- (1.) SUDHIR Agarwal, J. Heard Sri Sidharth, learned Counsel for the petitioner and learned Standing Counsel for the respondents. Since the counter and rejoinder affidavits have been exchanged, as requested by learned Counsel for the parties this writ petition has been heard finally at admission stage and is decided under the Rules of the Court.
(2.) AGGRIEVED by the order dated 8-12-1998 of Sub-Divisional Officer, Meerut the petitioner has invoked extra-ordinary equitable jurisdiction of this Court under Article 226 of the Constitution of India assailing the same and further seeking a writ of mandamus commanding the respondent No. 1 to grant pensionary benefits to the petitioner treating him in continuous service from 21-9-1956 on the post of Consolidation Lekhpal. The facts in brief are that the petitioner was appointed on ad hoc basis as Consolidation Lekhpal on 21-9-1956 and he worked till 31-1-1964. Thereafter he was again employed on 4-2- 1966 and worked ill 4-6-1967. From 1-8-1967 to 6-3-1971 he worked as Consolidation Lekhpal in the office of Settlement Officer Consolidation, Meerut. He claims to have worked thereafter as Lekhpal in different spells at Tahsil Hapur, i. e. , 5-7- 1971 to 6-10-1971, 1-8-1972 to 24-5-1972, 26-12-1972 to 24-5- 1973, 1-9-1973 to 18-3-1974, 19-3-1974 to 15-5-1974, 24-4-1975 to 9-9-1975 and 22-1-1976 to 22-7-1976, thereafter at Tahsil Meerut from 1-8-1976 to 26-8-1977 and then at Tahsil Mawana from 14-6- 1978 to 26-6-1984. Since his engagement at Tahsil Mawana was purely on temporary basis, he was terminated under the U. P. Temporary Government Servants (Termination of Service) Rules,1975 (hereinafter referred to as "1975 Rules") vide order dated 19-6-1984 passed by the appointing authority, i. e. , Sub- Divisional Magistrate, Mawana, District Meerut. Against order of termination the petitioner represented before the District Magistrate, Meerut and Commissioner, Meerut Division, Meerut and both rejected his representations. Thereafter he appears to have a representation to the Secretary, Board of Revenue, which was disposed of vide order dated 26-6- 1987 observing that the petitioner was found indulged in making forged signatures of the officials of the department and making various irregularities in land records hence after assessment of his performance he was terminated vide order dated 19-6-1984 being a temporary employee but considering the fact that he has been in employment for a long time and has also completed Lekhpal's Training on 19-2- 1983, his case may be reconsidered. pursuant to the aforesaid directions the Sub- Divisional Officer issued order dated 30-11-1988 appointing petitioner as Lekhpal as a new appointment. The petitioner joined service and thereafter claims to have made representation dated 28-2-1989, to the Commissioner, Meerut stating that instead of fresh appointment it should be treated as reinstatement in service with the benefit of earlier service. It is said that the aforesaid representation remained pending and in the mean time, petitioner on attaining age of superannuation of 58 years retired from service on 31-7-1998. He thereafter sought payment of retiral benefits which was considered by the Sub-Divisional Magistrate, Meerut who found that the petitioner having not served for the minimum qualifying service of 10 years, was not entitle for pension and the gratuity payable to him under the Rules is liable to be paid for which recommendation was made seeking approval from the Additional Commissioner (Finance) Board of Revenue, Meerut. Aggrieved by the order dated 8-12-1988 whereby the Sub-Divisional Officer has held that the petitioner is not entitled for any pension, the present writ petition has been filed claiming that he was illegally terminated in the year 1984 and since his representation was allowed by the Board of Revenue, the appointment letter dated 30-11-1988 is in fact an order of reinstatement and therefore, he is entitled for the benefit of the entire past service. Relying on Article 370 of Civil Service Regulations (in short 'csr'), it is contended that temporary and officiating service also count for qualifying service and therefore, denial of pension to the petitioner is illegal and contrary to the Rules.
(3.) THE respondents have filed counter-affidavit disputing claim of the petitioner and it has been averred that the petitioner was terminated in the year 1984 and remained out of employment from 26-6-1984 to 30-11-1988. He was issued a fresh letter of appointment on 30-11-1988 pursuant whereto he joined on 3-12-1988 and therefore, till the date he attained age of superannuation in the year 1998 he has served continuously only for a period of 9 years, 7 months and 29 days and it is less than the minimum qualifying service for pension since the minimum service qualify for pension is 10 years. It is also stated that his representation dated 28-2-1989 submitted to the Commissioner has already been rejected by the Divisional Commissioner on 16-10- 1990. The petitioner in the rejoinder affidavit has reiterated his claim as stated in the writ petition and it has been said that for the purpose of pensionary benefit, his entire services from 1956 to 1984 is liable to be counted.;