JUDGMENT Ashok Bhushan, J.
1. Heard Sri Sanjay Tripathi, counsel for the petitioner and Sri Ajay Bhanot, learned Standing Counsel appearing for the respondents. Counter and rejoinder-affidavits have been exchanged and both the parties have agreed that the writ petition itself be finally decided. Consequently, the writ petition is being finally decided.
2. Facts of the case as emerge from the pleadings of the parties are that the petitioner's husband late Sri Som Dutt Sharma was appointed as Panchayat Mantri on 12th August, 1958 in Vikas Khand, Budhana, District Muzaffarnagar. The post of Panchayat Mantri was designated as Gram Vikash Adhikari. He continued to work on the post till 21.12.1992 on which date he was compulsorily retired invoking the provisions of Fundamental Rule 56 of Financial Hand Book Vol. II, Part II to IV. At the time of compulsory retirement, Som Dutt Sharma was working on the post of Gram Panchayat Adhikari, Zila Panchayat Raj Adhikari, Muzaffarnagar vide his letter dated 14.1.1997 wrote to the Block Development Officer that pension papers of Sri Som Dutt Sharma be immediately prepared and sent. In the aforesaid letter, it was stated that by the letter dated 18.9.1993 pension papers of Sri Som Dutt Sharma were asked to be sent. It was directed that service book of Sri Sharma be sent so that papers be prepared for forwarding it to the Directorate. The Chief Development Officer also issued a letter dated 20.3.1997 with regard to preparation of pension papers of Sri Sharma. After some correspondence, the matter was ultimately forwarded to the Director of Pension and certain objections were raised with regard to petitioner's pension papers by the letter dated 17.2.1999, in reply to which letter dated 9.4.1999, was written by the Zila Panchayat Raj Adhikari, Muzaffarnagar complying the deficiency pointed out therein. Zila Panchayat Raj Adhikari in his letter dated 9.4.1999 has written that Som Dutt Sharma retired as temporary employee. He has further stated that his all service period qualify for pension and he has rendered more than thirty four years service. The letter dated 11.8.1999 was written by the Director of the Zila Panchayat Raj Adhikari and thereafter a similar letter dated 31.12.1999 was written by the Director of Pension to the Zila Panchayat Raj Adhikari informing that pensionary benefits are not liable to be given to the petitioner in view of paragraph 14 of the Government order dated 24.6.1996. It was further stated that the pensionary benefits are not payable also in accordance with the Government order dated 26.8.1989. Petitioner has prayed for quashing of the order dated 31.12.1999 Annexure-1 to the writ petition and sought a writ of mandamus commanding the respondents to pay the arrears of pension and gratuity to the petitioner of her husband from 1992 to 14.8.1997 and thereafter the family pension be paid from 15.8.1997. Current family pension was also prayed to be paid. Claim of interest was also made on pension and gratuity. Sri Som Dutt Sharma died on 14.8.1997.
3. Counter-affidavit has been filed by the respondents in which it has been stated that the petitioner's husband was compulsorily retired on 21.11.1992 and he died on 14.8.1997. It has been stated in the counter-affidavit that the petitioner's husband was compulsory retired on 21.11.1992 who was a temporary Government servant. It has been stated that by the Government order dated 1.7.1989, pensionary benefits were provided to the temporary Government servants who were superannuated at the age of 58 years or 60 years or opted voluntary retirement due to invalidity. It has further been stated that by guidelines as contained in Government order dated 24.6.1996 paragraph 14 clarifies that the temporary Government servants who have been compulsory retired are not covered by the Government order dated 1.7.1989. Due to above reason, the entitlement of the petitioner was denied. The petitioner filed rejoinder-affidavit reiterating her claim in the writ petition.
4. After having heard counsel for the parties and perusing the record, it is clear that there is no dispute between the parties regarding the facts of the case. The petitioner's husband was compulsorily retired as temporary Government servant after rendering 34 years' of service. It is admitted in the counter-affidavit that in accordance with the Government border dated 1.7.1989, the temporary Government servants who retired after completing 58/60 years of age or voluntarily retired from service are entitled to pensionary benefits. It has been submitted that the temporary Government servant who has compulsorily retired is not entitled for the pensionary benefits.
5. From the submissions of the counsel for both the parties and from the pleadings of parties, following questions arise for determination :
1. Whether temporary Government servants who are compulsorily retired in accordance with Fundamental Rule 56 of F.H.B. Vol. II, Parts II to IV, are not entitled for pensionary benefits?
2. Whether pensionary benefits to temporary Government servants compulsorily retired can be denied on the strength of Government order dated 1.7.1989 as well as guideline of paragraph 14 issued by the State Government along with the Government order dated 24.6.1996 read with Government order dated 28.7.1989?
