# Sadhna Upadhyaya v. State of U.P. through Chief Secretary Govt. of U.P. and others

- **Citation:** (2003) 2 ILRA 379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-05
- **Case number:** Civil Misc. Writ Petition No. 2603 of 2001
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadhna-upadhyaya-v-state-of-u-p-through-chief-secretary-govt-of-u-p-and-others-40115
- **Pages:** 12

## Headnote

Sri Sameer Sharma
S.C.

U.P.S.R.T.C.
Employees
(other
than
officer)
Service
Regulation
1981-
(Regulation 4 (1)- employees of U.P.
Govt. Roadways department- after the
joining with Corporation have to give
their option within one month from
absorption- these who never given any
option availed the benefits of E.P.F. for
long period- till their retirement- govt.
not deposited any amount, towards
contribution- not entitled for pension.

Held Para 22

In the present case on the absorption of
an employee holding non-pensionable
post in the Corporation, obligation of the
State Government came to an end. These
employees became employees of the
Corporation and started subscribing to
the EPF after transfer of the fund, from
their account to EPF. They became
members of the employees provident
fund. The State Government was not
required to contribute towards their
pension fund as in the case of employees
who were holding, pensionable post.
Their rights as such crystallized on the
date
of
their
absorption
in
the
Corporation in the year 1982. Now after
their retirement, having received the
retrial benefits and having ceased the
relationship
as
employees
of
the
corporation they cannot agitate their
rights after long period of the time. They
form
a
different
class
than
the
employees of the State Government
holding pensionable posts on the date of
absorption.
Case law discussed:
1992 (1) U.P.L.B.E.C.-242
1991 (2) SCC-141
1990 (4) SCC-207
1997 (1) UPLBEC 439
1992 (1) UPLBEC- 242
1999 (82) FLR-174
1991 (Supply) SCC (II) 141

## Text

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2 All] Sadhna Upadhyaya V. State of U.P. through Chief Secretary Govt. of U.P. and others 379
free flow of traffic, requirements of the
people in the locality etc. and on payment
of tehbazari charges as fixed by the said
authority. On the application of such
persons the Nagar Nigam, Allahabad or
the
concerned
authority
shall
pass
appropriate orders keeping in made the
considerations referred to above.
5. Let a copy of this order be issued
to learned counsel for the petitioner and
Sri Siddiqui today on payment of usual
charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.2.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 2603 of 2001

Ram Chandra Pathak

...Petitioner
Versus
State of U.P. through Secretary and
others

 ...Respondents

Counsel for the Petitioner:
Sri V.K. Burman
Sri I.R. Singh
Sri R.K. Ojha
Sri K.C. Shukla
Sri Ranjeet Saxena

Counsel for the Respondents:
Sri Sameer Sharma
S.C.

U.P.S.R.T.C.
Employees
(other
than
officer)
Service
Regulation
1981-
(Regulation 4 (1)- employees of U.P.
Govt. Roadways department- after the
joining with Corporation have to give
their option within one month from
absorption- these who never given any
option availed the benefits of E.P.F. for
long period- till their retirement- govt.
not deposited any amount, towards
contribution- not entitled for pension.

Held Para 22

In the present case on the absorption of
an employee holding non-pensionable
post in the Corporation, obligation of the
State Government came to an end. These
employees became employees of the
Corporation and started subscribing to
the EPF after transfer of the fund, from
their account to EPF. They became
members of the employees provident
fund. The State Government was not
required to contribute towards their
pension fund as in the case of employees
who were holding, pensionable post.
Their rights as such crystallized on the
date
of
their
absorption
in
the
Corporation in the year 1982. Now after
their retirement, having received the
retrial benefits and having ceased the
relationship
as
employees
of
the
corporation they cannot agitate their
rights after long period of the time. They
form
a
different
class
than
the
employees of the State Government
holding pensionable posts on the date of
absorption.
Case law discussed:
1992 (1) U.P.L.B.E.C.-242
1991 (2) SCC-141
1990 (4) SCC-207
1997 (1) UPLBEC 439
1992 (1) UPLBEC- 242
1999 (82) FLR-174
1991 (Supply) SCC (II) 141

(Delivered by Hon'ble Sunil Ambwani, J.)

1. By the aforesaid batch of writ
petitions, the employees of U.P. State
Road Transport Corporation, retired from
non-pensionable post, have once again
approached
this
court with
prayers
directing respondents to award pension
and other pensionary benefits, after taking
back employees share of provident fund
from them. They have also claimed
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arrears of pension from the date of
superannuation with interest @ 18%.

