ASHOK BHUSHAN, J. - (1.) HEARD Counsel for the petitioner and the learned standing Counsel. Counter and rejoinder affidavits have been exchanged with the consent of the parties, the writ petition is being finally decided.
(2.) THE facts of the case as emerge from the pleadings of the parties are; Petitioner No. 1 Sabir Ali was appointed as 'Bandi Rakshak'/ Warder on 6th March, 1972 on temporary basis by the Superintendent Jail, Bareilly. Petitioner No. 2, Prakash Chandra Lyall was also appointed as 'Bandi Rakshak'/Warder on 1st December, 1974 on temporary basis by the Superintendent Jail, Bareilly. Both the petitioners continued to discharge duties on their respective posts from the date of their initial appointments and were given pay scale of 'Bandi Rakshak'/Warder, selection grade and super selection grade. Deductions towards G.P.F. and Insurance was also made with effect from 1982. After attaining age of 58 years Petitioner No. 1 was superannuated on 31 -7 -2000 and the Petitioner No. 2 was superannuated on 30 -6 -2000. Letters of retirement were issued to Petitioner Nos. 1 and 2 dated 31 -7 -2000 and 30 -6 -2000 respectively. In both the aforesaid retirement letters petitioners have been referred as temporary employees. Petitioner No. 1 rendered 28 years of service whereas the Petitioner No. 2 rendered 26 years of service. Petitioners claim that they are entitled for all retirement benefits including the gratuity, pension, leave encashment etc. Petitioner's papers along with service books were sent to the Joint Director, (Treasury and Pension) but the same were returned with the endorsement that the petitioners retired on the post of 'Bandi Rakshak'/Warder as ad hoc temporary employees hence pension is not admissible to them. The aforesaid letter dated 28 -8 -2000 with regard to the Petitioner No. 1 and 25 -8 -2000 with regard to Petitioner No. 2 of the Joint Director (Treasury and Pension) have been annexed as Annexures -3 and 4 to the writ petition. Petitioners' claim that they were entitled to be regularised in accordance with rules, namely, U.P. Regularisation of Ad hoc Appointments (on Posts out side the purview of Public Service Commission) Rules, 1979 and it was due to inaction and negligence of the respondents that their servicers could not be regualrised. The petitioners have also placed reliance on the Government order dated 1 -7 -1989 to the effect that the temporary Government servants who have completed ten years of regular service are entitled for pension. Respondent wrote to the Director General, Karagar Prashasan Evam Sudhar Sevayen, Uttar Pradesh, Lucknow, stating that papers for regularisation of the petitioners have already been forwarded by letter dated 4 -7 -1999 and the petitioners have already attained the age of superannuation but orders have not yet been received. It was stated that clear orders be sent so that proceedings for payment of pension be taken. The petitioners have also submitted letter dated 4 -9 -2000 to the Director General for their regularisation. This Court by order dated 28 -3 -2001 in the present writ petition has directed that the State Government shall take appropriate decision in respect of the petitioners' claim for regularisation in accordance with law within a period of one month from the date of production of a certified copy of the order. In pursuance of the aforesaid direction the State Government passed an order dated 24 -5 -2000 refusing to regularise the petitioners' services under the U.P. Regularisation of Ad hoc Appointments (on Posts out side the Purview of Public Service Commission) Rules, 1979. It has been stated that since the petitioners do not fulfil the educational qualification/physical eligibility hence they cannot be considered for regular appointment under the U.P. Regularisation of Ad Hoc Appointments (on Posts out side the Purview of Public Service Commission) Rules, 1979. The order further notes that the Director has submitted a proposal by granting relaxation in physical eligibility. The aforesaid order has been brought on record by means of Supplementary affidavit and has also been prayed to be quashed.
(3.) A counter affidavit has been filed by the learned standing Counsel in which it has been stated that the papers for regularisation of the petitioners' services were forwarded and were pending with the State Government. It is admitted that the petitioners were appointed on temporary basis. Paragraph 7 of the counter affidavit further admits that the petitioners were given pay scale of 'Bandi Rakshak'/Warder, selection grade, super selection grade and other facilities available to the 'Bandi Rakshak' / Warder. Deductions were also made from the salary of the petitioners for the G.P.F., Insurance, leave encashment in May, 1982. It has further been stated in paragraph 13 that the matter of regularisation of the petitioners was also referred to the Respondent No. 2 on 11 -6 -1984 which is still pending. Certain breaks in service of the petitioners were also mentioned. However, neither in the counter affidavit nor in the order of the State Government dated 24 -5 -2001 it has been mentioned as to what is the educational qualification or the physical eligibility which is lacking in the petitioners. The petitioners have also filed rejoinder affidavit reiterating their claim in the writ petition. The Counsel for the petitioners contended that the petitioners who have rendered 28 and 26 years of service respectively are entitled for pension. It is further contended that the petitioners were fully entitled for their regularisation of service in accordance with aforesaid 1979 Rules and regularisation cannot be refused after rendering 28 and 26 years of service on the ground that the petitioners lack educational qualification/physical eligibility. Reliance has been placed by the Counsel for the petitioners on the decision of this Court in the case of Gujarat Agricultural University v. Rathod, Labhu, Vecher and others, reported in 2001(1) LBESR 1029 (SC) ; UPLBEC 2001 (1) page 834; Budhi Nath Chaudhary and others v. Abhai Kumar and others, reported in 2001 S.C.C. (Labour and Service) page 589 and Roshani Devi and others v. State of Haryana and others, reported in 1999 S.C.C. (Labour and Services) page 130. The Counsel for the petitioners secondly contended that by virtue of Government order dated 1 -7 -1989 even temporary employees who have rendered ten years service are entitled for pension; hence, the petitioners are entitled for pension by virtue of the aforesaid Government order. It has further been contended that the petitioners having been granted selection grade and super selection grade their services for all purposes were treated to be satisfactory and regular service. Reliance is also placed on the Apex Court's judgment in the case of A.P. Srivastava v. Union of India and others, reported in (1995) 3 UPLBEC 1842 and Ram Sewak Singh v. Accountant General, Lekha 2nd PR -1, Allahabad and others, reported in (1991) 2 UPLBEC 1027.;