# U.P.S.R.T.C v. Sri Pal Singh

- **Citation:** (2023) 2 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Writ A No. 2000686 of 2015
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-sri-pal-singh-49735
- **Pages:** 13

## Headnote

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

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

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

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

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

The Tribunal wrongly held that the provision of
pension was introduced in the Corporation by
means of a GO dated 03.02.1994 whereas the
document relied upon by the Tribunal as a GO
was merely a Circular issued by the Corporation
and it did not introduce the provision of
pension, rather it merely asked the officers of
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
719
the Corporation to ensure communication of the
relevant GOs regarding payment of pension to
the employees of the Corporation. (Para 31)

Writ petition allowed. (E-4)

Precedent followed:

Ram Chandra Pathak Vs. State of U.P. and
others, (2003) ILR 2 All 379 (Para 25)

Precedent distinguished:

## Text

_Characters 0–39,957 of 43,409. This is a partial read: ask again with offset=39957 for what follows._

718 INDIAN LAW REPORTS ALLAHABAD SERIES
framed Rules governing the field. The State
has acted within its competence in framing
the Rules. The Rules are not ultra vires any
provision of the constitution of India and
this Court has no reason to interfere in the
Rules. However, the State is well within its
authority to make amendments to the Rule
and even if the State is contemplating
making any such amendment(s), the court
cannot issue a Mandamus to the State to
make amendment in the Rules.

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

BEFORE

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

Writ A No. 2000686 of 2015

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

Counsel for the Petitioner:
Prabhu Ranjan Tripathi

Counsel for the Respondent:
Mayankar Singh, Pradeep Kumar Sharma

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

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

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

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

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

The Tribunal wrongly held that the provision of
pension was introduced in the Corporation by
means of a GO dated 03.02.1994 whereas the
document relied upon by the Tribunal as a GO
was merely a Circular issued by the Corporation
and it did not introduce the provision of
pension, rather it merely asked the officers of
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
719
the Corporation to ensure communication of the
relevant GOs regarding payment of pension to
the employees of the Corporation. (Para 31)

Writ petition allowed. (E-4)

Precedent followed:

Ram Chandra Pathak Vs. State of U.P. and
others, (2003) ILR 2 All 379 (Para 25)

Precedent distinguished:

1. Badri Prasad Dubey Vs Managing Director,
U.P. State Road Transport Corp. Lucknow &
ors., 2012 (2) LBESR 299 (All) (Para 9)

2. Badri Prasad Dubey Vs Managing Director,
U.P. State Road Transport Corp., (2011) 89 ALR
832 (Para 29)

Present petition challenges the judgment
and order dated 16.09.2014, passed by
the State Public Services Tribunal allowing
Claim Petition No. 1482 of 2001, for
payment of pension instead of Employees
Provident Fund (E.P.F.).

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

1. Heard Mr. Prabhu Ranjan Tripathi
Advocate, the learned counsel for the petitioner
as well as Mr. Mayankar Singh Advocate, the
learned counsel for the respondent.

2. The instant Writ Petition has been filed
by the petitioner Uttar Pradesh Road Transport
Corporation (which will hereinafter be referred
to as ''the Corporation') challenging the
judgment and order dated 16.09.2014 passed by
the State Public Services Tribunal allowing
Claim Petition No. 1482 of 2001, which was
filed by the respondent claiming payment of
pension instead of Employees Provident Fund
(E.P.F.).

3. Briefly stated, facts of the case are
that the respondent was initially appointed
on 22.04.1960 on the post of Cleaner-cumconductor in the erstwhile U. P. State
Roadways. He was promoted to the post of
Conductor on 18.06.1961 and his services
on the post of Conductor were confirmed
on 01.04.1972. Thereafter the Corporation
came into being and the petitioner was
appointed in it on deputation in terms of a
Government Order dated 05.07.1972. On
13.04.1984, the respondent was promoted
to the post of Assistant Traffic Inspector
and thereafter on 30.06.1989 he was
promoted to the post of Traffic Inspector.
The respondent retired on 28.02.1994 while
he was working on the aforesaid post. The
respondent was treated as working on nonpensionable posts and after his retirement,
he was paid the E.P.F. amount, along with
the employer's contribution.

