Supreme Court of India· 26 July 2024

Can retired employees who drew Provident Fund benefits later claim pension instead?

UP ROADWAYS RETIRED OFFICIALS AND OFFICERS ASSOCIATION v. STATE OF U.P. & ANR

CIVIL APPEAL NO. 894 OF 2020 · CIVIL APPEAL NO. 894 OF 2020
Coram: Prashant Kumar Mishra; Hrishikesh Roy

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Answer

No. A party to the litigation cannot be permitted to approbate and reprobate, having received the entire post-retiral benefits under the Employees Provident Fund Scheme without any protest. Contributory provident fund retirees form a different class from those who opted for the pension scheme and cannot claim as of right to switch over.

Headnote

U.P. Civil Service Regulations - Art. 350, Note 3 - Road Transport Corporation Act, 1950 - s.3 - s.45(2)(c) - Pension - Pensionable post - Provident Fund Scheme - Approbation and reprobation - U.P. Civil Service Regulations - Art. 350 - Pension claimable only under a rule or scheme - Held: Pension is a right and not a bounty, but it can be claimed only where the relevant rules or a scheme permit it. An employee covered by the Provident Fund Scheme who holds no pensionable post cannot obtain a mandamus for pension. (¶35) U.P. Civil Service Regulations - Art. 350, Note 3 - Non-gazetted posts in technical institutions - Held further: Service in non-gazetted posts in Government Technical and Industrial Institutions in Uttar Pradesh does not qualify for pension and is covered by the Contributory Provident Fund Scheme. Note 3 survived the amendment to Article 350. (¶22, 29) Employees Provident Fund Scheme - Retiral benefits already drawn - Approbate and reprobate - Held further: A party to the litigation cannot be permitted to approbate and reprobate after receiving its entire post-retiral benefits without protest. Contributory provident fund retirees form a different class and cannot switch over to the Pension Scheme as of right. (¶30, 31) Precedent - Judgment rendered without reference to the governing Government Orders - Held further: A decision rendered without any reference to the applicable Government Orders and to Note 3 of Article 350 cannot be relied upon as binding precedent. Appeal of the retired employees dismissed and the Corporation's appeals allowed. (¶39, 51)

In the Court's own words

Paragraph 30The High Court, under the impugned judgment, has 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. 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. See National Council of Educational Research and Training vs. Shyam Babu Maheshwari & Ors.,13 Krishna Kumar vs. Union of India[^14] and Union of India vs. Kailas[^15].

Paragraph 31Similarly, in the matter of V.K. Ramamurthy vs. Union of India & Anr.,16 this Court considered the claim for pension of those who opted for pension after a long gap of retirement and held in para 4 that the contributory provident fund retirees form a different class from those who had opted for pension scheme and as such they are not entitled to claim as of right to switch over from Provident Fund Scheme to Pension Scheme. Similar is the proposition in the matter of All India Reserve Bank Retired Officers Association & Ors. Vs. Union of India & Anr.[^17]

Acts & Sections

Art. 350 U.P. Civil Service Regulationss.3 Road Transport Corporation Act, 1950s.45(2)(c) Road Transport Corporation Act, 1950Regulation 39 U.P. State Road Transport Corporation Employees (other than Officers) Service Regulations, 1981

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Also decided in this judgment

Can an employee under the Provident Fund Scheme claim pension without holding a pensionable post?Is a High Court judgment given without noticing the governing Government Orders a binding precedent?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections