Hon'ble Ashok Pal Singh,J.
( By Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the parties and perused the record.
2. The appellant has filed this intra court appeal challenging the validity and correctness of the judgment and order dated 3.3.2011 passed by the Writ Court in Civil Misc. Writ Petition No. 43822 of 2008, Bhuneshar Rai versus the State of U.P. and others, whereby the aforesaid writ petition had been dismissed.
3. Brief facts giving rise to the instant appeal are that the appellant was working in work charge establishment as Chaukidar/helper since 26.6.1976 and continued to work as such till 30.4.2006. The proceedings for regularization was initiated by the respondents in April, 2006. The Executive Engineer issued letter dated 18.4.2006 directing the appellant to produce the certificates of educational qualification etc. for considering his case for regularization on 25.4.2006 so that formality could be completed. He retired on attaining age of superannuation on 30.4.2006.
4. It is contended that appellant ought to have been regularized in April, 2006 and that his entire services from 26.6.1976 be counted for his pension and other retiral benefits.
5. In support of his aforesaid contention, learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Punjab State Electricity Board and another versus Narata Singh, 2010-Laws (SC)-2-40, which has been relied upon by the learned Single Judge of this Court in the case of Mohd. Mustafa versus State of U.P., (2010 (1) ADJ-329 (All)(LB). holding that where the petitioner has put in 23 years of service including 113 months and 11 days i.e. 9 years 5 months & 11 days of regular service then denial of pension for not having completed 10 years of regular service, was not proper. In that case, the Court directed the respondents to grant pensionary benefit to the petitioner considering him to have completed 10 years of regular service and pay him regularly every month from the date of retirement. The State of U.P. preferred an appeal against the aforesaid judgment in re: Mohd. Mustafa versus State of U.P.(Special Appeal Defective No. 254 of 2013), State of U.P. and others versus Prem Chandra and others wherein the Court relying upon the judgment of the Apex Court in Punjab Electricity Board (supra) vide its judgment dated 13.5.2013 held that the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with the judgment of the Apex Court. Aggrieved , the State of U.P. preferred SLP (Civil) No. CC 22271 of 2013, State of U.P. and others versus Prem Chandra and others before the Apex Court, which was dismissed vide judgment and order dated 7.1.2014.
6. We may also refer to the judgments rendered in the cases of Board of Revenue and others versus Prasidh Narain Upadhyaya, (2006 (1) ESC-611 (All) (DB) and Bansh Gopal versus State of U.P., (2006(6) ADJ-384 (DB).
7. Learned Standing counsel does not dispute this legal position but contends that the appellant's case is not covered by the Government Order dated 1.7.89 which required that pension shall be payable also to temporary employee who have rendered at least 10 years of regular service; that 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 21.5.2005.
