Uttarakhand High Court
U.P. State Road Transport Corporation ... vs Ram Awatar And Others on 10 January, 2017
Bench: K.M. Joseph, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 40 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Ram Awatar and others ............. Respondents
with
Special Appeal No. 36 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Narain Singh Bisht and others ............. Respondents
with
Special Appeal No. 37 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Ramesh Chandra Joshi and others ............. Respondents
with
Special Appeal No. 43 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Ram Singh and others ............. Respondents
with
Special Appeal No. 42 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Jashod Ram and others ............. Respondents
with
Special Appeal No. 46 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Ganga Singh and others ............. Respondents
with
Special Appeal No. 41 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Gopal Singh Dhela and others ............. Respondents
with
Special Appeal No. 47 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Tara Dutt Sanwal and others ............. Respondents
2
with
Special Appeal No. 45 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Bhagwan Singh and others ............. Respondents
with
Special Appeal No. 44 of 2014
U.P. State Road Transport Corporation ............ Appellant
Versus
Krishna Kumar Aggarwal and others ............. Respondents
with
Special Appeal No. 56 of 2014
U.P. State Road Transport Corporation ........... Appellant
Versus
Rajendra Singh Bisht and others ............. Respondents
with
Special Appeal No. 57 of 2014
U.P. State Road Transport Corporation ........... Appellant
Versus
Mathra Dutt Pandey and others ............. Respondents
with
Special Appeal No. 58 of 2014
U.P. State Road Transport Corporation ........... Appellant
Versus
Sher Singh and others ............. Respondents
with
Special Appeal No. 59 of 2014
U.P. State Road Transport Corporation ........... Appellant
Versus
Gopal Singh and others ............. Respondents
with
Special Appeal No. 61 of 2014
U.P. State Road Transport Corporation ........... Appellant
Versus
Ram Lal Sah and others ............. Respondents
with
Special Appeal No. 60 of 2014
U.P. State Road Transport Corporation ........... Appellant
Versus
Jagdish Chandra Sanwal and others ............. Respondents
with
Special Appeal No. 105 of 2014
3
U.P. State Road Transport Corporation ........... Appellant
Versus
Prem Singh and others ............. Respondents
with
Special Appeal No. 06 of 2015
Managing Director Uttarakhand Transport Corporation
Dehradun and others ........... Appellants
Versus
Ghanshyam Sorari ............. Respondent
with
Special Appeal No. 435 of 2015
Balwant Singh Rawat ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 434 of 2015
Chandi Prasad Dabral ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 440 of 2015
Smt. Sarveshwari Devi ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 439 of 2015
Ram Nagh Singh ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 436 of 2015
Smt. Balmati Devi ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 433 of 2015
Bhairav Singh Chaudhary ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
4
Special Appeal No. 432 of 2015
Prem Singh Rautela ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 431 of 2015
Sultan Singh Bhandari ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 430 of 2015
Radhey Shyam Agarwal ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 437 of 2015
Dayal Singh Bisht ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 438 of 2015
Smt. Maheshwari Devi ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 441 of 2015
Jai Lal ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 442 of 2015
Jagmohan Singh Negi ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 443 of 2015
Smt. Mohani Devi ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
With
5
Special Appeal No. 460 of 2015
Smt. Darshani Devi ........... Appellant
Versus
State of Uttar Pradesh and others ............. Respondents
with
Special Appeal No. 462 of 2015
Harish Chandr Singh Dangwal and others ........... Appellants
Versus
State of Uttarakhand and others ............. Respondents
with
Special Appeal No. 548 of 2015
Govind Ballabh Upadhyaya ........... Appellant
Versus
State of Uttarakhand and others ............. Respondents
with
Special Appeal No. 551 of 2015
Ganesh Singh Bisht ........... Appellant
Versus
State of Uttarakhand and others ............. Respondents
with
Special Appeal No. 552 of 2015
Shankar Dutt Joshi and others ........... Appellants
Versus
State of Uttarakhand and others ............. Respondents
with
Special Appeal No. 569 of 2015
Basant Ballabh Pant ........... Appellant
Versus
State of Uttarakhand and others ............. Respondents
Mr. Arvind Vashisth, Senior Advocate with Ms. Monika Pant, Advocate for the
Uttar Pradesh Road Transport Corporation.
Mr. Ashish Joshi, Mr. Rajeev Bisht and Mr. K.N. Joshi, Advocates for the
Uttarakhand Transport Corporation.
Mr. M.C. Pandey, Senior Advocate assisted by Mr. Devesh Upreti, Advocate, and
Mr. B.D. Pandey, Mr. H.C. Pathak, Mr. Anil Joshi, Mr. Bhupendra Singh Bisht,
Mr. D.N. Sharma, Mr. Yogesh Pacholia, Mr. M.S. Bhandari, Mr. Mohd. Matloob,
Mr. Kurban Ali & Mr. Sunil Dobhal, Advocates for the writ petitioners.
Ms. Beena Pandey, Standing Counsel for the State of Uttar Pradesh.
Dated: 10.01.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble U.C. Dhyani, J.
K.M. Joseph, C.J. (Oral) These Appeals being connected, we are disposing of the same by a common judgment. One batch of Appeals is filed by the 6 Uttar Pradesh State Roadways Transport Corporation (hereinafter referred to as the Corporation). In this batch of Appeals, the learned Single Judge has directed the Corporation to pay pension to the respondent-writ petitioners. In the same batch, one Appeal, being Special Appeal No. 6 of 2015, has been filed by the Uttarakhand Road Corporation. The other batch of Appeals is lodged against the judgment of the learned Single Judge, by which the learned Single Judge has dismissed the writ petitions filed both on the ground of latches and also finding that there is no merit.
2. We heard the learned Senior Counsel for the Corporation Sri Arvind Vashisth and Sri Ashish Joshi, learned counsel appearing on behalf of the Uttarakhand Transport Corporation. The argument on the side of the writ petitioners is, in fact, led by Sri B.D. Pandey, learned counsel. We have also heard other learned counsel, including Sri M.C. Pande, learned Senior Counsel for the respondent-writ petitioner in Special Appeal No. 57 of 2014. We also head Sri Kurban Ali and Sri M.S. Bhandari, learned counsel for the appellants / writ petitioners.
3. The controversy relates to the liability of the Corporation to pay pension to the former employees of the U.P. State Roadways. The U.P. State Roadways came into being in the year 1947. It was the Department of Transport in the undivided State of Uttar Pradesh. At that point of time, for the employees of the Government, there were no service rules as such. Since we are concerned with the question relating to pension, we must straightway refer to Article 350 contained in the U.P. Civil Service Regulations, which reads as follows:
"350. All establishments, whether temporary or permanent shall be deemed to be pensionable establishment:
Provided it is open to the State Government to rule that the service in any establishment does not qualify for pension."7
4. The next instrument, we must refer to, is the Government Order dated 16.09.1960. The English translation of the same reads as follows:
"G.O. No. 3014 D/XXX-135/59 dated Sept. 16, 1960 Subject: Terms and conditions of service of temporary employees in the U.P. Roadways-
Revisions of.