2. I have heard Sri V.K. Burman, Sri
I.R. Singh Sri R.K. Ojha, Sri K.C. Shukla,
and Sri Ranjeet Saxena, Advocates for
petitioners, and Sri Sameer Sharma for
U.P. State Road Transport Corporation.

3.

The
State
Government,
established a temporary department in
1947,
known
as
U.P.
Government
Roadways to run its own transport
service. On 16.9.1960, a Government
Order was issued laying down revised
terms
and
conditions
of
temporary
employees
of
the
Roadways.
On
28.101960 another Government Order
was issued declaring certain posts in
transport and roadways department as
pensionary posts. This Government Order
was issued in terms of Regulations 350 of
the Civil Service Regulation, as adopted
for its application in U.P. Regulation 350
is quoted as below:

"350- All Establishments whether
temporary or permanent shall be deemed
to be pensionable Establishment.

Provided that it is open to the State
Government to rule that the service in any
Establishment
does
not
qualify
for
pension.
X

X

X

X
Exception: This Rule does not apply to
posts declared pensionable in shram
(Kha) Vibhag G.O. No. 810 (E) XXXVIB- 1069/56 dated May 29, 1963 and
Udyog (Gha) Vibhag G.O. No. 375ED/XVIII-D-AQ-16-EP-60 dated June 5,
1963."

4. For those Government Servants
who
held
non-pensionable
posts,
provision was made for Contributory
Provident Fund (Uttar Pradesh) Rules,
1933. For other government servants
holding
pensionable
posts,
U.P.
Contributory
Provident
and
FundPension-Fund Insurance Rules, 1948 were
made applicable. The Government Order
dated 28.10.1960 declaring certain posts
in
the
Roadways
Department
as
pensionable is quoted as below:

"In
continuation
of
G.O.
No.31040/XXX-135
v/1959
dated
September 16, 1960, I am directed to say
that the question of declaring the
permanent
posts
in
the
Roadways
Organization (including the Roadways
Central
Workshop,
Kanpur)
as
pensionable
has
been
under
the
consideration of Government for some
time
past.
In
this
connection,
the
Governor has been pleased to order that
the permanent gazetted and non gazetted
incumbents
of
the
following
three
categories would be entitled to the
contributory provident fund-cum-pension
Rules:-

(a) The employees working in the office
establishment of the Asstt. General
Manager,
General
Manager,
Service
Manager, Chief Mechanical Engineer,
Roadways Central Workshop, Kanpur and
the Headquarter office of the Transport
Commissioner.

(b) Supervisory staff of the rank of Junior
Station Incharge and above on the traffic
side

(c) Technical staff of the rank of Junior
Foremen and above on the engineering
side; 'rank' means position/status but no
post.
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381
2. The governor has been further pleased
to order, under note 3 below Article 350
of the Civil Services Regulation that the
rest of
the
permanent non-gazetted
Roadways employees both in the traffic
and
Engineering
sections
of
the
Organization, would be treated as nonpensionable. The incumbents of the
permanent non-pensionable posts referred
to above will be eligible for provident
fund benefits in accordance with the
provision of the employees Provident
Fund Act.

3. I am also to add that Temporary
Employment of the categories mentioned
in para 1 above will be entitled to
provident fund benefits as provided under
the Employees Provident Funds Act. As
and when they became, permanent, they
will have the option to elect the
contributory provident fund cum pension
benefits in lieu of Employees Provident
Fund.

5. As regards the grant of Provident
Fund benefits to other temporary and
work charged employees of the Roadways
organization
necessary
orders
have
already
been
conveyed
to
you
in
Government
Order
No.
1488/XXX219/55 dated 29.07.1960."

6.

On
21.04.1961
another
Government Order was issued by which
the posts mentioned in para 1 of the
Government Order dated 28.10.1960 were
treated to be pensionable, with effect from
the date they were converted into
permanent post. Yet another Government
Order dated 08.09.1961 provided that the
permanent
roadways
employees
mentioned in para 2 of the Government
Order dated 28.10.1960 will be treated as
non pensionable and they will be eligible
for Provident Fund in accordance with the
provisions of employees Provident Fund
and Misc. Provisions Act.

