JUDGMENT :

SARAL SRIVASTAVA, J.

1. Heard learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel for the respondents.

2. The petitioner by means of the present writ petition has assailed the order dated 31.05.2022 passed by the respondent no. 5-Executive Engineer, Investigation & Planning (Water Resources), Division Mirzapur (Fatehi Irrigation Colony), Mirzapur to the extent the benefit of pension to the petitioner has been converted into new pension and further prayed for a writ of mandamus directing the respondents to include the service rendered by him as daily-wager and in work-charged establishment with regular service and grant benefit of Old Pension Scheme to the petitioner.

3. The brief facts of the case are that the petitioner was initially engaged as a daily wager on the post of Gaze Reader on 01.05.1989. Due to the promotion of employees, some posts fell vacant. The Superintending Engineer issued a letter dated 24.07.1997, addressed to the Executive Engineer, forwarding the names of the daily wage employees who have completed 240 days in service and were found eligible by the Selection Committee for being appointed on said vacant posts. The name of the petitioner appeared at Sl. No. 1 in the list enclosed with the said letter. In compliance whereof, the Executive Engineer issued an appointment letter dated 25.07.1997 to the petitioner appointing him as a work-charge employee on the post of Gaze Reader. Later on, the service of the petitioner was regularized on the post of Gaze Reader by the order dated 29.09.2011. The petitioner received a letter dated 31.05.2022 from the office of respondent no. 5 informing him that he is retiring on 30.06.2022 and papers relating to the benefit of the New Pension Scheme in respect of the petitioner were forwarded to the concerned department.

4. The petitioner being aggrieved by the said letter, has preferred the present writ petition praying that the services rendered by him as a daily-wager and work-charged employee be counted in his regular service for pension.

5. A counter affidavit has been filed by the respondents stating that the petitioner was engaged as a daily wager due to exigency. The petitioner was engaged as Gaze Reader by the order dated 25.07.1997 in the work charge establishment. The services of the petitioner was regularised by the order dated 15.07.2011.

6. The respondents further pleaded that the State of U.P. introduced the New Contributory Pension Scheme w.e.f. 01.04.2005 by the Government Order No. G-33-379/X-2005-301(9) 2003 dated 28.03.2005. The said Scheme as per the Government Order dated 28.03.2005 has been mandatorily made applicable to all new recruits to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions.

7. It is further pleaded that by means of another Notification dated 07.04.2005, the Uttar Pradesh Retirement Benefit (Amendment) Rules, 2005 was notified, whereby sub-clause (3) was added to Rule (2) of the Uttar Pradesh Retirement Benefit Rules, 1961 (hereinafter referred to as ‘Rules, 1961'), which provides that nothing in the said Rules would apply to the persons entering service on or after 01.04.2005. On 07.04.2005, State Government issued another Notification notifying the General Provident Fund (U.P.) (Amendment) Rules, 2005. The State Government thereafter on 14.08.2008 issued an office order notifying the New Pension Scheme which applies to the persons joining service on or after 01.04.2005.

8. Further case of the respondents is that since the service of the petitioner was regularized in the year 2011, therefore, he entered into the service after 01.04.2005, and as such, the provisions of Rules, 1961 do not apply to the petitioner, hence, he is not covered by Old Pension Scheme. It is further submitted that the petitioner was allotted PRAN No. 110052567014 under New Pension Scheme. The contribution of the petitioner as well as the