IMPORTANT POINT
Prior service as work-charged employees must be counted towards qualifying service for pension, ensuring compliance with principles of fairness and non-discrimination.

JUDGMENT :

Ajit Kumar, J.

Heard learned counsel for the parties and perused the records.

2. It is submitted on behalf of the petitioner that petitioner was initially appointed as a Seasonal Collection Peon on 1.7.1976 in Tehsil-Sorawn, District-Allahabad. The petitioner approached this Court by filing Writ Petition No. 51899 of 2004 seeking regularization, in which an interim order was passed on 2.2.2009 directing the respondents to permit the petitioner to continue to work and for payment of regular salary. The petitioner continued to work thereafter. Subsequently, when the claim of the petitioner for regularization was not being considered, petitioner filed Contempt Petition No. 1036 of 2010 and so in terms of the order of writ Court, the petitioner was regularized.

3. It is claimed by the petitioner that he deserves to be given Old Pension Scheme by counting his period of work rendered previously as ad-hoc/daily wage with respondents towards qualifying service so as to make Old Pension Scheme admissible and in support of his argument, learned Advocate has placed reliance upon a number of decisions of this Court and of Supreme Court in the case of Habib Khan v. State of Uttrakhand passed in Civil Appeal No. 10806 of 2017 decided on 23rd August, 2017. The judgment of the Supreme Court in the case of Prem Singh v. State of U.P., 2019(3) ESC 801 (SC) and Kallu Ali v. State of U.P. and others 2022(9) ADJ 474 and most importantly the judgment of the Supreme Court in the case of State of Gujarat and others v. Talsibhai Dhanjibhai Patel passed in Special Leave to Appeal (C) No. 1109 of 2022.

4. Besides above, he submits that considering the issue of applicability of the Old Pension Scheme despite the amending Act, 202 coming into force, a division Bench of this Court in the case of State of U.P. Through Secretary Lok Nirman Vibhag and others v. Bhanu Pratap in Special Appeal No. 152 of 2021 vide order dated 14.7.2021 held that unless and until the initial appointment is disputed to be not being in accordance with law, a person regularised in service subsequently, cannot be held disentitled to pension. He submits that this judgment of Special Appellate Bench was appealed against before the Supreme Court in Special Leave to Appeal (C) No. 10381 of 2022, which also came to be dismissed and, therefore, State of Uttar Pradesh on its request had been granted eight weeks' time to comply with the order of the High Court. He also relies upon a judgment of a coordinate bench in Awadhesh Kumar Srivastava v. State of U.P. and others, Writ - A No. 746 of 2023 delivered on 3.7.2023.

5. A counter-affidavit has been filed by the State opposing the claim of the petitioner in light of the provisions of the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020, which has been subsequently enacted as an Act being Act No. 1 of 2021. According to counter-affidavit petitioner would not be entitled to payment of any pension in view of the fact that the services of the petitioner were regularized in the year 2010 and the petitioner has not rendered service for more than 10 years in substantive capacity.

6. This above issue, in reply it is submitted is no more res integra, as this Court, while interpreting the provision of Section 2 of the Ordinance, 2020, now an Act, provided that the services rendered by a workman even on temporary basis shall be considered and counted as a qualifying service while determining the eligibility for payment of pension.

7. Rival submissions fall for consideration.

8. Supreme Court in the case of Prem Singh v. State of U.P. and others, (2014) 1 UPLBEC 760, has dealt with the Section 3(8) of U.P. Government Servant Retirement Rules, 1961 in question and held relevant provision to be discriminatory, unjust and bad for impermissible classification vide para 31, 32, 33, 36 and 37 thus:

''31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from t