S.U.Khan - (1.) HEARD learned counsel for the parties.
(2.) PETITIONER retired as an employee of U. P. State Road Transport Corporation (U.P.S.R.T.C.) on 31.12.1994. Through letter dated 4.9.2000 (Annexure-IV) written by Regional Manager, U. P. S. R. T. C., Kanpur from where the petitioner had retired to Director Pension Directorate, U. P., Lucknow, it was communicated that petitioner had been appointed on 12.1.1959 in U. P. Roadways, Gorakhpur and on the said post he had been declared to be permanent on 14.4.1960. It was further directed that petitioner had received E.P.F. contribution and gratuity of non-pensionable post, hence pension must be granted to him after adjustment of the said amount with interest. Pension payment order was issued on 3.11.2000 for payment of pension/ family pension to the petitioner, a true copy of which is Annexure-6 to the writ petition. However, after two days that order was withdrawn by order dated 5.11.2000 (Annexure-VII) which has been challenged through this writ petition. In the counter-affidavit it has been stated that order regarding grant of pension was wrongly passed in favour of the petitioner on the basis of incorrect entries in petitioner's service book and on the objections of the audit said error was detected and hence withdrawal order was passed on 5.11.2000 (impugned in the instant writ petition). It has further been elaborated in the counter-affidavit that for the first time by virtue of Government order dated 28.10.1960 some posts in erstwhile U. P. Government roadways were made pensionable however it was essential that the incumbents of the said posts (three in number) shall be permanent. The said Government order is quoted below : "In continuation of G.O. No. 31040 / XXX-135V / 1950 September 16, 1960, I am directed to say that the question of declaring the permanent posts in the Roadways Organisation (including the Roadways Central Workshop, Kanpur) as pensionable has been under the consideration of Government for some time past. In this connection, the Governor has been pleased to order that the permanent gazetted and non- gazetted incumbents of the following three categories would be entitled to the contributory provident fund-cum-pension Rules : (a) The employees working in the office establishment of the Assistant General Manager, General Manager, Service Manager, Chief Mechanical Engineer, Roadways Central Workshop, Kanpur and the Headquarter office of the Transport Commissioner. (b) Supervisory staff of the rank of Junior Station Incharge and above on the traffic side. (c) Technical staff of the rank of Junior Foremen and above on the engineering side ; 'rank' means position/status but no post. 2. The Governor has been further pleased to order, under note 3 below Article 350 of the Civil Services Regulation that the rest of the permanent non-gazetted Roadways employees both in the traffic and Engineering sections of the Organisation, would be treated as non-pensionable. The incumbents of the permanent non-pensionable posts referred to above will be eligible for provident fund benefits in accordance with the provisions of the Employees Provident Fund Act. 3. I am also to add that Temporary Employment of the categories mentioned in para 1 above will be entitled to provident fund benefits as provided under the Employees Provident Funds Act. As and when they became, permanent, they will have the option to elect the contributory provident fund-cum-pension benefits in lieu of Employees Provident Fund. As regards the grant of provident fund benefits to other temporary and work charged employees of the Roadways organisation necessary orders have already been conveyed to you in Government order No. 14880/XXX-219/59 dated 29.7.1960." 4. It has further been stated in the counter-affidavit that in the service book of the petitioner it was wrongly mentioned that petitioner had been confirmed/treated to be confirmed through order dated 14.4.1960 while in fact the said order was only an order of appointment. Appointment orders of the petitioner have been annexed as Annexures-RA 1, 2 and 3 to the rejoinder-affidavit. RA-1 is dated 10.1.1959 according to which petitioner was temporarily appointed as a junior clerk in the vacancy caused by sanction of leave reserve. Annexure-RA 2 is general order in respect of 31 employees including the petitioner whose name is mentioned at serial No. 15 in the said order. The said order is dated 29/30 April, 1959. The said order states that : "the following persons who were appointed as junior clerks and booking clerks - vide this office order................... against the additional sanction of staff for leave reserve upto 31.3.1959 are hereby reappointed on the same post w.e.f. 3.4.1959 to 31.3.1960 against the additional sanction communicated by Sahayak Parivahan Ayukta (R) Lucknow in his letter No. 2087 Rest/55R/Est dated 9.4.1959". In the portion not quoted (denoted by dots) numbers and dates of different orders were mentioned including the date 10.1.1959 (through order of the said date petitioner had earlier been appointed). Thereafter, comes the crucial letter dated 14.4.1960, copy of which is Annexure-RA 3 containing the names of 21 persons. Petitioner's name is mentioned at serial No. 17. The said order states as follows : "The following staff appointed and promoted against Government order dated 30.3.1959 regarding sanction of staff for Gorakhpur-Nautanwa, Nautanwa-Sonauli, Mankapur-Lakarmandi and Deoria-Ruperpur, additional sanction of staff accorded by Transport Commissioner vide letter dated 9.4.1959 upto 31.3.1960 are hereby allowed to continue w.e.f. 1.4.1960 to 31.3.1961 in anticipation of Government sanction. Their services are purely temporary and liable to terminate and revert on or before expiry of sanction".
(3.) ON 1.6.1972 U. P. S. R. T. C. was created under Section 3 of R. T. C. Act, 1950. All the employees of U. P. Government Roadways department were sent on deputation to the corporation. Thereafter, through G.O. dated 5.7.1972 service condition of roadways employees were protected. Petitioner was made permanent by U. P. S. R. T. C. on 9.5.1974. In the year 1981, U. P. S. R. T. C. framed its service regulation. ON 28.7.1982, all employees of the roadways of erstwhile U. P. Government Roadways department who were till then on deputation with U.P.S.R.T.C. were absorbed in service by U. P. S. R. T. C. including the petitioner. There is absolutely no dispute that such employees who were earlier U. P. Government roadways employees and were absorbed in the U. P. S. R. T. C. like the petitioner were entitled to all the benefits which were available to them as Government employees prior to their absorption in case the service conditions in that regard in the corporation were less favourable. U. P. S. R. T. C. does not grant pension to its employees. However, if a person was an employee of U. P. Government roadways and his post was pensionable then he will be entitled to pension.;