State of Punjab and Others, ; Balmer Lawrie and Co. Ltd. and Others Vs. Partha Sarathi Sen Roy and Others, .
(v) The petitioners have recurring cause of action due to non-payment of their pension and as such the objection raised by the respondents with
regard to delay and laches is wholly misconceived. Delay in filing the writ petition is not fatal in the circumstances when the petitioners have
recurring cause of action. Reliance is placed on the judgment of Hon''ble Supreme Court in H.D. Vora Vs. State of Maharashtra and Others, ;
M/s. Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and and District Board, Shahabad and others, : Improvement
Trust, Ludhiana Vs. Ujagar Singh and Others, ; Anil Kumar Gupta Vs. State of Bihar and Others, and Himachal Pradesh State Electricity Board,
Shimla and others Vs. Tirath Raj and others, etc. etc.,, .
(vi) The Government orders dated 16.9.1960 and 28.10.1960 providing for service conditions were issued under Article 162 and not under
Article 166 of the Constitution of India and, therefore, they cannot be said to be law.
14. Sri Pankaj Berman submits that the controversy raised in these writ petitions is squarely covered by the judgment of this Court in the case of
S.M. Fazil (supra) and Mirza Athar Beg (supra). He submits that the Division Bench judgment is binding on this Bench and as such these writ
petitions deserves to be allowed. He submits that a Special Leave to Appeal (Civil) against the judgment of this Court in the case of Mirza Athar
Beg (supra), was dismissed by Hon''ble Supreme Court and thus, the judgment in the case of Mirza Athar Beg has the approval of Hon''ble
Supreme Court and, therefore, it is binding precedent under Article 141 of the Constitution of India.
15. Sri Lal Babu Lal, Sri Vidya Bushan and other learned counsel appearing for the petitioners adopt the arguments advanced by Sri Satya
Prakash and Sri Kshetresh Chandra Shukla.
16. Sri Siddharth Khare, learned counsel for the petitioner in Writ Petition No. 63446 of 2013 submits that the date of initial appointment of
petitioners is 22.2.1968, April, 1968. 21.8.1964, 1.1.1965 and 9.8.1966 respectively. The appointment so granted to petitioner No. 1 was as
Assistant Mechanic, the appointment so granted to petitioner No. 2 was as mazdoor the appointment so granted to petitioner Nos. 3 and 4 was as
Assistant Store Keeper. He further submits that the claim of the petitioners is based upon the fact that the initial appointment of each of the
petitioner was made in the U.P. Government Roadways, which was a part of the Transport Department of the State. The appointment so granted
to the petitioners were appointments against pensionable post, which stood protected even after creation of U.P. State Road Transport
Corporation under Government orders issued by the State Government, namely, the Government order dated 7.6.1972 and 5.7.1972 as also
Regulation 39 (2) of the 1981 Regulations framed by the U.P. State Road Transport Corporation.
SUBMISSION ON BEHALF OF RESPONDENTS U.P.S.R.T.C.
17. Sri Samir Sharma has submitted as under:
(a) The entire bunch of writ petitions have been filed by the retired employees. They have claimed pension. These bunch of writ petitions are of
two sets of employees namely:
(i) First set.--Those who were appointed in the erstwhile U.P. Government Roadways prior to 1.6.1972 and retired after their absorption in the
service of the corporation.
(ii) Second set.--Those who were appointed after the creation of the corporation w.e.f. 1.6.1972 and have retired.
With respect to the first set of cases:
(b) All the petitioners have already opted for and availed of the post retiral benefits under the Employees Provident Fund Scheme after their
retirement. Subsequently, after passage of several years, (and the period ranges from 8 years to 32 years) the petitioners have approached this
Hon''ble Court by filing writ petitions claiming that they are prepared to refund the employees provident fund amount.
(c) The writ petitions are liable to be dismissed solely on the ground of delay, as the petitions are highly belated and no explanation whatsoever has
been given in the writ petitions, for approaching the court with inordinate delay. Infact, it is only after the judgment rendered in Mirza Atahar Beg''s
case dated 29.11.2010 and the dismissal of the special leave petition filed by the Corporation against the said judgment, in July, 2013, that the writ
petitions have been filed.
The Hon''ble Court in a catena of decisions has been pleased to hold that waiting for another person to get a favorable judgment cannot be a
ground for condonation of delay and, hence, the writ petitions are liable to be dismissed on this ground alone.
(d) Although, the Hon''ble Supreme Court in the case in Shiv Dass Vs. Union of India (UOI) and Others, has been pleased to hold that in case for
a claim for disability pension (which was never paid in the said case) the cause of action was a continuing wrong, and hence the relief could be
moulded to be granted for only the last 3 years keeping in view the delay.
However, the Hon''ble Supreme Court in the case in Union of India (UOI) and Others Vs. M.K. Sarkar, , has been pleased to hold that in case
employee had availed the post retirement benefit under the Provident Fund Scheme, it cannot be said that the cause of action continued. Hence,
the Hon''ble court was pleased to dismiss the claim of the employee on the ground of delay. The Hon''ble Court also took a view that an earlier
direction by the court to decide the representation would not enlarge the period of limitation.
(e) The claim for pension made by the petitioners is only based on a misconception that the pension scheme is comparable to the Provident Fund
Scheme and, hence, the petitioners should be allowed to get the benefit of the pension scheme, as with the passage of time, it has become a better
option. The Hon''ble Supreme Court in the case of Krishena Kumar and Others Vs. Union of India and others, , has been pleased to hold that the
pension scheme forms separate class, and cannot be compared to the Provident Fund Scheme, and on that ground the similar claim for option to
switch over to pension scheme was rejected.
(f) The claim for pension of the petitioners is primarily based on the judgments rendered by the Hon''ble High Court in the case of S.M. Fazil, Sri
Narayan Pandey and Mirza Atahar Beg, and the fact that special leave petitions filed by the Corporation against the said judgments have been
dismissed by the Hon''ble Supreme Court. The judgments passed by the Hon''ble Supreme Court dismissing the special leave petitioners filed
against the aforesaid judgments are non-reasoned, or the S.L.P. has been dismissed on the ground of delay. Thus, the doctrine of merger would
not be applicable and, hence, it cannot be said that any authoritative pronouncement has been made by the Hon''ble Supreme Court under Article
141 of the Constitution of India, binding on the High Court.
(g) In none of the judgments, i.e., Sri S.M. Fazil. Sri Narayan Pandey and Mirza Atahar Beg, the Hon''ble High Court has considered the effect of
Note-3"" of Article 350 of C.S.R. (which has neither been amended nor deleted even by the amendment dated 20.4.1977). The Hon''ble Courts
have not considered the effect of the amendment in Article 350 of C.S.R. on the G.O. dated 28.10.1960. Hence, the aforesaid judgments are ""per
incurium"".
(h) The erstwhile U.P. Government Roadways was a ""Government, technical and industrial institution"" and the State Government was treating it to
be as such, as is evident from the second paragraph of Government order dated 28.10.1960.
(i) Moreover, in the case of Abdul Hadi v. U.P.S.R.T.C, Writ No. 13088 of 2002, decided on 3.4.2002, it has been specifically held that the
G.O. dated 28.10.1960 has been issued in exercise of powers under note 3 below Article 350 C.S.R.
(j) It is admitted fact that Government Roadways was an establishment of the State Government which had 3 major workshops, and smaller
workshops also and, therefore, also came into the category of a ""technical institution as defined in the Webster''s Dictionary. The same has also
been held by this Hon''ble Court in the judgment in 1991 (2) UPLBEC (1095) (paragraphs 9 and 10). The word ""industrial"" has been defined in
Webster''s dictionary as ""pertaining to, resulting from an industry"". The erstwhile U.P. Government Roadways also came within the definition of
industry"" according to the test prescribed in the case in General Manager, Telecom Vs. A. Srinivasa Rao and Others, , which was based on the
judgment in the Bangalore Water Supply case. The words ""institution"" has been defined in the Webster''s Dictionary as ""an organization,
establishment"". Thus, U.P. Government Roadways was ""Government, technical and industrial institution"" and, hence, the non-gazetted posts in the
Government roadways did not qualify for pension (in view of note 3 to Article 350 C.S.R.
(k) The Service conditions of employees of U.P. Government Roadways, as existing prior to their absorption in the Corporation, were only
protected by G.O. dated 5.7.1972 and the provisions of the Service Regulations framed by the Corporation. The same has also been held by this
Hon''ble Court in judgment dated 29.1.2002 passed in Writ Petition No. 4196 of 2002, Bhoop Ram Sharma and another v. U.P.S.R.T.C.
(l) None of the petitioners have worked on any pensionable post as indicated in para 1 of the Government order dated 28.10.1960, till their
absorption in the Corporation w.e.f. 28.7.1982 and, hence, are not entitled for pension.
(m) In the judgment in the case of S.M. Fazil, note-3 to Article 350 C.S.R. has not been considered. Moreover, in the said judgment it has been
incorrectly recorded that in Har Bux Pathak''s case, the question of G.O. dated 28.10.1960 being retrospective in operation, had not been
considered. The other judgment in the case of Mirza Atahar Beg is based on the judgment of S.M. Fazil. Moreover, there is a direct conflict
between the Division Bench judgments in the case of Hira Lal Upadhyaya and Mirza Atahar Beg regarding the claim for pension being barred by
the Rule of Estoppel.
(n) In the case of S.M. Fazil, Sri Narain Pandey and Mirza Atahar Beg, the petitioners were working on pensionable posts even as per the G.O.
dated 28.10.1960. However, none of the petitioners in the present set of petitions had ever worked on any pensionable post as per the said G.O.
