# State of U.P. & Ors v. Mustari Begum

- **Citation:** (2023) 10 ILRA 871
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-05
- **Case number:** Special Appeal Defective No. 648 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-mustari-begum-49542
- **Pages:** 9

## Headnote

Civil Law - U.P. Retirement Benefits Rules,
1961 - Rule 3(8) - U.P. Civil Service
Regulations - Regulations 361, 368, 370 -
Uttar
Pradesh
Qualifying
Service
for
Pension and Validation Act, 2021 - Family
Pension - Daily Wager - Regularization -
Pensionary Benefits - The St. of U.P.
appealed
against
the
judgment
dated
20.03.2023 by the Single Judge in Writ-A No.
19513 of 2019, which set aside an order dated
25.01.2019 and directed the St. to calculate and
pay retirement-cum-death dues and family
pension to the respondent, Mustari Begum,
whose late husband, Naeem Khan, was a daily
wager paid regular pay-scales pursuant to a
Tribunal order.

Held: (1) The appeal was allowed, and the
impugned judgment was set aside concerning
family pension. (2) The delay of 128 days in
filing the appeal was condoned due to
satisfactory cause and no objection from the
respondent. (3) Naeem Khan, appointed as a
daily wager on 30.05.1990, was granted regular
pay-scales (Rs. 950-1500 from 15.10.1992 and
Rs. 3050-4590 from 01.03.2004) following a
Tribunal order dated 06.12.2005, subject to the
outcome of Writ Petition No. 7226 (S/S) of
1992, but his services were never regularized
before his death on 31.08.2007. (4) Under Rule
3(8) of the U.P. Retirement Benefits Rules,
1961, and Regulations 361, 368, and 370 of the
U.P. Civil Service Regulations, only service in a
substantive,
permanent
post
qualifies
for
pension; daily wage or work-charged service
does not, unless followed by confirmation in a
pensionable
establishment.
(5)
The
regularization of Naeem Khan's junior, Arun
Kumar Pandey, after Khan's death (pursuant to
the disposal of Writ Petition No. 7226 (S/S) of
1992 on 04.10.2012) did not entitle Khan's
service to be treated as regular for pension
purposes. (6) The Single Judge erred in
equating Khan's daily wage service with
regularized employees, as per St. of Karnataka
Vs
Uma
Devi
(2006)
4
SCC
1,
which
distinguishes
regular
appointments
from
backdoor entries. (7) The respondent failed to
establish equivalence of Khan's daily wage
service
with
regularized
employees
for
pensionary benefits. (8) The order for other
retirement dues remained unaltered, but family
pension was denied. (9) No costs were
awarded.

Case Law Cited:

## Text

10 All. State of U.P. & Ors. Vs. Mustari Begum
871
ववचिक हातन का भी ध्यान रिना होगा, क्योकक २९
वर्त का अंर्राल िहुर् अचिक है। और जि प्रािी ने
इस लम्िे समय अंर्राल में आदेश टदनांक ०४.०३.७२
को आक्षेवपर् करने का कोई प्रयास नही ककया है और
यह पूणत ववश्वास से नही माना जा सकर्ा कक उसको
सही ववचिक सलाह नही दी गई होगी। अर्ैः प्रािी का
आिरण सदभावनापूणत नही रहा है।

(१६). उपरोक्र् ववश्लेर्ण के उपरांर् मेरा यह
सुवववेचिर् मर् है कक न केवल आक्षेवपर् आदेश में
कोई हथर्क्षेप ककया जा सकर्ा है वरन् प्रािी को
आदेश टदनांक ०४.०३.७२ को नवीन आज्ञा पत्र
याचिका द्वारा आक्षेवपर् करने की थवर्ंत्रर्ा भी नही
दी जा सकर्ी है। अर्ैः यह याचिका तनरथर् की जार्ी
है।
----------
(2023) 10 ILRA 871
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.10.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal Defective No. 648 of 2023

