Judgment:
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. Petitioner retired as an employee of U.P. State Road Transport Corporation (U.P.S.R.T.C.) on 31.12.1994. Through letter dated 04.09.2000 (Annexure IV) written by Regional Manager, U.P.S.R.T.C., Kanpur from where the petitioner had retired to Director Pension Directorate U.P. Lucknow it was communicated that petitioner had been appointed on 12.1.1959 in U.P. Roadways Gorakhpur and on the said post he had been declared to be permanent on 14.04.1960. It was further directed that petitioner had received E.P.F. contribution and gratuity of non pensionable post, hence pension must be granted to him after adjustment of the said amount with interest. Pension payment order was issued on 3.11.2000 for payment of pension/family pension to the petitioner, a true copy of which is Annexure 6 to the writ petition. However, after two days that order was withdrawn by order dated 5.11.2000 (Annexure VII) which has been challenged through this writ petition.
3. In the counter affidavit it has been stated that order regarding grant of pension was wrongly passed in favour of the petitioner on the basis of incorrect entries in petitioner's service book and on the objections of the audit said error was detected and hence withdrawal order was passed on 5.11.2000 (impugned in the instant writ petition). It has further been elaborated in the counter affidavit that for the first time by virtue of Government Order dated 28.10.1960 some posts in erstwhile U.P. Government roadways were made pensionable however it was essential that the incumbents of the said posts (three in number) shall be permanent. The said Government Order is quoted below:
in continuation of G.O. No. 31040/XXX-135V/1950 Sept.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:
(a) The employees working in the office establishment of the Asstt. General Manager, General Manager, Service Manager, Chief Mechanical Engineer, Roadways Central Workshop, Kanpur and the Headquarter office of the Transport Commissioner.
(b) Supervisory staff of the rank of Junior Station Incharge and above on the traffic side.
(c) Technical staff of the rank of Junior Foremen and above on the engineering side; 'rank' means position/status but no post.
2. 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 non-gazetted Roadways employee4s both in the traffic and Engineering sections of the Organisation, would be treated as non-pensionable. 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.
3. 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.
4. 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. 14880/XXX-219/59 dated 29.7.1960.
4. It has further been stated in the counter affidavit that in the service book of the petitioner it was wrongly mentioned that petitioner had been confirmed/treated to be confirmed through order dated 14.4.1960 while in fact the said order was only an order of appointment. Appointment orders of the petitioner have been annexed as Annexures RA 1,2 and 3 to the rejoinder affidavit. RA-1 is dated 10.01.1959 according to which petitioner was temporarily appointed as a Junior clerk in the vacancy caused by sanction of leave reserve. Annexure RA 2 is general order in respect of 31 employees including the petitioner whose name is mentioned at serial No. 15 in the said order. The said order is dated 29/30 April 1959. The said order states that:
the following persons who were appointed as Junior clerks and booking clerks - vide this office order...against the additional sanction of staff for leave reserve upto 31.3.1959 are hereby reappointed on the same post w.e.f. 3.4.1959 to 31.3.1960 against the additional sanction communicated by Sahayak Parivahan Ayukta (R) Lucknow in his letter No. 2087 Rest/55R/Est dated 9.4.1959.
5. In the portion not quoted (denoted by dots) numbers and dates of different orders were mentioned including the date 10.1.1959 (through order of the said date petitioner had earlier been appointed) Thereafter, comes the crucial letter dated 14.4.1960, copy of which is Annexure RA-3 containing the names of 21 persons. Petitioner's name is mentioned at serial No. 17. The said order states as follows:
The following staff appointed and promoted against G.O. dated 30.03.1959 regarding sanction of staff for Gorakhpur -Nautanwa, Nautanwa -Sonauli, Mankapur- Lakarmandi, and Deoria- Ruperpur, additional sanction of staff accorded by Transport Commissioner vide letter dated 09.4.1959 upto 31.3.1960 are hereby allowed to continue w.e.f. 01.04.1960 to 31.3.1961 in anticipation of Government sanction.
6. Their services are purely temporary and liable to terminate and revert on or before expiry of sanction.
7. On 1.6.1972 U.P.S.R.T.C. was created under Section 3 of R.T.C. Act 1950. All the employees of U.P. Government Roadways department were sent on deputation to the corporation. Thereafter, through G.O. dated 5.7.1972 service condition of roadways employees were protected. Petitioner was made permanent by U.P.S.R.T.C. on 09.05.1974. In the year 1981 U.P.S.R.T.C. framed its service regulation. On 28.7.1982 all employees of the roadways of erstwhile U.P. Government Roadways department who were till then on deputation with U.P.S.R.T.C. were absorbed in service by U.P.S.R.T.C. including the petitioner.
