Allahabad High Court
Syed Mohammad Arif Hasan Rizvi vs State Of U.P.Thorugh Its Prin Secy ... on 6 December, 2022
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 4 [Reserved]
Case :- WRIT - A No. - 6959 of 2004
Petitioner :- Syed Mohammad Arif Hasan Rizvi
Respondent :- State Of U.P.Thorugh Its Prin Secy Transport And 4 Ors
Counsel for Petitioner :- M.N.Siddiqui,Alam Singh,Ghaus Beg
Counsel for Respondent :- C.S.C.,Mahesh Chandra,Ratnesh Chandra
Hon'ble Irshad Ali,J.
1. Heard Shri Ghaus Beg, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 and 5 and Shri Ratnesh Chandra, learned counsel for the respondent nos.2 to 4.
2. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Mandamus commanding the opposite parties concerned to grant and pay the monthly pension amount to the petitioner from 1.8.2001 like retired government employees as the retiremental benefits with further to issue a writ in the nature of Mandamus commanding the opposite parties to commute the amount of pension under the rules after granting the pension if the petitioner desires for the same.
3. Facts of the case are that in year 1965, the petitioner was appointed in clerical cadre in erstwhile U.P. Government Roadways. U.P. Transport Corporation was constituted on 01.06.1972. On 05.7.1972 UP State Government ordered to treat the employees on deputation in UPSRTC who were working in the roadways Organization since before formation of corporation. UPSRTC framed its regulation for the employees other than the officers in year 1981.
On 30.5.2000, the petitioner was promoted from the post of Senior Clerk to the post of Station Incharge by Pradhan Prabandhak Central Zone UPSRTC, Lucknow. On 20.6.1994, direction was given by the Headquarters of UPSRTC Lucknow to the Regional Manager, Lucknow with regard to grant of pension on the basis of First Appointment as Junior Clerk in the Administrative Office of the then General Manager, Lucknow. The petitioner was retired from service and was relieved on 31.07.2001.
On 27.9.2001, the petitioner submitted his representation to the Managing Director UPSRTC Lucknow for granting him monthly pension from 1.8.2001, but the authorities concerned did not give any response to petitioner with regards to his representation for pension.
4. Learned counsel for the petitioner submitted that petitioner is aggrieved by the inaction of opposite parties in not granting and paying the amount of his monthly pension to him upon his retirement from service with effect from 01.08.2001 despite his representation with concerned parties. He next submits that the petitioner while working on post of Station Incharge ( Class III Service) in Kaiserbag Depot, UPSRTC, Lucknow Region was given notice for his retirement from service on attaining the age of superannuation on 31.07.2001 by Pradhan Prabnadhak, Central Zone, Lucknow. He next submitted that just after formation of the Corporation, the State Government of Uttar Pradesh ordered vide order dated 05.07.1972 to treat the employees on deputation in UPSRTC who were working since before its formation in the department.
5. Learned counsel for the petitioner next submits that the deputation period was unlimited for employees in UP state Road Transport Corporation by the aforesaid Government Order dated 5.7.1972. In this way, the employee remained in UPSRTC as government employee not as Corporation employee. He next submitted that Government Order dated 05.07.1972 has not been superseded by any of Government Orders.
6. Learned counsel for the petitioner next submitted that in exercise of its power, UPSRTC framed Service Regulations, 1981 for employees other than the officers in Section 39(ii) of Regulation's UPSRTC wherein it has been written that a person who was the employee of State Government in erstwhile UP Government Roadways and he has opted for the service of the Corporation shall be entitled to pension and other retiremental benefit in terms of Government Order dated 5.7.1972. For the ready reference, relevant portion of the Government Order dated 5.7.1972 is extracted hereinbelow:
"Section 4 of The Uttar Pradesh State Road transport Corporation Employeees (other than officers) Service Regulations, 1981 -
4. Option by the employees of the erstwhile Government Roadways Department and other employees-
1.........
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. "
7. Learned counsel for the petitioner next submitted that so far as the payment of E.P.F. pension is concerned, petitioner is willing to adjust the EPF amount at the time of settlement of final pension as has been observed in the case of Mirza Athar Beg. He also submitted that the UPSRTC in the case of Chaman Lal Sharma v state of UP and others 2015 (33) LCD 2930 admitted that all the posts in erstwhile UP Government Roadways were pensionable
8. In support of his submissions, learned counsel for the petitioner relied upon the judgment rendered in the case S.P. Dubey v. Mdhya Pradesh State Road Transport Corporation and another reported in 1991 Supp (1) Supreme Court Cases 426.
