IMPORTANT POINT
Work-charged service must be counted towards qualifying service for pension, ensuring equitable treatment of employees and compliance with constitutional principles.

JUDGMENT :

Vivek Chaudhary, J.

Heard learned counsel for petitioner, Shri Jamwant Maurya, learned counsel for respondent No. 5 and learned Standing Counsel for the State.

2. Petitioner has approached this Court challenging the order dated 28.8.2020 whereby the respondent authority has refused to grant him pension and other benefits on retirement which he claim to be entitled.

3. The facts of the case are that the petitioner was appointed as daily wager on class IV post as Pump Operator on 7.12.1987. He was regularized on 5.7.2011 and he retired on 31.8.2019.

4. Learned counsel for petitioner submits that he is entitled for pension under Uttar Pradesh Nagar Panchayat Non-Centralized Services Retirement Benefits Regultions, 1992 (hereinafter referred to as Regulations of 1992). Reference is made to Rule 2(da) which reads as follows :

5. 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(3) ESC 801 (SC), 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 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 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 under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify, except:

(i) periods of temporary or officiating service in non-pensionable establishment;

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

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

10. The qualifying service is the one which is in accordance with the provisions of Regulation 368 i.e. holding a substantive post on a permanent establishment. The proviso to Rule 3(8) clarify that continuous, temporary or officiating service followed without interruption by confirmation in the same or any other post is also included in the qualifying service except in the case of periods of temporary and officiating service in a non-pensionable establishment. The service in work-charged establishment and period of service in a post paid from contingencies shall also not count as qualifying service.

11. T