# Awanish Kumar Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-03
- **Case number:** Writ A No. 1051 of 2023
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awanish-kumar-pandey-ors-v-state-of-u-p-ors-49734
- **Pages:** 8

## Headnote

A. Service Law - Constitutionality of Rule
17 - Uttar Pradesh Police Computer Staff
(Non-Gazetted) Service Rules 2011 - Uttar
Pradesh
Government
Department
Electronic
Data
Processing
(Grade-C)
Cadre Service Rules, 2016: Rule 18;
Constable and Head Constable Service
Rules, 2015: Rule 17; U.P. Sub-Inspector
and Inspector (Civil Police) Service Rules,
2015:
Rule
17;
U.P.
Police
Radio
Subordinate Service Rules, 2015; U.P.
Police
Ministerial
Accounts
and
Confidential
Assistants
Cadre
Service
Rules,
2015;
U.P.
Pradeshik
Armed
Constabulary Subordinate Officers Service
Rules, 2015; Right to Information Act
2005; Police Act, 1861: Section 46(2)(c)
r/w Section 2.

No enactment can be struck down by just
saying that it is arbitrary or unreasonable.
Some or other constitutional infirmity has
to be found before invalidating an Act. An
enactment cannot be struck down on the
ground that court thinks it unjustified.
Parliament and the legislatures, com-posed as
they are of the representatives of the people,
are sup-posed to know and be aware of the
needs of the people and what is good and bad
712 INDIAN LAW REPORTS ALLAHABAD SERIES
for them. The court cannot sit in judgment over
their wisdom. (Para 10)

The petitioners have contended that Rule 17 of
the Rules of 2011 is ultra vires and violative of
Article 14 of the Constitution of India on the
ground that in U.P. Police Radio Subordinate
Service Rules 2015, U.P. Police Ministerial,
Accounts and Confidential Assistants Cadre
Service Rules 2015 and in U.P. Pradeshik Armed
Constabulary Subordinate Officers Service Rules
2015 do not contain any provision for holding
departmental
examination
for
making
promotions and, therefore, Rule 17 of the Rules
2011, so far as it contains a provision for
holding a departmental examination for making
promotions is ultra vires the provisions of Article
14 of the Constitution of India. (Para 16)

All the aforesaid Rules referred by the petitioner
deal with the service conditions of employees,
which form a particular class of the employees
and all the classes of employees are different
and distinct from each other. No other rule
contains a provision for making promotions of
the persons who may be said to be belonging to
a class similar to the class of Grade-A Computer
Operators
in
U.P.
Police.
The
Computer
Operators perform duties, which are technical in
nature and which require special skills in
computer operation. If the Government has
decided to hold a written examination for
making
promotions
of
Computer
Operators,
Grade-A
to
Computer
Operators,
Grade-B,
for
ascertaining
suitability of the candidates, it cannot be
said that the decision to hold a writtenexamination has no reasonable nexus to
the objective sought to be achieved. (Para
17)

B. Merely because the State Government is
contemplating to make amendments in the
Rule, the Rules cannot be declared ultra
vires. Petitioners have challenged the validity of
the Rules also on the ground that the State
Government itself is contemplating amendment in
the procedure for making promotion of Computer
Operators, Grade-A to Computer Operators,
Grade-B by departmental seniority, instead of
conducting a departmental examination. The State
Government was well within its authority to make
the Rules and it has the authority to make
amendments in the Rules. (Para 18)

The State Government has already framed Rules
governing the field. The State has acted within its
competence in framing the Rules. The Rules are
not ultra vires any provision of the
constitution of India and this Court has no
reason to interfere in the Rules. (Para 19)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

2 All. Awanish Kumar Pandey & Ors. Vs. State of U.P. & Ors.
711

11. Upon hearing the learned Counsel
for parties, we find that a dispute is sought
to be raised that the General Body of the
Society and the Committee of Management
are very different. This fact would have to
be asserted by looking into the by-laws of
the Society and the scheme of management
of the Institution. There is also a thick
dispute about the enrollment of members to
the General Body of the Society, the
membership whereof has been modified a
number of times and approved by the
Assistant Registrar, Firms, Societies and
Chits. The issue is one relating to elections
to the Committee of Management of the
Institution with involvement with of the
parent body, that is to say, the Society. The
learned Single Judge has allowed the writ
petitions
without
affidavits
being
exchanged between parties.