I am directed to say that the question of revising the terms and conditions of service of the Roadways employee, which is a nationalized commercial undertaking and has to work in conditions different from those prevailing in regular government offices, has been under the consideration of Government for some time past.
The passenger and goods services have to run irrespective of the fact whether it is a Sunday or a festival. The schedule of passenger services run by the State Undertaking cannot be altered off an on. In order to keep the Roadways services going the maintenance and repairs of vehicles has to be attend to even at odd hours at the workshops. At present the conditions of service of the employees of the U.P. Government Roadways and the Central Workshop, Kanpur are governed by the various rules and standing orders of Government applicable to other temporary government servants under the rule making powers of the Governor. In view of the special service conditions of employees of the Roadways it seems necessary to evolve a new set of service conditions for its employees which may be compatible with the nature of work and functions of the organization. Accordingly, in super session of all previous orders on the subject, the Governor has been pleased to pass the following orders prescribed revised terms and conditions of service of temporary employees of the U.P. Roadways including those detailed in para 2 below. The revised terms and conditions of service shall be applicable to all future entrants in the Roadways organization and shall be enforced in the manner mentioned hereinafter in the case of temporary employee including those on the work charge strength and paid on monthly basis.
(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 8 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 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. (3) They shall got five days festival holidays in a calendar year as prescribed by Government and subject to the rules to be framed for the purposes. (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 new terms and conditions of service will continue to get 9 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 by 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 Managers and Chief Mechanical Engineer and that necessary action may please to intimated forthwith in order to implement the above orders."
5. This is followed by the order dated 28.10.1960. The same provides as follows:
"In continuation of G.O. No. 30140/XXX-135-V/1959 dated 16.09.1960, 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 Workship, Kanpur and the Headquarter office of the Transport Commissioner.10
(b) Supervisory staff of the rank of Junior Station Incharge and above on the traffic 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 29.07.1960 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."
6. On 21.04.1961, another Government Order was issued by which the posts mentioned in paragraph 1 of the Government Order dated 28.10.1960 were treated to be the pensionable, with effect from the date they were converted into permanent post. The Corporation was constituted with effect from 01.06.1972. The employees of the State Roadways were, it appears, made over to the newly formed Corporation. In this connection, there are two Government Orders to be taken note of. The first is the order dated 07.06.1972, which reads as follows:
"From:11
Shri Girija Prasad Pandey Commissioner and Secretary Uttar Pradesh Govt.
To:
The Chief Manager, U.P. Govt. Road Transport Corporation, Lucknow.
Transport Section 2 Dated Lucknow June 7, 1972 Subject:- Constitution of U.P. State Road Transport Corporation and absorption of the officers/Employees of their transport organization in the said corporation.
Sir, I am directed to say that as a result of constitution of U.P. State Road Transport Corporation from 1st June, 1972 position of the officers and employees of various categories working in the Transport Organisation shall be as follows:-
1.(a) All the officers/ employees of the State Roadways Organisation and the officers and staff of relating to the work of Roadways of the Transport Commissioner, Head Officer, whether permanent or temporary shall be considered on deputation under below (b) of the FR-110 of Part of Finance Handbook Vol. Under the existing terms and conditions of their service in the Rules from 1st June, 1972. During the period of deputation such pay and allowances shall be admissible to these officers/ employees, as would have been otherwise admissible to them under the Government Service. No additional pay, allowances etc. shall be admissible to the consequent upon taking them on deputation.
(b) Permanent officer/ Staff shall be considered on deputation upto the date of their absorption permanently under the Corporation but the period of deputation of temporary officers/ staff shall be at the most for 6 months. During this period of 6 months the Corporation should arrange for their normal appointment in its service and should also finally prepare service Rules etc. during the said period. As the temporary officers/ staff will be appointed in service of the corporation their deputation on outer services conditions shall be ended.
2. Even after deputation these employees/officers may be transferred to the service of the corporation of there shall be inter changeability as it was before issue of these orders.
3. All these officers and employees of the Transport organization, whether permanent on any post under their substantive Govt. service or not, willing to be absorbed in the service of the 12 corporation under the law laid down under the below clause (5) shall be absorbed by the corporation in its service. The corporation shall for this purpose create posts in necessary number and permanent and temporary post of the grade.
4. However, these shall be compulsory requirement of the said absorption that their service conditions under the Corporation, shall in no case be inferior to the conditions as were available under the Government immediately before the absorption and their tenure of Government Service shall be considered for their seniority. Promotion, pay fixation, entitlement for leave and for the benefits of retirement in the same way as would have been under the Government service.
5. Procedure for an absorption in the corporation shall be that the concerned officers/ employees shall be invited by the corporation to be taken in its service which in reply will be opted by the concerned officer/ employment within the time communicated to accept this offer and to resign from the post of the Govt. from the same date and they will apply accordingly. The option and Application for this purpose shall be on the prescribed form, the applications received in time will be acted upon by the Government that resignation of the concerned officers/ employees from the Govt. post shall be accepted and they will be allowed to be absorbed in the service of the corporation from that date. In case the option and applications of the officers/ employees are not received within the time limit communicated it shall be deemed that the office of the corporation in not acceptable to them and in their case action under next clause (11) shall be taken. Delayed the time limit will be on the part of the officers/ staff giving option and applications. No restriction or condition shall be imposed by the concerned officers/ staff in the option/ applications on their own and in case it is done it shall be considered that they have not accepted the offer.
6. This resignation or otherwise than resignation shall not prejudicial effect the continuity of the service of the said officers/ employees of the interest arising thereby. In this respect all the relevant rules applicable along with Articles 418 of Civil Service Regulations shall be considered as relaxed.
7. Consequent upon the said absorption leave account of every absorbed officer/ employee, as it was just before the absorption, shall be transferred under the corporation. The corporation shall not be entitled to any contribution of the Government of compensation of any other type.
8. In respect of the pension, excluding family pension, or gratuity to be ultimately paid to the officers / employees by the corporation shall bear the burden in proportion of the therein qualifying service as was received by the concerned officer/ 13 employee under the government. Before going on deputation under the Corporation. Liability of the rest of it shall be on the corporation. The full liability of the family pension shall be on the Corporation.
9. If the officer employees as absorbed in case of those who were not on pensionable post in the permanent service but were members of contributory Provident Funds, above clause 8, shall be constituted by the provision that in such cases Government shall transfer its contribution with interest thereon payable under the Rules for prior to the first date of deputation of the concerned officer/employee in the Corporation in the A/C to be opened under the corporation and then.