Hence, the petitioners claim for parity is misconceived.
(o) The plea of the petitioner in one petition that the G.O. dated 28.10.1960 was never published and, therefore, un-enforceable, is also
misconceived. There is nothing on record to substantiate the aforesaid allegation. In any case, all acts of the Government are presumed to have
been done in accordance with law, unless proved otherwise.
Moreover, the Hon''ble Supreme Court in various cases has been pleased to hold that where reasonable opportunity to know the notification
exists, there is no need of publication in the Official Gazette unless called for by any law. There is no such provision in the Civil Service Regulations
and the petitioners have also not stated in the petition that there was no reasonable opportunity to know about the notification or even that they
were unaware of the said G.O.
With respect to the second set of Cases--
(p) All the petitioners in this set of cases were appointed in the Corporation after creation of the Corporation w.e.f. 1.6.1972. Thus, none of the
petitioners were entitled to the benefit of G.O. dated 5.7.1972 or the provisions of Civil Service Regulations relating to employees of erstwhile
U.P. Government Roadways sent on deputation to the Corporation and thereafter, absorbed I the Corporation. The reliance placed by petitioners
on the judgments in the cases of S.M. Fazil, Sri Narain Pandey and Mirza Atahar Beg is clearly misconceived as those cases related to employees
of erstwhile Government Roadways.
(q) The petitioners are also not entitled to continue in service till the age of 60 years. Similar matter has been decided in the case of Bal Krishna
Awasthi and Another Vs. Managing Director, U.P.S.R.T.C., Lucknow and Others, .
(r) The petitioners have also relied upon a G.O. issued in the year 1988, in which it was mentioned that the employees of erstwhile U.P.
Government Roadways had not been absorbed in the Corporation. The said G.O., it appears has been issued under some misconception and is in
teeth of the provisions of U.P. Government Roadways (Abolition of Posts and Absorption of Employees) Rules, 1982, according to which all
employees of erstwhile U.P. Government Roadways stood absorbed in the Corporation w.e.f. 28.7.1982. In any case, a Government order can
only supplement and not supplant rules, and cannot override the Rules.
(s) Petitioners representation claiming pension was rejected by order dated 27.9.2012, in which it was specifically recorded that:
(i) Petitioners had never worked on any pensionable post.
(ii) Petitioners were working on temporary basis and were not confirmed on any post.
(t) The petitioners have neither pleaded nor proved by filing any document showing that they had been made permanent on any pensionable post.
Hence, their claim was rightly rejected. Under the circumstances writ petitions are liable to be dismissed. Bharat Singh and Others Vs. State of
Haryana and Others, .
(u) The petitioners have relied upon Rule 4 of the U.P. Government Roadways (Abolition of Posts and Absorption of Employees) Rules, 1982 to
contend that they were entitled for the benefit of G.O. dated 5.7.1972, which entitled him to payment of pension.
The said G.O. dated 5.7.1972 only gave an assurance to employees of the Government Roadways that their service conditions in the Corporation
would not be inferior to the service conditions as existing prior to their absorption in the Corporation. As the petitioners was working on non-
pensionable post till their absorption in the Corporation w.e.f. 28.7.1982, and, hence, the G.O. dated 5.7.1972 does not entitled them for payment
of pension.
(v) The petitioners have relied upon Article 350 of C.S.R. to contend that as the same was amended in the year 1977 with retrospective effect and
no subsequent G.O. was issued making any post non-pensionable, hence they are entitled for pension.
The said argument is misconceived as ""Note 3"" under Article 350 C.S.R. has not been amended. Hence, in view of the exception clause-""Note-3"",
the provisions of Article 350 were not applicable to the Government Roadways. Moreover, the proviso to Article 350 specifically gives the right to
the Government to decide as to which service/post in an establishment is pensionable, or not. Hence, the G.O. dated 28.10.1960 is referable to
the proviso of the amended Article 350 C.S.R. The post on which the petitioners had worked, were never made pensionable.
(w) The petitioners have contended that the post of Junior Clerk being interchangeable with the post of Traffic Inspector, Grade-II, hence, was
pensionable. The said argument is absolutely misconceived as the post of Traffic Inspector Grade-II was never pensionable and cannot be equated
with the next higher post of Traffic Inspector Grade-I.
(x) The petitioners have relied upon the G.O. dated 22.6.1991 to contend that the Corporation was itself ready to pay pension by taking back the
contribution under the E.P.F. Scheme.
(y) The said argument is misleading and misconceived, as a bare reading of G.O. dated 22.6.1991, clearly indicates that the same refers to an
earlier G.O. dated 7.1.1984, which related to calculation of period of non-pensionable service for pension, in case an employee had worked for
some time on a non-pensionable post, and the remaining period on a pensionable post. The said G.O.''s do not help the case of the petitioners, as
they had never worked on any pensionable post.
(z) In Civil Misc. Writ Petition No. 64613 of 2009, Committee of Management v. State of U.P. and others, the petitioners are Committee/society
who have filed the present writ petition claiming pension for it''s members. The writ petition is not maintainable for the reliefs prayed for, as there is
nothing on record to show that the members of the society have authorized the petitioner to pursue the claim. Moreover, all the members of the
petitioner society had retired several decades ago and have filed the writ petition highly belatedly. The service records of the members of the
petitioner society would have been weeded out due to passage of time. The petition is liable to be dismissed on the ground of latches. All the
members of the petitioner society have been paid post-retirement dues under the E.P.F. Scheme and, hence, are not entitled for pension.
(aa) The contention of the counsel for the petitioner is that G.O.''s have been issued under Article 162 and not under Article 166 is not based on
any pleading and has no relevance to the issue at hand.
(ab) Fundamental Rule 56(e) provides for payment of pension/other retirement benefits, if any, in accordance with and subject to rules.
The Words-""if any"" apply to both-""a retiring pension"", and also ""other retirement benefits"". As there is no comma between the aforesaid two, the
effect is that the right to pension is available only in case there are rules in that regard.
The word ""rule"" in Section 3(51) of General Clauses Act means a rule made in exercise of any enactment, and includes a regulation.
(ac) The non-pensionable posts were covered by Contributory Provident Fund (U.P.) Rules, 1933, framed in exercise of power conferred by
Rules 41, 42 and 44 of Civil Services (Classification Control and Appeal) Rules, 1930. Similarly, pensionable posts were covered by U.P.
Contributory Provident-Fund-cum Pension Insurance Rules, 1948, framed in exercise of powers conferred by Section 241 of Government of
India Act, 1935. The Civil Service Regulations have also been framed, which specifically provide for the Government to decide whether the benefit
of pension be given for a post or not. It also carves out exceptions in Note 3, which relates to the U.P. Government Roadways. The G.O. dated
28.10.1960 was issued under Note 3 of Article 350 C.S.R. The said G.O. did not provide for pension to petitioners but only the benefit of E.P.F.
to them.
(ad) The contention of the counsel for the petitioners is that in Article 350 C.S.R., the proviso refers to-""Rules framed"" and not a G.O. Moreover,
the word ""service"" indicates the entire posts.
The said argument is misconceived as the words ""to rule"" in Article 350 C.S.R. refers to any decision/direction and not to a rule framed.
Moreover, a bare perusal of ""Note 2"" to Article 350 and Articles 361 to 372, etc. clearly indicates that in the C.S.R., the word ""service"" has been
used for a ""post"".
(ae) The facts of the cases relied by the petitioners are completely different to that of the present set of cases and, hence, are not applicable.
(af) With respect to the cases, where the petitioners were appointed subsequent to 1.6.1972, i.e., after creation of the Corporation.
The State Government had subsequently vide G.O. dated 20.10.2004 given approval for payment of pension to those employees who had been
appointed on pensionable posts in the Corporation till 18.6.1981. The petitioners were never appointed/worked on pensionable posts as per G.O.
dated 28.10.1960 till 18.6.1991, and, hence, are not entitled to pension.
(17) Sri Sunil Kumar Mishra adopts the submission made by Sri Samir Sharma.
Submission on behalf of State Respondents
18. Sri Vivek Mishra, learned Additional Advocate General assisted by Sri B.P. Singh Kachhawah, learned standing counsel has adopted the
submission made by Sri Samir Sharma.
19. I have considered the submissions made by the learned counsel for the parties and perused the record.
In Writ Petition No. 915 of 2014 the petitioners represented by Sri Arvind Srivastava, Advocate, have filed an amendment application on
22.5.2014, after the final argument started on 20.5.2014. The said amendment application was presented before the Joint Registrar on 22.5.2014.
It was filed even without leave of the court. By this amendment application the validity of Government orders dated 16.9.1960 and 28.10.1960
was sought to be challenged after about 54 years of their issuance and after about 18 years of the retirement of the petitioner No. 1 and after 12
years of retirement of husband of petitioner No. 2, who died in the year 2013. The validity of these Government orders have not been challenged
except moving an amendment application on 22.5.2014 in Writ Petition No. 915 of 2014. Sri Arvind Srivastava made his submissions on
27.5.2014 only on the validity of these Government orders. On a question put to him that whether the petitioners have challenged the validity of
these Government orders, he submitted that the above referred amendment application has been moved. This amendment application was not even
pressed before the final argument was started by him. In the circumstances, the amendment application and the arguments based thereon cannot be
entertained at this belated stage. Even otherwise, such a challenge is hit by principles of approbate and reprobate.