8. There is absolutely no dispute that such employees who were earlier U.P. Government roadways employees and were absorbed in the U.P.S.R.T.C. like the petitioner were entitled to all the benefits which were available to them as Government employees prior to their absorption in case the service conditions in that regard in the corporation were less favourable. U.P.S.R.T.C. does not grant pension to its employees. However, if a person was an employee of U.P. Government roadways and his post was pensionable then he will be entitled to pension.
9. Regulation 39(1) of U.P. Road Transport Corporation employees (other officers) Service Regulation 1981 is quoted below:
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 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- 107-N-72 dated July 5,1972.
10. Learned Counsel for the respondents vehemently argued that even if petitioner was held entitled to pension the claim was barred by estoppal and waiver as petitioner accepted the benefit at the time of his retirement which is admissible to such employees whose posts are non pensionable. However, I am unable to accept this contention. Through Annexure 5 and 6 sanctioning the pension it was categorically mentioned that the earlier benefits drawn by the petitioner would be adjusted in pension. In this regard reference may be made to Annexure 3 to 6 to III supplementary rejoinder affidavit Annexure 6 is Government Order dated 07.01.1984 according to which if some amount had been paid treating the post non pensionable at the time of retirement then pension should be permitted after adjustment of the said amount along with interest. To the same effect is G.O. Dated 16.07.1988. (Annexure 8 to the third Supplementary Rejoinder affidavit) and letter dated 2.6.1999 issued by U.P.S.R.T.C. Annexure 11. Moreover this point is not taken in the impugned cancellation order.
11. Similarly I do not consider it necessary to decide the contention raised by learned Counsel for the respondents that the petitioner did not belong to any of the three posts (categories of the posts) permanent incumbents of which were conferred benefit of pension through G.O. Dated 28.10.1960 for the reason that it was also not a ground taken in the impugned cancellation order dated 5.11.2000.
12. The only dispute between the parties requiring decision is as to whether post of the petitioner under U.P. Government Roadways department was pensionable or not. By no stretch of imagination it can be said that the order dated 14.4.1960 (Annexure RA 3) was confirmation order either express or implied. Until June 1989 temporary employees of the U.P. Government did not enjoy benefit of the pension. For the first time through G.O. dated 1.7.1989 it was provided that all those Government employees who had worked for 10 years on pensionable posts but as temporary employees would also be entitled to pension. The question is whether petitioner can avail the benefit of this G.O. or not. In my opinion the answer is in the negative. Much before 01.07.1989 petitioner had ceased to be a U.P. Government employee. His services had been absorbed in U.P.S.R.T.C. He will be entitled to all those benefits which were available to the U.P. Government employees before their deputation to or absorption in U.P.S.R.T.C. However, if some benefit is conferred upon Government employees after that date then a U.P. Government Roadways employee whose services had earlier been absorbed in U.P.S.R.T.C. can not claim benefit of said facility retrospectively. Moreover para 4 of the G.O. dated 28.10.1960 (supra) makes it abundantly clear that temporary employees were not granted pension. Accordingly, in my opinion petitioner was wrongly held entitled to the pension and that order was rightly recalled.
13. Learned Counsel for the respondents has cited an authority of this Court reported in Har Bux Pathak v. State of U.P. and Ors. 1992(1) U.P.L.B.E.C. 242. The said judgment was confirmed in special appeal No. 34 of 1992 dismissed on 22.9.1994. In the said authority the G.O. dated 28.10.1960 was thoroughly considered. One more authority has also been cited by the learned Counsel for the respondent reported in R.C. Pathak v. State of U.P. and Ors. : 2003(2) AWC 1348. In the said case also it was held that those employees who did not hold pensionable posts at the time of their deputation or absorption in U.P.S.R.T.C. could not claim pension.
14. Some more authorities have also been cited by the learned Counsel for both the parties in respect of claim of pension by erstwhile U.P. Roadways employees absorbed in U.P.S.R.T.C. However, question of temporary employees was not considered in any of those authorities.
15. Accordingly, I hold that the order dated 4.09.2000 and pension payment order dated 03.11.2000 were erroneous in law as petitioner not being permanent employee before his absorption in U.P.S.R.T.C. was not entitled to the pension by virtue of Government Order dated 28.10.1960. The said order of 4.09.2000 was based upon misconception of the fact that petitioner had been confirmed and made permanent on 14.04.1960. Petitioner had not been confirmed or made permanent through order dated 14.04.1960.
16. Accordingly, the order dated 04.09.2000 and pension payment order dated 03.11.2000 were rightly cancelled, withdrawn and set aside through impugned order dated 5.11.2000.
17. There is therefore no merit in the writ petition hence it is dismissed.