12. We are of opinion that in original
writ petitions involving factual disputes of
this complexity, the better course of action
to follow is to permit parties to exchange
affidavits and then hear the matter. We,
therefore, think that this matter should go
back to the learned Single Judge with a
direction to permit parties to put in their
affidavits and decide the matter afresh after
hearing all parties concerned.

13. We, accordingly, allow this
appeal, set aside the impugned judgment
and order dated February 24, 2022. All the
three writ petitions shall stand restored to
the file of the learned Single Judge for
hearing and decision afresh in accordance
with law. We request the learned Single
Judge to expedite hearing.

14. There shall be no order as to costs.
----------
(2023) 2 ILRA 711
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 1051 of 2023

Awanish Kumar Pandey & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vyas Narayan Shukla, Raghvendra Ojha,
Shiv Kumar Soni

Counsel for the Respondents:
C.S.C.

A. Service Law - Constitutionality of Rule
17 - Uttar Pradesh Police Computer Staff
(Non-Gazetted) Service Rules 2011 - Uttar
Pradesh
Government
Department
Electronic
Data
Processing
(Grade-C)
Cadre Service Rules, 2016: Rule 18;
Constable and Head Constable Service
Rules, 2015: Rule 17; U.P. Sub-Inspector
and Inspector (Civil Police) Service Rules,
2015:
Rule
17;
U.P.
Police
Radio
Subordinate Service Rules, 2015; U.P.
Police
Ministerial
Accounts
and
Confidential
Assistants
Cadre
Service
Rules,
2015;
U.P.
Pradeshik
Armed
Constabulary Subordinate Officers Service
Rules, 2015; Right to Information Act
2005; Police Act, 1861: Section 46(2)(c)
r/w Section 2.

No enactment can be struck down by just
saying that it is arbitrary or unreasonable.
Some or other constitutional infirmity has
to be found before invalidating an Act. An
enactment cannot be struck down on the
ground that court thinks it unjustified.
Parliament and the legislatures, com-posed as
they are of the representatives of the people,
are sup-posed to know and be aware of the
needs of the people and what is good and bad
712 INDIAN LAW REPORTS ALLAHABAD SERIES
for them. The court cannot sit in judgment over
their wisdom. (Para 10)

The petitioners have contended that Rule 17 of
the Rules of 2011 is ultra vires and violative of
Article 14 of the Constitution of India on the
ground that in U.P. Police Radio Subordinate
Service Rules 2015, U.P. Police Ministerial,
Accounts and Confidential Assistants Cadre
Service Rules 2015 and in U.P. Pradeshik Armed
Constabulary Subordinate Officers Service Rules
2015 do not contain any provision for holding
departmental
examination
for
making
promotions and, therefore, Rule 17 of the Rules
2011, so far as it contains a provision for
holding a departmental examination for making
promotions is ultra vires the provisions of Article
14 of the Constitution of India. (Para 16)

All the aforesaid Rules referred by the petitioner
deal with the service conditions of employees,
which form a particular class of the employees
and all the classes of employees are different
and distinct from each other. No other rule
contains a provision for making promotions of
the persons who may be said to be belonging to
a class similar to the class of Grade-A Computer
Operators
in
U.P.
Police.
The
Computer
Operators perform duties, which are technical in
nature and which require special skills in
computer operation. If the Government has
decided to hold a written examination for
making
promotions
of
Computer
Operators,
Grade-A
to
Computer
Operators,
Grade-B,
for
ascertaining
suitability of the candidates, it cannot be
said that the decision to hold a writtenexamination has no reasonable nexus to
the objective sought to be achieved. (Para
17)