6. The provisions relating to sanction of pensionary benefits to a Government servant are contained in Civil Service Regulations framed by the Government. The qualifying service and other provisions pertaining to entitlement of pensionary benefits have been provided in Civil Service Regulations. Regulation 361 of Civil Service Regulations provides that service of an officer does not qualify for pension unless the employment is substantive and permanent. Regulation 361 of the Civil Service Regulations is quoted as below :
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions :
First.--The service must be under Government.
Second.--The employment must be substantive and permanent.
Third.--The service must be paid by Government.
These three conditions are fully explained in the following section."
7. There are four kinds of pensions as defined in Regulation 424. Regulation 424 is quoted below :
"424. Pensions for "Superior and Inferior Services" are divided into four classes, the rules for which are prescribed in the following sections of this Chapter.
8. Superannuation pension is granted to an officer In superior or inferior service entitled or compelled, by rule, to retire at a particular age. Regulation 465 deals with retiring pension. Regulation 465 is quoted as below :
"465. (1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years.
(2) A retiring pension is also granted to a Government servant who is required by Government to retire after attaining the age of 50 years."
9. The age of retirement of a Government servant is prescribed under Fundamental Rule 56 of F.H.B. Vol. II, Parts II to IV. Fundamental Rule 56 is quoted below :
"56. (a) Except as otherwise provided in this rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of sixty years except in very special circumstances.
(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after that date, except in very special circumstances and with sanction of the Government.
(c) Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant whether permanent or temporary, without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining of forty five years age or after he has qualifying service of twenty years.
(d) The period of such notice shall be three months :
Provided that :
(i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement.
(ii) It shall be open to the appointing authority to allow Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice.
Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceedings the Government servant shall be informed before the expiry of his notice that it has not been accepted.
Provided also that the notice once given by a Government servant under Clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.
(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.
Provided that where a Government servant who Voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.
Explanation.--(1) The decision of the appointing authority under Clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest."
10. Fundamental Rule 56 empowers the Government to compulsorily retire a Government servant after he attains the age of 58 years. The same provision, i.e., Sub-clause (c) also provides that Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of 45 years or after completing qualifying service of 20 years. Sub-clause (e) of fundamental Rule 56 is relevant for the present controversy. Sub-clause (e) provides that the 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. Fundamental Rule 56 (e) thus clearly contemplates payment of retiring pension in both categories, i.e., voluntary retirement and compulsory retirement. Fundamental rule thus mandates for payment of retiring pension even to a person who has compulsorily retired. Thus, the rule does not make any distinction with regard to payment of retiring pension to a person who has voluntarily retired or has been compulsorily retired. By Government order dated 1.7.1989, it was provided that temporary Government servants who have rendered ten years regular service are also entitled for the retirement benefits. The aforesaid Government order was issued with intent to extend the pensionary benefits to temporary Government servants, which is clear from the first paragraph of the Government order.
Paragraph 2 of the Government order further provides that those temporary Government servants who have completed minimum ten years regular service on the date of retirement/ superannuation or who have been declared Invalid by the appointing authority will be entitled to the superannuation/ invalid pension, gratuity, family pension as admissible to a permanent employee. Paragraph 3 further provides that this provision will also be applicable in those cases where permission has been granted for voluntary retirement in accordance with the fundamental Rule 56. The Government order does not specifically provide that the persons who are compulsorily retired will not be given the benefit. Reliance has been placed on the guidelines of Clause 14 circulated along with Government order dated 24.6.1996. The aforesaid Clause (14) provides :
^^14- vfuok;Z lsokfuo`fRr 1-7-1989 ds 'kklukns'k ls vkPNkfnr ugh gS vr% vfuok;Z lsokfuo`fRr ij isa'ku dh ns;rk ds fy, LFkkbZ gksuk vko';d gS A**
11. From the aforesaid guidelines, it is clear that the said guidelines are not an independent provision in force but the said guidelines have been issued for guidance of pension sanctioning authority. Thus, the consequence of the Government order dated 1.7.1989 has to be looked into while deciding as to whether the temporary Government servant compulsorily retired is entitled or not entitled for the pensionary benefits. As observed above, the aforesaid Government order was issued with intent and object of Government extending pensionary benefits to temporary Government servants who have completed ten years of regular service. The provisions of Rule 56 (c) of Fundamental Rules has clearly provided that notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant whether permanent or temporary, without assigning any reason, require him to retire after he attains the age of fifty years.............Thus, the provisions of Fundamental Rule 56 are applicable both on permanent and temporary employees as noted above, sub-rule (e) of Rule 56 mandates grant of retiring pension to every Government servant who retires or is required or allowed to retire, under this rule. The opening line of Rule 56 (e) are of significance which provides ................retiring pension shall be payable. Thus, the intendment of Rule 56 (e) is to provide retirement pension to every Government servant who retires or is required to retire under Rule 56. Thus the intendment of statutory Rule 56 (e) is to extend benefit of retiring pension to both category of persons, i.e., persons compulsory retired or persons voluntarily retired. From the above intendment of rule, it is clear that no distinction or discrimination has been maintained with regard to payment of retiring pension to persons voluntarily retired or compulsorily retired. Thus, by Government order dated 1.7.1989 the temporary Government servant compulsorily retired cannot be excluded from benefits of retiring pension. When the statutory Rule, i.e., 56 (e) does not maintain any distinction with regard to payment of retiring pension to persons compulsorily retired and voluntarily retired, no such classification can be created by a Government order, which is an executive order. The object of the Government order as noted above was to extend pensionary benefits to temporary Government servants who have rendered ten years regular service. Thus, the persons compulsorily retired cannot be excluded from the pensionary benefits and if it is accepted that the Government order dated 1.7.1989 creates such classification, then the said classification will be arbitrary and unreasonable. It is thus held that the benefit of Government order dated 1.7.1989, is also available to the temporary Government servants who are compulsorily retired. There is no rational basis for any such classification nor there can be any valid object for such classification.