7. U.P. State Road Transport
Corporation was constituted under section
3 of the U.P. Transport Corporation Act,
1950
with
effect
from
01.06.1972.
Government Order dated June 07, 1972
provided that a result of constitution of a
Corporation Officers/employees of the
State Roadways Organization and the
officers and staff of Roadways of the
Transport Commissioner, Head Office,
whether permanent or temporary, shall be
considered on deputation under exiting
terms and conditions of their service.
During period of deputation such pay and
allowance would be admissible to these
officers/
employees
as
would
be
admissible to them under the Government
Service. No additional pay and allowance
etc.
shall
be
admissible
to
them
consequent
upon
taking
them
on
deputation. Permanent officers/staff shall
be considered on deputation up to the date
of their absorption permanently under the
corporation, but their period of deputation
of temporary officers/staff shall be at the
most for six months. During this period,
the Corporation should arrange for their
formal appointment in service and also
prepare service rules. As the temporary
officers/staff will be appointed under the
service
of
the
corporation,
their
deputation on outer service condition
shall
be
ended.
Clause
3
of the
Government Order provided that all those
officers and employees of the Transport
Organization, whether permanent on any
post under their substantive government
service or not, willing to be absorbed in
the service of the Corporation under
clause (5), shall be absorbed by the
Corporation in its service and that the
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Corporation shall for this purpose create
posts in necessary number and permanent
and temporary posts of the grade. Clause
4 of the Government order provided as
follows

"However, there shall be compulsory
requirement of the said absorption that
their
service
conditions
under
the
corporation, shall in the case be inferior
to the conditions as were available under
the Government immediately before the
absorption
and
their
tenure
of
Government Service shall be considered
for
their
seniority,
promotion,
pay
fixation, entitlement for leave and for the
benefits or retirement in the same way
and
would
have
been
under
the
Government service."

8. Clause 5 of the Government
Order dated 07.06.1972 provided for
absorption by invitation to be taken in the
service, to accept the offer and the resign
from the post in the Government from the
date they will apply on the prescribed
form. In case the option and the
application are not received within the
time limit, it shall be taken that the office
of the corporation is not acceptable.

...to them and in their case action
under clause 11 shall be taken which
provides that service of such officers and
employees who are purely temporary
under existing government service, shall
be terminated on one months notice on
paying salary off the one month in lieu
thereof, and those who will be permanent
on any post of government cadre, shall be
retired abolishing the post under the
Government held by them, by giving
three months notice under Article 43 of
Civil Service Regulations, and in this
connection pension gratuity etc. due to
them under Rules shall be sanction.
Clause 8 provided that in respect of the
pension, excluding family pension or
gratuity ultimately to be paid to the
officers and employees, the Corporation
shall bear the burden in proportion of
their qualifying service as was received
by the concerned officers/employees
under the Government before going on
deputation under the Corporation, the
liability of the rest shall be on the
corporation. The corporation also took the
liability of family pension. Clause 9
provide that those officers and employees
so absorbed in case they were not on
pensionable job but they are members of
contributory provident fund shall be
substituted by the provisions that in such
cases the Government shall transfer the
contribution with interest thereof payable
under Rules for prior to the first date of
deputation
of
the
concerned
officers/employees in the corporation, in
the account to be opened under the
corporation,
and
thereafter
the
officer/employees so absorbed shall stop
making subscribe to make all their
provident fund account, if any, and the
amount deposited in their account with
the interest thereof, up-to the month just
before the date of transfer payable under
the relevant Government Rules, pass on
the their new provident fund account
which
shall
be
opened
under
the
Corporation.

9. The aforesaid Government Order
dated June 7, 1972 was amended by
Government Order dated July 5, 1972
providing that ion accordance with para
1(1) (Ka) of Government Order dated
June 7, 1972 permanent and temporary
officers/employees who were in the
service of Government roadways shall be
treated to be on deputation in U.P. Road
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2 All] Ram Chandra Pathak V. State of U.P. through Secretary and others
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Transport corporation without fixing any
period for deputation. Para 2 of this
Government Order provided that the
corporation has not made any rules
relating to the service of its officers/
employees under section 45 of the U.P.
Transport Corporation Act and all the
provisions except Clause 1 (1) (Ka) of
Government Order dated June 7, 1972
shall be treated to be cancelled at present,
but, whenever the service rules are framed
by the corporation, these will provide for
the assurance of the Government that
service
conditions
of
the
officers/employees of the Corporation
shall not be inferior to the service
conditions which were available to these
employees, prior to their absorption and
that their seniority, promotion, pay,
pension and leave and other rights and
financial benefits will be considered to be
the same as these employees were getting
while they were in Government service.

