JUDGMENT Sudhir Agarwal, J.
1. Heard Sri Shiv Avtar Sharma, learned Counsel for the petitioner and the learned Standing counsel for the respondents.
2. The petitioner has sought a mandamus commanding the respondents to pay post retrial benefits as he retired on 30.6.2001.
3. In brief the case of the petitioner is that he was appointed on 24.10.1973 on the post of Godam Chowkidar on temporary ad hoc basis. Subsequently he was regularized vide order dated 2.5.95 passed by the Regional Food Controller, Bareilly Region, Bareilly. After attaining the age of superannuation the petitioner retired on 30.6.2001. However, the respondents have not paid any pension to the petitioner inspite of several representations made by him. Hence, this writ petition has been filed.
4. The respondents have filed counter affidavit stating that gratuity of the petitioner has been paid on 23.12.2002 but no pension is payable since the petitioner has not completed minimum ten years service after the date of regularization.
5. Learned Counsel for the petitioner submits that under Fundamental Rule 56 read with Paras 424 and 361 of Civil Service Regulations, the petitioner is entitled for pension since the entire period of service even prior to the date of regularization would be counted towards qualifying service for payment of pension. Reliance has been placed on a Division Bench judgment in Board of Revenue and Ors. v. Prasidh Narain Upadhyay 2006 (1) ESC 611
6. Learned Counsel for the respondents however, submitted that under the Civil Service Regulations, unless the petitioner has completed qualifying service of ten years after the date of regularization, he is not entitled for payment of pension. Reliance is also placed on a letter dated 11/12.7.2005 issued by Regional Food Director, Bareilly Region, Bareilly to Special Secretary, Food Supply Department, Govt. of U.P., Lucknow observing that since the petitioner was regularized vide order dated 2.5.95 and, therefore, he was not entitled for pension having not complete 10 years qualifying service after regularisation.
7. Heard learned Counsel for the parties and perused the record.
8. No doubt pension and retiral benefits are no longer a bounty but a right of a retired employee. However, the aforesaid right is governed by Rules and retiral benefits are payable only in accordance with the Rules. In D.S. Nakara and Ors. v. Union of India , the Apex Court held that the pension is neither a bounty nor a matter of grace depending upon the sweet-will of the employer, but is a vested right subject to the rules governing mode and manner of payment thereof. It was also held that the pension is not an ex gratia payment but is a payment for the past service rendered by the employee and it is a social welfare measure rendering socioeconomic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.
9. In the present case it is not disputed that the retirement of the petitioner employee is governed under Fundamental Rule 56 read with relevant provisions of Civil Service Regulations. Every employee whether permanent or temporary or ad hoc is liable to retire on attaining the age of superannuation as provided under Fundamental Rule 56.
10. Fundamental Rule 56(e) as amended by U.P. Act No. 24 of 1975 provides that a retiring pension shall be payable and other retiral benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under the said rule. It is not disputed that the petitioner, in the present case has been made to retire on attaining the age of superannuation under Fundamental Rule 56. The provisions of Civil Service Regulations which are pre-constitutional provisions will have to sub serve Fundamental Rule 56 which has been enacted through a legislative enactment. Since Fundamental Rule 56 also gives a right of retiring pension to a temporary employee, the provisions of Civil Service Regulations have to be read consistent with the scheme of Fundamental Rule 56 so as to permit payment of pension and retiral benefits to the temporary employee as well. This results in reading down the provision of CSR which excludes temporary and non substantive service from being included in qualifying service. I do not find any reason to dilate on this aspect since it has already been adjudicated by two Division Benches of this Court in Dr. Hari Shankar Ashopa v. State of U.P. and Ors.
1989 ACJ 337 and Board of Revenue and Ors. v. Prasidh Narain Upadhyay (supra). In the later case the Division Bench (in which I was also a party), the service rendered by a Seasonal Collection peon before his formal engagement as temporary Collection Amin was also directed to be counted towards qualifying service for the purpose of pensionary rights. In paras 13 and 16 of the judgment the Division Bench held as under:
13- In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No B. i.e. lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975 which allows retirement of a temporary employee also and provides in Clause (e) that a retiring pension is payable and oilier retiral benefits, if any, shall he available to every Government servant who retires or is required or allowed to retire under this Rule.
16- Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly.
11. In the present case admittedly the petitioner was appointed on 24.10.1973 and continued with the respondents till 30.6.2001, i.e. for almost 28 years and denial of retiral benefits to the petitioner after rendering such a long service is neither justified under the Rules nor, otherwise is in accordance with law. Article 361 of Civil Service Regulations has been interpreted and read down in the light of Fundamental Rule 56 by the Division Bench in Dr. Hari Shankar Ashopa v. State of U.P. and Ors. (supra) which has been followed in Board of Revenue and Ors. v. Prasidh Narain Upadhyay (supra). Fundamental Rule 56 as amended in U.P. allows retiring pension to a temporary employee also, who retires or is required or allowed to retire under the said Rule. Therefore, it cannot be said that an employee must render permanent service, only thereafter he will be entitled for pensionary benefits. In the present case, the view taken by the respondent-authorities that the petitioner is not entitled for pension, since for the purpose of qualifying service, minimum period of 10 years must be completed by the employee from the date of his regularisation, is not correct and unsustainabale in law.
12. In the result, the writ petition is allowed. The respondents are directed to make payment of pension and other retiral benefits to the petitioner considering his continuous service from 24.10.73 as qualifying service and to pay all post retiral benefits accordingly within a period of three months from the date of production of a certified copy of this judgment before the competent authority. No order as to costs.