- (1.) Heard Sri B. N. Upadhyay, learned Counsel for the petitioner and learned standing counsel.
(2.) The matter was entertained and a counter-affidavit had been called for, but no counter-affidavit has been filled on behalf of the State.
(3.) The petitioner was appointed on work charge basis under the financial Handbook with the respondent-Irrigation Department, Tube-well Division, in the year 1980 as an Armed Security Guard. The appointment was on a fixed emolument of Rs. 460 per month and the terms of appointment clearly indicated that it could be terminated at any time without notice. The appointment was made in the year 1980-81 which continued till 4.1.1987. It was discontinued for about 6 months and the petitioner was re-engaged w.e.f. 5.7.1987 till he attained the age of superannuation on 31.7.2004. Upon being superannuated, the petitioner was paid his gratuity but he contends that other retiral benefits treating him to be a permanent employee have not been extended. The submission in essence is that the petitioner's services should be treated to be at par with the permanent employees and he should be extended the benefits of pension as well as all other such emoluments which a similarly situated permanent employee is entitled to. To substantiate the said plea, the petitioner had earlier come up to this Court raising all such pleas by filing a writ petition, being Civil Misc. Writ Petition No. 24174 of 2006, which was disposed of on 3.5.2006 with a direction to the respondent No. 2 to examine the claim of the petitioner in the light of the law laid down in the case of Board of Revenue and Ors. v. Prasidh Narain Upadhyay, 2006 1 ESC 611The Executive Engineer proceeded to assess the contention of the petitioner and also the impact of the judgment in Prasidh Narain Upadhyay's case (supra) and it was found by the Executive Engineer that the petitioner's appointment was purely on work charge basis and, therefore, he did not inquire the status of a permanent employee and even otherwise there was a substantial break in his service in between January, 1987 to July, 1987 where after he was re-engaged. The other finding recorded is that the case of Prasidh Narain Upadhyay was that of a Collection Peon whereas that of the petitioner is an Armed Security Guard on work charge basis. The decision in the case of Prasidh Narain Upadhyay proceeds on the factual presumption accepted by the Court that Prasidh Narain Upadhyaya had continuously worked for 37 years and the respondent-State therein had failed to point out any break in service and in such circumstances, the Court found that a mere nomenclature of the services of Prasidh Narain Upadhyay would not alter his status and thereby he was allowed pensionary benefits. In the instant case, it is established that there is a break in service and even otherwise the petitioner has worked on a fixed emolument of Rs. 460 per month as revised from time to time. The Government orders, which govern the service conditions of work charge employees have been taken into account. In such a situation, the reasons given in Prasidh Narain Upadhyay's case would not be applicable on the facts of the present case.;