Pradeep Kumar Singh Baghel, J. - (1.) THE petitioner is a retired Class -Ill employee of Irrigation Department namely Executive Engineer, Sichai Khand 1st, Maharajganj. He has preferred this writ petition for a direction upon the respondents to provide him the post retiral benefits including regular pension from the date of his retirement. Briefly stated the facts of the case are that the petitioner claims that he was initially appointed on 25.1.1971 in work charge establishment on the post of Beldar. He continuously worked till 30.11.1998 on the said post. Thereafter from 1.12.1998 to 31.8.1999 he claims that he worked on the post of Seench Paryavekshak. According to petitioner the total length of service of the petitioner is from 25.1.1971 to 31.8.1999 continuously on the post of Beldar and from 1.9.1999 he was promoted on the post of Seench Parayavekshak where he worked upto the age of his superannuation i.e. 31.11.2003.
(2.) THE grievance of the petitioner is that he has completed requisite number of years for the pensionary benefit but inspite of his repeated representation the concerned authority has not taken any decision presumably on the ground that petitioner does not fulfill ten years regular service for the pension. A counter -affidavit has been filed. It is stated therein that the petitioner has discharged his duty in the Irrigation Department under Gandak Sichai Karya Mandal since 25.1.1971 to 31.8.1999 as Karya Prabhari (work charge) and thereafter on the basis of departmental promotion he was appointed as Seench Paryavekshak on 1.9.1999 on permanent post and he discharged his duty till 31.11.2003 in the department. The petitioner has been retired on superannuation at the age of 60 years. As he has worked on the regular basis in the department for less than ten years. Therefore according to Government Order he is not entitled for getting any pension. A copy of the Government Order dated 31.7.2001 is annexed as Annexure -CA -2 to the counter -affidavit. No other ground has been mentioned in the affidavit to deny the regular pay scale.
(3.) I have heard Sri R.P.L. Srivastava and Sri S.C. Srivastava learned counsels appearing for the petitioner and learned Standing Counsel. Learned counsel for the petitioner has placed reliance on a judgment of this Court passed in Special Appeal Defective No. 264 of 2013 (State of U.P. and others v. Prem Chandra and others). This Court while dealing the matter of daily wage employees in the Public Works Department at Ghaziabad had held that the work charged employee is also entitled for grant of pensionary benefits. The Court found that the respondents therein have worked in the Public Works Department on the work charged basis in the capacity as Beldar or Chaukidar. In that case the employees worked for over 31 years and in which around 20 years period was as a work charged employee. It was also noticed that during the engagement on work charge several substantive posts became vacant on account of death, retirement and resignation of the regular employees, but despite the continuous service, they were not considered for regularization. The Court has also considered the effect of the regularization 370 of the U.P. Civil Service Regulation. After considering the submission of the State the Court read down the Regulation 370 of the U.P. Civil Service Regulation. The observations of the Court below reads as under: "On due consideration of rival submissions, we dismiss the special appeal for reasons that the learned Single Judge has granted parity with a similarly situated employee as referred to herein above, namely Mohd. Mustafa; and that in a similar case a Pull Bench of the Punjab and Haryana High Court has quashed the provision which was upheld by the Hon'ble Apex Court in appeal; the judgment of the Full Bench has merged into the judgment of the Hon'ble the Apex Court in Punjab Electricity Board and another v. Narata Singh and another, : AIR SCW 1670. Thus the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with judgment of Hon'ble the Apex Court in the absence of challenge to the validity of the regulation in this petition or in any other petition earlier. Regarding the application for condonation of delay in filing the Special Appeal, as learned counsel for the respondents does not have any objection to the application being allowed it is hereby allowed and the delay as pointed out by the registry is thus condoned. The special appeal, being devoid of merit, is dismissed.";