10. Reading both the aforesaid
Government Orders together, it is found
that all the employees of the erstwhile
Government
Roadways
holding
permanent pensionable post were entitled
to the same benefits whereas those
employees who were working on daily
wages; appointed on ad-hoc basis; those
who had not completed the minimum
prescribed period of service on the post,
entitling them to pensionary benefits;
those who held post which were not
declared pensionable and those who had
not been removed from service after
domestic enquiry did not draw those
benefits.

U.P.
State
Road
Transport
Corporation
Employees
(Other
than
Officers) Services Regulations, 1981
made in pursuance of powers conferred
under section 45 (2)(c) of the Road
Transport Corporation Act, 1950, in
suppression of all existing regulations and
order were made and published by the
State Government on 19.06.1981. These
were to apply to all the employees (other
than officers) except those who are
working on deputation on contract and as
part time, providing in Regulation 4 that
the regulations shall apply to those
persons who were in service of the State
Government in the U.P. Government
Roadways Department and were placed
on deputation with the Corporation on
terms
of
Government
Order
dated
05.07.1972. Regulations 4(1) provided
that persons who are employees of the
State Government in the erstwhile U.P.
Government Roadways Department, shall
within
one
month
from
the
commencement
of
these
regulation,
inform the appointing authority or such
authority as General Manager may in this
behalf appoint, whether or not they want
to opt for the service of corporation, and
if they opts the terms and conditions of
their service shall be subject to the
provisions of Government Order dated
July 5, 1972. If such persons do not or fail
to opt for the service of corporation, their
services may be liable to be terminated by
the State Government on the ground of
abolition or non-availability of the post on
the principle of last come first go. Sub
regulation (2) provide that existing
employees not covered by sub regulation
(1) or those who are not exempted under
regulation 2, shall, within one month of
the commencement of the regulation,
inform the appointing authority or such
authority as the General Manager, may in
this behalf appoint, whether or not they
want to be governed by the regulations. If
they do not opt, or fail to exercise their
option for being governed by these
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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regulations their terms and conditions of
appointment, so far they are inconsistent
with
these
regulation
shall
stand
rescinded, provided that, in respect of
workmen where any of the provisions of
these regulations in less favorable than the
provisions of the U.P. Industrial Disputes
Act, 1947, the Payment of Wages Act,
1936, the Minimum Wages Act, 1948, the
Factories Act, 1948, or of any other Act
applicable to them, the provisions of such
Act shall apply. It was further provided
that if such persons do not opt for being
governed by these regulations their
services may be terminated in accordance
with the terms and their appointment.

Regulations 39 relevant for the
purposes of pension is quoted as below:

"39(1) (I) Subject to the provisions
of clause (ii) of this sub regulation, an
employee of the Corporation shall not be
entitled to pension, but he shall be entitled
to the retirement benefits mentioned in
sub-regulation(2).

(ii) A person, who was the employee
of the State Government in the erstwhile
U.P. Government roadways and has opted
for the service of the Corporation, shall be
entitled to pension and other retirement
benefits in terms of the G.O. No.
3424/302-170-N-72, dated July 5, 1972.

(2)
Without
prejudice
to
the
provisions of sub regulations (1) an
employee (including an employee who
was
in
the
service
of
the
State
Government
in
the
erstwhile
U.P.
Government Roadways Department, shall
be entitled to the following retirement
benefits:
(i) Employees Provident Fund or the
General Provident Fund, as the case may
be;
(ii) Gratuity in accordance with the
Payment of Gratuity Act, 1972 or the
relevant Government Rules, as may be
applicable.
(iii) amount due under Group Insurance
Scheme, 1972.
(iv) one free family pass in a year for
journey within the State.
(v) a free family pass for his return to his
home from the place of posting at the time
of retirement in case he does not accept
railway fare
(vi) any other benefit that may be allowed
by the Corporation from time to time.

11. Government Orders dated
07.01.1984,16.07.1988,
22.06.1991,
08.09.1992,
18.09.1992,
06.12.1992,
18.09.1992,
04.09.1993,
06.12.1993,
03.02.1994 and 06.05.1995 and the
Government Orders dated 22.06.1995 and
28.11.1998 provided for removal of
difficulties with regard to employees of
erstwhile Government Roadways on nonpensionable post, taken on deputation in
the Corporation and for counting their
service,
and
working
out
of
the
contribution or defaults committed by
them in respect of provident fund
applicable to them; as well as provided
for contribution of the pension of those
employees who were holding pensinable
post. These also took care of the
deputation of some of the employees who
had not given options for their absorption.
These Government Orders, however, did
not substantively vary the right of these
employees who are governed by the
regulations of 1981.

