Jaswant Daulat Massey vs UPSRTC and Others

B. Amit Sthalekar, J.—The petitioner is seeking quashing of the order dated 4.10.1996 whereby his claim for pension has been rejected. The other relief claimed by the petitioner is for pension and other retiral benefits w.e.f. 1.7.1992.

Briefly stated the case of the petitioner is that he was appointed in the erstwhile U.P. Government Roadways as Cleaner in 1952 and confirmed in 1958 on the said post. In 1989 he was promoted as Junior Foreman and retired on attaining the age of superannuation on 30.6.1992. It is stated that the U.P. Government Roadways was created by the State Government in 1947 and in 1954 it was declared permanent and in 1955 number of posts were declared permanent. The submission is that no post in the erstwhile Roadways Department was declared as non pensionable till September, 1960. According to the petitioner the word non-pensionable was recorded in the appointment order of the persons who were declared permanent. By a Government Order dated 16.9.1960, the State Government prescribed the terms and condition of the services of the temporary employees of the erstwhile Roadways Department. It was stated that the G.O. will come into force w.e.f. 1.10.1960 and shall apply to all future entries in the service of the Roadways Organization and also the existing temporary employees who accept to continue with the Roadways department on the revised terms and condition of the service. The status of the Roadways employees already declared permanent would remain unaffected. Temporary employees except those mentioned in paragraph 2 of the G.O. were required to indicate in writing as to whether the new service conditions were acceptable to them. It is therefore submitted that this G.O. had no affect upon the permanent employees and they will continue to enjoy the status as a government servant and would therefore be entitled to pension and pensionary benefit like all other State Government employees. Thereafter another G.O. was issued on 28.10.1960 and all non gazetted post in the administrative offices of the Organization and the post of Junior Foreman and above and the post of Junior Station Incharge were treated as pensionable. Another G.O. was issued on 21.4.1961 declaring that pensionable posts mentioned in the G.O. Dated 28.10.1960 would be treated to be pensionable from the dates the same were made permanent.

It is stated that by virtue of the provisions of Article 350 of the U.P. Civil Service Regulations as amended, every post in the U.P. Government Roadways was deemed to be pensionable till 1960. In 1960 by the G.O. dated 16.9.1960 for the first time a distinction was made between pensionable and non-pensionable posts in the Roadways Department. It was also stated that by the earlier G.Os. of 26.3.1955 and 24.2.1950 a decision was taken to the effect that the provisions of proviso to Article 350 of the U.P. Civil Services Regulations were to be complied with for specifying permanent post as pensionable. The word pensionable need not to be placed before the word permanent and permanent would itself mean that the post was pensionable. The U.P. Civil Service Regulations were amended by the VIIIth amendment 1977 and had provided that no establishment whether temporary or permanent shall be deemed to be pensionable establishment provided that it would be open for the Government to specify that any particular establishment did not qualify for pension.

The amended Article 350 further provides that continuous temporary or officiating service under the Government followed without interruption by confirmation in the same or any other post shall qualify except

"(I) periods of temporary or officiating services in non-pensionable establishment

(ii) periods of service in work charges establishment

(iii) periods of service in a post paid from contingencies"

A reference has also been made to the provisions of Article 361 of the Civil Service Regulations and it is submitted that the substantive service in a permanent post qualifies for pension unless the service in a particular permanent post is specifically declared as a non qualifying under Article 350 of the Civil Services Regulations. It is stated that the Transport Commissioner had sought clarification from the State Government regarding the applicability of the G.Os. dated 16.9.1960 and 28.10.1960 and the clarification was issued by the State Government by G.O. dated 7.11.1962. clarifying the position that the G.O shall be applicable only to those employees who have not been confirmed on any post or may be confirmed on or after November, 1960.