State of U.P. & Ors. ...Appellants
Versus
Mustari Begum ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sabih Ahmed, Mohammad Saifuddin

Civil Law - U.P. Retirement Benefits Rules,
1961 - Rule 3(8) - U.P. Civil Service
Regulations - Regulations 361, 368, 370 -
Uttar
Pradesh
Qualifying
Service
for
Pension and Validation Act, 2021 - Family
Pension - Daily Wager - Regularization -
Pensionary Benefits - The St. of U.P.
appealed
against
the
judgment
dated
20.03.2023 by the Single Judge in Writ-A No.
19513 of 2019, which set aside an order dated
25.01.2019 and directed the St. to calculate and
pay retirement-cum-death dues and family
pension to the respondent, Mustari Begum,
whose late husband, Naeem Khan, was a daily
wager paid regular pay-scales pursuant to a
Tribunal order.

Held: (1) The appeal was allowed, and the
impugned judgment was set aside concerning
family pension. (2) The delay of 128 days in
filing the appeal was condoned due to
satisfactory cause and no objection from the
respondent. (3) Naeem Khan, appointed as a
daily wager on 30.05.1990, was granted regular
pay-scales (Rs. 950-1500 from 15.10.1992 and
Rs. 3050-4590 from 01.03.2004) following a
Tribunal order dated 06.12.2005, subject to the
outcome of Writ Petition No. 7226 (S/S) of
1992, but his services were never regularized
before his death on 31.08.2007. (4) Under Rule
3(8) of the U.P. Retirement Benefits Rules,
1961, and Regulations 361, 368, and 370 of the
U.P. Civil Service Regulations, only service in a
substantive,
permanent
post
qualifies
for
pension; daily wage or work-charged service
does not, unless followed by confirmation in a
pensionable
establishment.
(5)
The
regularization of Naeem Khan's junior, Arun
Kumar Pandey, after Khan's death (pursuant to
the disposal of Writ Petition No. 7226 (S/S) of
1992 on 04.10.2012) did not entitle Khan's
service to be treated as regular for pension
purposes. (6) The Single Judge erred in
equating Khan's daily wage service with
regularized employees, as per St. of Karnataka
Vs
Uma
Devi
(2006)
4
SCC
1,
which
distinguishes
regular
appointments
from
backdoor entries. (7) The respondent failed to
establish equivalence of Khan's daily wage
service
with
regularized
employees
for
pensionary benefits. (8) The order for other
retirement dues remained unaltered, but family
pension was denied. (9) No costs were
awarded.

Case Law Cited:

1. St. of Karn.Vs Uma Devi, (2006) 4 SCC 1.
872 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Om Prakash Shukla,
J.)

( C.M. Application 1 of 2023 :
Application for Condonation of Delay)

(1) Heard Shri V.P. Nag, learned
Standing Counsel representing the State
authorities/appellants and Shri Mohammad
Saifuddin, learned Counsel representing the
respondent/writ petitioner.

(2) There is delay of 128 days in filing
the
special
appeal.
The
appeal
is
accompanied with an application for
condonation of delay supported by an
affidavit.

(3) Learned Counsel representing the
respondent/writ petitioner does not have
any objection, if delay in filing the instant
appeal is condoned and the matter is heard
on merits.

(4) Cause shown in the affidavit filed
in support of application for condonation of
delay is satisfactory and in absence of any
objection, application for condonation of
delay is allowed and delay in filing the
special appeal is hereby condoned.

(Order on Appeal)

(5) This intra Court appeal under Rule
5 of Chapter VIII of the Allahabad High
Court Rules, 1952 has been filed by the
State authorities/appellants, assailing the
judgment/order dated 20.03.2023 passed by
the learned Single Judge in Writ-A No.
19513 of 2019, whereby the learned Single
Judge, while disposing of the writ petition,
not only has set-aside the order dated
25.01.2019 but has also directed the
appellant/State authorities to calculate the
retirement-cum-death dues of late husband
of the writ petitioner/respondent and pay
the same, in accordance with law, within a
period of two months from the date of the
order and also pay family pension, as
admissible, to her.

