# Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC

- **Citation:** (2011) 1 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-17
- **Case number:** Civil Misc. Writ Petition No. 63506 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maharashtra-state-road-transport-corporation-and-another-v-casteribe-rajya-41847
- **Pages:** 7

## Headnote

Constitution of India-Article 226-Post
retiral
benefits-petitioner
initially
appointed on 08.10.64 in Junior High
School-on
fixed
pay-on
28.02.1997
regular
pay
scale
given-retired
on
01.07.99-refusal on ground of lack of
minimum
qualifying
service-heldmisconceived-from
service
booksubstantial appointment is clear-salary
in different mode cannot be basis of
discrimination-direction issued to treat
the
initial
date
of
appointment
as
substantive one and taking into accountpetitioner possess qualifying period of
service
for
pension-direction
issued
accordingly.

Held: Para 12

Learned counsel for the respondents at
this stage attempted to argue that the
period
during
which
the
petitioner
received fixed pay was in fact part time
appointment and, therefore, this period
would not qualify for pension. This
averment is wholly beyond the pleadings
and no such a case has been taken in the
entire counter affidavit. The service book
placed on record, which is not disputed
by
respondents,
clearly
shows
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
appointment
of
the
petitioner
on
substantive post. Though only extract of
service book has been placed and not
entire one but whatever has been placed
shows his appointment substantive. In
the entire counter affidavit there is not
even a whisper or suggestion that
appointment of the petitioner on fixed
pay was a part time appointment. The
only thing mentioned is that he was
appointed and paid salary on fixed pay
basis. Later on given time scale of pay.
This by itself would not mean that the
earlier appointment of petitioner was not
substantive, regular or full time.

This submission is thus deserved to be
rejected.
Case law discussed:
JT (1996) 10 Sc 679

## Text

1 All] Beni Prasad V. State of U.P. and others
225

(iii)
Maharashtra
State
Road
Transport Corporation and another
VS.
Casteribe
Rajya
Parivahan
Karmchari Sanghatana, (2009) 8 SCC
556

(iv) Bhart Bank Ltd. Delhi Vs.
Employees of Bhard Bank Ltd. Delhi,
AIR 1950 SC 37

11. In the first two authorities, the
authorities mentioned above were not
brought to the notice of the Bench which
decided the said cases. In the third
authority, it was held that in spite of
Constitution Bench judgment of State of
Karnataka vs. Uma Devi 2006 (4) SCC
1, labour court can direct regularisation/
permanence. In the instant case no such
question is involved. In the last case it
was held that labour court/ industrial
tribunal even though technically not a
Court still it discharges judicial functions
and that labour court while deciding
industrial
disputes
has
to
override
contracts and can create rights, which are
opposed to contractual rights.

12. Accordingly, writ petition is
allowed. Impugned award is set aside.
The amount of Rs.50,000/- paid to the
workman respondent No.2 is treated to be
consolidated damages/ compensation. The
salary which the workman must have
received since 01.05.2008 till date shall
also not be refundable.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 63506 of 2008

Beni Prasad

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

Counsel for the Petitioner:
Sri J.P. Gupta
Sri Deepak Kr. Srivastava

Counsel for the Respondents:
Sri Vimal Chandra Mohan
C.S.C.

Constitution of India-Article 226-Post
retiral
benefits-petitioner
initially
appointed on 08.10.64 in Junior High
School-on
fixed
pay-on
28.02.1997
regular
pay
scale
given-retired
on
01.07.99-refusal on ground of lack of
minimum
qualifying
service-heldmisconceived-from
service
booksubstantial appointment is clear-salary
in different mode cannot be basis of
discrimination-direction issued to treat
the
initial
date
of
appointment
as
substantive one and taking into accountpetitioner possess qualifying period of
service
for
pension-direction
issued
accordingly.

