JUDGMENT Tarun Agarwala, J.
1. Heard Sri Digvijay Tiwari learned Counsel for the petitioner, Sri K.K. Chandra learned standing counsel appearing for respondent No. 1 and Sri R.K. Srivastava learned Counsel appearing for respondents No. 2, 3, 4 and 5. The petitioner was appointed as a Sewak w.e.f. 5.11.1974 on a temporary basis in a fixed pay in Junior High School Dhadha, Vikas Kshetra Hata, district Deoria and since then, had been continuously working without any break in service. By an order dated 19.9.1997, the District Basic Shiksha Adhikari directed the payment of regular pay to the petitioner (as is clear from the endorsement made in the service book of the petitioner). The petitioner retired on 21.3.2006 upon attaining the age of superannuation after serving for more than 31 years. The petitioner applied for the; post retirement benefits, i.e. pension, gratuity, etc. and since his grievance was riot) being attended to, the petitioner filed writ petition No. 8915 of 2007, which was disposed of by a direction of this Court dated 20.2.2007, directing the District Basic Shiksha Adhikari, Deoria to consider and decide the claim of the petitioner in accordance with law within three months. Based on the aforesaid direction; the District Basic Shiksha Adhikari, by an order dated 25.5.2007, rejected the claim of the petitioner holding that he was not entitled for pension since he had not put in ten years of regular service, which was the minimum qualifying service as per the Government Order dated 1st July 1989.
2. The Government order dated 1st July 1989 contemplates that a temporary employee would be entitled for pensionary benefits provided he had put in ten years of regular service. In the light of this Government order, the learned Counsel for the respondents submitted that the service of the petitioner was regularised on 19.7.1997 and the petitioner had retired on 21.3.2006 and consequently, the; petitioner had put n less than ten years of regular service, as such, he was not entitled for any pensionary benefit in view of the government order dated 1.7.1989. The learned Counsel also placed reliance upon a Division Bench decision of this Court in Vansh Gopql v. State of U.P. (2006 (3) ESC 2248, which is al o based on the said government order dated 1.7.1989.
3. In my opinion, the Government order dated 1.7.1989 is not applicable to the petitioner's case, consequently, the judgment of the Division Bench, based on the said ?Aliment order, is also not applicable to the present facts and circumstances of the case. The petitioner was appointed as a peon in an educational institution. The Uttar Pradesh Contributory Provident Fund, Insurance, Pension Rules is applicable to the petitioner. Chapter V of the said Rules provides provision for pension. Rule 17 provides that an employee shall be eligible for pension on reaching the age of superannuation and in the case of voluntary retirement, after completion of 25 years of qualifying service. Rule 19 provides as to when pension would be payable. To facilitate, the provision of Rule 19 is quoted here in:
Rule 19. (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment.
(b) Continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also, count as qualifying service.
(c) Leave without allowance, suspension allowed to stand as specific penalty, overstayed of joining time or leave not subsequently regularised and period of breaks in service shall not be reckoned as qualifying service.
(d) Period of breaks between 2 periods of service due to termination of service, for no fault of the employee shall not be treated as interruption involving forfeiture of post qualifying service. In other cases breaks due to other causes shall result in forfeiture of past service unless condoned by Government.
(e) Time passed on earned leave shall fully count as qualifying service, but time passed on other kinds leave with allowances shall count as qualifying service as follows:
(i) If the total service is not less than 13 years, but less than 30 years, one year of such leave shall count as qualifying service;
(ii) If the total service is not less than 30 years, two years of such leave shall counts as qualifying service.
Notes-(1) The term 'Earned Leave means leave on full average pay.
(2) In case of a married woman employe time passed on maternity leave may be allowed to count as qualifying service, provided that the period covered by such leave and also earned leave shall not exceed what would have been admissible had she availed of the whole of the earned leave to which she was entitled under the rules.
(3) Total Service means total service reckoning from the date of commencement of service qualifying for pension and includes periods of leave referred to above.
(4) The service put in by an employee before he has completed 18 years of age or after attaining the age of superannuation unless extended by competent authority or on re-employment after retirement shall not qualify for pension.
(5) The entry relating to confirmation of an employee in the service book shall be countersigned.
(6) In cases not covered by these rules qualifying service shall be determined by Government and its decision shall be final.
4. The aforesaid provision indicates that the service will not count for pension unless the employee holds a substantive post in a permanent establishment. In the present case, admittedly the petitioner was working in a permanent establishment Consequently this aspect is covered. The question is whether the petitioner was holding a substantive post. The petitioner at the time of his retirement, was holding a substantive post. Consequently the petitioner is covered under Rule 19(a). Rule 19(b) provides that continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. Qualifying service has not been defined under these rules but the term "qualifying service" is defined in Chapter 16 of Rule 361 of the Civil Service Regulations which provides that the service of an officer does not qualify for pension unless it conforms to following three conditions:
a) the service must be under the Government;
b) The employment must be substantive and permanent; and
c) the service must be paid by Government.
In the present case all the three conditions are existing in favour of the petitioner. In my opinion, the petitioner is entitled to the benefit of Rule 19(b). The petitioner was appointed on a temporary post on a fixed term and he continued in that position for several years without any break in service and ultimately by an order of the District Basic Shiksha Adhikari dated 19.9.1997 the petitioner was provided regular pay. In my view the continuous temporary appointment of the petitioner from 1974 would also count as qualifying service under Rule 19(b). Consequently, the petitioner having worked for more than ten years, is entitled to the pension under Rule 17 of the Rules. In view of the aforesaid, the impugned order of the District Basic Shiksha Adhikari can not be sustained and is quashed. The writ petition is allowed. A mandamus is issued to the respondents to grant pensionary benefits to the petitioner within three months from the date of the presentation of the certified copy of this order. In the circumstances of the case, the parties shall bear their own costs.