JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard counsel for the appellant and the learned standing counsel.
2. This is an appeal against judgment of a learned Single Judge dated 20.4.2006 dismissing the writ petition filed by the appellant.
3. Brief facts of the case are; the appellant was engaged as muster roll employee on 21.3.1983 as Beldar. The petitioner was thereafter taken under work charge establishment with effect from 1.1.1987. Subsequently, vide an order dated 12.10.1999, the appellant was regularised in regular employment as Class-IV employee by order dated 12.10.1999. The appellant after completion of 60 years of age was superannuated on 31.5.2005. The appellant earlier filed a writ petition No. 68494 of 2005 which was disposed of by this Court on 27.2.2005 directing the Executive Engineer to consider the representation of appellant by which he claimed payment of pension. In pursuance of the order of this Court the Executive Engineer passed an order dated 6.12.2005 rejecting the representation of appellant. The Executive Engineer in the order held that appellant was taken into regular establishment on 15.10.1999 and he having retired on 31.5.2005 his services are less than 10 years, hence he is not entitled for pension. It was further held that service period of work charged (irregular) establishment does not count towards pension. The order dated 6.12.2005 was challenged in the writ petition by the appellant which writ petition has been dismissed.
4. Learned Single Judge vide his judgment dated 20.4.2006 dismissed the writ petition holding that appellant is entitled for the benefit of the Government Order dated 1.7.1989. The appellant has not completed 20 years of temporary service.
5. The learned Counsel for the appellant challenging the judgment of learned Single Judge submitted that appellant having rendered more than 20 years of service is clearly entitled for pension. He submits that the appellant having retired in accordance with Rule 56 of fundamental rules, he is entitled for grant of pension. Reliance has been placed on a Division Bench judgment of this Court reported in 2006(2) ALJ 66 Board of Revenue v. Prasidh Narain Upadhyay and Anr. judgment of learned Single Judge dated 22.2.2005 in writ petition No. 53568 of 1999 Shri Gangoo v. Executive Engineer and Anr. annexure-9 to the paper book.
6. We have considered the submissions of counsel for the petitioner and perused the record.
7. We are in respectful agreement with the reasoning given and the order passed by Hon'ble Mr. Justice A.P. Sahi on 20.4.2006.
8. The appellant-writ petitioner does not qualify for pension because he was neither in temporary service for 20 years or more, nor in regular service for 10 years or more.
9. The Division Bench judgment in the case of Board of Revenue v. Prasidh Narain Upadhyay reported at 2006(2) ALJ 66 mentions as condition (B) in paragraph-12 of the judgment that one of the three necessary conditions for qualifying for pension is that the employment must be substantive and permanent.
10. Even if the word 'and' in the said judgment is read as 'or', the substantive nature of employment is a must. A temporary servant in a post would have a substantive appointment although not a permanent one
11. In the case of the appellant a large part of 20 years of defacto service which he rendered was rendered either as a muster roll Beldar or as work charge employee. The material Civil Service Regulations 370(page 55 of the paper book) mentions specifically that a work charge employee is not qualified for pension by reason of the number of years during which he rendered service as work charge employee.
12. This clearly shows that for the purposes of computing pension in the State temporary service cannot be held to include the period of work charge employment. The Government Order dated 1.7.1989 relied upon by the appellant-writ petitioner does not help the appellant at all and as that required 10 years of regular service which is even higher than temporary service.
13. In any event the appellant was regularised in 1999 and he superannuated in 2005. which means he has to his credit only six years of regular service
14. The counsel for the appellant has placed much reliance on the Division Bench judgment of this Court in in Board of Revenue v. Prasidh Narain Upadhyay 2006(2) ALJ 66 and Rule 56 of the Fundamental Rules. The counsel for the appellant submits that he having been retired under Fundamental Rule 56, he is entitled for retiring pension as held by Division Bench judgment in above case.
15. In Board of Revenue's case (supra), the Division Bench took the view that respondent retired as temporary collection peon. It was held by the Division Bench that temporary collection peon who retired after rendering 37 years of service was entitled for pension and it was not necessary that his services should have been substantive and confirmed. The Division Bench took the view that the requirement under Regulation 361 of Civil Services Regulation that the employment must be substantive and permanent shall be deemed to be over ridden by Fundamental Rule 56.
16. In the present case, the issue which has arisen is with regard to services rendered as work charged employee. The said Division Bench judgment in Board of Revenue' case was not with regard to work charge employee. Regulation 370 as noted above is relevant in the present case which is extracted below:
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 non-pensionable establishment;
(ii) periods of service in work - charged establishment; and
(iii) periods of service in a post paid form contingencies.
17. The Regulation 370 as quoted above expressly excluded the services rendered in work- charged establishment for purposes of pension. Fundamental Rule 56(e) on which reliance has beer placed by counsel for the appellant does not help the appellant in the present case. Rule 56(e) requires retiring pension to be paid in accordance with and subject to the provisions of the relevant rules. Fundamental Rule 56(e) is quoted as below:
56(e) A retiring pension shall be payable and other retirement 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 this rule.
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.
19. The appellant's case is also not covered by the Government Order dated 1.7.1989. 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.
20. 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.
21. The writ petitioner- appellant cannot in any manner be granted pension on the basis of only six years of regular service.
22. The appeal is dismissed.