(1) Heard Sri V.K. Srivastava, learned counsel for the petitioner and to the learned Standing Counsel on behalf of respondent No.1 and 8.
(2) By means of the present writ petition, the petitioner has challenged an order dated 27.5.2014 passed by the Managing Director, U.P. State Road Transport Corporation (for short, "UPSRTC"). It has further been prayed that the respondents be commanded to make payment of pension including other retiral benefits as well as consequential benefits to the petitioner. It has also been prayed that the respondents be commanded to pay 18% interest on arrears of pension to the petitioner from the date of superannuation i.e. 28.2.1994.
(3) Brief fact of the case is that the petitioner was initially granted appointment as Conductor in U.P. Government Roadways on 22.8.1957. He was granted promotion on the post of Junior Clerk vide order dated 30.3.1962. The UPSRTC was founded on 01.06.1972 and all the employees of the erstwhile U.P. Government Roadways including the petitioner were sent on deputation to the newly founded UPSRTC. The State Government issued a direction on 05.07.1972 regarding formation of UPSRTC and merger of the officers/employees and the erstwhile transport organization into newly created department.
(4) The Government Order dated 05.07.1972 declared under Clause 2 that service rules framed by the UPSRTC shall ensure that service condition of the officers / employees of the UPSRTC shall not be less favourable than what they were getting prior to the merger.
(5) The UPSRTC framed service regulations vide notification / official gazetted dated 18.06.1981, which is known as U.P. State Road Transport Corporation Employees (other than officers) Service Regulations, 1981.
(6) By means of order dated 30.3.1962, the petitioner was granted promotion on the post of Junior Clerk and in pursuance thereof, he joined the post and continued to discharge his duties. Thereafter, the petitioner was granted promotion on the post of Senior Clerk. The petitioner on attaining the age of superannuation retired from service on 28.2.1994, however, he was not paid pension, as admissible to him.
(7) Feeling aggrieved, the petitioner represented the matter before the respondents to provide pension and other pensionable dues. When no order was passed on the representation, he filed writ petition which was numbered as Writ Petition No.6762 (SS) of 2011 and the same was disposed of by means of judgment and order dated 27.9.2011 with the direction to respondent no.2 to take decision on the representation of the petitioner within two months after receipt of copy of the order. Thereafter, the petitioner preferred representation before Managing Director, UPSRTC on 20.10.2011 which was rejected vide order dated 30.12.2011. Feeling aggrieved, the petitioner filed another writ petition which was numbered as Writ Petition No.1243 (SS) of 2013 before this Court for issuance of direction to ensure payment of pension and other post retiral dues. The writ petition was finally disposed of vide order dated 10.3.2014 giving liberty to the petitioner to file a fresh representation along with certified copy of this order before Managing Director, U.P. with a direction to consider and decide the same within three months from the date of production of a certified copy of this order. Thereafter, in compliance of the aforesaid order, the petitioner preferred representation dated 19.3.2014 which was also rejected vide order dated 27.5.2014. Against the said order, the present writ petition has been filed.
(8) Assailing the impugned order dated 27.5.2014, submission of learned counsel for the petitioner is that the State Government issued a Government Order on 29.10.2004, under which the benefit of pension was allowed to all UPSRTC employees, who have been appointed between 01.06.1972 to 18.06.1981 on pensionable post of the erstwhile U.P. Government Roadways. Therefore, his submission is that due to non consideration of the aforesaid aspect of the matter, the impugned order is liable to be set aside by this Hon'ble Court.
(9) He next submitted that another circular was issued on 26.12.2005 and a scheme was formulated for allowing the pensionary benefits to the employees retiring before 20.08.2004. The scheme provides (i) deposit of benefits received under EPF along with interest and payment of pension w.e.f. 20.10.2004 and (ii) that options would be called for from employees tobe governed either by EPF for by regular pension and these options shall be treated as final and binding. Therefore, his submission is that the petitioner is entitled for payment of pension and its arrears from the respondents.