Held: Para 12

Learned counsel for the respondents at
this stage attempted to argue that the
period
during
which
the
petitioner
received fixed pay was in fact part time
appointment and, therefore, this period
would not qualify for pension. This
averment is wholly beyond the pleadings
and no such a case has been taken in the
entire counter affidavit. The service book
placed on record, which is not disputed
by
respondents,
clearly
shows
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
appointment
of
the
petitioner
on
substantive post. Though only extract of
service book has been placed and not
entire one but whatever has been placed
shows his appointment substantive. In
the entire counter affidavit there is not
even a whisper or suggestion that
appointment of the petitioner on fixed
pay was a part time appointment. The
only thing mentioned is that he was
appointed and paid salary on fixed pay
basis. Later on given time scale of pay.
This by itself would not mean that the
earlier appointment of petitioner was not
substantive, regular or full time.

This submission is thus deserved to be
rejected.
Case law discussed:
JT (1996) 10 Sc 679

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard Sri Deepak Kumar
Srivastava,
learned
counsel
for the
petitioner and Sri Vimal Chandra Mishra,
Advocate who has put in appearance on
behalf of respondents no. 2 to 5 and has
filed counter affidavit. Learned counsel
for the petitioner states that he does not
propose to file rejoinder affidavit and the
matter may be heard on the basis of
record of the writ petition and averments
made in the counter affidavit.

2. The grievance of the petitioner is
that of non-payment of retiral benefits by
the respondents. The respondents are
denying retiral benefits to the petitioner
on the ground that he did not complete
minimum qualifying service attracting the
provisions of pension etc. The petitioner
claims to have been appointed as Peon on
8.10.1964 in the office of respondent no.
2 by the Additional Basic Education
Officer, Banda and on attaining the age of
superannuation he retired on 31.1.1999
but the retiral benefits have not been paid
to him. Hence he made representations,
copies whereof are annexed as annexure 3
to the writ petition.

3. Respondents have stated in the
counter affidavit that the petitioner was
initially appointed in Junior High School
on 8.10.1964 on a fixed pay of Rs.40/- per
month and he worked as such till
28.2.1997, whereafter he was placed in
the regular pay scale of Rs.750-940 with
effect from 1.3.1997 and on attaining the
age of superannuation he retired on
31.1.1999. It is said that since the
petitioner
was
regularised
only
on
1.3.1997 and his earlier service was on
fixed pay he did not qualify for pension in
view of the decision taken by the State
Government as communicated by Special
Secretary, of the U.P. Government on
13.6.2007.

4. The service book shows that in
column
9
the
date
of
substantive
appointment
of
the
petitioner
is
mentioned
as
1.7.1990.
Thus
the
petitioner worked on substantive post
from 1.7.90 to 1.7.1999. The pay was
revised with effect from 1.1.1986 to 750/-
and entry has been made accordingly. The
entry in the service book clearly shows
that the petitioner was paid salary on
fixed pay basis but the post was
substantive one.

5. Moreover, this court also finds
that though the service book was prepared
on 2.1.1980 but in photocopy of first
page, his the date of joining is shown as
1.7.1990.

6. The term 'post', 'pay' and 'pay
scale' have different connotations. The
post refers to a unit and office. The pay
refers to the amount drawn by an
1 All] Beni Prasad V. State of U.P. and others
227
employee. Pay scale broadly refers to the
concept of a graded limit having minima
and maxima i.e minimum pay and
maximum pay running for a period of
time with self contained rate of increased
pay every year etc.. There is no fixed
concept that for every post there shall be
pay/pay scale of a particular nature; pay
shall be of a particular nature or that a pay
scale be of a particular nature. It may
vary. Its structure or constituent may
depend on the policy of the employer.
This distinction has been noticed in as
much as different terms relating to post,
pay and pay scale have been defined in
Fundamental
Rules.
The
relevant
provisions defining 'Pay', "Personal Pay"
"Presumptive
Pay"
"Special
Pay"
"Oversea
Pay",
Technical
Pay",
"Substantive Pay", "Time Scale Pay",
"Permanent
post",
"Temporary
Post,
"Tenure Post" are as under:

"Pay:- Pay means amount drawn
monthly by a Government servant as-

(i) the pay, other than special pay or
pay granting in view of his personal
qualifications, which has been sanctioned
for a post held by him substantively or in
an officiating capacity, or to which he is
entitled by reason of his position in a
cadre; and

(ii) overseas pay, technical pay,
special pay and personal pay; and

(iii) any other emoluments which
may be specially classed as pay by the
Governor."

