IMPORTANT POINT
Daily wage employees' service must be counted for pension eligibility, ensuring non-discriminatory treatment under retirement benefit regulations.

JUDGMENT :

VIVEK CHAUDHARY, J.

1. Heard counsel for the parties.

2. Petitioner has approached this Court challenging the order dated 9.7.2020 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 daily wage employee on 1.1.1989. He continued to serve on Class IV Post as Clerk. He was treated as regular employee and was regularized on 3.5.2011 and thereafter, he retired on 31.1.2020.

3. Learned counsel for petitioner submits that he is entitled for pension under U.P. Nagarpalika Non-Centralized Services Retirement Benefits Regulation, 1984 (Rules of 1984). Reference is made to Rule 2(m), which reads as follows:

“(m) “Qualifying service” means the service which qualified 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 the Municipal Board concerned.

(ii) periods of service in a work-charged establishment.

(iii) periods of service in a post paid from contigencies.

Provided that period of continued, temporary or officiating service under the Municipal Board concerned 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.”

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 v. 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.

(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.”

These three conditions are fully explained in the following Regulations.

“368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

370. Continuous temporary or officiating service und