(6) The order under challenged in the
writ petition dated 25.01.2019 essentially
records the rejection of the representation
of the writ petitioner/respondent filed by
her claiming grant of retirement dues such
as services dues, family pension and
gratuity etc. of her late husband, who was
working on the post of Junior Clerk in the
office of District Youth Welfare and
Regional Development Team, Sonbhadra.

(7) The record available before this
Court in the instant appeal reveals that on
30.05.1990, late Naeem Khan, husband of
the respondent/writ petitioner, was engaged
as daily wager by the District Youth
Welfare and Regional Development Team
Officer on the post of Guard/Clerk as
Volunteer
w.e.f.
01.06.1990.
While
continuing to work as daily wager for about
four years, late Naeem Khan, husband of
the respondent/writ petitioner, preferred a
representation seeking to grant him regular
pay-scale on the post of Clerk on the
ground that three similarly situated persons
were granted the regular pay-scale of Clerk
in the year 1990, however, no heed was
paid to his claim and as such, late Naeem
Khan,
husband
of
respondent/writ
petitioner, preferred Claim Petition No.545
of 19996 before the State Public Services
Tribunal.
The
Tribunal,
vide
judgment/order dated 06.12.2005, allowed
the claim petition with costs of Rs.2000/-
with the following directions :-

"The petitioner is held entitled to
regular pay-scale of Rs.950-1500 from the
10 All. State of U.P. & Ors. Vs. Mustari Begum
873
date his junior Arun Kumar Pandey was
granted regular pay scale. The petitioner
shall be entitled to all consequential
benefits as well. The opposite parties are
directed to pay the regular pay scale to the
petitioner with other consequential benefits
within three months from the date of
service of the certified copy of this order
with effect from the date petitioner's junior
Mr. Arun Kumar Pandey was getting the
regular pay scale i.e. 16.6.1990."

(8)

Pursuant
to
the
aforesaid
judgment/order dated 06.12.2005 passed by
the learned Tribunal, late Naeem Khan, the
Director General of District Youth Welfare
and Regional Development, Lucknow
issued an order dated 13.10.2006, directing
to pay salary in the regular pay-scale of
Rs.950-1500 together with all admissible
allowances for the post of Junior Clerk
w.e.f. 15.10.1992. Further, revised payscale of Rs.3050-4590 together with all
admissible allowances for the post of
Junior Clerk w.e.f. 01.03.2004 was also
granted
to
the
husband
of
the
respondent/writ petitioner, however, these
all pay-scales were subject to the final
outcome of pending writ petition No.7226
(S/B) of 1992 : Arun Kumar Pandey and
others Vs. State of U.P. and others.

(9) The record of the case further
reveals that while continuing to work in the
establishment as daily wager and being
paid regular pay-scale under the aforesaid
order dated 13.10.2006, Naim Khan,
husband of the writ petitioner/respondent,
expired on 31.08.2007. Thereafter, the writ
petitioner/respondent
submitted
various
applications to the State authorities for
grant of retirement dues of her late husband
as well as family pension and the last
application in this regard was dated
11.09.2017, however, as no heed was paid,
the writ petitioner/respondent preferred
writ petition No. 7417 (S/S) of 2018 : Smt.
Mustari Begum Vs. State of U.P. and others
before this Court. The learned Single
Judge,
vide
judgment/order
dated
15.03.2018,
while
disposing
of
the
aforesaid
writ
petition,
directed
the
Director General of the of District Youth
Welfare
and
Regional
Development,
Lucknow to take a final decision of the
representation
of
the
writ
petitioner/respondent
dated
11.09.2017
strictly in accordance with law.

