# U.P.S.R.T.C., Lko . & Ors v. Shubash Chandra Gautam & Anr

- **Citation:** (2021) 9 ILRA 990
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** Special Appeal No. 177 of 2019
- **Bench:** Devendra Kumar Upadhyay, Ajai Kumar Srivastava -I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-lko-ors-v-shubash-chandra-gautam-anr-47627
- **Pages:** 11

## Headnote

A. Service Law - UP Road Transport
Corporations Act, 1950 - 34 - GO dated
10.10.2012 and Circular dated 25.10.2012
-
Pension
-
Entitlement
-
Initially
appointed against non-pensionable post;
however, subsequently promoted against
pensionable post - Exclusion from the
benefit
of
departmental
pension
-
Permissibility - Held, there cannot be any
doubt about the power of the State
Government emanating from Section 34 of
1950 Act to issue instructions or give
directions to the Corporation in respect of
conditions of service of the employees of
the Corporation - GO dated 10.10.2012
does
not
differentiate
between
the
employees who were getting pension
under the EPF Pension Scheme and those
who were not getting such benefit.
However,
contrary to
the
stipulation
available in the GO dated 10.10.2012, the
Corporation while issuing the circular
dated 25.10.2012 has drawn such a
distinction - Division Bench found no
illegality in writ order quashing circular
dated 25.10.2012. (Para 30 and 35)
B. Service law - Pension - Significance -
Payment of pension forms a condition of
service. (Para 30)
Appeal dismissed. (E-1)
Cases relied on :-

## Text

990 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizable offence then it would be free to
report such offence."

21. The order of the learned Single
Judge quashing the orders stopping the
payment of salary is affirmed subject to the
liberty to examine the legality/propriety of
the appointments given above. Special
Appeal (Defective) No. 225 of 2021 and
Special Appeal (Defective) No. 234 of
2021 are disposed off accordingly.
----------
(2021)09ILR A990
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.08. 2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAY, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA -I, J.

Special Appeal No. 177 of 2019
AND
Special Appeal No. 178 of 2019
AND
Special Appeal No. 183 of 2019

U.P.S.R.T.C., Lko . & Ors. ...Appellants
Versus
Shubash Chandra Gautam & Anr.
 ...Respondents

Counsel for the Appellants:
Ratnesh Chandra

Counsel for the Respondents:
Ghaus Beg

A. Service Law - UP Road Transport
Corporations Act, 1950 - 34 - GO dated
10.10.2012 and Circular dated 25.10.2012
-
Pension
-
Entitlement
-
Initially
appointed against non-pensionable post;
however, subsequently promoted against
pensionable post - Exclusion from the
benefit
of
departmental
pension
-
Permissibility - Held, there cannot be any
doubt about the power of the State
Government emanating from Section 34 of
1950 Act to issue instructions or give
directions to the Corporation in respect of
conditions of service of the employees of
the Corporation - GO dated 10.10.2012
does
not
differentiate
between
the
employees who were getting pension
under the EPF Pension Scheme and those
who were not getting such benefit.
However,
contrary to
the
stipulation
available in the GO dated 10.10.2012, the
Corporation while issuing the circular
dated 25.10.2012 has drawn such a
distinction - Division Bench found no
illegality in writ order quashing circular
dated 25.10.2012. (Para 30 and 35)
B. Service law - Pension - Significance -
Payment of pension forms a condition of
service. (Para 30)
Appeal dismissed. (E-1)
Cases relied on :-
1. Krishena Kumar Vs U.O.I. & ors., (1990) 4
SCC 207
2. D. S. Nakara & ors.Vs U.O.I.,(1983) 1 SCC
305
3. S. P. Dubey Vs Madhya Pradesh State Road
Transport Corporation & anr. 1991 Supp (1) SCC
426

(Delivered by Hon'ble Devendra Kumar
Upadhyay, J.
&
Hon'ble Ajai Kumar Srivastava -I, J.)

