Allahabad High Court
U.P. State Road Transport Corp. Thru. ... vs Syed Mohammad Arif Hasan Rizvi And ... on 9 January, 2023
Bench: Ramesh Sinha, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL No. - 8 of 2023 Appellant :- U.P. State Road Transport Corp. Thru. Managing Director Lko. And Others Respondent :- Syed Mohammad Arif Hasan Rizvi And Others Counsel for Appellant :- Ratnesh Chandra Counsel for Respondent :- Ghaus Beg,C.S.C. Hon'ble Ramesh Sinha,J.
Hon'ble Jaspreet Singh,J.
Heard Shri Ratnesh Chandra, learned counsel for the appellants, Shri Ghaus Beg, learned counsel for the respondent no.1 and Shri Anand Singh, learned Standing Counsel for the State-respondents no.2 and 3.
The instant intra-court appeal has been preferred in terms of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the judgment and order dated 06.12.2022 which was corrected vide order dated 14.12.2022 passed by the learned Single Judge of this Court in Writ-A No.6959 of 2004 whereby the writ court disposed of the writ petition with a direction to the appellant to fix the pension of the respondent no.1 with effect from 01.08.2021 after adjustment of the amount of E.P.F. and pay the pension to the respondent no.1 within a period of six weeks alongwith all consequential benefits month by month.
Learned counsel for the appellant has submitted that the respondent no.1 was not entitled to the grant of pension. It is urged that in so far as certain facts are concerned, they are not in dispute and as such the respondent no.1 who was appointed in the Clerical Cadre in the Traffic (Side) with the Uttar Pradesh Government Roadways in the year 1965 which in itself was not a pensionable post.
It is further urged that the learned Single Judge has placed heavy reliance on the Government Order dated 05.07.1972 which did not by in any manner provide or grant the sanction of pension and this Government Order has been misconstrued by the learned Single Judge and as such the conclusion recorded by the writ court granting pension to the respondent no.1 is erroneous.
It is also submitted by the counsel for the appellant that the appellant had filed a counter-affidavit wherein the plea had been raised regarding the non-eligibility of the respondent no.1 to get pension and the Government Orders were also brought on record which clearly indicated that the respondent no.1 was not appointed on a pensionable post and even if the tenor of the Government Order dated 05.07.1972 is taken note of even then the respondent no.1 would not be entitled to any pension and having lost sight of this aspect of the matter, the order impugned has been passed which is against the material on record.
Shri Ghaus Beg learned counsel for the writ petition/respondent no.1 submits that the respondent no.1 was entitled for the grant of pension; inasmuch as in terms of the Financial Hand Book all government servants were entitled to pension.
It is also urged that once the respondent no.1 was entitled to the pension, then in terms of the Government Order dated 05.07.1972, no such order could have been passed which in any case would have a prejedecial impact on the right of the respondent no.1 and to that extent the right of the respondent no.1 to get pension was protected by the Government Order dated 05.07.1972 which has been appropriately relied upon by the learned Single Judge.
It has also been argued that in terms of Regulation 39 (i)(ii) of the U.P. State Road Transport Corporation Regulation 1981 the respondent being an employee of U.P. Government Roadways is entitled to departmental pension.
It has also been pointed out that the learned Single Judge has relied upon the decision of this Court in the case of Mirza Athar Beg and Chaman Lal Sharma wherein it has been held that all posts in the erstwhile U. P. Government Roadways were pensionable. It is thus urged that the respondent no.1 had retired from the post of Junior Station Incharge on 31.07.2001 and that from 01.08.2001 the respondent no.1 would be entitled to the pension month after month and as the Government Order dated 05.07.1972 has not been superceded by any subsequent Government Order, hence the writ petition was rightly allowed by the writ court and as such the appeal deserves to be dismissed.
The Court has heard the learned counsel for the parties and also perused the material on record.
At the outset, it may be noticed that the respective contention of the parties which has been noted above including the Government Orders dated 16th of September, 1960 and 28th of October, 1960, the effect of the Regulation 39 of the Uttar Pradesh State Road Transport Corporation Employees (other than officers), the Service Regulation 1981 in juxtaposition with the Government Order dated 05.07.1972 has not been taken note of by the learned Single Judge.
The writ court has merely relied upon the Government Order dated 05.07.1972 and proceeded on the premise that the posts in the U.P. Government Roadways were pensionable. It has not adjudicated or considered as to whether the Government Order of 1960 which clearly provided two separate posts with the U.P. Government Roadways which were pensionable and non-pensionable.
Also the fact that the respondent no.1 was appointed on the Traffic (Side) and that there was no such provision of pension for such employees. Even the effect of the Regulation as argued by the respondent no.1 has not been taken note of by the learned Single Judge.
It has also been brought to the notice that the aforesaid issue regarding the applicability of post being pensionable or not, is also engaging the attention of the Apex Court. Moreover, the effect of Rules 3 and 4 of the Uttar Pradesh State Roadways Organization (Abolition of posts and Absorption of Employees) Rules, 1982 has also not been considered by the writ court.
Without recording any finding as to the eligibility of the respondent no.1 to get pension noticing the fact whether at the time of appointment of the respondent no.1 in the Clerical Cadre Traffic (Side) was pensionable post or not and in case if the said post was non-pensionable, then in context with the relevant rules and its interplay with each other, how the respondent no.1 was entitled to pension was to be considered, which has not been done especially when such issues were raised by the appellant in its counter-affidavit filed before the writ court..
In this view of the matter, we do not deem appropriate to enter into the aforesaid controversy at this stage as all these questions were required to be addressed by the writ court and any observation by this Court may affect the rights of either parties hence leaving all contentions open to be considered and decided by the learned Single Judge after affording opportunity of hearing to the parties and giving its finding on the respective contentions.
Accordingly, the special appeal is allowed. The impugned judgment and order dated 06.12.2022 duly corrected on 14.12.2022 in Writ-A NO.6959 of 2004 shall stand set aside. The writ petition shall stand restored before the learned Single Judge who is requested to consider the matter expeditiously and decide the same considering the matter relates to the retiral/pensionary benefits of the respondent no.1, who has already attained superannuation on 31.07.2001. Costs are made easy.
(Jaspreet Singh, J) (Ramesh Sinha, J) Order Date :- 9.1.2023 ank