10. The officer / employees so absorbed shall stop making subscribe to their existing Provident Fund account if any and the amount deposited in their account with the interest therein up to month just before, the date of the transfer payable under the relevant Government Rules, pass on to their new Provident Fund Account which shall be opened under the Corporation.
11. In case of the officers / employees not opting for beingabsorbed in the service of the corporation in response to the offer received vide above item No. 5, action shall be taken as follows of them, the services of such officers / employees who are purely temporary under the existing Government service shall be terminated on one months notice on paying salary of one month. In lien thereof and those who will be permanent on any post of Government cadre shall be retired abolishing the post under the Government held by them, by giving 3 months notice under Article 43 of Civil Regulations. In this connection pensions, gratuity etc. due to them under Rules shall be sanctioned.
12. In case of the officers / employees coming in Transport Organisation from other departments of the State Government on deputation the provisions contained under item (1) to (11) under forgoing para shall mutandis, apply to them subject to the amendment that the service of these persons not option in favour of absorption in the service of the commission, who will be permanent in the substantive cadre under the Government will not be permitted but they shall be sent back to the substantive cadre immediately.
2. This letter be circulated among all concerned persons.
3. The above order is being issued with the concurrence of the Finance Department by its D.O.Letter No.E-7/1102/Ton-72 dt. 5th June, 1992.
Yours Sd/- Girija Prasad Pandey Commissioner-Cum-Secretary"
147. The said order came to be amended by order dated 05.07.1972. English version of the same reads as follows:
"[See Regulation 4] Transport Department- No. 3414/302 -170 N-77, dated 5th July, 1972 From Sri Girija Prasad Pandey, Commissioner and Secretary, Uttar Pradesh Government To, Chief Manager, Uttar Pradesh State Transport Corporation, Lucknow.
Sub: Formation of Uttar Pradesh State Road Transport Corporation and mergence of Transport Corporation officers / Staff in aforesaid Corporation. Sir, Amending government order no. 3000/30-2-170- N-72 dated 7 June, 1972 issued after formation of State Road Transport Corporation, in connection with merger of officers / workers working under Uttar Pradesh Government Roadways, I have been directed to say that: (1) Under the provision contained in para 1 (1)(a) of the above G.O. services of all the permanent or temporary officers / employees who were in the service of State Roadways, before formation of the State Road Transport Corporation shall be considered on deputation with the Corporation. For this deputation no period has so far been decided.
(2) State Road Transport Corporation has not yet framed Rules on conditions of services of its officers and staff under it under section 45 of Road Transport Corporation Act. Therefore, except Article 1(1)(a) of the above G.O. dated 7th June 1972, all other articles shall be taken as deleted. However, whenever Rules on the conditions of services are framed by the corporation the same would contain as assurance of the Government that the condition of service of the officers / staff under the corporation shall in no case be inferior to those available under U.P. State Road Transport Corporation before their absorption and their services tenure under the Govt. shall be taken into account in respect of their entitlement of their seniority, promotion, pay fixation, leave and retirement benefits in the same manner as in the case when they would have continued in the Govt. Services."
8. The next development to be noted is that the Regulations were framed as Uttar Pradesh State Road Transport Corporation Employees (Other Than Officers) Service, Regulations 1981 15 (hereinafter referred to as the Regulations). Regulation 4, being relevant, we would refer to the same:
"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, stand 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 employee 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].
2. (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 these regulation their terms and conditions of appointment, so far 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 service may be terminated in accordance with the terms of their appointment."
9. It is equally necessary to, at once, notice Regulation 39. It reads as follows:
"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).16
(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 (i) 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."
10. Lastly, we must also advert to the Rules, which have been made known as the Uttar Pradesh State Roadways Organisation (Abolition of Posts and Absorption of Employees) Rules, 1982 (hereinafter referred to as the Rules). Relevant to notice are Rules 3, 4, 5 and 8, which read as follows:
"3. Applicability and overriding effect.--(1) These rules shall apply to the U.P. State Roadways Organisation employees working on deputation with the U.P. State Road Transport Corporation.
(2) They shall have effect notwithstanding anything to the contrary contained in any rules, regulations or order.
4. Option to employees and absorption in Corporation service.--(1) An employee of the U.P. State Roadways Organisation, 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 absorbed. (2) Every other employee who does not give an intimation, in accordance with sub-rule (1), shall be deemed to have exercised his option for absorption in the service of the Corporation.17
(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 so 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.
5. Abolition of posts under the State Government.--
The relevant posts in the U.P. State Roadways Organisation shall stand abolished,--
(i) where the employee is deemed to have opted for absorption in the service of the Corporation, in accordance with sub-rule 92) of the Rule 4, from the date of expiry of three months from the date of notification of these rules ;
(ii) where the employee intimates the Government his option for being not absorbed in the service of the Corporation from the date on which the period of notice, as provided in Rule 6, expires or, as the case may be, when the services stand terminated or dispensed with in accordance with the said rule.
8. Consequences where employee is absorbed in the service of the Corporation.--On the absorption of an employee in the service of the Corporation, the following consequences in regard to his services under the Government shall follow:
(i) Leave account of the employee shall be transferred to the Corporation and the Corporation shall not be entitled to receive any contribution or compensation on this account from the Government.
(ii) Government shall bear the liability for pension (which does not include family pension), the gratuity (if admissible to an employee), in proportion to the qualifying service in the Government rendered by an employee before the date of his being placed on deputation with the Corporation, the entire liability for family pension shall be borne by the Corporation.
(iii) Employees provident fund scheme.--In respect of an employee who did not hold any pensionable post but was a member of an Employees Provident Fund Scheme, the liability for contribution required to be made by an employer, for the period prior to 1-6-1972 shall be that of the Government and with effect from 1-6-1972, it shall be that of the Corporation.
(iv) An employee shall, from the date of his absorption, cease to subscribe to his General Provident Fund Account, if any, under the State Government and the amount to his credit in the fund, together with interest thereon, according to rules, till the month preceding the date of transfer of his account shall be transferred to his new account to be opened under the Corporation."18
11. It is in the context of Article 350, Government Orders, the Rules and the Regulations, that we must address the issues, which have been raised before us.
12. The writ petitioners are persons, who were originally appointed in the State Roadways of the State of Uttar Pradesh. Some of them claim to be appointed prior to 1960, or rather 16.09.1960 / 28.10.1960. Some of them have claimed that they have been confirmed and have become permanent. Some of them have claimed that they have been regularised and have become permanent. Many of the others are new entrants in the sense that they have been appointed after the Government Orders of 1960. The Corporation, as already noticed, was formed on 01.06.1972. It appears that they were continuing on deputation and they came to be absorbed with the promulgation of the Rules in the year 1982, or there would have been cases of deemed absorption as provided in the Rules.
