V.K.SHUKLA, J. - (1.) PETITIONER , Hans Raj Pandey, has approached this Court questioning the validity of the decision dated 1.10.2003 passed respondent 3 District Basic Education Officer, Basti filed as Annexure-4 to the writ petition by means of which petitioner's claim for being accorded pension has been rejected on the ground that petitioner does not fulfil the requisite qualifying service for the purposes of grant of pension.
(2.) BRIEF background of the case is that petitioner was appointed as Class IV employee at Purva Madhyamik Vidyalaya, Gidhar, Raudhauli, District Basti on temporary basis. Institution in question wherein petitioner was appointed was run and managed by Basic Shiksha Parishad, U.P. at Allahabad. Petitioner after his appointment on 6.2.1970 in the above noted institution was transferred from Purva Madhyamik Vidyalaya, Gidhar, Raudhauli, District Basti to Pruva Madhyamik Vidyalaya, Paida Block Rudhauli District Basti and ultimately attained the age of superannuation after attaining the age of superannuation. Petitioner submits that Pension papers were submitted to District Basic Education Officer, Basti. Claim of petitioner for grant of pension was not being adverted to, in this background petitioner filed Civil Misc. Writ Petition No. 14799 of 2003 (Hans Raj Pandey v. State of U.P. and others). This Court on 7.4.2003 asked the District Basic Education Officer to consider the claim of the petitioner and thereafter impugned order in question has been passed rejecting the claim of the petitioner by mentioning that in terms of Government Order 1.7.1989 and Rule 46 of U.P. State Aided Education Institution Employees Provided Fund, Insurance, and Pension Rules, 1964 pre-requisite terms and conditions of qualifying service is not fulfilled. At this juncture present writ petition has been filed. Counter-affidavit has been filed and therein it has been contended that petitioner has been engaged as Class IV employee on fixed pay at Purva Madhyamic Vidayalay, Gidhar, Raudauli, District Basti on 6.2.1970 without there being any sanctioned post. It has also been contended that when sanctioned post of Class IV employee fell vacant the petitioner was adjusted against the said post on 16.10.1996. Categorical statement of fact has been mentioned therein that services rendered by the petitioner with effect from 6.2.1970 to 15.10.1996 cannot be counted for determination of pension as he was engaged without any sanctioned post and his appointment was not made against substantive vacancy. It has been contended that petitioner is not at all entitled for pension as he does not fulfil prescribed minimum qualifying service as prescribed for payment of pension under the U.P. Basic Education Employees Rules, 1973. In this background it has been stated that claim of the petitioner is not acceptable and further reference has also been given that incumbent who has been appointed on fixed pay did not fall within the category of regular employee and as such benefit is not extendable.
(3.) REJOINDER -affidavit has been filed and therein it has been sought to contended that petitioner has continued in service for more than 10 years and as such view which has been sought to be taken is unsustainable and further it has been reiterated that on 15.10.1996 his services have been regularized and services rendered from 6.2.1970 to 15.10.1996 cannot be excluded for the purposes of qualifying service for payment of retiral benefits. It has also been contended that claim of the petitioner cannot be rejected on unsustainable ground as in the past at no point of time any objection had ever been raised that no post was there and no post has been sanctioned.;