# Bhuneshwar Rai v. The State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-18
- **Case number:** Special Appeal No. 445 of 2011
- **Bench:** Rakesh Tiwari, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhuneshwar-rai-v-the-state-of-u-p-ors-43109
- **Pages:** 5

## Headnote

C.S.C.
U.P.
Civil
Services
Regulation-370Pensionary benefit-deniel in garb of
Regulation 370-identical provision of
Punjab
State
government-quashedaffirmed by Hon'ble Supreme Courtfurther Hon'ble Supreme Court clarifiedRegulation 370 to be read in the line of
judgment
of
Apex
Court-held-work
charge employee working for more than
10
years
continuously-entitled
for
pension benefit.
Held: Para-13
For all these reasons the dispute in the
present special appeal is no longer resintegra. The appellant has put in more
than 10 years regular service as work
charge
employees
w.e.f.
26.3.76
to
30.4.2006, hence he is entitled to the
benefit of pension etc. in view of the law
stated above.
Case Law discussed:
2010-Laws (SC)-2-40; (2010 (1) ADJ-329 (All)
(LB); (2006 (1) ESC 611 (All)(DB); (2006 (6)
ADJ-384 (DB).

## Text

1236
 INDIAN LAW REPORTS ALLAHABAD SERIES
21. For the reasons stated above, the
Criminal Appeal lacks merit and is
dismissed at the admission stage itself.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ASHOK PAL SINGH, J.
Special Appeal No. 445 of 2011
Bhuneshwar Rai
...Appellant
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Anil Kumar Srivastava, Sri Swarn
Kumar Srivastava
Counsel for the Respondents:
C.S.C.
U.P.
Civil
Services
Regulation-370Pensionary benefit-deniel in garb of
Regulation 370-identical provision of
Punjab
State
government-quashedaffirmed by Hon'ble Supreme Courtfurther Hon'ble Supreme Court clarifiedRegulation 370 to be read in the line of
judgment
of
Apex
Court-held-work
charge employee working for more than
10
years
continuously-entitled
for
pension benefit.
Held: Para-13
For all these reasons the dispute in the
present special appeal is no longer resintegra. The appellant has put in more
than 10 years regular service as work
charge
employees
w.e.f.
26.3.76
to
30.4.2006, hence he is entitled to the
benefit of pension etc. in view of the law
stated above.
Case Law discussed:
2010-Laws (SC)-2-40; (2010 (1) ADJ-329 (All)
(LB); (2006 (1) ESC 611 (All)(DB); (2006 (6)
ADJ-384 (DB).
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the
parties and perused the record.
2. The appellant has filed this intra
court appeal challenging the validity and
correctness of the judgment and order
dated 3.3.2011 passed by the Writ Court
in Civil Misc. Writ Petition No. 43822 of
2008, Bhuneshar Rai versus the State of
U.P. and others, whereby the aforesaid
writ petition had been dismissed.
3. Brief facts giving rise to the
instant appeal are that the appellant was
working in work charge establishment as
Chaukidar/helper since 26.6.1976 and
continued to work as such till 30.4.2006.
The proceedings for regularization was
initiated by the respondents in April,
2006. The Executive Engineer issued
letter dated 18.4.2006 directing the
appellant to produce the certificates of
educational
qualification
etc.
for
considering his case for regularization on
25.4.2006 so that formality could be
completed. He retired on attaining age of
superannuation on 30.4.2006.
4. It is contended that appellant
ought to have been regularized in April,
2006 and that his entire services from
26.6.1976 be counted for his pension and
other retiral benefits.
5. In support of his aforesaid
contention, learned counsel for the
appellant has relied upon the judgment
rendered by the Apex Court in the case of
Punjab State Electricity Board and
another versus Narata Singh, 2010-Laws
(SC)-2-40, which has been relied upon by
the learned Single Judge of this Court in
the case of Mohd. Mustafa versus State of
3 All]. Bhuneshwar Rai Vs. The State of U.P. & Ors.
1237
U.P., (2010 (1) ADJ-329 (All)(LB).
holding that where the petitioner has put
in 23 years of service including 113
months and 11 days i.e. 9 years 5 months
& 11 days of regular service then denial
of pension for not having completed 10
years of regular service, was not proper.
