Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Writ Petition (S/B) No.1422 of 2002 Ram Chandra Maithani ……. Petitioner Versus State of Uttar Pradesh through Secretary, Public Works Department, U.P., Lucknow and others. ……. Respondents …………… Sri Rajendra Dobhal, learned counsel for the petitioner. Smt.Beena Pandey, learned Standing Counsel for the State of U.P. /respondent No.1 Sri Paresh Tripathi, learned Brief Holder for the State of Uttarakhand / respondent Nos. 2 & 3. Date: May 14, 2008. Hon’ble P.C.Verma,J. This petition has been filed by the petitioner seeking writ of mandamus commanding the respondents to grant pension to the petitioner of the service rendered by him on the post of Beldar in the office of respondent No.2. A writ of mandamus has also been sought commanding the respondents to pay the salary of petitioner with effect from 01.06.1998 to 31.05.2000, the date, when the petitioner actually attained the age of retirement according to his date of birth, recorded in the service record as 02.05.1940. 2. The facts of the writ petition, in brief, are that the petitioner was appointed as Beldar on daily wages in the year 1971 in Public Works Department, Ghansali, District -Tehri Garhwal. He worked on the said post in the same capacity upto 04.07.1979. Thereafter he was appointed on temporary basis as Beldar in Public Works 2 Department, Ghansali, District-Tehri Garhwal and continued in the same capacity upto 14.12.1990. The petitioner was also given benefit of revised pay scale w.e.f. 01.01.1986 and his pay was fixed at Rs. 310.00 w.e.f. 01.01.1986 on the pay scale of Rs. 305-390. On 15.12.1990 the petitioner was given permanent appointment on the post of Beldar in the office of respondent No.2 and he worked in the said capacity upto 31.05.1998. The date of birth of the petitioner is 02.05.1940, which is also recorded in the service record. Due to negligence of officials of respondents, the petitioner was made retire from the post of Beldar on 31.05.1998 at the age of 58 years whereas the retirement age of Class –IV employee in Government Department is 60 years according to Rule 56 of Financial Hand Book, Volume II to IV. Before retirement the petitioner made a representation to the respondent No.2 on 02.04.1998 with the request to complete all formalities regarding pension to the petitioner, so that the matter regarding payment of pension to the petitioner be not delayed. On 22.4.1998 the respondent No.2 wrote a letter to the petitioner informing him that his regular service is less than 10 years, therefore, he is not entitled for pensionary benefit. The petitioner has completed more than 26 years service as Beldar in the office of respondent No.2 and as such he is eligible to get pension according to rules but the respondents are refusing the pensionary benefit to the petitioner illegally. Aggrieved with this, the petitioner has filed this petition. 3. The contention of the respondent Nos. 2 & 3 is that initially the petitioner was engaged on daily wages as 3 per availability of work in the department and subsequently the petitioner was engaged on monthly salary on 01.03.1980 on the post of Beldar. Thereafter by order dated 15.12.1990 the petitioner has been given regular appointment on the post of Beldar and on 31.05.1998 the petitioner has been retired from service after attaining the age of 58 years. It is also contended that according to the provisions of the Government Order dated 05.11.1985 the petitioner is not entitled for pension because he has not completed 10 years’ service as regular employee. 4. It is not disputed that the petitioner has worked as Beldar with effect from 01.03.1980. Thereafter on 15.12.1990 the petitioner was given regular appointment on the post of Beldar. The averment of the petitioner that he was engaged as Beldar on daily wages in the year 1971 has not strictly been denied by the respondents in the counter affidavit. Thus, apparently the respondent worked in the service of the respondents for almost 27 years. Perusal of the service-book of the petitioner shows that the employment of the petitioner has been mentioned as Beldar (Temporary). The entry of temporary appointment of the petitioner as Beldar with effect from 01.03.1980 in the service-book is also not disputed. The pension to the petitioner has been denied only on the ground that the petitioner has not completed 10 years’ regular service. 5. The learned counsel for the petitioner placed reliance of the case decided by Division Bench of Allahabad High Court in Special Appeal No. 743 of 2005, Board of Revenue and others versus Prasidh Narain 4 Upadhyay, reported in 2006 (62) Allahabad Law Reports Page 839. The Division Bench has affirmed the judgment passed by Hon’ble Single Judge in Writ Petition No.39298 of 2004, by which the same controversy has been resolved and dismissed the special appeal filed by the State (appellant). Para Nos. 12, 13, 14, 15 & 16 of the judgment passed in special appeal are reproduced as under:- “12. The term “qualifying service” is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions: (A) The service must be under Government. (B) The employment must be substantive and permanent. (C) The service must be paid by Government. 13. In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e., lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No.24 of 1975 which allows retirement of a temporary employee also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be 5 available to every Government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre- constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus, is inoperative. 14. A similar controversy came up for consideration earlier before this Court in the case of Dr.Hari Shankar Ashopa versus State of U.P. (1989(59) FLR, 110). After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations; this Court observed as under:- “Clause (e) of Rule 56 unequivocally recognizes, declares and guaranties retiring pension to every Government Servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) or Clause (b), or who is required to retire, or who is allowed to retire under Clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied.” 6 15. In this view of the matter, the contention of the appellants that since the petitioner-respondent was not a permanent confirmed employee and hence not entitled for pension, is clearly misconceived and is rejected. 16. Learned counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word “temporary” as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitioner-respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly. 6. In view of the aforesaid settled position of law, the denial of pension to the petitioner is wrong and illegal. The retirement of the petitioner at the age of 58 years is also against the provisions of Rule 56 of 7 Financial Hand Book, Volume II to IV. Therefore, it is provided that the service rendered by the petitioner from the date of his temporary appointment as mentioned in the service book shall be counted for pensionary benefit. However, it is made clear since the petitioner has been retired from service at the age of 58 years and he has not worked in the department thereafter, he shall not be paid any back wages but two years service shall be counted for pensionary benefit also. 7. With the aforesaid observation, the writ petition is allowed and the impugned order is set aside. No order as to costs. (P.C.Verma,J.) 14.05.2008 P.Singh 8