9. Per contra, learned counsel appearing on behalf of opposite party nos.1 and 5 submitted that pension papers have not been received in the office from the level of opposite parties nos. 3 and 4 and their role starts onward after receiving the pension papers.
10. Learned counsel for opposite party nos. 2 to 4 has submitted that petitioner was retired from post of Junior Station Incharge on 31.07.2001 which is not pensionable post. He next submitted that the petitioner was member of the Employees Provident Fund and the amount of the Employees Provident Fund was paid to him. He next submitted that the amount of gratuity Rs. 1,61,033.65 and leave encahsment Rs.30,875.30 was paid on 5.8.2003. He next submitted that the services of petitioner were merged into the Corporation after enforcement of Absorption Rules, 1982 and said rules was declared valid by this Hon'ble Court. The employees of the Government Roadways Department who were later on promoted to pensionable post prior to 27.8.1982 ( the date of amalgamation) are entitled for pension, but those employee who were promoted after 27.8.1982 are not entitled for pension.
11. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
12. In the case of S.P. Dubey (supra) relied upon by learned counsel for the petitioner, this Hon'ble Supreme Court has observed as under:
10. It was then urged that on the transfer of appellant's services to the Corporation he was governed by the Regulations framed by the Corporation under the Act and Regulation 59 provided 58 years as the age of superannuation. We do not agree with the contention. The State Government issued directions under Section 34 of the Act which we have reproduced above. The said directions are binding on the Corporation.
This Court in General Manager, Mysore State Road Transport Corporation v. Devraj Urs [(1976) 2 SCC 862 : 1976 SCC (L&S) 345] interpreting Section 34 of the Act held as under: (SCC Headnote)
"Directions given by the State Government are binding on the corporation and it cannot depart from any general instructions issued under sub-section (1) of Section 34 except with the previous permission of the State Government. Such instructions have the force of law .... Therefore breach of the directions given by State Government in the matter of disciplinary action against the respondents was a breach of the statutory duty and made the action of the corporation amenable to the jurisdiction of the High Court under Article 226 of the Constitution."
11. The State Government and also the Corporation had given assurance to the appellant and other employees who were transferred to the Corporation that their conditions of service would not be adversely affected. The said assurance was incorporated in the directions issued under the Act. The Corporation cannot frame regulations contrary to the directions issued by the State Government under Section 34 of the Act. The age of superannuation which the appellant was enjoying under the State Government could not be altered to his disadvantage by the Corporation. We are, therefore, of the view that Regulation 59 framed by the Corporation was not applicable to the appellant. He was entitled to continue in service up to the age of 60 years.
13. Perusal of the above-extracted judgment reflects that the direction issued by the State Government is binding upon the Corporation and it cannot depart from any general instructions issued under sub-section (1) of Section 34 except with the previous permission of the State. Such instructions have the force of law. Therefore, breach of the directions given by the State Government in the matter of disciplinary action against the respondents was a breach of statutory duty and made the action of the Corporation amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India.
14. From bare perusal of the material on record, it is evident that vide Government Order dated 5.7.1972, the State Government ordered to treat the employees on deputation in UPSRTC who were working since before its formation in the department. The deputation period of the petitioner was unlimited for employees in U.P. State Road Transport Corporation by the said Government Order. In the Government Order dated 5.7.1972, it has been clearly mentioned that a person who was the employee of State Government in erstwhile U.P. Government Roadways and he has opted for the service of the Corporation shall be entitled to pension and other retirement benefits in terms of the aforesaid government order.
15. In view of the law laid down in the Government Order dated 5.7.1972 which has not been superseded by any of the Government Order, as also the fact that the petitioner's case is squarely covered under the said Government Order dated 5.7.1972, this Court is of the opinion that the petitioner is entitled for pension and other benefits.
16. Accordingly, this writ petition is disposed of with the direction to the respondents to fix the pension from 1.8.2001 after adjustment of the amount of EPF and pay him regular salary month by month along with all consequential benefits.
Order Date :- 6/12/2022
GK Sinha [Irshad Ali, J.]
