1. On the last occasion, the Court had passed the order directing the counsel for Corporation to bring on record the letter dated 27.10.1982 which has been referred to in the impugned order.
2. Learned counsel for the petitioner states that in spite of repeated approach to the authorities concerned, he has not been supplied copy of letter dated 27.10.1982.
3. Having heard learned counsel for the parties and having perused the record and having gone through the various pleadings raised, I do not consider it worth necessary to examine the letter dated 27.10.1982, more particularly in the face of regulations framed by the Corporation and the Government Order by which the Corporation came into existence with the absorption of erstwhile U.P. Roadways.
4. The case of the petitioner in the instant writ petition is that the petitioner though having retired from the post of Senior Station Incharge which is a pensionable post admittedly under the Corporation, the petitioner is being denied pension by the impugned order passed by the Regional Director, Moradabad dated 21.04.2004. It is admitted position to the parties that the petitioner was member of erstwhile U.P. Roadways and his service conditions with regard to pension and other service benefits etc. were duly governed under the Government Order 28.10.1960. From the perusal of Government Order dated 28.10.1960, it is clear that the post falling in the rank of Junior Station Incharge and above supervisory staff on the traffic side were covered with pensionary benefits. For the necessary reference, paragraph 1 of the Government Order dated 28.10.1960 as an extract is quoted hereunder under:
"Subject: Declaration of the permanent posts in the Roadways Organization as pensionable.
In continuation of G.O. No.3014D/XXX-135-V/1959 dated 16.9.1960, I am directed to say that the question of declaring the permanent posts in the Roadways organization (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 com Pension Rules:-
(a) The employees working in the Office establishment of the Asst. General Manager, Service Managers, Chief Mechanical Engineer, Roadways Central Workshop, Kanpur and the Headquarters Office of the Transport Commissioner.
(b) Supervisory staff of the rank of Junior Station Incharges and above on the Traffic side.
(c) Technical Staff of the rank of Junior foreman and above on the engineering side."
5. When the U.P. State Roadways came to be formed as U.P. State Road Transport Corporation vide Government Order dated 07.06.1972, a saving clause was provided for as Clause No. 4 in the said Government Order which saved the service condition, seniority, gradation, pay scale, promotion and retiral dues etc. applicable to the employees of the erstwhile U.P. Roadways even after their continuance as employees of U.P. Road Transport Corporation. Paragraph no. 4 of the Government Order dated 07.06.1972 is reproduced hereunder:
^^mDr lafoyh;u dh ,d vfuok;Z 'krZ ;g gksxh fd fuxe ds v/khu budh lsok 'krsZa fdlh Hkh n'kk esa mu 'krksZa ls gs; ugh gksxh tks bUgsa lafoyh;u ls Bhd iwoZ ljdkj ds v/khu miyC/k gksa] rFkk budk ljdkjh lsok dky fuxe ds v/khu budh ojh;rk] izuksUufr] osru fu/kkZj.k vodk'k lEcU/kh gd rFkk fuo`fRrd ykHkksa ds fy;s mlh izdkj fopk;Z gksxk tSlk fd og ljdkjh lsok esa gh cus jgus ij gksrkA^^ "The compulsory condition of absorption is that service conditions of such employees under the Corporation would not be less than what were there immediately before the absorption and their service period for the purposes of seniority, promotion, pay fixation, right to leave and retirement benefits, shall be reckoned with as would have been reckoned while in service of the government."
(Translated by Court)
6. Thus, the argument advanced by Shri Pramod K. Sinha, learned counsel appearing for the petitioner is that if the petitioner was entitled for the promotion even as a member of erstwhile U.P. State Roadways, those avenues were still available to the petitioner by virtue of saving clause of Government Order dated 07.06.1972 and in an ordinary course of employment he would have acquired the promotional post of Station Incharge which was very much pensionable under the Government Order of 1960 (supra). The next contention raised on behalf of the petitioner is that the earlier Government Order, 1972 continues to occupy the field governing service conditions of the petitioner to certain extent even though he is member of service under the U.P. State Road Transport Corporation and even if he, as an employee and member of service of Corporation, was promoted firstly as Junior Station Incharge in 1986 and then again on 02.07.1996 as Senior Station Incharge from the post of Junior Station Incharge, he shall be entitled to pension as both the posts were pensionable under the U.P. State Roadways. Thus, according to him, respondents are clearly at fault in denying him such benefit only on the ground that on the date of coming into force of Service Regulation in 1981, he was working on a non-pensionable post.
