JUDGMENT :

(Vivek Chaudhary, J.)

1. Heard Shri Bhagwan Dutt Pandey, learned counsel for petitioner, Shri K.R. Singh, Advocate appearing for respondent no.3 and 4 and learned Standing Counsel for the State.

2. Petitioner has approached this Court challenging the order dated 16.10.2021 whereby the respondent authority has refused to grant him pension and other benefits on retirement which he claim to be entitled. The facts of the case are that the petitioner was appointed as work charge employee on 07.12.1987. He continued to serve on Class III Post as Clerk. He was treated as regular employee and was regularized by order dated 24.12.2010 and thereafter, he retired on 30.09.2016.

3. Learned counsel for petitioner submits that he is entitled for pension under U.P. Development Authorities Non-Centralized Services retirement of Rules, 2011(Rules of 2011). Reference is made to Rule 2(h) to (i) which reads as follows:

"(h) "Pensionable post" means a post which fulfills the following three conditions, namely-

(i)the post is in any cadre of the Uttar Pradesh Development Authorities Non-Centralized Services

(ii)the employment is substantive and permanent, and

(iii) the service is paid by any Authority.

(i)"Qualifying service" means the service of a member of service which conforms to the following conditions :-

(i) The service must be under an Authority.

(ii) The employment must be substantive /regular / permanent.

(iii) The service must be paid by an Authority excluding the following periods of:

(i) temporary or officiating service in a non-pensionable establishment under any Authority.

(ii) service in a work charged establishment, and

(iii) service in a post paid from contingencles:

Provided that the service of a member of service does not qualify for pension and gratuity, except compensation gratuity, until he has completed twenty years of age.

Provided further that period of continued, temporary or officiating service under any Improvement Trust, Authority, Palika Board, Nigam, Central or State Government shall count as qualifying service if it is followed by confirmation on the same post or any other post without any interruption of service.

Note: If service rendered in a non-pensionable establishment, work charged establishment or in a post paid from 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 but shall not count towards qualifying service.

4. Further submission is that similar rules prevailed with regard to employees of the State Government which also provide non-counting of services performed on work charge basis. A three Judge's Bench of Supreme Court on reference in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516 considered their entitlement for pension. The relevant paragraphs of the said judgment reads:

"8. We first consider the provisions contained in the Uttar Pradesh Retirement Benefits Rules, 1961 (for short “the 1961 Rules”). Rule 3(8) of the 1961 Rules which contains the provisions in respect of qualifying service is extracted hereunder:

“3. In these rules, unless is anything repugnant in the subject or context—

(1)-(7) * * *

(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-charged 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 a post paid from contingencies falls be