Findings
Question No. 1
Latches, Waiver and Acquiescence
20. Undisputedly, the petitioners have accepted the post retirement benefits in accordance with the Government orders dated 16.9.1960 and
28.10.1960 and other subsequent Government orders governing their service conditions. After long lapse of time ranging from 8 years to 32 years
of their retirement, the petitioners have filed these writ petitions without properly explaining the delay. Instead of explaining the latches, learned
counsel for the petitioners have taken the stand that right to receive pension is a constitutional right under Article 300A of the Constitution of India
and as such the petitioners have continuous cause of action and, therefore, even if the writ petitions have been filed after 20 or 30 years of
retirement, the same are liable to be entertained. I find no force in the submissions of the learned counsel for the petitioners, particularly, the
arguments advanced by Sri Satya Prakash. The petitioners have received all the benefits on their retirement without any protest or objection.
Under the circumstances, it cannot be said that the petitioners are not liable to explain the latches.
21. These writ petitions have been filed mainly on the basis of the judgment of this Court in the case of Mirza Athar Beg and others (supra). The
inordinate delay in preferring these writ petitions have not been explained by the petitioners. It is also well-settled principles that ""Delay defeats
equity"". Under the circumstances, these writ petitions appear to be hit by principles of latches.
22. In the case of State of Orissa and Another Vs. Mamata Mohanty, , Hon''ble Supreme Court observed as under:
54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner
approaches the court after coming to know of the relief granted by the court in a similar case as the same cannot furnish a proper explanation for
delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had
approached the court within a reasonable time. (See : Rup Diamonds and Others Vs. Union of India and Others, ; State of Karnataka and Others
Vs. S.M. Kotrayya and Others, and Jagdish Lal and others Vs. State of Haryana and others, .
(Emphasis supplied by me)
23. In the case of S.S. Balu and Another Vs. State of Kerala and Others, , Hon''ble Supreme Court observed as under:
17. It is also well-settled principle of law that ""delay defeats equity"". Government order was issued on 15.1.2002. Appellants did not file any writ
application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an
appeal there against, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly
situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala
or the Commission to appoint the appellants at this stage.
24. In New Delhi Municipal Council Vs. Pan Singh and Others, . Hon''ble Supreme Court held as under:
16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not
agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982,
those employees who were employed or who were recruited after the cutoff date have been granted the said scale of pay. After such a long time,
therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be
exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.
25. Similar view has been taken by Hon''ble Supreme Court in the case of Virender Chaudhary Vs. Bharat Petroleum Corporation and Others, .
26. In the case of Chairman, U.P. Jal Nigam and Another Vs. Jaswant Singh and Another, , Hon''ble Supreme Court observed as under:
12. The statement of law has also been summarized in Halsbury''s Laws of England, Para 911, pg. 395 as follows:
In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant''s part; and
(ii) any change of position that has occurred on the defendant''s part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed
and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are
most material. Upon these considerations rests the doctrine of laches.
13. In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the
retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the
matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions,
then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the
question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the
present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have
taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after
a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds
which is going to have serious financial repercussion on the financial management of the Nigam. Why the court should come to the rescue of such
persons when they themselves are guilty of waiver and acquiescence.
(Emphasis supplied by me)
27. In the case of Smt. Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others, , Hon''ble Supreme Court referring to various
earlier judgments, observed as under:
30. If some person has taken a relief from the court by filing a writ petition immediately after the cause of action had arisen, petitioners cannot take
the benefit thereof resorting to legal proceedings belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they
cannot be permitted to take the impetus of the order passed at the behest of some diligent person. In State of Karnataka and Others Vs. S.M.
Kotrayya and Others, , this Court rejected the contention that a petition should be considered ignoring the delay and laches, on the ground that the
petitioner therein filed the petition just after coming to know of the relief granted by the Court in a similar case, as the same cannot furnish a proper
explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and
laches.
31. The same view has been reiterated by this Court in Jagdish Lal and others Vs. State of Haryana and others, , observing as under:
Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan
and Ajit Singh''s ratio..........desperate attempts of the appellants to re-do the seniority, held by them in various cadre.......are not amenable to the
judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well.
32. In Rup Diamonds and Others Vs. Union of India and Others, , this Court considered a case where petitioner wanted to get relief on the basis
of the judgment of this Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and
laches observing as under:
There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they have not pursued for several
years. Petitioners were not vigilant but were content to be dormant and close to sit on the fence till somebody else''s case came to be decided.
(Emphasis supplied by me)
28. Large number of employees of the respondent Corporation have retired during the last 55 years, who were working on a non-pensionable
post, as provided by the Government orders dated 16.9.1960 and 28.10.1960. Now, some of the erstwhile, employees, who are petitioners in
this bunch of writ petitions have belatedly claimed pension. Even if it is assumed for a moment that the claim of the petitioners may be accepted, yet
it will cause tremendous, administrative and financial problems for the Corporation and may amount to permit the petitioners to unsettle the matters
which are settled. The negligence or omissions on the part of the petitioners to assert their alleged right of pension after long lapse of time and other
circumstances shall cause prejudice to the respondents. Belatedly filed representations decided by the Corporation in regard to a ''Stale'' or ''dead''
issue/dispute of pension in compliance with the direction of this Court passed in writ petitions filed earlier by some petitioners, the date of decision
on such representation cannot be considered as furnishing a fresh cause of action for reviving the dead issued or time barred disputed. The issue of
limitation or delay or latches has to be considered with reference to the original cause of action and not with reference to the date on which order
deciding the representations in compliance of the order of this Court, has been passed by the respondent-Corporation. The directions of this Court
in earlier writ petitions filed by some of the petitioners to consider a representation, without examining the merits, will not extend the limitation or
erase the delay and latches.
29. The above view is also supported by the law laid down by Hon''ble Supreme Court in the case of Jagdish Narain Maltiar Vs. The State of
Bihar and Others, ; Naresh Kumar Vs. Department of Atomic Energy and Others, ; Shiv Dass Vs. Union of India (UOI) and Others, and Union of
India (UOI) and Others Vs. M.K. Sarkar, .
30. In view of the above decisions and the law laid down by Hon''ble Supreme Court in the above noted judgments, I have no hesitation to hold
that these writ petitions are hit by latches, waiver and acquiescence and, therefore, deserves to be dismissed on this ground alone. However, since,
I have heard the arguments on other points also, therefore, I proceed to decide other questions also.
Question Nos. 2, 3, 4 and 5
Legal Provisions:
31. Regulation 350 of the Civil Service Regulations, as adopted for application in Uttar Pradesh provides as under:
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.
32. There are two type of post under the Government namely, pensionable and non-pensionable. In respect of non-pensionable Government
servants, there is a provision for Contributory Provident Fund in the shape of Contributory Provident Fund (U.P.) Rules, 1933 framed in exercise
of power conferred by Rules 41, 42 and 44 of the Civil Service (Classification, Control and 4 Appeal) Rules, 1930. In the said rule, a Government
servant holding a non-pensionable post was required to make a contribution every month and on retirement, the amount was to be paid to the
employee alongwith Government contribution at a specified rate. The scheme was subsequently replaced by Contributory Fund Act, which was
made applicable to the non-pensionable employees of the State Government.
33. The Government servants holding pensionable post were governed by the Scheme framed for payment of pension and provident fund. The
U.P. Contributory Provident Fund-Pension Insurance Rules, 1948, which was made applicable to all Government servants under the rule making
control of the provincial Government, who hold a lien on a permanent pensionable post under the Government or would have held a lien on such
post had their lien not been suspended. The application of this rule was subject to certain exceptions, as provided in Rule 2.
34. In the year 1947, the State Government decided to run its transport services to provide transport facilities to travelling public. It, therefore,
created a separate temporary department known as U.P. Government Roadways. Initially, the conditions of service of the employees of the U.P.
Government Roadways and the Central Workshop-Kanpur, were governed by various rules and standing orders of U.P. Government applicable
to other temporary Government servants under the rule making power of the Governor.
35. In view of the special service conditions of the employees of the Roadways, it was felt necessary to evolve a new set of service conditions
compatible with the nature of work and functions of the organisation. Accordingly, in supersession of all previous orders on the subject, the
Governor has been pleased to issue a Government order No. 3014-D/XXX-135/59 dated 16.9.1960 which is reproduced below:
G.O. No. 3014 D/XXX-135/59 dated September 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 as 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.
2. 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.
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 by me)
36. The question of declaration of the permanent post in U.P. Roadways Organisation as pensionable post was under consideration of the State
Government. The State Government considered this aspect of the matter and declared some permanent Gazetted and Non-Gazetted posts of U.P.
Roadways to be entitled to the Contributory Provident Fund-cum-Pension Rules by Government Order No. 3567-P/XXX-2198/99 dated
28.10.1960 which is reproduced below:
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 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.
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 by me)
37. In amplification of the Government order dated 28.10.1960 another Government Order No. 1874-A-II/XXX/A-10-N/61 dated 21.4.1961
was issued providing that the posts mentioned in para-1 of the Government order dated 28.10.1960 should be treated as pensionable with effect
from the date they were converted into permanent post. This Government order was followed by another Government order dated 8.9.1961 in
which the State Government made provisions for earned leave, extra ordinary leave in respect of permanent non-pensionable employees in the
Roadways Organization. In this Government Order it was categorically stated that the permanent roadways employees not covered by the
Government order dated 28.10.1960 would be treated as holders of non-pensionable post, but would be entitled to the benefit of the Employees
Provident Fund Scheme. Vide D.O. Letter No. AG/530 FF/57 dated 11.12.1962, the position was made further explicit by providing that all
Permanent Gazetted post of U.P. Roadways would be pensionable and certain Non-Gazetted permanent post were also to be treated as
pensionable.
