U.P. ROADWAYS RETIRED OFFICIALS AND OFFICERS ASSOCIATIONversusSTATE OF U.P. & ANR.

                 [2024] 7 S.C.R. 1368 : 2024 INSC 555

  U.P. Roadways Retired Officials and Officers Association
                             v.
                   State of U.P. & Anr.
                       (Civil Appeal No. 894 of 2020)
                                 26 July 2024
           [Hrishikesh Roy and Prashant Kumar Mishra,* JJ.]

                           Issue for Consideration
       Whether the appellants who were the former employees of
       Uttar Pradesh Roadways, a temporary department of the State
       Government, held any pensionable post before or after their
       absorption in the U.P. State Roadways Transport Corporation;
       whether the members of the Roadways Karmchari Sanyukta
       Parishad (RKSP) who were promoted after the cut-off date of
       27.08.1982 were entitled to pension.

                                  Headnotes†
       Road Transport Corporation Act, 1950 – U.P. Civil Service
       Regulations – Article 350 – Roadways (Abolition of
       Post and Absorption of Employees) Rules, 1982 – Road
       Transport Corporation Employees (other than officers)
       Service Regulations, 1981 – Regulations 4, 39 – U.P.
       State Road Transport Corporation Employees (other than
       Officers) Service Regulations, 1981 – Pension – When not
       entitled to – Appellants, if held pensionable posts and thus,
       entitled for receiving pension:
       Held: No – Appellants are not entitled to pension as per GO dated
       28.10.1960 as they were neither holding permanent posts in the
       Roadways nor holding any pensionable posts – Appellants were
       not covered under Article 350 of the Regulations as amended to
       hold the pensionable posts inasmuch as despite amendment in
       the first part of Article 350 of the Regulations, Note 3 thereof did
       not suffer amendment which provides that service in non-gazetted
       posts in Government Technical and Industrial Institutions in Uttar
       Pradesh does not qualify in the case of persons appointed to
       such posts on or after 15.11.1938 – Roadways is a Technical and
       Industrial Institution, thus, the appellants are covered under Note
       3 of Article 350 and hence, not entitled for pension – Pension is

* Author
[2024] 7 S.C.R.                                                            1369

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

     a right and not a bounty – However, it can be claimed only when
     permissible under the relevant rules/scheme – If an employee is
     covered under the Provident Fund Scheme and is not holding
     a pensionable post, he cannot claim pension nor can writ court
     issue mandamus directing the employer to provide pension to
     an employee not covered under the rules – Appellants having
     received retiral benefits including the benefit under the Employees
     Provident Fund Scheme cannot claim pension – A party to the
     litigation cannot be permitted to approbate and reprobate – Reliance
     on the judgments of the High Court in Mirza Athar Beg, S.M. Fazil
     and Shri Narain Pandey misplaced – Only State Government
     employees absorbed in the Corporation shall be entitled to
     pension – Employees of Roadways who were not holding any
     pensionable post prior to their deputation or absorption in the
     Corporation are not entitled to pension, as their service conditions
     in the erstwhile Roadways did not provide that they are entitled to
     pension – Members of the RKSP promoted after the cut-off date
     of 27.08.1982 are not entitled to pension. [Paras 29, 35, 40, 49]

                              Case Law Cited
     U.P.S.R.T.C. v. Mirza Athar Beg, 2011 (2) ALJ 327; The Managing
     Director, U.P.S.R.T.C v. S.M. Fazil & 03 others [W.P. No. 5440 of
     2000 (S/B)]; U.P.S.R.T.C & Ors. v. Shri Narain Pandey [2009 :
     AHC-LKO : 3978-DB] – distinguished.
     Union of India & Ors. v. M.K. Sarkar [2009] 16 SCR 249 : (2010) 2
     SCC 59; Bachai Lal v. U. P. S. R. T. C., Allahabad and others (1991)
     2 UPLBEC1095; General Manager, Telecom v. A. Srinivasa Rao &
     Ors. [1997] Supp. 5 SCR 212 : (1997) 8 SCC 767; National Council
     of Educational Research and Training v. Shyam Babu Maheshwari
     & Ors. [2011] 7 SCR 548 : (2011) 6 SCC 412; Krishena Kumar
     v. Union of India [1990] 3 SCR 352 : (1990) 4 SCC 207; Union
     of India v. Kailas (1998) 9 SCC 721; V.K. Ramamurthy v. Union
     of India & Anr. [1996] Supp. 4 SCR 583 : (1996) 10 SCC 73; All
     India Reserve Bank Retired Officers Association & Ors. v. Union
     of India & Anr. [1991] Supp. 3 SCR 256 : (1992) Supp 1 SCC
     664; The Committee for Protection of Rights of ONGC Employees
     & Ors. v. Oil and Natural Gas Commission, through its Chairman
     & Anr. [1990] 2 SCR 156 : (1990) 2 SCC 472; Prabhu Narain
     v. State of U.P. (2004) 13 SCC 662; Rajasthan Road Transport
     Corporation & Anr. v. Mohini Devi [2013] 3 SCR 464 : (2013) 11
     SCC 603 – referred to.
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                              List of Acts
    Road Transport Corporation Act, 1950; U.P. Civil Service
    Regulations; Roadways (Abolition of Post and Absorption of
    Employees) Rules, 1982; Road Transport Corporation Employees
    (other than officers) Service Regulations, 1981; U.P. State Road
    Transport Corporation Employees (other than Officers) Service
    Regulations, 1981.

                           List of Keywords
    Service Law; Pension; Uttar Pradesh State Road Transport
    Corporation (UPSRTC); State Roadways Transport Corporation;
    Uttar Pradesh Roadways; Non-gazetted posts; Deputation;
    Absorption; Temporary department; Temporary employees
    Permanent posts; Pensionable post; Provident Fund Scheme;
    Employees Provident Fund Scheme; Contributory Provident Fund
    Scheme; Approbate; Reprobate; Government orders; Non-gazetted
    posts; Government Technical and Industrial Institutions; Roadways;
    Cut-off date; Promotion/promoted after cut-off date; Retirement;
    Retirement benefits; Retiral benefits; Permanent employees.

