S. RAFAT ALAM, SUDHIR AGARWAL, JJ.

( 1 ) THIS special appeal, under the Rules of the Court, arises from the order of Honble Single judge dated 16th August, 2005 in Civil Misc. Writ Petition No. 39298 of 2004.

( 2 ) WE have heard Sri Ran Vijai Singh, learned Standing Counsel appearing for the appellants and Sri J. P. N. Singh, learned counsel for the sole respondent.

( 3 ) LEARNED counsel for the appellants vehemently contended that since the respondent was not substantively appointed and confirmed on the post of Collection Peon and hence is not entitled for pension in view of the provisions contained in para-368 (1) of the Civil Service Regulations. He also submitted that the respondent was not even a temporary employee but he was engaged, as Seasonal Collection Peon only and, therefore, by any stretch of imagination, is not entitled to get pension under the Rules.

( 4 ) LEARNED counsel for the respondent, however, disputed the aforesaid submission of the appellants and submitted that all the aspects have been considered by the Honble Single Judge, who has also recorded a finding of fact after perusal of the original service book of the respondent and, therefore, the present appeal is liable to be dismissed.

( 5 ) FROM the record it is not disputed that the respondent has worked as Collection Peon since 10. 2. 1962 till 31st July, 1999 when he attained the age of superannuation on attaining 60 years of age and was retired from service (except of notional break of three months in the year 1989 ). Thus, apparently the respondent worked in the service of the appellants for almost more than 37 years. The appellants although submitted that the respondents was employed as Seasonal collection Peon but the Honble Single Judge on the basis of the perusal of the service book of the respondent has found that the employment of the petitioner-respondent has been mentioned as Collection Peon (Temporary) but subsequently in the service book it has been mentioned that he is working as Seasonal Collection Peon. The entry of initial appointment of the petitioner-respondent as temporary Collection Peon is not disputed. That being so, it is not possible to assume as to how the respondent has been shown as Seasonal Collection Peon in the subsequent part of the service book. The appellants could not explain this aspect even in the present appeal, although in para-7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry "temporary" of the service of the respondent is mentioned. It is also mentioned that the notice of retirement dated 5. 5. 1999 filed as Annexure-2 to the paper book of the appeal shows that the designation of the petitioner-respondent has been shown as sangrah Chaprasi (Collection Peon) and not as a Seasonal Collection Peon, i. e. Samyik Sangrah chaprasi. The order passed on the petitioner-respondents representation by the appellants also shows that in the year 1996 the appellants recommended the petitioner-respondent for regularization to the Board of Revenue but the matter remained pending for years together and no order could be issued due to inaction on the part of the Board of Revenue and in the meantime the respondents attained the age of superannuation on 31. 7. 1999.

( 6 ) THUS, for the only reason of non issuing of formal order of confirmation or regularization by the appellants can it be said that though the respondent has rendered 37 years of continuous service with the appellants, yet is not entitled for pensionary benefits.

( 7 ) NOW it is too late in the day to say that the pension is not a right. As long back as in the year 1971 in the case of Deokinandan Prasad v. The State of Bihar and Ors. reported in AIR1971 SC 1049 the Honble Apex Court in para-32 of the judgment held as under: but we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, t

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