IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 80 of 2006 State of Uttarakhand and others . .……… Appellant Versus Smt. Revati Devi W/o Sri Baldev Joshi……… Respondent Hon’ble Tarun Agarwala, A.C.J. Hon’ble V.K. Bist, J. Heard Shri B.K. Gupta, Additional Advocate General for the State of Uttarakhand, the appellant and Shri C.D. Bahuguna, the learned counsel for the opposite party. 2. The present Special Appeal has been filed against the judgment dated 23/02/2006 passed by the learned Single Judge by which a writ of mandamus was issued directing the appellant to pay pension to the writ petitioner/respondent within one month from the date of the receipt of the copy of the said order alongwith interest @ 6% per annum. 3. The brief facts leading to the filing of the writ petition was that the petitioner was appointed as a Class-IV employee, namely, as a Chaukidar/Sevika on 28th June, 1980 on a temporary basis against a substantive vacancy in Kanya Junior High School, Kaladhungi, District Nainital. The record indicates that the petitioner’s services was regularized in a regular pay-scale w.e.f. 17th October, 1995 and that she retired w.e.f. 1st Otober, 2001. The petitioner applied for pensionary benefits and when the department failed to pay her the pensionary benefits, the writ petition was filed seeking a writ of mandamus. 2 4. The learned Single Judge after considering the material evidence on record found that the writ petitioner was entitled for pension and, accordingly issued a writ of mandamus commanding the respondents to pay pension alongwith interest @ 6% per annum. 5. The State Government, feeling aggrieved by the order of the learned Single Judge, has filed the present Special Appeal challenging the said order interalia on the following grounds, namely, that the petitioner was working on a non-pensionable post and in view of the Regulation 370 of the Civil Services Regulations, the petitioner was not entitled for any pension coupled with the fact that the period which the petitioner had spent on temporary basis was not liable to be included in the qualifying service. In this regard, the learned Addl. Advocate General also placed reliance upon a Government Order dated 22nd June, 1987 in which it was stipulated that a Government employee is required to work for ten years in a regular pay scale before becoming entitled for pensionary benefits. 6. Upon hearing the learned Addl. Advocate General and upon perusing the Government Order dated 22nd June, 1987 as well as Regulation 370, the Court finds that the submission of the learned counsel for the appellant is patently mis-conceived and bereft of merit. Neither the Government Order of 1987 nor the Regulation 370 has any application whatsoever to the present facts and circumstances of the case. The writ petitioner was appointed in a Junior High School which is governed by the U.P. Basic Education Act. Rules relating to pension has been framed which is known as U.P. State Aided Educational Institution Employee’s Contributing Provident Fund Insurance Pension Rules, 1960. These pension rules are for the employees who are 3 governed under the Basic Education Act. Rule 19 (kha) stipulates that if an employee who has worked on a temporary or officiating post continuously without any break in service and was subsequently made permanent, then the temporary or officiating period would be added in the qualifying service. Rule 21 of the said Rules provide that an employee having completed ten years of qualifying service would be entitled for pensionary benefits. 7. In the light of the aforesaid provisions, the petitioner’s appointment letter dated 28th June, 1980 clearly indicates that the petitioner was appointed on a temporary basis against a substantive vacancy. For reasons best known to the education department, the petitioner was not regularized in the regular pay scale presumably for vested reasons and was allowed to work on a temporary basis for 15 years continuously, and eventually, the respondents granted the petitioner regular pay scale in October, 1995. The appellant admits that the petitioner had worked continuously without any break in service from 1980 to 1995. Consequently, this court is of the opinion that service rendered by the writ petitioner from the date of her appointment in 1980 till October, 1995, i.e. the day when she was granted regular pay scale would be added in the qualifying service as provided under the Rule 19 (Kha) of the Rules 1960. The contention of the appellant that Regulation 370 and the Government Order of 22nd June, 1987 is applicable is patently erroneous. Since, specific rules has been framed for the employees working in Junior High Schools under the Basic Education Act, Regulation 370 has no application. 8. We also find that the writ petitioner retired in the year 2001. More than eight years have elapsed and she has not been paid her pensionary benefits which she is entitled under law. We are constrained to observe that the appellant instead of releasing her 4 pensionary benefits has un-necessarily filed this frivolous appeal. Consequently, we dismiss the appeal with cost of Rs. 20,000/- which shall be paid to the writ petitioner within four weeks from today. We further direct that the appellant shall release the pensionary benefits within the aforesaid period. (V.K. Bist, J.) (Tarun Agarwala, A.C.J.) 27.10.2009 Shiv/Bhaskar