1. These special appeals filed by the
appellant-U.P.
State
Road
Transport
Corporation (hereinafter referred to as the
Corporation) raise similar questions of law
and facts and are therefore being decided
by the common judgment, which follows as
under :

2. Special Appeals No.177 of 2019
and 178 of 2019 assail the judgment and
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
991
order dated 22.02.2019 passed by Hon'ble
Single
Judge
whereby
Writ
Petition
Nos.385 (SB) of 2014 and Writ Petition
No.728 (SB) of 2014 were allowed, the
orders dated 05.12.2013 and 19.02.2013
whereby the benefit of departmental
pension to the petitioners of the said writ
petition was denied, have been quashed and
a portion of circular dated 25.10.2012
issued by the Corporation sofar as it
excludes the employees getting the benefit
of pension under the EPF Pension Scheme
from being paid the departmental pension,
has also been quashed. Learned Single
Judge, accordingly, while allowing the writ
petitions by the said judgment dated
22.02.2019
has
further
directed
the
Corporation to fix the pension of the
petitioners and make payment thereof after
adjusting the amount of employer's share in
the EPF Pension Scheme which had been
received by the petitioners. The learned
Single Judge has further provided that
neither the petitioners nor the Corporation
shall claim any interest either on pension
amount or on amount of employer's share
in the EPF Pension Scheme.

3. In Special Appeal No.183 of 2019,
the order under challenge has been passed
by learned Single Judge, dated 22.02.2019
whereby the Writ Petition No.1530 (SS) of
2014 has been allowed and the benefits
made available to the petitioners in Writ
Petition No.385 (SB) of 2014 and 728 (SB)
of 2014 vide judgment and order dated
22.02.2019 have been extended to the
petitioner of Writ Petition No.1530 (SS) of
2014 as well.

4. We have heard Shri Ratnesh
Chandra along with Shri Abhinav Singh,
learned counsel representing the U.P. State
Road Transport Corporation and Shri Gaus
Beg, learned counsel representing the
respondents (who shall hereinafter be
referred
to
as
the
petitioners
for
convenience) in all the special appeals and
have also perused the record available
before us.

5. U.P. State Road Transport
Corporation was established on 01.06.1972
under Section 3 of Road Transport
Corporations
Act,
1950
(hereinafter
referred to as the 1950 Act) and has
accordingly been incorporated as a body
corporate
having
its
own
perpetual
succession and a common seal. Prior to
incorporation of the Corporation, in the
State of U.P., Public Transport was being
taken care of by a government department
which was commonly known as U.P.
Government Roadways Organization. On
establishment and incorporation of the
Corporation under Section 3 of the Act,
1950 in the State of Uttar Pradesh, under a
government
arrangement
the
assets,
liabilities and even the employees working
in the erstwhile Government Roadways
Organization were transferred to the newly
established Transport Corporation.

6. All the employees working in the
Government Roadways Organization were
required to submit their options, if they
wanted their services to be transferred to
and subsequently absorbed in the newly
created Corporation. That is how initially
the
human
resource
in
the
newly
established
Corporation
was
inducted/created.