                          Case Arising From
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 894 of 2020
    From the Judgment and Order dated 24.11.2016 of the High Court of
    Judicature at Allahabad in SA No. 245 of 2003
    With
    Civil Appeal Nos. 896, 898, 957, 959-965, 897, 895, 899-901, 910,
    902, 912, 909, 913, 958, 915, 966, 914, 832, 967, 905, 907, 903,
    911, 904, 906 and 908 of 2020 and Civil Appeal No. 8044 of 2024.
                       Appearances for Parties
    Rakesh Khanna, U.K. Uniyal, Ms. Garima Prashad, Sr. Adv., S.N.
    Pandey, Dr. Rashmi Khanna, Aditya Pushkar Khanna, Ms. Ramya
    Khanna, Dr. Vikash Pahal, Ms. Somya Pandey, Ms. Deep Aishwarya,
    Chander Shekhar Ashri, Dinesh Kumar Garg, Abhishek Garg,
    Dhananjay Garg, Ishaan Tiwari, Chanakya Gupta, R.P. Bansal, B.
    K. Pal, Salaj Kumar Rai, Vivek Gupta, Mrinmay Bhattmewara, Mrs.
    Samprati Bhattmewara, Ankit Verma, Shalabh Kaushik, Amit Singh,
    Rajvir Singh Bhati, Ankur Yadav, Pramod Kumar Singh, Mahendra
[2024] 7 S.C.R.                                                      1371

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

     Singh, Vijay Pal, Ms. Kajal Kumari, Gajendra Kumar, Ajay Kumar
     Talesara, Anurag Dubey, Ms. Anu Sawhney, Meenesh Dubey, Ms.
     Maitri Goal, Ms. Geetanjali Setia, Ms. Manisha Yadav, Bhupendra
     Kumar Bharadwaj, S. R. Setia, Bhaskar Y. Kulkarni, Kumar Mihir,
     Nishit Agrawal, Shadab Khan, Ms. Upasna Agrawal, Ms. Kanishka
     Mittal, Ms. Vanya Agrawal, Ms. Nidhi Singh, Aditya Pushkal Khanna,
     Dr. Vikas Pahal, Ms. Somya Pendey, Manan Verma, Ankit Shah, Mrs.
     D. Bharathi Reddy, Naveen Kumar Tripathi, Sanjay Kumar Pandey,
     Ms. Saroj Tripathi, Dhruv Surana, Arya Hardik, Rohit Amit Sthalekar,
     Pradeep Misra, Daleep Dhyani, Manoj Kumar Sharma, Suraj Singh,
     Kamlendra Mishra, Advs. for the appearing parties.
                Judgment / Order of the Supreme Court

                               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.
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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 Corporation.1
       Government orders regarding service under U.P. Roadways and
       thereafter U.P. State Roadways Transport Corporation
7.     In 1947, Uttar Pradesh Roadways2 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 service.
       7.1 On 16.09.1960, a Government Order3 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
       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.




1    ‘Corporation’
2    ‘the Roadways’
3    ‘GO’
4    ‘Act, 1950’
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        U.P. Roadways Retired Officials and Officers Association v.
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      7.5. On 20.04.1997, Article 350 of U.P. Civil Service Regulations5
           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.    Admittedly, the appellants employees have already received their
      entire post-retiral benefits immediately after their retirement decades
      ago without any protest or claim that they hold a pensionable post. The
      appellants started claiming pension after the Division Bench judgment
      of the High Court in U.P.S.R.T.C. vs. Mirza Athar Beg 6 upholding
      the judgment of the learned Single Judge dated 25.08.2010 passed
      in W.P. No. 7728 (S/S) of 1996. The appellants’ claim is also based
      on other two judgments of the Allahabad High Court in the matter of
      The Managing Director, U.P.S.R.T.C vs. S.M. Fazil & 03 others7
      (W.P. No. 5440 of 2000 (S/B) and in the matter of U.P.S.R.T.C &




5    ‘Regulations’
6    2011 (2) ALJ 327
7    W.P. No. 5440 of 2000 (S/B)
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     Ors. Vs. Shri Narain Pandey 8 in Special Appeal No. 40 of 2007. A
     Special Leave Petition (SLP (c) No. 7709/2011) against the judgment
     in the matter of Mirza Athar Beg was dismissed by a non-speaking
     order dated 10.07.2013.
10. The appellants submitted representation basing their claim in the
    line of Mirza Athar Beg (supra). However, the representation was
    rejected subsequent to which the subject writ petition was filed.
     Appellants’ submissions
11. Learned senior counsel appearing for the appellants would submit
    that the appellants are entitled for pension in terms of the Government
    Order dated 16.09.1960 as they were appointed prior to establishment
    of the Corporation in the year 1972. According to them, once the
    appellants have been made permanent in the Corporation vide
    Government Orders dated 16.09.1960 and 28.10.1960 they should
    be treated to be holding a pensionable post. It was also their case
    that Article 350 of U.P. Civil Service Regulations was amended by a
    Notification dated 20.04.1977 whereby the word ‘Post’ was replaced by
    the word ‘Establishment’ and as such employees of all establishments
    under the State Government are deemed to be working on a
    pensionable post unless the establishment is excluded. Therefore,
    on a conjoint reading of Government Order dated 28.10.1960 with
    the amendment made in the year 1977 in Article 350, the appellants
    are entitled to pension.
12. The appellants also relied on the judgment in the matter of Mirza
    Athar Beg (supra), S.M. Fazil (supra) & Narain Pandey (supra).
    The main focus of the appellants’ claim is on the amendment to the
    Article 350 of the Regulations, after which, according to the appellants,
    Government has not issued any order excluding the establishment
    in which the appellants were employed and holding a pensionable
    post. It is also argued that after the establishment of the Corporation
    under Section 3 of the Act, 1950, no rule or regulation has been
    framed in exercise of power under Section 44 denying pension to
    the appellants. Therefore, the general provisions under Article 350 of
    the Regulations would be applicable and the appellants are entitled
    for pension.


8   2009 : AHC-LKO : 3978-DB
[2024] 7 S.C.R.                                                      1375

        U.P. Roadways Retired Officials and Officers Association v.
                           State of U.P. & Anr.