12. The first round of litigation
stated in the year 1990 when some of the
retired employees treated to be holding
non-pensionable post filed claim petitions
before the State Public Service Tribunal,
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2 All] Ram Chandra Pathak V. State of U.P. through Secretary and others
385
Lucknow
claiming
pension
and
pensionary benefits. The tribunal by its
final order dated 15.12.1998 decided the
connected petitions and having considered
the effect of G.O. dated 16.09.1960,
28.10.1960, 08.09.1961, 11.12.1962 and
the effect of establishment of corporation,
the absorption of the claimants in the
service
of
Corporation
and
their
promotion to higher posts, divided these
employees
into
four
categories
as
provided in the aforesaid Government
Order dated 28.10.1960. Relying the
judgment in Har Bux Pathak Vs. U.P.
State Road Transport Corporation, 1992
(1) UPLBEC 242 it found that the
employees belonging to category I, II and
III
being
temporary
employees,
in
exercise of option of their absorption for
being made permanent were not entitled
to pension. The Tribunal later on
excluded those employees who fell in
category IV and did not exercise the
option of absorption. It was held that only
those claimants who ere retired as Junior
Station
Incharge
or
Senior
Station
Incharge in the Traffic, or Junior Foreman
and above in the engineering side alone
can be said to held pensinary posts at the
time of retirement. The other petitioners
who held posts lower to Junior Station
Incharge on the traffic, and Assistant
Mechanic or Mechanic Below Post of
Junior Foreman, did not hold pensionable
post at the time of retirement, and were
entitled only the benefit of Employees
Provident
Fund.
The
temporary
employees on being made permanent on
posts of and above rank of Junior
Assistant Incharge from the Traffic side
and above, the post of Junior Foreman on
engineering side were given option to
switch over from the employees Provident
Fund to the Contributory Provident Fund
Scheme within one year to the date of
their retirement. Those who failed to
exercise their option were not entitled to
pernsionary benefit. Those who did not
complete 10 years of service on a
pensionable post either as permanent or as
temporary employees were also not
entitled to the benefit or pension, and that
they had actually received retirement
benefits under E.P.F. Act. Relying upon
the cases of State of Rajasthan Vs.
Rajasthan Pentioners Samaj 1991 (Supp)
(2) SCC 141 in which Krishena Kumar
Vs. Union of India (1990) 4 (SCC) 207
was followed wherein the decision in the
D.S. Nakara's case was explained and
distinguished; All India Reserve Bank
Retired Officer's Associatin and another
Vs. Union of India, 1992 (Supp) 1 SCC
664 and in the judgment of V.K. Rame
Murthy Vs. Union of India, 1997 (1)
UPLBEC 439, it was held by the Tribunal
that if an Employees who had supper
annuated, having received the benefit of
Employees Provident Fund, the switching
over of his retirement to Contributory
Fund was not permissible.

13. In Har Bux Pathak Vs. State of
U.P., 1992 (1) UPLBEC 242, this court
had the occasion to consider the effect of
the aforesaid Government Order, in
respect of petitioners who retired in the
year 1974 holding the post of Assistant
Traffic Inspector. It was held that the
Government Order dated 28.10.1960 was
concerned primarily with the service
conditions
of
employees
of
U.P.,
Government Roadways generally leaving
the
question
of
admissibility
of
pensionary benefit, to be determined later
by the Government. The policy relating to
payment of pensionary benefit was
spelled out by G.O. dated 28.10.1960, and
not by G.O. dated 16.09.1960. The
Judgment of Har Bux Pathak was
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
386
affirmed in Civil Appeal No. 32 of 1992
decided on 22.09.1992 holding that
Government Order dated 28.10.1960, was
not applicable to all the employees who
were already employed and were to be
employed in Roadways. The appellant
Har Bux Pathak had became member of
the Employees Provident Fund Scheme,
which was applicable to government
servants holding non-pensionable posts
and he also withdrew his share as also the
Government Contribution at the time of
his retirement. The concluding portion of
the judgment in Special Appeal dated
22.09.1992 is quoted as below:

"On a conspectus of the entire
materials we have therefore no hesitation
in concluding that the G.O. dated 28th
October, 1960 was not applicable to all
the
employees
who
were
already
employed and were to be employed in the
Roadways. While on this point, it must be
mentioned that the appellant himself
became a member of the Employees
Provident Fund Scheme framed under the
Employees Provident Fund Act, Which,
as
has
already
been
noticed,
was
applicable only to Government servants
holding non-pensionable posts. Records
further indicate that he also withdrew his
share
of
the
C.P.F.
as
also
the
Government contribution at the time of
his retirement. It is too late in the day,
therefore, for the appellant to turn round
and claim that he had been holding a
pensionable Post.