B. Merely because the State Government is
contemplating to make amendments in the
Rule, the Rules cannot be declared ultra
vires. Petitioners have challenged the validity of
the Rules also on the ground that the State
Government itself is contemplating amendment in
the procedure for making promotion of Computer
Operators, Grade-A to Computer Operators,
Grade-B by departmental seniority, instead of
conducting a departmental examination. The State
Government was well within its authority to make
the Rules and it has the authority to make
amendments in the Rules. (Para 18)

The State Government has already framed Rules
governing the field. The State has acted within its
competence in framing the Rules. The Rules are
not ultra vires any provision of the
constitution of India and this Court has no
reason to interfere in the Rules. (Para 19)

Writ petition dismissed. (E-4)

Precedent followed:

1. Pravin Sinh Inrasinh Mahida Vs St. of Guj., 2021
SCC Online Guj. 1293 (Para 8)

2. Subramanian Swami Vs Director, Central Bureau
of Investigation & anr., (2014) 8 SCC 682 (Para 9)

3. Public Services Tribunal Bar Association Vs St. of
U.P. (2003) 4 SCC 104 (Para 9)

4. St. of A.P. & ors. Vs McDowell & Co. & ors.,
(1996) 3 SCC 709 (Para 9)

5. Shayara Bano Vs U.O.I., (2017) 9 SCC 1 (Para
12)

Present petition challenges the validity of
the Uttar Pradesh Police Computer Staff
(Non-Gazetted)
Service
Rules
2011
(hereinafter referred as "the Rules of 2011")
and they have sought issuance of a writ of
Mandamus directing the opposite parties to
amend the aforesaid Rules to the extent it
contains a provision for conducting a
departmental
examination
for
making
promotions from the post of Computer
Operator, Grade-A to the post of Computer
Operator Grade-B.

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Shiv Kumar Soni, the
learned counsel for the petitioner and Sri V. P.
Nag, the learned Standing Counsel for the
State-Respondent and perused the record.
2 All. Awanish Kumar Pandey & Ors. Vs. State of U.P. & Ors.
713

2. By means of the instant writpetition the petitioners have challenged the
validity of the Uttar Pradesh Police
Computer Staff (Non-Gazetted) Service
Rules 2011 (hereinafter referred as "the
Rules of 2011") and they have sought
issuance of a writ of Mandamus directing
the opposite parties to amend the aforesaid
Rules to the extent it contains a provision
for conducting a departmental examination
for making promotions from the post of
Computer Operator, Grade-A to the post of
Computer Operator Grade-B.

3. The petitioners have contended that
in
several
other
Rules
governing
promotions of the Government Employees,
there is no provision for conducting an
examination, as is there in Rule 17 of the
Rules of 2011.

4. Rule 18 of the Uttar Pradesh
Government Department Electronic Data
Processing (Grade-C) Cadre Service Rules
2016, which contains the procedure for
recruitment by promotion for the post of
Computer
Operator,
Grade-B
and
Computer Operator, Grade-C, and Rule 17
of the U.P. Constable and Head Constable
Service Rules 2015, which contains the
provision for promotion to the post of Head
Constable, and Rule 17 of the U.P. SubInspector and Inspector (Civil Police)
Services Rules 2015, which contains
provision for promotion to the post of SubInspector, do not contain any provision
conducting an examination for making
promotions.

5. It has further been stated in the writ
petition
that
the
U.P.
Police
Radio
Subordinate Service Rules 2015, U.P.
Police
Ministerial
Accounts
and
Confidential Assistants
Cadre
Service
Rules 2015 and the U.P. Pradeshik Armed
Constabulary Subordinate Officers Service
Rules 2015 also do not contain any
provision
for
conducting
written
examination for making promotions.

6. It has been stated in the writ
petition that in reply to a letter seeking
information under the Right to Information
Act 2005, U.P. Police Computer Center has
given information that the procedure for
making amendments to the Rules of 2011,
for replacing the departmental examination
with seniority, is pending before the
Government.