13. Apropos the objection that the writ petition was filed belatedly,
    after decades from the date of retirement, it is submitted that the
    appellants have recurring cause of action and delay in filing the writ
    petition is not fatal.
14. Per contra, Ms Garima Prasad, learned senior counsel appearing
    for the Corporation vehemently argued that all the appellants have
    already opted for and availed the post-retiral benefits under the
    Employees Provident Fund Scheme, therefore, their present claim
    preferred after huge delay ranging between 8 to 32 years has rightly
    been dismissed by the High Court. Reference is made to Union of
    India & Ors. Vs. M.K. Sarkar .9
15. Ms. Prasad would distinguish the fact situation in the matters of
    Mirza Athar Beg (supra), S.M. Fazil (supra) & Narain Pandey
    (supra) by pointing out that in these cases the High Court has not
    considered the effect of Note 3 of Article 350 of the Regulations which
    has neither been amended nor deleted even by the amendment
    dated 20.04.1977. It is further submitted that the Roadways was
    an establishment having workshops both major and smaller, thus,
    included in the category of technical institution as has been held
    by the Allahabad High Court in the judgment rendered in Bachai
    Lal v. U. P. S. R. T. C., Allahabad and others.10 The Roadways
    is also an industry according to the test prescribed in the matter
    of General Manager, Telecom vs. A. Srinivasa Rao & Ors. 11
    Therefore, the non-gazetted post in the Roadways did not qualify
    for pension in view of Note 3 of Article 350 of the Regulations.
    It is then argued that the service conditions of employees of the
    Roadways as existing prior to their absorption in the Corporation
    were never protected by GO dated 05.07.1972 under which the
    appellants are not entitled for pension as they have never worked on
    any pensionable post as indicated in para 1 of GO dated 28.10.1960
    till their absorption in the Corporation w.e.f 28.04.1982. Further
    distinguishing the above three cases on which the appellants have
    placed reliance, it is argued that the appellants in the three above
    cited cases were working on pensionable post even as per GO


9    [2009] 16 SCR 249 : (2010) 2 SCC 59
10   (1991) 2 UPLBEC1095
11   [1997] Supp. 5 SCR 212 : (1997) 8 SCC 767
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     dated 28.10.1960 whereas none of the appellants in the present
     batch of appeals have worked on any pensionable post as per
     the said GO, therefore, the appellants derive no benefit out of the
     above three cited cases.
16. In respect of the employees appointed after creation of the Corporation
    w.e.f. 01.06.1972 it is argued that such appellants are not entitled to
    the benefit of pension on the basis of GO dated 05.07.1972 or the
    provisions of the Regulations relating to employees of the erstwhile
    Roadways sent on deputation to the Corporation and thereafter
    absorbed therein.
17. In respect of the appellants who were appointed subsequent to
    01.06.1972 i.e. after creation of the Corporation, the State Government
    subsequently issued GO dated 20.10.2004 according approval for
    payment of pension to those employees who had been appointed
    on pensionable post in the Corporation till 18.06.1981. Therefore,
    such appellants who were never appointed/worked on pensionable
    post as per GO dated 28.10.1960 till 18.06.1981, are not entitled
    to pension.
18. Learned Single Judge of the High Court dismissed the writ petition
    on the ground of delay and laches; waiver and acquiescence but
    at the same time proceeded to decide the petitions on merits and
    after threadbare discussion of the applicable GOs and Regulations
    rejected the claim on merits. Learned Single Judge distinguished the
    case of the present batch of the appellants from that of the Mirza
    Athar Beg (supra), S.M. Fazil (supra) & Narain Pandey (supra).
19. On appeal before the Division Bench, the claim of the appellants
    was once again dismissed and the order passed by the learned
    Single Judge has been upheld on all material issues including the
    appellants’ claim on the basis of parity vis-à-vis the earlier cases in
    the matter of Mirza Athar Beg (supra), S.M. Fazil (supra) & Narain
    Pandey (supra).
     ANALYSIS
20. The Roadways was created as a temporary department in 1947.
    A Government Order was issued on 16.09.1960 providing service
    conditions of the Roadways employees. The said GO is reproduced
    hereunder for ready reference:
[2024] 7 S.C.R.                                                            1377

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

           “G.O. No. 3014 D/XXX- 135/59 dated Sept. 16, 1960
           Subject: Terms and conditions of service of temporary
           employees in the U.P. Roadways - Revisions of.
           I am directed to say that the question of revising the terms
           and conditions of service of the Roadways employee,
           which is a nationalized commercial undertaking and has to
           work in conditions different from those prevailing in regular
           government offices, has been under the consideration of
           Government for some time past.
           The passenger and goods services have to run
           irrespective of the fact whether it is a Sunday or a festival.
           The schedule of passenger services run by the State
           Undertaking cannot be altered off an on. In order to keep
           the Roadways services going the maintenance and repairs
           of vehicles has to be attend to even at odd hours at the
           workshops. At present the conditions of service of the
           employees of the U.P. Government Roadways and the
           Central Workshop, Kanpur are governed by the various
           rules and standing orders of Government applicable to
           other temporary government servants under the rule
           making powers of the Governor. In view of the special
           service conditions of employees of the Roadways it seems
           necessary to evolve a new set of service conditions for
           its employees which may be compatible with the nature
           of work and functions of the organization. Accordingly, in
           super session of all previous orders on the subject, the
           Governor has been pleased to pass the following orders
           prescribed revised terms and conditions of service of
           temporary employees of the U.P. Roadways including
           those detailed in para 2 below. The revised terms and
           conditions of service shall be applicable to all future
           entrants in the Roadways organization and shall be
           enforced in the manner mentioned hereinafter in the
           case of temporary employee including those on the work
           charge strength and paid on monthly basis.
           (1) All temporary employees except those referred to in para
           2 shall get one day’s rest in every period of seven days in
           accordance with the rules to be framed by Government.
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        In case the employees is deprived of any of the days or
        rest, he shall be allowed within the same or following
        month compensation holidays of equal number of the
        days of rest so lost.
        (2) They shall be entitled to get one days paid holidays
        for every 20 days of work performed by them during the
        previous calender year, subject to the condition that the
        employee has worked for a period of 240 days or more
        during the previous calender year. In case the employees
        is not able to avail of full or part of the leave admissible to
        him during the calender year, it will be carried over to the
        following year, subject to a maximum of 30 days.
        (3) They shall get five days festival holidays in a calender
        year as prescribed by Government and subject to the rules
        to be framed for the purpose.
        (4) They shall be paid extra wages at the rate of twice of
        ordinary rate of wages in respect of work performed by
        them beyond the prescribed hours of work.
        (5) Their services are liable to termination on one month’s
        notice on either side, or one month’s pay in lieu thereof.
        (6) In other respect the conditions of service will remain
        the same as at present.
        The revised terms and conditions of services mentioned
        in para 1 above shall not apply to the following category
        of employees:-
        (a) All employees working in the offices establishment of
        the Asstt. General Manager, General Manager, Service
        Manager, Chief Mechanical Engineer, Roadways Central
        Workshop, Kanpur and the Head Quarter 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 Foreman and above
        on the engineer side;
        The above three categories of Roadways staff will continue
        to be treated as regular government servants and will be
[2024] 7 S.C.R.                                                           1379

