Service rendered as a daily wager must be included in pensionary benefits regardless of subsequent regularization, as per judicial precedent and fairness principles.

JUDGMENT :

Saral Srivastava, J.

1. Heard Sri Adarsh Singh, Advocate holding brief of Sri Ramesh Kumar Tiwari, learned counsel for the petitioner and Sri Shrawan Kumar Dubey, learned Additional Chief Standing Counsel for the State-respondents.

2. The petitioner by means of the present writ petition has assailed the order dated 27.01.2023 passed by respondent no.2-Director, Printing and Stationary Department, U.P. Government Press, Allahabad whereby he has rejected the representation of the petitioner for including the services rendered by him as daily-wager with regular service and grant the benefit of Old Pension Scheme.

3. The brief facts of the case are that the petitioner was initially engaged as a daily wager on the post of Group-D in the department in August, 1987 and since then he continuously discharged his duties without any break. The petitioner through their union filed Writ Petition No.7034 of 1992 ( Pradeshik Rajkiya Mudralaya Karamchari Samanwaya Samiti, U.P. Lucknow through its Secretary Vs. State of U.P. and Others ) seeking regularisation of their services which was disposed off by this Court by judgement dated 02.12.1993. The said judgement was challenged before the Apex Court by way of Civil Appeal No.6326 of 1994. However, during the pendency of said appeal, State Government took a decision on 12.11.1997 proposing to regularise them in service. The Apex Court disposed off the aforesaid appeal by order dated 26.11.1997 in terms of decision of State Government to regularise daily wagers.

4. The further case of the petitioner is that despite direction of the Apex Court in the civil appeal, the respondent instead of regularising the daily wage workers started appointing Gateman in the department. In such view of the fact, the petitioner through their union again approached Apex Court by filing Civil Appeal Nos.3339-3340 of 2014 which was disposed off by the Apex Court by judgement dated 07.03.2014 with a direction to the department to regularise the daily wage workers.

5. In compliance of the order of Apex Court, the services of the petitioner was regularised on 16.01.2015 and he became permanent on 22.12.2018. The petitioner has retired on 31.12.2022.

6. The grievance of the petitioner is that the services rendered by him as daily wage employee has not been included for his pensionary benefits. The petitioner had approached this Court in Writ-A No.15236 of 2022 with a prayer to grant pension and other retiral benefits. This Court disposed off the said writ petition by judgement and order dated 19.10.2022 directing the respondent-State to decide the representation of the petitioner dated 17.05.2022 within a period of four weeks.

7. In compliance of the order of this Court, the respondent no.2 by order dated 27.01.2023 rejected the representation of the petitioner by giving reference to the various government orders that there is no provision for including the services rendered by an employee as daily wager for the purpose of pension, and as the petitioner was regularised in the year 2015, therefore, he would be given the benefit of new pension scheme and not the old pension scheme.

8. A counter affidavit has been filed by the respondent no.2 stating therein that petitioner was engaged as a daily wager in the department in the year 1987, and thereafter, he had worked 318 days from the year 1987 to 1997 as daily wager. It is further stated that from the year 1998 to 2015, he has not worked for a single day. It is further stated tha