On the conclusions as above, we
dismiss this appeal without any order as
to costs."

14. Some of the petitioners who
retired from non pensionable post, and
received
the
E.P.F.
including
the
contribution of the employer, filed writ
petition before this court, which were
disposed of with direction to consider
petitioners representation. In leading writ
petition no. 2603 of 2001 an order was
passed by this Court. The representation
was rejected by the impugned order dated
26.05.2000
observing
that
he
was
appointed
as
driver
in
U.P.
State
Roadways in 03.06.1962 and had retired
on 31.05.1994 and as such he was not
entitled to pension in accordance with
G.O. dated 16.09.1960. similar orders
were passed by the Regional Manager in
other writ petition which are subject
matter of challenge in this third round or
litigation.

15. Sri I.R. Singh leading the
arguments submitted in support of Sri
Shiv Narain Singh, in writ petition no.
19736 of 2000 that he was working as
fitter
in
UPSRTC
and
was
given
promotion
as
Junior
foreman
on
21.10.1981, and retired on 30.06.1997. It
was contended that petitioner was State
Government
employee
in the State
Government Roadways and was on
deputation with UPSRTC. He was, as
such, entitled for pension. Petitioner had
not objected for the terms and conditions
of the service of U.P.S.R.T.C. he has
relied upon the provisions of Regulation
39 (1) (ii) in submitting that a person who
was an employee of State Government
under
erstwhile
U.P.
Government
Roadways and had opted for service of
the Corporation, shall be entitled to
pension and other retirement benefits in
terms
of
Government
Order
dated
05.07.1972. The Government Order dated
05.07.1972
provided
that
all
the
employees
whether
permanent
or
temporary who were in Government
Roadways prior to the establishment of
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2 All] Ram Chandra Pathak V. State of U.P. through Secretary and others
387
UPSRTC
will
be
treated
in
the
Corporation on deputation without fixing
any period of deputation and since no
service rules were framed under section
45 of the U.P. Transport Corporation Act,
in respect of such employees, the
provisions contained in para 1(i) (a) of
Government Order dated 07.06.1972 will
be treated to be cancelled and that
whenever service condition were to be
made by the Corporation, these were to be
with the assurance that their service
conditions shall not be inferior to the
service conditions applicable to the
officers and employees of corporation
under U.P. Government Roadways in
respect of period of service, seniority,
promotion, pension, pay, leave and other
pensionary benefit applicable as if they
were in Government Service. It was thus
argued that those petitioners who were
entitled
to
pension
as
Government
Employees will continue to get benefit of
pension and pensionary benefits and thus
having completed 38 years of service on
30.06.1997, petitioner was entitled to
pension.

16. Sri Sameer Sharma, relying upon
the aforesaid judgment in Har Bux Pathak
case,
as
above,
submitted
that
Government Order dated 05.07.1972 only
gave assurance to State Employees who
were
sent
on
deputation
to
the
Corporation that their service condition
will not be inferior to those existing prior
to absorption of such employees in the
Corporation. All such employees were
absorbed
in
government
Roadways
Organization (Abolition of Posts and
Absorption of Employees) Rules, 1982
w.e.f. 28.08.1982 and that till that date all
such employees were working on above
pensionable post even in the Corporation.
There was no change in the service
conditions of such employees and they
were extended benefit of E.P.F. Scheme
availed by them. In reply to argument
with regard to regulation 39 of the Service
Regulation,
1981,
framed
w.e.f.
19.06.1981, it was submitted that no post
in the Corporation is pensionable and
hence the petitioner were not prejudiced
in any manner and that the provisions of
the Government Order dated 05.07.1972
were not violated. He had relied upon the
judgment of this Court with regard to
retirement age of such employees which
was held to be 58 years as in respect of
the employees of the Corporation and this
court held in writ petition no. 29846 of
2002 dated 29.07.2002 that since under
the service conditions applicable to such
employees on 05.07.1972, they were to
retire at the age of 58 years, they cannot
be extended the benefit of extension of
retirement age by the State Government to
60 years in the year 2001; and that
inferior service conditions did not mean
the
applicability
of
such
service
conditions
which
were
subsequently
amended. Sri Sameer Sharma, relied upon
the judgment of Apex Court in T.N.
Electricity Board Vs. R. Veerasamy and
others 1999(82) FLR 174 in respect of his
contention that the employees of the T.N.
Electricity Board who retired prior to
01.07.1986 were not treated alike to the
employees retired after that date, as they
not belong to one class. The workmen,
who had retired after receiving all the
benefits available under the Contributory
Provident Fund Scheme, cease to be
employees of the Board with effect from
the date of their retirement. They form a
separate class.

