1. Dispute over pension eligibility for former employees of a temporary state department absorbed into a statutory corporation under the Road Transport Corporation Act, 1950. (Para 5 , 6 , 7 )
Back
Next 
2024 Supreme(SC) 605
SUPREME COURT OF INDIA
HRISHIKESH ROY, PRASHANT KUMAR MISHRA, JJ.
UP Roadways Retired Officials And Officers Association - Appellant
Versus
State of U.P. & Anr. - Respondents
Civil Appeal No. 894 of 2020 With C.A. No. 896/2020, C.A. No. 898/2020, C.A. No. 957/2020, C.A. Nos. 959-965/2020, C.A. No. 897/2020, C.A. No. 895/2020, C.A. Nos. 899-901/2020, C.A. No. 910/2020, C.A. No. 902/2020, C.A. No. 912/2020, C.A. No. 909/2020, C.A. No. 913/2020, C.A. No. 958/2020, C.A. No. 915/2020, C.A. No. 966/2020, C.A. No. 914/2020, C.A. No. 832/2020, C.A. No. 967/2020, C.A. No. 905/2020, C.A. No. 907/2020, C.A. No. 903/2020, C.A. No. 911/2020, C.A. No. 904/2020, C.A. No. 906/2020, C.A. No. 908/2020 & C.A. No. (s) /2024 @ SLP (c) /2024 @ Diary No. 10240/2020
Decided On : 26-07-2024
Important Points
IMPORTANT POINTS
(1) Pension is a right and not a bounty – It is a constitutional right for which an employee is entitled on his superannuation – However, pension can be claimed only when it is permissible under relevant rules or a scheme.
(2) A party to litigation cannot be permitted to approbate and reprobate.
(1) Pension is a right and not a bounty – It is a constitutional right for which an employee is entitled on his superannuation – However, pension can be claimed only when it is permissible under relevant rules or a scheme.
(2) A party to litigation cannot be permitted to approbate and reprobate.
Subject
Service Law - Pension and Retirement Benefits
Act Referred
Road Transport Corporation Employees other than Officers Service Regulations: Reg.39, Reg.4
ROAD TRANSPORT CORPORATIONS ACT: S.3
ROAD TRANSPORT CORPORATIONS ACT: S.3
Headnote
Service Law – Pension – [Road Transport Corporation Employees (other than Officers) Service Regulations, 1981 – Regulations 4 and 39] – Pension is a right and not a bounty – It is a constitutional right for which an employee is entitled on his superannuation – However, pension can be claimed only when it is permissible under relevant rules or a scheme – If an employee is covered under Provident Fund Scheme and is not holding a pensionable post, he cannot claim pension, nor Writ Court can issue mandamus directing employer to provide pension to an employee who is not covered under rules – Service in non-gazetted posts in Government Technical and Industrial Institutions in State of Uttar Pradesh does not qualify for pension and it will be covered under Contributory Provident Fund Scheme – Those State Government employees who have opted for service of Corporation will be entitled for pension, otherwise an employee of Corporation shall not be entitled to pension – Only State Government employees absorbed in Corporation shall be entitled to pension – Appellants having received retiral benefits
including benefit under the Employees Provident Fund Scheme, cannot be permitted to turn round and contend that they should also be given pension – Impugned Judgments set aside. (Paras 22, 27, 30, 35, 49 and 51)
Facts of the case:
Issue falling for consideration is whether appellants who are former employees of Uttar Pradesh Roadways, a temporary department of State Government, are holding any pensionable post before or after their absorption in U.P. State Roadways Transport Corporation.
Findings of Court:
Division Bench of High Court was not correct in holding that members of RKSP entitled to pension even if they have been promoted after cut-off date of 27.08.1982.
Result : Appeals filed by UPSRTC allowed and appeals filed by Roadways Karamchari Sanyukta Parishad, UP dismissed.