38. With effect from 1st June, 1972, the U.P. State Road Transport Corporation (hereinafter referred to as the U.P.S.R.T.C.) was constituted
under Section 3 of the Road Transport Corporation Act, 1950. However, all the employees of the erstwhile U.P. Government Roadways holding
permanent post as per Government order dated 28.10.1960 were declared entitled to pension except the following:
(a) those working on daily wages;
(b) those appointed on ad hoc basis;
(c) those who had not completed minimum service period prescribe for the post;
(d) those holding posts which were not declared pensionable;
(e) those who had been removed from service after departmental inquiry and those who had been found guilty of criminal charges.
39. By the Government Order No. 3414/Tees-2-170N/72 dated 5.7.1972, the Government order of absorption dated 7.6.1972 was amended.
By these two Government orders, it was provided that as a result of constitution of U.P.S.R.T.C. Officers/Employees of the U.P. Roadways
Organisation and the Officers and Staff of Roadways of the Office of the Transport Commissioner, whether permanent or temporary shall be
considered on deputation under existing terms and conditions of their services and during the period of deputation the Pay and allowances shall be
made available to them as was admissible to them, consequent to their joining in U.P.S.R.T.C. on deputation. The permanent staff of Roadways
were considered on deputation up till the date of their absorption permanently under the Corporation but the period of deputation on temporary
basis was not to be extended beyond six months.
40. By para-1 of the above mentioned Government order dated 5.7.1972, the Government order dated 7.6.1972 except para (1) (ka) was
cancelled with the assurance that whenever service conditions of the employees of the U.P.S.R.T.C. shall be framed, their service conditions shall
not be inferior to the service conditions applicable to them under the U.P. Roadways at the time of absorption. The Government order dated
5.7.1972 is reproduced below:
41. Subsequently, in exercise of power conferred under Section 45(2)(c) of the Road Transport Corporation Act, 1950, the Road Transport
Corporation Employees (Other Than Officers) Service Regulation, 1981 was framed. Regulations-4 and 39 of the Regulations of 1981 provides
as under:
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, and 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 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.
(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;
(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.
42. The State Government had issued various Government orders for removal of difficulties with regard to admissibility of pension employees of
erstwhile employees of U.P. Roadways who were working on pensionable post. The relevant portion of two such Government orders dated
19.8.1993 and 3.2.1994 are reproduced below:
Government order dated 19.8.1993 :
43. A bare reading of the Government order dated 16.9.1960 and 28.10.1960 and other Government Orders as mentioned above leaves no
manner of doubt that service conditions of temporary employees in the U.P. Roadways were governed by Government order dated 16.9.1960
which governs the service conditions of the petitioners.
Vide para-2 of the Government order dated 16.9.1960, the terms and conditions of service mentioned in para 1 was not made applicable to three
categories of employees, as mentioned in sub-paras (a), (b) and (c), who were to be treated as regular Government servants and to be entitled to
the benefits admissible to any other Government servants of the same category. In para 4 it was provided that all the existing temporary employees
except those mentioned in para 2 of the Government order, were asked to indicate in writing, if the new service conditions are acceptable to them
and if any of the employees do not accept the new terms and conditions, their services are to be terminated in accordance with the terms of the
employment.
44. From perusal of the Government order dated 28.10.1960 it is evident that on consideration of the question of declaration of the permanent
post in the Roadways Organization as pensionable, it was declared that the permanent Gazetted and Non-Gazetted incumbents of the following
three categories would be entitled to the Contributory 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 General Workshop, Kanpur and the Headquarters Office of the Transport Commissioner.
(b) Supervisory Staff of the rank of Junior Station Incharges and above on the traffic side.
(c) Technical Staff of the rank of Junior Foreman and above on the Engineering side.
45. As per para 2, except the above noted three categories, the rest of the permanent Non-Gazetted employees both in Traffic and Engineering
Section of the U.P. Roadways Organisation were declared to be eligible for provident fund in accordance with the provisions of the Employees
Provident Fund Act. In para-3 it was provided that the temporary employees of the categories mentioned in para 1 will be entitled to Provident
Fund benefits under the Employees Provident Fund Act. As and when they became permanent, they will have option to elect the contributory
provident fund cum-pension in lieu of Employees Provident Fund.
46. None of the petitioners in this bunch of writ petitions have brought on record any material to establish that they were either appointed on a
permanent Gazetted or Non-Gazetted posts, as provided in para 1 of the Government Order dated 28.10.1960 or they were made permanent
and they have exercised the option to elect the contributory provident fund-cum-benefits in lieu of Employees Provident Fund. Thus, the petitioners
do not fall in any of the category of pensionable posts, as provided in the Government order dated 28.10.1960. No evidence has been brought on
record that they became permanent and they have exercised the option to elect the contributory provident fund-cum-benefits in lieu of provident
fund as provided in para 3 of the said Government order. On the contrary, it is undisputed that all the petitioners availed the benefits in accordance
with provisions of the Employees Provident Fund Scheme. On their retirement they received the benefits under the provisions of the Employees
Provident Fund Act. After about 8 to 32 years of their retirement, they filed these writ petitions claiming benefits of pension without bringing on
record any material to establish that they were working on a pensionable post or they became permanent and exercised the option to elect the
contributory provident fund-cum-benefits in lieu of provident fund. The fact that the petitioners have voluntarily and without any protest accepted
the benefits in accordance with the provisions of the Employees Provident Fund Act, also clearly establishes beyond doubt that they were not
permanent and never worked on a pensionable post.
47. It is also not the case of the petitioners that they were working on pensionable post and in terms of the Government order dated 19.8.1993
(quoted above), they exercised the option for pension.
48. On a specific query, put by this Court to the learned counsels for the petitioners it was admitted by them that there is no pleading in the writ
petitions that the petitioner were made permanent. No order of a competent authority making the petitioners as permanent employee, has been
brought on record in support of the arguments that the petitioners were made permanent. In the circumstances, the arguments beyond the pleadings
cannot be entertained and is, therefore, rejected in view of the law laid down by Hon''ble Supreme Court in the case of Bharat Singh and Others
Vs. State of Haryana and Others, , in which it has been held as under:
13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an
abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before
us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been
sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by H.S.I.D.C. In our opinion, when a
point which is ostensibly, a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead
and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are
not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit as the case may be, the Court will
not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the
Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have
to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have
entertained it to show that it is devoid of any merit.
(Emphasis supplied by me)
49. The petitioners have completely failed to lay any factual foundation in support of their submissions that they were permanent employees of the
erstwhile U.P. Roadways or were working on a pensionable post. No evidence has been brought on record in support of this argument. Even the
arguments are not supported by proper pleadings and documentary evidences. In these circumstances, the submissions of the petitioners cannot be
accepted in view of the law laid down by Hon''ble Supreme Court in the case of Bharat Singh (supra), Dr. R. K.S. Chauhan and another v. State
of U.P. and others 1995 Supp (3) SCC 688 (Paragraph 3) and in the case of Ramrao and Others Vs. All India Backward Class Bank Employees
Welfare Association and Others, .
50. Similar controversy as raised in these writ petitions came up for consideration in Civil Misc. Writ Petition No. 1226 of 1987, Har Bux Pathak
v. State of U.P. and others, and the writ petition was dismissed by judgment dated 11.11.1991.
51. Against the aforesaid judgment in the case of Har Bux Pathak v. State of U.P. and others, Special Appeal No. 34 of 1992, Har Bux Pathak v.
U.P.S.R.T.C. was filed which was dismissed by the Division Bench of this Court by judgment dated 22.9.1992 observing as under:
On a careful perusal of the G.O. dated 16.9.1960 we find that it deals with the revised terms and conditions of service of the temporary
employees of the Roadways and the issuance of this G.O. was necessitated by the fact that the conditions of service of the Roadways employees
were being governed by various rules and standing orders of the Government applicable to other temporary Government departments. It is in that
context that it was stated in that G.O. that in view of the special service conditions of the employees of the Roadways it was necessary to evolve a
new set of service conditions for them compatible with the nature of work and functions of the Roadways. Therefore, in supersession of the
previous standing orders and the Rules, the Government laid down a new set of Rules prescribing terms and conditions of service of the employees
of the Roadways. It is pertinent to point out here that this G.O. referred to the general terms and conditions of service and did not specifically point
out to the question of pension or similar other retiral benefits. Since, the general terms and conditions of temporary employees only were being
revised it was specifically mentioned therein that the ""status of the Roadways Employees already made permanent remains unaffected."" In our
considered view, the above clause merely deals with general terms and conditions of the Roadways employees who had already been confirmed
and it had nothing to do with the question of pension. In making this observation we have drawn sustenance from the opening words of G.O. dated
28.10.1960, namely, ""the question of declaring permanent posts in the Roadways Organisation as pensionable was under the consideration of
Government for some time past."" With these opening words, the G.O. declares that only three categories of permanent Gazetted and Non-
Gazetted incumbents mentioned therein shall be entitled to the Contributory Provident Fund-cum-Pension Rules, while the rest of the permanent
Non-Gazetted employees both in the traffic and Engineering sections of the Roadways would be treated as non-pensionable and they will be
eligible for provident fund benefits in accordance with the Employees Provident Fund Act. On perusal of the above G.O. it is evidently clear that it
was intended to cover the cases of employees of the Roadways who were already confirmed against Gazetted and Non-Gazetted posts of the
Roadways.
On a conspectus of the entire materials we have, therefore, no hesitation in concluding that the G.O. dated 28th October, 1960 was not applicable
to all the employees who were already employed and were to be employed in the Roadways. While on this point, it must be mentioned that the
appellant himself became a member of the Employees Provident Fund Act, which, as has already been noticed, was applicable only to
Government servants holding non-pensionable posts. Records further indicate that he also withdrew his share of the G.P.F. as also the
Government contribution at the time of his retirement. It is too late in the day, therefore, for the appellant to turn round and claim that he had been
holding a pensionable posts.