13. There was a litigation in the High Court of Allahabad.
We may, at once, advert to the case (Writ Petition Nos. 7728 (SS) of 1996 and 3720(SS) of 2002) of Mirza Athar Beg and Hardwar Singh Rathore. A perusal of the judgment in writ petition would show that Mirza Athar Beg and Hardwar Singh Rathore were two petitioners, who filed writ petitions seeking to pay pension and other pensionary benefits. Mirza Athar Beg was, in fact, on the perusal of the judgment it appears, appointed as Conductor on 01.11.1951. He was promoted as a Junior Clerk in the office of the Assistant General Manager on 07.09.1958. He is regularized against the existing permanent post by order dated 03.03.1961 and, thereafter, he was promoted to the post of Senior Clerk on 08.04.1986 and he retired while working as Senior Clerk on 31.10.1991. Sri Rathore was appointed in October 1966, no doubt. We may notice the following portion of the judgment:
19"The next point, which has been argued by the learned counsel for the petitioners is that the Government Order dated 28.10.1960 cannot be given retrospective application in view of the fact that in the Government Order itself it has been provided that it will take effect from 1.11.1960. The amended Articles 350 and 370 were not given retrospective effect and the effect of the aforesaid Articles were taken into consideration in S.M. Fazil's case. In S.M. Fazil's case the claimant was holding a non-pensionable post and his services were not counted for a certain period as he was holding a non -pensionable period i.e. 19.4.1949 to 1.4.1956. Then a claim petition was filed, which was allowed by the Public Services Tribunal. Thereafter, a writ petition was filed by the Corporation, which was dismissed. This Court while dealing with the amended portion of the Articles 350 and 370 of the Civil Services Regulations held as under :
"The amended Article 350 of the Civil Service Regulations declares all establishments whether temporary or permanent as pensionable establishment but the government was given power to rule otherwise. This amendment was given retrospective effect in words "substituted Articles shall be deemed always to have been so 7 substituted" prior to the amendment of this Article 350 of the Civil Service Regulations. According to the earlier position the nature of the posts whether pensionable or not was governed by the service rules only. In the case of U.P. Government Roadways, which was a department of the government established in 1947, no service rules for any post of any grade, sanctioned in Government Roadways were framed. Therefore, it was not possible at that time to decide whether the post sanctioned by the government in the Government Roadways was pensionable or not due to the absence of the service rules. The Government was regulating the service conditions of every post only by its executive orders. It was only on 28th October, 1960 when the Government for the first time took a decision to declare certain posts of certain level in the Government Roadways Department as pensionable and others as non- pensionable. The G.O. dated 28.10.60 classifies, inter alia, the posts of and above Junior Station In-charge of the traffic side as pensionable and lower posts were declared non-pensionable. Consequently, the post of Assistant Traffic Inspector being lower than the post of Junior Station In-charge was treated as non-pensionable and the opposite parties accordingly discounted the services rendered by the petitioner on the post of Assistant Traffic Inspector. In my opinion, this G.O. of 28th October, 1960 could not apply retrospectively as 20 there is no such indication in the entire government order. On the other hand, the order itself indicated that it would come into operation with effect from 1.11.1960. The employees who were permanent on the post of Assistant Traffic Inspector were also members of the G.P.F. instead of C.P.F. The employees of the pensionable establishment were also members of the G.P.F. In view of the retrospective amendment of Articles 350 and 370 of the Civil Service Regulations the services rendered even in temporary establishment as Assistant Traffic Inspector became pensionable and the Government could not later on change the nature of the establishment from pensionary one to non-pensionable to the disadvantage of the employees who got vested right to the pensionable post. Under Article 370 (1) the continuous service of a temporary capacity or on temporary post followed without interruption by confirmation was countable towards qualifying services for pension and gratuity. The claimant-petitioner was confirmed after rendering continuous service from 19.4.49 to 4.11.56 without any interruption. Therefore, in view of the amended Article 350 of the Civil Service Regulations, read with Article 370(1) the services of the claimant were legally countable as continuous service in pensionable establishment right from the date of his joining as Assistant Traffic Inspector on 19.4.49. Consequently, the order dt. 22.12.92 being contrary to the legal position as enunciated above is not sustainable."
The Division Bench of this Court while considering the effect of Harbansh Pathak's case came to the conclusion that the retrospective amendment in respect of Articles 350 and 370 of Civil Services Regulations and the Government Order dated 28.10.1960 did not arise at all for consideration and was not considered in the said judgment.
The petitioners, who claim themselves to be identically situated take shelter 8 of the aforesaid two decisions and claim to be entitled for the pension.
Since the judgment of Harbansh Pathak's case, which has been heavily relied upon by the counsel for the opposite parties has been distinguished in S.M. Fazil's case, which is a judgment of a Division Bench of this Court at a later period, the same would be binding upon this Court and I do not find to take a different view in this regard. The aforesaid case has also received assent from the apex Court.
21Reliance placed by the counsel for the petitioners on the case of Shri Narain Pandey vs. State of Uttar Pradesh and others ( Writ Petition No.3224 (SS) of 2006) also comes to the rescue of the petitioners. Relying upon Regulation 39 in the said judgment the claim of pension of the petitioner was allowed. In addition to it, the learned Single Judge of this Court also considered the impact of the Rule 4 of the U.P. State Roadways Organisation (Abolition of Post and Absorption of the Employees) Rules, 1982 and came to the conclusion that the incumbent shall be deemed to be absorbed in the services of the Corporation. The case of V.K. Ramamurthy vs. Union of India and another (1997) 1 UPLBEC 439 was distinguished in the aforesaid case, which is sought to be relied upon by the counsel for the Corporation.
Considering the entire facts and circumstances of the case and also the law propounded in the aforesaid cases, I am of the view that the petitioners are entitled for pension.
Both the writ petitions are accordingly allowed. A writ in the nature of mandamus is issued commanding the opposite parties to accord pension to the petitioners with the condition that the Contributory Provident Fund, which has been received by the petitioners, would be returned back by them on the demand of the Corporation."
14. The Court referred to S.M. Fazil's case and took the view that the claimant was not holding a non-pensionable post and the service was not counted and the Court has in fact found as we have already extracted.
15. In the Division Bench, the Bench, inter alia, observed as follows:
"Thus, the respondent was working on a pensionable post with the erstwhile Roadways, when he was sent on deputation to the Corporation and he being a permanent employee of the erstwhile Roadways, his conditions of service remain unaffected and unchanged even on the issuance of the Government order dated 16.9.60, notified on 28.10.60. Therefore, the respondent was fully entitled to the benefit of pension which has been granted by the learned Single Judge."