It is also stated that the Employees Provident Fund Scheme was enforced in the Roadways Organization by the State Government by G.O. dated 19.7.1960 although the Employees Provident Fund Act, 1952 was promulgated in 1952 by the Central Government. Thereafter the Government issued a G.O. dated 7.1.1984 which provided for counting of non pensionable service of the Roadways employees for pension purposes and paragraph 3 thereof provided that the period of non pensionable service of the Roadways employees shall be countable in the pensionable service to the extent that the same is covered by their provident fund. Thereafter another G.O. was issued on 22.2.1972 which provided that the employees of the U.P. Roadways being promoted from a non pensionable post to a pensionable post may count the period of service on non pensionable towards qualifying service for pension provided the government servant refunds the government share of contribution from his E.P. Fund with interest. It is stated that the UPSRTC was constituted w.e.f. 1.6.1972 in view of the provisions of the Road Transport Corporation Act, 1950 and thereafter all the assets and liabilities of the erstwhile U.P. Government Roadways vested in the UPSRTC. Thereafter the G.O. dated 7.6.1972 as amended by G.O. dated 5.7.1972 was issued and the employees of the U.P. Government Roadways were to be treated as employees of the UPSRTC on deputation and that they would be entitled to pensionary benefits. It is submitted that by issue of this G.O. all the employees of the erstwhile U.P. Government Roadways holding permanent pensionable post in terms of the G.O. dated 28.10.1960 became entitled to pension.

The submission is that thus the petitioner being an employee confirmed in the erstwhile U.P. Roadways before 1960 became entitled to pension after the constitution of UPSRTC and was therefore entitled to pension. The petitioner in respect of his claim had earlier filed a W.P. No. 22232 of 1996 for grant of pension which was disposed of by the Court by its order dated 25.7.1996 with a direction to the respondents to consider the petitioner''s representation and it is in pursuance thereof that the impugned order dated 4.10.1996 was passed rejecting the petitioner''s claim for pension.

On behalf of the respondents a counter affidavit has been filed and in paragraph 3 thereof it is stated that the petitioner was confirmed on the post of Cleaner in the erstwhile U.P. Government Roadways in 1958. By the G.O. dated 28.10.1960 certain permanent posts in the Roadways Organization were declared to be pensionable and for all the remaining posts the benefit of the Employees Provident Fund Scheme was still alive. It is further stated that the petitioner was promoted on the post of Junior Foreman in 1989 and retired from the said post w.e.f. 30.6.1992. He had never worked on a pensionable post till his absorption in the UPSRTC and therefore he was not entitled to any pension in view of the provisions of G.O. dated 19.8.1993. This G.O. has been filed as Annexure-1 to the counter affidavit. It is also stated that the G.O. dated 28.10.1960 had already been considered and interpreted by the High Court in the case of Har Bux Pathak v. State of U.P. And others reported in (1992) 1 UPLBEC 242. It is stated that till issue of G.O. dated 28.10.1960 all posts in the erstwhile U.P. Government Roadways were non pensionable. The case of the respondents is that the petitioner had never worked on any pensionable post and therefore he is not entitled to pension and besides he had already availed all the post retiral benefits under the EPF Scheme and therefore he is estopped from claiming pension. A plea of the claim being barred by laches has also been taken.

A rejoinder affidavit has been filed by the petitioner in which his contentions in the writ petition have been reiterated and it is further stated that the G.O. dated 19.8.1993 referred to by the respondents has no application in the case of the petitioner as the petitioner was working as Junior Foreman in 1989 which was a pensionary post.

I have heard Sri Arjun Singhal, learned counsel for the petitioner and Sri Ajay Kumar Srivastava, learned counsel holding brief of Sri Samir Sharma for the U.P.S.R.T.C.-respondent.

The Government Orders dated 16.9.1960 and is in respect of temporary employees of the erstwhile U.P. Government Roadways and lays down certain service conditions which were made applicable to all temporary employees except those referred to in paragraph 2 thereof. The G.O. dated 28.10.1960 provided that the G.O. would apply to all the permanent gazetted and non-gazetted employees other than those mentioned in paragraphs (a), (b) and (c) of the writ petition, which read as under:

"(a) The employees working in the office establishment of the Asstt. General Manager, General Manager, Services Manager, Chief Mechanical Engineer, Roadways Central Workshop, Rampur and the Head Quarters 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."