17. With the aforesaid submissions,
this Court is posed with the question to
reconsider the decision in Har Bux Patha's
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
388
case affirmed by the division Bench in
Special Appeal on the ground mainly that
it did not consider the effect of the
Government Order date 05.07.1972, and
the effect of Regulation 39(ii) of the U.P.
Transport Corporation Employees (Other
than officers) Service Regulation,

18. The assurance given in para 4 of
the Government Order dated June 7, 1972
to all the officers employees of the State
Road Organization that in the event of the
provisions of absorption to be made in
service
regulations
their
service
conditions, under the corporation, shall in
no case be inferior to the conditions as
were available under the Government
immediately before their absorption and
that their tenure of Government service
shall be considered for their seniority,
promotion, pay fixation, entitlement for
leave and for the benefits of retirement in
the same way as would have been under
the Government service, and so far as the
pension is concerned fructified into
statutory regulation 39(1)(ii) of the
Service Regulation of 1981 notified on
19.06.1981. It is provided that a persons
who was employed in the erstwhile
Government and has opted in the service
of Corporation shall be entitled to pension
and other retrial benefit in the terms of
Government Order dated 05.07.1972, it is
found that whereas it amended the
Government Order dated 07.06.1972 by
deleting all the paras except para 1 (1)(ka)
providing for considering all officers and
staff relating to the work on Roadways of
the Transport Commissioner, Head officer
on deputation under the existing terms
and conditions of their service, an
assurance was given that whenever
service regulation shall be framed, the
conditions of service shall not be inferior
to those who were applicable to the
Government
Service
prior
on
their
absorption and that same condition of
service with regard to their seniority,
promotion,
pay
fixation
and
other
financial benefits shall be applicable as
they would be received if they were in the
Government Service. It is admitted that
all the petitioner were absorbed in the
service of the Corporation. Under the
conditions of their service the employees
who were not holding pensionable post
and were contributing to Employees
Provident Fund, continued to subscribe to
the fund after their absorption even after
their
absorption.
They
became
the
employees of the Corporation and their
service conditions were regulated by the
U.P. State Road Transport Corporation
Employees (Other then Officers) Service
Condition,
1981.
As
Corporation
employees, they were not entitled to
pension. Petitioners at the time of
absorption in service, as the employees of
the U.P. Roadways on deputation with
Corporation,
were
not
holding
pensionable posts and thus it cannot be
said that upon their absorption, the service
conditions with regard to, the fact that
they were not entitled to pension was less
advantageous than it was applicable to the
employees of Roadways before their
absorption.

19. The Government Order did not
have the effect of legislation by reference.
The intention of the Government Order
dated 05.07.1972 was not to continue the
rules applicable to government service
applicable
to
the
employees
of
Corporation
holding
non-pensionable
service.
Having
been
absorbed
as
employees of the corporation, the service
regulation applicable to the corporation
became applicable to such employees.
The assurance given in the Government
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2 All] Ram Chandra Pathak V. State of U.P. through Secretary and others
389
Order dated July 5, 1972 was subject to
the regulations to be framed for the
employees of the Corporation, and thus
the later portion of the assurance that their
service condition shall not be less
advantage, was applicable until the
service
rules
were
framed
by
the
Corporation with regard to condition of
their service. In case service regulation,
1981 were not acceptable to such
employees, they could have opted out
from the service of the Corporation under
regulation
4(1)(iii)
of
the
Service
Regulations, 1981.

20. In writ petition no. 29846 of
2002; Prem Shanker Misra Vs. State of
U.P. same view has been taken by this
Court in its judgment and order dated
29.07.2002 in respect of the age of
superannuation of the employees of the
U.P. Government Roadways absorbed in
the service of the Corporation. In this
case, the Court held that the increase of
age of superannuation by the State
Government
vide
notification
dated
28.11.2001 will not be applicable to these
employees as it was not a part of their
service
conditions
and
that
the
amendment in the service condition shall
not be applicable after their absorption in
the Corporation.