8. Before considering the case laws we may reproduce the G.O. dated 1.7.1989.
"vLFkk;h lsodksa gsrq isa'kujh ykHk mRrj izns'k ljdkj la0 lk& 3&[email protected]&[email protected] foRr ¼lkekU;½ vuqHkkx&3 y[kuÅ fnukad% 1 tqykbZ 1989 dk;kZyd&Kki fo"k;& vLFkk;h ljdkjh lsodksa dh lsok fuo`[email protected];q ij isa'kujh ykHkksa dh vuqeU;rkA mi;qZDr fo"k; ij v/kksgLrk{kjh dks ;g dgus dk funsZ'k gqvk gS fd flfoy lfoZl jsxqys'ku ds vuqPNsn 368 dh O;oLFkk ds vuqlkj jkT; ljdkj ds vUrxZr dh x;h lsok isa'ku gsrq rc rd vgZ ugh ekuh tkrh gS tc rd fd ljdkjh lsod fdlh in ij LFkk;h u gks x;k gksA ljdkjh lsodksa ds ;Fkk le; LFkk;hdj.k fd;s tkus gsrq 'kklu ds fo|eku vkns'kksa ds ckotwn dqN ekeyksa esa izfdz;k lEcU/kh vis{kk;s iwjh u gks ikus ds dkj.k lEcfU/kr deZpkjh LFkk;h gq, fcuk gh vf/ko"kZrk ij lsokfuo`Rr gks tkrs gS ftlls mUgs isa'kuh; ykHk vuqeU; ugh gSA 2& mijksDrkuqlkj vLFkk;h jgrs gq, lsokfuo`Rr gks tkus ds dkj.k ljdkjh lsodks dks gksus okyh dfBukb;ksa dks nwj fd;s tkus dk iz'u dkQh le; ls 'kklu ds fopkjk/khu jgk gS vkSj lE;d~ fopkjksijkUr jkT;iky egksn; us lg"kZ ;g vkns'k iznku fd;s gS fd ,sls ljdkjh lsodks dh ftUgksusa de ls de 10 o"kZ dh fu;fer lsok iw.kZ dj yh gks] vf/ko"kZrk ij lsok fuo`Rr gksus vFkok l{ke fpfdRlk izkf/kdkjh }kjk vkxs lsok djus gsrq iw.kZr;k v{ke ?kksf"kr dj fn;s tkus ij vf/ko"[email protected]'kDrrk isa'ku lsok fuo`fRr xzsP;qVh rFkk ikfjokfjd isa'ku mlh izdkj ,oa mUgh njksa ij ns; gksxh tSlk fd LFkk;h deZpkfj;ksa dks mUgh ifjfLFkfr;ksa esa laxr fu;eksa ds vUrxZr vuqeU; gksrh gSA 3& ;g O;oLFkk mu ekeyksa esa Hkh ykxw gksxh tgkW vLFkk;h jgrs gq, 20 o"kZ dh lsok iw.kZ djus vFkok 45 o"kZ dh vk;q iw.kZ djus] tks Hkh igys gks] ds mijkUr ewy fu;e 56 ds vUrxZr LosPN;k lsok fuo`Rr gksus dh vuqefr iznku dh x;h gksA 4& ;g vkns'k 1&6&89 ls ykxw ekus tk;saxsA mDr fnukad ls iwoZ vLFkk;h jgrs gq, vf/ko"[email protected]'kDdrrk ij vFkok LosPN;k lsokfuo`Rr gks pqds ,sls deZpkfj;ksa ds ekeyksa es tks mDr fnukad dks thfor gks] laxr O;oLFkkvksa ds vUrxZr fey pqdh xzsP;qVh] ;fn dksbZ gks] dk dksbZ iqujh{k.k ugh gksxhA ,sls ljdkjh lsodksa dks tks vLFkk;h jgrs gq, fnukad 1&6&89 ds iwoZ lsokfuo`Rr gks pqds Fks vkSj ftUgs mlds dkj.k dksbZ isa'ku vuqeU; ugh gqbZ Fkh] fnukad 1&6&89 ls lsokfuo`Rr ds iwoZ lsokfuo`fRr deZpkfj;ksa ds ekeyksa es vkSlr ifjyfC/k;ksa dk vk'k; ml osru ls gS tks mUgsa ewy osru 9 ¼21½ ds vUrxZr fey jgk Fkk rFkk 1&1&86 vFkok mlds mijkUr ds ekeyksa esa ifjyfC/k;ksa dk vk'k; ml osru ls gs tks ewy fu;e 9 ¼21½ ¼1½ esa ifjHkkf"kr gS fd 50 izfr'kr dh nj ls ml n'kk esa isa'ku vuqeU; gksxh tc lsokfuo`fRr ds iwoZ mUgksus 33 o"kZ dh vgZdkjh lsok iw.kZ dj yh gksA ;fn vgZdkjh lsok 33 o"kZ ls de jgh gks rks isa'ku mlh vuqikr es de gks tk;sxhA bl izdkj vkxf.kr ,sls deZpkfj;ksa dh isa'kuks dh tks fnukad 1&1&86 ds iwoZ lsokfuo`Rr gks pqds Fks foRr foHkkx }kjk fuxZr 'kklukns'k la[;k lk&4&[email protected]&37&[email protected] fnukad 28&7&87 ds jsMh&jsdulZ Hkkx&1 ,oa Hkkx&2 tSlh fLFkfr gks ds vuqlkj 608 ewY; lwpdkad ds cjkcj eagxkbZ jkgr dk ykHk nsrs gq, iqujhf{kr dj fn;k tk;sxk vkSj fnukad 1&6&89 ls iqujhf{kr /kujkf'k dk ykHk fn;k tk;xkA 5& bl dk;kZy; Kki ds vUrxZr isa'ku