- (1.) HEARD Sri C. D. Bahuguna, counselfor the petitioner and Standing counsel for the respondents.
(2.) BY the present writ petition, the petitioner has prayed for a writ of mandamus directing the respondents to pay pension and other post retiral dues to the petitioner with effect from the date of her retirement on superannua tion with interest @ 12% per annum. Briefly stated initially the peti tioner was appointed in Class IV as Chaukidar/sevika on 28-6-1980 on temporary basis against the substantive and vacant post in Kanya Junior High School, Kaladhungi, District Nainital. After completing five years service she made an application to the District Ba sic Education Officer, Nainital for con firming her on the class IV post but the District Basic Education Officer did not pay any heed to the request made by the petitioner. On 19-9-1981, the Deputy Inspector of Schools, Nainital, directed the petitioner to complete her service book failing which leave will not be permissible to her. The petitioner on 31-12-1988 sent an application to the Education Superintendent, Nagar Kshetra, Nainital and submitted that she has been working in the depart ment for the last several years but she has not been made permanent on the post held by her. Further she also sub mitted application on 4-5-1990. The petitioner has submitted that the Direc tor of Education Basic and the Chairman, Basic Education Board, Allahabad, issued an order on 24-8-1995 in which it was provided that Class IV employees working in the Ba sic Schools on fixed pay of Rs. 750/-may be absorbed/adjusted against va-cant and substantive post on regular pay scale of 750-940. Similar order was issued on 4-10- 1995 by the Depart- ment of Basic Education for absorbing/ adjusting Class IV employees in regu lar pay scale. Pursuant to that order the Education Superintendent, Nagar Kshetra, Nainital vide order dated 1/-10-1995 granted her regular pay scale and she was posted in Basic School, Sher-ka-Danda, Nainital. She has re tired from Class IV post on 1-10-2001 after superannuation. The grievance of the petitioner is that she has completed qualifying service which entitled her for pension but the respondents have not paying her pension despite several re quests made by her. Counter affidavit has been filed by the respondents. It has been men tioned in the counter affidavit that since the petitioner did not serve for continu ous 10 years in a regular service, she was not found entitled to the payment of pension as per the relevant rules.
(3.) THE petitioner was initially ap pointed on 28-6-1980 on fixed pay. She was continued working as Class IV employee on minimum pay scale till 1-10-1995 when she was made regular. She retired from service on 1-10-2001 after supperannuation. Thus she has completed 20 years continuous service as class IV employee in the respondent Department. THE service rendered by the petitioner as temporary employee getting fixed pay at minimum of the pay scale, cannot be excluded for counting her total service for the pur pose of pensionary and other service benefits. The counsel for the petitioner re lied upon the judgment dated 20-4-2004 of this Court in the case Anand Singh vs. State of Uttaranchal and others W. P No. 393 (S/s) of 2004, wherein af ter relying upon the case of Santosh Kumar Mishra vs. State of U. P. others (2002) 1 UPLBEC 337, pensionary benefits were granted to the petitioner and it has been held as under: "the Apex Court was considering the Scheme and the status of a work charge employee even after being confirmed it has been held that a workcharge employee after confirmation does not cease to be a work charge employee and he continues to be a workcharge employee. The question of regularisation against a regular vacancy was not in issue be fore the Apex Court. No rule, law of any Government Order has been brought to the notice of this Court by the State to indicate that any terminal benefits have been provided to the workcharge employee indicate that any terminal benefits have been provided to the workcharge em ployee who have to their credit a considerable period of service and even in cases after very longer pe riod of service, they retire as such. Even no provision for confirmation of a work charge employee as a workcharge employee is available in the State of Uttar Pradesh nor any such provision has been shown by the learned State Counsel despite being specifically asked for. From the facts of the case of Thingujam Borjen Meetal (supra) it is cear that the scheme framed by the Government confine the benefits to the regular Government employ ees as per provisions of para 3 and the workcharge employees are cov ered by another set of Rules of 1978. It is also obvious that their Lordships of the Supreme Court did not have an occasion to consider the question of daily wage or a work charge employee who has been al lowed to continue for a considerable length of service and has legitimate expectation of being regularized against a vacancy if the regular va cancy is not available at the time when he was engaged on daily wages or was converted into a workcharge employee in the "workcharge establishment. ";