# U.P. State Road Transport Corporation and another v. Mirza Athar beg and others

- **Citation:** (2010) 3 ILRA 1307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-29
- **Case number:** Special Appeal No. 813 of 2010
- **Bench:** Pradeep Kant, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-road-transport-corporation-and-another-v-mirza-athar-beg-and-others-41780
- **Pages:** 7

## Text

3 All] U.P. State Road Transport Corporation and another V. Mirza Athar beg and others 1307
studies in pursuance of the orders of this
Court or application moved for LL.M.
Course, 2009.

20. In view of the above, we allow the
appeal in part and set aside/modify the
judgment and order dated 6.10.2009 to the
extent it rejects the appellant's admission of
LL.B. Course and consequential reliefs. The
appellant shall be entitled for all benefits
with regard to admission in LL.B. Course
but the judgment and order of the Hon'ble
Single Judge to the extent of rejecting
appellant's claim with regard to admission
in LL.M. Course, is maintained.

21. Accordingly, the appeal is allowed
in part.

No orders as to costs.
---------
APPELLATE.JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Special Appeal No. 813 of 2010

U.P. State Road Transport Corporation
and another

 ...Petitioner
Versus
Mirza Athar Beg and others ...Respondents

U.P. State Road Transport Corporation
Employees (other than officer) Service
Regulations 1981-Regulation 39-Petitioner
initially
appointed
as
Counductor
on
01.11.51-promoted on post of junior clerk
on 07.09.1998-Regularized 16.04.1960after existence of corporation promoted on
post of Senior Clerk-retired on 31.1.1991petitioner/Respondent not accepted G.P.F.
But claimed pension-Single Judge issued
direction for pension subject to refund of
G.P.F. Amount-held not proper-pension not
bounty G.O. Dated 16.09.1960 having no
retrospective application-being permanent
employee
of
earstwhile
Roadwaysworking with Corporation on deputationservice conditions can not be changeddirection for payment of pension within
specified period issued.

Held: Para 34 and 35

Thus, the respondent was working on a
pensionable
post
with
the
erstwhile
Roadways,
when
he
was
sent
on
deputation to the Corporation and he
being a permanent employee of the
erstwhile Roadways, his conditions of
service remain unaffected and unchanged
even on the issuance of the Government
order dated 16.9.60, notified on 28.10.60.
Therefore,
the
respondent
was
fully
entitled to the benefit of pension which
has been granted by the learned Single
Judge.

The last plea of the appellants that once
the
respondent
had
accepted
the
Provident Fund amount, he was not
entitled to claim pension, can also not be
accepted for the reason that there cannot
be any estoppel against law, as the
pension is not a charity or bounty and
moreso when the learned Single Judge has
issued a direction for refund of the amount
so received by the appellants before
paying amount of pension.
Case law discussed:
[Writ Petition No. 1313 (SS) of 2001], (Writ
Petition No. 1226 of 1987), [Writ Petition No. 544
(SB) of 2000]

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard Sri Mahesh Chandra for the
appellants and Sri Ghaus Beg for the private
respondent.

2. The special appeal has been filed
with a delay of one month and twenty six
day. Sri Ghaus Beg has no objection in
condoning the delay.
1308 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

3. We also feel that the delay is not
such so as to deprive the appellant of hearing
on merits. The delay is, therefore, condoned.

4. The U.P. State Road Transport
Corporation (hereinafter referred to as the
Corporation) has preferred this special appeal
against the judgement and order dated
25.8.2010 passed by the learned Single
Judge, by means of which the writ petition
filed by the private respondent (hereinafter
referred to as the respondent) claiming
pension has been allowed, with a direction
that he shall return the amount of
Contributory Fund, received by him.

5. The brief facts of the case are that
the respondent was appointed on the post of
Conductor on 1.11.51 in the erstwhile U.P.
Government Roadways (hereinafter referred
to as the Roadways). He was promoted on
the post of Junior Clerk w.e.f. 7.9.58 in the
office of the Assistant General Manager at
Charbagh Depot. His promotion was
regularised on 16.4.60, as is evident from the
office order dated 3.3.61.

6. On 29.5.62, the State of Uttar
Pradesh took preliminary steps to constitute a
statutory Corporation under Section 50 of the
Road Transport Corporation Act, 1950 and
consequently the U.P. State Road Transport
Corporation was constituted with effect from
1.6.72.