16. The learned Senior Counsel Sri Arvind Vashisth would submit that the learned Single Judge, in all these cases, has relied on 22 the said judgment and allowed the writ petitions erroneously. The learned Single Judge fell into error as the learned Single Judge did not notice that those, who were holding pensionable posts, alone, in terms of the Government Order, would be entitled to the pension; those, who were not holding pensionable posts, were entitled to Contributory Provident Fund. Having accepted the terms and contributed the provident fund and having received the benefits thereunder, it is not open to them to turn around and seek pension, and that too, when there is considerable delay, which amounts to laches. He would submit that having regard to Article 350 and the power of the Government, after the amendment, to rule that any particular establishment will not give pension and having regard to Government Orders dated 16.09.1960 and 28.10.1960, there could not be any doubt that the learned Single Judge was in error in not noticing that those not holding pensionable posts were not entitled to pension. This is despite the order dated 05.07.1972, which appears to be one of the most important planks of the writ petitioners. The order dated 05.07.1972 will only have the effect of protecting the rights of the government servants, which they possessed and it has declared that those rights will not be intruded into when they were absorbed in the Corporation. This right has, in fact, not been taken away and thus, there were two classes of persons; those, who were holding the pensionable posts within the meaning of 1960 orders; and those who were not holding pensionable posts, their condition of services would not be improved or bettered on their being sent on deputation to the Corporation or on their subsequent absorption in the Corporation.
17. Mr. Arvind Vashisth learned Senior Counsel relied on judgment in State of Mysore and another vs. S.V. Narayanappa reported in AIR 1967 SC 1071 and contended that regularisation cannot be treated as conferring permanence. Relevant paragraph 8 of the judgment reads as follows:
"(8). Before we proceed to consider the construction place by the High Court on the provisions of the said order we may mention that in the High Court both the 23 parties appear to have proceeded on an assumption that regularization meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularizing the appointment and no more and that regularization would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularization with permanence."
18. Per contra, the case of the learned counsel for the writ petitioners appears to be as follows:
The Government Orders of 1960, which were relied on by the Corporation, were not notified or gazetted. It is contended by Sri B.D. Pandey, who appears in six Appeals and in whose cases, admittedly, all the writ petitioners have been appointed after 1960 and therefore, are new entrants within the meaning of the Government Order dated 16.09.1960 that they would make an option only when they were confirmed. He would also contend that there was a government notification issued on 19th June, 1981, which reads as follows:
"GAZETTE NOTIFICATION, UTTAR PRADESH Published by Government of Uttar Pradesh Vidhai Parishisht Part-4 Volume -B Control Order Lucknow, Friday, 19th June, 1981 U.P. Government Transport Department-2 No. 3715/30-2-1981 Lucknow 19th June, 1981 Notification 24 Miscellaneous P.Aa. - 262 In exercise of power under Section 45 (2) (C) of Road Transport Corporation Act, 1950 (Central Act No. 64 of 1950) and in supersession of all the prevailing Rules and Orders, the U.P. Road Transport Corporation having taken sanctioned from State Government for regularisation of the employees of U.P. Road Transport Corporation makes the following rules and publishes the same in the official gazette:
Uttar Pradesh State Road Transport Corporation Employees (Other Than Officers) Service Rules, 1981.
Part-One General 1-(1) This Rules will be called as Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service Rules, 1981.
(2) This will come into force from the date of its publication.
2- These rules will be applicable on all employees (other than officers) except the employees who are working -
(1) On deputation.
(2) On Contract
(3) Part time,
But Clause 4 will be applicable on the employees who were working in U.P. Government Roadways Department under the Service of State Government and were appointed in the corporation on deputation by Government Order No. 3414 / 30-2-170 N 72 dated 5th July, 1972.
Comments- The employees working on deputation will be controlled and governed by the rules and regulations of their parent departments and employees 25 working under contracts will be controlled and governed by the terms and conditions of contract.
3- Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service is a service which includes group C and D posts.
4- (1) (One)- The employees who were working in the U.P. State Roadways Department as State Government Employees shall intimate to the competent officer or any other authority who would be appointed by Chief Manager in this regard, that as to whether they want to continue to be in the service of corporation or not within one month from the date of this rule.
(Two)- In case these employees opt for the service of Corporation their service condition and contract would be controlled under the provisions of Government Order No. 3414/30-2-170 N 72 dated 5th July, 1972.
Comments- Copy of the Government Order is enclosure-1.
(Three)- In case these employees do not opt for the service of the Corporation and in case they fail to opt, their service will come to an end treating the post to be abolished on the basis of last come firs go.
2- (One)- Present employee who do not come under Sub Rule 1 or those who have not given exemption under Sub Rule 2, shall informed within one month from the date of these rules to appointing authority or any other authority appointed by Chief Manager in this regard, as to whether they want to be controlled by this Rule or not."
19. Relying on the words "in supersession of all prevailing Rules and Orders", it is sought to be contended that this notification had the effect of sweeping under the carpet, the orders of 1960, which is relied on by the Corporation. Furthermore, with reference to Rule 8 26 of the Rules, it is contended that the same has the effect of creating a right to pension in favour of all those employees, who stood absorbed with the Corporation, irrespective of the earlier Government Orders of 1960. It is further contended by Sri B.D. Pandey that in the case of Mirza Athar Beg, no doubt, appointment had been prior to 1960, but the Court may not over look the fact that the other petitioner was appointed after 1960, still the Allahabad High Court granted relief. He would point out that there are many cases, where the employees of the Roadways, who went on deputation and who were not permanent employees under the 1960 Orders were still given benefit of pension. There is discrimination. He would submit that the Special Leave Petition preferred against the judgment in the case of Mirza Athar Beg proved unsuccessful and, therefore, it received the seal of approval from the highest Court. He would also submit that actually, the liability is that of the State of Uttarakhand and the appellant Corporation does not have the locus standi.
20. Sri M.C. Pandey, learned Senior Counsel appearing in Special Appeal No. 57 of 2014 would submit that actually his case is slightly different. In his case, the writ petitioner was appointed on 08.02.1951 and the complaint in this case relates to the period for which he is entitled to pension and there is no dispute that he is holding a pensionable post. The period between 08.02.1951 to 21.07.1952 has not been considered in reckoning of the pension.
21. In the judgment of the learned Single Judge of this Court, from which, certain Appeals have been filed, the learned Single Judge has primarily found that the writ petitioners are afflicted with the vice of laches as they have woken up after a long number of years and have approached the Court with laches, and it is also found that they do not appear to have case on merits.
22. There is a case for Sri Kurban Ali that Article 350 was amended in 1977 and that even persons appointed after 1960 are entitled to pension. The original government order of the State was 27 not produced is the another argument. There is no declaration under Article 350.
