Allahabad High Court
U.P.Road Transport Corporation Throu ... vs Sri Pal Singh on 21 February, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment Reserved on: 10.02.2023 Judgment Delivered on: 21.02.2023 Court No. - 1 Case :- WRIT - A No. - 2000686 of 2015 Petitioner :- U.P.Road Transport Corporation Throu Its Regional Manager Respondent :- Sri Pal Singh Counsel for Petitioner :- Prabhu Ranjan Tripathi Counsel for Respondent :- Mayankar Singh,Pradeep Kumar Sharma Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
(Delivered by Hon'ble Subhash Vidyarthi J.)
1. Heard Mr. Prabhu Ranjan Tripathi Advocate, the learned counsel for the petitioner as well as Mr. Mayankar Singh Advocate, the learned counsel for the respondent.
2. The instant Writ Petition has been filed by the petitioner Uttar Pradesh Road Transport Corporation (which will hereinafter be referred to as ''the Corporation') challenging the judgment and order dated 16.09.2014 passed by the State Public Services Tribunal allowing Claim Petition No. 1482 of 2001, which was filed by the respondent claiming payment of pension instead of Employees Provident Fund (E.P.F.).
3. Briefly stated, facts of the case are that the respondent was initially appointed on 22.04.1960 on the post of Cleaner-cum-conductor in the erstwhile U. P. State Roadways. He was promoted to the post of Conductor on 18.06.1961 and his services on the post of Conductor were confirmed on 01.04.1972. Thereafter the Corporation came into being and the petitioner was appointed in it on deputation in terms of a Government Order dated 05.07.1972. On 13.04.1984, the respondent was promoted to the post of Assistant Traffic Inspector and thereafter on 30.06.1989 he was promoted to the post of Traffic Inspector. The respondent retired on 28.02.1994 while he was working on the aforesaid post. The respondent was treated as working on non-pensionable posts and after his retirement, he was paid the E.P.F. amount, along with the employer's contribution.
4. It was for the first time in the year 2001 that the respondent gave a representation after expiry of a period of seven years since his retirement, claiming payment of pension and thereafter he filed Claim Petition No. 1482 of 2001 before the Tribunal claiming payment of pension. The Corporation filed a written statement disputing the respondent's claim.
5. The Tribunal allowed the Claim Petition holding that prior to his appointment on deputation in the Corporation, the respondent was working on a pensionable post and thereafter he was promoted to the post of Assistant Traffic Inspector, which post was inter-changeable with the post of Station-in-charge and, therefore, was pensionable. The Tribunal held that by means of a Government Order dated 19.06.1981 it was provided that the service conditions of the employees of the Corporation will not be fixed below the conditions will not be lower than those on which they were working previously. The Tribunal further held that the provision of pension was introduced in the Corporation by means of a Government Order dated 03.02.1994 providing that the employees who had retired and had taken E.P.F. benefit, would be entitled to get pension after repaying the E.P.F. amount. However, no intimation was given to the respondent in terms of the aforesaid G.O. that he had an option to get pension instead of E.P.F. benefit and no option was taken from him. The Tribunal also noted that one Bhagwan Das, who was a black-smith in the Corporation was initially refused pension but subsequently upon a representation made by him, he was given pension. The Tribunal held that the respondent had retired from a pensionable post and he cannot be denied pension merely because he could not exercise his option for want of information. The Tribunal directed the Corporation to pay pension to the respondent after adjusting the amount paid to him as E.P.F.
6. The Corporation has challenged the Tribunal's Order mainly on the grounds that the respondent was not working on any pensionable post while he was in Government Service and, therefore, he was not entitled to get pension; that the respondent was absorbed in the Corporation in the year 1982, he accepted the terms of appointment in the Corporation under which his service was non-pensionable and till his retirement, he did not raise any objection or claim that his service ought to be made pensionable; that the respondent was entitled to E.P.F. benefit, which benefit had been availed by him upon his retirement in the year 1994 and the Claim Petition claiming pension was filed after a period of seven years since availing the E.P.F. benefit.
