Summary
Former employees of U.P. Roadways, a temporary State department later absorbed into the U.P. State Road Transport Corporation, were held not entitled to pension. They held neither permanent posts in the three categories declared pensionable by the GO of 28.10.1960 nor any other pensionable post; Note 3 to Article 350 of the U.P. Civil Service Regulations excluded non-gazetted posts in technical and industrial institutions; and Regulation 39 of the Corporation's 1981 Regulations confines pension to State Government employees absorbed into the Corporation. Having taken provident fund benefits without protest decades earlier, they could not now claim pension. The Corporation's appeals against High Court orders granting pension to employees promoted to pensionable posts after the absorption cut-off were allowed.
Issues
- Whether former employees of U.P. Roadways, before or after absorption in the Corporation, held pensionable posts entitling them to pension.
- Whether Note 3 to Article 350 of the U.P. Civil Service Regulations excluded the Roadways' non-gazetted posts from pension.
- Whether the assurance in the GO of 05.07.1972 that service conditions would not be inferior entitled Roadways employees promoted to pensionable posts after the absorption cut-off to pension.
- Whether employees who accepted provident fund benefits on retirement could later claim pension.
Provisions considered
- Article 350 and Note 3, U.P. Civil Service RegulationsAlthough all establishments are deemed pensionable, Note 3 excludes service in non-gazetted posts in Government Technical and Industrial institutions for appointees on or after 15.11.1938; the note was not amended, and the Roadways, being such an institution, fell within it. (¶¶ 21, 22, 29)
- Paragraphs 1 to 3, U.P. Government Order dated 28.10.1960 (issued under Note 3 to Article 350)Pension was available only to permanent incumbents of the three specified categories (office establishments, supervisory traffic staff of Junior Station Incharge and above, technical staff of Junior Foreman and above); other permanent non-gazetted and all temporary employees were non-pensionable and given provident fund. The appellants were not shown to be permanent or in those categories. (¶¶ 21, 23, 24, 29)
- Regulations 4 and 39, U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981Regulation 39 denies pension to Corporation employees, giving them provident fund, gratuity and other listed benefits, except State Government employees of the erstwhile Roadways who opted for the Corporation, who receive pension under the GO of 05.07.1972. (¶¶ 26, 27, 49)
- Assurance of non-inferior service conditions on absorption, U.P. Government Orders dated 07.06.1972 and 05.07.1972The assurance benefits only State Government employees who held pensionable posts before absorption; Roadways employees without pensionable posts suffered no inferior conditions by being denied pension in the Corporation. (¶¶ 25, 44, 47, 49)
- Sections 3 and 45(2)(c), Road Transport Corporation Act, 1950The Corporation was constituted under Section 3, and the 1981 Service Regulations were framed under Section 45(2)(c). (¶¶ 7.3, 25, 26)
Held
- Pension is a right and not a bounty, but it can be claimed only where the relevant rules or scheme provide for it. An employee who is covered by the provident fund scheme and does not hold a pensionable post cannot claim pension, and a writ court cannot direct the employer to pay pension outside the rules. (¶¶ 33, 35)
- To claim pension under the GO of 28.10.1960, Roadways employees had to plead and prove that they held permanent posts in one of the three categories in paragraph 1. The appellants claimed neither, and the remaining permanent non-gazetted and all temporary employees were non-pensionable. They were also excluded by the unamended Note 3 to Article 350, since the Roadways was a technical and industrial institution. (¶¶ 23, 29)
- Under Regulation 39 of the 1981 Regulations, only State Government employees in the Roadways who opted for the Corporation are entitled to pension under the GO of 05.07.1972; other Corporation employees receive only the retirement benefits in Regulation 39(2). (¶¶ 27, 49)
- Employees who received all retiral benefits, including provident fund, decades earlier without protest cannot approbate and reprobate by later claiming pension. Provident fund retirees form a class distinct from pension optees, and provident fund is a substitute for, not an addition to, pension. (¶¶ 9, 30, 31, 32)
- The High Court decisions in Mirza Athar Beg, S.M. Fazil and Shri Narain Pandey did not help the appellants: the first two concerned employees who held permanent pensionable posts or whose service otherwise qualified, and Shri Narain Pandey was rendered without considering the 1960 GOs, Note 3 to Article 350 or the 1981 Regulations, and so is not a binding precedent. (¶¶ 36, 37, 38, 39, 40)
- The assurance in the 1972 GOs that conditions on absorption would not be inferior applies to State Government employees for the purpose of pension. Roadways employees who held no pensionable post before deputation or absorption suffered no inferior conditions, so employees promoted to pensionable posts in the Corporation after the absorption cut-off are not entitled to pension. The Corporation accepted that those promoted to pensionable posts between 1972 and 1981 receive pension. (¶¶ 49, 50)
Result
Civil Appeal No. 894 of 2020 and the connected employees' appeals dismissed; appeals by UPSRTC allowed and the High Court orders granting pension to members of the Roadways Karamchari Sanyukta Parishad set aside; that union's appeals dismissed.