4. It was for the first time in the year
2001
that
the
respondent
gave
a
representation after expiry of a period of
seven years since his retirement, claiming
payment of pension and thereafter he filed
Claim Petition No. 1482 of 2001 before the
Tribunal claiming payment of pension. The
Corporation filed a written statement
disputing the respondent's claim.

5. The Tribunal allowed the Claim
Petition
holding
that
prior
to
his
appointment
on
deputation
in
the
Corporation, the respondent was working
on a pensionable post and thereafter he was
promoted to the post of Assistant Traffic
Inspector, which post was inter-changeable
with the post of Station-in-charge and,
therefore, was pensionable. The Tribunal
held that by means of a Government Order
dated 19.06.1981 it was provided that the
service conditions of the employees of the
Corporation will not be fixed below the
conditions will not be lower than those on
which they were working previously. The
Tribunal further held that the provision of
720 INDIAN LAW REPORTS ALLAHABAD SERIES
pension was introduced in the Corporation
by means of a Government Order dated
03.02.1994 providing that the employees
who had retired and had taken E.P.F.
benefit, would be entitled to get pension
after repaying the E.P.F. amount. However,
no intimation was given to the respondent
in terms of the aforesaid G.O. that he had
an option to get pension instead of E.P.F.
benefit and no option was taken from him.
The Tribunal also noted that one Bhagwan
Das, who was a black-smith in the
Corporation was initially refused pension
but subsequently upon a representation
made by him, he was given pension. The
Tribunal held that the respondent had
retired from a pensionable post and he
cannot be denied pension merely because
he could not exercise his option for want of
information. The Tribunal directed the
Corporation
to
pay
pension
to
the
respondent after adjusting the amount paid
to him as E.P.F.

6. The Corporation has challenged the
Tribunal's Order mainly on the grounds that
the respondent was not working on any
pensionable
post
while
he
was
in
Government Service and, therefore, he was
not entitled to get pension; that the
respondent was absorbed in the Corporation
in the year 1982, he accepted the terms of
appointment in the Corporation under which
his service was non-pensionable and till his
retirement, he did not raise any objection or
claim that his service ought to be made
pensionable; that the respondent was entitled
to E.P.F. benefit, which benefit had been
availed by him upon his retirement in the
year 1994 and the Claim Petition claiming
pension was filed after a period of seven
years since availing the E.P.F. benefit.

7. The respondent has filed a Counter
Affidavit stating that by means of an Office
Memorandum
dated
13.02.1979,
the
Corporation had clarified that the posts of
Junior
Station-in-charge
and
Traffic
Inspector Grade I were equivalent and
inter-changeable, the post of Junior Stationin-charge is pensionable and, therefore, the
equivalent post of Traffic Inspector Grade I
will also be pensionable.

8. Sri. Prabhu Ranjan Tripathi, the
learned Counsel for the Corporation has
submitted
that
the Tribunal
wrongly
referred to the Circular dated 03.02.1994
issued by the Corporation as a Government
Order, which circular merely stated that
Government Orders had been issued on
07.01.1984, 22.06.1991 and 19.08.1993 for
payment of pension to the employees /
officers of the erstwhile U. P. State
Roadways, who were working on any
pensionable post before 28.07.1982. The
circular stated that some persons who were
working on non-pensionable post prior to
01.06.1972, would have been promoted to
pensionable post by 28.07.1982 and such
persons might have retired prior to issuance
of the aforesaid Government Orders and
they might not be knowing about the
Government Orders. The Circular directed
the authorities to prepare a list of the
employees / officers would be beneficiaries
of the Government Orders and to intimate
them that in case they wanted to get
pension after repaying the E.P.F. and the
excess amount of gratuity, they should
fulfill the formalities. The Circular further
directed the authorities to obtain a written
declaration from the persons who did not
want to get pensionary benefit.