7. On the basis of the aforesaid facts,
Shiv Kumar Soni, the learned counsel for
the petitioners has submitted that since no
other Rule lays down a requirement for
conducting
a
written-examination
for
making promotions, the requirement of
conducting
a
written-examination
contained in Rule 17 of the aforesaid Rules
2011, is discriminatory and violative of
Article 14 of the Constitution of India.

8. In support of his contention, he has
relied on the decision of the Hon'ble
Gujarat High Court in Pravin Sinh
Inrasinh Mahida v. State of Gujrat, 2021
SCC Online Guj. 1293, wherein it was held
that: -

"74(13) It is, thus, beyond any
pale of doubt that the justiciability of
particular Notification can be tested on the
touchstone of Article 14 of the Constitution.
Article 14, which is treated as basic feature
of the Constitution, ensures equality before
the law or equal protection of laws. Equal
protection means the right to equal
treatment in similar circumstances, both in
the
priviliges
conferred
and
in
the
liabilities imposed. Therefore, if the two
persons or two sets of persons are similarly
714 INDIAN LAW REPORTS ALLAHABAD SERIES
situated / placed, they have to be treated
equally. At the same time, the principle of
equality does not mean that every law
must have universal application for all
persons who are not by nature, attainment
or circumstances in the same position. It
would mean that the State has the power
to classify persons for legitimate purposes.
The legislature is competent to exercise its
discretion and make classification. Thus,
every classification is in some degree
likely to produce some inequality but mere
production of inequality is not enough.
Article 14 would be treated as violated
only when equal protection is denied even
when the two persons belong to same
class/category
Therefore,
the
person
challenging the act of the State as
violative of Article 14 has to show that
there is no reasonable basis for the
differentiation between the two classes
created by the State. Article 14 prohibits
class legislation and not reasonable
classification.

 (Emphasis Supplied)

9. Per contra, Sri V. P. Nag, the
learned Standing Counsel has submitted
that all the aforesaid Rules referred by the
petitioners
deal
with
promotion
to
separate and distinct posts and the
Government has framed separate Rules
keeping into consideration the peculiar
circumstances relating to each set of
posts.
He
has
submitted
that
the
provisions contained in any specific
Rules governing promotions to any of the
other posts cannot be treated as a
yardstick for laying down the procedure
for making promotions to the post in
question. In support of his contention,
Sri. Nag has placed reliance upon the
decisions of the Hon'ble Supreme Court
in Subramanian Swami versus Director,
Central Bureau of Investigation and
another, (2014) 8 SCC 682, Public
Services Tribunal bar Association versus
State of U.P., (2003) 4 SCC 104 and State
of A.P. and others versus Mcdowell &
Co. and others, (1996) 3 SCC 709.

10. In State of A.P. v. McDowell &
Co., (1996) 3 SCC 709, he Hon'ble
Supreme Court held that: -

"43. ...The power of Parliament
or for that matter, the State Legislatures is
restricted in two ways. A law made by
Parliament or the legislature can be struck
down by courts on two grounds and two
grounds alone, viz., (1) lack of legislative
competence and (2) violation of any of the
fundamental rights guaranteed in Part III
of the Constitution or of any other
constitutional provision. There is no third
ground.........by
whatever
name
it
is
characterised, the ground of invalidation
must fall within the four corners of the two
grounds mentioned above. In other words,
say, if an enactment is challenged as
violative of Article 14, it can be struck
down only if it is found that it is violative of
the equality clause/equal protection clause
enshrined
therein.
Similarly,
if
an
enactment is challenged as violative of any
of the fundamental rights guaranteed by
clauses (a) to (g) of Article 19(1), it can be
struck down only if it is found not saved by
any of the clauses (2) to (6) of Article 19
and so on. No enactment can be struck
down by just saying that it is arbitrary or
unreasonable. Some or other constitutional
infirmity
has
to
be
found
before
invalidating an Act. An enactment cannot
be struck down on the ground that court
thinks it unjustified. Parliament and the
legislatures, composed as they are of the
representatives of the people, are supposed
to know and be aware of the needs of the
people and what is good and bad for them.
2 All. Awanish Kumar Pandey & Ors. Vs. State of U.P. & Ors.
715
The court cannot sit in judgment over their
wisdom."