7. By means of a Government Order
dated 05.07.1972, it was also provided that
service
conditions
of
the
employees
working
in
Government
Roadways
Organization, who gave their options for
being absorbed in the services of the
Corporation, would not in any manner be
992 INDIAN LAW REPORTS ALLAHABAD SERIES
inferior to the service conditions, which
they had enjoyed while working in the
Government
Roadways
Organization.
However, for governing the condition of
service of the employees of the Corporation
no service rules or regulations were framed
prior to framing of the U.P. State Road
Transport
Corporation
(Other
than
Officers) Service Regulations, 1981, which
were notified on 19.06.1981. The concept
of retirement benefits was accordingly
introduced by promulgating the said 1981
regulations as Regulation 39 provided that
an employee of the Corporation shall not be
entitled to pension but he shall be entitled
to retirement benefits mentioned in SubRegulation 2 of Regulation 39. Thus, the
employees of the Corporation were not
made available the benefit of pension ;
rather certain retirement benefits provided
in Regulation 39 were made available to
them. However, the said provision carves
an exception in respect of those employees
who were earlier working with the State
Government in the Government Roadways
Organization
and
were
subsequently
absorbed in the services of the Corporation
and such employees were, thus, made
entitled to pension and other retirement
benefits in terms of the Government Order
dated 05.07.1972. This exception has a
rationale as the Government Order dated
05.07.1972 specifically provided that those
government employees who were to opt to
be absorbed in the services of the
Corporation shall not be given benefits,
which may be inferior to the benefits they
would have got had they continued to work
and discharge their duties as government
employees.

8. It has been stated at the Bar that
prior to incorporation of the Corporation, in
the Government Roadways Organization
there
were
two
categories
of
posts
generally and the classification based on
payment of pension did exist, according to
which certain posts were pensionable and
certain other posts were non-pensionable.
On transfer/merger of assets and liabilities
and other ancillary things which earlier
belonged to U.P. Government Roadways
Organization with the newly created
Corporation, the posts of both these
categories, namely, pensionable and nonpensionable
got
transferred
to
the
Corporation as well. Accordingly, even
after establishment of the Corporation
appointments were made both against
pensionable and non-pensionable posts.

9. All three petitioners in these
matters were initially appointed in the
Corporation against non-pensionable posts,
however, they were subsequently promoted
in pensionable posts. The details of service
rendered by the petitioners are given below
:

1.Subhash Chandra Gautam

Srl.
No.
Date
Appointe
d/Promot
ed
Post
Natur
e
of
Post
1.
18.07.197
3
Appointe
d
Assist
ant
Mecha
nic
NonPensio
nable
2.
26.07.197
7
Promoted Mecha
nic
NonPensio
nable
3.
14.08.19
78
Promoted Junior
Forem
an
Pensio
nable
4.
17.07.198
4
Promoted Senior
Forem
an
(Grad
Pensio
nable
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
993
e-II)
5.
02.01.199
2
Promoted Senior
Forem
an
(Grad
e-I)
Pensio
nable
6.
15.07.200
7
Promoted Assist
ant
Regio
nal
Mana
ger
(Tech
nical)
Pensio
nable

Retired on 31.12.2007

2. Bhishma Deo Mishra

Srl.
No.
Date
Appointe
d/Promot
ed
Post
Nature
of Post
1.
12.12.
1975
Appointe
d
Mechan
ic
NonPension
able
2.
13.01.
1979
Promoted Junior
Forema
n
Pension
able
3.
22.03.
1986
Promoted Senior
Forema
n
(GradeII)
Pension
able
4.
02.11.
1996
Promoted Senior
Forema
n
(GradeI)
Pension
able
5.
22.12.
2004
Promoted Assista
nt
Regiona
Pension
able
l
Manage
r
(Techni
cal)

Retired on 31.08.2010

3. Gopi Shyam Pandey

Srl.
No.
Date
Appoint
ed/Pro
moted
Post
Nature of
Post
1.
23.12.
1972
Appoint
ed
Cleaner NonPensiona
ble
2.
23.10.
1979
Promot
ed
Office
Assista
nt
(GradeII)
Pensiona
ble
3.
2004
Promot
ed
Office
Assista
nt
(GradeI)
Pensiona
ble

Retired on 31.07.2007

10. It appears that on a proposal
submitted by the Corporation, the State
Government issued an order on 20.10.2004,
which provides that the employees of the
Corporation who were appointed between
the period commencing on 01.06.1972 and
ending on 19.06.1981 will also be entitled
to grant of pension provided they were
appointed on a pensionable posts. These
two
dates,
namely,
01.06.1972
and
19.06.1981 have some significance. On
01.06.1972,
the
Corporation
was
established under Section 3 of the 1950 Act
whereas on 19.06.1981, the Regulations of
994 INDIAN LAW REPORTS ALLAHABAD SERIES
1981 came into force which inter alia
provide
that
the
employees
of
the
Corporation will not be paid pension rather
they shall be entitled to certain retirement
benefits with the exception that those who
were appointed prior to 01.06.1972 with
the
State
Government
Roadways
Organization and whose services were later
on merged with the Corporation shall be
entitled to pension. This was clearly in
conformity with the earlier Government
Order dated 05.07.1972 which in a manner
made a representation or a promise to the
employees of erstwhile State Government
Roadways Organization that if they opted
for absorption in the services of the
Corporation the service benefits available
to them would not be in any manner

11. Based on the said Government
Order dated 20.10.2004, the UPSRTC
issued a circular on 26.12.2005 which inter
alia provided that since the Board of
Directors of the Corporation has resolved
in its 160th meeting to give effect to the
Government Order dated 20.10.2004, as
such, benefit of pension be made available
to those employees who are covered by the
Government Order dated 20.10.2004.

12. Thereafter in respect of the
employees, who were appointed in the
Corporation against non-pensionable posts
and were, however, subsequently promoted
on
a
pensionable
post,
the
State
Government issued another Government
Order dated 10.10.2012 which provided
that such employees shall also be eligible to
pension in terms of the Government Order
dated 20.10.2004. After issuance of the said
Government Order dated 10.10.2012, the
Managing Director of the Corporation
issued a circular dated 25.10.2012 in
pursuance of the said Government Order
dated 10.10.2012. However, the circular
provides that those retired employees who
are getting pension/family pension from
EPF Pension Scheme will not be eligible to
the benefit of the pension in terms of
Government Order dated 10.10.2012. It is
this stipulation, which excludes the retired
employees from the benefit of pension in
terms of the Government Order dated
10.10.2012, that became subject matter of
challenge in the writ petitions filed by the
petitioners which have been decided by the
learned Single Judge.

13. It is not in dispute that the
petitioners herein were initially appointed
against non-pensionable post, however,
they were subsequently promoted against
pensionable posts in the Corporation. It is
also not in dispute that all the petitioners
had retired from the service of the
Corporation prior to issuance of the
Government Order dated 10.10.2012 and
issuance of the circular by the Corporation,
dated 25.10.2012.

14. The only question which thus
needs to be considered and answered by us
is as to whether the exclusion from the
benefit of departmental pension of such
retired
employees
who
were
being
benefited by the EPF related pension is
vitiated and erroneous and such employees
could or could not be excluded from the
benefit emanating from the Government
Order dated 10.10.2012.

15. Lengthy arguments have been
made by learned counsel representing the
respective parties and we have given our
anxious consideration to the same.

16. Learned counsel appearing for the
appellant-Corporation has argued that the
circulars dated 25.10.2012 and 26.12.2005
only contained guidelines which in fact
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
995
were policy decisions taken by the
Corporation,
as
such,
legally
no
interference in such policy decisions was
permissible by learned Single Judge while
the writ petitions filed by the petitioners
were decided by the orders which are under
appeal in this case.

17. It has further been argued by the
learned counsel for the appellant that the
Government Order dated 10.10.2012 has to
be read in conjunction with Government
Order
dated
20.10.2004
which
only
provided
no
objection
of
the
State
Government for making available the
benefit of pension to particular class of
employees and in fact right to seek benefit
of pension actually flows from the circular
dated 25.10.2012 wherein considering the
financial health of the Corporation, a
conscious decision was taken not to make
available the benefit of the departmental
pension to those retired employee of the
Corporation who were already getting
pension under the EPF Scheme.

18. It has further been contended by
learned counsel appearing for the appellant
that in terms of the circular dated 25.10.2012,
no option was ever exercised by the
petitioners and as such in accordance with the
stipulations available in the said circular
dated 25.10.2012 itself, it would be deemed
that the petitioners did not opt for the benefit
of the pension on the basis of the
Government Order dated 10.10.2012 and the
circular dated 25.10.2012. Thus, the claim to
the petitioner is barred by their non-exercise
of the option as was required by the circular
dated 25.10.2012.

19. It has further been argued that there
exists a reasonable classification permissible
under Article 14 of the Constitution of India
between the retired employees who were
getting pension under the EPF Pension
Scheme and those who were not getting such
benefit under the said EPF Pension Scheme
and accordingly, since this classification has a
rational basis, it is not open to the learned
counsel for the petitioners to argue that the
petitioners have been subjected to any kind of
discrimination,
much
less
any
hostile
discrimination.

20. Learned counsel for the appellant
has further submitted that in fact the
Government Order dated 10.10.2012 does not
direct the Corporation to make payment of
pension, rather it only expresses its no
objection if pension is paid to the employees
of the Corporation and, thus, it was well
within the authority and jurisdiction of the
Corporation to have framed the guidelines
which are contained in the circular dated
25.10.2012 and exclude a particular category
of employees from the benefit of the
departmental pension.

21. Further submission is that
intention of the State Government while
issuing the Government Order dated
10.10.2012 was not to cover each and every
employee of the Corporation with the
benefit of the departmental pension, instead
it was left open to the Corporation to take a
decision, depending on the contingencies
and exigencies of the Corporation, to cover
or not to cover with the benefit of
departmental pension scheme any set of
employees or even to exclude them.

22. Certain other arguments have also
been made by learned counsel for the
appellant, who has attempted to point out
certain flaws in the judgment under appeal.

23 . On behalf of the appellantCorporation heavy reliance has been placed
on the judgment in the case of Krishena
996 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar vs. Union of India and others
reported in (1990) 4 SCC 207 wherein,
according to the learned counsel for the
appellant, the ratio laid down by Hon'ble
the Supreme Court in the case of D. S.
Nakara and others vs. Union of India
reported in (1983) 1 SCC 305 has been
diluted. It has been submitted that the facts
of the present case are similar to the facts in
the case of Krishena Kumar (supra) and
in view of what has been decided by the
Hon'ble Supreme Court in the aforesaid
case of Krishena Kumar (supra) the writ
petitions ought to have been dismissed and
accordingly, this appeal deserves to be
allowed.

24. On the other hand, Sri Gaus Beg,
refuting the submissions made by learned
counsel for the appellant, has argued that
the Government Order dated 10.10.2012 is
referable to Section 34 of the Act, 1950,
which clearly provides that any such
direction issued by the State Government
shall be binding upon the Corporation. He
has, thus, contended that in fact right of
getting benefit of departmental pension
flows from the Government Order dated
10.10.2012 which does not differentiate
between two sets of employees, namely,
the employees who were getting pension
from the EPF Pension Scheme and those
who were not getting such pension. He has
further submitted that any deviation in the
circular
dated
25.10.2012
from
the
stipulations and prescriptions available in
the Government Order dated 10.10.2012
would not be permissible in view of the
mandate of Section 34 of the 1950 Act. The
submission is that in fact the circular dated
25.10.2012 could not over ride the
Government Order dated 10.10.2012 and
thus exclusion of those employees from the
benefit of departmental pension who were
getting pension under the EPF Pension
Scheme is absolutely arbitrary and has,
thus, rightly been quashed by learned
Single Judge while passing the judgment
and order under appeal.