7. The respondent has filed a Counter Affidavit stating that by means of an Office Memorandum dated 13.02.1979, the Corporation had clarified that the posts of Junior Station-in-charge and Traffic Inspector Grade I were equivalent and inter-changeable, the post of Junior Station-in-charge is pensionable and, therefore, the equivalent post of Traffic Inspector Grade I will also be pensionable.
8. Sri. Prabhu Ranjan Tripathi, the learned Counsel for the Corporation has submitted that the Tribunal wrongly referred to the Circular dated 03.02.1994 issued by the Corporation as a Government Order, which circular merely stated that Government Orders had been issued on 07.01.1984, 22.06.1991 and 19.08.1993 for payment of pension to the employees / officers of the erstwhile U. P. State Roadways, who were working on any pensionable post before 28.07.1982. The circular stated that some persons who were working on non-pensionable post prior to 01.06.1972, would have been promoted to pensionable post by 28.07.1982 and such persons might have retired prior to issuance of the aforesaid Government Orders and they might not be knowing about the Government Orders. The Circular directed the authorities to prepare a list of the employees / officers would be beneficiaries of the Government Orders and to intimate them that in case they wanted to get pension after repaying the E.P.F. and the excess amount of gratuity, they should fulfill the formalities. The Circular further directed the authorities to obtain a written declaration from the persons who did not want to get pensionary benefit.
9. Per Contra, Sri. Mayankar Singh Advocate, the learned Counsel for the respondent has submitted that the respondent was working on the post of Traffic Inspector, which was equivalent to and inter-changeable with Junior Station-in-charge and as the latter post is pensionable, the post of Traffic Inspector would also be a pensionable post. He has relied upon a Single Bench decision in the case of Badri Prasad Dubey versus Managing Director, U. P. State Road Transport Corporation Lucknow and others, 2012 (2) LBESR 299 (All).
10. We have considered the facts and circumstances as evident from the material available on record and the submissions of the learned Counsel for the parties.
11. U. P. Government Roadways was established by the State Government as a temporary department in the year 1947, to run its own transport service. On 16.9.1960, a Government order was issued laying down revised terms and conditions of temporary employees of the Roadways. The Government Order dated 16.9.1960 reads as under:
"G.O. No. 3014 D/XXX-135/59 dated Sept. 16, 1960 Subject: Terms and conditions of service of temporary employees in the U.P. Roadways - Revisions of.
I am directed to say that the question of revising the terms and conditions of service of the Roadways employees, 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 and on. In order to keep the Roadways services going, the maintenance and repairs of vehicles has to be attended 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 supersession of all previous orders on the subject, the Governor has been pleased to pass the following orders prescribing 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 employees including those on the work charge strength and paid on monthly basis.
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.
They shall be entitled to get one days paid holidays for every 20 days of work performed by them during the previous calendar year, subject to the condition that the employee has worked for a period of 240 days or more during the previous calendar year. In case the employees is not able to avail of full or part of the leave admissible to him during the calendar year, it will be carried over to the following year, subject to a maximum of 30 days.
They shall get five days festival holidays in a calendar year as prescribed by Government and subject to the rules to be framed for the purpose.
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.
Their services are liable to termination on one month's notice on either side, or one month's pay in lieu thereof.
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:-
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.
Supervisory staff of the rank of Junior Station Incharge and above on the traffic side;
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."
12. On 28.10.1960, the following Government order was issued declaring certain posts in transport and roadways department as pensionaable posts: -
"In continuation of Government order No. 31040/XXX-135V/1959, dated September 16, 1960, I am directed to say that the question of declaring the permanent posts in the Roadways Organisation (including the Roadways Central Workshop, Kanpur) as pensionable has been under the 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:
The employees working in the office establishment of the Assistant General Manager, General Manager, Service Manager, Chief Mechanical Engineer, Roadways Central Workshop, Kanpur and the Headquarter office of the Transport Commissioner.
