Ashok Bhushan, Arun Tandon - (1.) HEARD Sri C. K. Rai, learned standing counsel for the appellants and Sri G. P. Gupta, learned counsel appearing for the respondent.
(2.) THIS is an intra court appeal against the judgment and order of learned single Judge dated 5th August, 2008, whereby the writ petition filed by the respondent has been allowed by directing payment of pension w.e.f. 3.12.2004 following the judgment of learned single Judge in the case of Hans Raj Pandey v. State of U. P., 2007 (2) UPLBEC 2073. Against the said judgment the State of U. P., Finance and Account Officer, Basic Education Officer as well as Secretary, Basic Shiksha Parishad, Allahabad have filed this appeal. Parties agree that the appeal be disposed of without calling for any further affidavits. The brief fact necessary for deciding the issues raised in the appeal are that : the respondent petitioner was appointed as a Class IV employee in an institution of the U. P. Basic Shiksha Parishad. Initial appointment of respondent was on fixed emolument. By an order dated 30th November, 1995 the services of the respondent were regularised in the pay scale of Rs. 750-940. The respondent retired from service on 31.12.2004. His claim with regard to payment of pension was forwarded by the Basic Shiksha Adhikari. The Finance and Account Officer, Basic Education, Sonebhadra on 2nd June, 2005 wrote a letter to the Basic Shiksha Adhikari pointing out that the services of respondent prior to his regularisation, i.e., 30th November, 1995 were on fixed salary, therefore, cannot be treated as qualifying service. The period of qualifying service for pension is only 9 years, hence he is not entitled for pension. The respondent challenged the said order by means of the writ petition, praying for quashing the order of the Finance and Account Officer, Basic Education, Sonebhadra and a mandamus for payment of pension w.e.f. 31.12.2004.
(3.) IN the writ petition a counter-affidavit was filed by the Finance and Account Officer. IN paragraph 3 of the counter-affidavit it was clearly stated that appointment of the petitioner-respondent w.e.f. 1st August, 1973 was as a Peon on fixed emolument and in such capacity respondent continued till 30th November, 1995. Thereafter he was regularised in the pay scale of Rs. 750-940 w.e.f. 30th November, 1995. It has been stated that the services of the respondent prior to 30th November, 1995 being on fixed salary were not to be taken into account for pension and the respondent, having not completed 10 years of qualifying service, is not entitled for pension. The learned single Judge by the impugned judgment has allowed the writ petition relying on the judgment of this Court in the case of Hans Raj Pandey (supra).;