(10) In compliance of the aforesaid
order dated 15.03.2018, the Director
General of the of District Youth Welfare
and Regional Development, Lucknow,
considered the representation of the writ
petitioner/respondent and rejected the same
vide order dated 25.01.2019 with an
observation that the late husband of the writ
petitioner/respondent was working as daily
wager; her husband was not appointed
against
any
substantive
post
on
a
permanent establishment; services of her
husband were never regularized; and there
was
no
provision
for
grant
of
pension/family
pension
to
employees
working as daily wager.

(11) Aggrieved by the aforesaid order
dated
25.01.2019,
the
respondent/writ
petitioner
preferred
a
writ
petition
registered as Writ-A No. 19513 of 2019
before this Court, praying inter alia for
grant of family pension, retiral dues,
gratuity etc. on the demise of her husband.
The said writ petition was disposed of vide
judgment/order dated 20.03.2023, wherein
the learned Single Judge of this court while
setting aside the order dated 25.01.2019,
also directed the State authorities to
calculate retirement-cum-death dues of late
husband of the writ petitioner/respondent
874 INDIAN LAW REPORTS ALLAHABAD SERIES
and pay the same, in accordance with law,
within a period of two months from the
date of the order and also pay family
pension, as admissible,
to
the
writ
petitioner/respondent. The reasons that
weighed with the learned Single Judge for
disposing of the writ petition could be
found from the following passages of the
impugned order:-

"5. It is also relevant to note that Arun
Kumar Pandey, who was junior to late
husband of the petitioner, was granted
regular
pay-scale
with
effect
from
16.06.1990 and, thus, he was found to be
entitled regular pay-scale for the post of
junior clerk with effect from 16.06.1990. It
appears that the said judgement and order
of the Tribunal was not complied with and
late husband of the petitioner filed
contempt petition. Thereafter, vide order
dated 13.10.2006 passed by the Director
Director
General,
Prantiya
Rakshak
Dal/Vikas Dal Evam Yuva Kalyan, U.P.,
Lucknow, late husband of the petitioner
was paid salary in regular pay-scale of Rs
950-1500 together with all admissible
allowances for the post of junior clerk with
effect from 15.10.1992 and thereafter in
revise pay-scale of Rs. 3050-4590 together
with all admissible allowances with effect
from 01.03.2004. In the order dated
13.10.2006 passed by the Director Director
General, Prantiya Rakshak Dal/Vikas Dal
Evam Yuva Kalyan, U.P., Lucknow in case
of late husband of the petitioner, it was
mentioned
that
the
aforesaid
order,
granting him regular pay-scale with effect
from 15.10.1992, would be subject to final
outcome of the Writ Petition No.7226 (S/S)
of 1992, Arun Kumar Pandey and others
Vs. State of U.P. and others. Late husband
of the petitioner died on 31.08.2007, while
he was in service. He was paid regular payscale of the junior clerk till his death.

6. Writ Petition No.7226 (S/S) of 1992
(Arun Kumar Pandey and others Vs. State
of U.P. and others) was finally disposed of
vide order dated 04.10.2012 passed by this
Court on the ground that the petition has
been rendered infructuous inasmuch the
petitioners in the said writ petition were
granted regular pay-scale of Rs.52,000 to
20200 pursuant to the interim order passed
passed in the said writ petition and a
decision had also been taken to regularize
their service. The order dated 04.10.2012
has been placed on record as Annexure-3,
which reads as under:-

"The Standing Counsel informs that
the petitioner is getting pay-scale under the
strength of interim order passed by this
Court, in the pay-scale of 5200-20200.
Now the decision has been taken for their
regularization forthwith by creating the
supplementary post by means of order
dated 20.10.2010 issued by the Director
General, P.R.D., Lucknow.

In light of the aforesaid facts, I am of
the views that the writ petition has rendered
infructuous and the same is disposed of
finally in the terms of decision aforesaid
and with a direction that regularization of
the petitioner be made positively within a
period of three months after the date of
receipt of certified copy of this order."