Supervisory staff of the rank of Junior Station Incharge and above on the traffic side.
Technical staff of the rank of Junior Foremen and above on the engineering side; ''rank' means position/status but no post.
The Governor has been further pleased to order, under note 3 below Article 350 of the Civil Services Regulation that the rest of the permanent nongazetted Roadways employees both in the traffic and Engineering sections of the organisation, would be treated as non-pensionable. The incumbents of the permanent non-pensionable posts referred to above will be eligible for provident fund benefits in accordance with the provisions of the Employees Provident Fund Act.
I am. also to add that Temporary Employment of the categories mentioned in para 1 above will be entitled to provident fund benefits as provided under the Employees Provident Funds Act. As and when they became, permanent, they will have the option to elect the contributory provident fund cum pension benefits in lieu of Employees Provident Fund.
As regards the grant of provident fund benefits to other temporary and work-charged employees of the Roadways Organisation necessary orders have already been conveyed to you in Government order No. 1488/XXX-219/50 dated 29.7.1960."
(Emphasis supplied)
13. On 21.4.1961, another Government order was issued by which posts mentioned in para 1 of the Government order dated 28.10.1960 were treated to be pensionable, with effect from the date they were converted into permanent post. Yet another Government order dated 08.09.1961 provided that the permanent roadways employees mentioned in para 2 of the Government order dated 28.10.1960 will be treated as non-pensionable and they will be eligible for provident fund in accordance with the provisions of Employees Provident Fund and Misc. Provisions Act.
14. The State Government had issued two Government Orders dated 07.06.1972 and 05.07.1972, providing that all the employees of the erstwhile Government Roadways holding permanent pensionable posts were entitled to the same benefits whereas employees who were working on daily wages; appointed on ad hoc basis; those who had not completed the minimum prescribed period of service on the post, entitling them to pensionary benefits; those who held posts which were not declared pensionable and those who had not been removed from service after domestic enquiry are not entitled to draw those benefits.
15. 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 (hereinafter referred to as the "Regulations of 1981") were framed. Regulations 4 and 39 of the Regulations of 1981 provide 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, sand so absorbed, and shall, accordingly cease 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.
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) 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:
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."
16. Later on, the State Government framed rules known as U. P. State Roadways Organization (Abolition of Posts & Absorption of Employees) Rules, 1982 in exercise of the power under Article 309 of the Constitution (for short, the ''Rules of 1982'), which was notified on 28.4.1982. Rule (2) (ii) deals with ''Employee', which means the Government Servant employed in the U.P. State Roadways Organization and working on deputation with the Corporation. Rule 4 of the Rules of 1982 provides that on expiry of three months from the date of notification of the rules, service under the State Government of the employees on deputation with the Corporation will become employees of the Corporation and their relevant post in the roadways would stand abolished. In case any person intimated to the Government that he was not willing to be absorbed, his services would be dispensed with after giving him three months' notice and the notice period would be one month in case of temporary employees. If no such intimation was given, the employee was to be deemed to have been absorbed. The relevant Rule 4 of the Rules of 1982 reads as under: -
"4(1) An employee of the U.P. State Roadways Organization, who was placed on deputation with the Corporation and who does not wish to be absorbed in the service of the Corporation shall, within 3 months from the notification of these Rules in the Gazette, intimate the Secretary to Government in the Transport Department that he does not wish to be so absorbed.
(2) Every other employee who does not given an intimation, in accordance with sub-rule (1), shall be deemed to have exercised his option for absorption in the service of the Corporation.
(3) An employee, who is deemed to have opted for absorption in the service of the Corporation, in accordance with sub-rule (2), shall stand to absorbed with effect from the date of expiry of three months from the date of notification of these rules and his service under the State Government shall with effect from the same date cease."