11. In Public Services Tribunal Bar
Assn. v. State of U.P., (2003) 4 SCC 104,
the Hon'ble Supreme Court reiterated the
aforesaid
principles.
Again,
in
Subramanian Swamy v. CBI, (2014) 8
SCC 682, in Hon'ble Supreme Court held
that: -

"49. Where there is challenge to
the constitutional validity of a law enacted
by the legislature, the Court must keep in
view that there is always a presumption of
constitutionality of an enactment, and a
clear
transgression
of
constitutional
principles must be shown. The fundamental
nature and importance of the legislative
process needs to be recognised by the
Court and due regard and deference must
be accorded to the legislative process.
Where the legislation is sought to be
challenged as being unconstitutional and
violative of Article 14 of the Constitution,
the Court must remind itself to the
principles relating to the applicability of
Article 14 in relation to invalidation of
legislation. The two dimensions of Article
14 in its application to legislation and
rendering legislation invalid are now well
recognised
and
these
are:
(i)
discrimination, based on an impermissible
or invalid classification, and (ii) excessive
delegation of powers; conferment of
uncanalised and unguided powers on the
executive,
whether
in
the58.
The
Constitution permits the State to determine,
by the process of classification, what
should be regarded as a class for purposes
of legislation and in relation to law enacted
on a particular subject. There is bound to
be some degree of inequality when there is
segregation of one class from the form of
delegated
legislation
or
by
way
of
conferment
of
authority
to
pass
administrative orders--if such conferment is
without any guidance, control or checks, it
is violative of Article 14 of the Constitution.
The Court also needs to be mindful that a
legislation
does
not
become
unconstitutional merely because there is
another view or because another method
may be considered to be as good or even
more effective, like any issue of social, or
even economic policy. It is well settled that
the courts do not substitute their views on
what the policy is.

* * *

58. The Constitution permits the
State to determine, by the process of
classification, what should be regarded as
a class for purposes of legislation and in
relation to law enacted on a particular
subject. There is bound to be some degree
of inequality when there is segregation of
one class from the other. However, such
segregation must be rational and not
artificial or evasive. In other words, the
classification must not only be based on
some qualities or characteristics, which are
to be found in all persons grouped together
and not in others who are left out but those
qualities or characteristics must have a
reasonable relation to the object of the
legislation. Differentia which is the basis of
classification must be sound and must have
reasonable relation to the object of the
legislation.
If
the
object
itself
is
discriminatory,
then
explanation
that
classification is reasonable having rational
relation to the object sought to be achieved
is immaterial.

* * *

96....Moreover, where challenge
is laid to the constitutionality of a
legislation on the bedrock or touchstone
of classification, it has to be determined in
each case by applying well-settled two
tests: (i) that classification is founded on
716 INDIAN LAW REPORTS ALLAHABAD SERIES
intelligible
differentia,
and
(ii)
that
differentia has a rational relation with the
object sought to be achieved by the
legislation. Each case has to be examined
independently in the context of Article 14
and not by applying any general rule."
(Emphasis supplied)

12. In Shayara Bano v. Union of
India, (2017) 9 SCC 1, the Hon'ble
Supreme Court held that "a statutory
provision can be struck down on the ground
of
manifest
arbitrariness,
when
the
provision is capricious, irrational and/or
without adequate determining principle, as
also if it is excessive or disproportionate."

13. The general principles of law
explained by the Hon'ble Supreme Court in
the above referred cases, will also apply to
the matters involving a challenge to
subordinate legislations, including the U. P.
Police Computer Staff (Non-Gazetted)
Service Rules, 2011. In light of the law
referred to above, we have to examine
whether the contention of the petitioners
that Rule 17 of the Rules of 2011 is ultra
vires to the extent it contains a provision
for holding a departmental examination for
making
promotions
from
Computer
Operators Grade A to Computer Operators
Grade B.