23. Sri Yogesh Pacholia, with reference to his written submissions filed by the respondent-writ petitioner before the learned Single Judge, would advert to, among other aspects, the contention that he was appointed earlier than the Government Orders on the pensionable post and they could apply only to those, who were appointed after the Government Order. This is besides his contending that it was not notified. Vested right cannot be taken away by a subsequent legislation. There are vested rights, which could not be taken away. There were two sides, namely, the traffic side and office establishment in the State Roadways. The post of Clerk, whether in traffic side or office establishment was pensionable, but after issuance of the Government Order, the post of Clerk working in the office establishment was made pensionable and the post of petitioner, who retired as a Booking Clerk from the traffic side was made non- pensionable. Therefore, the Government Orders are stated to be totally illegal and discriminatory.
[We may, at once, notice in this regard that though such a contention was raised, the Government Orders are not challenged.]
24. Merely because the petitioners took the benefit of CPF, they could not be ineligible for pension, it is contended.
25. There is a contention raised by Sri B.D. Pande that there is a Government Order of 1st July, 1989, as per which, if certain number of years are spent, they will be entitled to pension and the orders of 1960 would not survive.
26. As already noted, there was a Government Department in the undivided State of Uttar Pradesh known the State Roadways Department. Whether permanent or temporary, all establishments were pensionable in terms of Article 350 of the Regulations. To us, it would appear that the Government in regard to the State Roadways Department decided to bring about changes and the combined effect 28 of the orders dated 16.09.1960 and 28.10.1960 would appear to us to be the following:
Those, who were working as permanent employees in the office establishment of Assistant General Manager, Service Managers, Chief Mechanical Engineers, Roadways, Central Workshop Kanpur and Headquarter Office, Supervisory Staff of the rank of Junior Station Incharge and above on the traffic side, were declared to be the pensionable establishments. With specific reference to Note 3 to Article 350, which embodies the powers of the Government to rule that any establishment to be not pensionable, it was ordered that the rest of the permanent non-gazetted employees both in the traffic and engineering sections of the organisation would be treated as non- pensionable, referred to above. Those persons, however, will be entitled to provident fund benefits in accordance with the provisions of the employees provident fund. The persons, who were either temporary or not made permanent and besides those, who were working as permanent even in the establishments, which we have referred to, other than the establishment, which we have enumerated, would not be entitled to pension. This in substance is the purport of the Government Orders. There is no dispute that in none of these cases, the Government Orders are challenged. On the basis of these Government Orders, several persons were sent to work on deputation in the newly formed Corporation. This Corporation came into being in June, 1972. As already noticed, the earlier Government Order issued on 19.06.1972 was amended and modified, which we have adverted to already.
27. Whether the Government Order dated 05.07.1972 creates an indefeasible right to pension? The purport of the Government Order dated 05.07.1972, in our view, is that it purports to hold out that the service conditions of those employees, working on deputation with the Corporation, will, on their absorption, not be less favourable than they were entitled to, as and when they were working on deputation with the Corporation. In other words, to make it more clear, if the employee concerned was working in a pensionable post in terms of 29 the 1960 orders, he would be entitled to pension and that right could not be taken away; whereas it did not give any right to a person, who was occupying a non-pensionable post to claim pension when the absorption would take place.
28. Moving on to the Regulations of 1981, Regulation 39(1) expressly makes service in the Corporation non-pensionable. This is subject to the exception carved out in Sub Regulation (2) of Regulation 39. Sub Regulation (2) of Regulation 39 relates to those former employees of the State Roadways, who were covered by the order dated 05.07.1972. The employees, who have opted to serve in the Corporation, will be entitled to pension in terms of the order dated 05.07.1972. In Regulation 4, the employees of the erstwhile Roadways Department, who were placed on deputation (it must be noted that these employees would be placed on deputation), were obliged to make their option known. We will come to the Rules in a little while from now. The purport of the Regulation, which was enacted in the year 1981, was to see that the obligation of the Government ended and they would be, on absorption, treated as employees of the Corporation and would cease to be the employees of the State Government. Regulation 4 provides that he would be absorbed with effect from the date as provided in the Absorption Rules. The proviso is significant. What the proviso purports to provide is that the terms and conditions of the service of the employee absorbed in the Corporation will be governed by the Regulations. This is, however, subject to two riders and they are the Government Order dated 05.07.1972 and the Rules. In other words, the terms and conditions will be governed by the Regulations subject to the Government Order dated 05.07.1972 and anything that may be contained in the Rules. We have already noticed that under the Regulations, the parties are not entitled to pension as the employees of the Corporation are not entitled to pension and the exception is, however, carved out for the employee of the State Roadways, who have opted to serve in the Corporation and they would be entitled to pension in terms of the order dated 05.07.1972.
3029. Moving on to the Rules, the Scheme of the Rules appears to be as follows:
The Rules were gazetted on 28.04.1982. They came into force at once. In Rule 3, it is provided that these Rules are to apply to those employees, who were working on deputation with the Corporation. More significantly they were to have effect notwithstanding anything to the contrary contained in the rules, regulations or order. Under Rule 4, an employee of the Corporation, placed on deputation and who did not wish to be absorbed, was to give his option that he did not wish to be absorbed within a period of three months from the notification of these Rules. Every other employee, who did not give such an intimation, was deemed to have exercised his option for absorption and thus became absorbed; he stood absorbed on expiry of three months from the date of notification of these Rules. There was a simultaneous abolition of posts contemplated with the absorption of the employees in the Corporation vide Rule 5. Any employee, who did not wish to be absorbed, stood in danger of having his services terminated depending on his position being a permanent employee or a temporary employee by different periods of notice as provided therein. Rule 7 provides that where an employee is absorbed, it will not entail forfeiture of his past services and the provisions of any rules or regulation to the contrary shall stand relaxed. Rule 8 deals with the consequences on absorption in the Corporation. The consequences mentioned are in regard to his services under the Government. Rule 8(2) contains a declaration that the Government, which has been defined as the Government of Uttar Pradesh (and having regard to the State Reorganisation Act, it will be applicable to the State of Uttarakhand, wherever applicable) who was to bear the liability for pension. Thereafter, a bracket opens, which provides that it does not include family pension. Thereafter bracket closes. There is a 'comma' after the bracket and the words that follow are "the gratuity". Again another bracket opens and the words "if admissible to an employee" figure before the bracket closes and it is followed by another 'comma' and the words thereafter are "in 31 proportion to the qualifying service in the Government rendered by an employee before the date of his being placed on deputation with the Corporation". As far as the family pension is concerned, it is to be borne by the Corporation. The case of Sri Arvind Vashisth is that Rule 8(2) does not create any new right to pension, where it was not there. All that it does is, it provides for sharing of the liability. As already noticed, Rule 8 itself is concerned with the consequences in regard to the services under the Government. Therefore, it substantially relates to the service rendered by an employee prior to his absorption with the Corporation. It means, therefore, that in regard to such service rendered after being absorbed in the Corporation, the Government will have to bear the liability of the pension of the employees. The entire liability of the family pension has to be borne by the Corporation. Government is also to bear the liability for the gratuity. The submission of Sri Arvind Vashisth appears to be that the words "if admissible to an employee" qualifies both the word "pension" and the word "gratuity". In this context, he would draw our attention to certain litigation, which took place in the High Court of Allahabad.