17. Sub-clause 1 (ii) of Regulation 39 of the Regulations of 1981 makes it clear that an employee of the State Government in the erstwhile U. P. Government Roadways who has opted for the service of the Corporation, shall be entitled to pension and other retiral benefits in terms of Government order dated 05.07.1972. The Government Order dated 05.07.1972 protects all benefits including pensionary and retiral benefits, which were available to the employees of the erstwhile Roadways, even after being sent on deputation in the Corporation.
18. The respondent was initially appointed on 22.04.1960 on the post of Cleaner-cum-conductor in the erstwhile U. P. State Roadways, and on the date of issuance of the Government Order dated 16.09.1960 which came into force on 01.10.1960, he was working as a temporary employee. On 28.10.1960, another Government Order was issued declaring certain posts in transport and roadways department as pensionary posts and the said Government Order provided that the rest of the permanent non-gazetted Roadways employees both in the traffic and Engineering sections of the organisation, would be treated as non-pensionable. The incumbents of the permanent non-pensionable posts referred to above will be eligible for provident fund benefits in accordance with the provisions of the Employees Provident Fund Act.
19. Thereafter, the respondent was promoted to the post of Conductor on 18.06.1961 and his services on the post of Conductor were confirmed on 01.04.1972.
20. Prior to the confirmation of his services on 01.04.1972, the respondent was working on temporary basis and his services were not pensionable for this reason. Even after his confirmation, the respondent was working on the post of conductor, which was a non-pensionable post.
21. While he was working on a non-pensionable post of conductor in the erstwhile State Roadways Department, the respondent was appointed in the Corporation on deputation in terms of a Government Order dated 05.07.1972.
22. The Government Orders dated 05.07.1972, as modified by the Government Order dated 07.06.1972, provided that all the employees of the erstwhile Government Roadways holding permanent pensionable posts were entitled to same benefits whereas the employees who were working on posts which were not declared pensionable are not entitled to draw the benefit of pension. Therefore, the respondent was not entitled to get pension under the aforesaid Government Orders.
23. On 13.04.1984, the respondent was promoted to the post of Assistant Traffic Inspector and thereafter on 30.06.1989 he was promoted to the post of Traffic Inspector. The respondent retired on 28.02.1994 while he was working on the aforesaid post.
24. Regulation 39 of the Regulations of 1981 provides that except the persons who were entitled to get pension in terms of the G.O. dated July 5, 1972 as amended the Government order dated 7.6.1972, employees of the Corporation shall not be entitled to pension, but they shall be entitled to the other retirement benefits, including E.P.F.
25. In Ram Chandra Pathak vs. State of U.P. and Ors., (2003) ILR 2 All 379, a Single Bench of this Court considered the similar issue and held that: -
"19. The assurance given in para 4 of the Government order dated June 7, 1972 to all the officers/employees of the State Road Organisation that in the event of the provisions of absorption to be made in service regulations their service conditions, under the Corporation, shall in no case be inferior to the conditions as were available under the Government immediately before their absorption and that their tenure of Government service shall be considered for their seniority, promotion, pay fixation, entitlement for leave and for the benefits of retirement in the same way as would have been under the Government service, and so far as the pension is concerned fructified into statutory Regulation 39 (1) (ii) of the Service Regulation of 1981 notified on 19.6.1981. It is provided that a person who was employed in the erstwhile Government and has opted in the service of Corporation shall be entitled to pension and other retiral benefits in the terms of Government order dated 5.7,1972, it is found that whereas it amended the Government order dated 7.6.1972 by deleting all the paras except para 1 (1) (ka) providing for considering all officers and staff relating to the work on Roadways of the Transport Commissioner, Head Office on deputation under the existing terms and conditions of their service, an assurance was given that whenever service regulation shall be framed, the conditions of service shall not be inferior to those which were applicable to the Government servants prior to their absorption and that same conditions of service with regard to their seniority, promotion, pay fixation and other financial benefits shall be applicable as they would have received if they were in the Government service. It is admitted that all the petitioners were absorbed in the service of the Corporation. Under the conditions of their service, the employees who were not holding pensionable posts and were contributing to Employees Provident Fund, continued to subscribe to the fund even after their absorption. They became the employees of the Corporation and their service conditions were regulated by the U. P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981. As Corporation employees, they were not entitled to pension. Petitioners at the time of absorption in service, as the employees of the U. P. Roadways on deputation with Corporation, were not holding pensionable posts and thus it cannot be said that upon their absorption, the service condition with regard to the fact that they were not entitled to pension was less advantageous than it was applicable to the Employees of Roadways before their absorption.
