Heard Mr. Ghaus Beg, learned counsel for the petitioners as well as learned standing counsel for the State and Mr. Abhinav Singh, learned counsel holding brief of Mr. Ratnesh Chandra, learned counsel for the opposite parties no. 2 to 4.
These are two writ petitions i.e., Writ Petition No. 385 (SB) of 2014; Subhash Chandra Gautam vs. State of U.P. and others and Writ Petition No. 728 (SB) of 2014; Bhishma Deo Mishra vs. State of U.P. and others. They involve same question of law, as such, they have been listed and have been heard together and now they are being decided by this judgment.
In Writ Petition No. 385 (SB) of 2014, petitioner, Subhash Chandra Gutam, has assailed the order dated 5.12.2013 whereby he has been denied regular departmental pension on the ground that he is drawing pension under EPF scheme, as such, not entitled for getting regular departmental pension.
In Writ Petition No. 728 (SB) of 2014, petitioner, Bhishma Deo Mishra, has assailed the order dated 19.2.2013 whereby he has been denied regular departmental pension on the ground that he is drawing pension under EPF scheme, as such, not entitled for getting regular departmental pension. The petitioner has also challenged the circular dated 25.10.2012 so far as it relates to the effect that those category of retired/deceased employees who are getting pension from the EPF office are not entitled for regular departmental pension.
The question involved in both the writ petitions is whether the petitioners are entitled to get regular departmental pension in view of the Government Order dated 20.10.2004 as well as Government Order dated 10.10.2012 and whether they can be denied regular departmental pension solely on the ground that since they were getting pension under EPF scheme, as such not entitled to get regular departmental pension.
Petitioner, Subhash Chandra Gautam (Writ Petition No. 385 (SB) of 2014) was initially appointed on the post of Assistant Mechanic vide appointment order dated 18.7.1973. He was promoted on the post of Mechanic vide order dated 26.7.1977. He was further promoted on the post of Junior Foreman on 14.8.1978. Again, he was promoted as Senior Foreman (Grade-II) on 17.7.1984 and later on he was promoted as Senior Foreman (Grade I) on 2.1.1992 and lastly he was promoted on the post of Assistant Regional Manager (Technical) (Class-II Post) on 15.7.2007. He retired from service on attaining the age of superannuation on 31.12.2007 from the Mahoba Depot, Jhansi Region, Jhansi.
Petitioner, Bhishma Deo Mishra (Writ Petition No. 728 (SB) of 2014) was initially appointed on the post of Mechanic vide appointment order dated 12.12.1975 on which post he joined on 13.12.1975. Prior to the appointment on the post of Mechanic, he was working as ''Trainee Supervisor' w.e.f. 26.12.1973 at Central Workshop Kanpur. He was promoted on the post of Junior Foreman vide office order dated 13.1.1979. Thereafter, he was promoted as Senior Foreman (Grade-II) vide office order dated 22.3.1986 and again he was promoted as Senior Foreman (Grade I) vide office order dated 2.11.1996. Later on he was promoted on the post of Assistant Regional Manager (Technical) (Class-II Post) on 22.12.2004. He retired from service on attaining the age of superannuation on 31.8.2010 from Dr. Ram Manohar Lohia Workshop, Kanpur.
Learned counsel for petitioners submits that at the time of appointment of petitioners in U.P. State Road Transport Corporation (hereinafter referred to as ''UPSRTC') no service Rules for the employees of UPSRTC were framed and their services were governed under the general instructions issued by the State Government to the Corporation relating to recruitment, conditions of service and training to its employees, wages to be paid to the employees, etc. The State Government in exercise of powers under Section 45 (2) (c) of the Road Transport Corporations Act, 1950 (Central Act 64 of 1950) has framed the regulations, namely, Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service Regulation, 1981.
The State Government issued a Government Order dated 20.10.2004 stating that those employees who were appointed on pensionable post in U.P. Government Roadways Organization on or after 1.6.1972 the State Government has no objection to the admissibility of pension to them and in view of Regulation 39 (I) (1) of Service Regulation, 1981, after 1981 the employees appointed in the Corporation shall not be entitled to pension. It is submitted that as such those employees who were appointed on pensionable post in UPSRTC between the period 1.6.1972 to 28.7.1982 are entitled for pension to be paid by the Corporation. The said Government Order was issued with the consent of Finance Department of Government of U.P. It was also provided that the burden of payment of pension would be solely borne by the Corporation and the State Government will not bear the expenses.