From a reading of the G.O. it is noticed that the technical staff of the rank of Junior Foreman and above on the engineering side belong to the category which is covered by the contributory provident fund/pension rules.

On behalf of the respondents a plea of laches has been taken and reliance has been placed upon two decisions of the Supreme Court reported in Shiv Dass Vs. Union of India (UOI) and Others, and Union of India (UOI) and Others Vs. M.K. Sarkar, . A plea has also been taken that the petitioner had already availed of the Provident Fund Scheme and taken the benefits thereunder and it is only thereafter that now he has turned around claiming the benefit of pension under the G.O. dated 28.10.1960. It is stated that the petitioner had never worked on any pensionable post as laid down in the G.O. dated 28.10.1960 in the erstwhile U.P. Government Roadways till its absorption in the newly created U.P. State Road Transport Corporation (hereinafter UPSRTC) on 28.7.1982 and therefore he was not entitled for pension. Certain other judgments have been relied upon which shall be dealt with hereinafter.

So far as laches is concerned certain facts in the present case would be notable. The petitioner was appointed as Cleaner in the erstwhile U.P. Government Roadways in 1952 and he was confirmed on the said post in 1958. He was promoted as Junior Foreman in 1989 and thereafter retired from service on 30.6.1992 on attaining the age of superannuation. Thereafter he submitted a representation before the respondents on 28.3.1996, Annexure-6 to the writ petition, and another representation on 3.5.1996, Annexure-7 to the writ petition, and when no reply was given he filed writ petition No. 22232 of 1996 which was disposed of by the Court by order dated 26.7.1996 with a direction to the Division General Manager, U.P.S.R.T.C., Northern Zone, Bareilly to decide the petitioner''s representation. It is in compliance of the direction of the High Court that the impugned order dated 4.10.1996 was passed rejecting the claim of the petitioner for grant of pension and it is only thereafter that the present writ petition was filed giving challenge to the said order. Therefore, it cannot be said that the petitioner had adopted a laid back attitude and that he was not agitating his rights. In the circumstances, I do not find the petitioner guilty of laches. Therefore the plea that the writ petition be dismissed as barred by laches is rejected.

Next it has been contended by the respondents that the petitioner has already availed the Provident Fund Scheme and taken the payment and benefits thereunder therefore it was not open for him to turn around and claim pension in terms of the G.O. dated 28.10.1960. It is not disputed between the parties that if a claim for pension was available it was open for the claimant to have applied for pension in which case he would have to return the entire amount of provident fund received by him together with interest towards the government contribution and it is only thereafter that he would become entitled to receive pension.

The admitted and undisputed position is that the petitioner was appointed as Cleaner in the erstwhile U.P. Government Roadways in 1952 and thereafter he was confirmed on the said post in 1958. These facts are admitted by the respondents in paragraph 3 of their counter affidavit. It is not disputed that the erstwhile U.P. Government Roadways was merged in the U.P. S.R.T.C. upon its creation, in 1982 and the services of the petitioner were merged in the U.P.S.R.T.C. The G.O. dated 28.10.1960 carved out a category of the employees to whom the contributory provident fund cum pension rules would be applicable. Paragraph (c) of the said Government Order mentions technical staff of the rank of Junior Foreman and above on the Engineering side, in this group of persons to whom the Contributory Provident Fund cum Pension Rules would apply. The petitioner was promoted as Junior Foreman in 1989. He became a permanent employee in 1958 upon his confirmation on the post of Cleaner, therefore, on the date of merger and his absorption in the U.P.S.R.T.C. in 1982 he was the holder of a permanent post.