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

           entitled to the benefits admissible to any other government
           servant of the same category.
           3. The Roadways and Central Workshop employees to
           whom the revised service rules are being made applicable
           shall be entitled to the provident fund benefits according
           to the provisions of the Employees Provident Fund Act.
           For this necessary orders have already been issued
           separately in G.O. No. 1488-D/XXX 2198/59 dated July,
           29, 1960. Immediate step may please be taken for the
           implementation of the orders issued in the above G.O. The
           employees governed by the new terms and conditions of
           service will continue to get facilities for medical treatment
           so far enjoyed by them. All future entrants shall also be
           entitled to facilities for medical treatment admissible to
           Government servants. The canteen and rest house facilities
           as may be prescribed by government shall also be made
           available to them in course of time.
           4. These order shall come into force w.e.f. October 1, 1960
           and shall apply to all future entrants in the service of the
           Roadways organization and also the existing temporary
           employees who accept to continue to work on the revised
           terms and conditions of service. The status of Roadways
           employees already made permanent remains unaffected.
           All the 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 them. Those who accept the new terms and
           conditions of service will be required to fill in a separate
           acceptance for which will be kept with their service records.
           If, however, any of the employees do not accept the new
           terms their services are to be terminated in accordance
           with the terms of their employment. I am to suggest that
           the implications of the revised orders may be explained
           to all concerned by the General Managers and Asstt.
           General Mangers and Chief Mechanical Engineer and
           that necessary action may please be intimated forthwith
           in order to implement the above orders.”
                                                 (Emphasis supplied)
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21. Thereafter another GO was issued on 28.10.1960 providing for
    pension to the permanent employees of the Roadways. This GO
    was issued under Note 3 of Article 350 of the Regulations. We shall
    first reproduce Article 350 of the Regulations and thereafter GO
    dated 28.10.1960:
          “350. All establishments whether temporary or permanent,
          shall be deemed to be pensionable establishments;
          Provided that it is open to the State Government to rule
          that the service in any establishment does not qualify for
          pension.
          1. Service in Dak Bungalow and District Garden
          Establishments does not qualify.
          2. The service of a Patwari, whether appointed before or
          after the abolition of the Patwari or Village Officers’ Cases
          and Funds, does not qualify in any case in which it did
          not qualify prior to that abolition.
          3. Service in non-gazetted posts in Government Technical
          and Industrial institutions in the Uttar Pradesh does not
          qualify in the case of persons appointed to such posts on
          or after November 15,1938.”
          Exceptions-- This rule does not apply to the posts declared
          pensionable in Shram (Kha) Vibhag G.O.No.810 (E)
          XXXVI-B-- 106/56, dated May 29, 1963 and Udyog (Gha)
          Vibhag G.O.No.375-ED/XVII-D-AQ-19-ED,60, dated JUNE
          5, 1963.”
          “GO No. 3567-P/XXX-2198/99 dated 28.10.1960 - In
          continuation of G.O. No. 30140/XXX-135-V/1959 dated
          16.9.1960, I am directed to say that the question or
          declaration the permanent posts in the Roadways
          Organization (including the Roadways Central Workshop
          Kanpur) as pensionable has been under 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 10
          Provident Fund cum Pension Rules:-
[2024] 7 S.C.R.                                                          1381

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

           (a) The employees working in the office establishment of
           the Asstt. General Manager, General Managers, Service
           Managers, 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 Foreman and above
           on the Engineering side.
           2. The Governor has been further pleased to order,
           under note 3 Below Article 350 of the Civil Service
           Regulations that the rest of the permanent non-gazetted
           Employees both in the traffic and engineering sections of
           the organization, would be treated as 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 charges employees of the Roadways
           organization necessary orders have already been conveyed
           to you in G.O. No. 14880/XXX-219/59 dated 29.7.1960.
                                                             Sd/-
                                                             Jt. Secy.
           Copy forwarded under U.P. Parivahan Ayukta (Lekha)
           U.P. Lucknow endorsement NO. C-935FA/594FA/57 dated
           1.11.1960 to all the General Managers, Asstt. General
           Managers, Service Managers, Accounts Officers and all
           other concerned for information and necessary action.”
                                               (Emphasis supplied)
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22. A bare reading of Article 350 would manifest that service in non-
    gazetted posts in Government Technical and Industrial Institutions
    in the State of Uttar Pradesh does not qualify for pension and it will
    be covered under Contributory Provident Fund Scheme.
23. The State Government felt it necessary to evolve a new set of
    service conditions considering the nature of duties and functions of
    the Roadways. In the above quoted GO dated 28.10.1960, the State
    Government considered and declared some permanent gazetted
    and non-gazetted posts of the Roadways to be entitled for pension.
    Clauses (2) & (3) of GO dated 28.10.1960 clearly provided that only
    those covered in clause (1) of the GO would be entitled to pension
    whereas the rest of the permanent non-gazetted employees both
    in the traffic and engineering sections of the Roadways would be
    treated as non-pensionable posts and will be eligible for provident
    fund benefits in accordance with the provisions of the Employees
    Provident Fund Act. This provision made a specific reference to Note
    3 of Article 350 of the Regulations.
24. It was also provided that temporary employment of the categories
    mentioned in para 1 will be entitled to provident fund. However,
    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. In yet another circular dated
    21.04.1961, it was again clarified that the posts mentioned in clause
    (1) of GO dated 28.10.1960 should be treated as pensionable and
    those temporary employees falling in the said clause shall also
    be treated as pensionable from the date they were converted into
    permanent post.
25. The Corporation was constituted under Section 3 of the Act, 1950
    w.e.f. 01.06.1972. By GO dated 07.06.1972 all the employees of
    the erstwhile Roadways holding permanent posts as per GO dated
    28.10.1960 were declared entitled for pension except the following:
     (i)    Those working on daily wages;
     (ii)   Those appointed on ad-hoc basis;
     (iii) Those who had not completed minimum service period
           prescribed for the post;
     (iv) Those holding posts which were not declared pensionable;
[2024] 7 S.C.R.                                                           1383

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

     (v)   Those who had been removed from service after departmental
           inquiry and those had been found guilty of criminal charges.
     Subsequent to GO dated 05.07.1972, officers/employees of the
     Roadways and the officers and staff of the Roadways working in
     the Office of the Transport Commissioner, whether permanent or
     temporary were considered to be on deputation under the existing
     terms and conditions of their services. The permanent staff of the
     Roadways were considered on deputation up till the date of their
     absorption permanently in the Corporation. It was also mentioned in
     the GO dated 05.07.1972 that the Government assures the Roadways
     employees that whenever service conditions of the employees of the
     Corporation shall be framed, the same shall not be inferior to the
     service conditions applicable to them under the Roadways at the time
     of absorption. The GO dated 05.07.1972 is reproduced hereunder:
           “No. 3414/TEES-2-170 N/72
           Sender
                  Shri Girija Prasad Pandey
                  Commissioner & Secretary
                  Government of Uttar Pradesh
           To
                  Chief Manager
                  Uttar Pradesh State Road Transport Corporation
                  Lucknow
                                      Dated: Lucknow July 5, 1972
           Transport Section-2
           Sub: Constitution of Uttar Pradesh State Road Transport
           Corporation and merger of the officers/employees of the
           Transport Organisation.
           Sir,
           After merger of the officers/employees working under
           Uttar Pradesh Roadways with State Road Transport
           Corporation, in connection with merger of services under
           the Corporation, I have been directed to issue the following,
           amending the Government order no. 3000/30-2-1 70/72
           dated June 7, 1972:
1384                                                     [2024] 7 S.C.R.

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        (1) According to the provision of para (1) (A) of the above
        Government order, all those permanent or temporary
        officers/employees who before the constitution of State
        Road Transport Corporation were in the services of State
        Roadways, their services would be considered in the
        Corporation on deputation. For this deputation no period
        is being fixed now.
        (2) The State Road Transport Corporation has under
        section 45 of the Transport Corporation Act have not made
        rules about the service conditions till now in connection
        with the officers and employees under it. Therefore,
        leaving the above discussed Annexure 1 (1) A of the above
        Government order dated June 7, 1972, the remaining
        annexures would be considered dismissed. But whenever
        the Corporation would make rules regarding service
        conditions, then in them this assurance of the Government
        would be included that the service condition of the officers/
        employees under the Corporation in any condition would
        not be contemptuous than those conditions which were
        available to them under the Uttar Pradesh State Roadways
        and their government service period, their seniority under
        the corporation, promotion, fixation of pay, right concerning
        leave and financial benefits would be considered in that
        way only as they would have remained in their being in
        government service.
                                                    Yours faithfully
                                           (Girija Prasad Pandey)
                                        Commissioner & Secretary
        No. 2114 (1)/Tees-2-170N/72
        Copy submitted to Accountant General, Government of
        Uttar Pradesh, Allahabad, for information and necessary
        action.
                                                     By order,
                                     (Bhagwan Swaroop Saxena)
                                                 Dy. Secretary
        No. 3414(2)/Tees-2-170N/72
        Copy submitted to the following for information: -
[2024] 7 S.C.R.                                                              1385

        U.P. Roadways Retired Officials and Officers Association v.
                           State of U.P. & Anr.

              (1)     Transport Commissioner, Uttar Pradesh, Lucknow.
              (2)     Finance (Expenditure-7) Section
                                                             By order,
                                             (Bhagwan Swaroop Saxena)
                                                        Dy. Secretary”
26. In exercise of power under Section 45(2)(c) of the Act, 1950, the
    State Government framed the Road Transport Corporation Employees
    (other than officers) Service Regulations, 1981.12 Regulations 4 and
    39 of the Regulations, 1981 being relevant are reproduced hereunder:
              “4. Option by the employees of the erstwhile Government
              Roadways Department and other employees. - (1) An
              employee of the erstwhile U.P. Government Roadways
              Department who was placed on deputation with the
              Corporation and who has or is deemed to have offered for
              absorption in the Service of the Corporation in accordance
              with Rule 4 of the Uttar Pradesh State Roadways
              Organisation (Abolition of Posts and Absorptions of
              Employee) Rules, 1982 ( hereinafter referred to as the
              said, Rules), shall with effect from August 28, 1982, and so
              absorbed, and shall, accordingly cease to be an employee
              of the State Government with effect from the said date.
              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.
                      (i) Existing employees, who are not covered by
                      sub-regulation (1) or those who are not exempted
                      under Regulation 2, shall within one month of the
                      commencement of these regulations, inform the
                      appointing authority or such authority as the General
                      Manager may in this behalf appoint whether or not
                      they want to be governed by these regulations.
                      (ii) If they opt or fail to exercise their option for
                      being governed by these regulations, their terms


12   ‘Regulations, 1981’
1386                                                    [2024] 7 S.C.R.

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             and conditions of appointment, so far as they are
             inconsistent with these regulations, shall stand
             rescinded:
        Provided that, in respect of workmen where any of the
        provisions of these regulations is less favourable than
        the provisions of the U.P. Industrial Disputes Act, 1947,
        the Payment of Wages Act, 1936, the Minimum Wages
        Act, 1948, the Factories Act, 1948 or of any other Act
        applicable to them, the provisions of such Act shall apply.
             (iii) If such persons do not opt for being governed by
             these regulations, their services may be terminated
             in accordance with the terms of their appointment.”
             “39. 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 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-
             170-N-72, dated July 5, 1972.
             (iii) Such employees who have come in the service
             of the Corporation on pensionable posts on 1st
             June, 1972 or after that and now those posts have
             been declared non-pensionable under this Rule; the
             Corporation would contribute in the Provident Fund
             of such employees as desired under the provisions
             of Employees Provident Fund Scheme, 1952.
             (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;
[2024] 7 S.C.R.                                                           1387

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

                (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,
                1976;
                (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. Regulations 4 and 39 of the Regulations, 1981 as extracted above
    made it very clear that an employee of the Corporation shall not
    be entitled to pension, but he shall be entitled to the retiral benefits
    mentioned in sub-regulation (2) of Regulation 39. Only those
    employees of the State Government working in the Roadways who
    have opted for services of the Corporation shall be entitled to pension
    and other retirement benefits in terms of GO dated 05.07.1972.
    It is to be understood that there were temporary and permanent
    employees working in the Roadways and there were regular State
    Government employees who were also working in the Roadways.
    Under Regulation 39, quoted above, it is clearly demarcated that
    those State Government employees who have opted for service of
    the Corporation will be entitled for pension, otherwise an employee of
    the Corporation shall not be entitled to pension and these employees
    will be entitled to retirement benefits as mentioned in sub-Regulation
    (2) of Regulation 39. At this juncture, it would be relevant to mention
    that the pension entitlement of the Roadways employees (who are not
    State Government employees) are controlled by GO dated 28.10.1960
    which has already been dealt with in the preceding paragraphs.
28. By another GO dated 19.08.1993 it was again clarified that the
    employees/officers of the Roadways who before 28.07.1982 are
    working/promoted on pensionable post of the previous department,
    shall be entitled to pension on the terms set forth in this GO. Those
    employees who do not want to avail pensionary benefits shall submit
1388                                                         [2024] 7 S.C.R.

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     their written consent to this effect in order to avoid dispute in future.
     Once again, GO dated 03.02.1994 was issued to the effect that
     such employees who before the constitution of the Corporation and
     promulgation of merger rules, had been on the pensionable post in
     the State Government, would be considered on deputation service
     and will be considered entitled for pension.
29. In order to examine the appellants’ claim for pension it is necessary
    to dwell on the pre-requisites provided in the GO dated 28.10.1960.
    To be covered in the GO for receiving pension it is necessary
    for the appellants to plead and establish firstly, that they were
    holding permanent posts in the Roadways, and they fall in the
    three categories of employees referred to in para (1) of the GO. It
    is not the case of the appellants that they were made permanent
    by any express order issued by the Roadways management, nor
    they claim to be working in any of the three posts referred to in
    para (1) of the GO. Since para (2) of the GO clearly provides
    that the rest of the permanent non-gazetted employees both in
    the traffic and engineering sections of the organization, would be
    treated as non-pensionable and similarly, all temporary employees
    will also be non-pensionable, the appellants are not entitled to
    pension as per GO dated 28.10.1960. Secondly, the appellants
    are not covered under Article 350 as amended on 20.04.1997 of
    the Regulations to hold the pensionable posts inasmuch as despite
    amendment in the first part of Article 350 of the Regulations,
    Note 3 thereof has not suffered amendment which provides
    that service in non-gazetted posts in Government Technical and
    Industrial Institutions in Uttar Pradesh does not qualify in the
    case of persons appointed to such posts on or after 15.11.1938.
    Since the Roadways is considered to be Technical and Industrial
    Institution, the appellants are covered under Note 3 of Article 350,
    and they are not entitled for pension.
30. The High Court, under the impugned judgment, has observed that
    the appellants having received retiral benefits including the benefit
    under the Employees Provident Fund Scheme, cannot be permitted
    to turn round and contend that they should also be given pension.
    We have also considered this aspect of the matter and we approve
    the observations of the High Court on the principle that a party to
    the litigation cannot be permitted to approbate and reprobate. See
[2024] 7 S.C.R.                                                              1389

        U.P. Roadways Retired Officials and Officers Association v.
                           State of U.P. & Anr.

      National Council of Educational Research and Training vs.
      Shyam Babu Maheshwari & Ors.,13 Krishna Kumar vs. Union of
      India14 and Union of India vs. Kailas.15
31. Similarly, in the matter of V.K. Ramamurthy vs. Union of India
    & Anr.,16 this Court considered the claim for pension of those who
    opted for pension after a long gap of retirement and held in para 4
    that the contributory provident fund retirees form a different class
    from those who had opted for pension scheme and as such they
    are not entitled to claim as of right to switch over from Provident
    Fund Scheme to Pension Scheme. Similar is the proposition in the
    matter of All India Reserve Bank Retired Officers Association &
    Ors. Vs. Union of India & Anr.17
32. In somewhat similar situation concerning employees of Oil Natural
    Gas Commission which was earlier run as a department of the
    Government of India prior to the enactment of Oil and Natural Gas
    Commission Act, 1959, this Court in The Committee for Protection
    of Rights of ONGC Employees & Ors. Vs. Oil and Natural Gas
    Commission, through its Chairman & Anr.,18 held thus in para 13:
             “13. This indicates that the scheme of Contributory
             Provident Fund, by way of retiral benefit, envisaged by
             the Provident Fund Act, is in the nature of a substitute for
             old age pension because it was felt that in the prevailing
             conditions in India, the institution of a pension scheme could
             not be visualised in the near future. It was not the intention
             of Parliament that Provident Fund benefit envisaged by
             the said Act would be in addition to pensionary benefits.
             Section 12 of the Provident Fund Act seeks to protect
             the wages of an employee to whom the scheme framed
             under the said Act applies as well as the total quantum of
             certain specified benefits to which he is entitled under the
             terms of his employment. With that end in view, Section


13   [2011] 7 SCR 548 : (2011) 6 SCC 412
14   [1990] 3 SCR 352 : (1990) 4 SCC 207
15   (1998) 9 SCC 721
16   [1996] Supp. 4 SCR 583 : (1996) 10 SCC 73
17   [1991] Supp. 3 SCR 256 : (1992) Supp 1 SCC 664
18   [1990] 2 SCR 156 : (1990) 2 SCC 472
1390                                                           [2024] 7 S.C.R.

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             12 prohibits an employer from reducing, whether directly
             or indirectly, the wages of an employee to whom the
             Scheme applies or the total quantum of benefits in the
             nature of old age pension, gratuity, provident fund or life
             insurance to which the employee is entitled under the terms
             of his employment express or implied. The said section
             proceeds on the basis that if an employee is entitled to
             any benefit in the nature of old age pension under the
             terms of his employment the said benefit would not be
             denied to him on the application of the Scheme. It is not
             the case of the petitioners that on June 30, 1961, when
             the Provident Fund Scheme was made applicable to the
             Commission, the petitioners had become permanent and
             were entitled to pension. It cannot, therefore, be said
             that on the date of the application of the Provident Fund
             Scheme to the Commission, the petitioners were entitled
             to pension under the terms of their employment. They
             cannot, therefore, invoke the provisions of Section 12 of
             the Provident Fund Act.”
33. In the matter of Prabhu Narain vs. State of U.P.,19 (2004) 13 SCC
    662, this Court held that to receive pension the employees must
    establish that they are entitled to pension under a particular rule or
    scheme. The following has been held in para 5:
             “5. No doubt pension is not a bounty, it is a valuable right
             given to an employee, but, in the first place it must be
             shown that the employee is entitled to pension under a
             particular rule or the scheme, as the case may be.”
34. In yet another judgment rendered in Rajasthan Road Transport
    Corporation & Anr. Vs. Mohini Devi,20 it is held thus in para nos.
    7, 8 & 9:
             “7. The Division Bench has considered the Regulations
             but failed to notice that there is apparent error in the order
             passed by the learned Single Judge. Indisputably, the
             employees concerned retired from service in 1991 and 1992


19   (2004) 13 SCC 662
20   [2013] 3 SCR 464 : (2013) 11 SCC 603
[2024] 7 S.C.R.                                                           1391