Vide Government Order dated 10.10.2012, it was clarified that the effect of the Government Order dated 20.10.2004 shall also be applicable to all those employees of the Corporation who were appointed on non-pensionable post but were subsequently promoted on pensionable post during the period 1.6.1972 to 28.7.1982.
The contention of learned counsel for petitioners is that on the basis of the Government Order dated 10.10.2012 the petitioners are entitled to get regular departmental pension and the denial of the same is totally arbitrary, wrong and illegal. It is also contended that the said Government Order issued by the State Government, in view of the provision of Section 34 of Act, has a binding effect. The Corporation has denied pension merely on the ground that the petitioners have been sanctioned pension under EPF scheme under the provisions of Employees Provident Fund & Miscellaneous Provisions Act, 1952, however, when the said pension under the EPF scheme was sanctioned to the petitioners there was no such decision of the Corporation to pay regular pension to the employees who have been either appointed on pensionable post or promoted on a pensionable post during the period 1.6.1972 to 19.6.1981.
It is also submitted that the opposite parties on the basis of the impugned circular dated 25.10.2012 cannot deny regular departmental pension to the petitioners. The Government Order dated 10.10.2012 has overriding effect over the department circular dated 25.10.2012 and, as such, the petitioners cannot be denied regular departmental pension on the basis of circular dated 25.10.2012.
It is further submitted that similarly situated persons, namely, Syed Manzoor Haider Jafri and Raj Kumar Kashyap and many others who were earlier getting EPF pension have now been given regular pension by the Corporation after adjustment of employer's contribution under EPF scheme and return of EPF pension. The order dated 2.3.2012 with respect to Syed Manzoor Haider Jafri and order dated 27.2.2013 with respect to Raj Kumar Kashyap in this regard are on record as Annexure-9 in Writ Petition No. 385 (SB) of 2014.
It has been submitted by the learned counsel for petitioners that the petitioner, Subhash Chandra Gautam, has retired on attaining the age of superannuation on 31.12.2007 whereas the petitioner, Bhishma Deo Mishra, had retired on attaining the age of superannuation on 31.8.2010. They had not submitted any option for the benefit of pension under EPF scheme while in service. The alleged option letter dated 15.4.2008 in the case of petitioner, Subhash Chandra Gautam, was submitted after retirement, at the behest of the Regional Manager concerned, and under compelling circumstances as his retiral benefits were not being finalized. Moreover, at the time of retirement of petitioners, there was no scheme for grant of regular departmental pension to the employees.
Submission is that the option required to be submitted for availing the benefit of pension under EPF scheme was to be exercised during the service period and no such option was exercised during the service period by the petitioners. Thus, the alleged option letter dated 15.4.2008 in respect to petitioner, Subhash Chandra Gautam, cannot be taken to be an embargo for the grant of regular departmental pension. No such option was given by the petitioner, Bhishma Deo Mishra.
It is also submitted that there was a prescribed format on which the option for EPF pension was required to be given to the Accounts Officer by the employees during the service period and no such option was exercised by the petitioners. In this regard, learned counsel for petitioners submits that vide letter dated 15/19.2.2008 issued by the Regional Provident Fund Commissioner (Pension), copy of which is Annexure No. RA-3 to rejoinder affidavit filed in Writ Petition No. 385 (SB) of 2014, it has been informed that those employees who were promoted between the period 1.6.1972 to 19.6.1981 on pensionable post and has retired are entitled for regular departmental pension provided the employer's share is returned and amount of EPF pension is adjusted in regular departmental pension.
In support of his contention, learned counsel for petitioners has relied on the judgments of this Court in the case of U.P. State Road Transport Corporation and Another vs. Mirza Athar Beg1 and Uttar Pradesh State Road Transport Corporation and others vs. Shri Narayan Pandey2.
