# Bal Krishan Tripathi v. U.P.S.R.T.C. and another Opp. Parties

- **Citation:** (2002) 3 ILRA 981
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-23
- **Case number:** Special Appeal No. 14 of 2002
- **Bench:** S.K. Sen, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-krishan-tripathi-v-u-p-s-r-t-c-and-another-opp-parties-39338
- **Pages:** 7

## Headnote

Sri Samir Sharma

U.P. State Road Transport Corporation
Employees (other than officer) Service
Regulation 1981- Regulation 37- read
with Industrial Employment (Standing
Order) Act 1946- Section 13-B Age of
Superannuation- state govt. employees-
under
deputation
brought
under
corporation- at the time of absorption
the
retirement
age
of
state
govt.
employees 58 years- after absorption
w.e.f. 12.11.91 employee of Corporation
working under Central workshop made
to retire at the age of 58 years- the Apex
court in case of UPSRTC and others Vs.
Bashir Ahmad held- the pensionary
benefits be given on the basis of the age
of 58 years- held- retirement at the age
of 58 proper.
Held- Para 9 and 13

Having heard the learned counsel for the
parties we find that it is not in dispute
that when the appellant writ petitioner
was in State Government service the age
of retirement was 58 years. The State
Government
vide
Notification
dated
5.7.1972 had only assured that the
service conditions of those employees
who are absorbed in the Corporation
shall not be altered to their detriment.
The
Certified
Standing
Orders
did
provide the age of retirement of 60 years
but subsequently when the Regulation
was enforced, the age of retirement as
provided in Regulation 37 to be 58 years
shall be applicable. The Standing Orders
lost its efficacy with the enforcement of
the Regulation under Section 13-B of the
Industrial
Employment
(Standing
Orders) Act. Thus the petitioner has
rightly been retired on attaining the age
of 58 years.

We are in respectful agreement with the
aforesaid decision. Moreover we find
that the Hon'ble Supreme Court in the
case of UPSRTC and another Vs. Bashir
Ahmad in Civil Appeal No. 3933 of 1991
decided on 5.10.1997 had held that the
pensionery benefits to the employees
must be calculated on the basis that the
age of retirement is 58 years. Thus the
contention
that
the
appellant
writ
petitioner was entitled to continue till he
attains the age of 60 years is not
justified. The reliance placed by Shri V.K.
Barman upon the decision of the learned
Single Judge of this Court in the case of
Chandra Kumar Shukla and the dismissal
of the Special Leave Petition by the Apex
Court would be of no assistance as the
Division Bench of this Court in the case
of Lalta Prasad and Sabhapati Singh
(supra) have held that those State
Government Employees who have been
absorbed
in
the
service
of
the
Corporation are also liable to be retired
at the age of 58 years and the Apex
Court
while
dismissing
the
Special
Appeal in the case of Chandra Kumar
Shukla has not decided any thing on
merits.
Case law discussed:
1991(2) UPLBEC-1095
AIR 1991 SC-310
AIR 1989 SC-374
AIR 1991SC 276

## Text

http://www.allahabadhighcourt.nic.in
3 All] Bal Krishna Tripathi V. U.P.S.R.T.C. and another 981
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23 NOVEMBER, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 14 of 2002

Bal Krishan Tripathi
 ...Appellant
Versus
U.P.S.R.T.C. and another ...Opp. Parties

Counsel for the Appellant:
Sri V.K. Barman
Sri Pankaj Barman

Counsel for the Respondents:
Sri Samir Sharma

U.P. State Road Transport Corporation
Employees (other than officer) Service
Regulation 1981- Regulation 37- read
with Industrial Employment (Standing
Order) Act 1946- Section 13-B Age of
Superannuation- state govt. employees-
under
deputation
brought
under
corporation- at the time of absorption
the
retirement
age
of
state
govt.
employees 58 years- after absorption
w.e.f. 12.11.91 employee of Corporation
working under Central workshop made
to retire at the age of 58 years- the Apex
court in case of UPSRTC and others Vs.
Bashir Ahmad held- the pensionary
benefits be given on the basis of the age
of 58 years- held- retirement at the age
of 58 proper.
Held- Para 9 and 13