30. Sri Arvind Vashisth, learned counsel would refer to the judgment in State of U.P. and another vs. Roadways Ministerial Staff Association, U.P. and another reported in (1996) 9 SCC 479. We notice that the Hon'ble Apex Court after considering the Rules, held as follows:
"A bare reading of these Rules clearly indicates that a Government employee who was sent on deputation and who does not wish to be absorbed in the service of the Corporation was required to intimate within three months from the notification of these Rules to the Government in the Transport Department that he does not wish to be so absorbed in the Corporation. If he fails to avail of that remedy, the Rules envisage that he shall be deemed to be absorbed as a Corporation employee, Admittedly, none of the persons had exercised the option. As a result, by operation of Rule 5, the employee is deemed to have opted for absorption in the service of the Corporation, in accordance with sub-rule (2) of rule 14 from the date of expiry of three months from the date of the notification of the Rules. The consequence envisaged in Rule 8(ii) is 32 that the Government shall bear the liability for pension which does not include family pension and for gratuity, if admissible to an employee, in proportion to the extent of the period of service with the Government rendered by an employee before the date of his being placed on deputation with the Corporation. The entire Liability for the family pension shall be borne by the Corporation. It would thus be clear that the three months' cut off period given under the Rules from the date of the publication of the Rules is the appropriate and reasonable cut off period. Any employee who failed to avail of the same, by giving notice to the Secretary in Transport Department that he did not wish to be absorbed as Corporation employee, must be deemed to be an employee of the Corporation. Corporation, therefore, is liable to bear the liability of a deemed employee from the date mentioned in Rule 8(ii) read with Rule 4(2) and Rule 5 thereof. Resultantly, such employees are not entitled to cont the period from the date of the deputation till date of absorption to be the Government employee for computation of the pensionary benefits in their favour."
31. The Court, of course, was not concerned with the question as to whether the word "pension" is also qualified by the words "if admissible to an employee". The Court was also not concerned with the question as to whether the Government had created a new right of pension, despite the orders holding the field. Sri Arvind Vashisth, learned Senior Counsel also relied on Rule 8(3), which purports to provide that in respect of an employee, who did not hold any pensionable post, but was a member of an Employees Provident Fund Scheme, the liability for contribution required to be made by an employer, for the period prior to 1-6-1972 shall be of the Government and with effect from 1-6-1972, it will be that of the Corporation.
32. Sri Arvind Vashisth, learned Senior Counsel relied on the judgment in the case of V.K. Ramamurthy vs. Union of India and another reported in (1996) 10 SCC 73, where the Court was concerned with a Railway employee not opting for pension despite six chances and deliberately chose to continue in the Provident Fund Scheme. The Court took the view that the employee was not entitled to exercise his option to come over the pension scheme. In the course 33 of the judgment, no doubt, the Court did observe that under the Contributory Provident Fund Scheme, the employees would get in lump sum, which they were at liberty to invest in a manner that would yield optimum return and that relation would come to an end on their retirement in the case of Contributory Provident Fund, but that was not the case under the Pension Scheme.
33. In our view, though it is true that the Rules would have effect under Rule 3, notwithstanding anything to the contrary contained in any rules, regulations and order, the fair interpretation to be placed would be that by Rule 8(2), it was not intended to create a new liability with the Government in respect of those employees of the Corporation, who were previously employees of the Roadways Department, who were not having a right to pension. We notice that in Rule 8(2) itself, the liability is to be in proportion to the qualifying service in the Government. There cannot be a qualifying service, if the service itself is not pensionable. This is one indication.
34. It is quite clear that the Government, having regard to the exigencies of service in the Road Transport Corporation, wished to invoke Article 350 of the Regulations. It is clear that it has expressly referred to Article 350 and ruled that certain posts are pensionable and certain posts are not pensionable. In regard to the posts, which are made pensionable, it has been made with reference to the incumbents themselves as in the order dated 28.10.1960 what is mentioned is that permanent gazetted and non-gazetted incumbents in the three categories would be entitled, and excluding them, even permanent non-gazetted employees in the traffic and engineering sections are expressly treated as non-pensionable posts. We must notice at this juncture that there is no pleadings available before us by any of the petitioners specifically claiming that they are included within Paragraph 1 of the order dated 28.10.1960. If there is no one, who falls within these categories, it is quite clear to us that neither the order dated 05.07.1972, nor the Regulations and the Rules will clothe them with the right to stake a claim for pension. There is no dispute, 34 in fact, that all of them have been contributing their share to contributory fund, which was vouchsafed for them, who were not holding pensionable post. No doubt, the Allahabad High Court and also the learned Single Judge, in the judgment impugned by the Corporation, have directed that they would be entitled to pension on their refunding amounts, which they have collected under the Contributory Provident Fund. This is another indication that all the parties have proceeded on the basis that they would not be entitled for pension as they were not holding pensionable posts and they would instead be entitled to Contributory Fund in terms of the Government Orders.
35. Ripe it is now for us to address the argument that the orders were not notified. At this length of time, we do not think that we should even permit them to contend that these orders were not notified. It is apparently on the strength of these orders that all of them have not only been not given pension and what is more important they have been contributing under the Contributory Provident Fund Scheme. Secondly, we would have to presume that official acts are done in accordance with law. According to Sri Arvind Vashisth, where notification was needed, it has been notified. We notice that even in the judgment relied on by the petitioners, namely, the Bench decision of the Allahabad High Court in Mirza Athar Beg's case, the Court has held that the learned Single Judge has considered the Government Order dated 28.10.1960 and the Government Order dated 16.09.1960 was notified on the said date and that the contents of the aforesaid two orders are the same.
36. As far as the order dated 05.07.1972 is concerned, we only would think that it contains a promise that the condition will not be less favourable than it was already for those, who were on deputation, when they would be absorbed. This promise has not only not been breached, but it has been incorporated in a statutory provision as we have noted in the proviso to Regulation 4 of the Regulations, which we have extracted. The order dated 05.07.1972 35 does not go further and do away with the effect of the 1960 orders. If the petitioners were holding non-pensionable posts in terms of the 1960 orders, things did not improve with the issuance of the order dated 05.07.1972. We have already discussed the effect of the Regulation and the Rules and we have concluded that the Rules, in particular Rule 8 does not purport to create a right to pension, when it was not already there. Rule 8 only purports to bring about the sharing of liability of the benefits. Insofar as the pension and gratuity are concerned, they were to be borne by the Government, whereas in respect of the family pension, it had to be borne by the Corporation, but merely declaring the sharing of liability, we cannot possibly hold that the persons, who were not entitled to pension in terms of the 1960 Government Orders, they are also embraced within the scope of persons, who were entitled to pension. As regards the contention of Sri B.D. Pandey that the judgment in Beg's case evidenced grant of relief to even those persons, who were appointed after 1960, we are called upon to pronounce on the interpretation of the orders, the effect of the Regulations and Rules and the entitlement of the parties to pension. We would think that the interpretation, which has been placed by the learned Single Judge of this Court, commends to us as the reflection of the correct position of law and facts, which we endorse.
