Services rendered as a daily wager should be counted towards qualifying service for pensionary benefits under the U.P. Palika (Centralized) Services Retirement Benefit Rules, 1981.

JUDGMENT :

1. Petitioner has approached this Court praying for writ of Mandamus commanding the respondents to give all the retiral benefits including gratuity and regular pension under U.P. Palika (Centralized) Services Retirement Benefit Rules, 1981 (herein after referred to as Rules of 1981) by counting his past services rendered before his regularization. Petitioner was appointed as a daily wager on class III post as Clerk on 25.09.1990. He got regularized on 03.01.2006 and retired on 30.06.2022.

2. Learned counsel for the petitioner submits that the petitioner is entitled for post retiral benefits as per Rule 2(10) of the Rules of 1981 which provides retiral benefits as per Article 368 of Civil Services Regulation. Rule 2(10) of Rules of 1981 reads as:

"(10) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations, as amended from time to time, excepting the following:-

(i) periods of temporary or officiating service in a non-pensionable establishment under any Municipal Corporation or Municipal Council;

(ii) periods of service in work-charted establishment; and

(iii) periods of service in a post paid from contingencies: Provided that period of continued temporary or officiating service under any Municipal corporation or Municipal Council shall count as qualifying service if it is followed by confirmation of 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 period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."

3. Learned counsel for the petitioner places reliance upon the judgment of Division Bench of this Court in Special Appeal No.97 of 2021 (State of U.P. and Others Vs. Bhanu Pratap Sharma), judgment of a Single Judge bench in the case of Writ-A No.8968 of 2022 (Dr. Shyam Kumar Vs. State Of U.P.) and a judgment of three Judges Bench of Supreme Court in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516 which considered entitlement for pension and read down provisions of Uttar Pradesh Retirement Benefits Rules, 1961 and the Civil Services Regulation. The relevant paragraphs of the judgment in case of Prem Singh (Supra) 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 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.

9. Regulations 361, 368 and 370 of the Uttar Pradesh Civil Services Regulations are also relevant. They are extracted hereunder:

"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:

First : The service must be under Government.

Second : The employment must be substantive and permanent.