Having heard the learned counsel for the
parties we find that it is not in dispute
that when the appellant writ petitioner
was in State Government service the age
of retirement was 58 years. The State
Government
vide
Notification
dated
5.7.1972 had only assured that the
service conditions of those employees
who are absorbed in the Corporation
shall not be altered to their detriment.
The
Certified
Standing
Orders
did
provide the age of retirement of 60 years
but subsequently when the Regulation
was enforced, the age of retirement as
provided in Regulation 37 to be 58 years
shall be applicable. The Standing Orders
lost its efficacy with the enforcement of
the Regulation under Section 13-B of the
Industrial
Employment
(Standing
Orders) Act. Thus the petitioner has
rightly been retired on attaining the age
of 58 years.

We are in respectful agreement with the
aforesaid decision. Moreover we find
that the Hon'ble Supreme Court in the
case of UPSRTC and another Vs. Bashir
Ahmad in Civil Appeal No. 3933 of 1991
decided on 5.10.1997 had held that the
pensionery benefits to the employees
must be calculated on the basis that the
age of retirement is 58 years. Thus the
contention
that
the
appellant
writ
petitioner was entitled to continue till he
attains the age of 60 years is not
justified. The reliance placed by Shri V.K.
Barman upon the decision of the learned
Single Judge of this Court in the case of
Chandra Kumar Shukla and the dismissal
of the Special Leave Petition by the Apex
Court would be of no assistance as the
Division Bench of this Court in the case
of Lalta Prasad and Sabhapati Singh
(supra) have held that those State
Government Employees who have been
absorbed
in
the
service
of
the
Corporation are also liable to be retired
at the age of 58 years and the Apex
Court
while
dismissing
the
Special
Appeal in the case of Chandra Kumar
Shukla has not decided any thing on
merits.
Case law discussed:
1991(2) UPLBEC-1095
AIR 1991 SC-310
AIR 1989 SC-374
AIR 1991SC 276

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present Special Appeal has
been filed against the judgment and order
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982 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
dated 18.12.2001 passed by the learned
Single Judge wherein the writ petition
filed by the appellant writ petitioner has
been dismissed.

Briefly stated the facts giving rise to
the present Special Appeal are as follows:

2. The appellant writ petitioner was
an
employee
of
U.P.
Government
Roadways. On 1st June, 1972 U.P. State
Road Transport Corporation- hereinafter
referred as the Corporation was formed.
The State Government vide Notification
dated 5.7.1972 gave an assurance to all
the employees of U.P. Government
Roadways that those employees who have
gone on deputation to the Corporation and
they are absorbed their service conditions
would not be changed. In August, 1982
the appellant writ petitioner was absorbed
in the Corporation. The appellant writ
petitioner has been made to retire on
31.12.2001 on attaining the age of 58
years. According to the appellant writ
petitioner in the year 1972, the Certified
Standing Orders of the Corporation
provided the age of superannuation as 60
years and therefore he is entitled to
continue in service till he complete a 60
years of age.

3. Before the learned Single Judge
the appellant writ petitioner has relied
upon the judgment passed in Civil Misc.
Writ Petition No. 2755 of 1996 D.P.
Malviya and others decided on 29.8.1996
wherein this Court had been pleased to
issue a direction that the order is subject
to the decision of the Special Leave
Petition pending in the Apex Court or till
the petitioner attained the age of 60 years
whichever is earlier.

4. The learned Single Judge found
that the Special Leave Petition has been
decided against the petitioner and the
petitioner has failed to demonstrate that
he has a right to continue till the age of 60
years. The learned Single Judge further
held
that
there
is
no
reason
for
entertaining the writ petition under Article
226 of the Constitution of India because
of the fact that the petitioner has an
alternative remedy by way of filing an
appeal before the appellate authority
contemplated under the provisions of the
relevant Service Rules. Accordingly the
writ petition was dismissed.

5. We have heard Shri V.K. Barman,
learned Senior counsel assisted by Shri
Pankaj Barman on behalf of the appellant
writ petitioner and Shri Samir Sharma,
learned
counsel
appearing
for
the
respondents.

6. According to Sri V.K. Barman,
learned Senior counsel appearing for the
appellant writ petitioners, despite the
Notification under Section 13-B of the
Industrial Employment (Standing Orders)
Act 1946 issued on 12.4.1991 notifying
the
Regulations
framed
by
the
Corporation, the age of retirement of 60
years fixed under the Certified Standing
Order's
in
December,
1972
which
continued even in August, 1982, cannot
be altered in view of the assurance held
out by the State Government in the
Notification dated 5.7.1972. He relied
upon the decision of this Court in the case
of U.P. State Road Transport Corporation
and other Vs. Chandra Kumar Shukla and
others (C.M. Writ Petition No. 3203 of
1991 decided on 11.2.1998) and the order
passed by the Hon'ble Supreme Court
dated 17.8.1998 dismissing the Special
Leave Petition. He further relied upon the
http://www.allahabadhighcourt.nic.in
3 All] Bal Krishna Tripathi V. U.P.S.R.T.C. and another 983
decision of the Hon'ble Supreme Court in
case of S.P. Dubey Vs. M.P.S.R.T.C. and
another A.I.R. 1991 S.C. 276 and has
submitted that when the Notification has
been issued by the State Government
specifically stating that the existing staff
would not be adversely affected with
regard to the service condition and at the
time of absorption the age of retirement
was 60 years the same cannot be changed.

7. Sri Samir Sharma, learned
counsel appearing for the respondent
Corporation, however, submitted that
undisputedly the age of retirement of the
petitioner at the time when he was sent on
deputation in the year 1972 as also when
he was absorbed in the Corporation in
August 1982 was 58 years as was
applicable to the State Government
employees and up till such time he was
absorbed,
he
continued
to
be
a
Government employee. The Certified
Standing Orders no doubt provided the
age of retirement to be 60 years but after
enforcement of the Regulation by issuing
a notification on 12.4.1991 under section
13-B of the Industrial Employment
(Standing
Orders)
Act,
1946,
the
Regulation which provided for the age of
retirement of the employees of the
Corporation at 58 years came into
existence and shall govern the service
condition of all its employees including
the appellant writ petitioner. He submitted
that the Regulations which provided the
age of retirement at 58 years does not in
any way alter the service condition of the
appellant writ petitioner which was
available to him in the Government
service as the age of retirement is the
same i.e. 58 years. He submitted that the
decision in the case of Chandra Kumar
Shukla (supra) and the dismissal of the
Special Leave Petition by the Hon'ble
Supreme Court would be of no assistance
to the appellant writ petitioner as
subsequently this Court in the case of
Bachai Lal Vs. UPSRTC Allahabad and
others (1991) 2 UPLBEC 1095 had held
that the age of retirement of the
employees of the U.P. Government
Roadways who have been absorbed in the
service of the Corporation would be 58
years in view of Regulation 37 of the U.P.
State
Road
Transport
Corporation
Employees (other than Officer) Service
Regulation
1981.
This
Court
had
considered the decision of the Hon'ble
Supreme Court in the case of S.P. Dubey
relied upon by the learned counsel for the
appellant petitioner and had further held
that the said decision is not applicable. In
fact the decision of the Hon'ble Supreme
Court in the case of S.K. Siddiqui Vs.
M.P.S.R.T.C. (A.I.R. 1991 SC 310) is
applicable.

8. He further submitted that the
aforesaid decision of the learned Single
Judge had been affirmed by the Division
Bench in Special Appeal No. 91 of 1991
decided on 14.12.1992. He also relied
upon the Division Bench decision in C.M.
Writ
Petition
No.
26243
of
1991
Sabhapati Singh Vs. UPSRTC and
another decided on 26.3.1993 wherein the
same view has been held. He also relied
upon the decision of the Hon'ble Supreme
Court dated 15.10.1997 in Civil Appeal
No. 3933 of 1991 U.P.S.R.T.C. and
another Vs. Bashir Ahmad wherein the
Hon'ble Supreme Court had held that
pensionery benefit of the employees of
the Corporation must be calculated on the
basis that the age of retirement is 58
years.

9. Having heard the learned counsel
for the parties we find that it is not in
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984 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
dispute that when the appellant writ
petitioner was in State Government
service the age of retirement was 58
years.
The
State
Government
vide
Notification dated 5.7.1972 had only
assured that the service conditions of
those employees who are absorbed in the
Corporation shall not be altered to their
detriment. The Certified Standing Orders
did provide the age of retirement of 60
years
but
subsequently
when
the
Regulation was enforced, the age of
retirement as provided in Regulation 37 to
be 58 years shall be applicable. The
Standing Orders lost its efficacy with the
enforcement of the Regulation under
Section
13-B
of
the
Industrial
Employment (Standing Orders) Act. Thus
the petitioner has rightly been retired on
attaining the age of 58 years.

10. In the case of S.P. Dubey (supra)
Hon'ble Supreme Court was considering
the case where the company was taken
over by the State Government in which
the age of retirement was 60 years. In this
background the Apex Court held that the
age of retirement of the employees of the
erstwhile company would be 60 years and
not 58 years. This is not the position here.
In the present case the age of retirement
of the State Government employee during
the relevant time was 58 years and at the
time of absorption also it was 58 years.
This Court in the case of Bachai Lal has
held that the decision of the Hon'ble
Supreme Court in S.P. Dubey would not
be applicable. In Bachai Lal case this
Court has held as follows:

"16. On the creation of the Corporation all
the employees of the erstwhile U.P.
Government Roadways were sent on
deputation with the Corporation with a
specific condition that their service
conditions including retirement benefits
would not be changed. This was done
vide G.O. dated 5.7.1972. The result was,
that
the
employees
of
the
U.P.
Government Roadways who were retiring
at the age of 58 years would retire at the
same age even after the formation of the
Corporation. This was approved by the
Supreme Court in the case reported in
AIR 1989 SC 374, Hari Shanker Gaur vs.
D.D.C. and a Division Bench decision of
this Court in Writ Petition No. 3273 of
1982, M.S.A. vs. State of U.P.

17. Such a situation was considered by
the Supreme Court in the case reported in
AIR 1991 SC 276, S.P. Dubey v. M.P.
State Road Transport Corporation. Dubey
had, joined the services as a junior clerk
in a company known as Central Provinces
Transport Service Ltd. In the year 1947.
He worked there from 1947 to 30.8.1955.
Admittedly the age of superannuation of
the employees of the Company was 60
years.

18. The Company was taken over by the
State Government on 31.8.1955. While
doing so it was specifically mentioned
that the existing staff of the company
would not be adversely effected with
regard to their condition of service.

19. There is no dispute that on the date
of
taking
over
according
to
the
Government rules the age of retirement
was 58 years but since the Government
has given an assurance to the employees
of the Company that their service
condition
will
not
be
changed
prejudicially to their existing right, the
Supreme Court took the view that on the
date when the Company was taken over
the
government
has
assured
the
employees that they will retire at the age
http://www.allahabadhighcourt.nic.in
3 All] Bal Krishna Tripathi V. U.P.S.R.T.C. and another 985
of 60 years, the Corporation could not
frame
regulations
contrary
to
the
directions
issued
by
the
State
Government.