"Personal Pay:- Personal pay means
additional pay granted to a Government
servant-

(a) to save him from a loss of
substantive pay in respect of a permanent
post other than a tenure post due to a
revision of pay or to any reduction of such
substantive pay otherwise than as a
disciplinary measure; or

(b) in exceptional circumstances, on
other personal considerations."

"Presumptive
Pay:-
Presumptive
pay of a post, when used with reference to
any
particular
Government
servant,
means the pay to which he would be
entitled if he held the post substantively
and were performing its duties; but it
does not include special pay unless the
Government
servant
performs
or
discharges the work or responsibility, or
is exposed to the unhealthy conditions in
consideration of which the special pay
was sanctioned."

"Special Pay:- Special pay, means
an addition, of the nature of pay, to the
emoluments of a past or of a Government
servant, granted in consideration of-

(a) the specially arduous nature of
the duties; or

(b) a specific addition to the work or
responsibility."

"Overseas Pay:- 1. Where it is
provided
in
the
rules
regulating
conditions of appointment to the service
or post, that the pay of the service or post
shall include overseas pay. Such overseas
pay shall, unless it be otherwise expressly
provided in such rules, be drawn only by
a member of the service or an incumbent
of the post whose domicile at the date of
his first substantive appointment to such
service or post was elsewhere than in
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Asia. Provided that no such Government
servant shall be entitled to overseas pay
who, prior to such appointment, has, for
the purpose of his appointment to a post
under
the
Government
or
of
the
conferment upon him by the government
of any scholarship, emoluments or other
privilege, claimed and been deemed to be
of Indian domicile.

2. (i) The domicile of a person shall
be determined in accordance with the
provisions set out in the Schedule to these
rules.

(ii) No Government servant who
after his appointment to a service or post
acquires a new domicile shall thereby
lose his right to or become entitled to
overseas pay.

(iii) A Government servant who has
been drawing overseas pay in good faith
and whose domicile is challenged should
receive a personal allowance equal to the
amount of overseas pay hitherto drawn
the
allowance
to
be
absorbed
in
increments, from the date when his
domicile is questioned, and should
continue to enjoy such allowance in the
event of an eventual adverse decision."

"Technical Pay:- Technical pay
means pay granted to a Government
servant in consideration of the fact that he
has
received
technical
training
in
Europe."

"Substantive Pay:- Substantive pay
means the pay other than special pay,
personal pay or emoluments classed as
pay by the Governor under Rule 9 (21)
(ii), to which a Government servant is
entitled on account of a post to which he
has been appointed substantively or by
reasons of his substantive position in a
cadre."

"Time Scale Pay:- (a) Time-scale
pay means pay which, subject to any
conditions prescribed in these rules, rises
by periodical increments from a minimum
to a maximum. It includes the class of pay
formerly known as progressive.

(b) Time-scales are said to be
identical if the minimum, the maximum
the period of increment and the rate of
increment of the time-scale are identical.

(c) A post is said to be on the same
time-scale as another post on a time-scale
if the two time-scales are identical and
the posts fall within a cadre, or a class in
a cadre, such cadre or class having
created in order to fill all post involving
duties
of
approximately
the
same
character or degree of responsibility, in a
service or establishment or group of
establishments so that the pay of the
holder
of
any
particular
post
is
determined by his position in the cadre or
class and not by the fact that he holds that
post."

"Permanent post:- Permanent post
means a post carrying a definite rate of
pay sanctioned without limit of time."

"Temporary Post:- Temporary post
means a post carrying a definite rate of
pay sanctioned for a limited time."

