Mohd.Mustafa vs State of U.P.and Others

Shabihul Hasnain, J.—Heard Sri Mohammad Ali, learned counsel for the petitioner and learned Standing Counsel for the opposite parties.

The controversy involved in this petition is regarding payment of pension to the petitioner.

The facts in brief as narrated in the writ petition are given hereinafter.

The petitioner was appointed on the post of mate on 26.12.1983 on daily wage basis in Public Works Department at Raebareilly. The petitioner worked continuously and on 1.11.1992 he was taken into work charge establishment as a work charged employee. The services of the petitioner were regularized on the post of mate in the pay scale of Rs.26103540/ on 20.5.1998. The petitioner retired from service on superannuation after attaining the age of 60 years as a regular government employee on 31.10.2007. When the petitioner applied for pension, he was informed that the same is not payable to him.

The petitioner approached this Court through Writ Petition No.8361 (S/S) of 2007 which was decided with a direction to the opposite parties to decide his representation relating to pensionary benefits. The said representation was rejected on 13.3.2008. The rejection order has been challenged in the present writ petition.

Main ground for rejecting the case of the petitioner is that he has not completed 10 years of continuous regular service hence he is not entitled for the pensionary benefit. The petitioner, according to the opposite parties, has completed only 9 years, 5 months and 11 days'' regular service i.e. from 25.9.1998 to 3.10.2007.

The arguments advanced by learned counsel for the petitioner is that since he has put in 23 years of services out of which 9 years 5 months and 11 days are of regular service hence the total service of 23 years should be counted as regular service and he should be paid pension. He has further argued that since he has continued on the post uninterruptedly till the regularization of his services in accordance with rules hence this period of officiating service will be counted towards his pension and the question whether his initial appointment was made by following the procedure in accordance with rules or not will loose its significance also if the services of the peititoner has been regularized in such a way.

Since the facts in the case are not disputed and only a purely legal question has to be addressed hence the counter affidavit was not called for and there was no rejoinder affidavit also.

Learned Standing Counsel has submitted that the order of rejection is absolutely valid. The petitioner is not entitled for pension as he has not completed 10 years of regular service. Reliance was placed on the case of Bansh Gopal v. State of U.P., 2006 (6) ADJ 384 (DB). This case squarely covers the case of the petitioner and lays down that the petitiner is not entitled to payment of pension as he has not put in 10 years of regular service.

Learned counsel for the petitioner has placed reliance on the following cases:

Direct Recruit Class II Engg. Officer''s Asso. v. State of Maharashtra, AIR 1990 SC 1607.

Santosh Kumar v. State of Andhra Pradesh and others, (2003) 5 SCC 511.

Raj Bhushan Gandhi v. Secretary, Haryana State Electricity Board and another, (1994) Supp. (1) SCC 56

Uttar Haryana Bijli Vitran Nigam Ltd. and others v. Surji Devi, (2008) 2 SCC 310 and

State of U.P. and others v. Rajendra Nath Pandey, 2008 (26) LCD 1760.

In the case of State of U.P. and others v. Rajendra Nath Pandey (supra) a Division Bench of this Court while deciding the special appeal has granted pension to a person who has rendered regular service of only 7 months and 26 days. Their Lordships dismissed the special appeal of the State and held that the entire service of the petitioner shall be counted for the purpose of pensionary benefits and the employee was granted pension without giving any benefit of seniority.

In this case also, the petitioner has put in a total of 23 years of service out of which 9 years 5 months and 11 days are of regular service. Petitioner''s case falls short by nearly 6 months. This is an unfortunate situation where the regularization of the petitioner has come nearly 6 months late to deny him life long benefit of pension.

It has also been submitted that the petitioner comes from a very poor family and the pension will be the only source of income for the petitioner and his children. Taking a compassionate view under the shadow of aforementioned case decided by this Court, this appears equitable that the deficiency of nearly six months in counting the regular service be waived off.

In view of what has been stated above, the opposite parties are directed to allow the pensionary benefits to the petitioner considering him to have completed 10 years of regular service and in total 23 years of service and pay him pension regularly every month from the date he has retired from service.

Writ peititon is, therefore, allowed with the aforesaid directions.

(Petition allowed)