20. In the instant matter when the
petitioners joined service, they were the
employees of the State Government
working in the Roadways Department.
Even under Fundamental Rule 56 their
age of retirement was 58 years and the
same
has
been
retired
under
the
regulations. Therefore, the decision of
S.P. Dubey's case is of no assistance to
the petitioner.

21. The controversy involved in the
present bunch of cases was exactly similar
to one raised in the case of S.K. Siddiqui
v.
M.P.
State
Road
Transport
Corporation, reported in AIR 1991 SC
310. In that case S.K Siddiqui had joined
the service in the Transport Department of
Madhya
Pradesh
Government
in
September, 1960. The age of retirement
was 58 years. The Corporation was
established in June, 1962. He became an
employee of the Corporation. According
to the regulations he was to retire on
30.6.1987 on attaining the age of 58
years.
He
claimed
the
age
of
superannuation as 60 years. The Supreme
Court considering the earlier judgment in
the case of S.P. Dubey (supra) held:-

"We have held that all those employees
who joined service with the Company are
entitled to continue in service till they
attain the age of 60 years. The petitioner
does not belonging to that category of
employee. He joined service with the
State of Madhya Pradesh in September,
1960 when the age of superannuation was
58 years and had continued to be the same
till he retired. His case is therefore,
distinguishable from that of S.P. Dubey's
case. The writ petition is, therefore,
dismissed without any order as to costs.

22. In this case also when the petitioners
joined the service, their age of retirement
was 58 years and under Regulation 37
also they are being retired at the age of 58
years. This decision of the Supreme Court
squarely covers the present bunch of
cases.

23. Though the Corporation came into
existence on 1.6.1972 but the Corporation
exercising its power under Section 45 (2)
(C) of the Road Transport Corporation
Act, 1950 framed regulations known as
"Uttar Pradesh State Road Transport
Corporation
Employees
(other
than
Officers) Service Regulations, 1981"
(hereinafter
referred
to
as
the
Regulations" with the previous sanction
of the State Government superseding all
existing rules or orders on the subject
(emphasis supplied). This regulation was
published in the U.P. Gazette vide
notification No. 3517/XXX-2-1981 on
19.6.1981.

24. There is no dispute that the Road
Transport Corporation Act is a special Act
dealing
with
the establishment and
working
of
the
Road
Transport
Corporation throughout the country. The
regulations, framed under the provisions
of the said Act, laying down the terms and
conditions
of
the
service
for
its
employees, is a special law and it would
prevail over the general law contained in
the Model Standing Orders or Certified
Standing Orders framed for the industrial
establishment.

25. The
promise
made
by
the
Government on 5.7.1972 vide notification
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986 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
No. 3414/302-170-N-77 giving assurance
to the employees of the Corporation that
the service condition would not be
changed, has been given effect to while
framing
the
regulations.
The
said
regulations have made no change in the
age of retirement. It remained the same
which was prior to its formation.

26. The final picture which emerges now
is that prior to the formation of the
Corporation the age of retirement of the
employees of Group 'C' was 58 years. The
same has been retained under the
regulations."

11. The aforesaid decision of Bachai
Lal case has been affirmed in Special
Appeal No. 91 of 1991 Lalta Prasad Vs.
UPSRTC
and
others
decided
on
14.12.1992. The decision given in the
case of Lalta Prasad (supra) has been
followed
subsequently
by
another
Division Bench in Writ Petition No.
26243 of 1991 Sabhapati Singh Vs.
UPSRTC
and
another
decided
on
26.3.1993.

12. The Division Bench of this
Court in the case of Sabhapati Singh has
held as follows:

"The object of regulation 83 and
proviso to new regulation 4 as well as the
G.O. dated 5.7.1972 is the same namely,
that the conditions of service of the
government servants, who were working
in U.P. Government Roadways will not be
inferior to the conditions before their
absorption
in
the
service
of
the
Corporation. Regulation 83 has restated
what was contained in the Government
Order dated 5.7.1972 and the same thing
was reiterated again in the proviso to the
new Regulation 4. As is clear from the
note appended to Regulation 2, the
government
servants
working
on
deputation will be governed by Rules and
Regulations of their parent department.
Service conditions of these deputations,
before their absorption in the service of
the Corporation, will as such be governed
by the service rules, which are applicable
to the government servants, according to
which, as held by division Bench of this
court in the Special Appeal of Lalta
Prasad (supra) the age of retirement was
58 years on 1.6.1972 as well as on the
date of their absorption in 1982. The
effect of these provisions is that the
government
employees,
who
were
working on deputation in the service of
the Corporation, could have been retired
upto the date of their absorption at the age
of 58 years. After their absorption, it is
not open to the corporation to frame any
rule or regulation to retire them at the age
of lower than 58 years. With effect from
the date of absorption in 1982 all the
Government servants, who were working
on deputation, became the employees of
the Corporation and the Standing Orders
of the Central Workshop, which were
amended in 1978 fixing the age of
retirement at 60 years, became applicable
to them like any other employees of the
Corporation. After the date of absorption,
as such, like other employees of the
corporation they could be retired at the
age of 60 years only. However, on
12.4.1991 the regulations, which provide
for retirement at the age of 58 years, were
notified under Section 13-B of the
Industrial Employment (Standing Orders)
Act, 1946. In view of the above position,
with effect from 12.4.1991 the employees
of the corporation working in the Central
workshop can be retired at the age of 58
years. This submission of the learned
http://www.allahabadhighcourt.nic.in
3 All] Ram Asis Chaudhary and another V. State of U.P. and others 987
counsel, as such, is devoid of merit and
cannot be accepted."

13. We are in respectful agreement
with the aforesaid decision. Moreover we
find that the Hon'ble Supreme Court in
the case of UPSRTC and another Vs.
Bashir Ahmad in Civil Appeal No. 3933
of 1991 decided on 5.10.1997 had held
that the pensionery benefits to the
employees must be calculated on the basis
that the age of retirement is 58 years.
Thus the contention that the appellant writ
petitioner was entitled to continue till he
attains the age of 60 years is not justified.
The reliance placed by Shri V.K. Barman
upon the decision of the learned Single
Judge of this Court in the case of Chandra
Kumar Shukla and the dismissal of the
Special Leave Petition by the Apex Court
would be of no assistance as the Division
Bench of this Court in the case of Lalta
Prasad and Sabhapati Singh (supra) have
held
that
those
State
Government
Employees who have been absorbed in
the service of the Corporation are also
liable to be retired at the age of 58 years
and the Apex Court while dismissing the
Special Appeal in the case of Chandra
Kumar Shukla has not decided any thing
on merits.

In view of the foregoing discussions
there is no merit in the Special Appeal
and is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

BEFORE
THE HON'BLE SHYAMAL KUMAR SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 386 of 1998

Ram Asis Chaudhary and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Ashok Khare
Sri R.N. Singh
Sri R.G. Padia
Sri S.P. Shukla

Counsel for the Respondents:
Sri Sabhajeet Yadav
Sri A.K. Gupta
Sri S.K. Lal
Sri Anand Kumar
S.C.

Constitution of India Article 226- Service
Law- appointment-at the time of initial
appointment at the age of 15 to 17
years- illegal plea about possessing
working experience for long spell of
time-not available.

Held- Para 10

The appointment of the appellants- writ
petitioners was void all initio. The
decision relied upon by the learned
Advocate for the writ petitioners that if
the appellants- writ petitioners have
been working for long years and have
acquired the qualifications subsequently,
would not be applicable in the present
case. In as much as, at the time of initial
appointment they were not major and
there was no provision for relaxing the
age.
Case law discussed: