JUDGMENT Sanjay Misra, J.
1. Heard Sri R.K.Khanna, learned counsel for the petitioner and learned Standing counsel Sri R.S.Parihar on behalf of the respondents.
2. The petitioner has challenged the order dated 9.7.1999 passed by the respondent no.l denying the benefit of pension' and other retirement benefits to the petitioner.
3. The petitioner contends that he was appointed on a temporary basis by an appointment letter dated 7.8.65 in the notified area committee, Jaspur, Nainital. His services were confirmed on 15.6.67. After the enforcement of U.P. Palika ( Centralised) Service Rules, 1966, the petitioner was given the benefit of Rule 41 by relaxing the condition of age and educational qualifications by an order dated 24.9.71. It is the contention of the petitioner that upon such an order having been passed the petitioner stood absorbed in the centralized service. He states that initially his appointment was on the post of Overseer. However, the said post was re-named as Junior Engineer. The petitioner was thereafter retired from the service on 31.8.98 and he applied for being given the retirement benefits which have been refused by the impugned order.
4. Learned counsel for the petitioner has submitted that once services were confirmed in the notified area committee on 15.6.67 and he was absorbed in the centralized services by the order dated 24.9.71 then he would be entitled to retirement benefits and the respondents cannot treat him as a temporary or adhoc employee since he continued on the post from the date of his appointment under Rule 21 upto the date of retirement i.e. 31.8.98. The petitioner's services can not be treated as adhoc or temporary.
5. A counter affidavit has been filed by the respondents wherein the petitioner's claim has been contested on the ground that his appointment by virtue of giving relaxation in age and educational qualifications did not entitle him tobe confirmed under the provision of Rule 21 in as much as he does not appear in the list prepared by the commission under Rule 19 nor by promotion in accordance with the provision of Rule 20. It has further been stated that the petitioner was not appointed by direct recruitment nor absorbed under Rule 6 (2) and as such he will not be entitled to any retirement benefit. The case of the respondents is that since the petitioner was appointed in the notified area committee, therefore, the provisions of Rule could not be applicable in his case. His appointment was made by virtue of relaxation given under Rule 41 and, therefore, it was purely adhoc and temporary. It has further been pleaded that the case of the petitioner was considered and it was found that he was not qualified for pension under the Rule.
6. In the rejoinder affidavit the petitioner has stated that when the notified area committee of Jaspur was upgraded to Municipal Board class IV in 1968 the petitioner opted for and became member of centralized services. No objection whatsoever was ever raised and his appointment was made by the State Government under Rule 21 read with Rule 41 of the Rules. The petitioner was transferred at different times from Nanital to Bijnor, Moradabad to Saharanpur arid lastly he was posted at Nagar Nigam, Moradabad when he retired. It is contended that the petitioner was permitted to continue in service and in view of provision of Rule 6(4) (d) the petitioner who was overseer having opted and found suitable ( by relaxing age and qualifications) was appointed as Junior Engineer in Palika centralized services. He submits that by virtue of the order dated 24.9.1971 he was absorbed in the services and in the absence of any order to the contrary he stood finally absorbed in the services as provided in Rule 6(2)(iv). It is stated that the petitioner has continued in service and admittedly his case is not covered by Clause (v) of Rule 6(2). He states that the amended Rule 21 (A) which was enforced from 30.8.84 would not be applicable to the petitioner since his services stood regularized much before the said Rule came into existence. His regularization as such was not required to be made under Rule 21 (A). Learned counsel for the petitioner submits that he was never informed about the constitution of a committee for considering his regularization under Rule 21 (A) nor he wass ever informed that the committee found him unfit.
7. Learned counsel for the petitioner has placed reliance on the decision of Hon'ble Supreme Court in the case of Dayaram Dayal v. State of M.P. and Anr. reported in Judgments Today 1997(7)S.C.520 and has contented that after his appointment/ absorption under the centralized services he would be deemed to have been confirmed having served under the respondents from 1971 upto 1998. It is contended that even if his service was considered to be on probation but he was allowed to continue in service till retirement he would stand tobe confirmed in the service after expiry of maximum period of probation. It is contended that in view of the decision in the case of Om Prakash Maurya v. U.P.Cooperative Sugar Factories Federation and Ors. reported in 1986(53) FLR 281, the petitioner's service stands confirmed automatically after expiry of the period of probation.
8. Rule 41 of Centralised Services Rule read as under:
"41.Notwithstanding anything contained in these rules, where the Government is satisfied that the operation of any of the provisions of there rules causes undue hardship in any partcular case, it may by order dispense With or relax the requirements of that provision to such extern and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."
9. A perusal of aforesaid rule shows that if any provision of the rules causes undue hardship in a particular case the Government may by order dispense with or relax the requirement of that provision to the extent which it may consider necessary so as to deal with the case in a just and equitable manner. The order dated 24.9.71 passed under Rule 41 of the Centralised Services Rule has been filed as annexure-4 to the writ petition which indicates that the petitioner was given an appointment under Rule 21 on purely temporary basis on the post of Overseer by relaxing the conditions under Rule 41 in the particular circumstances of the petitioner. Such relaxation was with respect to the age and educational qualifications. He was given a pay scale of Rs. 150-185 plus allowances.
10. A reading of Rule 21 indicates that the appointment on substantive vacancy shall be made from a list prepared under Rule 19 and promotion on such substantive vacancy shall be made in accordance with the provision of Rule 20. Sub-rule 2 provides that the Government can make appointment in temporary vacancy for a period exceeding six weeks from amongst the persons selected for promotion under Rule 20. The appointment of the petitioner by an order dated 24.9.71 was made on a temporary basis by relaxing his age and educational qualification. The petitioner was a confirmed employee of the Notified Area Committee which was upgraded to Municipal Board class IV in 1968. Upon its upgradation the employees were required to exercise their option for absorption iin the Centralised Services. Such option was exercised by the petitioner and it was sent to the Government under Rule 6 (5). Since the order of appointment dated 24.9.1971 was passed in favour of the petitioner therefore, by virtue of the proviso to Clause (7) of Rule 6 the petitioner continued in his service. The petitioner's appointment, therefore, was an absorption in the centralized services. Since the conditions of age and educational qualifications were relaxed therefore, the procedure for direct recruitment as provided in Part V and the procedure for promotion as provided in Part VI of the Rules would not be applicable in the case of the petitioner. Consequently the petitioner's name could not find place in the approved list prepared under Rule 19. The contention of the respondents that the petitioner did not possess the educational qualification for the post of Junior Engineer and, therefore, he was not qualified to be regularized under amended Rule 21 (A) would mean that the petitioner was required to possess the qualifications as specified by the State Government under Rule 12. The further provision in Rule 21 (A) is that a person entitled tobe regularized must nave been working on adhoc basis by direct recruitment prior to 1.5.83 and must have completed three years of continuous service. It is also provided that the regularization to be made under the amended rule would require tobe considered by selection committee and it will be made in consultation with the commission.
11. It will be seen in the present case that the petitioner was given appointment under the Centralised Services Rule in 1971. Admittedly, he was working continuously since then and the amended rule came into force from 30.8,84, therefore, he had worked as a Junior Engineer by virtue of his appointment dated 24.9.71 continuously without any break,. The relaxation of his educational qualification under Rule 41 would mean that he would not have to go through the test of possessing the minimum educational qualification. Under Rule 21 (A) the petitioner satisfied the condition of having been in service prior to 1.5,83 and having worked continuously for more than three years before such date. The only requirement which the petitioner did not possess according to the respondents was the prescribed educational qualification. Since the same has been relaxed under Rule 41 it could not be said that the petitioner would be refused regularization for not possessing such educational qualification.
12. Part VII of the Rules provides for appointment, probation and confirmation. A person on direct appointment is to be placed on probation for a period of two years and in case he has rendered continuous service in a temporary capacity on the post included in the cadre of centralized services the period may be allowed to be counted by the Government towards the period of probation. Rule 22 provides that such period of probation can be extended even after the period of two years specifying the exact period for which the extension is granted. Sub Rule (2) provides for dispensing with the services of a probationer upon unsatisfactory service. Rule 23 states that the probationer shall stand confirmed in his appointment at the end of the period of probation. Consequently, it is seen that even if the appointment of the petitioner was considered to be adhoc under Rule 21 by giving relaxation under Rule 41 then his appointment would be treated as on probation and he was liable to be confirmed after expiry of the period of probation.
13. The petitioner has filed a Government order dated 1.7.1989 alongwith the rejoinder affidavit relating to entitlement of pension to temporary employees. It is provided in the said G.O. that such employees who worked for a minimum period of 10 years and upon their retirement they would be entitled to pension and other retirement benefits. It is not disputed by the respondents that the petitioner has worked under the Centralised Service Rule since 1971 upto the date of his retirement in 1998. The post of Overseer has been renamed as Junior Engineer under the Rule.
14. The contention of the petitioner that even if his appointment was considered as on probation by virtue of relaxation given under the Rule 41 and appointment made under Rule 21 he was entitled to be confirmed in his service in view of the provisions of Rules 22 and 23. His contention that probation cannot be continued indefinitely is also supported by the decision cited by him in the case of Dayaram Dayal (supra) and in the case of Om Prakash Maurya ( supra). Apart from the said contention the petitioner has relied upon the G.O. dated 1.7.89 which entitles the temporary government employees to the benefits of pension etc. In the case of A.P.Srivastava v. Union of India reported in 1995(71) FLR 900 the Hon'ble Supreme Court has held as under:-
" It has been held by this Court time and again that the pension is not a charity or bounty nor it is conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long service and is often described as deferred portion of payment for past services. It is in fact in the nature of social security plan provided for a superannuated Government servant. If a temporary Government servant who has rendered 20 years of service, is entitled to pension, If he voluntarily retires, there is Ho justification for denying the right to him when he required to retire by the employer in the public interest In other words, the condition precedent for being entitled to pension in case of a temporary Government servant is rending of 20 years of service."
15. Therefore, in the facts and circumstances of the present case it cannot be said that the petitioner would not be entitled to the pensionary benefits on the grounds as have been shown in the impugned order. In so far as retirement benefits of the petitioner are concerned this court finds that the petitioner is entitled to the same and to that extent the impugned order cannot be sustained. The same is consequently set aside and the respondents are directed to compute the retirement benefits to the petitioner and pay the same to him within a period of six months from the date a certified copy of this order is produced before him.
16. For the aforesaid reasons this writ petition stands finally disposed of with the aforesaid directions. No order is passed as to costs.