7. Per Contra Learned counsel for the respondent Sri M.M. Sahai vehemently argued that very framing of service regulations governing the service condition in 1981 provides that all earlier orders regarding service conditions stand superseded and since no further saving clause provided in the U.P. State Roadways Organization (Abolition of Post and Absorption of Employees) Rules, 1982, the petitioner will be no more entitled to any such benefit as was admissible to him prior to 1982.
8. U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981 (hereinafter referred to "Regulations, 1981") were framed and took effect vide gazette notification dated 19th June, 1981 governing service conditions of employees of the corporation. Regulation 4 of the Regulations, 1981, however, came to be substituted vide notification No. 4259/XXX-2-1146-N-79 27th August, 1982, which reads 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 Organization (Abolition of Posts and Absorption 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 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 rule 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 auditory or such authority as the General Manager may inn this behalf appoint whether or not they want to be government 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, inn 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.
9. The very perusal of the proviso of regulation 4(1) (supra) shows that the employees of erstwhile U.P. Roadways were continued to with the benefits of the Government Order, 1972 even after coming into force of the Regulations, 1981. Meaning thereby, service conditions of such employees who were on deputation with corporation under the Government Order of 1972, were continued to be the same. Right to promotion is one such service benefit clearly spelt out in the Government Order of 1972 and for such other service benefits which will include pension also, such employees were to be treated in the same fashion as they would have been treated while under the employment of the State Government.
10. The arguments advanced by Sri M.M. Sahai, learned counsel for the respondent corporation therefore do not stand to reason that after coming into force of the Regulations, 1981, the State of employees stood merged with the new Corporation; they became its employees and, therefore, all the service conditions applicable to the employees would compulsorily apply to them, even while proviso to Regulation 4(1) saves service conditions of erstwhile employees of U.P. Roadways .
11. The regulation 4(2) is in respect of other employees who are not covered by sub-regulation (1) and are not exempted otherwise under sub-regulation (2). This in the opinion of the court is a reasonable classification. After coming into force of Government Order, 1972 and with the new corporation coming into existence in the year 1972, there could be employees who were appointed under the corporation and since the service regulations came to be enforced for the first time in 1981 with notification thereof on 19th June, 1981, the employees directly appointed under the corporation, were required to be governed under the new regulations. The option was permitted to them to be exercised so as to continue with employment under the corporation, failing which, their services were liable to be terminated as any other rule governing service conditions stood rescinded by virtue of sub-clause (ii) of Regulation 4(2) of the Regulations, 1981 of course, to the extent of their being inconsistent with Regulations, 1981.
12. The service conditions of the erstwhile employee of U.P. Roadways with regard to their pensionary benefits etc. since were continued under the Government Order of 1972, those conditions of employment including pension came to be saved as well.
13. Regulation 39 of the regulations, 1982 deal with pension and other retirement benefits. Provision reads as under:
"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).
(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 :--
(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."
14. From bare reading of the provisions (supra) it clearly bornes out that there will no pension admissible to employees of the corporation however, by virtue of clause (ii) of the Regulations employees of the erstwhile U.P. Roadways were made entitled to pension and other retirement benefits in terms Government Order dated 5th July, 1972. Sub Regulation 2 of Regulation 39 further conferred other post retirement benefits to the employees of the erstwhile U.P. Government Roadways department apart from the pensionary benefits that they would draw under Clause (ii) of Regulation 39(1). If paragraph 4 of the Government Order dated 05.07.1972 which has been saved under the Regulation 1981, Regulation 4(1) and Regulation 39 (1 and 2) of the Regulation 1981 are read together, three principles undisputedly clearly emerge:
a). The employees of the U.P. State Roadways at the time of creation of U.P. State Road Corporation though were absorbed but their seniority, promotion, pay-scale and other post retirement benefits were continued as they would have enjoyed while in service of U.P. State Roadways;
b). Even while the regulations 1981 governing service conditions of the employee of the erstwhile U.P. Roadways were framed and made effective vide notification dated 19th June, 1981, in respect of employees of erstwhile U.P. State Roadways, the exception was carved out in favour of such employees so as to continue them with entitlement of such benefits as were conferred upon them under the Government Order 5th July, 1972; and
c) The regulation 39 which denies pension to the employee of the corporation again carved out exception in favour of the employees of the erstwhile U.P. State Roadways absorbed with the Corporation.