20. The Government order did not have the effect of legislation by reference. The intention of the Government order dated 5.7.1972 was not to continue the rules applicable to Government service applicable to the employees of Corporation holding nor pensionable service. Having been absorbed as employees of the Corporation, the service regulation applicable to the Corporation became applicable to such employees. The assurance given in the Government order dated July 5, 1972, was subject to the regulations to be framed for the employees of the Corporation, and thus the later portion of the assurance that their service conditions shall not be less advantageous, was applicable until the service rules were framed by the Corporation with regard to conditions of their service. In case Service Regulation, 1981, were not acceptable to such employees, they could have opted out from the service of the Corporation under Regulation 4 (1) (iii) of the Service Regulations, 1981.
(Emphasis supplied)
26. As the respondent was working on a non-pensionable post of conductor at the time of his absorption in the Corporation, his services remained non-pensionable. The respondent was rightly treated to have been appointed in the Corporation on a non-pensionable post and he continued to contribute towards E.P.F. till his retirement and, accordingly, after his retirement, he was paid the E.P.F. amount, alongwith the employer's contribution, which was accepted by the respondent without any demur. It was for the first time in the year 2001, i.e. seven years after his retirement, that the respondent claimed payment of pension by filing a Claim Petition in the year 2001.
27. In this regard, it was held in Ram Chandra Pathak (Supra) that: -
"22. There is yet another aspect of the matter that almost all petitioners have retired long ago. For example in Writ Petition No. 2603 of 2001, petitioner retired on 30.5.1994 as Senior Station Incharge of the Corporation, FazalganJ Depot, Kanpur ; in Writ Petition No. 2604 of 2001 petitioner retired from the post of Driver on 28.2.1986 working under Regional Manager of the Corporation, Allahabad Region, Allahabad and in Writ Petition No. 19726 of 2000 petitioner retired on 30.6.1997 from Varanasi Gramin Depot. All the petitioners have received retiral benefits including the entire amount of employees provident fund, gratuity and other benefits. They were absorbed in the service of the Corporation in the year 1982 and thereafter till the date of their retirement, they did not make any protest with regard to the applicability of the Regulations. Having accepted the terms and conditions of the employment as employees of the Corporation, they cannot be allowed to turn around after their retirement and claim applicability of the service conditions as Government servants on deputation with Corporation. In State of Rajasthan v. Rajasthan Pensioners Samaj 1991 Supp (2) SCC 141, Supreme Court upheld the judgment of Constitution Bench in Krishna Kumar v. Union of India (1990) 4 SCC 207, explained and clarified the judgment of Apex Court in D.S. Nakara's case, (1983) 1 SCC 305 and held that contributory provident fund retirees are not entitled to claim a right to switch over from Provident Fund Scheme to pension scheme on the ground of violation of Article 14 of the Constitution of India. It was found that widows of Jodhpur C.P.F. retirees and pension retirees do not form one homogeneous class but form two different classes and, therefore, the widows of C.P.F. retirees are not entitled to opt for pension scheme, as the right to opt for pension scheme cannot be inherited or exercised by the widows of the retirees.