7. Thus, Arun Kumar Pandey, who was
junior to the petitioner, was not only
granted regular pay-scale for the post of
junior clerk but his services were also
regularized. Once service of junior to late
husband of the petitioner was regularized,
it does not lie in mouth of the respondents
to submit that late husband of the petitioner
was not working against any sanctioned
post. Judgement and order passed by the
Tribunal had been complied with, however,
while implementing the said judgment and
order, as mentioned above, it was directed
10 All. State of U.P. & Ors. Vs. Mustari Begum
875
that the same shall be subject to final
outcome of the Writ Petition No. 7226 (S/S)
of 1992 filed by Arjun Kumar Pandey. Late
husband of the petitioner had rendered
regular service for more than 10 years
before he died on 31.08.2007."

(12)

Feeling
aggrieved
and
dissatisfied with the aforesaid decision
dated
20.03.2023,
the
State
authorities/appellants has filed this intra
Court appeal.

(13) Learned Standing Counsel
representing the State authorities/appellants
drawing our attention to the reasoning
recorded by the learned Single Judge while
passing the impugned judgment/order, has
argued
that
the
husband
of
the
respondent/writ petitioner had not been
regularized till the date of his demise and
had remained a daily wager. He argued that
in compliance of the judgment/order dated
06.12.2005 (supra) passed by the learned
Tribunal in Claim Petition No. 543 of 1996
coupled with the Government Order dated
12.10.2006, the Director General had
passed order dated 13.10.2006, by which
from 15.10.1992 till the date of demise of
the
husband
of
the
writ
petitioner/respondent
i.e.
31.08.2007,
salary of the late husband of the writ
petitioner/respondent was drawn/paid in the
pay-scale of the post of Junior Clerk.
According to him, late husband of the writ
petitioner/respondent was not appointed
regularly or regularized by the appointing
authority against any vacant/substantive
post, therefore, her late husband does not
fall within the category of 'regular
government servant' and services rendered
by
the
late
husband
of
the
writ
petitioner/respondent as daily wager even
in the pay-scale ordered to be paid by the
Court in work-charge establishment cannot
be treated as ad hoc or temporary service.

(14) Elaborating his submission,
learned Standing Counsel has submitted
that for the purposes of pensionary benefits,
the State Government, vide notification
dated 05.03.2021, has rescinded ordinance
No. 19 of 2020 and enforced 'Uttar Pradesh
Qualifying
Service
for
Pension
and
Validation Act, 2021' and has also made
amendments
in
the
U.P.
Retirement
Benefits Rules, 1961 effective w.e.f.
01.04.1961. Thus, regarding admissibility
of pensionary benefits by taking into
account the services rendered by late
Naeem
Khan,
husband
of
the
writ
petitioner/respondent as Clerk/Volunteer,
according to the provisions of Article 361
of Civil Service Regulations and the Uttar
Pradesh Qualifying Service for Pension and
Validation Act, 2021, it would not be apt to
treat the services of the late husband of the
writ petitioner/respondent as rendered in
the regular establishment for the purposes
of providing pensionary benefit to the writ
petitioner/respondent, particularly when the
appointment of late husband of the writ
petitioner/respondent was not made in
accordance with the provisions of the
service rules prescribed by the Government
for the said post. In these backdrops, his
submission is that the reasoning recorded
by the learned Single Judge while passing
the impugned judgment is erroneous and
the same is liable to be set-aside.