9. Per Contra, Sri. Mayankar Singh
Advocate, the learned Counsel for the
respondent
has
submitted
that
the
respondent was working on the post of
Traffic Inspector, which was equivalent to
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
721
and inter-changeable with Junior Stationin-charge and as the latter post is
pensionable, the post of Traffic Inspector
would also be a pensionable post. He has
relied upon a Single Bench decision in the
case of Badri Prasad Dubey versus
Managing Director, U. P. State Road
Transport Corporation Lucknow and others,
2012 (2) LBESR 299 (All).

10. We have considered the facts and
circumstances as evident from the material
available on record and the submissions of
the learned Counsel for the parties.

11. U. P. Government Roadways was
established by the State Government as a
temporary department in the year 1947, 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.
The Government Order dated 16.9.1960
reads as under:

"G.O. No. 3014 D/XXX-135/59
dated Sept. 16, 1960

Subject: Terms and conditions of
service of temporary employees in the U.P.
Roadways - Revisions of.

I am directed to say that the
question
of
revising
the
terms
and
conditions of service of the Roadways
employees,
which
is
a
nationalized
commercial undertaking and has to work in
conditions different from those prevailing in
regular government offices, has been under
the consideration of Government for some
time past.

The passenger and goods services
have to run irrespective of the fact whether
it is a Sunday or a festival. The schedule of
passenger services run by the State
Undertaking cannot be altered off and on.
In order to keep the Roadways services
going, the maintenance and repairs of
vehicles has to be attended to even at odd
hours at the workshops. At present the
conditions of service of the employees of
the U.P. Government Roadways and the
Central Workshop, Kanpur are governed by
the various rules and standing orders of
Government applicable to other temporary
government servants under the rule making
powers of the Governor. In view of the
special service conditions of employees of
the Roadways it seems necessary to evolve
a new set of service conditions for its
employees, which may be compatible with
the nature of work and functions of the
organization. Accordingly, in supersession
of all previous orders on the subject, the
Governor has been pleased to pass the
following orders prescribing revised terms
and conditions of service of temporary
employees of the U. P. Roadways, including
those detailed in para 2 below. The revised
terms and conditions of service shall be
applicable to all future entrants in the
Roadways organization and shall be
enforced
in
the
manner
mentioned
hereinafter in the case of temporary
employees including those on the work
charge strength and paid on monthly basis.

All temporary employees except
those referred to in para 2 shall get one
day's rest in every period of seven days in
accordance with the rules to be framed by
Government. In case the employees is
deprived of any of the days or rest, he shall
be allowed within the same or following
month compensation holidays of equal
number of the days of rest so lost.

They shall be entitled to get one
days paid holidays for every 20 days of
work performed by them during the
previous calendar year, subject to the
condition that the employee has worked for
a period of 240 days or more during the
previous calendar year. In case the
722 INDIAN LAW REPORTS ALLAHABAD SERIES
employees is not able to avail of full or part
of the leave admissible to him during the
calendar year, it will be carried over to the
following year, subject to a maximum of 30
days.

They shall get five days festival
holidays in a calendar year as prescribed
by Government and subject to the rules to
be framed for the purpose.

They shall be paid extra wages at
the rate of twice of ordinary rate of wages
in respect of work performed by them
beyond the prescribed hours of work.

Their services are liable to
termination on one month's notice on either
side, or one month's pay in lieu thereof.

In other respect the conditions of
service will remain the same as at present.

2.
The
revised
terms
and
conditions of services mentioned in para 1
above shall not apply to the following
category of employees:-

All employees working in the
offices establishment of the Asstt. General
Manager,
General
Manager,
Service
Manager, Chief Mechanical Engineer,
Roadways Central Workshop, Kanpur and
the Head Quarter Office of the Transport
Commissioner.

