The judgment emphasizes the importance of the legal provisions under The Uttar Pradesh Qualifying Service of Pension and Validation Act, 2021 and Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 in determining the eligibility for pension calculation.

JUDGMENT :

Subhash Vidyarthi, J.

1. Heard Shri Yogendra Mishra, Advocate, the learned counsel for the appellant and Shri V.P. Nag, the learned Standing Counsel for the respondents.

2. The facts of the case are that the Appellant had filed Writ Petition No. 20874 (S/S) of 2021 pleading that he had started his service on the post of Collection Amin w.e.f. 09.02.1959 and he was confirmed on the said post in the year 1966. On 27.02.1976, the petitioner was promoted to the post of Naib Tehsildar. Thereafter, he was promoted to the post of Apar Tehsildar and while working on the aforesaid post, he retired on 31.07.1993. The petitioner was getting pension from the date of retirement, i.e. 01.08.1993 but by means of an order dated 16.05.2018 his pension was reduced from Rs.21,150/- to Rs.18,587/-. According to the appellant-petitioner, he had completed 33 years, 6 months and 90 days in service, but his pension was revised treating his length of service to be 29 years and it was reduced accordingly. The petitioner prayed for a direction to the opposite parties to calculate his period of service by adding the period of service rendered by him as Collection Amin w.e.f. 09.02.1959 to 1966.

3. The aforesaid writ petition has been dismissed by the Hon'ble Single Judge by means of a judgement and order dated 17.09.2021 holding that the appellant-petitioner was appointed on the post of Collection Amin w.e.f. 09.02.1959 but his services were regularized only in the year 1966. The post of Collection Amin is a seasonal post and it was not a regular post and, therefore, the competent authority has rightly not counted the services rendered by the petitioner before his regularization.

4. Feeling dissatisfied with the aforesaid judgment and order dated 17.09.2021, the appellant has filed this intra court appeal mainly on the ground that he was initially engaged as Seasonal Collection Amin against a substantive vacancy w.e.f. 09.02.1959 and his services were confirmed in the year 1966 and that period rendered by the petitioner in service before his regularization cannot be ignored for granting him pension.

5. The State has filed a counter affidavit in the Special Appeal stating that in view of the provisions of The Uttar Pradesh Qualifying Service of Pension and Validation Act, 2021 (U.P. Act No. 1 of 2021), the appellant is not entitled for the reliefs sought in the writ petition and the writ petition has rightly been dismissed upon the finding that the petitioner was regularized only in the year 1966 and, therefore, the competent authority has rightly not counted the period of services rendered by the petitioner before his regularization.

6. It has further been stated in the counter affidavit that by means of the Government Orders dated 18.07.2017 and 04.09.2017, directions were issued for revision of pension upto the year 2016. Accordingly, the Pension Sanctioning Officer has fixed the pension of the petitioner-appellant and issued a revised sanction letter and in furtherance thereof, the District Magistrate, Azamgarh by the letter dated 21.02.2018 has sent the pay revision of the petitioner-appellant to the Board of Revenue. Thereafter, by the order dated 10.03.2018, the petitioner's pension was fixed and a revised authorization letter was issued by the Board of Revenue on 10.03.2018.

7. The learned Counsel for the Appellant has placed reliance on the judgement of the Hon'ble Supreme Court in Prem Singh v. State of U.P. and others), (2019) 10 SCC 516, in which it has been held that :

"34. As it would be unjust, illegal and impermissible to make aforesaid classification to make Rule 3(8) valid and non-discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment i