JUDGMENT V.C. Misra, J.
1. Heard Sri D.K. Srivastava, learned Counsel for the petitioner, learned standing counsel and perused the record of the case. Counter and rejoinder affidavit have been exchanged. On the joint request of learned Counsel for the parties, this writ petition is being decided finally at the admission stage itself in terms of the Rules of the Court.
2. The facts of the case of the petitioner in brief are that the petitioner was appointed on 29.12.1966 to the post of Boring Mechanic in the office of the respondents, and his services were regularised w.e.f. 1.4.1975. He was promoted to the post of Junior Engineer on 7.7.1983 and continued to discharge his duties as such till he attained the age of superannuation i.e. 31.7.2004. The respondents did not release his post retiral benefits, as pension Gratuity, G.P.F. etc, therefore, he filed writ petition No. 5416 of 2004 before this Court which was disposed off with the direction to the respondents to decide the representation of the petitioner expeditiously. Since his representation was not decided by the respondents in terms of the direction issued by this court, the petitioner invoked the jurisdiction of this court in Contempt Petition No. 1048 of 2005 and only when the respondents were directed to appear in person before the Court, the respondents passed order dated 10.5.2005 for payment of retiral benefits, but they wrongly fixed vide impugned order dated 13.9.2005 his salary @ Rs. 6375/- per month for the purpose of his pension against the post of Boring Mechanic, though the petitioner had worked for more than 23 years on the post of Junior Engineer on the ground that the petitioner had not been regularised on the post of Junior Engineer and, therefore, he was not entitled for promotional pay scale of Class II.
3. Being aggrieved the petitioner has filed the present writ petition for quashing impugned order dated 13.9.2005 to the extent whereby the petitioner was treated as having retired from the post of Boring Mechanic and he was not entitled to get the benefit of promotional pay scale of Class II. The relief sought in the writ petition is in the nature of mandamus directing the respondents to fix the pension of the petitioner against the post of Junior Engineer and to release Rs. 59,915/- as gratuity amount available to him and to fix monthly pension providing increment for the year 2001-2004 after consequential relief.
4. In support of his case the petitioner has enclosed the order dated 31.7.2004 (Annexure No. 3 to the writ petition) passed by the Block Development Officer, Hollagarh, Allahabad, wherein he has been shown as Junior Engineer in the irrigation department. The impugned order at the bottom has also a reference to the effect that the petitioner had worked on the post of Junior Engineer in stop-gap arrangement and was also paid salary in the pay scale of Junior Engineer. Learned Counsel for the petitioner contended that vide order dated 5.12.2005 the respondents illegally and arbitrarily withheld the payment of Rs. 59,915 towards gratuity. This was against the provisions of C.C.R. Rules and in contravention of Article 351(A) and Article 41 of the Constitution of India. In para 14 of the writ petition it has been stated that junior persons to the petitioner including other similarly situated employees had been awarded promotional pay scale of Rs. 8000-13500 w.e.f. 1.4.1997, whereas the said pay scale was not provided to the petitioner Arbitrarily and illegally.
5. Learned Counsel for the petitioner has relied upon decisions of this court passed on 14.12.1999 in writ petition No. 3491 of 1088, Abhimanyu Dev Pandey v. State of U.P. and Ors. and on 18.10.2606 in Writ Petition No. 1783 (S/S) 2004, Shamim Ahmad Siddique v. The State of U.P. and Ors., wherein the incumbents were similarly situated person who had been appointed as Boring Mechanic and thereafter promoted to the post of Junior Engineer on stop-gab arrangement and had worked continuously several years till the date of their retirements. The said writ petitions have been allowed on the ground that they had worked on the post of Junior Engineer for substantial period, which could not be ignored while settling the pension and for payment of other retiral benefits admissible to them. He has relied upon a decision rendered in the case of State of Dr. Uma Agrawal v. State of U.P. and Anr. , wherein it has been held that pension is not a bounty but right of retired employee. Government is obliged to initiate process for payment according to time-schedule prescribed in the departmental rules. Non-observance of the time-schedule is one of the factors which court may take note of. He has also relied upon a decision of the Hon'ble Apex Court rendered in the case of Vijay L. Mehrotra v. State of U.P. and Ors. AIR 2000 S.C. 3513 (2), wherein it has been observed that the State is liable to pay simple interest at the rate of 18% per annum, if the retrial benefits are wrongly withheld.
6. Learned Counsel for the petitioner submitted that Office Memorandum No. Sa. 3-1152/Das-915/89, Lucknow: dated 1 July, 1989, was issued by the Government of U.P. for providing retiral benefits to the Government employees who retired without their services being regularised and as to how their services were to be regularised. The Regulation 368 of Civil Service Regulation is not available to the Government Servant unless and until he is not regularised on the said post. The aforesaid Government Order was issued for the removal of such difficulties, since there was grievance of a lot of retired employees who were working on ad hoc basis in stop gap arrangement and regularisation of their services though had been granted for consideration, but the Government due to fulfilment of certain technicality in the process of regularisation could not do so. The incumbent retired on attaining the age of superannuation and he was deprived of his pensionary benefits. In Clause-2 itself it has been mentioned that the State Government has been pleased to provide the benefit of pension, gratuity and family pension etc to such Government servants who though had not been regularised put had completed their 10 years regular service and had been retired on attaining the age of superannuation and that they would be treated at par with the permanent employee on the said post. In Clause 3 it has been provided that the said condition shall also be applied in case the incumbent has completed 20 years of temporary service. This order has been made applicable and effective from 1.6.1989 vide the aforesaid Office Memorandum.