Supervisory staff of the rank of
Junior Station Incharge and above on the
traffic side;

Technical staff of the rank of
Junior Foreman and above on the engineer
side;

The above three categories of
Roadways staff will continue to be treated
as regular government servants and will be
entitled to the benefits admissible to any
other government servant of the same
category.

3. The Roadways and Central
Workshop employees to whom the revised
service rules are being made applicable
shall be entitled to the provident fund
benefits according to the provisions of the
Employees Provident Fund Act. For this
necessary orders have already been issued
separately in G.O. No. 1488-D/XXX
2198/59 dated July, 29, 1960. Immediate
step
may
please
be
taken
for
the
implementation of the orders issued in the
above G.O. The employees governed by the
new terms and conditions of service will
continue to get facilities for medical
treatment so far enjoyed by them. All future
entrants shall also be entitled to facilities
for
medical
treatment
admissible
to
Government servants. The canteen and rest
house facilities as may be prescribed by
government shall also be made available to
them in course of time.

4. These order shall come into
force w.e.f. October 1, 1960 and shall
apply to all future entrants in the service
of the Roadways organization and also the
existing temporary employees who accept
to continue to work on the revised terms
and conditions of service. The status of
Roadways
employees
already
made
permanent remains unaffected. All the
existing temporary employees except those
mentioned in para 2 above may be asked
to indicate in writing if the new service
conditions
mentioned
above
are
acceptable to them. Those who accept the
new terms and conditions of service will
be required to fill in a separate acceptance
for which will be kept with their service
records. If, however, any of the employees
do not accept the new terms their services
are to be terminated in accordance with
the terms of their employment. I am to
suggest that the implications of the revised
orders may be explained to all concerned
by the General Managers and Asstt.
General Mangers and Chief Mechanical
Engineer and that necessary action may
please be intimated forthwith in order to
implement the above orders."
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
723

12. On 28.10.1960, the following
Government order was issued declaring
certain posts in transport and roadways
department as pensionaable posts: -

"In continuation of Government
order No. 31040/XXX-135V/1959, dated
September 16, 1960, I am directed to say
that
the
question
of
declaring
the
permanent
posts
in
the
Roadways
Organisation (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:

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

Supervisory staff of the rank of
Junior Station Incharge and above on the
traffic side.

Technical staff of the rank of
Junior Foremen and above on the
engineering
side;
''rank'
means
position/status but no post.

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
nongazetted
Roadways
employees both in the traffic and
Engineering
sections
of
the
organisation, 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 provisions of the Employees
Provident Fund Act.

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.

As
regards
the
grant
of
provident
fund
benefits
to
other
temporary and work-charged employees
of the Roadways Organisation necessary
orders have already been conveyed to you
in Government order No. 1488/XXX219/50 dated 29.7.1960."

 (Emphasis supplied)

13.

On
21.4.1961,
another
Government order was issued by which
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
nonpensionable and they will be eligible for
provident fund in accordance with the
provisions of Employees Provident Fund
and Misc. Provisions Act.

14. The State Government had issued
two Government Orders dated 07.06.1972
and 05.07.1972, providing that all the
employees of the erstwhile Government
Roadways holding permanent pensionable
posts were entitled to the same benefits
whereas employees who were working on
724 INDIAN LAW REPORTS ALLAHABAD SERIES
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 posts which were not declared
pensionable and those who had not been
removed from service after domestic
enquiry are not entitled to draw those
benefits.

