Point of Law: Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order

JUDGMENT :

1. Heard learned counsel for the parties.

2. Petitioner is the widow of Kailash Ram, Employee, a class-IV employee at Junior High School, Bijaura, Ghazipur. The employee came to be appointed on fixed pay on 23 September 1978. The services of the employee came to be regularized vide order dated 25 June 1996 passed by the third respondent, Basic Shiksha Adhikari, Ghazipur, in pay-scale 750870, with effect from 15 May 1996. The employee retired on attaining the age of superannuation on 31 January 2004, subsequently, died on 26 August 2005. He had rendered 35 years of service. Petitioner by the instant writ petition seeks a direction to the respondents to pay pension and family pension from the date of death of her husband i.e. 26 August 2005.

3. In the counter affidavit filed on behalf of the third respondent, the facts have not been disputed. A stand has been taken that since the employee came to be regularized with effect from 15 May 1996 and until retirement i.e. on 31 January 2004 he rendered 7 years 8 months and 16 days of regular service, hence, as per the Government Order, petitioner is not entitled to family pension.

4. The employee according to the respondents had not rendered 10 years of regular service. Para 4 and 5 of the counter affidavit is extracted:

"4. That it is submitted that the husband of the petitioner, Late Kailash Ram was appointed as Water Man in Junior High School, Bijaura Kshetra, Mardah, District Ghazipur on 23 September 1968 on fixed pay scale. Thereafter, pursuant to the Government Order dated 9.9.1980 as well as letter dated 24.8.1995 issued by Secretary, U.P. Basic Shiksha Parishad, Allahabad, the then District Inspector of Schools, Ghazipur vide its order date 25.6.1996, the Class-IV Employees working on the basis of fixed pay-scale, have been adjusted against available vacant posts in District Ghazipur in the Pay Scale of Rs. 750-12-870 Da.Ro.14-940 w.e.f. 15.5.1996.

5. That husband of the petitioner, Late Kailash Ram was retired from service on 31.1.2004 after attaining the age of superannuation and he died on 26.8.2005. He had rendered his total services in regular pay scale on the post of Class-IV post from 15.5.1996 to 31.1.2004, as 7 years, 8 months and 16 days. After the death of her husband, Late Kailash Ram, the petitioner demanded for payment of family pension, and since the services of Late Kailash Ram in regular pay scale was found below 10 years, therefore, the family pension was not sanctioned to the petitioner by the then District Basic Education Officer, Ghazipur keeping in view the provisions of Government Order dated 1.7.1989, in which in para 2, it is provided that after completion of 10 years regular service, the family pension shall be sanctioned. Hence the petitioner has approached this Hon'ble Court by filing present writ petition."

5. It is urged by learned counsel for the petitioner that the employee came to be appointed against a regular post as is reflected from the extracts of the service book placed on record by the respondents and his service was duly certified from time to time by the competent authority i.e. Assistant Basic Education Officer. The employee came to be regularized against a class-IV post pursuant to the Government Orders issued from time to time. It is further contended that the petitioner cannot be deprived of family pension merely for the reason that her husband rendered less than ten years regular service. It is urged that upon regularization the past service rendered by the petitioner against regular post would count towards computation of pension.

6. The Division Bench of this Court in Hari Shankar Asopa Versus State of U.P. and another, 1989(1) UPLBEC 501, was considering as to whether a temporary government servant appointed against the substantive post and continued as lecturer, reader and professor of surgery is entitled to retiring pension upon seeking to retire voluntarily. The Court upon considering the Articles 465 and 465A of the Civi