37. We have seen that the learned Single Judge of this Court in the Appeals (Special Appeal Nos. 435 of 2015, 434 of 2015, 440 of 2015, 439 of 2015, 436 of 2015, 433 of 2015, 432 of 2015, 431 of 2015, 432 of 2015, 437 of 2015, 438 of 2015, 441 of 2015, 442 of 2015, 443 of 2015, 460 of 2015, 462 of 2015, 548 of 2015, 551 of 2015, 552 of 2015, & 569 of 2015) has taken the view that there was large delay and if the relief is granted, it will create disturbance and problems for the employer. Laches is a question to be decided on the facts of each case. Delay of a few hours or a day may be fatal. Delay is not circumscribed by a limitation based on time as it is an extra ordinary jurisdiction as much as it is a discretionary jurisdiction and it is the facts, which will ultimately decide the fate of each case. No 36 doubt, when the person approaches the Court after three years, which is a period of limitation for a civil Suit, ordinarily, the writ petition must not be countenanced, but it is not as if claims by persons belonging to the economically weaker sections, in particular, have not been entertained beyond this period of three years and there have been cases, where even after the expiry of several years, Courts have granted reliefs. The claim for pension is a recurring claim. In some situations, the Courts have moulded relief by limiting the benefit of three years prior to filing of the petition. It may be true that there is a financial chaos that may be introduced by the Court interfering highly belatedly. The other side of the picture is right to pension is a part of right under Article 21 and because it is intricately intertwined with the right to life as in the evening of his life, an employee must necessarily look to pension as the only source of support; it is what sustains the employee and his family members. We make these observations to only express the view that had there been merit also in the case of the writ petitioners, the mere fact that they approached the Court with delay may not have detained us. No doubt, delay is an important aspect, which the Court must bear in mind.
38. Regarding the contention of Sri Yogesh Pacholia, it appears that the order dated 1st July, 1989 relates to pensionable posts. It only provides for criteria for computation of pension to pensionable posts for those who have not been made permanent. Therefore, the said order may not assist the party.
39. We may sum up our conclusions. Prior to the 1960 orders, quite clearly, the service in the State Roadways, which was a Government Department was pensionable having regard to the terms of Article 350 of the Regulations, irrespective of whether the person was holding a permanent post or a temporary posts. Apparently, having regard to the felt necessity, the Government invoked its power under Article 350 and decided to rule that only certain posts were pensionable and other posts were made non-pensionable; new service conditions were introduced, which were applicable to the temporary 37 staff and also to the new entrants. These Government Orders are not in challenge before us in any of these writ petitions. Therefore, we must take these Government Orders as embodying the terms and conditions of the employees, who were governed by them. These employees were made over to the newly formed Corporation. They worked on an arrangement of deputation. Some of them were continuing on pensionable posts. Those, who were continuing on pensionable posts, were given a promise vide order dated 05.07.1972, that on absorption, there conditions would be no less favourable than what they were already enjoying. This did not mean the reverse would also be true, namely, that those, who were not having the benefit of pension will be entitled to a superior right on their being absorbed. It only meant maintaining of the position of status quo, which was obtaining as on the date. For ascertaining the position of status quo, we must necessary travel back to the orders of 1960, which we have already done. These conditions were reflected in the Regulations of 1981, in Regulation 4 that we have noticed. With the Rules, the method and the date of absorption of these employees into the Corporation and the abolition of the posts in the Government was announced expressly. The liability of the Government and the Corporation qua the period prior to absorption and after absorption was apportioned by way of Rule 8. Rules did not, however, purport, in our humble view, to undo of Government Orders of 1960. In other words, those, who were holding pensionable posts in terms of 1960 orders and who were also absorbed in the Corporation were entitled to pension. Those, who were declared as not holding pensionable posts, including temporary staff and new entrants did not become entitled to pension. This position was not altered by any procedure known to law. Therefore, they are not entitled to pensionary benefits.
40. As regards the argument of Sri B.D. Pandey that there is no locus standi with the Corporation to file this Appeal, apparently the position appears to be that there is sharing of liability between the Uttarakhand Transport Corporation and UPSRTC.
3841. Regarding the contention that the Corporation cannot maintain the Appeal, it transpires as follows:
Under the State Reorganisation Act, 2000 and the allocation of the liability, it appears that for those employees, who retired after 2003, the successor Corporation will pay (provided they were holding the pensionable posts), in regard to those, who retired prior to 2003, it is the Corporation, which is liable, but the learned Senior Counsel for the Corporation would point out that the learned Single Judge has in fact given direction to the UPSRTC, but now we found that the Corporation is not liable to pay pension.
42. In Special Appeal No. 6 of 2015, the appellant is Uttarakhand Transport Corporation. The issue is the same and it appears that the writ petitioner was appointed in 1972.
43. Therefore, having regard to the above discussion, we dispose of the Appeals as follows:
In Special Appeal Appeals Nos. 56 of 2014, 57 of 2014, 58 of 2014, 59 of 2014, 60 of 2014, 105 of 2014, 431 of 2015, 433 of 2015, 437 of 2015, 440 of 2015, 442 of 2015, 460 of 2015, 462 of 2015, 548 of 2015, as being cases of the persons, who claim to be appointed prior to 1960, we direct that the Corporation will look into their records and ascertain whether they are permanent employees in terms of the 1960 orders and if they are permanent employees in terms of the Government Orders and as explained by us, they will be granted pensionary benefits on condition, of course, that they will return benefits of Provident Fund, which they already claimed and which was disbursed to them. They will not be entitled to interest as they are also agreeable for amount being returned without interest.
They will also not be liable to pay interest and they will also not claim interest. This exercise should be completed by the Corporation within a period of four months from the date of receipt of a certified copy of this judgment. In Special Appeal No. 57 of 2014, the issue relates to the period a little more than a year. Since he is already being paid pension and only the question is whether he is entitled to count certain 39 period, namely, period between 08.02.1951 to 21.07.1952, we direct that the respondent will consider the same and take a decision within a period of two months and communicate the same to the employee.
The other Appeals, which arises from the judgment of Hon'ble Justice Sudhanshu Dhulia, will stand dismissed. The other Appeals by Mr. Arvind Vashisth and Mr. Ashish Joshi will stand allowed and the writ petitions will stand dismissed. Appeal No. 57 of 2014 will stand disposed of.
(U.C. Dhyani, J.) (K.M. Joseph, C.J.)
10.01.2017
Rathour