Hon’ble Sudhir Agarwal, J.—Heard Sri Shiv Avtar Sharma, learned Counsel for the petitioner and the learned Standing Counsel for the respondents.

2. The petitioner has sought a mandamus commanding the respondents to pay post retiral benefits as he retired on 30.6.2001.

3. In brief the case of the petitioner is that he was appointed on 24.10.1973 on the post of Godam Chowkidar on temporary ad hoc basis. Subsequently he was regularized vide order dated 2.5.95 passed by the Regional Food Controller, Bareilly Region, Bareilly. After attaining the age of superannuation the petitioner retired on 30.6.2001. However, the respondents have not paid any pension to the petitioner inspite of several representations made by him. Hence, this writ petition has been filed.

4. The respondents have filed counter affidavit stating that gratuity of the petitioner has been paid on 23.12.2002 but no pension is payable since the petitioner has not completed minimum ten years service after the date of regularization.

5. Learned Counsel for the petitioner submits that under Fundamental Rule 56 read with Paras 424 and 361 of Civil Service Regulations, the petitioner is entitled for pension since the entire period of service even prior to the date of regularization would be counted towards qualifying service for payment of pension. Reliance has been placed on a Division Bench judgment in Board of Revenue and others v. Prasidh Narain Upadhyay, 2006 (1) ESC 611.

6. Learned Counsel for the respondents however, submitted that under the Civil Service Regulations, unless the petitioner has completed qualifying service of ten years after the date of regularization, he is not entitled for payment of pension. Reliance is also placed on a letter dated 11/12.7.2005 issued by Regional Food Director, Bareilly Region, Bareilly to Special Secretary, Food Supply Department, Govt. of U.P., Lucknow observing that since the petitioner was regularized vide order dated 2.5.95 and, therefore, he was not entitled for pension having not completed 10 years qualifying service after regularisation.

7. Heard learned Counsel for the parties and perused the record.

8. No doubt pension and retiral benefits are no longer a bounty but a right of a retired employee. However, the aforesaid right is governed by Rules and retiral benefits are payable only in accordance with the Rules. In D.S. Nakara and others v. Union of India, AIR 1983 SC 130, the Apex Court held that the pension is neither a bounty nor a matter of grace depending upon the sweet-will of the employer, but is a vested right subject to the rules governing mode and manner of payment thereof. It was also held that the pension is not an ex gratia payment but is a payment for the past service rendered by the employee and it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.

9. In the present case it is not disputed that the retirement of the petitioner employee is governed under Fundamental Rule 56 read with relevant provisions of Civil Service Regulations. Every employee whether permanent or temporary or ad hoc is liable to retire on attaining the age of superannuation as provided under Fundamental Rule 56.

10. Fundamental Rule 56 (e) as amended by U.P. Act No. 24 of 1975 provides that a retiring pension shall be payable and other retiral benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under the said rule. It is not disputed that the petitioner, in the present case has been made to retire on attaining the age of superannuation under Fundamental Rule 56. The provisions of Civil Service Regulations which are pre-constitutional provisions will have to subserve Fundamental Rule 56; which has been enacted through a legislative enactment. Since