Sudhir Agarwal, J.

1. Heard Sri Hari Om Khare, learned counsel for petitioner, learned Standing Counsel and perused the record.

2. Pensionary benefits have been denied to the petitioner on the ground that he did not complete 10 years' service as a regular employee. However, it is evident from record that petitioner was appointed on temporary basis as Peon vide appointment letter dated 17.8.1960 and the said appointment has continued.

3. It is contended that under Fundamental Rule 56 amended by U.P. Act 24 of 1975 even temporary service qualify for pension. Reliance is placed on a Division Bench judgments in Dr. Hari Shankar Ashopa Vs. State of U.P. and others, 1989 ACJ 337; Board of Revenue and others Vs. Prasidh Narain Upadhyay, 2006 (1) ESC 611; Babu Singh Vs. State of U.P. and others, 2006 (8) ADJ 371 and Bansh Gopal Vs. State of U.P., 2006 (3) ESC 2248 (All).

4. When questioned, learned Standing Counsel could not dispute that even temporary service qualify for pension.

5. It is not disputed that retirement of petitioner is governed by fundamental Rule 56 read with relevant provisions of Civil Services Regulation (hereinafter referred to as "C.S.R."). Every employee, whether permanent or temporary or ad-hoc is liable to retire on attaining age of superannuation as provided under fundamental Rule 56.

6. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. Rule 3(8) is quoted as below:-

"Rule 3(8)- " Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-

(i) periods of temporary or officiating service in a non-pensionable establishment.

(ii) periods of service in a work-changed establishment, and

(iii) periods of service in a post, paid from contingencies; shall also count as qualifying service.

Note- If service rendered in a non-pensionable establishment, work-charged establishment or in post paid form contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service." (emphasis added)

7. Regulation 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Regulations 368 and 369 are quoted herein below:

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was on actual duty on the first day on which the establishment was again re-employed."

8. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of relevance in as much as period spent by him as ad-hoc was in permanent pensionable establishment, which ultimately resulted into regularization of petitioner without any break in service.

9. Moreover, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes temporary service followed by confirmation and continued without interruption. In this view of the matter, services