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Ram Singh Singraur and connected v. Union Of India And Others - WRIT - A No. 44772 of 2006  RD-AH 13767 (8 August 2007)
Civil Misc. Writ Petition No. 44772 of 2006
Ram Singh Singraur Vs. State of U.P. and others.
Civil Misc. Writ Petition No. 44774 of 2006
Padma Kant Shukla Vs. State of U.P. and others.
Civil Misc. Writ Petition No. 44776 of 2006
Jang Bahadur Singh Vs. State of U.P. and others.
Civil Misc. Writ Petition No. 44778 of 2006
Satyendra Bahadur Vs. State of U.P. and others.
Civil Misc. Writ Petition No. 44780 of 2006
Rakesh Pratap Singh Vs. State of U.P. and others.
Civil Misc. Writ Petition No. 46556of 2006
Saiyad Mohd. Azhar Siddiqui and others Vs. State of U.P. and others.
Hon'ble D.P. Singh, J.
1. Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Surendra Prasad for the petitioner and Sri Sameer Sharma for the respondent Corporation.
2. The petitioner was appointed as a Assistant Traffic Inspector in the erstwhile U.P. Government Roadways on 22.10.1963 and was made permanent with effect from 1.4.1972. He was sent on deputation to the U.P. State Road Transport Corporation where he was absorbed with effect from 28.7.1982. He was granted various promotions and subsequently retired from the post of Traffic Superintendent on 31.7.1997. After retirement, he was granted pension vide order dated 10.9.1998 on the recommendation of the Corporation and was also paid the revised pension vide order dated 19.12.2000. However, he was issued a show cause notice on 16.6.2006 inter-alia on the ground that he was not holding a pensionable post while in Government service and since all the post in the Corporation are non-pensionable, he was not entitled for payment of pension. After considering the reply of the petitioner, the Regional Manager cancelled the pension sanctioned to the petitioner vide his order dated 27.7.2006 on the ground that he was not holding a pensionable post on 27.7.1982. This order is impugned in the present petition.
3. Learned counsel for the petitioner has urged that on the date of his absorption in the Corporation, the petitioner was holding a pensionable post and as such, the order is vitiated.
4. The U.P. Government Roadways was a Department of the Government of Uttar Pradesh and was engaged in providing transport facilities. By a Government Order dated 28.10.1960, all posts of the rank of Junior Station Incharge and above on the traffic side were declared to be pensionable. The Uttar Pradesh Road Transport Corporation (here-in-after referred to as the Corporation) came into being with effect from 1.6.1972 in pursuance of section 45 of the State Transport Act passed by the Parliament. On the creation of the Corporation, all the employees, including the petitioner, serving in U.P. Government Roadways were sent to the Corporation on deputation with a stipulation that service conditions of the employees of the U.P. government Roadways would not be inferior in the Corporation. The Board of Directors of the Corporation passed a resolution on 3.3.1978 upgrading the post of Assistant Traffic Inspector to Traffic Inspector, Grade-1 and placed it in the pay scale of Junior Station Incharge. Both the posts were made interchangeable vide notification dated 5.5.1978 and the Deputy General Manager was notified to be the common appointing authority for both. It is not denied that the petitioner remained an employee of U.P. Government Roadways till he was absorbed in the Corporation with effect from 28.7.1982. Regulation 39 of U.P. State Road Transport Corporation (Employees other than Officers) Service Regulation, 1981 stipulates that only those employees of the erstwhile Government Roadways who held a pensionable posts prior to their absorption in the Corporation would be entitled to pension and none of the officers of the Corporation would be entitled to that benefit.
5. The core issue thus is, whether the petitioner was holding a pensionable post prior to his absorption in the Corporation?