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

           and after retirement they were paid CPF including the share
           of employer’s contribution. Hence, as per Regulation 3 of the
           Regulations, no right accrued to the appellants/employees
           to claim pensionary benefits without first depositing the
           amount and complying with the Regulations.
           8. The matter was examined by this Court in Pepsu RTC v.
           Mangal Singh [(2011) 11 SCC 702 : (2011) 2 SCC (L&S) 322]
           wherein it was held as under: (SCC p. 722, paras 51-52)
           “51. The common thread which runs through all these
           appeals canvassed before us is that the respondents
           have failed to comply with the terms and conditions of the
           Regulations, which govern the Pension Scheme. We have
           already considered the nature and effect of the Regulations,
           which are made under a statute. These statutory regulations
           require to be interpreted in the same manner which is
           adopted while interpreting any other statutory provisions.
           The Corporation as well as the respondents are obliged
           and bound to comply with its mandatory conditions and
           requirements. Any action or conduct deviating from these
           conditions shall render such action illegal and invalid.
           Moreover, the respondents have availed the retiral benefits
           arising out of CPF and gratuity without any protest.
           52. The respondents in all these appeals, before us, have
           made a claim for pensionary benefits under the Pension
           Scheme for the first time only after their retirement with
           an unreasonable delay of more than 8 years. It is not in
           dispute, in some appeals, that the respondents never
           opted for the Pension Scheme for their alleged want of
           knowledge for non-service of individual notices. In other
           appeals, although the respondents applied for the option
           of the Pension Scheme but indisputably never fulfilled the
           quintessential conditions envisaged by the Regulations
           which are statutory in nature.”
           9. We are, therefore, of the opinion that, in the facts and
           circumstances of the case and in view of the law laid down
           by this Court in the judgment referred to hereinabove, the
           impugned orders passed by the learned Single Judge
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          [Madugiri v. Rajasthan SRTC, WP (C) No. 5425 of 1993
          (Civil Writ 5425/1993), order dated 5-1-2006 (Raj)] and
          the Division Bench [Rajasthan SRTC v. Madugiri, Civil
          Special Appeal (Writ) No. 212 of 2006, decided on 11-10-
          2006 (Raj)] of the High Court cannot be sustained in law.”
35. The common thread in the above referred judgments of this Court
    is that 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 the relevant
    rules or a scheme. If an employee is covered under the Provident
    Fund Scheme and is not holding a pensionable post, he cannot
    claim pension, nor the writ court can issue mandamus directing the
    employer to provide pension to an employee who is not covered
    under the rules.
36. The appellant(s) have relied upon three earlier judgments of the
    Allahabad High Court in the matter of Mirza Athar Beg (supra), S.M.
    Fazil (supra) and Shri Narain Pandey (supra), therefore, it would
    be appropriate to discuss about the status of the said employees.
37. Mirza Athar Beg was promoted on the post of Junior Clerk in the
    Roadways w.e.f 07.09.1958 in the office of Assistant General Manager
    at Charbagh Depot, Lucknow and his promotion was regularised on
    16.04.1960. The Division Bench of the High Court noted the fact
    that it is not the case of the Corporation that the respondent Mirza
    Athar Beg was not a permanent employee of the Roadways. Thus,
    he was admittedly a permanent employee and, therefore, he was
    found to be falling in the category of pensionable post as per GO
    dated 28.10.1960.
38. S.M. Fazil was appointed as Assistant Traffic Inspector in the Roadways
    on 19.04.1949. He was promoted as Junior Station Incharge on
    05.11.1956 and thereafter selected as Traffic Superintendent by
    the U.P. Public Service Commission in 1961. He was thereafter
    promoted to the gazetted class post of Assistant Regional Manager
    in 1981. His claim before the Tribunal was to the effect that pension,
    gratuity and commutation was sanctioned taking into account the
    services rendered w.e.f 05.11.1956 till 28.02.1983 leaving his earlier
    services from 19.04.1949 to 05.11.1996. Therefore, in view of Articles
    350 and 370 of the Regulations, his period of service in temporary
    capacity or on temporary post was countable towards qualifying
[2024] 7 S.C.R.                                                    1393

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

     services for pension and gratuity and he was never absorbed in the
     services of the Corporation. Thus, the case of S.M.Fazil is entirely
     distinguishable on facts.
39. True it is that Shri Narain Pandey was granted pension by the High
    Court despite he having been appointed on the post of Junior Station
    Incharge on 05.05.1978. However, this judgment was rendered
    without any reference to GOs dated 16.09.1960 and 28.10.1960 as
    also Note 3 of Article 350 of the Regulations and the provisions of
    the Service Regulations, 1981. This judgment, therefore, cannot be
    relied upon as binding precedent as the same has been rendered
    without referring to the applicable GOs and Regulations.
40. In view of the above discussion, the appellant’s reliance on the
    judgments rendered by the Allahabad High Court in the matter of
    Mirza Athar Beg (supra), S.M. Fazil & 03 others (supra) and Shri
    Narain Pandey (supra) are misplaced as in the said matters, the
    respective appellants were found to be holding permanent posts
    which were pensionable whereas in the present case, the appellants
    were neither holding permanent posts nor holding any pensionable
    posts as per GO dated 28.10.1960. Therefore, judgments in the
    matter Mirza Athar Beg (supra), S.M. Fazil & 03 others (supra)
    and Shri Narain Pandey (supra) rendered by the High Court are
    distinguishable on facts. The judgment in Shri Narain Pandey
    (supra) has not considered the legal effect flowing from the GO
    dated 16.09.1960 and 28.10.1960 as also Note 3 of Article 350 of
    the Regulations. Therefore, the said judgment of the Allahabad High
    Court is of no assistance to the appellants.
41. For all the forestated reasons, civil appeal is liable to be and is
    hereby dismissed.
     C.A. No. 895 of 2020, C.A. No. 896 of 2020, C.A. No. 897 of
     2020, C.A. No. 898 of 2020, C.A. No. (s)           of 2024 @
     SLP (c)             of 2024 @ Diary No. 10240 of 2020 & C. A.
     Nos. 899-901 of 2020.
     CIVIL APPEAL NO. 895 OF 2020
42. This appeal has been preferred by UPSRTC assailing the order
    passed by the Division Bench of the High Court of Allahabad
    (Lucknow Bench) in Special Appeal No. 780 (S/B) of 2013 (UPSRTC
    & Anr. Vs. Roadways Karmchari Sanyukta Parishad, Uttar Pradesh
1394                                                      [2024] 7 S.C.R.