25. Having heard the learned counsel
for the parties, what we notice is that there
is no dispute between the parties that
petitioners are those employees who were
initially appointed in the Corporation
against non-pensionable post, however,
were
subsequently
promoted
on
pensionable posts in the Corporation. It is
also not in dispute that at the time of initial
appointment of the petitioners against nonpensionable post there were no statutory
service rules or regulations governing the
conditions of their service. It is only in the
year 1981 that the service conditions of the
employees of the Corporation were sought
to be regulated by framing the service
regulations in terms of the provision
contained in Section 45 of 1950 Act. It is
also not in dispute that all the petitioners
retired before issuance of the Government
Order dated 10.10.2012 followed by the
circular
of
the
Corporation,
dated
25.10.2012. The parties also do not dispute
the fact that while in service the employer's
contribution to the EPF Pension Scheme
was also made, however, the bone of
contention between the parties is as to
whether the exclusion of the petitioners and
other similarly circumstanced employees
from operation of the pension scheme
introduced by the Government Order
10.10.2012 read with the circular dated
25.10.2012 is lawful.

26. As observed above, U.P. State
Roadways
Corporation
has
been
established
and
incorporated
under
Sections 3 and 4 of the 1950 Act. It is, thus,
a statutory Corporation having an entity
distinct from that of a Government
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
997
department. The affairs of the Corporation
are, thus, to be governed by the scheme of
the 1950 Act and the prescriptions
available therein.

27. Section 44 of the 1950 Act
empowers the State Government to make
rules by way of a notification to be
published in the official gazette, to give
effect to the provisions of the said Act.

28. Section 45 empowers the
Corporation to make regulations, of course,
with the previous sanction of the State
Government which may be not inconsistent
with the provisions of 1950 Act and the
rules made, if any, under Section 44.

29. Section 34 contains a provision
which is very significant and relevant to
decide the controversy which has arisen in
this
case.
It
empowers
the
State
Government to give general instructions to
the Corporation which are to be followed
by the Corporation. Section 34 further
provides that such directions can be issued
after consultation with the Corporation and
such instructions or directions relate to
recruitment, condition of service and
training of employees, wages to be paid
and reserves to be maintained and further
disposal of the profits and stocks of the
Corporation. Section 34 of the 1950 Act is
extracted herein below for ready reference
:-

"Section 34. Directions by the
State
Government.--(1)
The
State
Government may, after consultation with
a
Corporation
established
by
such
Government, give to the Corporation
general instructions to be followed by the
Corporation, and such instructions may
include
directions
relating
to
the
recruitment, conditions of service and
training of its employees, wages to be paid
to
the
employees,
reserves
to
be
maintained by it and disposal of its profits
or stocks.

(2) In the exercise of its powers
and performance of its duties under this
Act, the Corporation shall not depart from
any general instructions issued under subsection (1) except with the previous
permission of the State Government."

30. From a bare perusal of the above
quoted provision contained in Section 34 of
1950 Act, it is abundantly clear that the
State Government has been statutorily
empowered to issue mandatory directions
to the Corporation on certain subjects
including the conditions of service. It is not
in dispute that payment of pension forms a
condition of service and, accordingly, there
cannot be any doubt about the power of the
State Government emanating from Section
34 of 1950 Act to issue instructions or give
directions to the Corporation in respect of
conditions of service of the employees of
the Corporation.

31. So far as the petitioners in these
matters are concerned, the Government
Order dated 20.10.2004 and the related
circular dated 26.12.2005 do not have any
application, rather these petitioners would
be governed by the Government Order
dated
10.10.2012
and
circular
dated
25.10.2012. Thus we would discuss the
nature of the directions issued in the
Government Order dated 10.10.2012 and
the prescriptions available in the circular
dated 25.10.2012.

32. From a perusal of the Government
Order dated 10.10.2012, it is clear that the
same was issued in consultation with the
Corporation as the said Government Order
998 INDIAN LAW REPORTS ALLAHABAD SERIES
itself makes a reference of a letter of the
Finance Controller of the Corporation. It
appears that some proposal was made by the
Finance Controller of the Corporation, on
which the government issued the order dated
10.10.2012. The said government order, as
observed
above,
provides
that
those
employees of the Corporation who were
initially appointed against non-pensionable
post but were further promoted on a
pensionable post between 01.06.1972 to
19.06.1981 shall be eligible for grant of
pension and on this the State Government
gives its no objection. The Government
Order clearly states that further action may be
taken by the Corporation according to the
stipulation made in the Government Order
dated 10.10.2012. Under the scheme of the
1950 Act, there is no other provision which
empowers the State Government to give
direction to the Corporation except Section
34 which empowers the State Government to
give general instructions which are to be
followed by the Corporation.