23. It was held in Krishna Kumar's case that the right of each individual provident fund retiree is crystallized on his retirement after which no continuing obligation remains, while on the other hand, there is a continuing obligation of the State in respect of pension retirees. In the present case on the absorption of an employee holding non-pensionable posts in the Corporation, obligation of the State Government came to an end. These employees became employees of the Corporation and started subscribing to the Employees Provident Fund after transfer of the fund, from their account of Employees Provident Fund. They became members of the employees provident fund. The State Government was not required to contribute towards their pension fund as in the case of employees who were holding pensionable posts. Their rights as such crystallized on the date of their absorption in the Corporation in the year 1982. Now after their retirement, having received the retiral benefits and having ceased the relationship as employees of the Corporation, they cannot agitate their rights after a long period of time. They form a different class than the employees of the State Government holding pensionable posts on the date of absorption.
(Emphasis supplied)
28. We are in agreement with the law laid down by the above mentioned law laid down by the Hon'ble Supreme Court and followed by the Hon'ble Single Judge.
29. Badri Prasad Dubey v. Managing Director, U.P. State Road Transport Corporation (2011) 89 ALR 832, relied upon by the learned Counsel for the respondent was filed by a person who was appointed as an Assistant Traffic Inspector in the erstwhile U.P. Government Roadways on 18.8.1964 and thereafter was also confirmed on the said post. Upon creation of the Corporation w.e.f. 1.6.1972, he was sent on deputation where he was absorbed w.e.f. 28.7.1982. Subsequently he was posted as Junior Station Incharge and thereafter as Senior Station Incharge and then promoted to the post of Traffic Superintendent vide order dated 29.9.1995 and on this post he worked till he retired on 31.7.2001. He claimed pension and the claim was rejected primarily on the ground that the post of Traffic Inspector Grade-I was a non pensionable post under the Government as per the Government order dated 28.10.1960 and the employer's share demanded and taken by the Regional Manager, Allahabad was by mistake. This Court held that: -
"4. The question whether on the date of his absorption the petitioner was holding a pensionable post under the Government is no longer in dispute as this Court in the case of Ram Singh Singraur v. State of U.P. [2007 (7) ADJ 137.] , has held that since the post of Assistant Traffic Inspector had been upgraded as Traffic Inspector Grade-I w.e.f. 5.5.1978 and which post was equivalent to the post of Junior Station Incharge and they being interchangeable, it held that persons holding post of Assistant Traffic Inspector on the date of absorption were entitled to pension. The aforesaid decision has been affirmed in appeal."
30. However, the petitioner was appointed in the earstwhile Government Department of U.P.S.R.T.C. on the post of Conductor which was a non-pensionable post and on the date of his absorption in the Corporation also, he was working on the aforesaid non-pensionable post of Conductor, therefore, the decision in the case of Badri Prasad Dubey (supra) who had been appointed on the post of Assistant Traffic Inspector and was holding the said post when he was absorbed in the Corporation, would not apply to the facts of the present case.
31. The Tribunal allowed the Claim Petition on an unfounded assumption that prior to his appointment on deputation in the Corporation, the respondent was working on a pensionable post whereas we have noted above that the respondent was working in the Corporation on a post of conductor, which was a non-pensionable post. The Tribunal wrongly held that the provision of pension was introduced in the Corporation by means of a Government Order dated 03.02.1994 whereas the document relied upon by the Tribunal as a Government Order was merely a Circular issued by the Corporation and it did not introduce the provision of pension, rather it merely asked the officers of the Corporation to ensure communication of the relevant Government Orders regarding payment of pension to the employees of the Corporation.
32. Even otherwise, when the services of the respondent were not pensionable as per the provisions contained in Regulation 39 of the Regulations of 1981, the same could not have been made pensionable merely by a Circular issued by the Corporation as a Circular cannot override and the provisions of Statutory Regulations.
33. Therefore, we are of the considered view that the Tribunal has erred in holding that the services of the respondent have to be treated as pensionable and the judgment and order passed by the Tribunal is not sustainable.
34. In view of the aforesaid discussion, the instant Writ Petition stands allowed. The Judgment and order dated 16.09.2014, passed by the State Public Services Tribunal allowing Claim Petition No. 1482 of 2001 is hereby quashed and the Claim Petition is dismissed.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)
Order Date :- 21st February, 2023.
Ram.