                     Digital Supreme Court Reports


      & Anr.). Before the Division Bench, UPSRTC challenged the order
      passed by the learned Single Judge allowing the writ petition
      preferred by Roadways Karmchari Sanyukta Parishad, Uttar
      Pradesh, 21 consequently, directing the UPSRTC to extend the
      pensionary benefits and pay pension w.e.f 27.08.1982 onwards in
      the light of GO dated 05.07.1972 and in pursuance of order dated
      22.05.1989 passed by the Division Bench of the High Court in Writ
      Petition Nos. 3273 of 1982, 3380 of 1982, 3400 of 1982, 3489 of
      1982 and 4119 of 1982.
43. The issue before the Division Bench was in relation to extending
    pensionary and other benefits in respect of such employees who
    have been promoted on pensionable posts after 1982. According to
    the Division Bench, in other words, the issue is whether the cutoff
    date of 1982 fixed by the UPSRTC basing upon the provisions of
    absorption rules and the regulations framed thereunder are rational
    having nexus with the object of denying the benefit of pension to
    the members of the RKSP.
44. The Division Bench has referred to two GOs dated 07.06.1972 and
    05.07.1972. In the first GO, the Officers/employees of the Roadways
    and those working in the Transport Commissioner’s office and Head
    Office, whether permanent or temporary, shall be considered on
    deputation under existing terms and conditions of their service. After
    period of six months, the Corporation shall take steps for their formal
    appointment and prepare service rules and those who are willing to
    be absorbed shall be absorbed in the Corporation for which required
    number of posts, both permanent and temporary, shall be created.
    It was also provided in Clause (4) of the GO dated 07.06.1972
    that on absorption their service conditions shall not be inferior to
    those under the Government immediately before the absorption
    and their tenure of government service shall be considered for their
    seniority, promotion, pay fixation, entitlement for leave and for the
    benefits of retirement in the same way as would have been under
    the Government service.
45. In the second GO dated 05.07.1992, the earlier GO dated 07.06.1972
    was amended. The GO dated 05.07.1972 as is quoted in impugned



21   ‘RKSP’
[2024] 7 S.C.R.                                                      1395

      U.P. Roadways Retired Officials and Officers Association v.
                         State of U.P. & Anr.

     judgment passed in Special Appeal No. 780 (S/B) of 2013 has already
     been quoted in the preceding para 24.
46. The High Court referred to the above GOs as also the provisions
    of U.P. State Road Transport Corporation Employees (other than
    Officers) Service Regulations, 1981 to hold that in view of the
    clear provisions in the GOs that the Roadways employees sent on
    deputation shall enjoy the same service conditions and whenever
    rules are framed their service conditions shall not be inferior to the
    conditions as were available under the Government immediately
    before their absorption, therefore, in view of Regulation 39 of the
    Regulations, 1981 notified on 19.06.1981, the erstwhile employees
    of the Roadways who have been promoted on pensionable posts
    after 1982 are entitled for pension.
47. Ms. Garima Prasad, learned senior counsel appearing for the UPSRTC
    would argue that the High Court has completely misread the contents
    of GOs dated 07.06.1972 and 05.07.1972 as also the rules and
    regulations. She would submit that these GOs have not made any
    specific provision concerning admissibility of pension which is dealt
    with in the earlier GO dated 28.10.1960. She would thus submit that
    GOs dated 07.06.1972 and 05.07.1972 would not be applicable to
    the employees of the erstwhile Roadways insofar as entitlement of
    pension is concerned and the same is restricted to the government
    employees who were absorbed in the services of the Corporation.
48. Per contra, Mr. Rakesh Khanna, learned senior counsel appearing
    for RKSP would submit that the High Court has correctly applied
    the GOs as also the rules and regulations while allowing the writ
    petition. He would also submit that the Division Bench has erred in
    directing, in the operative part of the order, that the pension shall be
    calculated from the date, employee(s) of the Corporation became
    member of the cadre of the post which is pensionable. According
    to him, the entire length of service should have been calculated for
    the purpose of pensionary benefits.
49. We have already discussed the legal effect of the GOs dated
    07.06.1972 and 05.07.1972 read along with Clause (4) of Regulation
    39 of the Regulations, 1981. To reiterate, only those employees of
    the State Government working in the Roadways who have opted for
    services of the Corporation shall be entitled for pension and other
1396                                                       [2024] 7 S.C.R.

                     Digital Supreme Court Reports


     retirement benefits in terms of GO dated 05.07.1972. However, other
     employees of the Corporation shall not be entitled to pension, but
     they shall be entitled to the retirement benefits mentioned in sub-
     Regulations (1) and (2) of Regulation 39. Thus, it is amply clear
     that only State Government employees absorbed in the Corporation
     shall be entitled to pension, “phrase that their service conditions
     shall not be inferior to the conditions as were available under the
     Government” would be applicable to the State Government employees
     for the purposes of according benefit of pension. The employees
     of Roadways who were not holding any pensionable post prior to
     their deputation or absorption in the Corporation, are not entitled to
     pension, as their service conditions in the erstwhile Roadways did not
     provide that they are entitled to pension. Thus, they have not been
     put to any inferior service conditions on their joining the services in
     the Corporation. In our considered opinion, the Division Bench of
     the High Court was not correct in holding that the members of the
     RKSP are entitled to pension even if they have been promoted after
     the cutoff date of 27.08.1982.
50. Insofar as the employees who were promoted in the UPSRTC on a
    pensionable post between 1972 to 1981, they are getting pension
    in view of GO dated 03.02.1984. This position has been admitted
    by Ms. Garima Prasad, learned senior counsel appearing for the
    UPSRTC. However, the members of the Union of RKSP for whose
    benefit the writ petition was preferred, who were promoted on a
    pensionable post after the cutoff date, are not entitled for pension.
51. Accordingly, we set aside the order passed by the Division Bench
    and the learned Single Judge of the Allahabad High Court under the
    impugned judgment(s). Accordingly, the appeals filed by UPSRTC
    being C.A. No. 895 of 2020, C.A. No. 896 of 2020, C.A. No. 897 of
    2020, C.A. No. 898 of 2020 and C.A. No. (s) ________ of 2024 @
    SLP (c) __________of 2024 @ Diary No. 10240 of 2020 are allowed
    and the appeals filed by Roadways Karamchari Sanyukta Parishad,
    UP being C.A. Nos. 899-901 of 2020 are dismissed.
     C.A. No. 957/2020, C.A. Nos. 959-965/2020, 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,
[2024] 7 S.C.R.                                                       1397

         U.P. Roadways Retired Officials and Officers Association v.
                            State of U.P. & Anr.

     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
52. In view of our judgment allowing the appeals preferred by UPSRTC,
    these civil appeals are dismissed.

     Result of the case: CA No. 894 of 2020 dismissed; Appeals filed
                          by UPSRTC are allowed while those filed by
                          Roadways Karamchari Sanyukta Parishad, UP
                          are dismissed.



     †
         Headnotes prepared by: Divya Pandey