Court No. - 34
Case :- WRIT - A No. - 32571 of 2015 Petitioner :- Brij Kishore Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- M.R. Gupta Counsel for Respondent :- C.S.C.,S.K. Mishra
Hon'ble Yashwant Varma,J.
Heard learned counsel for parties.
This petition has been preferred seeking the following reliefs:-
"Issue a writ order or direction in the nature of mandamus directing the respondents to pay the pension to the petitioner in accordance with law in the light of the judgment dated 10.9.2014 passed in special appeal no. 780 of 2013 (Uttar Pradesh State Road Transport Corporation and others Roadways Karmchari Sanyukt Parisad and another) along with interest.
Issue a writ order or direction in the nature of mandamus directing the respondents fixing the pension according to the pay commission 1997-99 in view of the Government Order dated 7.10.2003."
Insofar as the reliance placed by the petitioner on the decision of the Division Bench in Special Appeal No. 780 of 2013 [Uttar Pradesh State Road Transport Corporation And Another v. Roadways Karmchari Sanyukta Parishad and Another] is concerned, undisputedly no benefit would flow to the petitioner therefrom in light of the following facts. Admittedly the respondent Corporation came to be constituted on 01 June 1972. The petitioner was appointed with the respondents on 05 February 1979. The judgment of the Division Bench in Roadways Karmchari Sanyukta Parishad was dealing with the claim of those employees who were earlier working in the Roadways Department of the State Government and came to be absorbed in the Corporation. Dealing with their claims for benefit of past services being taking into consideration, the Division Bench observed as under:-
"From the aforesaid rules and Government Orders, it is crystal clear 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 terms of Government order dated 5.7.1972. It is found that Government 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. Under the conditions of the 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."
Notwithstanding the above and bearing in mind the fact that the petitioner does not owe his appointment to any previous service rendered under the Department of the State, the judgment of the Division Bench does not come to his aid.
That leaves the Court to consider the second relief which is prayed for namely of fixation of pension according to the report of the Pay Commission. The Court takes note of the defence set up in the counter affidavit with the Corporation specifically averring that the petitioner was appointed on and superannuated from a non-pensionable post. That assertion in the counter affidavit is not controverted in the rejoinder affidavit which is filed. The attention of the Court has not been drawn to any material which may establish that the post occupied by the petitioner under the Corporation was pensionable and would warrant the grant of the relief as claimed.
In view of the aforesaid, the writ petition fails and shall stand dismissed.
Order Date :- 22.9.2021 Faraz