in brief, giving rise to the dispute, are as under.
The petitioner was initially appointed as peon on 1.12.1970, a Class IV post in Junior High School, Block Angautha, Mainpuri on a fixed emoluments of Rs.53/- per month. Subsequently, vide order dated 1.10.1996, the services were absorbed and regularized and he was placed in regular pay scale admissible to the said post. The said order was passed on the basis of the order dated 30.1.1996 passed by the Basic Shiksha Parishad. He retired from service on 31.08.1999. When he was denied payment of pension, he approached this Court by filing writ petition no. 41320 of 2004 which was disposed of vide order dated 4.10.2004 directing the Director of Education (Basic), U. P., Allahabad to consider the claim of petitioner and take a reasoned decision within a period of three months. In compliance of the said order, the Director of Education (Basic), U. P., Allahabad considered the claim of the petitioner and rejected the same on the ground that since he was absorbed and placed in regular service with effect from 1.10.1996 and has not completed ten years of qualifying service for payment of pension as the services rendered prior to his placement in regular pay scale were not liable to be added in the qualifying service hence he was not entitled for payment of any pension.
Learned counsel for the petitioner placing reliance on a judgment of the learned single Judge in the case of Beni Prasad Vs. State of U. P. and others {2011 (4) ADJ 585} has submitted that period of service rendered on fixed pay was liable to be added towards qualifying service for entitlement of pension and the same has wrongly been denied to the petitioner on the ground that he has not put in ten years of qualifying service.
In reply, learned counsel appearing for the respondents submitted that in view of the clarification issued by the State Government dated 8.8.1994 and 13th June, 2007, Annexure CA ''1' and CA ''2' to the counter affidavit, the services rendered on a fixed pay was not liable to be added for qualifying service for pension and since the petitioner was absorbed and placed in regular pay scale with effect from 1.10.1996 and having retired on 31.8.1999 he did not complete ten years qualifying service for pension.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
In the case of Beni Prasad Vs. State of U. P. and others (supra), the learned single Judge held that since the appointment was on substantive post on fixed pay hence subsequent placement in time scale of pay will not affect the status qua the post he was holding from earlier point of time and only distinction is that after placement in the time scale of pay, mode of payment got changed from fixed pay to time scale of pay and thus the services rendered on fixed pay was liable to be added towards qualifying service for earning pension. In the said case the appointment was found to have been made on substantive post on fixed pay.
However, the specific question whether the period of service rendered on fixed pay was liable to be added towards qualifying service in case of an employee of an institution of U. P. Basic Shiksha Parishad has been subject matter of adjudication by a Division Bench of this Court in the case of State of U. P. and others Vs. Gaya Ram, 2009 (2) AWC 1661. The facts of the aforesaid case are identical to the present case. The Division Bench of this Court in paragraph 15 of the report held as under :
"There is a difference in the nature of the appointment of temporary employee vis-avis an employee who is appointed on fixed salary. A temporary appointment can be made against a permanent or temporary post, whereas for the appointment on fixed pay there is no requirement of a post. Thus, there is a major difference in the nature of appointment of two classes of employees. Thus, the judgment in the case of Hans Raj Pandey (supra), in so far as it holds that the period of service rendered on fixed pay, prior to regularization, shall also be added in his qualifying service, cannot be upheld."
There is no material on record to indicate that appointment of the petitioner was made against a permanent or temporary post. Thus, the case of Beni Prasad Vs. State of U. P. and others (supra) is of no help to the petitioner.
Since in the case in hand, the services of the petitioner were regularized and he was placed in regular pay scale with effect from 1.10.1996 and he retired on attaining the age of superannuation on 31.8.1999, thus, only worked as a regular employee for a period of two years and eight months and in view of the law laid down by the Division Bench the services rendered prior to his regularization was not liable to be added towards qualifying period of ten years to become entitled for pension, his claim for pension has rightly been rejected.
In view of the above facts and discussions, the impugned order does not call for any interference. The writ petition accordingly fails and stands dismissed.
However, in the facts and circumstances, there shall be no order as to costs.