6. A perusal of the notification dated 5.5.1978 shows that all the posts of Assistant Traffic Inspectors were upgraded to Traffic Inspection Grade-1 and were made interchangeable with the posts of Junior Station Incharge. On the said date the petitioner like all other Traffic Inspectors were thus upgraded to Traffic Inspector, Grade-1 and they were liable to be posted as Junior Station Incharge also. The effect was that the posts of Traffic Inspector, Grade-1 and Junior Station Incharge was integrated into a common cadre having one appointing authority i.e. the Deputy General Manager. However, Sri Sharma contends that the integration of the two posts were only for the sake of convenience and to streamline the work of the Corporation and it did not grant any benefit applicable to the post of Junior Station Incharge. The argument does not appear to be correct and is belied by the aforesaid notification itself. There is nothing in the notification to suggest even remotely that notwithstanding the integration, Traffic Inspectors would be deprived of any benefits arising thereof. No doubt the notification states that the arrangement could be withdrawn at any time but, there is nothing on record nor it has been argued at the bar that the said notification was ever withdrawn prior to the absorption of the petitioner in the Corporation. To the contrary, the petitioner was given the grade of the Junior Station Incharge vide order dated 24.5.1978. Further, vide resolution dated 30.8.1979 the Corporation decided to transfer all those Traffic Inspector, Grade-1 who had completed the age of 52 years to the post of Junior Station Incharge and those Station Incharges who had not completed the age of 52 years, were transferred to the post of Traffic Inspector, Grade-1. Therefore, for all practical purposes, the petitioner was entitled to all the benefits applicable to Junior Station Incharge. Even after the absorption of the petitioner with effect from 28.7.1982 the Corporation kept on taking action in consonance with the notification dated 5.5.1978. The Corporation by its resolution dated 23.3.1985 held that the posts of Traffic Inspector, Grade-1 were redesignated as Traffic Inspector and simultaneously it resolved to abolish 193 posts of Traffic Inspector creating 150 posts of Junior Station Incharges. It further resolved that all the newly created 150 posts of Junior Station Incharges would be filled up from the Traffic Inspectors. In fact, all those Assistant Traffic Inspectors who were promoted to the post of Traffic Inspector, Grade-1 in 1978 merged into the grade of Junior Station Incharges and all Junior Station Incharges appointed after 5.5.1978 were treated to be junior to them. Thus, the likes of the petitioner were even given seniority in the cadre of Station Incharge from 5.5.1978 itself.
7. It is then urged on behalf of the Corporation that the notification dated 5.5.1978 cannot be said to have amended the Government Order dated 28.10.1960 and the petitioner remained a government servant till his absorption and thus Corporation could not have changed the service conditions of such employees. He has relied upon a Division Bench judgement of this Court rendered in the case of Jagdish Prasad Gupta and others Vs. State of U.P. and others [1980 (VI) A.L.R. 81.]
8. A perusal of the decision in Jagidish Prasad's case would show that the issue in consideration before the Division Bench was as to whether a claim petition lay before the Public Service Tribunal under U.P. Public Services Tribunal Act, 1976 with regard to challenge of termination of Government Roadways Employees on deputation to the Corporation. The Division Bench held that prior to absorption of such Government Roadways Employees in the Corporation, he remained a government servant and as such the claim petition under the U.P. Public Services Tribunal Act, 1976 would be maintainable before the Tribunal. This case does not help the cause of the Corporation. After the petitioner was placed in deputation in the Corporation, the Corporation became entitled to regulate, control and supervise the work of the deputees. The Corporation has failed to point out any law disabling the Corporation from changing the service conditions of the deputationist. The only bar imposed was that in no case the conditions of service of the deputationist would in any way be inferior to those which were applicable under the U.P. Government Roadways. The Government Order dated 28.10.1960 categorically states that the supervisory staff of the rank of Junior Station Incharge and above on the traffic side would be admitted to pension. The Corporation by its notification dated 5.5.1978 upgraded the post of Assistant Traffic Inspector to the post of Traffic Inspector Grade-1 and integrated the said post in the post of Junior Station Incharge and thus the post of Traffic Inspector Grade-1 became equivalent in rank to the post of Junior Station Incharge. Once the two posts were integrated into a common cadre with the same pay scale and common appointing authority, it cannot be said that the post of Traffic Inspector Grade-1 was in any way inferior in rank to that of Junior Station Incharge. If the argument of the Corporation were to be accepted, it would lead to absurd results because if a member of the cadre was absorbed in the Corporation while working as a Junior Station Incharge he would be admitted to pension but if he is absorbed from the post of Traffic Inspector Grade-II he would be denied the said benefit.
9. It is then urged that in fact the petitioner never worked on the post of Junior Station Incharge, therefore, they were not entitled to pension.