15. Subsequently, in exercise of
power conferred under section 45(2)(c) of
the Road Transport Corporation Act, 1950,
the Road Transport Corporation Employees
(other than officers) Service Regulation
1981 (hereinafter referred to as the
"Regulations of 1981") were framed.
Regulations 4 and 39 of the Regulations of
1981 provide as under: -

"4. Option by the employees of
the
erstwhile
Government
Roadways
Department and other employees. - (1) An
employee of the erstwhile U.P. Government
Roadways Department who was placed on
deputation with the Corporation and who
has or is deemed to have offered for
absorption
in
the
Service
of
the
Corporation in accordance with Rule 4 of
the
Uttar
Pradesh
State
Roadways
Organisation (Abolition of Posts and
Absorptions of Employee) Rules, 1982
(hereinafter referred to as the said, Rules),
shall with effect from August 28, 1982, sand
so absorbed, and shall, accordingly cease
to be an employee of the State Government
with effect from the said date.

Provided that the terms and
conditions of service of the employees so
absorbed in the Service of the Corporation
shall, subject to the provisions of G.O. No.
3414/XXX-2-170-N-72, dated July 5, 1972
and the said rules be governed by these
regulations.

Existing employees, who are not
covered by sub-regulation (1) or those who
are not exempted under Regulation 2, shall
within one month of the commencement of
these regulations, 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
these regulations.

(ii) If they opt or fail to exercise
their option for being governed by these
regulations, their terms and conditions of
appointment,
so
far
as
they
are
inconsistent with these regulations, shall
stand rescinded:

Provided that, in respect of
workmen where any of the provisions of
these regulations is less favourable 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.

(iii) If such persons do not opt for
being governed by these regulations, their
services may be terminated in accordance
with the terms of their appointment."

"39. Pension and other retirement
benefits-(1)

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. 3414/302-170-N-72, dated July 5,
1972.
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
725

(2) Without prejudice to the
provisions
of
sub-regulation
(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:

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, 1976;

(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."

16. Later on, the State Government
framed rules known as U. P. State
Roadways Organization (Abolition of Posts
& Absorption of Employees) Rules, 1982
in exercise of the power under Article 309
of the Constitution (for short, the ''Rules of
1982'), which was notified on 28.4.1982.
Rule (2) (ii) deals with ''Employee', which
means the Government Servant employed
in the U.P. State Roadways Organization
and working on deputation with the
Corporation. Rule 4 of the Rules of 1982
provides that on expiry of three months
from the date of notification of the rules,
service under the State Government of the
employees
on
deputation
with
the
Corporation will become employees of the
Corporation and their relevant post in the
roadways would stand abolished. In case
any person intimated to the Government
that he was not willing to be absorbed, his
services would be dispensed with after
giving him three months' notice and the
notice period would be one month in case
of temporary employees. If no such
intimation was given, the employee was to
be deemed to have been absorbed. The
relevant Rule 4 of the Rules of 1982 reads
as under: -

"4(1) An employee of the U.P.
State Roadways Organization, who was
placed on deputation with the Corporation
and who does not wish to be absorbed in
the service of the Corporation shall, within
3 months from the notification of these
Rules in the Gazette, intimate the Secretary
to
Government
in
the
Transport
Department that he does not wish to be so
absorbed.

(2) Every other employee who
does not given an intimation, in accordance
with sub-rule (1), shall be deemed to have
exercised his option for absorption in the
service of the Corporation.

(3) An employee, who is deemed
to have opted for absorption in the service
of the Corporation, in accordance with
sub-rule (2), shall stand to absorbed with
effect from the date of expiry of three
months from the date of notification of
these rules and his service under the State
Government shall with effect from the same
date cease."

17. Sub-clause 1 (ii) of Regulation 39
of the Regulations of 1981 makes it clear
that an employee of the State Government
in
the
erstwhile
U.
P.
Government
Roadways who has opted for the service of
the Corporation, shall be entitled to pension
and other retiral benefits in terms of
Government order dated 05.07.1972. The
Government
Order
dated
05.07.1972
726 INDIAN LAW REPORTS ALLAHABAD SERIES
protects all benefits including pensionary
and retiral benefits, which were available to
the employees of the erstwhile Roadways,
even after being sent on deputation in the
Corporation.

