IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 451 OF 2003 (S/S) Dan Singh Bisht ……………..Petitioner. Versus Secretary Basic Siksha Parishad and others ………Respondents. Present: Mr. U.S. Bhakuni, Advocate present for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J.(Oral) The petitioner is directed to implead Secretary of Education, Uttarakhand as respondent no. 4. Necessary correction to be incorporated in the array of parties during the course of the day. The State counsel Sri N.P. Sah has accepted notice on behalf of respondent no. 4. He further adopts the arguments of the remaining respondents for respondent no. 4 as well. Heard Mr. U.S. Bhakuni, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner was appointed on 25.4.1977 on a regular substantive vacancy of a “chowkidar” (which is a class IV post) in “Madhyamik Vidyalaya Bhoolkharkwal Gaon”, District Almora, which as per the order dated 21.4.1977 (annexure no. RA 1 to the rejoinder affidavit) at the relevant time was under the control of a body known as “Uttar Pradesh Basic Siksha Parisahd”. “Uttar Pradesh Basic Siksha Parisahd” controls the elementary education in the State of Uttar Pradesh. Consequently vide order dated 24.8.1995 he was regularized in services. Now the petitioner reached the age of superannuation in June 2001. Since the petitioner was not being paid any post retirement benefit or pension he 2 was constrained to file representations dated 11.9.2002 and 28.6.2003. Since nothing happened on these representations the petitioner has filed the present writ petition. In the counter affidavit the State Government has come up with the stand that the pension is not payable to the petitioner on two grounds. Firstly he was working initially only on a consolidated salary and secondly he was regularized in the year 1995 and retired in 2001 and therefore he has not completed 10 years of service and he has not opted for pension. All the same, respondent has not been able to show whether there is any scheme for calling of such option and consequently whether any option has been called from the petitioner. A Full Bench of this Court in Madan Mohan Chaudhary Vs. State of Uttaranchal and others reported in 2011 (1) U.D., 6 has interpreted the Government order dated 1.7.1989 passed by the erstwhile State of Uttar Pradesh by which even this pension was liable to be given to those employees who have not been made permanent. The Full Bench of this Court was of the view that only such employee can be given pension who have though not completed 10 years as permanent employee but atleast have completed 10 years on a substantive vacancy and they have not considered the period of service rendered in work charge establishment for the purpose of qualifying service for pensionary benefits. Though such a pension as per the Full Bench has to be denied to the employees who have worked on a “work charge establishment”, yet by implication of the judgment of the Full Bench if a person has worked for more than 10 years on a regular vacancy he is liable to get such pension. 3 The case of the petitioner is that he has been working on substantive vacancy since 1977 and though he has been regularized in 1995 he has been working on a regular substantive vacancy. This assertion of the petitioner has not been denied by the state in its counter affidavit. Therefore this Court is of the considered view that since the petitioner has been working continuously on a permanent substantive vacancy since 1977 and consequently regularized in 1995, he is liable to be given pension. Hon’ble Apex Court in R. Kapoor Vs. Director of Inspection (Painting and Publication), Income Tax and Anr. reported in 1995(1) UPLBEC page 89, has held that the pension and gratuity are not bounty and it is a right of a retired government servant. The petitioner is therefore directed to file a representation before the Secretary, Education, Government of Uttarakhand. The Secretary, Education in view of observation of this Court and the law laid down by this Court and the Hon’ble Apex Court in such matters, shall consider the representation of the petitioner and pass appropriate order within three weeks from the date a certified copy of this order is produced before him. With the above observations, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 22.07.2011 Avneet