- (1.) R. B. Mehrotra, J. Deceased/petitioner Uaulu Ram was appointed as "mason teacher" on 19 May, 1950 at Central Jail Izzatnagar, Bareilly. Ac cording to the then prevailing system the mason teacher for jail used to be appointed on contract basis for 5 years, and in that very sequence the peti tioner was continuously appointed on the basis of 5-5 years contract in diffe rent jails regularly as mason teacher. In this connection it is borneout from Annexure 1 of the counter affidavit dated 16 May, 1980 that as per terms of previous contracts the petitioner was on 21-2-1978 given a contract of 5 years appointment as mason teacher.
(2.) NO rules have been framed under Article 3u9 of the Constitution or any other Act or departmental regulations regarding the post of mason teacher. Their services are not governed by any rules despite working for long spell of period in jail as mason teacher, such a person was not getting any pensionary benefits. The concerned persons drew the attention of the State Government in this connection about the mason teachers working on contract basis, conse quently the Government issued a memorandum on 26 April, 1982 in connec tion with the employees of jail industries and declared 22 posts of mason teacher and one post of "head Mechanic" of Unnao as pensionable. The said Government notification for sake of convenience is reproduced as under : "in connection with your letter 261/finance 216 dated 8 May,jl986,i have been directed to convey that from i April, 1981, the indus trial employees of jail 22 sanctioned post of mason teacher in the grade of 200-320 and one sanctioned post of head mechanic sewing machines in the grade of 380-460, which had been declared as per manent from 1 April, 1947 and 1 April, 1969 respectively. His Excellency the Governor has been pleased to sanction pensionary benefits to such persons. The future sanctioned permanent posts of jail industries will also carry pensionary benefits and such posts will not be filled up on contractual basis and the contracts which are in operation up to this time will be deemed to have come to an end. (2) The continuous contractual service of the above posts is on regular establishment basis temporally, will be entitled to pensionary bene fits in case the post is made permanent, if the service has been rendered without any break. If there is any break between the two contractual periods or between the contract period and pen sionable service, then an account of such break, the entire previous period of service will not be counted towards pension and such a break period will not be curable as per provision of Article 422 of civil service regulations. (3) These orders are being issued in compliance of the sanction recorded in the orders of Finance Department NO 13-3-557/ten-82 dated 15 April, 1982. " It is undisputed between the parties that on the day the above mentioned Government order was published the petitioner was working as "mason teacher" on his post, there is further no dispute as regards the continuous service of the petitioner, on the basis of the above Government notification, the petitioner made a representation before Inspector General jail and made a prayer that in accordance with the above notification he also be paid pension, however, the representation of the petitioner was rejected and by order dated 30 September, 1982 a copy of which is Annexure 4 to the counter affidavit, the following order was passed regarding the petitioner : "with respect to the above subject on your letter No. 21910/2 (6) dated 31 August, 1982, I have been directed to convey that what pensionary benefits are not admissible to such employees who have completed the superannuation age of 58 years before 1 April. Hence for giving pensionary benefits to Badlu Ram 'mason teacher' on completion of his age of 58 years it u not possible to extend the service from 1 July, 1980 to 31 May, 1982 as proposed". Thereafter the petitioner has been representating to concerned autho rities in this connection and praying that for the whole life he has worked as "mason teacher" and in that regards he is entitled to the benefit envisaged in the Government notification. The respondents did not pay any heed to his representations consequently the petitioner filed the present writ petition praying for the relief that a writ in the nature of mandamus be issued that res pondent to pay pensionary benefits to the petitioner. The writ petition was fixed for hearing before me for admission in the list 1 had mentioned clearly in my order dated 20-4-1994 that the petition is regarding pensionary benefits of service hence its hearing on merits is feasible at the stage of admission itself. In the writ petition on behalf of the respondents counter affidavit and supple mentary counter affidavit as well as rejoinder affidavits have been filed. As per rules of the Court with the consent of parties Advocate the writ petition is being finally disposed of at the admission stage. It is unfortunate that the petitioner died during the pendency of writ consequently, the substitution ap plication of the wife of the petitioner has been allowed. She has been ordered to be substituted in place of the petitioner.
(3.) I have heard Sushri Archana Srivastava learned counsel for the peti tioner and the learned standing counsel on behalf of respondents. The only point that arises for determination is whether the petitioner is entitled to pensionary benefits on the strength of Government order. The learned counsel for the respondents has raised two objections for giving pen sionary benefits to the petitioner- (1) That the petitioner was kept in service merely on the basis of contract. It was clearly mentioned in the contract pertaining to the petitioner that he is not entitled to pensionary benefits. The petitioner is bound by that contract, in this very connection in the contract between the petitioner and State Government it is clearly mentioned that the petitioner is not entitled to pensionary benefits. According to learned standing counsel the petitioner in the teeth of the above contract, is not entitled to pensionary benefits. (2) The learned standing counsel has raised the other point that in any case the petitioner had attained the age of superannuation on 1 July, 1980 and according to the Government notification the mason teacher appointed on contractual basis have been allowed pensionable benefits in view of the publication dated 26 April, 1982 and by that date the petitioner had already completed the age of superannuation, hence the petitioner not entitled to the benefit of said notification.;