18. The respondent was initially
appointed on 22.04.1960 on the post of
Cleaner-cum-conductor in the erstwhile U.
P. State Roadways, and on the date of
issuance of the Government Order dated
16.09.1960 which came into force on
01.10.1960, he was working as a temporary
employee.
On
28.10.1960,
another
Government Order was issued declaring
certain posts in transport and roadways
department as pensionary posts and the said
Government Order provided that the rest of
the permanent non-gazetted Roadways
employees
both
in
the
traffic
and
Engineering sections of the organisation,
would be treated as non-pensionable. The
incumbents
of
the
permanent
nonpensionable posts referred to above will be
eligible for provident fund benefits in
accordance with the provisions of the
Employees Provident Fund Act.

19. Thereafter, the respondent was
promoted to the post of Conductor on
18.06.1961 and his services on the post of
Conductor were confirmed on 01.04.1972.

20. Prior to the confirmation of his
services on 01.04.1972, the respondent was
working on temporary basis and his
services were not pensionable for this
reason. Even after his confirmation, the
respondent was working on the post of
conductor, which was a non-pensionable
post.

21. While he was working on a nonpensionable post of conductor in the
erstwhile State Roadways Department, the
respondent
was
appointed
in
the
Corporation on deputation in terms of a
Government Order dated 05.07.1972.

22. The Government Orders dated
05.07.1972,
as
modified
by
the
Government
Order
dated
07.06.1972,
provided that all the employees of the
erstwhile Government Roadways holding
permanent pensionable posts were entitled
to same benefits whereas the employees
who were working on posts which were not
declared pensionable are not entitled to
draw the benefit of pension. Therefore, the
respondent was not entitled to get pension
under the aforesaid Government Orders.

23. On 13.04.1984, the respondent
was promoted to the post of Assistant
Traffic
Inspector
and
thereafter
on
30.06.1989 he was promoted to the post of
Traffic Inspector. The respondent retired on
28.02.1994 while he was working on the
aforesaid post.

24. Regulation 39 of the Regulations
of 1981 provides that except the persons
who were entitled to get pension in terms
of the G.O. dated July 5, 1972 as amended
the Government order dated 7.6.1972,
employees of the Corporation shall not be
entitled to pension, but they shall be
entitled to the other retirement benefits,
including E.P.F.

25. In Ram Chandra Pathak vs.
State of U.P. and Ors., (2003) ILR 2 All
379, a Single Bench of this Court
considered the similar issue and held that: -

"19. The assurance given in para
4 of the Government order dated June 7,
1972 to all the officers/employees of the
State Road Organisation that in the event of
the provisions of absorption to be made in
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
727
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
19.6.1981. It is provided that a person who
was employed in the erstwhile Government
and has opted in the service of Corporation
shall be entitled to pension and other
retiral benefits in the terms of Government
order dated 5.7,1972, it is found that
whereas it amended the Government order
dated 7.6.1972 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 Office 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 which were applicable
to the Government servants prior to their
absorption and that same conditions of
service with regard to their seniority,
promotion, pay fixation and other financial
benefits shall be applicable as they would
have received if they were in the
Government service. It is admitted that all
the petitioners were absorbed in the service
of the Corporation. Under the conditions of
their service, the employees who were not
holding
pensionable
posts
and
were
contributing to Employees Provident Fund,
continued to subscribe to the fund 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 than Officers) Service
Regulations,
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
condition 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.

20. The Government order did
not have the effect of legislation by
reference. The intention of the Government
order dated 5.7.1972 was not to continue
the rules applicable to Government service
applicable to the employees of Corporation
holding nor 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 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
conditions shall not be less advantageous,
was applicable until the service rules were
framed by the Corporation with regard to
conditions 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.