Legal Category Hierarchy
- administrative law
- civil law
Advocates appeared:
For the Appellant(s) : Mr. Rakesh Khanna, Sr. Adv. Mr. S.N.Pandey, Adv. Dr. Rashmi Khanna, Adv. Mr. Aditya Pushkar Khanna, Adv. Ms. Ramya Khanna, Adv. Dr. Vikash Pahal, Adv. Ms. Somya Pandey, Adv. Ms. Deep Aishwarya, Adv. Mr. Chander Shekhar Ashri, AOR Mr. U.K. Uniyal, Sr. Adv. Mr. Dinesh Kumar Garg, Adv. Mr. Abhishek Garg, Adv. Mr. Dhananjay Garg, AOR Mr. Chanakya Gupta, Adv. Mr. R.P. Bansal, Adv. Mr. Tanuj Gulati, Adv. Mr. Gaurav Choudhary, Adv. Ms. Anu Kushwaha, Adv. Mr. Ghanshyam Choudhary, Adv. Mr. Choudhary Shamshuddin, Adv. Mr. B. K. Pal, AOR Mr. Vivek Gupta, AOR Mr. Ayush Negi, Adv. Ms. Vishakha Upadhyaya, Adv. Mr. Ankur Yadav, AOR Mr. P.K. Singh, Adv. Mr. Ram Shiromani Yadav, Adv. Ms. Dharamsheela, Adv. Mr. Vijay Pal, Adv. Mr. Mahendra Singh, Adv. Mr. Kajal Kumari, Adv. Ms. Nisha Rani, Adv. Ms. Sundri, Adv. Mr. Rajvir singh, Adv. Mr. Amit Kumar Chawla, Adv. Mr. Jamshed Bey, Adv. Mr. Tejasvi Kumar, Adv. Mr. Syed Sarfaraz Karim, Adv. Mrs. Renu Bhandari, Adv. Mr. Mudit Talesara, Adv. Mr. Ajay Kumar Talesara, AOR Mr. Bhaskar Y. Kulkarni, AOR Mr. Ashish Kumar Upadhyay, AOR Mr. Anurag Dubey, Adv. Ms. Anu Sawhney, Adv. Mr. Meenesh Dubey, Adv. Ms. Maitri Goal, Adv. Dr. Satpal Wadhwa, Adv. Mr. Bhupendra Kumar Bhardwaj, Adv. Ms. Divya Bhardwaj, Adv. Mr. Ashish Kumar Upadhyay, Adv. Ms. Garima Prashad, Sr. Adv. Mr. Nishit Agrawal, AOR Ms. Kanishka Mittal, Adv. Ms. Vanya Agrawal, Adv. Mr. Shadab Khan, Adv. Mr. Shrey Kapoor, Adv. Ms. Upasna Agrawal, Adv. Ms. Nidhi Singh, Adv.
For the Respondent(s): Mr. Rakesh Khanna, Sr. Adv. Mr. S.N. pandey, Adv. Dr. Rashmi Khanna, Adv. Mr. Aditya Pushkal Khanna, Adv. Ms. Ramya Khanna, Adv. Dr. Vikas Pahal, Adv. Ms. Somya Pendey, Adv. Mr. Chander Shekhar Ashri, AOR Mr. Manan Verma, AOR Mr. Ravindra S. Garia, AOR Mr. R B Singh, Adv. Mr. Sunil Singh, Adv. Mr. Shashank Singh, Adv. Mrs. Rachna Gandhi, Adv. Mr. Madan Chandra Karnatak, Adv. Mr. Rakesh Khanna, Sr. Adv. Mr. Rakesh Khanna, Sr. Adv. Mr. S N Pandey, Adv. Mr. Naveen Kumar Tripathi, Adv. Mr. Naveen Kumar Tripathi, Adv. Mr. Aditya Pushkal Khanna, Adv. Mr. Aditya Pushkal Khanna, Adv. Mr. Vikas Pahal, Adv. Ms. Soumya Pandey, Adv. Ms. Soumya Pandey, Adv. Ms. Saroj Tripathi, AOR Mr. Dhruv Surana, Adv. Mr. Arya Hardik, Adv. Mr. Rohit Amit Sthalekar, AOR Ms. Garima Prashad, Sr. Adv. Mr. Nishit Agrawal, AOR Ms. Kanishka Mittal, Adv. Ms. Vanya Agrawal, Adv. Mr. Shadab Khan, Adv. Mr. Shrey Kapoor, Adv. Ms. Upasna Agrawal, Adv. Ms. Nidhi Singh, Adv. Mr. Pradeep Misra, AOR Mr. B.K. Mishra, Sr. Adv. Mr. Mahipal Singh, Adv. Mr. Amit Kumar Chawla, Adv. Ms. Divya Mishra, Adv. Mr. Anshuman Mishra, Adv. Mr. Garvit Singh, Adv. Mr. Kamlendra Mishra, AOR
For the Appellant(s) : Mr. Rakesh Khanna, Sr. Adv. Mr. S.N.Pandey, Adv. Dr. Rashmi Khanna, Adv. Mr. Aditya Pushkar Khanna, Adv. Ms. Ramya Khanna, Adv. Dr. Vikash Pahal, Adv. Ms. Somya Pandey, Adv. Ms. Deep Aishwarya, Adv. Mr. Chander Shekhar Ashri, AOR Mr. U.K. Uniyal, Sr. Adv. Mr. Dinesh Kumar Garg, Adv. Mr. Abhishek Garg, Adv. Mr. Dhananjay Garg, AOR Mr. Chanakya Gupta, Adv. Mr. R.P. Bansal, Adv. Mr. Tanuj Gulati, Adv. Mr. Gaurav Choudhary, Adv. Ms. Anu Kushwaha, Adv. Mr. Ghanshyam Choudhary, Adv. Mr. Choudhary Shamshuddin, Adv. Mr. B. K. Pal, AOR Mr. Vivek Gupta, AOR Mr. Ayush Negi, Adv. Ms. Vishakha Upadhyaya, Adv. Mr. Ankur Yadav, AOR Mr. P.K. Singh, Adv. Mr. Ram Shiromani Yadav, Adv. Ms. Dharamsheela, Adv. Mr. Vijay Pal, Adv. Mr. Mahendra Singh, Adv. Mr. Kajal Kumari, Adv. Ms. Nisha Rani, Adv. Ms. Sundri, Adv. Mr. Rajvir singh, Adv. Mr. Amit Kumar Chawla, Adv. Mr. Jamshed Bey, Adv. Mr. Tejasvi Kumar, Adv. Mr. Syed Sarfaraz Karim, Adv. Mrs. Renu Bhandari, Adv. Mr. Mudit Talesara, Adv. Mr. Ajay Kumar Talesara, AOR Mr. Bhaskar Y. Kulkarni, AOR Mr. Ashish Kumar Upadhyay, AOR Mr. Anurag Dubey, Adv. Ms. Anu Sawhney, Adv. Mr. Meenesh Dubey, Adv. Ms. Maitri Goal, Adv. Dr. Satpal Wadhwa, Adv. Mr. Bhupendra Kumar Bhardwaj, Adv. Ms. Divya Bhardwaj, Adv. Mr. Ashish Kumar Upadhyay, Adv. Ms. Garima Prashad, Sr. Adv. Mr. Nishit Agrawal, AOR Ms. Kanishka Mittal, Adv. Ms. Vanya Agrawal, Adv. Mr. Shadab Khan, Adv. Mr. Shrey Kapoor, Adv. Ms. Upasna Agrawal, Adv. Ms. Nidhi Singh, Adv.
For the Respondent(s): Mr. Rakesh Khanna, Sr. Adv. Mr. S.N. pandey, Adv. Dr. Rashmi Khanna, Adv. Mr. Aditya Pushkal Khanna, Adv. Ms. Ramya Khanna, Adv. Dr. Vikas Pahal, Adv. Ms. Somya Pendey, Adv. Mr. Chander Shekhar Ashri, AOR Mr. Manan Verma, AOR Mr. Ravindra S. Garia, AOR Mr. R B Singh, Adv. Mr. Sunil Singh, Adv. Mr. Shashank Singh, Adv. Mrs. Rachna Gandhi, Adv. Mr. Madan Chandra Karnatak, Adv. Mr. Rakesh Khanna, Sr. Adv. Mr. Rakesh Khanna, Sr. Adv. Mr. S N Pandey, Adv. Mr. Naveen Kumar Tripathi, Adv. Mr. Naveen Kumar Tripathi, Adv. Mr. Aditya Pushkal Khanna, Adv. Mr. Aditya Pushkal Khanna, Adv. Mr. Vikas Pahal, Adv. Ms. Soumya Pandey, Adv. Ms. Soumya Pandey, Adv. Ms. Saroj Tripathi, AOR Mr. Dhruv Surana, Adv. Mr. Arya Hardik, Adv. Mr. Rohit Amit Sthalekar, AOR Ms. Garima Prashad, Sr. Adv. Mr. Nishit Agrawal, AOR Ms. Kanishka Mittal, Adv. Ms. Vanya Agrawal, Adv. Mr. Shadab Khan, Adv. Mr. Shrey Kapoor, Adv. Ms. Upasna Agrawal, Adv. Ms. Nidhi Singh, Adv. Mr. Pradeep Misra, AOR Mr. B.K. Mishra, Sr. Adv. Mr. Mahipal Singh, Adv. Mr. Amit Kumar Chawla, Adv. Ms. Divya Mishra, Adv. Mr. Anshuman Mishra, Adv. Mr. Garvit Singh, Adv. Mr. Kamlendra Mishra, AOR
Table of Contents
2. Appellants claim pension based on service regulations and parity; Corporation argues they held non-pensionable posts and already availed provident fund benefits. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 )
3. The court found appellants held non-pensionable posts under Note 3 of Article 350 and cannot claim pension after accepting provident fund benefits. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 46 , 47 , 48 , 49 , 50 )
4. Pension is a valuable right, but entitlement depends on the employee holding a pensionable post as defined by the applicable rules or scheme. (Para 33 , 35 )