At this stage reference may be made to the decisions relied on by the respondents. A reference has been made to a judgment dated 10.7.2013 of this Court passed in Special Appeal No. 813 of 2010, U.P. State Road Transport Corporation and another v. Mirza Athar Beg. The learned Single Judge had allowed the writ petition filed by the petitioner with a direction that he shall return the amount of contributory fund received by him and then he would be entitled to pension. This judgment was challenged in Special Appeal No. 813 of 2010 U.P.S.R.T.C. v. Mirza Athar Beg. In appeal it was noted by the Court that the petitioner was working in the office of the Assistant General Manager in the erstwhile U.P. Government Roadways. Those working in the office establishment of Assistant General Manager, General Manager, Service Manager, Chief Mechanical Engineers, and Roadways Central Workshop, Kanpur were covered by the G.O. dated 28.10.1960 as employees to whom the Contributory Provident Fund cum Pension Rules applied, therefore, considering the various government orders and the fact that Mirza Athar Beg was working on a post which was covered by the Government Order dated 28.10.1960 to whom Contributory Provident Fund and Pension Rules applied and therefore his service conditions as existing at the time of merger and absorption in the UPSRTC would remain protected, the special appeal was dismissed and the order of the learned Single Judge was upheld and a direction was issued to the State that the pension of the petitioner shall be fixed as per Rules within a period of two months and the same shall be paid regularly with effect from the current month. The arrears of pension shall be paid within a maximum period of one month from its determination after adjusting the amount of EPF (contribution of the employer) which has already been received by the respondent. It was also provided that it would be open for the respondent to deposit the amount of EPF contribution of the employer already received by him and if such a deposit is made there would not be any occasion for deducting the said amount. So far as the payment of interest was concerned it was directed that no interest would be charged from the EPF amount from the respondent employee and the respondent employee will also not claim any interest on the amount of pension.

The judgment of the Division Bench of this Court in the case of Mirza Athar Beg (supra) was given challenge by the U.P. State Road Transport Corporation in the Supreme Court in Special Leave to Appeal (Civil) No. 7709 of 2011 and the SLP was dismissed by order dated 10.7.2013.

Reference has also been made to the judgment of the Division Bench of this Court in the case of Heera Lal Upadhyay v. State of U.P. And others in Special Appeal (D) No. 944 of 2009 certain relevant portions of the judgment of the learned Single Judge have been quoted where the learned Single Judge has held that the petitioner has received all the post retiral benefits admissible and has exercised his option for Provident Fund Scheme and, therefore, once he has withdrawn the entire benefits he cannot be permitted to switch over to the Pension Scheme as held by the Supreme Court in the case of V.K. Rama Murti v. Union of India 1997 (1) UPLBEC (SC) 439. Before the Special Appeal Bench the counsel for the appellant employee claimed that he had never opted for the Provident Fund Scheme but in the counter affidavit filed by the UPSRTC it was demonstrated that the employee had opted in the Provident Fund Scheme.

In the case in hand in paragraph 21 of the counter affidavit it is stated that the petitioner had availed of the post retiral benefits under the EPF Scheme and therefore he is estopped from claiming pension. In paragraph 8 of the rejoinder affidavit there is only a bald denial of the averments of paragraph 21 of the counter affidavit and otherwise the averments of the writ petition have been reiterated. However, in the writ petition there is no averment that the petitioner had not received the benefits under the Employees Provident Scheme.

The next judgment referred to by the respondents is that of a Single Judge of this Court passed in W.P. No. 2603 of 2001 Ram Chandra Pathak v. State of U.P. And others. The facts as emerging from the internal page 14 of the judgment are that they were not holding a pensionable post and were contributing to the EPF and continued to subscribe to the fund even after their absorption. It was held that as employees of the U.P. Government Roadways on deputation in the Corporation they were not holding a pensionable post. It has also been held that they have received the entire amount of EPF, Gratuity and other benefits and therefore they cannot be allowed to turn around after their retirement and claim applicability of the service condition as a Government Servant on deputation with the Corporation.