In that case, the Court directed the
respondents to grant pensionary benefit to
the petitioner considering him to have
completed 10 years of regular service and
pay him regularly every month from the
date of retirement. The State of U.P.
preferred an appeal against the aforesaid
judgment in re: Mohd. Mustafa versus
State of U.P.(Special Appeal Defective
No. 254 of 2013), State of U.P. and others
versus Prem Chandra and others wherein
the Court relying upon the judgment of
the Apex Court in Punjab Electricity
Board (supra) vide its judgment dated
13.5.2013 held that the provisions of
regulation 370 of the U.P. Civil Service
Regulation have to be read down in line
with the judgment of the Apex Court.
Aggrieved , the State of U.P. preferred
SLP (Civil) No. CC 22271 of 2013, State
of U.P. and others versus Prem Chandra
and others before the Apex Court, which
was dismissed vide judgment and order
dated 7.1.2014.
6. We may also refer to the
judgments rendered in the cases of Board
of Revenue and others versus Prasidh
Narain Upadhyaya, (2006 (1) ESC-611
(All) (DB) and Bansh Gopal versus State
of U.P., (2006(6) ADJ-384 (DB).
7. Learned Standing counsel does
not dispute this legal position but
contends that the appellant's case is not
covered by the Government Order dated
1.7.89 which required that pension shall
be payable also to temporary employee
who have rendered at least 10 years of
regular service; that the appellant cannot
be said to have rendered 10 years regular
service since he was taken into regular
service from work-charge establishment
only by order dated 12.10.1999 and he
retired on 21.5.2005.
8. Before considering the case laws
we may reproduce the G.O. dated
1.7.1989.
"vLFkk;h lsodksa gsrq isa'kujh
ykHk
mRrj izns'k ljdkj
la0 lk& 3&1152@nl&915@89
foRr 1⁄4lkekU;1⁄2 vuqHkkx&3 y[kuÅ
fnukad% 1 tqykbZ 1989
dk;kZyd&Kki
fo"k;& vLFkk;h ljdkjh lsodksa dh
lsok fuo`Rr@eqR;q ij isa'kujh ykHkksa
dh vuqeU;rkA
mi;qZDr fo"k; ij v/kksgLrk{kjh dks
;g dgus dk funsZ'k gqvk gS fd flfoy
lfoZl jsxqys'ku ds vuqPNsn 368 dh
O;oLFkk ds vuqlkj jkT; ljdkj ds vUrxZr
dh x;h lsok isa'ku gsrq rc rd vgZ ugh
ekuh tkrh gS tc rd fd ljdkjh lsod fdlh in
ij LFkk;h u gks x;k gksA ljdkjh lsodksa
ds ;Fkk le; LFkk;hdj.k fd;s tkus gsrq
'kklu ds fo|eku vkns'kksa ds ckotwn
dqN ekeyksa esa izfdz;k lEcU/kh
vis{kk;s iwjh u gks ikus ds dkj.k
lEcfU/kr deZpkjh LFkk;h gq, fcuk gh
vf/ko"kZrk ij lsokfuo`Rr gks tkrs gS ftlls
mUgs isa'kuh; ykHk vuqeU; ugh gSA
2& mijksDrkuqlkj vLFkk;h jgrs gq,
lsokfuo`Rr gks tkus ds dkj.k ljdkjh
lsodks dks gksus okyh dfBukb;ksa dks
nwj fd;s tkus dk iz'u dkQh le; ls 'kklu
ds fopkjk/khu jgk gS vkSj lE;d~
fopkjksijkUr jkT;iky egksn; us lg"kZ ;g
vkns'k iznku fd;s gS fd ,sls ljdkjh
lsodks dh ftUgksusa de ls de 10 o"kZ
1238
 INDIAN LAW REPORTS ALLAHABAD SERIES
dh fu;fer lsok iw.kZ dj yh gks]
vf/ko"kZrk ij lsok fuo`Rr gksus vFkok
l{ke fpfdRlk izkf/kdkjh }kjk vkxs lsok
djus gsrq iw.kZr;k v{ke ?kksf"kr dj fn;s
tkus ij vf/ko"kZrk@v'kDrrk isa'ku lsok
fuo`fRr xzsP;qVh rFkk ikfjokfjd isa'ku
mlh izdkj ,oa mUgh njksa ij ns; gksxh
tSlk fd LFkk;h deZpkfj;ksa dks mUgh
ifjfLFkfr;ksa esa laxr fu;eksa ds vUrxZr
vuqeU; gksrh gSA
3& ;g O;oLFkk mu ekeyksa esa
Hkh ykxw gksxh tgkW vLFkk;h jgrs
gq, 20 o"kZ dh lsok iw.kZ djus vFkok
45 o"kZ dh vk;q iw.kZ djus] tks Hkh
igys gks] ds mijkUr ewy fu;e 56 ds
vUrxZr LosPN;k lsok fuo`Rr gksus dh
vuqefr iznku dh x;h gksA
4& ;g vkns'k 1&6&89 ls ykxw
ekus tk;saxsA mDr fnukad ls iwoZ
vLFkk;h jgrs gq, vf/ko"kZrk@v'kDdrrk
ij vFkok LosPN;k lsokfuo`Rr gks pqds
,sls deZpkfj;ksa ds ekeyksa es tks
mDr fnukad dks thfor gks] laxr
O;oLFkkvksa ds vUrxZr fey pqdh
xzsP;qVh] ;fn dksbZ gks] dk dksbZ
iqujh{k.k
ugh
gksxhA
,sls
ljdkjh
lsodksa dks tks vLFkk;h jgrs gq,
fnukad 1&6&89 ds iwoZ lsokfuo`Rr
gks pqds Fks vkSj ftUgs mlds dkj.k
dksbZ isa'ku vuqeU; ugh gqbZ Fkh]
fnukad 1&6&89 ls lsokfuo`Rr ds iwoZ
lsokfuo`fRr deZpkfj;ksa ds ekeyksa es
vkSlr ifjyfC/k;ksa dk vk'k; ml osru ls gS
tks mUgsa ewy osru 9 1⁄4211⁄2 ds
vUrxZr fey jgk Fkk rFkk 1&1&86
vFkok mlds mijkUr ds ekeyksa esa
ifjyfC/k;ksa dk vk'k; ml osru ls gs tks
ewy fu;e 9 1⁄4211⁄2 1⁄411⁄2 esa ifjHkkf"kr
gS fd 50 izfr'kr dh nj ls ml n'kk esa
isa'ku vuqeU; gksxh tc lsokfuo`fRr ds
iwoZ mUgksus 33 o"kZ dh vgZdkjh
lsok iw.kZ dj yh gksA ;fn vgZdkjh lsok
33 o"kZ ls de jgh gks rks isa'ku mlh
vuqikr es de gks tk;sxhA bl izdkj
vkxf.kr ,sls deZpkfj;ksa dh isa'kuks dh
tks fnukad 1&1&86 ds iwoZ lsokfuo`Rr
gks pqds Fks foRr foHkkx }kjk fuxZr
'kklukns'k
la[;k
lk&4&1120@nl&37&301@1987
fnukad
28&7&87
ds
jsMh&jsdulZ
Hkkx&1 ,oa Hkkx&2 tSlh fLFkfr gks ds
vuqlkj 608 ewY; lwpdkad ds cjkcj
eagxkbZ jkgr dk ykHk nsrs gq,
iqujhf{kr dj fn;k tk;sxk vkSj fnukad
1&6&89 ls iqujhf{kr /kujkf'k dk ykHk
fn;k tk;xkA
5& bl dk;kZy; Kki ds vUrxZr isa'ku
dk fdlh ,sls deZpkjh dks jkf'kdj.k
vuqcU/k
ugh
gksxk
tks
fnukad
31&5&1974
vFkok
mlds
iwoZ
lsokfuo`Rr gqvk gksA ;fn bl dk;kZy;
Kki ds vUrxZr fdlh ,sls deZpkjh dks
isa'ku nh tk; tks 31&5&1974 ds mijkUr
lsokfuo`Rr gqvk gks rks mls 1&6&89
ds mijkUr vxyh tUe frfFk ds le; mldh
vk;q ds le:i nj ij ewy isa'ku dh /kujkf'k ij
jkf'kdj.k vuqeU; gksxk vkSj mldh isa'ku
ls de dh x;h /kujkf'k mldks okLrfod
lsokfuo`Rr fnukad ls 15 o"kZ ckn
fjLVksj dj nh tk;sxhA
6& fnukad 1&8&1989 vFkok mlds
ckn lsokfuo`fRr@eqR;q ls ftu ekeyksa
es mi;qZDr O;oLFkk dk ykHk fn;k
tk;xk] muesa dkfeZd vuqHkkx&1 ds
'kklukns'k
la[;k
