New Delhi : The Supreme Court has said pension is a right and not a bounty and 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.
A bench comprising justices Hrishikesh Roy and Prashant Kumar Mishra delivered a judgment on a batch of petitions filed by UP Roadways Retired Officials and Officers Association. “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”, said the bench, in its judgment on July 26.
Justice Mishra, who authored the judgment on behalf of the bench, said 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.
The single judge as well as the division bench of the Allahabad High Court had 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. The petitioners’ moved the apex court challenging the high court judgment. The high court had 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.
Senior advocate Garima Prasad, 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.
It was argued the service conditions of employees of the roadways as existing prior to their absorption in the corporation were never protected by government order (GO) dated July 5, 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 October 28, 1960, till their absorption in the corporation with effect from April 28, 1982. It was argued that appellants who were never appointed/worked on pensionable post as per GO dated October 28, 1960 till June 18, 1981, are not entitled to pension.
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.
“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”, said the apex court.
The apex court, in another clutch of petitions’, said the state government employees absorbed in the UP State Roadways Corporation would be entitled to pension. “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”, said Justice Mishra.
The bench said 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 August 27, 1982”, said the bench.