Learned counsel for opposite parties no. 2 to 4, on the basis of counter affidavit, submits that the petitioners are getting pension under EPF scheme and, as such, they are not entitled to get regular departmental pension. UPSRTC vide circular dated 25.10.2012 has prescribed that the employees who were appointed by way of promotion between 1.6.1972 to 18.6.1981 on such posts which have been pensionable in the U.P. Government Roadways shall be allowed pensionary benefits with effect from the date of their promotion on pensionable post. It has been specifically mentioned in the said circular that care should be taken that no employee may avail double benefit of pension. It also provided that the employees who were receiving the pension from the EPF Commissioner's office will not be entitled for regular departmental pension. It also provides that before sanctioning regular departmental pension to the employees falling under this category from the dates of their promotions on pensionable posts, options of the employees be obtained positively by 31.12.2012. The option so given will not be changeable. Qualifying service for sanctioning pension will be reckoned from the date of promotion on the pensionable posts and the employer's share shall be got deposited along with interest for the said period only.
It is also submitted that the Rule 355 of the Civil Services Regulation also prescribes that no employee will be entitled to avail double benefit of pension for one and the same period of service.
The case of the petitioner, Bhishma Deo Mishra, was considered and rejected vide impugned order dated 19.2.2013 by the Finance Controller, UPSRTC for the grant of regular departmental pension. It is also submitted that in compliance of the interim order dated 12.5.2014 passed in Writ Petition No. 728 (SB) of 2014, the case of petitioner, Bhishma Deo Mishra was considered in the light of the decision of this Court rendered in the case of Shri Narayan Pandey (supra) and the Managing Director vide letter dated 2.7.2014 has rejected the case of the petitioner, Bhishma Deo Mishra on the ground that he is not entitled to get the benefit of the said judgment as his case is not covered under the said judgment. In the case of Shri Naraya Pandey (supra), the question involved was as to whether the denial of pensionary benefits to the Traffic Inspector Grade-I who were made interchangeable with the posts of Junior Station Incharge, even after the fact that Junior Station Incharge Cadre was being allowed pensionary benefits, was just and proper. By the means of the judgment rendered in the case of Shri Narayan Pandey (supra), it was held that Shri Narayan Pandey shall be entitled to get the benefit of regular departmental pension. The petitioner, Bhishma Deo Mishra, has not challenged the order dated 2.7.2014.
It is also submitted that in the case of petitioner, Subhash Chandra Gautam, the Court vide interim order dated 3.3.2014 had directed for consideration of the case of the petitioner for grant of regular departmental pension in the light of the decision of this Court in the case of Shri Narayan Pandey (supra). The case of petitioner was considered by the Managing Director and was rejected vide order dated 19.6.2014 which has not been challenged till date.
It is contended that the petitioners cannot be allowed to change their stand, when they have given their option for pension under EPF scheme, they cannot be given regular departmental pension.
It is also contended that the Apex Court in the case of V.K. Ramamurthy vs. Union of India3 has held that if an employee receives his entire service benefits on the basis of his option; then, subsequently he will not be allowed to change his option. The petitioners have already exercised their option for the grant of pension under EPF scheme, therefore, they cannot be allowed to change their stand.
It is further contended that the judgment in the case of Mirza Athar Beg (supra) does not lay the precedent and/or confer the benefit of pension to such erstwhile temporary employees of ''U.P. Government Roadways' who were not confirmed on the cut off date on 1.10.1960 and governed by the new terms and conditions of service revised vide Government Orders dated 16.9.1960 and 28.10.1960 and fell in non-pensionable category and continued to work on non-pensionable posts until their absorption in UPSRTC.
Submission is that the benefit of judgment in the case of Mirza Athar Beg (supra) is not available to the petitioners.
I have considered the submissions made by the learned counsel for the parties and gone through the records.
As per admitted facts, the petitioners were promoted on pensionable post during the period 1.6.1972 to 18.6.1981 and as per the Government Orders dated 20.10.2004 and 10.10.2012 they were entitled to get regular departmental pension, however, since they were getting pension under the EPF scheme, as such, have been denied regular departmental pension.
It is to be noted that the petitioner, Subhash Chandra Gautam, had retired on attaining the age of superannuation on 31.12.2007 from Mahoba Depot, Jhansi Region, Jhansi whereas petitioner, Bhishma Deo Mishra, had retired on attaining the age of superannuation on 31.8.2010 from Dr. Ram Manohar Lohia Workshop, Kanpur. At the time of their retirement, there was no decision for the payment of regular departmental pension to the employees of the Corporation who were appointed on a pensionable post or promoted on pensionable post during the period 1.6.1972 to 28.7.1982. The said decision to grant regular departmental pension to such employees who were promoted on a pensionable post during the period 1.6.1972 to 28.7.1982 had come into force on the basis of the Government Order dated 10.10.2012, as such, there was no question of giving any option to the petitioners as to whether they want regular departmental pension or the benefit of pension under EPF scheme at the time when they had retired.
