JUDGMENT D. S. Sinha, J. - Hari Shanker Asopa. a retired Professor of Surgery, belonging to the services of State Medical College in the State of Uttar Pradesh, has approached this Court under Article 226 of the Constitution of India for issuance of appropriate writ, orderor direction in the nature of mandamus commanding the State of U.P. through Secretary, Uttar Pradesh Shasan, Medical and Health Department, Lucknow and the Director of Medical Health and Family Welfare, U.P. Lucknow, arrayed as respondent Nos. 1 and 2 in the petition, to pay him pension and other retirement benefits with effect from the date of his voluntary retirement i.e. 21st Feb., 1983 and also to consider his case for confirmation on the various posts, upon which, he had worked in the Department of Surgery while in service and to confirm him with due date as has been done in the case of other teachers vide Government Order dated 11th Feb., 1985. 2. The uncontroverted facts, as they emerge from the pleadings contained in the petition, are these: Consequent upon his selection by the U.P. Public Service Commission for the post of Lecturer in Experimental and Clinical Surgery in the services of State Medical Colleges of Uttar Pradesh and approval by the State Government the for Dr. Asopa was appointed on the post of Lecture in the Department of Surgery at S. N. Medical College. Agra. on temporary basis, as is evident from the communication dated 4th Aug., 1964. a true copy whereof is annexure I to the petition, and he joined on the said post in Oct. 1964. 3. In July, 1969, Dr. Asopa was appointed on it substantive post of Reader in Surgery at S. N. Medical College. Agra. vide order tit. 18th July. 1969). This appointment too was temporary in nature. The appointment was to continue fora period of one year till the candidate selected by the U.P Public Service Commission was available, whichever was earlier. Later on by another order (It. 10th Oct.1969) Dr. Asopia was appointed on the post of Reader in surgery temporarily w.e.f. 24th July, 1969. The Government Order dated 4th July. 1970, (Annexure 4 to the petition) indicates that, on the advice of the U.P. Public Service Commission, the Governor of Uttar Pradesh had approved the regular temporary appointment of Dr. Asopa with effect from the date of the said order. 4. The Government Order dated 4th July. 1970, (Annexure 4 to the petition) indicates that, on the advice of the U.P. Public Service Commission, the Governor of Uttar Pradesh had approved the regular temporary appointment of Dr. Asopa with effect from the date of the said order. 4. After serving for about three years as Reader, Dr. Asopa received further advancement in the career when he was promoted to the post of Professor in Surgery and posted at Maharani Lakshmibai Medical College, Jhansi, vide order dated 9th June, 1972. This appointment also was temporary but was to survive for it period of one year or till the candidate regularly selected by the U. P. Public Service Commission was available or till the services of Dr. Asopa were needed. whichever was earlier. Dr. Asopa joined on the post of Professor at Jhansi accordingly. Again, by means of the Government Order (dt. 3rd Nov., 1973 (Annexure 6 to the petition) the appointment of Dr. Asopa on the post of Professor of Surgery in the services of State Medical Colleges was approved by the Governor of Uttar Pradesh on the recommendation of the U.P. Public Service Commission on temporary and regular basis. 5. Dr. Asopa uninterruptedly served the Government of Uttar Pradesh in the capacities of Lecturer, Reader and Professor of Surgery fora pretty long period of more than 18 years but no steps, as asserted in the petition, were taken by the respondents for his confirmation, although, on his representation dated 12th Oct, 1978, he was informed that the question of confirmation of the teachers of Surgery Department of the State Medical Cullers was under consideration of the Government and the orders in that regard would be communicated to him as it transpires from the communication dated 4th April. 1979, a true copy where of is Annexure 8 to the petition. 6. It appears that in the year 1982 Dr. Asopa felt some difficulty in continuing in the service of the State Medical Colleges and he sought permission of the Government to retire voluntarily, vide his communication, a true copy whereof is appended as Annexure 9 to the petition. The Government by means of its order dated 21st Feb., 1983 permitted Dr. Asopa to retire voluntarily. but attached a condition that no pension would be paid to hint inasmuch as he was not permanent on any post of the Government service. The Government by means of its order dated 21st Feb., 1983 permitted Dr. Asopa to retire voluntarily. but attached a condition that no pension would be paid to hint inasmuch as he was not permanent on any post of the Government service. This order (It. 21st Feb.. 1983 is to be found on record as Annexure 10 to the petition. 7. Having felt aggrieved with the condition attached to the permission for his voluntary retirement with regard to non-payment of pension to him Dr. Asopa made it representation to the Government of Uttar Pradesh through Secretary of Medical and Health Section I in Aug, 1983 which remained unattended. He. therefore, again sent a representation in Nov.. 1984. Copies of these representations are Annexures 12 and 13 to the petition. The second representation of Dr. Asopa also went unheeded. He, therefore, after waiting for about three years approached this Court on 6th Feb., 1987. 