7. The Regulation 361 of the Civil Service Regulations (hereinafter referred to as the (CSR) service of an official does not qualify for pension wherein it has been laid down that unless it conforms to the following three conditions: i.e. first, the service must be under Government, secondly the employment must be substantive and permanent and thirdly, the salary must be paid by Government.
8. Further Regulation 370 provides that Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except-
(i) periods of temporary or officiating service in non-pensionable establishment;
(ii) periods of service in work-charged establishment; and
(iii) periods of service in a post paid form contingencies, (The amendment takes effect from April 20, 1977)
9. In the counter affidavit, the respondents in support of the impugned order has stated that services of the petitioner had not been regularised by the competent authority on the post of Junior Engineer since he had been working on the stop gap arrangement, as referred to herein above as Junior Engineer in minor irrigation department in terms of the order dated 5.7.1983 till the date of his retirement i.e. 31.7.2004 and, therefore, he was not entitled to any pensionary benefits on the sole ground of having worked on the said post for the said period, at par with regulation and since all the retiral benefits have been released in favour of the petitioner on the substantive post of boring mechanic on which he was posted and regularised in terms of the departmental rules of stop gap arrangement and had not been regularised in accordance with the rules and regulations on the post of junior engineer and that the petitioner had been wrongly provided senior grade pay scale at Rs. 1640-2900. Accordingly, his representation has been rightly rejected. It is stated in para 13 of the counter affidavit that the Senior Grade Rs. 1640-2900 was wrongly and illegally provided to the petitioner which was subsequently cancelled by the prescribed authority-Executive Engineer minor irrigation, Allahabad vide order dated 5.6.1996 and the entire excess amount of Rs. 59995/- so paid by way of salary was order to be recovered/adjusted and, therefore, the same was validly withheld.
10. Having heard the learned Counsel for the parties at length and perused the entire record including decision and relevant Government Orders, I find that petitioner had been promoted on the stop gap arrangement though he was never formally promoted on the said post of Junior Engineer (Minor Irrigation) on regular basis but the work was being taken from him as junior engineer and salary was also being paid on the pay scale of junior engineer with all benefits of the increment in pay scale as such available for the said post from time to time which was rightly said to be not recoverable as per the impugned order dated 13.9.2005. More so, as it is now settled law that once salary has been paid to an employee on higher pay scale not because of any fraud or fault on the part of the said employee the same cannot be recovered from him. Thus, the order of recovery/adjustment as per order dated 19.3.2005 (Annexure No. 14 to the counter affidavit) passed by the Block Development Officer, Hollagarh, Allahabad is not justifiable and sustainable in the eyes of law. The petitioner is also entitled to all retiral benefits available to a permanent Junior Engineer as he has served on the said post as such and was being paid salary for more than 10 years as required in terms of Clause 2 of the aforesaid G.O./Office Memorandum dated 1.7.1989 for more than 20 years of temporary service by way of stop gap arrangement on the post of Junior Engineer in terms of Clause 3. In the present case, the petitioner fulfils all the conditions and, therefore, he was qualified for the pension, having been retired as Junior Engineer on which post, admittedly, he had been continuing to work as such though on temporary or officiating capacity in service, under the orders of the authority concerned without interruptions and, therefore, no reason seems to take a different view, in the case of the petitioner as the same view has already been taken by this Court while disposing the writ petition No. 3491 of 1988 (Abhimanyu Dev Pandey v. State of U.P.) and writ petition No. 1782 (s/s) 2004 (Shamim Ahmad Siddique v. State of U.P.) similarly placed boring technician who promoted as Junior Engineer as the petitioner was promoted and they had been allowed pensionary benefits of the post of Junior Engineer. In the present case, there is no dispute that the petitioner worked as Junior Engineer till he attained the age of superannuation. The petitioner was allowed higher pay scale than that of the boring technician right from date of his promotion on the post of Junior Engineer till the date of his superannuation and the petitioner had been discharging duties and responsibility of the said post as such, therefore period of services of the petitioner cannot be ignored by the respondents while settling the pension and payment of other retiral benefits admissible to him.
11. Accordingly, the impugned order dated 13.9.2005 (Annexure No. 5 to the writ petition) passed by respondent No. 4 is hereby quashed. The writ petition is allowed. The respondents are directed to calculate and settle the pension of the petitioner and pay all post retiral benefit to him taking into consideration that he had worked on the post of Junior Engineer w.e.f. 7.7.1983 till the date of his retirement i.e. 31.7.2004 and shall also release the amount so recovered/adjusted vide dated 19.3.2005 (Annexure No. 14 to the counter affidavit) passed by the Block Development Officer, Hollagarh, Allahabad within a period of three months from he date of production of a certified copy of this order before the authority concerned. However, it is also provided that the petitioner shall cooperate with the pension sanctioning authority. No order as to costs.