12. Learned standing counsel Sri Ajay Bhanot has laid much emphasis on the words ^^nl o"kZ dh fu;fer lsok** as used in the Government order dated 1.7.1989. The submission of the learned standing counsel was that the petitioner was only temporary Government servant, hence he cannot be said to have rendered regular ten years service ; hence he is not entitled for the benefit of Government order dated 1.7.1989. The words ^^nl o"kZ dh fu;fer lsok iw.kZ dj yh gks A** used in the Government order dated 1.7.1989, means completion of ten years regular service. Words "regular service" has not been defined in the Government order. From a reading of the Government order, it is clear that the word "ten years regular service" has been referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent is automatically entitled for pension. The Government order dated 1.7.1989 does not contemplate ten years substantive service. The word "regular service" used in the Government order is not anonymous to substantive service. Admittedly, the benefit by Government order is to be extended to temporary Government servants. The temporary Government servant cannot be said to have substantive or regular service. Thus, the word "regular service" used in the Government order dated 1.7.1989 has not been used as specifying the capacity or status of its holder rather. The word "regular service" has been used to denote and specify the nature of service rendered. The emphasis is that service should be "regular". While defining the word 'regular', the Apex Court in Mrs. Raj Kanta v. Financial Commissioner, Punjab and another, AIR 198O SC 1464, has held in paragraph 10 as under :
"To begin with, the word "regular" is derived from the word "regula" which means 'rule' and its first and legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode. In Words and Phrases (Vol. 36A P. 241) the word "regular" has been defined as 'steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule, standard, or pattern'. It is further stated in the said Book that 'regular' means steady or uniform in course, practice, or occurrence, not subject to unexplained or irrational variation. The word 'regular' means in a regular manner, methodically, in due order. Similarly, Webster's New World "Dictionary defines 'regular' as 'consistent or habitual in action', not changing, uniform, conforming to a standard or to a generally accepted rule or mode of conduct'."
From the above passage of the Apex Court's judgment, it is clear that service of a temporary employee should be in regular manner, methodically, in due order.
13. Government order dated 1.7.1989 meant ten years of temporary Government servant should be regular in nature meaning thereby that if the temporary Government servant has performed his duties irregularly, i.e, with gaps of years, his service may not be treated to be regular. Thus, the contention of the learned standing counsel that the word "regular service" used in the Government order means substantive service or service rendered by an employee in regular capacity cannot be accepted. Sri Som Dutt Sharma had admittedly rendered 34 years service and District Panchayat Raj Officer who is appointing authority has already recommended for grant of pensionary benefits by holding that his entire 34 years' service qualify for pension. In view of the above, Sri Sharma had completed ten years of regular service as contemplated in the Government order dated 1.7.1989.
14. From the foregoing discussions it is clear that Sri Sharma who had rendered 34 years of service in Panchayat Raj Department, though in temporary capacity, was entitled to pensionary benefits, he was also entitled for the benefit of Government order dated 1,7.1989 and if the interpretation as given by the respondent is accepted that the Government order excluded the temporary Government servants who have compulsorily retired, the said Government order will become bad on account of unreasonable and arbitrary classification. Furthermore, as observed above, statutory Fundamental Rule 56, Sub-clause (e) mandates grant of retiring pension to both the temporary Government servant compulsorily retired or voluntarily retired Government servant. The Government order dated 1.7.1989 has to be read subject to the Fundamental Rule 56 (e).
15. In view of the foregoing discussions, the writ petition succeeds and is allowed. The order dated 31.12.1999, Annexure-1 to the writ petition is quashed. The respondents are directed to give pensionary benefits to which late Som Dutt Sharma was entitled during his life time and pay the same to the petitioner. Petitioner's entitlement for family pension may also be considered and necessary orders regarding payment of family pension be also passed by the respondent. However, in view of the facts of the present case, the petitioner is not entitled for payment of any interest on pensionary benefits. Necessary orders with regard to payment of family pension be issued within a period of three months from the date of production of a certified copy of this order and payment of pensionary benefits of the deceased be also completed within a period of six months.