7. The respondent was promoted as
Senior Clerk on 8.4.86 and was posted at
City Bus Service Depot, Lucknow in the
office of the Assistant Regional Manager
(previously designated as Assistant General
Manager). He retired while working on the
post of Senior Clerk on 31.10.91.

8. The respondent did accept the
Employees' Provident Fund (EPF) amount
on retirement but claimed that he was
entitled to pension, as he was sent on
deputation from the erstwhile Roadways,
where his post was pensionable and,
therefore, in terms of Government order of
5.7.72, his conditions of service cannot be
inferior to the conditions, which were in
force and applicable to him, when he was
working as a Government servant.

9. Not being able to get the desired
relief, the respondent preferred the present
writ petition claiming the aforesaid relief of
pension. Counter affidavit was filed by the
Corporation, wherein his claim was denied.

10. The learned Single Judge after
considering the pleadings and the specific
case of the parties, has allowed the writ
petition, holding that the respondent was
entitled for pension. Taking note of the fact
that the respondent had already received the
EPF amount, the learned Single Judge issued
a further direction that this award and
payment of pension would be subject to
refund of the money received under the EPF
account.

11. Sri Mahesh Chandra, learned
counsel for the Corporation mainly argued
that by virtue of the Government order dated
16.9.60, the benefit of pension, which was
otherwise available to the employees who
were working in the Roadways, was taken
away, therefore, on the date of transfer of the
respondent to the Corporation i.e. when he
was sent on deputation, since he was not
working on a pensionable post, he was not
entitled for pensionary benefits.

12. In furtherance of the aforesaid plea,
it has also been urged that by virtue of the
Government order dated 5.7.72, the only
requirement was that the service conditions
of the employees who are sent on deputation
3 All] U.P. State Road Transport Corporation and another V. Mirza Athar beg and others 1309
from the Roadways to the Corporation,
would not be inferior to the one which they
were enjoying as Government servants and
since respondent was not having the benefit
of pension in the Roadways, he cannot claim
any pension.

13. We have gone through the
Government order dated 16.9.60 and we find
force in the argument of the learned counsel
for the respondent Sri Ghaus Beg that the
aforesaid Government order firstly cannot be
made applicable retrospectively and secondly
it does not apply to the erstwhile Roadways'
employees, who were permanent.

14. Learned Single Judge has
considered the Government order dated
28.10.60, as the Government order dated
16.9.60 was notified on the said date. The
contents of the aforesaid two Government
orders are the same.

15. Learned Single Judge has held that
the aforesaid Government order cannot be
given retrospective effect and that it was
meant for future employees.

16. Sri Ghaus Beg in response to the
aforesaid
argument,
submits
that
the
respondent being a permanent Government
servant on the date of issuance of the
aforesaid Government order, was not
covered by the same and that the view taken
by the learned Single Judge does not call for
any interference.

17. The Government order dated
16.9.60 which was notified on 28.10.60,
takes into account the nature of service,
which the Roadways employees were
performing and treating it to be a nationalised
commercial undertaking, it was decided to
change the service conditions of the existing
temporary Government employees, which
were made applicable to the future entrants
also. The Government order does not create
any ambiguity that it was applicable on all
temporary employees except those who were
referred to in Para 2 of the same order.

18. The Government order says that in
view of the special service conditions of the
employees of the Roadways it seems
necessary to evolve a new set of service
conditions for the employees which may be
compatible with the nature of work and
functions of the organisation. It made clear,
that the revised terms and conditions of
service shall be applicable to all further
entrants in the Roadways Organisation and
shall be enforced in the manner mentioned
therein. These service conditions were to be
applicable
to
all
existing
temporary
employees, except those mentioned in Para 2
of the Government order.

19. Para 7 of the Government order
further made it clear that the revised terms
and conditions of services mentioned in Para
1 shall not apply to the following categories
of employees:

a) All employees working in the officeestablishment of the Asstt. General Manager,
General Manager, Service Manager, Chief
Mechanical Engineers, Roadways Central
workshop, Kanpur.

b) Supervisory staff of the rank of
Junior Station Incharge and above of the
Traffic side.

c) Technical staff of the rank of Junior
Foreman and above on Engineering side.

20. Learned counsel for the appellants
submitted that the respondent did not fall in
any of the categories aforesaid, namely, subclauses (a), (b) and (c) of Para 7 and,
1310 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
therefore, he was not covered by the
aforesaid exception.