On the conclusions as above, we dismiss this appeal without any order as to costs.
Policy Decision
52. In the aforesaid two judgments it was clearly held that the State Government took policy decision reflected by the relevant Government orders
dated 28.10.1960 providing that the incumbents of three categories of permanent and Non-Gazetted posts of the Roadways shall only be entitled
to pension. As specified in sub-clauses (a), (b) and (c) of Clause (1). Another policy decision is also reflected by Clause (2) of the said
Government order, whereby the rest of the permanent Non-Gazetted employees both in Traffic and Engineering section of the organisation were to
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, 1952.
53. The aforementioned Government orders reflects the policy decision of the State Government. It is well-settled that the courts, in exercise of
their power of judicial review did not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on account of
mala fide, unreasonableness, arbitrariness or unfairness etc. Since, the Government Order dated 16.9.1960 and 28.10.1960 representing policy
cannot be faulted on any of these grounds, the policy cannot be said to be invalid. Courts cannot question the wisdom of the Government in taking
a policy decision. Generally policy cannot be tested in a court of law. The Government is entitled to lay down its policy which cannot be subjected
to judicial review except in the circumstances mentioned above. Reference in this regard may be had to the judgments of Hon''ble Supreme Court
in the cases of Subhash Photographics and Others Vs. Union of India (UOI) and Others, ; Delhi Science Forum and others Vs. Union of India and
another, ; Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, ; Krishnan Kakkanth Vs. Government of Kerala and ohters, ; State of Rajasthan
and Others Vs. Lata Arun, ; State of Himachal Pradesh and Another Vs. Padam Devi and Others, : State of Himachal Pradesh and others etc. Vs.
Ganesh Wood Products and others, etc., ; M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration and Others, ; The State of Maharashtra and
Another Vs. Lok Shikshan Sansatha and Others, ; M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, ; State of Punjab
and Others Vs. Ram Lubhaya Bagga Etc. Etc., ; BALCO Employees Union (Regd.) Vs. Union of India and Others, ; Gyan Prakash Vs. Union of
India (UOI) and Others, and Ram Singh Vijay Pal Singh and Others Vs. State of U.P. and Others, .
Approbate and Reprobate
54. There is another aspect of the matter which has been specifically noted by the learned single Judge as well as by the Division Bench of this
Court in the aforenoted two judgments in the case of Har Bux Pathak (supra), that having taken full advantage and benefits under the Employees
Provident Fund Schemes, the petitioners cannot be permitted to turn round and contend that they should also be given pension. Infact, they are
estopped from making such claims.
55. The law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no
party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some
advantage to which he could only be entitled on the footing that it is valid and then turn round and say that it is void for the purpose of securing
some other advantage. After taking the advantages under the Government order dated 16.9.1960 and 28.10.1960 and other relevant orders, the
petitioners are precluded from saying that it is invalid so as to claim for pension.
56. In the case of Zila Dastavej Lekhak Association, Banda and another Vs. State of U.P. and others, , while considering the challenge to the
validity of Rule 6(2) of the U.P. Document Writers License Rules, 1977 by the licensees, Hon''ble Supreme Court held as under:
The members of the petitioner-Association, having become the licensees under the Rules, are bound thereby. Firstly, the petitioner-Association
being consisting of the members who obtained licence under the Rules, cannot challenge the Rules under which they came to operate. The very
source under which they came to operate either survives or perishes under the Rules. They cannot challenge that part of the Rules which is
unfavourable to them while at the same time, respecting the favourable part thereof since, they have no independent right de hors the Rules. They
cannot challenge the power of the Inspector General of Registration in making the rules regulating conditions of the document writers and the
conditions under which they become eligible to be document writers.
(Emphasis supplied by me)
57. In the case of Har Shankar and Others Vs. The Dy. Excise and Taxation Commr. and Others, , Hon''ble Supreme Court has laid down the
law that a writ petition is not an appropriate remedy for impeaching the contractual obligation.
58. In the cases of Union of India (UOI) through the Secretary, National Council of Educational Research and Training Vs. Shyam Babu
Maheshwari, ; Krishena Kumar and Others Vs. Union of India and others, and Union of India (UOI) and Others Vs. Kailash, , Hon''ble Supreme
Court held that once an employee has opted for the contributory Provident Fund Scheme, his exercise of option was final and he is not entitled to
change over to the pension scheme because the two schemes are entirely different. Since, the petitioners in this bunch of writ petitions, accepted
the service conditions, as provided in the Government order dated 16.9.1960 and 28.10.1960 and availed the benefit of the Employees Provident
Fund Scheme, they cannot be allowed to take the stand that they may be considered or be given pension under the Pension Scheme.
59. In the case of V.K. Ramamurthy Vs. Union of India, , Hon''ble Supreme Court considered the claim for pension by those who opted for
pension after long gap of retirement and held vide para 4 of the report 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 and consequently, the Contributory Provident Fund Scheme retirees are not entitled to the benefits granted to the pension retirees.
60. In the case of All India Reserve Bank Retired Officers Association and others Vs. Union of India and others, , Hon''ble Supreme Court held
that in the case of an employee governed by the Contributory Provident Fund Scheme, his relation with the employers comes to an end on his
retirement and receipt of contributory fund amount. In the case of an employee governed by the pension scheme his relation with the employer
merely undergo a change but do not snap altogether. Similar view was taken by Hon''ble Supreme Court in the case of Union of India and others
v. A.J. Fabian, (1970) 10 SCC 465.
61. In the present set of facts also, as discussed in detail above, the petitioners who were working on a non-pensionable post received provident
fund as per Employees Provident Fund Scheme on their retirement and, therefore, the relationship of employee and employer between them and
the respondent-U.P.S.R.T.C. came to an end.
62. No provision of law or any Government order has been pointed out or brought on record to show that the petitioners have any lawful claim for
pension. In these circumstances, the claim of the petitioners for pension is wholly baseless and, therefore, deserves to be rejected.
Law on Provident Fund and Pension:
63. Similar claim for pension by the Employees of U.P.S.R.T.C. was considered by the learned single Judge in the case of Har Bux Pathak
(supra), and the writ petition was dismissed. The special appeal filed against this judgment was also dismissed by a detail judgment by the Division
Bench of this Court in Special Appeal No. 34 of 1992. Again similar controversy was raised in Writ Petition No. 63522 of 2005, Heera Lal
Upadhyay v. State of U.P. and others, decided on 3.7.2009 and the writ petition was dismissed on merit as well as on the principles of estopple.
In this case after considering the relevant Government orders and Regulation 39 of Regulations, 1981 it has been held that only those employees of
erstwhile Government Roadways who held pensionable post prior to their absorption, would be entitled to pension. It was further held that the
petitioners have received all post retiral benefits admissible to them and had exercised their option for Provident Fund Scheme and as such they
cannot be permitted to switch over to the pension scheme.
64. Against the judgment in the case of Heera Lal Upadhyay, Special Appeal No. 944 of 2009 (Defective) was filed which was dismissed by the
Division Bench by judgment dated 4.9.2009. Again in Writ Petition No. 13088 of 2002, Abdul Hadi v. State of U.P. and another, decided on
3.4.2002, Similar controversy was raised and the Court after considering Article 350 of the Civil Service Regulations and the Government order
dated 28.10.1960 held that only three categories of permanent post in the U.P.S.R.T.C. are pensionable, as mentioned in the Government Order
dated 28.10.1960. This writ petition was also dismissed on the ground of latches, inasmuch as, the petitioner of that writ petition retired in the year
1982, while the writ petition was filed in the year 2002. In the present set of undisputed facts, the petitioners have filed these writ petitions after 8
to 32 years of their retirement.
65. In the case of Committee for Protection of Rights of ONGC Employees and others Vs. Oil and Natural Gas Commission, Dehradun and
another, , the controversy ""Whether persons, who were employed in temporary capacity in the Oil and Natural Gas Commission, when it was
being run as a department of the Government of India prior to the enactment of Oil and Natural Gas Commission Act, 1959, and who were
subsequently absorbed in the Commission, as established under the said Act, are entitled to pension in addition to the Provident Fund benefits to
which they are entitled under the provisions of the Employees'' Provident Funds and Misc. Provisions Act, 1952?"" was considered by the Hon''ble
Supreme Court and it was held in para 13 as under:
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 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
Commissioner, 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.
(Emphasis supplied by me)
66. In the case of Prabhu Narain and others v. State of U.P. and others, (2004) 13 SCC 662 (paragraph 5), Hon''ble Supreme Court held that
though pension is not a bounty but a valuable right given to an employee, but it must be shown that the employee was entitled to pension under a
particular rule or scheme.
In the present set of facts, the petitioners have completely failed to show any rule or scheme or Government order which may entitle them for
pension and, therefore, their claim for pension cannot be accepted.
67. In the case of PEPSU Road Transport Corporation, Patiala Vs. Mangal Singh and Others, , Hon''ble Supreme Court considered the similar
controversy involving similar facts in the matter of Road Transport Corporation and held in detail (paragraphs 34 to 56) as under:
34. Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of the past services rendered by him.
We hasten to add that although pension is not a bounty but is claimable as a matter of right, yet the right is not absolute or unconditional. The
person claiming pension must establish his entitlement to such pension in law. The entitlement might be dependent upon various considerations or
conditions. In a given case, the retired employee is entitled to pension or not depend on the provisions and interpretation of Rules and Regulations.
