JUDGMENT S.N. Srivastava, J.
1. By way of the present writ petition, the petitioner made following prayers :
(i) To issue a writ, order or direction in the nature of mandamus directing the respondents to give pension to the petitioner in pursuance of G.O. dated 1.7.1989 (Annexure-6 to this petition) ;
(ii) To issue any other suitable writ, order or direction which may be deemed to be just and proper under the circumstances of the case.
2. According to Shri Ranjeet Saxena, learned counsel for the petitioner, the petitioner was appointed on 12.10.1964 in work charge establishment and worked till 30.12.1991, more than ten years, as such, he is entitled to get pension. He further urged that though he was not permanent employee and was continuing as temporary employee, he is entitled to get pension under Government order dated 1.7.1989 (Annexure-6 to the writ petition). He further relied on the following cases also in support of his contention that unconfirmed regular employee is also entitled to get pension :
(1) D.S. Nakara v. Union of India. 1983 (47) FLR 42.
(2) Bhaskar Gajanan Kajrekar v. Administrator, Dadra and Nagar Haveli and Ors., JT 1993 (Supp) SC 43.
(3) State of Orissa and Ors. v. Harihar Satpathy and Ors., 2000 (9) SCC 429.
3. Sri V.N. Agarwal, learned standing counsel opposed the prayer on the ground that the petitioner never worked continuously for ten years as temporary/regular employee. Sri Agarwal referred paragraphs 3, 7, 8 and 12 of the counter-affidavit, which indicate that the petitioner's services were terminated on 23.7.1977 and thereafter he was given fresh appointment on 10.8.1977 on his fresh application. The petitioner worked under the work charge establishment upto 9.1.1984 at Kalagarh on fixed scale. There was no post available at all but he worked on a fixed salary.
4. According to Mr. Agarwal, the petitioner was appointed on regular basis only on 26.2.1990 and retired on 31.12.1991 as such, he is not entitled to get pension and the case law relied by the learned counsel for the petitioner, are not applicable in the fact of the present case, as the petitioner never worked ten years continuously before his retirement on any post in any pay scale regularly.
5. After having considered the rival contentions of the parties and perusal of material on record as well as the case law relied on by the parties, I am of the view that a temporary and regular employee working in a Government Department in U.P. on any post in a pay scale on regular basis for ten years is entitled to get pension.
6. From perusal of the G.O. dated 1.7.1989, Annexure-6 to the writ petition, Government has already taken a policy decision that Government servant, who has completed 10 years of regular service, on completing the age of superannuation is entitled to get retirement/ inability pension in the similar situation and manner like permanent Government employees.
7. The regular Government servant means, a person working against a post carrying on a pay scale. If a person is not working against any post or is not getting the pay scale, he could not be said to be a person appointed and continuing regularly. Only regular employee, whether temporary or permanent, is entitled to get pension.
8. Regular appointment means the appointment made according to Rule and procedure. If against a post, a person was appointed in accordance with Rules in the procedure prescribed for Government servant, his appointment is regular appointment.
9. The paragraph 2 of Government order dated 1.7.1989, is being quoted below :
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10. My view is also supported by a judgment reported in 1989(1) SLJ 624. If he continues as temporary employee and is not confirmed even on the date of superannuation though completed 10 years service, he is entitled for pension fixed in accordance with law.
11. My view is supported by case law as follows.
12. This matter came for consideration for the first time in the year 1989. A Division Bench decision of this Court considered the matter that a Government servant, who is not permanent in Government service, he cannot be denied pension on completion of superannuation. Dr. Hari Shankar Asopa v. State of U.P. and Ors., 1989 ACJ 337.
Para 18 is produced below :
"In the instant case, indisputably Dr. Asopa who allowed to retire under Clause (c) of Rule 56 and the first and third conditions envisaged in Article 361 of the Regulations were satisfied. He, therefore, became qualified for a retiring pension notwithstanding the fact that he was not permanent on any of the posts held by him during the tenure of his continuous services of State Medical Colleges of Uttar Pradesh Government. Denial of retiring pension to Dr. Asopa on the ground of his not being permanent on any post of the Government service was clearly violative of Clause (e) of Rule 56 of the Rules. Condition contained in paragraph 2 of the order dated 21st February, 1983 (Annexure-10 to the writ petition), depriving Dr. Asopa of retiring pension cannot, therefore, be sustained. The contention of the learned standing counsel for the State of Uttar Pradesh that Dr. Asopa was not entitled to any pension lacks merit and has got to rejected."
13. This matter was again considered by Bhaskar Gajanan Kajrekar v. Administrator, Dadra and Nagar Haveli and Ors., JT 1993 (Supp) SC 43 :
Para 6 is produced below :
".................... .We, therefore, hold that the appellant having served the respondents for about thirteen years on June 14, 1967, when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time, he was entitled to be confirmed in the said post. In that view of the matter the appellant was confirmed employee when he retired from service on July 31, 1977."
14. In another case State of Orissa and others v. Harihar Satpathy and Ors., 2000 (9) SCC 429, is matter of work charge employee. In this case, department did not contest the application before the Central Administrative Tribunal. The Supreme Court did not interfere with the order on the ground that respondent being a petty employee and the department did not file any counter-affidavit before the Tribunal.
15. The proposition of law is very clear even if temporary and regular employee in the Government service appointed and if he is working on any post and has completed 10 years service, is entitled to get pension under law.
16. Now I deal with the present case. In the present case, the petitioner was never appointed against any post before 26.2.1990. According to his case, he was working in the work charge establishment since 1964. Documents filed by the petitioner do not support his contention that on the date of retirement, he was continuously working against any post in a pay scale as temporary Government servant.
17. From paragraphs 3 and 8 of the counter-affidavit, it is clear that due to coming to an end of the scheme, his services were terminated in July, 1977 and he was given fresh appointment in the work charge employment on his application dated 10.8.1977. He was not appointed against any post, but was continuing in the establishment as work charge employee on a fix salary. He did not get pay scale. For the first time, he was appointed against a post of Mechanic on 6,2.1990 in the pay scale of Rs. 950-1,500 and retired on 6.9.1991.
18. After considering the entire material on record, I am of the view that the petitioner has not completed 10 years Government service against any post, in any pay scale in the department, he is not entitled to get any pension.
19. The writ petition fails and is dismissed.
20. No order as to costs.