(15) Per contra, learned Counsel
representing the writ petitioner/ respondent
has
supported
the
impugned
judgment/order passed by the learned
Single Judge and has argued that regular
pay-scale was granted to the late husband
of
the
writ
petitioner/respondent
consequent upon the direction of the
876 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Tribunal dated 06.12.2005, by the
Authority on 13.10.2006. However, in the
said order dated 13.10.2016, it was
mentioned that the order dated 13.10.2006
would be subject to the final outcome of
writ petition No. 7226 (S/B) of 1992.
According to him, writ petition No. 7226
(S/B) of 1992 was disposed of vide
judgment/order dated 04.10.2012 in terms
of the decision taken by the Director
General dated 20.10.2010, whereby the
decision
has
been
taken
for
their
regularization forthwith by creating the
supernumerary posts and direction was
issued by the learned Court in the said writ
petition to regularize the services of the
writ petitioner in that matter. The learned
Single Judge, while passing the impugned
judgment/order, taking note the aforesaid
judgment/order dated 04.10.2012 (supra),
has rightly opined that once the service of
junior to late husband of the writ petitioner
was regularized, it does not lie in the mouth
of the State authorities to submit that late
husband of the writ petitioner was not
working against the sanctioned post.
According to him, the late husband of the
writ petitioner/respondent was drawn/paid
regular salary for more than ten years
before her husband demised on 31.08.2007,
hence there is no illegality or perversity in
the impugned judgment/order passed by the
learned Single Judge.

(16) Having regard to the submissions
advanced by the learned Counsel for the
parties and going through the record
available before this Court in the instant
special appeal, it is required to be noted
that the only issue that arises for our
consideration in the instant appeal is as to
whether the deceased husband of the
respondent/writ petitioner was a regular
employee of the appellants and if not,
would the writ petitioner/respondent still be
entitled to receive family pension if the
deceased had remained a daily wager in the
establishment of the appellants till the date
of her husband's demise.

(17) Under U.P. Retirement Benefit
Rules, 1961 (hereinafter referred to as
"Rules, 1961"), "qualifying service" is
defined in Rule 3(8) of Rules, 1961, which
is extracted hereunder :-

"Rule 3. in these rules, unless is
anything repugnant in the subject or
context-

(1) ........

(2) ........

(8)
"Qualifying
service"
means
service which qualifies for pension in
accordance with the provisions of Article
368 of the Civil Service Regulations.
Provided that continuous temporary or
officiating service under the Government
of
Uttar
Pradesh
followed
without
interruption by confirmation in the same
or any other post except-

(i)
periods
of
temporary
or
officiating service in a non-pensionable
establishment.

(ii) periods of service in a workcharged establishment and

(iii) periods of service in a post paid
from contingencies shall also count as
qualifying service.

Note:- If service rendered in a nonpensionable establishment work-charged
establishment or in a post paid from
contingencies falls between two periods
of temporary service in a pensionable
establishment or between a period of
temporary service and permanent service
in a pensionable establishment, it will not
constitute an interruption of service."

(18) Regulations 361, 368 and 370 of
Uttar Pradesh Civil Services Regulations,
10 All. State of U.P. & Ors. Vs. Mustari Begum
877
which are relevant in the present context,
are extracted hereunder :-

"361. The service of an officer does
not qualify for pension unless it conforms
to the following three conditions: -

First - The service must be under
Government.

Second - The employment must be
substantive and permanent.

Third- The service must be paid by
Government

368. Service does not qualify unless
the officer holds a substantive office on a
permanent establishment.

370.
Continuous
temporary
or
officiating service under the Government of
Uttar Pradesh followed without interruption
by confirmation in the same or any other
post shall qualify, except -
(i) periods of temporary or officiating
service in non-pensionable establishment;
(ii) periods of service in work charged
establishment; and
(iii) periods of service in a post paid from
contingencies."

(19) From the aforesaid provisions, it is
crystal clear that the qualifying service is
the one which is in accordance with the
provisions of Regulation 368 i.e. holding a
substantive
post
on
a
permanent
establishment. The proviso to Rule 3 (8)
clarify that continuous, temporary or
officiating
service
followed
without
interruption by confirmation in the same or
any other post is also included in the
qualifying service except in the case of
periods of temporary and officiating service
in a non-pensionable establishment. The
Note appended to Rule 3(8) contains a
provision that if the service is rendered in a
non-pensionable
establishment,
workcharged establishment or in a post paid
from contingencies, falls between two
periods
of
temporary
service
in
a
pensionable establishment or between a
period of temporary service and permanent
service in a pensionable establishment, it
will not constitute an interruption of
service. Thus, note contains a clear
provision to count the qualifying service
rendered in work-charged, contingency
paid and non-pensionable establishment to
be counted towards pensionable service, in
the exigencies provided therein.