10. The worth of the argument has already been commented upon, but let us examine it a bit further.
11. It is common ground that the provision for pension to the employees of the erstwhile U.P. Government Roadways is covered by the Government Order dated 28.10.1960. The relevant category (b) states that " the supervisory staff to the rank of Junior Station Incharge and above on the traffic side" would be entitled for pension. It does not speak about 'post' of Junior Incharge but 'rank' of Junior Station Incharge. Argument of the Corporation implies that until and unless a person holds the post of Junior Station Incharge, he would not be entitled to pension. The argument does not appear to be correct. The words 'post' and 'rank' have a very different meaning in service jurisprudence. The Apex Court in the Case of N.C. Dalwadi Vs. State of Gujarat (AIR 1987 S.C. 1933) while considering a case of compulsory retirement of a Superintendent Engineer had an occasion to decipher the meaning of the word 'rank' and gave it its ordinary meaning as "grade or status". Further, the Apex Court in the case of R.K. Sabharwal Vs. State of Punjab (AIR 1995 S.C. 1371) while considering the question of relevant 'post', found that the "word post means the appointment, job, office or employment........" Therefore, also it would be irrelevant whether or not the petitioner actually worked as Junior Station Incharge. Once the Corporation has upgraded the post of Traffic Inspector Grade-1 to the rank of Junior Station Incharge, they would be entitled to the benefit of the said Government Order dated 28.10.1960. The Court has already noted above that the two posts had been integrated into a common cadre and made interchangeable which was followed subsequently.
12. The learned counsel for the Corporation has then urged that the post of Assistant Traffic Inspector has already been held to be a non-pensionable post by a learned Single Judge of this Court in the case of Harbux Pathak Vs. U.P.S.R.T.C [1992 (1) U.P.L.B.E.C. 242] and the said judgement has been upheld by a Division Bench of this Court in Special Appeal no. 32 of 1992 (decided on 22.9.1992) and therefore this Court sitting singly cannot overrule it. So far as the argument that sitting singly is concerned, this Court would not venture to take a different view than that taken by the Division bench but the question is whether the decision in Harbux Pathak's case applies to the present set of facts. In the opening paragraph of the Single Judge's decision in Harbux Pathak's case shows that the incumbent retired from government service as Assistant Traffic Inspector on 28.12.1974 while up-gradation of the said post was made by the Corporation on 3.3.1978 and was notified on 5.5.1978. Thus, apparently this issue with regard to said notification was never considered in that case as the issue did not arise. Therefore, the decision in Harbux Pathak's case would not enure to the benefit of the Corporation.
13. It has also been urged that if the Court takes the view that the post of Assistant Traffic Inspector is a pensionable post, it would cause very heavy financial burden upon the Corporation as all Assistant Traffic Inspectors would clamour for pension and financial burden is also one of the important ingredients while taking a decision with regard to payment of pension as held by the Apex Court in the case of State of Punjab Vs. Amar Nath Goel [2005 (6) S.C.C. 754]. There is absolutely no quarrel with the ratio rendered in Amar Nath Goel's case, but the said ratio has no application to the present set of facts. Even otherwise, the Corporation has not at all confronted the petitioner or this Court with the implication of financial burden, its size or otherwise. Apart from that, Assistant Traffic Inspectors cannot claim benefit of pension until and unless they are covered by the Government Notification dated 28.10.2006 read with notification dated 5.5.1978. Assuming that the Corporation would be burdened, but if the incumbent is entitled under law, financial burden cannot be a ground to deny it.
14. The issue can be examined from another stand point. Under the U.P. State Roadways Organization (Abolition of Post and Absorption of Employees) Rules, 1982, the Corporation was obliged under Rule 8 (III) for paying contribution of employees provident fund with regard to those employees who held a non-pensionable post with effect from 1.6.1972. However, there is not even a whisper as to whether the Corporation had deposited it's share of the provident fund after 1.6.1972.
15. There is also a humane angle to the issue raised here. The petitioner retired in 1997 and has been receiving pension for the last decade or so and accordingly he has arranged and formatted his personal financial needs and all of a sudden depriving him of the much needed money, which may be the only source, after such a long time, appears to be inhuman. Old age, they say, is a 'curse' and squeezing the supply of monetary nectar, would be a 'curse' twice visited.
16. In view of the foregoing reasons, the petition succeeds and is allowed and the impugned order dated 27.7.2006 is hereby quashed. The respondents are directed to forthwith pay the arrears of pension to the petitioner not later than three weeks from today and continue paying the monthly pension whenever it becomes due. On the facts of the case the petitioner is also entitled to cost which is quantified at Rs.5000/- to be paid along with the arrears.
Dt 8th August, 2007
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