21. There is yet another aspect of the
matter that almost all petitioners have
retired long age. For example in writ
petition no. 2603 of 2001 petitioner
retired on 30.05.1994 as Senior Station
Incharge of the Corporation, Fazalganj
Depot, Kanpur; in Writ petition No. 2604
of 2001 petitioner retired from the post of
Driver on 28.02.1986 working under
Regional Manager of the Corporation,
Allahabad Region, Allahabad and writ
petition no. 19726 of 2002 petitioner
retired on 30.06.1997 from Varanasi
Gramin Depot. All the petitioners retired
on 30.06.1997 from Varanasi Gramin
Depot. All the Petitioners have received
retrial
benefits
including
the
entire
amount of employees provident fund,
gratuity and other benefits. They were
absorbed in the service of the Corporation
in the year 1982 and thereafter till the date
of their retirement they did not make and
protest with regard to the applicability of
the Regulations. Having accepted the
terms and conditions of the employment
as employees of the Corporation, they
cannot be allowed to touch around after
their retirement and claim applicability of
the service condition as Government
Service on deputation with corporation. In
State
of
Rajasthan
Vs.
Rajsthan
Pensioners Samaj, 1991 (Supp) (2) SCC
141 Supreme Court upheld the judgment
of Constitution Bench in Krishena Kumar
Vs. Union of India (1990) 4 SCC 207;
explained and clarified the judgment of
Apex Court in D.S. Nakara's case (1983)
1 SCC 305 and held that contributory
provident fund retirees are not entitled to
claim a right to switch over from
Provident Fund Scheme to pension
scheme on the ground of violation of
Article 14 of the Constitution of India. It
was found that widows of Jodhpur CPF
retirees and pension retirees do not form
one homogeneous class but form two
different classes and therefore the widows
of CPF retirees are not entitled to opt for
pension scheme, as the right to opt for
pension scheme cannot be inherited or
exercised by the widows of the retirees.

22. It was held in Krishena Kumar's
case that the right of each individual
provident fund retirees crystallized on his
retirement after which no continuing
obligation remains, while on the other
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
390
hand, there is a continuing obligation of
the State in respect of pension retirees. In
the present case on the absorption of an
employee holding non-pensionable post in
the Corporation, obligation of the State
Government came to an end. These
employees became employees of the
Corporation and started subscribing to the
EPF after transfer of the fund, from their
account to EPF. They became members of
the employees provident fund. The State
Government
was
not
required
to
contribute towards their pension fund as
in the case of employees who were
holding, pensionable post. Their rights as
such crystallized on the date of their
absorption in the Corporation in the year
1982. Now after their retirement, having
received the retrial benefits and having
ceased the relationship as employees of
the corporation they cannot agitate their
rights after long period of the time. They
form a different class than the employees
of
the
State
Government
holding
pensionable
posts
on
the
date
of
absorption.

All the writ petitions are, accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 37817 of 2001

Smt. Padma Pathak

...Petitioner
Versus
Managing Director, Punjab Natioal Bank,
New Delhi and another ...Respondent

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri B.P. Singh
Sri Suman Sirohi

Counsel for the Respondents:
Sri K.L. Grover
Sri Ramesh Singh

Constitution of India: Article 226 -
Compassionate appointment - denied on
the ground that widow is getting post
retrial benefits apart from pension of
Rs.3099/- per month applicant suffering
heavy financial crises due to long terms
of treatment of her husband - held
laconic order without disclosing any
reason - illegal - direction issued for
reconsideration in view of observation
made in the judgment.

Held - para 13

The recording of reason is yet another
aspect
constituting
an
essential
competent of natural justice, which all
the authorities exercising power under
the scheme or rules are required to do.
As stated supra, a laconic order has been
passed and no reasons have been
assigned. The laconic order cannot be
upgraded to the pedestal of an order
based on reasons. The basic principle of
Constitution makes it imperative for
administrative authorities clothed with
the
duty
to
decide
something
on
consideration of policy or scheme, to act
judicially
as
a
hedge
against
arbitrariness. It is in this conspectus that
reasons are the imperative requirements
for an administrative authority and in
the instant case, the authorities having
not assigned any reason, have acted in
antagonism of the basic principles of the
Constitution and as such the order
cannot be sustained.
Case law discussed:
2000 (3) ESC 1618 (SC)

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Petitioner, widow of Suresh
Chandra Pathak, claim appointment on
compassionate ground under the scheme