(20) The provisions contained in
Regulation 370 of the Civil Services
Regulations excludes service in a nonpensionable establishment, work-charged
establishment and in a post paid from
contingencies
from
the
purview
of
qualifying service. Under Regulation 361
of the Civil Services Regulations, the
services must be under the Government and
the employment must be substantive and
permanent basis.

(21) The record available before this
Court in the instant special appeal reveals
that Annexure No.CA-1 to the counter
affidavit filed on behalf of the State
authorities in the writ petition is the
appointment order of late husband of the
writ petitioner/ respondent, which is
reproduced as under :-

vkns'k

ftykf/kdkjh egksn; lksuHknz ds vkns'k fnukad
29-05-1990 ds vuqikyu esa Jh u;he [kkW iq= Jh
bLekby [kkW xzke nukSjk fodkl [k.M jkcVZlxat dh
fM;wVh nSfud etqnjh ij dk;kZy; esa xkMZ@fyfid
in ij dh tkrh gSA ;g fu;qfDr iw.kZr;k vLFkk;h gS
RkFkk fdlh Hkh le; jn dh tk ldrh gSA nSfud
etnwjh 233⁄400 ¿rkbZl :i;kÀ ek= izfr fnu dh nj
ls ns; gksxhA

Jh [kkW dks vkns'k fn;k tkrk gS fd os vius
;ksxnku dh lwpuk ftyk ;qok dY;k.k ,oa izk0fo0ny
vf/kdkjh lksuHknz ds le{k izLrqr djsA
30-5-1990"
878 INDIAN LAW REPORTS ALLAHABAD SERIES

(22) From the aforesaid appointment
letter dated 30.05.1990, it is revealed that
late
husband
of
the
writ
petitioner/respondent was appointed as
daily wager on the post of Guard/Clerk
under the order of the District Magistrate,
Sonbhadra dated 29.05.1990 and his
appointment on the said post could be
cancelled any time. In pursuance of the
aforesaid order dated 30.05.1990, late
husband of the writ petitioner/respondent
joined the duty w.e.f. 01.06.1990 as daily
wager. While continuing as daily wager for
about four years, late husband of the writ
petitioner/respondent has laid claim for
being considered to be paid regular salary
and when nothing was gained from the
department, he approached the Tribunal by
filing claim petition No. 545 of 1996. The
learned Tribunal, vide judgment/order
dated 16.12.2005, allowed the said claim
petition with direction to pay regular payscale of Rs.950-1500 to late husband of the
writ
petitioner/respondent
with
other
consequential benefits from the date his
junior Arun Kumar Pandey was granted
regular pay-scale. In compliance thereto,
vide order dated 13.10.2006, late husband
of the writ petitioner/respondent was
granted regular pay-scale of Rs.950-1500
from the date his junior, namely, Arun
Kumar Pandey, was granted i.e. w.e.f.
15.10.1992 and also revised pay-scale of
Rs.3050-4590 w.e.f. 01.03.2004 and these
pay-scales were subject to final outcome of
Writ Petition No. 7226 (S/B) of 1992 filed
by Arun Kumar Pandey i.e. junior to the
late
husband
of
the
writ
petitioner/respondent. While continuing to
work and paid in the aforesaid regular payscale in terms of the order dated 13.10.2006
(supra),
the
husband
of
the
writ
petitioner/respondent
expired
on
31.08.2007.
Thereafter,
writ
petitioner/respondent preferred writ petition
No. 7417 (S/S) of 2018 after about eleven
years from the date of demise of her
husband, which was disposed of vide
judgment/order dated 15.03.2018 with a
direction to decide the representation of the
writ petitioner/respondent regarding family
pension etc. dated 11.09.2017 strictly in
accordance with law. In compliance of the
aforesaid order dated 15.03.2018, the
representation
dated
11.09.2017
was
considered and the claim of the writ
petitioner/respondent for grant to her
family pension etc. was turned down vide
order dated 24.01.2019 inter alia on the
grounds that the appointment of the late
husband of the writ petitioner/respondent
was not against the substantive post as he
was appointed on the post of daily wager.
The said order dated 24.01.2019 was
challenged
by
the
writ
petitioner/respondent by filing Writ-A No.
19513 of 2019, which was disposed of by
the learned Single Judge vide impugned
judgment/order and the same is under
challenged in the instant appeal.