"Tenure Post:- Tenure post means a
permanent post which an individual
Government servant may not hold for
more than a limited period."

7. Fundamental Rule 19 provides
that pay of a Government servant shall
1 All] Beni Prasad V. State of U.P. and others
229
not exceed the pay sanctioned by a
competent authority for the post held by
him. It also provides that no special or
personal pay shall be granted to a
Government servant without the sanction
of the Government. It clearly means that
pay in respect of a post may or may not
have any reference with time scale of pay
but it may be fixed pay provided by the
Government. When a time scale of pay is
prescribed for a post, the manner in which
the pay shall be fixed in that time scale of
pay has been prescribed in various
provisions Fundamental Rules i.e, Rules
22 to 29 and 31. It is thus evident that,
though desirable, but it may not be
necessary that every post must have time
scale of pay. It is always open to the
Government to create post with fixed
monthly pay and it is not necessarily
inferior in any manner to a post which is
created with time scale of pay. The
provision relating to pension nowhere
contemplate that only such service shall
qualify for pension which is in regular
time scale of pay. This assumption is
unfounded. The learned Standing Counsel
could not place before this Court any
provision which restrict the application of
qualifying service to such a post where
the incumbent gets salary in a time scale
of pay and not fixed pay.

8. What service would qualify for
pension is clear from Article 361 of Civil
Services Regulations which reads as
under:

"361. The service of an officer does
not qualify for pension unless it conforms
to the following three conditions:

First- The service must be under
Government.

Second- The employment must be
substantive and permanent.

Third- The service must be paid by
Government."

9. It is not in dispute that in the
matter of teachers of a primary school
maintained by Basic Education Board, the
provisions applicable to the comparable
Government Servants are applicable in so
far as specific provisions have not been
made for such teachers. Article 361
contemplates only three things: firstly, it
is service under Government which in the
case of teachers of Basic Education Board
would be that the service is under the
Board; secondly, the employment is
substantive and permanent and thirdly it is
paid by the Government. Here also the
word "Government" will mean Basic
Education Board since the primary
schools in question are being run by the
Basic Education Board. In fact for the
purpose of applicability of the provisions
of Government pension the learned
Standing Counsel did not dispute that
certain
provision
of
Civil
Services
Regulations including Article 361 are
attracted & that would determine whether
the service rendered by petitioner would
qualify for pension or not. He, however,
could not place anything before this Court
to show that service rendered on a
sanctioned substantive post having at the
relevant point of time sanctioned fixed
monthly pay would not qualify for
pension.

10. Though slightly in a different
context, in Anuj Kumar Dey & another
vs. Union of India & others JT (1996) 10
SC 679 it was contended that the
petitioner was not enrolled since he was
paid during training a fixed pay. An
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
attempt to draw force in the submission
was made by referring to Section 12 of
the Navy Act. The Apex Court in
paragraph no. 8 and 12 of the Judgment
held as under:

"8. Section 12 lays down that where
a person after his enrolment has for a
period of three months from the date of
such enrolment been in receipt of pay as
Sailor, he shall be deemed to have been
duly enrolled. Now, there is no dispute
that the appellant had received pay
regularly after his enrolment. It has been
contended on behalf of the respondents
that the appellant was allowed an
allowance during the term of the training.
The case of the appellant is that he used
to get a fixed pay during the period of the
training. The fact that he used to get a
fixed pay does not go to show that he did
not receive pay regularly after his
enrolment.

12. The qualifying period for earning
pension is service of 15 years under the
Navy. Having regard to the facts of the
case and the documents annexed to the
appeal, there is little doubt that the
training period as Artificer Apprentice
will
have
to
be
included
in
the
computation of the qualifying period of
service. Regulation 79 lays down that all
service from the date of enrolment or
advancement to the rank of ordinary
seaman or equivalent to the date of
discharge shall qualify for pension or
gratuity.
Therefore,
the
date
of
advancement is not the only starting point
for computation of the qualifying period
of service. In the case of the appellant the
date of enrolment should be the material
date. He was administered oath as a
Sailor even before the date of his
advancement to the rank of Electrical
Artificer Vth Class. In fact, the Discharge

Certificate issued by the Navy to the
appellant is to the following effect and
puts the matter beyond any doubt:

This is to certify that ANUJ KUMAR
DEY, CHIEF ELECTRICAL ARTIFICER
(AIR), NO. 052264-H has served in the
Indian Navy from 12 August 1971 to 31ST
JANUARY, 1988 as per details overleaf.
This is a statutory certificate which has to
be given under Sub-section (4) of Section
17 of the Navy Act. The Discharge
Certificate must state the full period of
service in the Indian Navy. According to
the calculation made by the Navy itself,
this period of service is more than the
qualifying period of 15 years."

11. I may also point out, at this stage
that placement of the petitioner in time
scale of pay in 1997 did not affect his
status qua the post he was holding since
1964. The only distinction it could make
after 28.2.1997 is that the mode of
payment got changed and from fixed pay
it became time scale of pay.

12. Learned counsel for the
respondents at this stage attempted to
argue that the period during which the
petitioner received fixed pay was in fact
part time appointment and, therefore, this
period would not qualify for pension. This
averment is wholly beyond the pleadings
and no such a case has been taken in the
entire counter affidavit. The service book
placed on record, which is not disputed by
respondents, clearly shows appointment
of the petitioner on substantive post.
Though only extract of service book has
been placed and not entire one but
whatever has been placed shows his
1 All] Amrit Lal V. State of U.P. and others
231
appointment substantive. In the entire
counter affidavit there is not even a
whisper or suggestion that appointment of
the petitioner on fixed pay was a part time
appointment. The only thing mentioned is
that he was appointed and paid salary on
fixed pay basis. Later on given time scale
of pay. This by itself would not mean that
the earlier appointment of petitioner was
not substantive, regular or full time.

This submission is thus deserved to
be rejected.

13. Moreover, the question whether
petitioner was a part time appointee or not
is a question of fact and unless
appropriate pleadings would have been
there and relevant material is placed on
record the counsel for respondents cannot
be permitted to create a doubt on the
nature of appointment of the petitioner by
mere oral submissions in respect of
factual aspect which is not pleaded as
such. The respondents had to adhere and
confine to their pleadings. In my view, the
entire
earlier
service
rendered
by
petitioner even though he was paid salary
on monthly fixed pay basis would qualify
for pension, in the absence of any
provision otherwise.

14. In the result the writ petition is
allowed. The respondents are allowed to
treat service of the petitioner as regular
and substantive from 8.10.1964 and
determine
his
retiral
benefits
in
accordance with law within two months
and pay arrears within one month
thereafter with interest of 10%.

15. Learned counsel for the
respondent has misled the Court and made
wrong factual argument going beyond the
pleadings. The manner in which the
learned counsel for the respondents
attempted to mislead the Court during
arguments
and
the
way
in
which
respondents have denied pension and
other retiral benefits to the petitioner, and
have harassed the petitioner, in my view,
entitle the petitioner cost which I quantify
to Rs.25,000/-. This shall also be paid
alongwith arrears as directed above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE VEDPAL, J.

Review Petition No. 498 of 2010.

Amrit Lal

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

Constitution of India Article 226-Power
of Review-if Court by exercising power
as Writ Court-committed any mistakeplenary power of review based on equity
and fairness-scope of review under writ
jurisdiction
discussed-but
can
not
consider fresh ground and fresh hearing
in garb of review

Held: Para 5

In so far as the power of this court to
review its decision given under Article
226 of the Constitution of India is
concerned, it is now settled law that
High Court has inherent power to review
its decision given under Article 226 of
the Constitution of India to prevent
miscarriage of justice or to correct grave
and pulpable errors committed by it. It is
settled law that if the court in exercise of
its power, has committed any mistake, it
has the plenary power to correct its own
mistake. Neither rule of procedure nor
technicalities can stand in its way. The
entire
concept
of
writ
jurisdiction