dk fdlh ,sls deZpkjh dks jkf'kdj.k vuqcU/k ugh gksxk tks fnukad 31&5&1974 vFkok mlds iwoZ lsokfuo`Rr gqvk gksA ;fn bl dk;kZy; Kki ds vUrxZr fdlh ,sls deZpkjh dks isa'ku nh tk; tks 31&5&1974 ds mijkUr lsokfuo`Rr gqvk gks rks mls 1&6&89 ds mijkUr vxyh tUe frfFk ds le; mldh vk;q ds le:i nj ij ewy isa'ku dh /kujkf'k ij jkf'kdj.k vuqeU; gksxk vkSj mldh isa'ku ls de dh x;h /kujkf'k mldks okLrfod lsokfuo`Rr fnukad ls 15 o"kZ ckn fjLVksj dj nh tk;sxhA 6& fnukad 1&8&1989 vFkok mlds ckn lsokfuo`[email protected];q ls ftu ekeyksa es mi;qZDr O;oLFkk dk ykHk fn;k tk;xk] muesa dkfeZd vuqHkkx&1 ds 'kklukns'k la[;k 19&8&1980 dkfeZd&1&fnukad 29&4&89 ds vUrxZr vkuqrksf"kd dk ykHk ns; ugh gksxkA Hkonh;] fot; d`".k lDlsuk] ¼izeq[klfpo½"
9. We may now proceed to consider the ratio laid in the judgments cited by the learned counsel for the appellant which has not been disputed by the learned Standing counsel.
10. In the case of Board of Revenue (supra) the respondent was appointed on the post of Collection Peon in 1962 on temporary basis and he was continued in service till the date of his retirement in 1999. In that case, it has been held by the Court that even in cases where an employee may not have worked as a permanent employee but had worked regular for more than 10 years, he is entitled for pension and other retiral benefits in view of Fundamental Rules 56 and Paras 361, 465 and 465-A of Regulations. Mere fact that he was neither confirmed nor regularized in service would not take away his right to get pension which flows from law and also from period of more than 10 years of continuous service which cannot be ignored.
11. Similarly in the case of Bansh Gopal (supra) the appellant therein had put in only six years of regular service and had not rendered 10 years of service regularly. Previously, the appellant was engaged as Muster Roll employee in the establishment and thereafter he was taken under work-charge establishment. In the present case, the appellant was given regular appointment as class IV employee. After his superannuation it was contended by the respondent that he had in fact put in six years of regular service and not 10 years of regular service as required in G.O. dated 1.7.1989, hence he was not granted pension.
12. Repelling this contention on consideration of the case laws and various provisions dismissing the writ petition the Court has held that in paragraph nos. 18 to 21 of the judgment thus:-
" 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 1.7.89. The Government Order required that pension shall be payable also to temporary employe 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 vs. 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."
13. For all these reasons the dispute in the present special appeal is no longer res-integra. The appellant has put in more than 10 years regular service as work charge employees w.e.f. 26.3.76 to 30.4.2006, hence he is entitled to the benefit of pension etc. in view of the law stated above.
14. Accordingly, the appeal is allowed and the impugned judgment and order dated 3.3.2011 is quashed.
Dated 18.9.2014 CPP/-