19&8&1980
dkfeZd&1&fnukad 29&4&89 ds vUrxZr
vkuqrksf"kd dk ykHk ns; ugh gksxkA
Hkonh;]
fot; d`".k lDlsuk] 1⁄4izeq[klfpo1⁄2"
9. We may now proceed to consider
the ratio laid in the judgments cited by the
learned counsel for the appellant which
has not been disputed by the learned
Standing counsel.
10. In the case of Board of Revenue
(supra) the respondent was appointed on
the post of Collection Peon in 1962 on
temporary basis and he was continued in
3 All]. Bhuneshwar Rai Vs. The State of U.P. & Ors.
1239
service till the date of his retirement in
1999. In that case, it has been held by the
Court that even in cases where an
employee may not have worked as a
permanent employee but had worked
regular for more than 10 years, he is
entitled for pension and other retiral
benefits in view of Fundamental Rules 56
and Paras 361, 465 and 465-A of
Regulations. Mere fact that he was neither
confirmed nor regularized in service would
not take away his right to get pension which
flows from law and also from period of more
than 10 years of continuous service which
cannot be ignored.
11. Similarly in the case of Bansh
Gopal (supra) the appellant therein had
put in only six years of regular service
and had not rendered 10 years of service
regularly. Previously, the appellant was
engaged as Muster Roll employee in the
establishment and thereafter he was taken
under work-charge establishment. In the
present case, the appellant was given
regular
appointment
as
class
IV
employee. After his superannuation it was
contended by the respondent that he had
in fact put in six years of regular service
and not 10 years of regular service as
required in G.O. dated 1.7.1989, hence he
was not granted pension.
12. Repelling this contention on
consideration of the case laws and various
provisions dismissing the writ petition the
Court has held that in paragraph nos. 18
to 21 of the judgment thus:-
" 18. The relevant rules for payment
of pension are contained in Civil Services
Regulation. There is nothing inconsistent
between Fundamental Rule 56 and
Regulation 370 so as to not follow
Regulation 370. According to Regulation
370, the services rendered by appellant in
work charge establishment does not
qualify for purposes of pension.
19. The appellant's case is also not
covered by the Government Order dated
1.7.89. The Government Order required
that pension shall be payable also to
temporary employe who have rendered at
least 10 years of regular service. The
appellant cannot be said to have rendered
10 years regular service since he was
taken into regular service from workcharge establishment only by order dated
12.10.1999 and he retired on 31.5.2005.
20.