(10) He further submitted that the petitioner was granted appointment on the pensionable post i.e. Junior Clerk on 30.3.1962 and retired from the pensionable post i.e. Senior Clerk on 28.2.1994, therefore, rejection of the claim of the petitioner suffers from apparent illegality.
(11) He next submitted that exclusion of the petitioner from pension on the basis that he was granted appointment after the Government Order dated 28.10.1960, is wholly misconceived. Therefore, his submission is that at the time of appointment, the services of the petitioner was pensionable, therefore, denial to pay pension to the petitioner is wholly illegal and the order being illegal is not sustainable in law. In support of his submissions, he placed reliance upon a judgment of this Court in Special Appeal No.813 of 2010 (U.P. State Road Transport Corporation and another v. Mirza Athar Beg and others) decided on 29.11.2010.
(12) On the other hand, learned counsel for the respondents submitted that the order impugned dated 27.5.2014 does not suffer from any infirmity or illegality and is a just and valid order. The claim of the petitioner is not covered with the judgment rendered in Special Appeal No.813 of 2010, therefore, there is no illegality in rejecting the claim of the petitioner for grant of pension.
(13) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record of the writ petition, counter and rejoinder affidavits and the law reports relied upon by learned counsel for the parties.
(14) On perusal of the material available on record, it is established that the petitioner was initially granted appointment in the U.P. Government Roadways on 1.8.1957 as Conductor and thereafter vide order dated 30.3.1962, the petitioner was granted promotion on the post of Junior Clerk. The UPSRTC was formed on 01.06.1972. After establishment of UPSRTC, the services of the petitioner was transferred from U.P. Roadways to UPSRTC and thereafter, vide order dated 5.12.1985 the petitioner was promoted to the post of Senior Clerk. Therefore, counting this period of service for the purpose of pension from 30.3.1962 till the date of superannuation i.e. 28.2.1994, he requested to length of service to his credit.
(15) The petitioner retired from the post of Senior Clerk on attaining the age of superannuation. He claims benefit of pensionable post and grant of pension of the post, which was subsequently converted into non pensionable post.
(16) The award of pension to an employee working either in a Government department or in a Corporation is governed with the rules and service conditions of such an employee. Normally rules provide in this regard a period of eligibility and nature of service, which should be attained by such employee, so as to become entitle for pension.
(17) In the instant case, it is not in dispute that the petitioner was initially appointed on a non pensionable post of Conductor in U.P. Government Roadways. Had he been working on the said post through out, the question of award of pension could not have arisen irrespective of his length of service but in the meantime the UPSRTC was created and service of the petitioner stood transferred in the UPSRTC. Thereafter, the petitioner was granted promotion as Junior Clerk which is pensionable post and thereafter on the post of Senior Clerk. The post of Junior Clerk is a pensionable post, which is not being disputed by the either party..
(18) The defense of the respondents is that the petitioner though was promoted on the post of Junior Clerk on 30.3.1962 and was promoted on the post of Senior Clerk on 5.12.1985 but since it was done only for the first time in the year 1985, therefore, the petitioner is not entitled for pension because he lacks minimum required length of service and also the petitioner was not eligible in view of the Government Order issued by the State Government.
(19) The Government order takes notice of the fact that an employee to become entitled for pension, he must have been appointed on a pensionable post within a period commencing from 01.06.1972 to 18.06.1981. The petitioner was granted appointment on the post of Junior Clerk on 30.3.1962. The plea of the respondents is that the posting order was issued on 30.3.1962 for posting of the petitioner on the post of Junior Clerk and thereafter, on the post of Senior Clerk on 5.12.1985. The petitioner has not actually worked on the post of Junior Clerk prior to that he cannot be given benefit of pension and that the recital of aforesaid only protest his seniority on the post in question.
(20) It is not disputed that on putting eligible length of qualifying service, the employee becomes entitled for payment of pension, which according to the learned Standing Counsel is 20 years and has now been reduced to 10 years.
(21) The petitioner having been treated to have been appointed on the post of Junior Clerk on 30.3.1962 though he might have been allowed to actually work on the said post in pursuance to the order of appointment, he cannot be denied the benefit of pension particularly when the seniority has been given to him from the said date.
(22) The claim setup by the petitioner before the respondents has been rejected only on the ground that the case of the petitioner is not covered with judgment rendered in the case of Mirza Athar Beg (Supra). The case of Mirza Athar Beg (Supra) is that he was granted appointment on the post of Conductor in erstwhile U.P. Government Roadways on 01.11.1951. He was granted promotion on the post Junior Clerk in the office of Assistant General Manager, Charbagh, Lucknow on 07.05.1958. His service was regularized against the existing permanent post vide office order dated 03.03.1961. Thereafter, he was promoted on the post of Senior Clerk in the office of Assistant Regional Manager on 08.04.1986 and on attaining the age of superannuation, he retired from service on 31.10.1991. Then on denial of pension, he filed Writ Petition No.7728 (SS) of 1996 before this Court, which was allowed vide order dated 25.08.2010 taking into consideration the judgment passed in the case of Prem Singh v. State of Uttarakhand and the case of Managing Director, UPSRTC v. S.M. Fazil and 3 others; Writ Petition No.544 (SB) of 200 and thereafter this Court has held as under:
"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 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 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 petitioners, who claim themselves to be identically situated take shelter 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.
Reliance 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."
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."
(23) The Division Bench of this Court, while considering the similar controversy in Special Appeal Defective No.23 of 2016 (Satya Prakash Kulshrestha v. State of U.P. and 3 others) decided vide judgment and order dated 1.2.2016, has held as under:
"We, accordingly, allow the special appeal by setting aside the judgment of the learned Single Judge dated 7 July 2014, dismissing the writ petition filed by the appellant. We clarify that we are setting aside the judgment of the learned Single Judge only insofar as it relates to the appellant. The writ petition filed by the appellant shall stand allowed in terms of the direction that the appellant shall be granted regular pension, subject to his refunding all benefits, including pension which has been received by him under EPF scheme together with such interest as is payable in accordance with law, within a period of three months of the receipt of a certified copy of this order. The pensionary dues inclusive of arrears shall be paid to the appellant from the date of his retirement on 30 June 2009."
(24) The claim of the petitioner is fully covered with the judgment of the Division Bench of this Court in the case of Satya Prakash Kulshrestha (Supra). The appellant was appointed in U.P. Government Roadways on 14.07.1972 and on 01.06.1972, U.P. Government Roadways was converted into UPSRTC. Thereafter, the appellant was appointed on 18.07.1972 on the post of Office Assistant Grade-II. On 19.06.1981 the U.P. State Road Transport Corporation Employees(other than officers) Service Regulations, 1981 was brought into force. Regulation 39 of aforesaid regulations governs the matters relating to pension. On 25.07.1985, the appellant was promoted as Office Assistant Grade-I and on 02.12.1999 as Head Clerk. On 07.01.2003, the appellant was promoted as Office Superintendent, which was pensionable post. Likewise, the petitioner was initially appointed on a non-pensionable post and thereafter, he was granted appointment by way of promotion on the post of Junior Clerk on 30.3.1962 which is pensionable post and thereafter was granted promotion on the post of Senior Clerk on 5.12.1985. Therefore, the ration of judgment rendered by the learned Single Judge in the case of Mirza Beg (supra) is not applicable to the present facts and circumstances of the case. The case of the petitioner is also covered under the Division Bench judgment of this Court passed in the case of Satya Prakash Kulshrestha (supra).
(25). Therefore, this Court is of the view that the petitioner cannot be denied the benefit of pension. The petitioner while working on a pensionable post was absorbed in the UPSRTC, therefore, he is entitled for grant of pension.
(26) For the reasons stated above, this writ petition succeeds and is allowed. The impugned order dated 27.5.2014 is hereby set aside.
(27) The respondents are directed to pass a fresh reasoned and speaking order in regard to grant of pension to the petitioner and arrears of pension for the period he is entitled. In case, his case is found within four corners of the provisions referred herein above, the respondents shall ensure payment of regular pension and arrears of pension forthwith.