Bhuneshwar Rai vs State of U.P.

@DELETEUPPERDATA

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. The appellant has filed this intra Court appeal challenging the validity and correctness of the judgment and order dated 3.3.2011 passed by the Writ Court in Civil Misc. Writ Petition No. 43822 of 2008, Bhuneshar Rai v. The State of U.P. and others, whereby the aforesaid writ petition had been dismissed.

Brief facts giving rise to the instant appeal are that the appellant was working in work charge establishment as Chaukidar/helper since 26.6.1976 and continued to work as such till 30.4.2006. The proceedings for regularization was initiated by the respondents in April, 2006. The Executive Engineer issued letter dated 18.4.2006 directing the appellant to produce the certificates of educational qualification etc. for considering his case for regularization on 25.4.2006 so that formality could be completed. He retired on attaining age of superannuation on 30.4.2006.

It is contended that appellant ought to have been regularized in April, 2006 and that his entire services from 26.6.1976 be counted for his pension and other retiral benefits.

In support of his aforesaid contention, learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Punjab State Electricity Board and Another Vs. Narata Singh and Another, , which has been relied upon by the learned Single Judge of this Court in the case of Mohd. Mustafa v. State of U.P., 2010 (1) ADJ 329 (LB), holding that where the petitioner has put in 23 years of service including 113 months and 11 days i.e., 9 years 5 months & 11 days of regular service then denial of pension for not having completed 10 years of regular service, was not proper. In that case, the Court directed the respondents to grant pensionary benefit to the petitioner considering him to have completed 10 years of regular service and pay him regularly every month from the date of retirement. The State of U.P. preferred an appeal against the aforesaid judgment in re: Mohd. Mustafa v. State of U.P. (Special Appeal Defective No. 254 of 2013), State of U.P. and others v. Prem Chandra and others, wherein the Court relying upon the judgment of the Apex Court in Punjab Electricity Board (supra) vide its judgment dated 13.5.2013 held that the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with the judgment of the Apex Court. Aggrieved, the State of U.P. preferred SLP (Civil) No. CC 22271 of 2013, State of U.P. and others v. Prem Chandra and others, before the Apex Court, which was dismissed vide judgment and order dated 7.1.2014.

We may also refer to the judgments rendered in the cases of The Board of Revenue Vs. Prasidh Narain Upadhyay (Late), and Bansh Gopal Vs. State of U.P., .

Learned Standing counsel does not dispute this legal position but contends that the appellant''s case is not covered by the Government Order dated 1.7.89 which required that pension shall be payable also to temporary employee who have rendered at least 10 years of regular service; that the appellant cannot be said to have rendered 10 years regular service since he was taken into regular service from work-charge establishment only by order dated 12.10.1999 and he retired on 21.5.2005.

Before considering the case laws we may reproduce the G.O. dated 1.7.1989.

We may now proceed to consider the ratio laid in the judgments cited by the learned counsel for the appellant which has not been disputed by the learned Standing counsel.

In the case of Board of Revenue (supra) the respondent was appointed on the post of Collection Peon in 1962 on temporary basis and he was continued in service till the date of his retirement in 1999. In that case, it has been held by the Court that even in cases where an employee may not have worked as a permanent employee but had worked regular for more than 10 years, he is entitled for pension and other retiral benefits in view of Fundamental Rules 56 and Paras 361, 465 and 465-A of Regulations. Mere fact that he was neither confirmed nor regularized in service would not take away his right to get pension which flows from law and also from period of more than 10 years of continuous service which cannot be ignored.

Similarly in the case of Bansh Gopal (supra) the appellant therein had put in only six years of regular service and had not rendered 10 years of service regularly. Previously, the appellant was engaged as Muster Roll employee in the establishment and thereafter he was taken under work-charge establishment. In the present case, the appellant was given regular appointment as class IV employee. After his superannuation it was contended by the respondent that he had in fact put in six years of regular service and not 10 years of regular service as required in G.O. dated 1.7.1989, hence he was not granted pension.

Repelling this contention on consideration of the case laws and various provisions dismissing the writ petition the Court has held that in paragraph Nos. 18 to 21 of the judgment thus:

"18. The relevant rules for payment of pension are contained in Civil Services Regulation. There is nothing inconsistent between Fundamental Rule 56 and Regulation 370 so as to not follow Regulation 370. According to Regulation 370, the services rendered by appellant in work charge establishment does not qualify for purposes of pension.

The appellant''s case is also not covered by the Government Order dated 1.7.89. The Government Order required that pension shall be payable also to temporary employee who have rendered at least 10 years of regular service. The appellant cannot be said to have rendered 10 years regular service since he was taken into regular service from work-charge establishment only by order dated 12.10.1999 and he retired on 31.5.2005.

An unreported judgment of Hon''ble Single Judge delivered on 22.2.2005 in Civil Misc. Writ Petition No. 53568 of 1999 (Shri Gangoo v. Executive Engineer) is relied upon by the appellant also. No doubt there his Lordship allowed pension to the writ petitioner on the basis of temporary service and the reading of the judgment shows that his Lordship drew no distinction between temporary service and work-charge service. To this extent, we are in respectful disagreement with the opinion given by the Hon''ble Single Judge.

The writ petitioner-appellant cannot in any manner be granted pension on the basis of only six years of regular service.

The appeal is dismissed."

For all these reasons the dispute in the present special appeal is no longer res-integra. The appellant has put in more than 10 years regular service as work charge employees w.e.f. 26.3.76 to 30.4.2006, hence he is entitled to the benefit of pension etc. in view of the law stated above. Accordingly, the appeal is allowed and the impugned judgment and order dated 3.3.2011 is quashed.