The Contributory Provident Fund appears to be simple mechanism where an employee is paid the total amount which he has contributed alongwith
the equal contribution made by the employer ordinarily at the time of retirement of an employee. In short, we quote what was repeatedly said by
this Court that ""pension is payable periodically as long as the pensioner is alive whereas C.P.F. is paid only once on retirement"". Therefore,
conceptually, pension and C.P.F. are separate and distinct.
35. Now we will try to explain the essential distinction between these two retirement benefits that an employee may derive at the time of his
retirement from service. The C.P.F. was introduced with the object of providing social security to the employees working in factories and other
establishments, after their retirement. The C.P.F. was instituted as a Compulsorily Contributory Provident Fund by the enactment of the
Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ""the Provident Fund Act""). The employee
registered under the Provident Fund Act shall be entitled to claim all benefits available under the C.P.F. Scheme framed under the Act This C.P.F.
Scheme requires opening of the account for the employee by the employer. The Government/employer is under the continuous obligation to
deposit equal or matching contribution made by the employee in his account till he retires. Once, the employee is retired, then his rights qua
Government/employer''s contribution into his C.P.F. account finally crystallizes. After retirement, this entire C.P.F. amount is paid to the employee
as a retrial benefit. On the receipt of C.P.F. amount, the relationship between employee and employer ceases to exist without leaving any further
legal right or obligation qua each other.
36. In Committee for Protection of Rights of ONGC Employees and others Vs. Oil and Natural Gas Commission, Dehradun and another, , this
Court has stated:
12. Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ''the Provident Fund Act'') has been enacted
with the object of providing social security to the employees in factories and other establishments covered by the said Act, after their retirement. In
the Statement of Objects and Reasons for the said enactment it was mentioned as under:
The question of making some provision for the future of the industrial worker after he retires, or for his dependants in case of his early death, has
been under consideration for some years. The ideal way would have been provisions through old age and survivors'' pensions as has been done in
the industrially advanced countries. But in the prevailing conditions in India, the institution of a pension scheme cannot be visualised in the near
future. Another alternative may be for provision of gratuities after a prescribed period of service. The main defect of a gratuity scheme, however, is
that the amount paid to a worker or his dependants would be small, as the worker would not himself be making any contribution to the fund.
Taking into account the various difficulties, financial and administrative, the most appropriate course appears to be the institution compulsorily of
contributory provident fund in which both the worker and the employer would contribute. Apart from other advantages, there is the obvious one of
cultivating among the workers a spirit of saving something regularly.
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.
37. In Krishena Kumar and Others Vs. Union of India and others, , this Court has held:
32. The Railway Contributory Provident Fund is by definition a fund. Besides, the Government''s obligation towards an employee under C.P.F.
Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government
in respect of the Provident Fund is finally crystallized and thereafter, no statutory obligation continues. Whether there still remained a moral
obligation is a different matter.
38. In All India Reserve Bank Retired Officers Association and others Vs. Union of India and others, , this Court, while considering the case of the
Pension Scheme and Contributory Provident Fund Scheme, has held:
10.... in the case of an employee governed by the Contributory Provident Fund Scheme his relations with the employer come to an end on his
retirement and receipt of the contributory provident fund amount but in the case of an employee governed under the Pension Scheme his relations
with the employer merely undergo a change but do not snap altogether.
39. Pension is a periodic payment of an amount to the employee, after his retirement from service by his employer till his death. In some cases, it is
also payable to the dependents of the deceased employee as a family pension. The pension is in a nature of right which employee has earned by
rendering long service to the employer. It is a deferred payment of compensation for past service. It is dependable on the condition of rendering of
service by the employee for a certain fixed period of time with decent behaviour. Like C.P.F., the object of providing pensionary benefit under the
Pension Scheme is to provide social security to the employee and his family after his retirement from service. The Government''s/Employer''s
obligation under the Pension Scheme begins only when the employee retires and it continues till the death of the employee.
40. In Deokinandan Prasad Vs. The State of Bihar and Others, , this Court has held:
31.... pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a
valuable right vesting in a Government servant.
41. In D.S. Nakara and Others Vs. Union of India (UOI), , this Court has observed:
27. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age
considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension
vary from country to country and from scheme to scheme. But broadly stated they are (i) as compensation to former members of the Armed
Forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability benefits for civilian
employees, and (iii) as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social
service programmes of the country. Pensions under the first head are of great antiquity. Under the second head they have been in force in one form
or another in some countries for over a century but those coming under the third head are relatively of recent origin, though they are of the greatest
magnitude. There are other views about pensions such as charity, paternalism, deferred pay, rewards for service rendered, or as a means of
promoting general welfare [see Encyclopaedia Britannica, Vol. 17, p. 575). But these views have become otiose.
28. Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service
rendered in the past. However, as held in Douge v. Board of Education, 302 US 74, a pension is closely akin to wages in that it consists of
payment provided by an employer, is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of
living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from
undeserved want.
29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a
broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental
prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give
your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has
been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired
from service. Thus, the pension payable to a Government employee is earned by rendering long and efficient service and, therefore, can be said to
be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d''etre for pension is
the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back
upon.
42. In Poonamal and Others Vs. Union of India and Others, , this Court has observed:
7.... pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is
governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. Deokinandan Prasad Vs. The
State of Bihar and Others, ; State of Punjab and Another Vs. Iqbal Singh, and D.S. Nakara and Others Vs. Union of India (UOI), . Where the
Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would
equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a
constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other
cases of undeserved want. Relevant rules merely make effective the constitutional mandate.
43. In Krishena Kumar v. Union of India (supra), this Court has held:
32....On the other hand under the Pension Scheme the Government''s obligation does not begin until the employee retires when only it begins and
it continues till the death of the employee. Thus, on the retirement of an employee Government''s legal obligation under the Provident Fund account
ends while under the Pension Scheme it begins.
44. In Prabhu Narain v. State of U.P., (2004) 13 SCC 662, this Court has observed:
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.
45. In U.P. Raghavendra Acharya and Others Vs. State of Karnataka and Others, , this Court has held:
25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is correlated and has a nexus
with the salary payable to the employees as on the date of retirement.
46. The term pension has been defined in American Jurisprudence 2d, Vol. 60, at pg. 879 as thus:
However, by modern usage, the ""pension"" is not restricted to pure gratuities. Thus, it has been held that a pension paid a governmental employee
for long and efficient service is not an emolument the payment of which is barred by a State constitutional provision, but is a deferred portion of the
compensation earned for services rendered.... A pension is closely akin to wages in that it consists of payments provided by an employer, is paid in
consideration of past services, and serves the purpose of helping the recipient meet the expense of living.
47. The concept of pension has been discussed in Halsbury''s Laws of England, Fourth Edition (Reissue), Vol. 16, para 400 as thus:
Meaning of ''pension''. ''Pension'' means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects
which the Secretary of State is satisfied that it is to be paid in accordance with any scheme or arrangement having its object or one of its objects to
make provision in respect of persons serving in particular employments for providing them with retirement benefits... ''Pension'' does not include:
(i) a payment to an employee which consists solely of a return of his own contributions, with or without interest;
(ii) that part of a payment to an employee which is attributable solely to additional voluntary contributions by that employee made in accordance
with the scheme or arrangement;
(iii) a periodical payment or lump sum, insofar as that payment or lump sum represents compensation under the statutory compensation schemes
and is payable under a statutory provision, whether made or passed before, on or after 31st July, 1978.
48. The concept of pension has also been considered in Corpus Juris Secundum, Vol. 70. at pg. 423 as thus:
A pension is a periodical allowance of money granted by the Government in consideration or recognition of meritorious past services, or of loss or
injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the
continued life of the recipient.
49. To sum up, we state that the concept of pension has been considered by this Court time and again and in catena of cases, it has been observed
that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet Will of the employer. It is earned for
rendering a long and satisfactory service. It is in the nature of deferred payment for past services. It is a social security plan consistent with the
socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution rendering social
justice to a superannuated Government servant. It is a right attached to the office and cannot be arbitrarily denied, [see A.P. Srivastava (Dead by
Lrs.) Vs. Union of India (UOI) and Others, : Vasant Gangaramsa Chandan Vs. State of Maharashtra and Others, ; Subrata Sen and Others Vs.
Union of India and Others, ; Union of India and Another Vs. P.D. Yadav, : Grid Corporation of Orissa and Others Vs. Rasananda Das, and All
India Reserve Bank Retired Officers Assn. v. Union of India].
50. Having noticed the conceptual difference between the concept of C.P.F. and pension, we will now notice the submissions made by the learned
counsel for the parties to the lis.
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 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 the C.P.F. 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 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.
53. The learned counsel for the respondents in support of their contention for want of knowledge of the Pension Scheme due to non-service of
individual notices relied on the decision of this Court in Dakshin Haryana Bijli Vitran Nigam and Others Vs. Bachan Singh, . The said decision is
clearly distinguishable on facts. In that case, the appellant, Haryana State Electricity Board, had issued instructions dated 23.6.1993 and circular
dated 9.8.1994 in order to provide an option to the employees for pensionary benefits in lieu of their work charged service with an express
condition of noting of instructions from all the employees and acknowledging the receipt of the letter. In these appeals, before us, there is no such
condition of noting from the employees or serving individual notices in the Pension Scheme or Regulations. Therefore, in our opinion, Bachan
Singh''s decision will not assist the respondents.
54. In our view, in the facts and circumstances of the present case and in view of absence of such condition in the scheme, it is not necessary for
the Corporation to give an individual notice to respondents for exercising of option for Pension Scheme and also for asking respondent to refund
the employers contribution of C.P.F. at each stage. Furthermore, when notice or knowledge of the Pension Scheme can be reasonably inferred or
gathered from the conduct of the respondents in their ordinary course of business and from surrounding circumstances, then, it will constitute a
sufficient notice in the eyes of law.
