Panna Lal vs State of U.P. and others

Sudhir Agarwal, J.—Aggrieved by order dated 25.2.2005 (Annexure7 to the writ petition) passed by Executive Engineer (Construction Division4) (Kumbh Mela), Public Works Department, Allahabad, whereby he has held that that the petitioner is not entitled for any pension having not completed qualifying service, Sri Panna Lal, petitioner has approached this Court under Article 226 of the Constitution of India.

Sri Sudhakar Pandey, learned Counsel for the petitioner submitted that the petitioner was initially engaged in work charge as muster roll employee in October, 1981. He was made permanent muster roll employee by order dated 1.7.1984 and thereafter by order dated 30.6.1997 he was allowed regular pay scale and other allowances as admissible to regular employees w.e.f. 7.5.1993 though in work charge. This benefit was extended to other work charge employees also pursuant to certain direction passed by this Court in Writ Petitions No. 41825 of 1992, 41826 of 1992, 41827 of 1992 and 41829 of 1992. The petitioner was placed on regular establishment on 1.8.2000 and thereafter on attaining the age of superannuation he retired on 31.8.2004. Since he was not paid pension he made representation to the authority concerned for treating his qualifying service w.e.f. 7.5.1993. As the respondents failed to respond, the petitioner came to this Court through Writ Petition No. 53080 of 2004 which was disposed of vide order dated 14.12.2004 with the following directions:

"Having heard the learned Counsel for the parties and taking into consideration the facts and circumstances of this case, as the petitioner has submitted a representation i.e. Annexure 7 to the writ petition, I feel it appropriate to direct respondent No.3 to consider the case of the petitioner taking into consideration the fact that he has served the department for 23 years and the G.O. which has been mentioned and relied upon by the petitioner and pass appropriate orders regarding payment of retiral benefits to the petitioner on the representation of the petitioner preferably within two months from the date of production of a certified copy of this order before him."

Pursuant to the aforesaid order of this Court, the petitioner made a representation dated 26.12.2004 to the Executive Engineer who has decided the same vide order impugned in this writ petition, holding that the petitioner was placed on regular establishment only on 1.10.2000 and prior thereto he worked as work charge employee and service rendered by him as a work charge employee cannot be taken into account for purpose of qualifying service and, therefore, he is not entitled to pension and other benefits.

Sri Sudhakar Pandey vehemently contended that since the petitioner was paid regular pay scale and other allowances as admissible to regular employee, therefore, he is entitled to count the entire service for the purpose of pension since 7.5.1993 and it cannot be said that that he was not qualified for the same.

However, I do not find any force in the aforesaid submission. Pension if payable in accordance with Rules is matter of right but for the purpose of entitlement, it is the Rules which govern the same. Regulation 370 of Civil Service Regulation clearly excludes the period of service in ''work charge establishment and it reads as under:

"370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except:

(i) Periods of temporary or officiating service in nonpensionable establishment;

(ii) Periods of service in work charged establishment.

(iii) Periods of service in a post paid form contingencies.

A Division Bench of this Court in Bansh Gopal v. State of U.P., 2006(6)ADJ 384, has already considered this aspect and held that the service rendered in work charge establishment does not qualify for the purpose of pension and service in regular establishment will only qualify in view of Fundamental Rule 56. The aforesaid judgment has been followed by another Division Bench in State of U.P. v. Ram Pratap Shukla, 2008(6) ADJ 753. Learned Counsel for the petitioner placed reliance on a Division Bench decision of this Court in Board of Revenue v. Prasidh Narain Upadhyay, 2006(1) ESC 611 and Dr. Hari Shankar Ashopa v. State of U.P. and others, 1989 ACJ 337: (1989) 1 UPLBEC 501, but the aforesaid authorities have no application to the facts of this case, inasmuch as, there employees were in regular establishment though were working on temporary basis. In both the case, the employees were not in work charge establishment. Mere payment of salary at par with regular employees working with regular establishment does not mean "work charge" stands "appointed in regular establishment". It is not disputed that the petitioner got appointment in regular establishment only on 1.8.2000. Since he retired on 31.8.2004 after rendering service of about four years in regular establishment, admittedly, under the Rules, he has not qualified to receive pension and other retiral benefits.

Learned Counsel for the petitioner at this stage submitted that he has also not been paid gratuity by the respondents. I am afraid, the writ petition does not seek any relief in this regard and if the petitioner is so advised, he may approach the authority concerned for the aforesaid purpose.

The writ petition, therefore, lacks merit and is accordingly dismissed. No order as to costs. Petition dismissed.