8. Despite time being granted repeatedly the respondents failed to file any counter- affidavit leaving Court to adjudicate the claim of Dr. Asopa on the basis of the averments made in his petition and the oral submissions of counsel for the parties. 9. Shri S.C. Budhwar and Sri M. C. Dwivedi advanced arguments on behalf of Dr. Asopa and the respondents respectively. 10. The twin contentions raised on behalf of Dr. Asopa were as follows : (a) He had it right to it retiring pension and denial thereof on the ground of his not being permanent on any post of the Government Service was illegal being violative of Cl. (e) of R. 56 of the Uttar Pradesh Fundamental Rules, contained in Financial Hand Book, Volume II, Parts II to IV, issued by authority of the Government of Uttar Pradesh. (b) He was discriminated against by the Government in as much as his case for confirmation was not considered along with the cases of other teachers of the Surgery Department of the State Medical Colleges who were confirmed with retrospective effect. vide Government Order dated 11-2-1985, Annexure 13 to the petition. 11. On the other hand the learned Standing Counsel for the State of U.P. relying on the provisions of the Civil Service Regulations. Parts I. IV and X (as adopted for application in Uttar Pradesh) urged that Dr. Asopa was not entitled to any pension. vide Government Order dated 11-2-1985, Annexure 13 to the petition. 11. On the other hand the learned Standing Counsel for the State of U.P. relying on the provisions of the Civil Service Regulations. Parts I. IV and X (as adopted for application in Uttar Pradesh) urged that Dr. Asopa was not entitled to any pension. He also urged, though faintly, that on the material on record no case for discrimination was made out. 12. It cannot be gainsaid that pension is a right. But it is neither innate nor absolute. It has got to be acquired, rather earned, and is subject to the relevant rules or regulations. Right to receive pension emanates from the rules or regulations which define the conditions under which pension is earned by service. Conditions tinder which pension is earned by service under the Government of the State of Uttar Pradesh are stipulated in Civil Service Regulations, Parts I, IV and X (as adopted for application in Uttar Pradesh), hereinafter called the Regulations and in Rule 56 of the Uttar Pradesh Fundamental Rules, contained in Financial Hand Book. Vol. II to IV, issued by authority of the Government of Uttar Pradesh. hereinafter called the Rules. 13. Article 42,. in Chapter XVIII of the Regulations, divides pensions for services under the Government of Uttar Pradesh into four classes, namely (a) compensation pensions, (b) invalid pensions, (c) superannuation pensions, and (d) retiring pensions, In the instant case we are concerned with the grant of a retiring pension. 14. Under Articles 465 and 465-A of the Regulations a retiring pension is granted on being permitted to retire after completing 'qualifying service' for twenty fives years or on attaining the age of fifty years or on being required to retire after completing twenty five years or more of "qualifying service" "qualifying service' is defined in Section 1 of Chapter XVI of the Regulations and Article 361 thereof, which stipulates conditions ' ,of qualifications. provides that service of an officer does not qualify for pension unless it conforms three conditions, firstly, service must be under Government, secondly, the employment must be substantive and permanent, and, thirdly, the service must be paid by Government. These conditions are explained in Ss. II, III and IV, of said Chapter. 15. There appears to be no dispute that in the instant case first and third conditions are satisfied inasmuch as Dr. These conditions are explained in Ss. II, III and IV, of said Chapter. 15. There appears to be no dispute that in the instant case first and third conditions are satisfied inasmuch as Dr. Asopa has not been denied retiring pension for non- conformity to any of these two conditions. The ground on which the retiring pension has been denied to Dr. Asopa appears to be founded on the absence of second condition, viz., lack of permanent character of his services. Admittedly, the character of his services was temporary and not substantive and permanent. The vital aspect for consideration, therefore, is the relevance of the ground of Dr. Asopa not being permanent on any of the posts held by him during the tenure of his continuous service under the Government of Uttar Pradesh for denying him the retiring pension. 16. The requirement of employment being substantive and permanent. which is one of the three basic constituents of 'qualifying service', envisaged in Articles 465 and 465-A. has ceased to be sine qua non for earning a retiring pension by service under the Government of Uttar Pradesh after 7th June, 1975 with effect from which date the Uttar Pradesh Fundamental Rule 56 (Amendment and Validation) Act, 1975 U. P. Act No. 24 of 1975), amending Rule 56 of the Rules and rescinding Articles 465 and 465-A of the Regulations, has been enforced. Now the source for attaining the right to retiring pension is R. 56, which runs as below/: "56.