21. Sub-clause (a) of Para 7 includes
the employees who were working in the
office-establishment of the Assistant General
Manager and the respondent was working in
the office of Assistant General Manager,
when in the Roadways, therefore, it cannot
be said that he was not an employee covered
by the said exclusion clause.

22. Apart from this the last paragraph
of the Government order pronounced in
unequivocal terms that these orders shall
come into force with effect from October,
1960 and shall apply to all future entrants in
the service of the Roadways organisation and
also to the existing temporary employees
who opt to continue to work on the revised
terms and conditions of service. It further
clarifies that the status of Roadways
employees already made permanent shall
remain unaffected. It further says that all
existing temporary employees except those
mentioned in Para 2 may be asked to indicate
in writing if the new service conditions
mentioned in the said order are acceptable
and those who accept the new terms and
conditions of service will be required to fill
in a separate acceptance form which will be
kept with their service record.

23. The last paragraph of the
Government order, which clarifies that it was
not applicable nor could be made applicable
to the employees of erstwhile Roadways,
who were permanent, reads as under:

"These orders shall come into force
with effect from October, 1960 and shall
apply to all future entrants in the service of
the Roadways organisation and also the
existing temporary employee who accept to
continue to work on the revised terms and
conditions of service. The status of Roadway
employee already made permanent remains
unaffected. All 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 those who accept the new
terms and conditions of service will be
required to fill in a separate acceptance form
which will be kept with their service record.
If, however, any of the employees do not
accept the new terms their services are to be
terminated in accordance with terms of their
services with a term of employment. I am to
suggest that the implications by the Engg.
and that necessary action may please be
initiated forthwith in order to implement
above orders."

24. It is not the case of the appellants
that the respondent was not a permanent
employee of the Roadways. It is also not
being disputed by the Corporation that the
status of Roadways employees, who were
permanent, remained unaffected under the
said Government order dated 16.9.60. It is
also not the case of the appellants that the
respondent was ever treated as temporary
employee and that he was asked to indicate
his option in writing, if he was agreeable to
new service conditions mentioned in the
aforesaid Government order and if so, he has
filled the prescribed form.

25. There was no occasion for the
respondent to fill in any such form of
acceptance of new service conditions nor any
such option appears to have been asked for,
for the obvious reason that he was a
permanent staff on the date of issuance of the
Government order and, therefore, his status
was
not
affected
by
the
aforesaid
Government order, meaning thereby that the
pensionary benefits of those employees, who
were covered by that Government order
3 All] U.P. State Road Transport Corporation and another V. Mirza Athar beg and others 1311
might have been taken away, but such a
condition would not be applicable to the
respondent.

26. Counsel for the appellants also
made an attempt to assail the finding of the
learned Single Judge on the interpretation of
Regulation 39 of the Regulations known as
U.P. State Road Transport Corporation
Employees (Other than officers) Service
Regulations, 1981, which provides as under:

"Pension
and
other
retirement
benefits.--(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 subregulation (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) 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 :--

(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."

27. Learned Single Judge has
considered the aforesaid Regulation and
relying
upon
the
judgement
of
the
Uttarakhand High Court in the case of Prem
Singh vs. State of U.P. and others [Writ
Petition No. 1313 (SS) of 2001] decided on
1.11.03,
has
observed
that
the
said
Regulation itself provide for the benefit of
pension to the employees working in the
Roadways, after they
were sent on
deputation to the Corporation.

28. This judgement became the subject
matter of challenge before the apex court,
where the Special Leave Petition was later on
dismissed as withdrawn.

29. Sub-clause 1 (ii) of Regulation 39
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 5.7.72.
The Government order dated 5.7.72 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.
1312 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

30. The finding recorded by the learned
Single Judge with regard to the aforesaid
Regulation 39 does not call for any
interference by us.

31. Learned Single Judge has also
considered the case of Harbansh Pathak vs.
State of U.P. and others (Writ Petition No.
1226 of 1987) but has not relied upon the
same, in view of the judgement in the case of
U.P.S.R.T.C. Vs. S.M. Fazil and others
[Writ Petition No. 544 (SB) of 2000],
wherein a distinction has been drawn that at
the time when the case of Harbansh Pathak
was decided, the Regulations had not come
into force and, therefore, it could not be a
binding law, with respect to the employees
who stand covered by the Regulations.

32. The appellants thus, could not
establish that in what manner, the respondent
was not entitled to the benefit of pension,
when not only the Regulations framed
(Regulation 39) protected the said benefit as
it was available to him as an employee of the
erstwhile Roadways but the Government
order of 1972 also protected the aforesaid
benefit.