An unreported judgment of
Hon'ble Single Judge delivered on 22.2.2005
in Civil Misc. Writ Petition No. 53568 of
1999 (Shri Gangoo vs. Executive Engineer)
is relied upon by the appellant also. No
doubt there his Lordship allowed pension to
the writ petitioner on the basis of temporary
service and the reading of the judgment
shows that his Lordship drew no distinction
between temporary service and work-charge
service. To this extent, we are in respectful
disagreement with the opinion given by the
Hon'ble Single Judge.
21. The writ petitioner-appellant
cannot in any manner be granted pension
on the basis of only six years of regular
service.
22. The appeal is dismissed."
13. For all these reasons the dispute
in the present special appeal is no longer
res-integra. The appellant has put in more
than 10 years regular service as work
charge employees w.e.f. 26.3.76 to
30.4.2006, hence he is entitled to the
benefit of pension etc. in view of the law
stated above.
1240
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Accordingly, the appeal is
allowed and the impugned judgment and
order dated 3.3.2011 is quashed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2014
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE OM PRAKASH-VII, J.
First Appeal No. 447 of 2014
Smt. Rekha Mishra & Anr.
...Appellants
Versus
Shiv Prasad Srivastava & Ors. Respondents
Counsel for the Appellants:
Sri Sandeep Kumar Srivastava, Sri Pranab
Kr. Ganguly
Counsel for the Respondents:
Sri Anil Kr. Srivastava
C.P.C. Order VII Rule-11-read with Specific
Relief Act-34-Rejection of Plaint-suit for
declaration
without
possession-held-not
maintainable-held
Trail
Court
not
committed any error-Appeal dismissed.
Held: Para-10
We do not find any error in the impugned
order. The relief sought in the plaint has
been referred hereinabove. The admitted
fact is that the appellants were not in
possession of one of the shop on the ground
floor and the other on the first floor of the
house in dispute, while the decree of
declaration was being sought to declare the
appellants as the sole and exclusive owners
of the house no. 117/193/I, block, Navin
Nagar, Kanpur Nagar, without seeking the
relief of possession of those portions of the
house which were not in the possession of
the appellants.
Case Law discussed:
AIR 1993 SC 957; (2002) 7 SCC 559; (2003) 1
SCC 557; (2005) 7 SCC 510; (1993) Suppl. 3 SC
129; (2007) 14 SCC 535; (2013) 3 AWC (SC)
2213; AIR 1996 SC 642; (2005) 5 SCC 390: 2005
(2) SCCD 838:2005(2) AWC 1599 (SC)
(Delivered by Hon'ble Rajes Kumar, J.)
1. Heard Sri P.K. Ganguly, learned
counsel for the appellants and Sri M.D.
Singh Shekhar, learned Senior Advocate,
appearing on behalf of the respondents.
2. This is an Appeal against the order
of the Civil Judge (Senior Division), Kanpur
Nagar, dated 2nd August, 2014 by which the
Suit no. 107/14, filed by the appellants, under
Order VII, Rule 11 of the Code of Civil
Procedure (In short 'CPC'), has been rejected
on the ground that the suit for declaration
without seeking the relief of possession is not
maintainable.
3. The appellants filed the Suit No.
107 of 2014, seeking following reliefs:
"A) A decree for Declaration that the
plaintiffs are the sole and exclusive
owners of the premises No. 117/193, Iblock, Navin Nagar, Kanpur Nagar, fully
detailed and bounded below.
B) A decree for Permanent Injunction
restraining the defendants, their agents
servants and assigns from causing any
interference in the free ingress and egress by
the
plaintiffs
and
from
forcefully
dispossessing the plaintiffs from the suit
accommodation viz ground floor portion,
excluding one room on the front side of
premises no. 117/193, I-block, Navin Nagar,
Kakadeo, Kanpur, both fully detained at the
foot of the plaint, and from taking its illegal
possession till disposal of the suit.
C) Cost of the suit be passed in
favour of the plaintiffs and against the
defendant.
D)Any other relief which this learned
court deems fit and proper in the