(a) Except as otherwise. provided in ether clauses of this rule the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the (Date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction if the Government on public grounds, which must he recorded in writing, but he must not be retained after the age of 60) years except in very special circumstances. (b) The date of compulsory retirement of a Government servant in) inferior service is the date on which he attains the age of 600 years he must not be retained in service after that (Date. except in very special, circumstances and with sanction of the Government. (b) The date of compulsory retirement of a Government servant in) inferior service is the date on which he attains the age of 600 years he must not be retained in service after that (Date. except in very special, circumstances and with sanction of the Government. (c) Notwithstanding anything,contained in clause (a) or clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed/qualifying service twenty years (d) The period of such notice shall three months: Provided that: (i) any such Government servant man by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after- attaining the age of fifty years and on such retirement the Government Servant(shall be entitled to claim a sum equivalent to the amount of his pay plus allowance. if any. for the period of the notice or, as the case may be, for the period by which such notice falls short of three months. at the some rates at which he was drawing immediately before his retirement: (ii) it shall be open to the appointing authority to allow it Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penally in lieu of notice. Provided further that such notice given by Government servant against whom a disciplinary proceeding is pending or contemplated, shall the effective only if it is accepted by the appointing authority, provided that in the case of be contemplated disciplinary proceeding else Government servant shall be informal before the expiry of his notice that it has not been accepted: Provided also that the notice once given by a Government servant under Cl. (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority. (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority. (e) A retiring pension shall he payable, and other retirement benefit, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule: Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointment authority may allow him, for the purpose of Pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever he less: Explanation (1) - The decision of the appointing authority under Cl. C to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall he construed to require any recital, in the, order, of such decision having been taken in the public interest. (2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause tee the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration. (a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis, or (b) arty entry against which a representation is pending. provided that the representation is also taken into consideration along with the entry, or (c) any report of the Vigilance establishment constituted trader the Uttar Pradesh Vigilance Establishment Act, 1965. (2A) Every such decision shall be deemed to have been taken in the public interest. (3) The expression 'appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire, and the expression 'qualifying service shall have the same meanings in the relevant rules relating to retiring person. (3) The expression 'appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire, and the expression 'qualifying service shall have the same meanings in the relevant rules relating to retiring person. (4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to CI. (d) of this rule shall have effect from the afternoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned. bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired." (N. B. Emphasis supplied). 17. Clause (e) of Rule 56 unequivocally recognises, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Cl. (a) or Cl. (b). or who is required to retire, or who is allowed to. retire under Cl. (c) of R. 56, becomes entitled for a retiring pension, provided, of course , the first and third conditions stipulated in Article 361 of the Regulations are satisfied. 18. In the instant case, indisputably, Dr. Asopa who (was?) allowed to retire under Cl. S(c) of R. 56 and the first and third conditions envisaged in Article 361 of the Regulations were satisfied. He, therefore, became qualified for a retiring pension notwithstanding the fact that he was not permanent on any of the posts held by him during the tenure of his continuous services of State Medical Colleges of Uttar Pradesh Government. Denial of retiring' pension to Dr. Asopa on the ground of his not being permanent on any post of the Government service was clearly violative of Cl. (e) of R. 56 of the Rules. Condition contained in paras 2 of the order dated 21st Feb., 1983 (Annexure 10 to the writ petition, depriving Dr. Asopa of retiring pension cannot, therefore, be sustained. The contention of the learned Standing Counsel for the State of Uttar Pradesh that Dr. Asopa was not entitled to any pension lacks merit and has got to be rejected. 19. Condition contained in paras 2 of the order dated 21st Feb., 1983 (Annexure 10 to the writ petition, depriving Dr. Asopa of retiring pension cannot, therefore, be sustained. The contention of the learned Standing Counsel for the State of Uttar Pradesh that Dr. Asopa was not entitled to any pension lacks merit and has got to be rejected. 19. The first contention of Dr. Asopa having been upheld his second contention does not call for any probe. 20. For what has been said above the petition succeeds and is allowed. Condition contained in para -2 of the order dated 21st Feb., 1983 (Annexure 10 to the writ petition), depriving Dr. Asopa of retiring pension, is quashed. The respondents are commanded to grant and pay to Dr. Asopa retiring pension and other retiring benefits admissible under rules, within a period of two months from today. There will be no order as to costs.