15. Now testing the order impugned on the above three principles that have emerged from the Regulations 1981, I find that the respondents have not taken note of the first proviso to regulation 4(1) and clause (ii) of Regulation 39(1). Reason assigned in the impugned order is pensionary benefit as has been continued in respect of the employees of the State Government who opted for the service of the corporation and who were on pensionable post as on 27th August, 1982, will only be entitled for pension. This in my opinion is misreading of the first proviso to regulation 4(1) of the Regulations, 1981. Once clause 4 of the Government Order 1972 entitles the employees of the erstwhile U.P. Roadways to continue with service benefits including promotional avenues which they would have otherwise attained under the Government, the Government Order, 1972 continues to form part of the service conditions of such employees. The promotion of the petitioner is clearly referable to the Clause 4 of the Government Order of 1972. Since Government order dated 28th October, 1960 makes the post in question pensionable and pensionary status has been saved under the Regulations, 1981, I am of the considered opinion that these positions continue to be pensionable in so far as the employees of the erstwhile U.P. State Roadways are concerned even if they came to absorbed with the Corporation. The Sub clause (ii) of Regulation 39(1) under the Regulations, 1981 in my opinion, as already discussed above, correctly carves out a class of such employees as separate from the other employees of the corporation and object behind is to protect the interest of such employees who were earlier government employees and were entitled to to such service benefits as were admissible to them while working under the Government.
16. The petitioners' promotion is no exception. if he is promoted after enforcement of Regulations, 1981 the promotional avenues were available to him under the Government Order 1972 saved under Regulation 4(1) of the Regulations, 1981. for the purposes of service conditions and service benefits of the employees of the erstwhile U.P. State Roadways. Post continued to be promotional as well pensionable post even after coming into force of Regulations, 1981 in respect of such employees.
17. The Supreme Court in Parshottam Lal Dhingra v. Union of India AIR 1958 SC 36 held that condition of service, though can be altered on the 'Principles of Pleasure', they cannot be ignored so long as they are in force and therefore, since the service conditions of the erstwhile employees of the U.P. State Roadways continue to operate even after coming into force of the Regulations, 1981, in respect of erstwhile employees of U.P. State Roadways, the petitioner became entitled to the benefit of such service conditions.
18. In Mohammad Bhakar v. Krishna Reddy 1970 SLR 768, the Supreme Court held that any rule which affects the promotion of a person relates to his conditions of service until the same is altered in a legally permissible way. Following the said principle, the Supreme Court in State of Haryana etc. etc. v. Shamsher Jang Bahadur etc. etc. (1972) 2 SCC 188 set aside a rule changing the promotional rules in service on the ground that a condition of service could have been altered under the said rule only after approval of the Central Government. Thus, in the absence of approval of the Central Government, the modification of the said rule was set aside.
19. Under the circumstances, the promotional avenues to the employees of erstwhile U.P. State Roadways even after their absorption in the Corporation, continued to be available to them as a condition of service and accordingly all the incidental benefits including pension as a condition of service continued to be applicable to them and accordingly the petitioner will be held to have been promoted on a pensionable post under the Rules.
20. In view of the above, I find that the order dated 21.04.2004 is absolutely based on wrong interpretation of the provisions governing the service conditions of the employees of erstwhile U.P. Roadways and the applicability of Regulations, 1981 to their present position in the Corporation, hence the same is quashed. The petitioner is directed to be conferred with all post retirement dues including pension etc. as applicable to the post of Senior Station Incharge. The entire exercise shall be carried out within a period of three months from the date of production of certified copy of this order along with the interest, as admissible in law. It is clarified that in the event, the petitioner has been paid any amount which should have been diverted as a contribution of the Corporation towards the pension, the same shall be adjusted in the ultimate calculation of pension while passing the pension payment order.
Order Date :- 25.4.2018 IrfanUddin