Service rendered as daily wager cannot be counted towards pension benefits unless regularized, as clarified by the Apex Court.

ORDER

Heard Shri Indra Raj Singh assisted by Yadvendra Pandey, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents.

2. This Original Application, under Section 19 of the Central Administrative Tribunal Act , 1985, has been filed by the applicant on 07.02.2022, seeking the following reliefs:-

“i). Issue an order and quash the impugned order 16.08.2021, passed by Opposite party no.2 Commissioner Income Tax, (Annexure No.1) so far as declined to account entire service including daily wage for giving benefit of old pension scheme to the applicant.

ii). Issue an order or directions to the opposite party no.2 Commissioner Income Tax, to account entire service of the applicant including daily wage basis w.e.f. 01.10.2001 and to give benefit of old pension scheme and pay pension accordingly from due date alongwith interest within stipulated time as may be fixed by the Hon'ble Tribunal.

iii). Award the cost to the applicant.”

3. The short facts of the case as apparent from the record are that the husband of the applicant, namely, Late Rajesh Srivastava, while holding the substantive post of Tax Assistant, died in harness on 11.10.1999 leaving behind the applicant as his widow, a daughter-Km. Nidhi Srivastava and a son-Abhinav Srivastava. After the death of her husband, the applicant applied for compassionate appointment vide her application dated 19.12.1999 before the competent authority and in response thereto, the Chief Income Tax Commissioner, Lucknow vide order dated 10/13.09.2001 engaged the applicant as Daily Wager. Pursuant to the aforesaid order, the applicant joined on 01.10.2001 in the office of respondent-3 (Commissioner Income Tax, Maqbul Alam Road, Income Tax Office Varanasi) and started discharging her duties.

3.1 Subsequently, a recommendation was made for the appointment of the applicant on regular basis by respondent-2, Commissioner Income Tax, Lucknow vide letter dated 04.01.2006.

Thereafter, several reminders were sent by the applicant, but no action was taken from the side of the respondents and therefore, the applicant earlier approached before this Tribunal by way of filing Original Application No. 1794 of 2010 (Smt. Alka Srivastava Vs. Union of India & Others), which was finally disposed of vide order dated 27.05.2011 with a direction upon the respondents to take final decision in the matter, within three months.

3.2 In pursuance of the order of this Tribunal dated 27.05.2011 passed in Original Application No. 1794 of 2010 (Smt. Alka Srivastava Vs. Union of India & Others), the services of the applicant was regularized on the post of Tax Assistant in the scale of Rs. 5200- 20200/- in the grade pay of 2400/- vide order dated 10.10.2011. The applicant, after rendering her services for 19 years and 11 months, retired from the post of Senior Assistant from the office of respondent-2 on 31.08.2021.

3.3 It is further stated that the services of the applicant after joining (on 01.10.2001) was never interrupted and she initially continued on the post of daily wager followed by regularization on 10.10.2011 and therefore, the applicant is entitled for counting the entire services and entitled for the grant of benefit of Old Pension Scheme. However, respondent-2 Commissioner Income Tax, Lucknow vide order dated 16.08.2021 rejected the claim of the applicant for Old Pension Scheme on the ground that the entire services rendered by the applicant could not be counted including the previous service as daily wager. The aforesaid order dated 16.08.2021 is impugned in this Original Application.

4. Counter Affidavit has been filed from the side of the respondents on 20.01.2024 in which it is st