It appears that when the petitioners were in service they were not asked to give their option for the benefit of availing the benefit of pension under EPF scheme and they had not submitted their option on the prescribed format while in service. It also appears that the petitioners had submitted their option for the grant of pension under EPF scheme after retirement from service when their retiral benefits were not being finalized and when they had no other option but to avail the benefit of EPF scheme. As such, I am of the considered view that the option given by the petitioners for availing the benefit of EPF scheme, if any, cannot be treated to be an option to forego the regular departmental pension and opt for the pension under EPF scheme.
The opposite parties after enforcing the Government Order dated 10.10.2012 had not given any opportunity to the petitioners to give their option for regular departmental pension or pension under EPF scheme. The Government Order dated 10.10.2012 clearly provides that all such employees who were initially appointed on non-pensionable post and were subsequently promoted on pensionable post during the period 1.6.1972 to 19.6.1981 shall be entitled to get the benefit of regular departmental pension under the Government Order dated 20.10.2004.
Petitioner, Subhash Chandra Gautam, was promoted on the post of Junior Foreman on 14.8.1978 which was a pensionable post, as such, he is covered under the Government Order dated 10.10.2012. Similarly, petitioner, Bhishma Deo Mishra, was promoted on the post of Junior Foreman vide office order dated 13.1.1979 which is a pensionable post, as such, he is also covered under the Government Order dated 10.10.2012.
In the case of Mirza Athar Beg (supra), the Division Bench of this Court has held as under:
"35. The last plea of the appellants that once the respondent had accepted the Provident Fund amount, he was not entitled to claim pension, can also not be accepted for the reason that there cannot be any estoppel against law, as the pension is not a charity or bounty and moreso when the learned Single Judge has issued a direction for refund of the amount so received by the appellants before paying amount of pension.
36. We thus, uphold the order passed by the learned Single Judge.
37. Considering the fact that 19 years have elapsed since the respondent retired and the prayer of the respondent's counsel that the amount of EPF already received, may be adjusted towards the arrears of pension, we provide that the pension shall be fixed as per rules within a maximum period of two months from the date of receipt of a certified copy of this order and the same shall be paid regularly with effect from the current month. The arrears of pension shall be paid within a maximum period of one month from its determination, after adjusting the amount of EPF (contribution of the employer), which has already been received by the respondent. It would also be open to the respondent to deposit the amount of EPF (contribution of the employer), already received and if such a deposit is made, there would not be occasion for deducting the said amount.
38. This direction shall be complied with by all concerned departments and the pension is to be paid within the time frame prescribed.
39. In regard to the apprehension of the respondent that the Corporation will charge interest on the contribution of the employer towards the EPF, suffice would be to mention that, in such an event the respondent would also be entitled to the interest on the delayed payment of pension.
40. We, therefore, provide that no interest be charged on the EPF amount, as the respondent also says that he will not claim any interest on the amount of pension.
41. With the aforesaid directions/observations, the special appeal is dismissed."
In the case of Shri Narayan Pandey (supra), the Court has come to conclusion that the respondent-Shri Narayan Pandey having been treated to be appointed on the post of Junior Station Inscharge on 5.5.1978, though he might have been allowed to actually work on the said post in pursuance of letter dated 19.10.1987, cannot be denied the benefit of pension, particularly when the seniority has been given to him from the said date. Relevant paragraphs 9, 10 and 11 are reproduced below:
"9. The plea of the appellant that the posting order was issued on 29.11.1987 and the respondent not having worked on the post of the Junior Station Incharge prior to that, he cannot be given benefit of pension and that the recital aforesaid only protects his seniority on the post in question. This argument cannot be accepted.
10. It is agreed to both the parties that on putting eligible length of qualifying service , the employee became entitled for payment of pension which according to the learned counsel for the State was 20 years and has now been reduced to ten years.
11. The respondent having been treated to have been appointed on the post of Junior Station Incharge on 05.05.1978, though he might have been allowed to actually work on the said post in pursuance of letter dated 19.10.1987, he cannot be denied the benefit of the pension, particularly when the seniority has been given to him from the said date. For giving seniority on a particular post, it is essential that the incumbent must be treated to have been appointed on the said post, even if, he has actually not been appointed on the post from the date, from which the seniority has been given. But he will be deemed to have been appointed from the back date, may be notionally."