 (Emphasis supplied)

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

27. In this regard, it was held in Ram
Chandra Pathak (Supra) that: -

"22. There is yet another aspect
of the matter that almost all petitioners
have retired long ago. For example in Writ
Petition No. 2603 of 2001, petitioner
retired on 30.5.1994 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
28.2.1986
working
under
Regional Manager of the Corporation,
Allahabad Region, Allahabad and in Writ
Petition No. 19726 of 2000 petitioner
retired on 30.6.1997 from Varanasi Gramin
Depot. All the petitioners have received
retiral 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 any 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 turn around after their
retirement and claim applicability of the
service conditions as Government servants
on deputation with Corporation. In State
of Rajasthan v. Rajasthan Pensioners
Samaj 1991 Supp (2) SCC 141, Supreme
Court upheld the judgment of Constitution
Bench in Krishna Kumar v. 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 C.P.F.
retirees and pension retirees do not form
one homogeneous class but form two
different classes and, therefore, the widows
of C.P.F. 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.

23. It was held in Krishna
Kumar's case that the right of each
individual
provident
fund
retiree
is
crystallized on his retirement after which
no continuing obligation remains, while
on the other hand, there is a continuing
obligation of the State in respect of
pension retirees. In the present case on
the absorption of an employee holding
non-pensionable posts in the Corporation,
obligation of the State Government came
to an end. These employees became
employees of the Corporation and started
subscribing to the Employees Provident
Fund after transfer of the fund, from their
account of Employees Provident Fund.
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
posts. Their rights as such crystallized on
the date of their absorption in the
2 All. U.P.S.R.T.C. Vs. Sri Pal Singh
729
Corporation in the year 1982. Now after
their retirement, having received the
retiral benefits and having ceased the
relationship
as
employees
of
the
Corporation, they cannot agitate their
rights after a long period of time. They
form a different class than the employees
of
the
State
Government
holding
pensionable
posts
on
the
date
of
absorption.

 (Emphasis supplied)

28. We are in agreement with the law
laid down by the above mentioned law laid
down by the Hon'ble Supreme Court and
followed by the Hon'ble Single Judge.

29. Badri Prasad Dubey v. Managing
Director, U.P. State Road Transport
Corporation (2011) 89 ALR 832, relied
upon by the learned Counsel for the
respondent was filed by a person who was
appointed as an Assistant Traffic Inspector in
the erstwhile U.P. Government Roadways on
18.8.1964 and thereafter was also confirmed
on the said post. Upon creation of the
Corporation w.e.f. 1.6.1972, he was sent on
deputation where he was absorbed w.e.f.
28.7.1982. Subsequently he was posted as
Junior Station Incharge and thereafter as
Senior Station Incharge and then promoted to
the post of Traffic Superintendent vide order
dated 29.9.1995 and on this post he worked
till he retired on 31.7.2001. He claimed
pension and the claim was rejected primarily
on the ground that the post of Traffic
Inspector Grade-I was a non pensionable post
under the Government as per the Government
order dated 28.10.1960 and the employer's
share demanded and taken by the Regional
Manager, Allahabad was by mistake. This
Court held that: -

"4. The question whether on the
date of his absorption the petitioner was
holding a pensionable post under the
Government is no longer in dispute as this
Court in the case of Ram Singh Singraur v.
State of U.P. [2007 (7) ADJ 137.] , has held
that since the post of Assistant Traffic
Inspector had been upgraded as Traffic
Inspector Grade-I w.e.f. 5.5.1978 and
which post was equivalent to the post of
Junior Station Incharge and they being
interchangeable, it held that persons
holding post of Assistant Traffic Inspector
on the date of absorption were entitled to
pension. The aforesaid decision has been
affirmed in appeal."

30. However, the petitioner was
appointed in the earstwhile Government
Department of U.P.S.R.T.C. on the post of
Conductor which was a non-pensionable
post and on the date of his absorption in the
Corporation also, he was working on the
aforesaid
non-pensionable
post
of
Conductor, therefore, the decision in the
case of Badri Prasad Dubey (supra) who
had been appointed on the post of Assistant
Traffic Inspector and was holding the said
post when he was absorbed in the
Corporation, would not apply to the facts of
the present case.

31.