55. In Union of India (UOI) and Others Vs. M.K. Sarkar, , this Court has:
21. The Tribunal in this case has assumed that being ""aware"" of the scheme was not sufficient notice to a retiree to exercise the option and
individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by
positive evidence, that the respondent was informed of the availability of the option, it should be assumed that there was noncompliance with the
requirements relating to notice. The High Court has impliedly accepted and affirmed this view. The assumption is not sound.
22. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability
of option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway
Administration was represented, it was not reasonable to expect the department to maintain the records of such intimation (s) of individual notice to
each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further, when notice or
knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend
that in the absence of written intimation of the option, he is still entitled to exercise the option.
23. This Court considered the meaning of ""notice"" in Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, . This
Court held : (AIR p. 669, para 10)
10. We see no ground to construe the expression ''date of service of notice'' in Column 3 of Article 158 of the Limitation Act to mean only a
notice in writing served in a formal manner. When the Legislature used the word ''notice'' it must be presumed to have borne in mind that it means
not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include
constructive or informal notice. If its intention were to exclude the latter sense of the words ''notice'' and ''service'' it would have said so explicitly.
(Emphasis supplied)
56. The Regulation 4 (iii) of the Regulations is a deeming provision to the effect : firstly, if an employee fails to exercise his option within a period of
6 months from the date of issue of these Regulations and; secondly, even on exercise of option, if an employee fails to refund the amount of
advance taken from employers contribution of the C.P.F. within 6 months from the date of issue of these Regulations, then it shall be deemed that
employee has opted to continue for the existing C.P.F. benefit. Therefore, the failure on the part of the respondents to opt for the Pension Scheme
and refund the advance taken from the employer''s contribution of C.P.F. will disentitle them from claiming any benefit under the Pension Scheme.
Therefore, we cannot sustain the Judgment and order passed by the High Court.
(Emphasis supplied by me)
68. In the case of Rajasthan Road Transport Corporation and others v. Madu Giri (dead) through L.Rs. and another, and another connected
Rajasthan State Road Transport Corporation and Others Vs. Madu Giri (Dead) through L.Rs. and Another, , Hon''ble Supreme Court held in
paras 7, 8 and 9 as under:
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 C.P.F. 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 R.T.C. v. Mangal Singh 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 Corporations 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 C.P.F. 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 herein above, the impugned orders passed by the learned single Judge and the Division Bench of the High Court cannot be sustained in
law.
(Emphasis supplied by me)
69. In view of the law laid down by this Court as well as by Hon''ble Supreme Court in the aforenoted judgments, the claim of the petitioners for
pension cannot be accepted and is, therefore, rejected.
Judgments Relied Upon by the Petitioners
70. During the course of argument, learned counsel for the petitioners have relied upon the following judgments:
(i) Vijay Singh and Others Vs. State of Uttar Pradesh and Others, .
(ii) Civil Appeal No. 6770 of 2013, decided on 14.8.2013, State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another, .
(iii) Ram Singh Singraur Vs. State of U.P., The Managing Director, Uttar Pradesh State Road Transport Corporation, The Regional Manager
Uttar Pradesh State Road Transport Corporation and The Director Pension, .
(iv) Writ-A No. 22315 of 2008, decided on 22.2.2011. Abdul Kuddus Khan v. State of U.P. and others.
(v) Special Appeal No. 40 of 2007, U.P.S.R.T.C. v. Shri Narain Pandey, decided on 9.10.2010.
(vi) LAWS (All) 1998-10-10 Sushila Bhatnagar v. State of U.P.
(vii) Krishena Kumar and Others Vs. Union of India and others, .
(viii) Poonamal and Others Vs. Union of India and Others, .
(ix) Writ Petition No. 7728 (S./S. of 1996) decided on 25.8.2010, Mirza Athar Beg v. State of U.P. and others.
(x) U.P.S.R.T.C. and another v. Mirza, Athar Beg and others, (2011) 2 ACJ 327 (DB).
(xi) Special Leave to Appeal (Civil) No. 7709 of 2011 (Defective), U.P.S.R.T.C. v. Mirza Athar Beg through L.Rs. and others, decided on
10.7.2013.
(xii) Special Appeal No. 268 of 2006, decided on 29.11.2011 Hujoor Alam v. State of U.P. and others.
(xiii) Writ Petition No. 1313 (S./S.) of 2001, Prem Singh v. State of U.P. and others.
(xiv) Writ-A No. 60646 of 2006, U.P.S.R.T.C. and others v. Mohd. Akbar and others.
(xv) Writ Petition No. 5440 of 2000 (S/B), Managing Director, U.P.S.R.T.C. v. S.M. Fazal and three others, decided on 5.12.2002.
(xvi) Special Leave to Appeal (Civil) Nos. 8690-8691 of 2004, U.P.S.R.T.C. v. S.M. Fazal and others, dismissed on 16.8.2005.
(xvii) Writ Service Single No. 8909 of 2006, Roadways Karmchari Sayuankt Parishad v. State of U.P. and others, decided on 12.8.2013.
(xviii) Writ A-No. 35938 of 2001, Shri Chandrika Singh v. Managing Director, U.P.S.R.T.C, decided on 4.10.2012.
71. In the case of Vijay Singh and others (supra) the Full Bench of this Court was considering the question as to whether a rule made under Article
309 of the Constitution of India can be set at naught by executive fiat. Apparently, this is not the controversy involved in the bunch of the present
writ petition.
72. In the case of Jitendra Kumar Srivastva (supra), the Hon''ble Supreme Court has considered the question as to whether in the absence of any
provision in the pension rules the State Government can withhold a part of pension and/or gratuity during the pendency of the departmental/criminal
proceedings. Again this is not the controversy involved in these writ petitions and as such this judgment is of no help to the petitioners.
73. In the case of Ram Singh Singhraur (supra), the facts were that initially pension was sanctioned to the petitioner of that writ petition and
subsequently, by an order dated 27.7.2006 it was cancelled. This Court in paragraph 15 of the judgment considered the issue on humanitarian
ground and observed that the petitioner retired in the year 1997 and has been receiving pension for the last decade or so and accordingly, he has
arranged and formulated his personal financial needs and all of a sudden depriving him of much needed money, which may be the only source after
such a long time appears to be inhuman. Old age they say is a ""curse"" and sequencing the supply of monitoring would be ""curse"" twice visited. This
case was also noticed in a subsequent judgment passed by a learned single Judge in the case of Heera Lal Upadhyay (supra) and the judgment
was distinguished. The writ petition filed by Heera Lal Upadhyay was dismissed and the judgment was affirmed by a Division Bench of this Court
in Special Appeal (Defective) No. 944 of 2009, Heera Lal Upadhyay v. State of U.P. and others, decided on 4.9.2009.
74. The judgment in the case of Abdul Kuddus Khan (supra), the facts were that Sri Abdul Kuddus Khan retired on 31.7.2005 and he submitted
the option in the office of the Commissioner on 30.8.2005. In paragraph 11 of the judgment it is observed that the pension was subsequently,
sanctioned by the Head Quarter on 19.2.2011. In paragraph-12 of the judgment it is observed that the entire case of the respondent is founded on
non-availability of duly filled in Form-K2 in the office of respondent No. 5, which was statutory requirement and without this form pension and
gratuity etc. could not have been paid to the petitioner. The court shown anguish on delay in payment of pension and gratuity and considered this
aspect in subsequent paragraphs of the judgment and accordingly, allowed the writ petition directing to pay arrears of pension with interest at the
rate of 12%.
75. The controversy involved in the present writ petitions are quite different. It has already been noted that the petitioners have filed these writ
petitions after lapse of about 8 to 32 years of their retirement. The petitioners could not establish that they were working on pensionable post as
provided in the Government order dated 28.10.1960. Thus, the judgment in the case of Abdul Kuddus Khan (supra) is of no help to the
petitioners.
76. In the case of Shri Narain Pandey (supra) the Division Bench upheld the claim of pension treating him to have been appointed on the post of
Junior Station Incharge on 5.5.1978. In this judgment there is no reference to the Government orders dated 16.9.1960 and 28.10.1960 and other
subsequent relevant Government Orders as well as Regulation 350 of the Civil Service Regulations and the provisions of the U.P.S.R.T.C. (Other
Than Officers) Service Regulations, 1981. The Division Bench judgment in the case of Har Bux Pathak (supra) and Heera Lal Upadhyay (supra),
and also the judgment of Hon''ble Supreme Court as noted above were not notified in the case of Sri Narayan Pandey (supra). The judgment in
the case of Shri Narayan Pandey, as relied upon by the petitioners is distinguishable on fact. The judgments of Hon''ble Supreme Court, as
referred to in the foregoing paragraphs of this judgment are binding precedent under Article 141 of the Constitution of India.
77. In the case of Sushila Bhatnagar, the writ petition was filed due to delay in payment of pension.
78. In the case of Jawahar Lal Sajawal (supra), the facts were that the concerned petitioner was appointed prior to the year 1963 as permanent
Government servant under the Jammu and Kashmir Civil Services (Classification Control and Appeal) Rules, 1956, and served in different
capacities in industrial units which were being run by the department of Commerce and Industries of the State Government. Facts involved in the
present writ petition are different. Neither the petitioner could place any evidence on record nor has made any specific pleadings that they were
permanent employee or when they were made permanent. Beside this, nothing has been shown that the provisions involved in the case of Jawahar
Lal Sajawal (supra) were similar to those as involved in the present writ petitions.