5. Appeals filed by the employees are dismissed, and appeals filed by the Corporation are allowed. (Para 41 , 51 , 52 )
6. Is pension considered a bounty or a legal right?
Pension is not a bounty but a valuable constitutional right for an employee upon superannuation; however, it can only be claimed if the employee is entitled to it under a specific rule or scheme. (Para 33 , 35 )
7. Can an employee claim pension after receiving benefits under a Provident Fund scheme?
Generally, no. A party cannot be permitted to approbate and reprobate. Retirees who have opted for and availed benefits under a Provident Fund scheme cannot later claim a right to switch to a pension scheme. (Para 30 , 31 , 32 , 34 )
8. Does the amendment of 'Post' to 'Establishment' in service regulations automatically make all employees pensionable?
No. If a specific Note remains unamended—such as Note 3 of Article 350 which excludes non-gazetted posts in technical and industrial institutions—those employees remain non-pensionable despite the general amendment. (Para 29 )
9. Are employees promoted to pensionable posts after absorption into a corporation entitled to pension?
Only State Government employees absorbed into the Corporation are entitled to pension under specific government orders. Other employees promoted to pensionable posts after the prescribed cutoff date are not entitled to pension. (Para 49 , 50 )
JUDGMENT :
Prashant Kumar Mishra, J.
Delay condoned in filing SLP(C) Diary No. 10240 of 2020 and leave granted.
2. Abatement is set aside and applications for substitution are allowed. Application(s) for intervention is allowed.
3. By this common judgment a batch of civil appeals arising out of the common order passed by the High Court of Judicature at Allahabad in different writ applications and special appeals is disposed of.
4. Civil Appeal No. 894 of 2020 preferred by UP Roadways Retired Officials and Officers Association is taken as the lead case.
CIVIL APPEAL NO. 894 OF 2020
5. In this civil appeal challenge is to the common order dated 24.11.2016 passed by the High Court in Special Appeal No. 685 of 2014 and other connected matters which in turn arose out of common order passed by the learned Single Judge of the High Court on 07.07.2014 in Writ Application No. 63469 of 2012 (Suresh Chandra vs. State of U.P. through Secretary & Ors.) and 51 connected writ applications. The learned Single Judge as well as the Division Bench, under the impugned judgment have dismissed the special appeals and writ applications holding that the appellants/petitioners do not hold the pensionable post and, thus, are not entitled for receiving pension.
6. The issue falling for consideration is whether the appellants who are the former employees of Uttar Pradesh Roadways, a temporary department of the State Government, are holding any pensionable post before or after their absorption in the U.P. State Roadways Transport Corporation1[‘Corporation’].
Government orders regarding service under U.P. Roadways and thereafter U.P. State Roadways Transport Corporation
7. In 1947, Uttar Pradesh Roadways2‘the Roadways’] was created as a temporary department of the State Government for providing public transport facilities. Since the department itself was temporary, the employees working therein were also appointed temporarily and were not members of regular ser vice.
7.1 On 16.09.1960, a Government Order 3[‘GO’] was issued providing service conditions of the Roadways employees which were different than the service conditions of employees working in different Government departments.
7.2. On 28.10.1960, another GO was issued providing for pension to the permanent employees of the erstwhile Roadways. It was mentioned in this order that remaining non-gazetted employees of the Roadways (who are not permanent) would be entitled for benefits under the Employees Provident Fund Scheme.
7.3. On 01.06.1972, the Corporation was created under Section 3 of the Road Transport Corporation Act, 1950.4[‘Act, 1950’ ]
7.4. On 05.07.1972, a GO was issued treating all the employees of the Roadways on deputation with the Corporation without specifying the period of deputation and also assuring them that their service conditions in the Corporation will not be inferior as compared to their service conditions prior to their absorption in the Corporation.
7.5. On 20.04.1997, Article 350 of U.P. Civil Service Regulations5[‘Regulations’] was amended with retrospective effect. However, no amendment was made in Note 3 of Article 350 which provides that non-gazetted post in Government Technical Industrial Institution is not qualified for pension.
7.6. On 19.06.1981, the Corporation framed service regulations in exercise of power under Section 45 (2) (c) of the Act, 1950.
7.7. On 28.04.1982, the Roadways (Abolition of Post and Absorption of Employees) Rules, 1982 were framed providing for absorption of all employees of the Roadways in the service of the Corporation w.e.f. 28.07.1982.
Appellants’ Case
8. There are three sets of appellants segregated on the basis of the date of appointment:
(1) Those who were appointed in the Roadways prior to the G.O. dated 16.09.1960 and have retired.
(2) Those who were appointed after 16.09.1960 but prior to creation of the Corporation as on 01.06.1972 and have retired.
(3) Those who were appointed after 01.06.1972 when the Corporation was created and have retired.
9. Admitted
