Pension is a Right and Not a Bounty, can be Claimed only when it is Permissible under the Relevant Rules or a Scheme: Supreme Court

While hearing the UP Roadways Retired Officials and Officers Association vs. State of UP & Anr. case on July 26, 2024, the Supreme Court (SC) of India held that pension can be claimed only when it is permissible under the relevant scheme or rule. The bench constituting Justice Hrishikesh Roy and Justice Prashant Kumar Mishra observed “...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.” 

The SC in the present case was considering the question “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 (UPSRTC)?” The factual background of the case is that UP Roadways was created in 1947 as a temporary department of the State Government to provide public transport facilities and employees were appointed temporarily. A Government order (GO) was issued on September 16, 1960, providing service conditions for the Roadways employees which were different from the employees working in different Government departments. 

On October 28, 1960, another GO was issued that provided a pension to the permanent employees of the erstwhile Roadways. This GO mentioned “that remaining non-gazetted employees of the Roadways (who are not permanent) would be entitled for benefits under the Employees Provident Fund Scheme.” Further, UPSRTC was created on June 01, 1972, under Section 3 of the Road Transport Corporation Act, 1950. A GO was issued on July 05, 1972, “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.” Further on April 28, 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 with effect from July 28, 1982. 

In the present case, the appellant-employees received their entire post-retiral benefits immediately after retirement without protesting or claiming that they hold a pensionable post. However, they filed representations claiming a pension, relying on certain judgments delivered by the Allahabad High Court (HC). The appellants approached the HC when the representations filed by them were rejected whereas the claims were dismissed by the HC noting that they did not hold any pensionable post; therefore, were not entitled to receive the pension. Challenging the decision of the HC, the appellants approached the SC. The top court observed, “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.” 

The SC also mentioned that the HC, under the impugned judgment, observed that the appellants having received retiral benefits including the benefit under the Employees Provident Fund Scheme, cannot be permitted to turn around and contend that they should also be given a pension. It approved the observations of the HC on the principle that “a party to the litigation cannot be permitted to approbate and reprobate.” Moreover, the bench said, “In our considered opinion, the Division Bench of the High Court was not correct in holding that the members of the RKSP (Roadways Karmchari Sanyukta Parishad) are entitled to pension even if they have been promoted after the cutoff date of 27.08.1982... 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.” The top court set aside the order passed by the Allahabad HC, allowed the appeals filed by the UPSRTC, and dismissed the appeals filed by the RKSP.