79. In the case of Mirza Athar Beg (supra), the Division Bench noted the facts in paragraph 5 of the report that the petitioner was promoted on the
post of Junior Clerk w.e.f. 7.9.1958 in the office of Assistant General Manager at Charbagh Depot, Lucknow and his promotion was regularised
on 16.4.1960, as evident from the office order dated 3.3.1961. In paragraph 24, the Division Bench noted the facts that it is not the case of
U.P.S.R.T.C. that the respondent Mirza Athar Beg was not a permanent employee of the Roadways. Thus, undisputedly, the facts involved in that
case was that the petitioner was a permanent employee and the evidence of his being permanent as well as regularisation were also filed. The
petitioner was found to be falling in the category of pensionable post as per Government order dated 28.10.1960.
80. In this bunch of the present writ petitions, the petitioners are temporary employees. They accepted the post retirement benefits as per their
service conditions, as provided in the Government order dated 16.9.1960 and 28.10.1960 and have filed the present writ petitions after lapse of
about 8 to 32 years of their retirement. Thus, the judgment in the, case of Mirza Athar Beg is distinguishable on the facts of the present case.
81. The special leave to appeal (civil) was dismissed by Hon''ble Supreme Court merely by one word order, Le., ''Dismissed''. As per law laid
down by the Hon''ble Supreme Court in the case of State of Manipur Vs. Thingujam Brojen Meetei, , dismissal of S.L.P. by a non-speaking order
which does not contain reasons for dismissal does not amount to acceptance of correctness of the decision of High Court.
82. The judgment in the case of Hujoor Alam, the appellant''s case was that he was a confirmed employee of the U.P. Government Roadways and
at the time of transfer of his services to the Corporation, he was working on a pensionable post. The case of the appellant appears to have been
accepted, as the controversy was found to be squarely covered by the judgment in the case of Mirza Athar Beg (supra). Thus, on facts of the
present writ petition, this judgment is also distinguishable.
83. In the case of Prem Singh (supra), this Court found the controversy to be squarely covered by the judgment in the case of Mirza Athar Beg
(supra).
84. I have already found that the judgment in the case of Mirza Athar Beg is distinguishable on the facts of the present writ petition.
85. In the case of Mohd. Akbar and others (supra) the controversy was found to be covered by the judgment in the case of Mirza Athar Begh and
S.M. Fazil (supra).
86. In the case of S.M. Fazil (supra) this Court noted the fact that he was appointed as Assistant Traffic Inspector in the then U.P. Government
Roadways and joined in Kanpur Region on 19.4.1949 and was confirmed on 1.4.1956 and thereafter, promoted as Junior Station Incharge on
5.11.1956 and was confirmed on that post in January, 1959. He was selected as Traffic Superintendent by the U.P. Public Service Commission in
1961. Thereafter, he was promoted to the Gazetted Class Post of Assistant Regional Manager in January, 1974 and again promoted to Class-I
post of Regional Manager in 1981. He attained the age of superannuation on 28.2.1983. The claim petition filed by him was decided by the
Tribunal and a finding of fact was recorded that pension, gratuity and commutation was sanctioned to him taking into account the services rendered
with effect from 5.11.1956 till 28.2.1983. However, the period of earlier services rendered on the post of Assistant Traffic Inspector with effect
from 19.4.1949 to 5.11.1996 were not counted.
87. The Division Bench of this Court considered the matter and found that in view of the amendment in Articles 350 and 370 of the Civil Service
Regulations, the period of service in temporary capacity or on temporary post was countable towards qualifying services for pension and gratuity.
The said petitioner was also not absorbed in the services of the Corporation. Thus, the judgment in the case of S.M. Fazal is wholly distinguishable
on facts. The S.L.P. filed against this judgment was dismissed on the ground of delay.
88. The judgment in the case of Roadways Karmchari Sanyukta Parishad (supra) was rendered without adverting to the facts with respect to each
of members of the petitioners'' association. The writ petition was allowed observing that the question is covered by the judgment in the case of Shri
Narain Pandey and Mirza Athar Beg (supra). Both these judgments have been found distinguishable on the facts involved in the present writ
petitions. Thus, the judgment in the case of Roadways Karmchari Sanyukta Pa r is had (supra), is also distinguishable.
89. The judgment in the case of Shri Chandrika Singh (supra), was passed for the reason that the counsel for the respondent could not point out
any distinguishable features from the case of Mirza Athar Beg (supra).
90. The entire case of the petitioners is based on the judgment of this Court in the case of Mirza Athar Beg (supra), which I have found to be
distinguishable on facts.
PRECEDENT
91. In the case of Krishena Kumar and Others Vs. Union of India and others, , a Constitution Bench of Hon''ble Supreme Court distinguished the
judgment in the case of D.S. Nakara and Others Vs. Union of India (UOI), and explained the doctrine of precedent as under:
18. The basic question of law that has to be decided, therefore, is what was the ratio decidendi in Nakara''s case and how far that would be
applicable to the case of the P.F. Retirees.
19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it.
It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain ""propositions wider than the
case itself required."" This was what Lord Selborne said in Caledonian Railway Co. v. Walker''s Trustees and Lord Halsbury in Quinn v. Leathern,
[1981] A.C. 495, (502). Sir Frederick Pollock has also said : ""Judicial authority belongs not to the exact words used in this or that judgment, nor
even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.
20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is along binding as a
precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on
the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained
by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either
statutory or Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not
the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn., Vol. 26, para 573:
The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the
judgment in relation to the subject-matter of the decision, which alone has the force of law and which when it is clear it is not part of a Tribunal''s
duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long
judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a Tribunal for its judgment, all are
taken as forming the ratio decidendi.
29. The Court in Nakara was not satisfied with the explanation that the legislation had defined the class with clarity and precision and it would not
be the function of this Court to enlarge the class. The Court held in paragraph 65 of the report : (SCC pp. 344-45, para 65)
With the expanding horizons of socio-economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely
influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising
prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion : ''being
in service and retiring subsequent to the specified date'' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous
class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be
achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for
liberalised pension scheme of ''being in service on the specified date and retiring subsequent to that date'' in impugned memoranda, Exs. P-1 and
P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under
: In other words, Ex. P-1, the words : ''that in respect of the Government servants who were in service on March 31, 1979 and retiring from
service on or after that date''; and in Ex. P-2, the words : ''the new rates of pension are effective from April 1, 1979 and will be applicable to all
service officers who became/become non-effective on or after that date''; are unconstitutional and are struck down with this specification that the
date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by
1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules
and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective
of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible.
30. Thus, the court treated the pension retirees only as a homogeneous class. The P.F. retirees were not in mind. The Court also clearly observed
that while so reading down it was not dealing with any fund and there was no question of the same cake being divided amongst larger number of
the pensioners than would have been under the notification with respect to the specified date. All the pensioners governed by the 1972 Rules were
treated as a class because payment of pension was a continuing obligation on the part of the State till the death of each of the pensioners and,
unlike the case of Contributory Provident Fund, there was no question of a fund in liberalising pension.
31. The argument of Mr. Shanti Bhushan is that the State''s obligation towards pension retirees is the same as that towards P.F. retirees. That may
be morally so. But that was not the ratio decidendi of Nakara. Legislation has not said so. To say so legally would amount to legislation by
enlarging the circumference of the obligation and converting a moral obligation into a legal obligation. It reminds us of the distinction between law
and morality and limits which separate morals from legislation. Bentham in his Theory of Legislation, Chapter XII, page 60 said:
Morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good. Legislation ought to
have precisely the same object. But although these two arts, or rather sciences, have the same end, they differ greatly in extent. All actions,
whether public or private, fall under the jurisdiction of morals. It is a guide which leads the individual, as it were, by the hand through all the details
of his life, all his relations with his fellows. Legislation cannot do this; and, if it could, it ought not to exercise a continual interference and dictation
over the conduct of men. Morality commands each individual to do all that is advantageous to the community, his own personal advantage
included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions which it
ought not to forbid, although morality does so. In a word legislation has the same centre with morals, but it has not the same circumference.
32. In Nakara it was never held that both the pension retirees and the P.F. retirees formed a homogeneous class and that any further classification
among them would be violative of Article 14. On the other hand the Court clearly observed that it was not dealing with the problem of a ""fund"".
The Railway Contributory Provident Fund is by 381 definition a fund. Besides, the Government''s obligation towards an employee under C.P.F.
Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government
in respect of the Provident Fund is finally crystallized and thereafter, no statutory obligation continues. Whether there still remained a moral
obligation is a different matter. On the other hand under the Pension Scheme the Government''s obligation does not begin until the employee retires
when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee Government''s legal obligation under the
Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its contribution are entirely
different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also
equally be applicable to P.F. Retirees. This being the legal position the rights of each individual P.F. retiree finally crystallized on his retirement
whereafter no continuing obligation remained while on the other hand, as regards pension retirees, the obligation continued till their death. The
continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the
corpus already received by the P.F. retirees they would not be so adversely affected ipso facto. It cannot, therefore, be said that it was the ratio
decidendi in Nakara that the State''s obligation towards its P.F. retirees must be the same as that towards the pension retirees. An imaginary
definition of obligation to include all the Government retirees in a class was ''not decided and could not form the basis for any classification for the
purpose of this case. Nakara cannot, therefore, be an authority for this case.
33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and
necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb
settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to
all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly
arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower
rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate
plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where
decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara it was never
required to be decided that all the retirees formed a class and no further classification was permissible.
CONCLUSIONS
92. In view of the above discussions all the writ petitions fail and are hereby dismissed. However, there shall be no order as to costs.