33. The language in which the
provisions of Section 34 are couched does not
leave any doubt in our mind that any such
instruction referable to Section 34 of the 1950
Act are binding on the Corporation. In fact
the Corporation does not have any escape of
not following or not abiding by any
instructions issued or directions given by the
State Government to it under Section 34 of
the Act, 1950.

34. Sub Section 2 of Section 34
mandatorily prohibits the Corporation from
departing or deviating from instruction issued
by the Government except with the previous
permission of the State Government.

35. The submission of the learned
counsel for the appellant that the Government
Order dated 10.10.2012 only expresses its no
objection for the reason that it is to be read
along with the prescriptions available in the
Government Order dated 20.10.2004, in our
considered opinion, is highly misconceived
for the reason that the Government Order
dated
10.10.2012
clearly
directs
the
Corporation to take further action in terms of
the stipulations made therein. Further, learned
counsel for the appellant has failed to show
any provision to us which requires no
objection of the State Government in case of
any policy decision. If the Government Order
dated 10.10.2012 was to be mandatorily
followed as per the mandate of Section 34 of
1950 Act, it was not open to the Corporation
to provide anything other than what is
provided in the Government Order dated
10.10.2012. The Government Order dated
10.10.2012 does not differentiate between the
employees who were getting pension under
the EPF Pension Scheme and those who were
not getting such benefit. However, contrary
to the stipulation available in the Government
Order dated 10.10.2012, the Corporation
while issuing the circular dated 25.10.2012
has drawn such a distinction which in our
considered opinion was legally impermissible
for what has been provided under Section 34
of the 1950 Act.

36. It is worth noticing here that
nothing has been shown to us from where
we can infer that any permission by the
State Government was ever accorded to the
Corporation, as contemplated in Section 34
(2) of the Act. In absence of any such
permission the Corporation could not have
deviated
in
any
manner
from
the
stipulations available in the Government
Order dated 10.10.2012.

37. What we have observed about the
mandatory nature of Section 34 of 1950
Act is fortified by a decision of Hon'ble
Supreme Court in the case of S. P. Dubey
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
999
vs.
Madhya
Pradesh
State
Road
Transport Corporation and another
reported in 1991 Supp (1) SCC 426.

38. So far as the submission made by
learned counsel for the appellant that the
circular dated 25.10.2012 was a policy
decision in the form of guidelines is
concerned, we may state that even such
guidelines or the policy decision could not
go beyond the mandate of the State
Government contained in the Government
Order dated 10.10.2012. Any decision of
any nature to be taken by the Corporation
has to be subservient to the directions or
instructions given or issued by the State
Government which are referable to Section
34 of the 1950 Act. It is also noticeable at
this juncture itself that circular dated
25.10.2012 clearly makes a mention of
what has been provided for in the
Government
Order
dated
10.10.2012.
Hence, having noticed the stipulations and
prescriptions available in the Government
Order dated 10.10.2012, it was not open to
the Corporation to have provided anything
other than what has been provided by the
Government Order dated 10.10.2012.