(23) The benefit of pension is a
condition of service. It is clear from the
scheme of regulations that an employee
would qualify for pension provided he
meets the requirements envisaged under the
Civil Service Regulations. It is well settled
that the conditions of recruitment cannot be
relaxed and recruitment resorted to dehors
the statutory rules is a nullity. The
authoritative
decision
in
this
regard
rendered by the Apex Court in case of
State of Karnataka v. Uma Devi : (2006)
4 SCC 1 lays down the law. When we
analyse
the
plea
of
the
writ
petitioner/respondent from this standpoint,
a daily wage employee, in our considered
opinion, cannot be equated with a regularly
selected
person.
Admittedly,
the
respondent/ writ petitioner continued to be
10 All. Beer Bahadur Singh Vs. State of U.P. & Ors.
879
a daily wager till his death on 31.08.2007
and even the judgment, which had been the
basis for the learned Single Judge for
granting the pensionary benefit came to be
passed on 04.10.2012 which merely dealt
with the issue of regularization and not
extending any pensionary benefits.

(24) The Apex Court in a catena of
judgements has spelt out the distinction,
therefore, the classification based on the
recruitment by following due procedure
under the rules and through backdoor entry
is well recognized. The writ petitioner/
respondent in the instant case has not
offered any justification as to how her
claim for family pension etc. can be
equated with the employees who have been
regularized after the death of her husband
by following the stringent process of
regularization.
The
writ
petitioner/respondent has also not laid any
foundation for establishing equivalence of
the services of her late husband as daily
wage basis or work-charge establishment to
be at par with the services of the employees
regularized after the death of her husband.
It is clear from the record available before
this Court that the appointment of late
husband of the writ petitioner/respondent
was made only on daily wage basis and
junior to her late husband was regularized
after the death of her husband under the
final order passed in writ petition No. 7226
(S/S) of 1992. The benefit of regular payscale given to the daily wage employee in
the
work-charge
establishment
would
nevertheless not qualify for pension so as to
enable the respondent for claiming family
pension. Any other benefit granted to
dependents
shall,
however,
remain
unaltered.

(25) As a result of the aforesaid
discussion, the special appeal is allowed.
The
impugned
judgment/order
dated
20.03.2023 is hereby set-aside in so far as it
relates to family pension.

(26) There shall be no order as to
costs, for the facts and circumstances of the
case.
----------
(2023) 10 ILRA 879
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 1392 of 2022

Beer Bahadur Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Singh

Counsel for the Respondents:
C.S.C.

Petitioner's candidature rejected only on the
ground of pendency of two criminal cases- FIR
was lodged against 200 boys who were
agitating for completing the recruitment and
selection process- participation in an agitation of
unemployed youths that may ultimately turn out
to be violent for reasons beyond the control -
would not be adding gravity to the offence or
involving a case of moral turpitude- petitioner
had disclosed both the criminal cases and in one
of the cases now he has been acquitted-in the
other case- order impugned quashed.

W.P. allowed. (E-9)

Cases cited:

1. Avatar Singh Vs U.O.I. & ors. 2016 (8) SCC
471

2. Umesh Chand Vs St. of UP & ors. decided on
24.03.2023 in SpecialAppeal No.67 of 2023