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2019 Supreme(All) 651
IN THE HIGH COURT OF ALLAHABAD
RITU RAJ AWASTHI, J.
Subhash Chandra Gautam - Appellant
Versus
State Of U.P. Through Secy. Deptt. Of Transport Lko. & Ors. – Respondents
SERVICE BENCH No. - 385, 728 of 2014
Decided on : 22-02-2019
Advocate Appeared:
For the Appellant : Ghaus Beg
For the Respondent: C.S.C., Ratnesh Chandra
Headnote:
Service Law – Road Transport Corporations Act, 1950 – Section 45 (2) (c) – Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service Regulation, 1981 – Regulation 39 (I) (1) – Whether petitioners entitled to get regular departmental pension in view of Government Order as well as Government Order – Whether they can be denied regular departmental pension solely on ground that since they were getting pension under EPF scheme, as such not entitled to get regular departmental pension – Held, There was no option before petitioners as to whether they want to get the regular departmental pension or avail the benefit of pension under EPF scheme as at the time of their retirement, regular departmental pension not payable to them and decision to pay regular departmental pension to employees who were promoted on a pensionable post during period made applicable after their retirement vide Government Order as such, it cannot be said that petitioners had relinquished their right to get regular departmental pension and had opted for pension under EPF scheme – Judgment of Apex Court in case of V.K. Ramamurthy (supra) not applicable to the present facts of case – Petitioners were holding pensionable post and entitled to get regular departmental pension – Opposite parties directed to fix pension of petitioners as per Rules within maximum period from date of production of certified copy of this order same paid regularly from current month – Arrears of pension shall be paid within a maximum period of one month from its determination, after adjusting the amount of EPF (Employers share) which has been received by the petitioners – It is made clear that neither petitioners nor opposite parties claim any interest either on EPF amount (Employers share) nor on pension – Petitions allowed. (Paras: 34 to 36)
Facts of the case:
Whether petitioners entitled to get regular departmental pension in view of Government Order as well as Government Order – Whether they can be denied regular departmental pension solely on ground that since they were getting pension under EPF scheme, as such not entitled to get regular departmental pension.
Findings of the court:
There was no option before petitioners as to whether they want to get the regular departmental pension or avail the benefit of pension under EPF scheme as at the time of their retirement, regular departmental pension not payable to them and decision to pay regular departmental pension to employees who were promoted on a pensionable post during period made applicable after their retirement vide Government Order as such, it cannot be said that petitioners had relinquished their right to get regular departmental pension and had opted for pension under EPF scheme – Judgment of Apex Court in case of V.K. Ramamurthy (supra) not applicable to the present facts of case – Petitioners were holding pensionable post and entitled to get regular departmental pension – Opposite parties directed to fix pension of petitioners as per Rules within maximum period from date of production of certified copy of this order same paid regularly from current month – Arrears of pension shall be paid within a maximum period of one month from its determination, after adjusting the amount of EPF (Employers share) which has been received by the petitioners – It is made clear that neither petitioners nor opposite parties claim any interest either on EPF amount (Employers share) nor on pension.
Result: Petitions allowed
1. Heard Mr. Ghaus Beg, learned counsel for the petitioners as well as learned standing counsel for the State and Mr. Abhinav Singh, learned counsel holding brief of Mr. Ratnesh Chandra, learned counsel for the opposite parties no. 2 to 4.
2. These are two writ petitions i.e., Writ Petition No. 385 (SB) of 2014; Subhash Chandra Gautam vs. State of U.P. and others and Writ Petition No. 728 (SB) of 2014; Bhishma Deo Mishra vs. State of U.P. and others. They involve same question of law, as such, they have been listed and have been heard together and now they are being decided by this judgment.
3. In Writ Petition No. 385 (SB) of 2014, petitioner, Subhash Chandra Gutam, has assailed the order dated 5.12.2013 whereby he has been denied regular departmental pension on the ground that he is drawing pension under EPF scheme, as such, not entitled for getting regular departmental pension.
4. In Writ Petition No. 728 (SB) of 2014, petitioner, Bhishma Deo Mishra, has assailed the order dated 19.2.2013 whereby he has been denied regular departmental pension on the ground that he is drawing pension under EPF scheme, as such, not entitled for getting regular departmental pension. The petitioner has also challenged the circular dated 25.10.2012 so far as it relates to the effect that those category of retired/deceased employees who are getting pension from the EPF office are not entitled for regular departmental pension.
5. The question involved in both the writ petitions is whether the petitioners are entitled to get regular departmental pension in view of the Government Order dated 20.10.2004 as well as Government Order dated 10.10.2012 and whether they can be denied regular departmental pension solely on the ground that since they were getting pension under EPF scheme, as such not entitled to get regular departmental pension.
6. Petitioner, Subhash Chandra Gautam (Writ Petition No. 385 (SB) of 2014) was initially appointed on the post of Assistant Mechanic vide appointment order dated 18.7.1973. He was promoted on the post of Mechanic vide order dated 26.7.1977. He was further promoted on the post of Junior Foreman on 14.8.1978. Again, he was promoted as Senior Foreman (Grade-II) on 17.7.1984 and later on he was promoted as Senior Foreman (Grade I) on 2.1.1992 and lastly he was promoted on the post of Assistant Regional Manager (Technical) (Class-II Post) on 15.7.2007. He retired from service on attaining the age of superannuation on 31.12.2007 from the Mahoba Depot, Jhansi Region, Jhansi.
7. Petitioner, Bhishma Deo Mishra (Writ Petition No. 728 (SB) of 2014) was initially appointed on the post of Mechanic vide appointment order dated 12.12.1975 on which post he joined on 13.12.1975. Prior to the appointment on the post of Mechanic, he was working as “Trainee Supervisor' w.e.f. 26.12.1973 at Central Workshop Kanpur. He was promoted on the post of Junior Foreman vide office order dated 13.1.1979. Thereafter, he was promoted as Senior Foreman (Grade-II) vide office order dated 22.3.1986 and again he was promoted as Senior Foreman (Grade I) vide office order dated 2.11.1996. Later on he was promoted on the post of Assistant Regional Manager (Technical) (Class-II Post) on 22.12.2004. He retired from service on attaining the age of superannuation on 31.8.2010 from Dr. Ram Manohar Lohia Workshop, Kanpur.
8. Learned counsel for petitioners submits that at the time of appointment of petitioners in U.P. State Road Transport Corporation (hereinafter referred to as “UPSRTC') no service Rules for the employees of UPSRTC were framed and their services were governed under the general instructions issued by the State Government to the Corporation relating to recruitment, conditions of service and training to its employees, wages to be paid to the employees, etc. The State Government in exercise of powers under Section 45 (2) (c) of the Road Transport Corporations Act, 1950 (Central Act 64 of 1950) has framed the regulations, namely, Uttar Pradesh St
