IMPORTANT POINT
An officiating principal with requisite qualifications and long service is entitled to pension benefits, regardless of the nature of their appointment.

JUDGMENT :

Ajit Kumar, J.

Heard Sri Vashishtha Tiwari, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

2. In compliance of my last order dated 22nd March, 2023, an affidavit of compliance has been filed, which is taken on record.

3. In the compliance affidavit State Government has come with a case that in view of the judgment in the case of Virsh Bhan Sharma v. State of U.P. and others passed in Writ - A No. 23690 of 2018 decided on 9th January, 2019, an officiating principal cannot be said to have held the said post in substantive capacity and, therefore, an interpretation to Rule 19(b) of U.P. Contributory Provident Fund Insurance Pension Rules, 1964 is sought to be urged to be providing that a person must be holding substantive post to hold him entitled to receive pension.

4. In Virsh Bhan's case, accordingly, the petitioner in that case was refused pension. The ratio of the judgment as contained in paragraph 9 is reproduced hereunder:

''9. According to Rule-19 (a) of the Rules, service rendered by an employee would not be counted for pension unless the employee holds a substantive post on a permanent establishment. Sub Rule (b) of Rule-19 is an exception, according to which the Continuous temporary or officiating service would also be included for the purposes of payment of pension, if such continuance is followed without any interruption by confirmation in the same or another post. The statutory scheme, therefore, clearly suggests that it is either a post held substantively by a Government servant which would be the relevant criteria for determination of pension or the service on continuous, temporary or officiating basis, which is followed with the confirmation on that post or on similar post. The determination of qualifying service is essential aspect, which is dealt with by Rule 19 (b) of the Rules, while the right of pension payable would be regulated by Rule 19 (a). It is the substantive post held by an employee which, therefore, would determine his entitlement to receive pension. Since the petitioner held the post of Lecturer on substantive basis, his pension will have to be determined with reference to his substantive appointment and the respondent, therefore, have committed no error in determining his pension accordingly.''

5. Petitioner has relied upon two judgments of concurrent Bench of this Court. The first one in the case of Narsingh Rai v. Deputy Director of Education, Varanasi and others, 2018(11) ADJ 135, wherein the view of the Supreme Court as expressed in the case of Isharat Jahan v. State of U.P. and others passed in Writ - A No. 5737 of 2018 has been referred, had relied upon a judgment in the case of Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25. Interpreting service jurisprudence his Lordship referred to the aspect of the matter that a person holding position for a long period of time having requisite qualification, would entitle him to get the pensionary benefits as the pension is to be determined on the basis of last pay drawn.

6. The word 'substantive basis' is sought to be interpreted to mean a person must be holding the post substantive in nature with requisite qualification. Thus, thin distinction is sought to be drawn between substantive post and holding the post on substantive basis. Judgement as quoted in paragraph 4 of the Narishing Rai's case is reproduced hereunder:

''4- Against the afore-quoted order, the petitioner filed Writ -A No. 7439 of 2016 (Narsingh Rai v. State of U.P. and others), which was allowed by this Court by order dated 21.3.2018, as under:

''Heard Shri Adarsh Singh, learned counsel for the petitioner and learned Additional Chief Standing Counsel for State respondents.

The petitioner is before this Court assailing the order dated 15.2.2018 passed by the third respondent, Deputy Director of Education (Secondary), 5th Region, Varanasi whereby he has declined to sanction his pension and for direction to the third respondent to sanction