14. Rule 17 of the aforesaid Rules of
2011 is being reproduced below for ready
reference:

"Rule
17.
Procedure
for
recruitment
through
promotion-
Procedure for recruitment of Computer
Operator Grade-B by promotion.

(1)
Promotion
of
Computer
Operator Grade-A to Computer Operator
Grade- B will be done on the basis of the
departmental examination conducted by the
Selection Committee constituted by the
Uttar Pradesh Police Recruitment and
Promotion Board, Lucknow.

(2) Written examination shall be
of objective type. Examination shall be of
total 200 marks. The written examination
paper shall consist of questions related to
General
Knowledge,
Mental
Ability,
Reasoning and Computer Science. The
level of question paper shall be according
to
the
level
of
minimum
required
educational qualification for the post of
Computer Operator Grade-A

(3) Minimum 40 per cent marks
are must in the written examination. The
candidates who are unable to get 40 per
cent marks in the written examination will
not be eligible for promotion.

(4) Marks on the basis of service
records shall be of 50 marks and shall be
awarded to each candidate which will be as
follows:

(a) the maximum marks for the
length of service shall be 10. (Maximum 10
marks).

(b) the maximum 5 marks for the
graduation
and
above
educational
qualification and 5 marks for the Technical
Computer Course in addition to the
educational qualification. (Maximum 10
marks).

(c) 3 marks for training (training
should be for the minimum period of 3 days
or above) subject to maximum 15 marks.
(Maximum 15 marks).

(d) 15 marks for Annual Remark.
(Maximum 15 marks).

For every major punishment 3
marks, for every minor punishment 2 marks
and for every adverse entry and petty
punishment 1 mark shall be deducted. For
this purpose the service record of last 10
years shall be taken into consideration.

The service records shall also be
examined keeping in view whether the
2 All. Awanish Kumar Pandey & Ors. Vs. State of U.P. & Ors.
717
candidate has been punished for such type
of
punishment
which
renders
him
unsuitable for promotion. Any candidate
whose integrity was withheld even once,
within the last five years shall not be
eligible for promotion.

(5)
The
Board
after
due
consideration of the norms specified in
Rule 6 prepare a list of successful
candidates in order of merit as disclosed by
the aggregate of marks obtained by them in
the written examination and service records
and forward the same to the Appointing
Authority."

15. The aforesaid Rules have been
framed by the Government in exercise of
statutory powers conferred by Section 46
(2) (c) read with Section 2 of the Police
Act, 1861, with a view to regulating
recruitment and the conditions of service of
persons of the Uttar Pradesh Police
Computer Staff (Non-Gazetted) Service,
which has been declared to be a part of the
police force under the provisions of the
Police Act vide Government Order dated
26.09.2011.

16. The petitioners have contended
the aforesaid Rules to be ultra vires and
violative of Article 14 of the Constitution
of India on the ground that in U.P. Police
Radiio Subordinate Service Rules 2015,
U.P. Police Ministerial, Accounts and
Confidential Assistants
Cadre
Service
Rules 2015 and in U.P. Pradeshik Armed
Constabulary Subordinate Officers Service
Rules 2015 do not contain any provision
for holding departmental examination for
making promotions and, therefore, Rule 17
of the Rules 2011, so far as it contains a
provision for holding a departmental
examination for making promotions is ultra
vires the provisions of Article 14 of the
Constitution of India.

17. All the aforesaid Rules referred by
the petitioner deal with the service
conditions of employees, which form a
particular class of the employees and all the
classes of employees are different and
distinct from each other. No other rule
contains a provision for making promotions
of the persons who may be said to be
belonging to a class similar to the class of
Grade-A Computer Operaters in U.P.
Police. The Computer Operators perform
duties, which are technical in nature and
which require special skills in computer
operation. If the Government has decided
to hold a written examination for making
promotions of Computer Operators, GradeA to Computer Operators, Grade-B, for
ascertaining suitability of the candidates, it
cannot be said that the decision to hold a
written-examination has no reasonable
nexus to the objective sought to be
achieved.

18. The learned counsel for the
petitioners has challenged the validity of
the Rules also on the ground that the State
Government
itself
is
contemplating
amendment in the procedure for making
promotion of Computer Operators, GradeA to Computer Operators, Grade-B by
departmental
seniority,
instead
of
conducting a departmental examination.
The State Government was well within its
authority to make the Rules and it has the
authority to make amendments in the
Rules.
Merely
because
the
State
Government is contemplating to make
amemdments in the Rule, the Rules cannot
be declared ultra vires.

19. So far as the prayer made by the
petitioners seeking a writ of Mandamus for
directing the State to amend Rule 17 of the
Rules of 2011 is concerned, suffice it to say
that the State Government has already
718 INDIAN LAW REPORTS ALLAHABAD SERIES
framed Rules governing the field. The State
has acted within its competence in framing
the Rules. The Rules are not ultra vires any
provision of the constitution of India and
this Court has no reason to interfere in the
Rules. However, the State is well within its
authority to make amendments to the Rule
and even if the State is contemplating
making any such amendment(s), the court
cannot issue a Mandamus to the State to
make amendment in the Rules.

20. For the aforesaid reasons, we do
not find any merit in the writ petition. The
writ petition is, accordingly, dismissed.
----------
(2023) 2 ILRA 718
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 2000686 of 2015

U.P.S.R.T.C. ...Petitioner
Versus
Sri Pal Singh ...Respondent

Counsel for the Petitioner:
Prabhu Ranjan Tripathi

Counsel for the Respondent:
Mayankar Singh, Pradeep Kumar Sharma

A. Service Law - Pension - Road Transport
Corporation Act, 1950 - Section 45(2)(c) -
The
Road
Transport
Corporation
Employees (other than officers) Service
Regulations 1981: Regulation 4, 39; U.P.
State Roadways Organization (Abolition of
Posts & Absorption of Employees) Rules,
1982 - Having accepted the terms and
conditions
of
the
employment
as
employees of the Corporation, they cannot
be allowed to turn around after their
retirement and claim applicability of the
service
conditions
as
Government
servants on deputation with Corporation.
(Para 27)

The right of each individual provident fund
retiree is crystallized on his retirement
after
which no
continuing
obligation
remains, while on the other hand, there is
a continuing obligation of the State in
respect of pension retirees. (Para 27)

As the respondent was working on a nonpensionable post of conductor at the time of his
absorption in the Corporation, his services
remained non-pensionable. The respondent was
rightly treated to have been appointed in the
Corporation on a non-pensionable post and he
continued to contribute towards E.P.F. till his
retirement
and,
accordingly,
after
his
retirement, he was paid the E.P.F. amount,
alongwith the employer's contribution, which
was accepted by the respondent without any
demur. It was for the first time in the year
2001, i.e. seven years after his retirement, that
the respondent claimed payment of pension by
filing a Claim Petition in the year 2001. (Para
26)

The Tribunal allowed the Claim Petition on an
unfounded
assumption
that
prior
to
his
appointment on deputation in the Corporation,
the respondent was working on a pensionable
post whereas the respondent was working in
the Corporation on a post of conductor, which
was a non-pensionable post. (Para 31)

B.
A
Circular
cannot
override
the
provisions of Statutory Regulations - When
the services of the respondent were not
pensionable as per the provisions contained in
Regulation 39 of the Regulations of 1981, the
same could not have been made pensionable
merely by a Circular issued by the Corporation.
(Para 32)

The Tribunal wrongly held that the provision of
pension was introduced in the Corporation by
means of a GO dated 03.02.1994 whereas the
document relied upon by the Tribunal as a GO
was merely a Circular issued by the Corporation
and it did not introduce the provision of
pension, rather it merely asked the officers of