39. So far as the submission of
learned counsel for the appellant that in
absence of any option having been
exercised by the petitioners pursuant to the
circular dated 25.10.2012 it will be deemed
that the petitioners were not covered by the
said benefit, we may only notice that the
circular dated 25.10.2012 was issued at a
time when the petitioners had retired from
the service of the Corporation. There is
nothing on record to show that these
petitioners were ever required by the
Corporation by any written or even oral
notice to them to exercise their options as
per the stipulations made in the circular
dated 25.10.2012. The submission by the
learned counsel for the appellant that the
circular was general in nature and it was
not required to be served individually on
each and every employee will have no
application or bearing in this case for the
reason that such a contention may be true
(though even this is argueable) in respect of
serving employees but for the employees
who had retired from the service of
Corporation, this refuge to the appellant is
not available. This issue has, in fact, been
elaborately dealt with by learned Single
Judge in his judgment and order under
appeal.

40. Drawing attention of the Court to
a paragraph mentioned by Hon'ble Single
Judge, it has been stated that it was never
an admitted fact that the petitioners were
entitled
to
get
regular
departmental
pension. The said paragraph, we are afraid,
has not been read by the appellant in
conjunction with the discussions made in
rest of the judgment and accordingly no
flaw worth the name can be found therein.

41. The submission made by learned
counsel for the appellant in this regard thus
merits rejection, which is hereby rejected.

42. As regards the judgment relied
upon by learned counsel for the appellant in
the case of Krishena Kumar (supra) it is
observed that there cannot be any dispute
as regards the ratio laid down by the
Hon'ble Apex Court in the said case that
the dependent on the fact situation even
pension retirees may not necessarily form a
homogeneous class, however, the facts of
the present case are that though the State
Government while issuing the Government
Order
dated
10.10.2012
did
not
differentiate between two separate groups
of employees but it is only the Corporation
which
created
a
separate
class
of
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
employees who were paid pension form
EPF Pension scheme. As already observed
above, it was not open to the Corporation to
have deviated from what has been provided
by the State Government in its order dated
10.10.2012 and, thus, the reliance placed
by learned counsel for the appellant on the
case of Krishena Kumar (supra) does not
come to the rescue of the appellant.

43. In view of the discussions made
and the reasons given herein above, in our
considered opinion, special appeals are
highly misconceived, which are hereby
dismissed.

44. However, we provide that benefit
of the judgment and order passed by
learned Single Judge, shall, thus now be
made available within a period of two
months from the date a certified copy of
this order is presented before the authority
concerned.

45. In the facts of the case, cost is
made easy.
----------
(2021)09ILR A1000
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Service Bench No. 1426 of 2021

Devendra Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Suresh Chandra Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Public Services
(Tribunals) Act, 1976 - Section 5 - UP
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules, 1991 -
Rule 4(1) (b) (iv), 14 (2), 23 and 25 -
Punishment
-
Claim
petition
before
Tribunal - Limitation of one year - Filing
of representation under Rule 25 on
10.01.2019,
it's
effect
in
counting
limitation - Held, remedy by way of
representation
to
approach
the
Government under Rule 25 of the Rules,
1991 cannot be said to be a remedy
available
under
the
service
rules
-
Revision under Rule 23 dismissed on
14.03.2013 is final order - Period of
limitation of one year to file claim petition
would be counted from the date of order
on revision and on expiry of one year the
claim petition became barred. (Par 23 and
24)
Writ petition dismissed. (E-1)
Cases relied on :-
1. S. S.Rathore Vs St. of M.P. (1989) 4 SCC 582
2. C. Jacob Vs Director of Geology & Mining &
anr. 2008 (10) SCC 115
3. U.O.I. Vs Har Dayal; 2010 (1) SCC 394
4. St.of U.P. & anr. Vs Vivekanand Singh & anr.;
2015 (4) AWC 4130 (LB) (DB),
5. Prem Swaroop Singhal Vs St. of U.P. & ors.
2017(4) AWC 3915 (LB) (DB)

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Suresh Chandra Tiwari,
learned counsel for the petitioner and Sri
Manjeev Shukla, learned Additional Chief
Standing Counsel appearing for opposite
parties.

2. The writ petition has been filed
challenging inter alia the judgment and
order dated 06.02.2020 passed by the State