Similarly in Civil Misc. Writ Petition No. 1196 of 2002 Bhoop Ram Sharma v. UPSRTC and others in a matter relating to a claim for benefit of age of retirement from 58 years to 60 years placing reliance on the provisions of Regulation 83 of the UPSRTC Employees (other than Officers) Service Regulations, 1981. Regulation 83 reads as under:

"83. Special provisions regarding erstwhile employees, of State Government - Notwithstanding anything to the contrary contained in these regulations, the service conditions, including the conditions relating to seniority, promotion, pay fixation, leave and retirement benefits, of the persons who were employees of the State Government in the U.P. Government Roadways department shall not be inferior to the conditions before their absorption in the service of the Corporation and the provisions of G.O. No. 3414/30-2-170 N-77 dated July 5, 1972 shall apply."

It was held by the Court that the petitioners would not be entitled to the increase in the age of retirement and the service conditions as applicable to them at the time of merger and absorption would be applicable. The writ petition was dismissed. Similar view has been taken by another learned Single Judge in Bachai Lal v. UPSRTC reported in 1991 (2) CRC 1059.

There is another aspect of the matter which requires consideration, Regulation 39 of the U.P. Road Transport Corporation Employees (other than officers) Service Regulations 1981 provides for pension and other retiral benefits. The extract of the Regulation 39 is reproduced below:

"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 mention in sub-regulation (2).

(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, 1972;

(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."

The reading of Regulation 39 of the above Regulations in unambiguous terms states that the employees of the Corporation shall not be entitled to pension but they shall be entitled to retiral benefits mentioned in Sub-regulation (2) which are reproduced above. However, persons who are already drawing pension under the U.P. Government Roadways and had opted for the service of the Corporation shall be entitled to pension and other retirement benefits in terms of the G.O. dated 5.7.1972. The G.O. dated 5.7.1972 protects all the benefits including pension and other retiral dues which were available to the employees of the erstwhile U.P. Government Roadways even after being sent on deputation to the Corporation. The petitioner on the date of merger may have been a permanent employee but he was working on the post of Cleaner and infact he was promoted as Junior Foreman only in 1989 i.e. long after the absorption of the erstwhile employees of the U.P. Government Roadways in the Corporation. While he was working in the U.P. Government Roadways, the petitioner was not working on any post mentioned in the G.O. dated 28.10.1960 to whom the Contributory Fund cum Pension Rules applied. Therefore, although his status as permanent employee would remain protected even after his merger in the Corporation but since he was not working on a pensionable post in the U.P. Government Roadways on the date of merger and absorption in the Corporation he would not be entitled to pension or pensionary benefits thereof.

Thus in view of the fact situation the judgment of this Court in Mirza Athar Beg (supra) would have no application to the case of the petitioner inasmuch as in that case the petitioner therein had already been promoted to a post in the office of the Assistant General Manager in the erstwhile U.P. Government Roadways which was a pensionable post in terms of the Government Order dated 28.10.1960 and therefore his conditions of service remained unaffected and unchanged even after merger and absorption in the U.P. State Road Transport Corporation.

The submission of the learned counsel for the respondent that the petitioner had already availed the benefit of EPF Scheme and therefore he is estopped from now staking a claim for pension, also merits consideration. This question has already been considered and settled by a Division Bench of this Court in the case of Heera Lal Upadhyay (supra) and the Court held that the petitioner therein having opted for the Provident Fund Scheme and withdrawn the entire benefits cannot be permitted to switch over to the Pension Scheme.

This question has also been settled by the Supreme Court in V.K. Ramamurthy Vs. Union of India, wherein the Court has held that the employee therein had not opted for the Pension Scheme and he cannot turn around and claim benefits of the Pension Scheme.

In the present case it has already been noted above that the petitioner had availed the benefits of the EPF Scheme and even if the Pension Scheme was applicable to him his claim for pension is not maintainable in view of the several pronouncement of this Court and the Supreme Court already discussed above.

For the reasons stated above and the settled principles of law, I do not find any merit in the writ petition and the same is accordingly dismissed.