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Synopsis

The Supreme Court has said pension is a right and not a bounty, as it is a constitutional right for which an employee is entitled on his superannuation which 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," a bench of Justices Hrishikesh Roy and Prashant Kumar Mishra said.

The court made the observations while dealing with a batch of petitions filed by UP Roadways Retired Officials and Officers Association arising out of a common judgment of the Allahabad High Court in different writ petitions.

Issue before the court was 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 UP State Roadways Transport Corporation.

The Roadways was created as a temporary department in 1947. A Government Order was issued on September 16, 1960 providing service conditions of the Roadways employees. 

Another GO was issued on October 28, 1960 providing for pension to the permanent employees of the Roadways. This GO was issued under Note 3 of Article 350 of the Regulations.

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, court noted.

After hearing the counsel, the bench approved of the High Court's observation 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. 

In another batch of petitions, the issue before the HC's 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. In other words, the issue was whether the cut off 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 Roadways Karmchari Sanyukta Parishad, Uttar Pradesh. 

High Court had held the erstwhile employees of the Roadways who have been promoted on pensionable posts after 1982 are entitled for pension.  In its arguments, UPSRTC contended the High Court misread the GOs as the entitlement of pension was restricted to the government employees who were absorbed in the services of the Corporation. 

After going through the GOs, the bench noted it is amply clear the State Government employees absorbed in the Corporation would 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," the bench said. 

It further held that 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 cut off date of August 27, 1982. 

Accordingly, top court has set aside judgment of the Allahabad High Court and allowed the appeal by the UPSRTC and dismissed the plea by Roadways Karamchari Sanyukta Parishad, UP.