33.

Learned
counsel
for
the
Corporation could not otherwise prove nor,
as a matter of fact, urge that the respondent
was not entitled to pension on the post on
which he was working in the erstwhile
Roadways,
prior to the issuance
of
Government order dated 16.9.60.

34. Thus, the respondent was working
on a pensionable post with the erstwhile
Roadways, when he was sent on deputation
to the Corporation and he being a permanent
employee of the erstwhile Roadways, his
conditions of service remain unaffected and
unchanged even on the issuance of the
Government order dated 16.9.60, notified on
28.10.60. Therefore, the respondent was fully
entitled to the benefit of pension which has
been granted by the learned Single Judge.

35. The last plea of the appellants that
once the respondent had accepted the
Provident Fund amount, he was not entitled
to claim pension, can also not be accepted for
the reason that there cannot be any estoppel
against law, as the pension is not a charity or
bounty and moreso when the learned Single
Judge has issued a direction for refund of the
amount so received by the appellants before
paying amount of pension.

36. We thus, uphold the order passed
by the learned Single Judge.

Considering the fact that 19 years have
elapsed since the respondent retired and the
prayer of the respondent's counsel that the
amount of EPF already received, may be
adjusted towards the arrears of pension, we
provide that the pension shall be fixed as per
rules within a maximum period of two
months from the date of receipt of a certified
copy of this order and the same shall be paid
regularly with effect from the current month.
The arrears of pension shall be paid within a
maximum period of one month from its
determination, after adjusting the amount of
EPF (contribution of the employer), which
has already been received by the respondent.
It would also be open to the respondent to
deposit the amount of EPF (contribution of
the employer), already received and if such a
deposit is made, there would not be occasion
for deducting the said amount.

37. This direction shall be complied
with by all concerned departments and the
pension is to be paid within the time frame
prescribed.
3 All] Mohd. Alliyas V. State of U.P. and others
1313

In regard to the apprehension of the
respondent that the Corporation will charge
interest on the contribution of the employer
towards the EPF, suffice would be to
mention that, in such an event the respondent
would also be entitled to the interest on the
delayed payment of pension.

38. We, therefore, provide that no
interest be charged on the EPF amount, as
the respondent also says that he will not
claim any interest on the amount of pension.

39.

With
the
aforesaid
directions/observations, the special appeal is
dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.12.2010

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

U/S 482/378/407 No. 1257 of 2010

Mohd. Alliyas

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

Counsel for the Petitioner:
N.K. Dwivedi

Counsel for the Respondent:
Govt. Advocate
D.R. Singh Yadav

Code of Criminal Procedure-Section 482Offence under Section 363, 366, 376
IPC-Quashing of chargesheet-applicant
ofter
performing
marriage
with
prosecutrix-got two issues from her
wedlock -she admitted the marriage and
physical relationship with applicant on
her free will-as such continuation of
criminal proceeding amounts to abuse
of process-held-if applicant surrender
within prescribed period and executive
personal bond-magistrate to commit the
case for Trail before session judge with
liberty to move discharge application-be
considered in accordance with law.

Held: Para 5

Considering the facts, circumstances of
the case submissions made by learned
counsel for the applicant and O.P. No. 2,
it is directed that applicant shall appear
before the court concerned within 30
days from today, his appearance shall be
noted in his present and he shall furnish
his personal bonds, thereafter the matter
will be committed to the court of
sessions, after committal, in case the
applicant moves discharge application
through his counsel within 30 days
thereafter, the trial court shall pass the
appropriate
order
on
the
discharge
application expeditiously in accordance
with law.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard learned counsel for the
applicant, learned A.G.A.and learned
counsel for O.P. No. 4.

2. This application has been filed
with a prayer to quash the charesheet
dated 17.2.2009 in case crime No. 4840 of
2008 under sections 363, 366, 376 IPC
P.S. Kotwali Nagar, District Faizabad
pending in the court of learned C.J.M.
Faizabad in case No. 13423 of 2009.

3. It is contended by learned counsel
for the applicant that in the present case
the applicant has performed the marriage
with the prosecutrix, from their wedlock
two children have been born. According
to the medical examination report the age
of prosecutrix was 22 years, according to
the statement recorded under section 164
Cr.P.C. she was aged about 20 years and
she has not supported the prosecution