The Court relying on the judgment of the Division Bench passed in the case of Mirza Athar Beg (supra) has decided the case of one Sri Chandrika Singh and vide judgment and order dated 4.10.2012 passed in Writ-A No. 35938 of 2001; Sri Chandrika Singh vs. Managing Director, U.P.S.R.T.C. Co. Lucknow & Others has allowed the writ petition and directed the respondents to refix the pension of the petitioner in accordance with Rules and pay the same regularly. The arrears of pension to be paid within two months after adjusting the amount of EPF (Employer's share) received by the petitioner. Relevant paragraphs of the said judgment are reproduced below:
"The Court is of the view that as the petitioner was holding a pensionable post in the department and had also received the E.P.F. dues, therefore, the facts and circumstances of the instant case are similar to Mirza Athar Beg's case (Supra). The plea of Sri M.M. Sahai, learned counsel for the respondents that as there was a delay of four years in claiming pension from the date of his retirement, therefore, the petitioner be non suited on that ground the Court finds that in the case of Mirza Athar Beg (Supra) a period of 19 years had elapsed from the date of retirement to the date when claim for pension was made and yet the Division Bench of the Court rejected the plea of delay and granted pension to the petitioner therein on the ground that pension is not a bounty which is dependent on the sweet will of the respondents.
Learned counsel for the respondents could not point out any distinguishable feature in the case of Mirza Athar Beg qua the instant case. Therefore, the Court has no option but to hold that the law laid down in the case of Mirza Athar Beg (Supra) would also apply in the instant case. The order dated 27.08.2001 cannot be sustained and is liable to be quashed.
The writ petition succeeds and is allowed. The order dated 27.08.2001 is quashed. The respondents are directed to refix the pension of the petitioner in accordance with the rules within two months from the date of production of the certified copy of the order and to pay the same from the current month regularly. Arrears of pension be paid within a further period of two months after adjusting the amount of E.P.F. (employer's contribution) received by the petitioner. It is made clear that neither the petitioner nor the respondents would claim any interest either on the E.P.F. amount (employer's contribution) nor on pension. No order as to costs."
So far as the law laid down by the Apex Court in the case of V.K. Ramamurthy (supra), on which reliance has been placed by the opposite parties, is concerned, in that case the Apex Court has held that if any employee has received his service benefits on the basis of his option; then, subsequently he cannot be allowed to change his option. There is no dispute to the said legal proposition, however, in the present case, as discussed above, there was no option before the petitioners as to whether they want to get the regular departmental pension or avail the benefit of pension under EPF scheme as at the time of their retirement, the regular departmental pension was not payable to them and the decision to pay regular departmental pension to the employees who were promoted on a pensionable post during the period 1.6.1972 to 19.6.1981 was made applicable after their retirement vide Government Order dated 10.10.2012, as such, it cannot be said that the petitioners had relinquished their right to get the regular departmental pension and had opted for pension under EPF scheme. The judgment of the Apex Court in the case of V.K. Ramamurthy (supra) is not applicable to the present facts of the case.
I am of the view that the petitioners were holding pensionable post and are entitled to get regular departmental pension. The case of the petitioners are also covered by the law laid down by this Court in the case of Mirza Athar Beg (supra). Hence, the writ petitions are allowed. The order impugned dated 5.12.2013 in Writ Petition No. 385 (SB) of 2014 and the order impugned dated 19.2.2013 in Writ Petition No. 728 (SB) of 2014 are hereby quashed so far as it relates to the petitioners. The circular dated 25.10.2012 as far as it relates to the effect that those category of retired/deceased employees who are getting pension from the EPF office are not entitled for regular departmental pension is quahsed. The opposite parties are directed to fix the pension of the petitioners as per the Rules within a maximum period of two months from the date of production of certified copy of this order and same shall be paid regularly from the current month. Arrears of pension shall be paid within a maximum period of one month from its determination, after adjusting the amount of EPF (Employer's share) which has been received by the petitioners. It is made clear that neither the petitioners nor the opposite parties would claim any interest either on the EPF amount (Employer's share) nor on pension.
No order as to costs.
(Ritu Raj Awasthi, J.) Dated: 22nd February, 2019 Santosh/-