JUDGMENT By the Court.—Heard Sri M.C. Chaturvedi, learned Chief Standing Counsel assisted by Sri G.C. Upadhyaya, learned Standing Counsel for appellants-respondents in these two appeals and Sri Ramanuj Pandey, learned Counsel for Ram Pratap Shukla and Sri B.P. Srivastava, learned Counsel for Sita Ram. 2. These two special appeals raise similar question of facts and law, hence both are being decided by this common judgment. 3. Special Appeal No. 1338 of 2006 has been filed against the judgment and order passed by the learned Single Judge dated 27th March, 2006, whereby the writ petition No. 43128 of 2003 filed by respondent, Ram Pratap Shukla has been allowed. 4. Brief facts necessary for deciding the case of Ram Pratap Shukla are that he was appointed on 20th December, 1976 as helper in the work-charged Department of Irrigation Department of U.P. His services were regularised in the year 1993. He continued to work as regular employee and retired on 31st July, 2002. 5. A claim was raised by Ram Pratap Shukla for payment of pension. The said claim was rejected by the department concerned taking the view that the period during which the petitioner, Ram Pratap Shukla worked in work-charged Establishment cannot be added and from the date of regularization he had not completed the qualifying service of 10 years necessary for payment of pension. Feeling aggrieved by the same, Ram Pratap Shukla filed the aforesaid writ petition, which has been allowed by the learned Single Judge vide order dated 27th March, 2006. The order of the Additional Director, Treasury and Pension, Allahabad Division, Allahabad dated 31st January, 2003 rejecting the claim of the petitioner has been quashed. The respondents-appellants have been directed to pay pensionary benefits to the petitioner within a period of three months from the date of production of the certified copy of the order. 6. Special Appeal No. (950) of 2007 has been filed against the judgment and order passed by the learned Single Judge dated 19th May, 2006, whereby writ petition No. 26212 of 2002 filed by respondent, Sita Ram has been allowed. 7. Brief facts necessary for deciding the case of Sita Ram are that he was appointed in the year 1961 as a Pump Operator in the work-charged Establishment of Irrigation Department of U.P. His services were regularized under order dated 6th February, 1994. 7. Brief facts necessary for deciding the case of Sita Ram are that he was appointed in the year 1961 as a Pump Operator in the work-charged Establishment of Irrigation Department of U.P. His services were regularized under order dated 6th February, 1994. He continued to work as regular employee and retired on 31st March, 1996. 8. A claim was raised by Sita Ram for payment of pension. The claim of Sita Ram was rejected by the Department on identical plea as in the case of Ram Pratap Shukla referred to above. Feeling aggrieved by the same, Sita Ram filed aforesaid writ petition No. 26212 of 2002, which has been allowed by the learned Single Judge vide judgment and order dated 19th May, 2006. Learned Single Judge while allowing the writ petition has directed the respondents-appellants to pay the pensionary and other retiral benefits to the petitioner within a period of six weeks from the date of production of certified copy of the order of the Court along with interest at the rate of 6% from the date of entitlement till the date of payment. 9. Learned Chief Standing Counsel for the appellants challenging the judgment and orders dated 27th March, 2006 and dated 9th May, 2006 impugned in the aforesaid two appeals, contends that the respondents-petitioners were initially appointed in the work-charged Establishment in the years 1974 and 1961 respectively, they were regularised in the year 1993 and 1994 respectively. It is further contended that after regularization, they did not compete ten years of regular service. Hence according to the Government Order dated 1st July, 1989, they were not entitled to benefit of pension. It is further contended that the respondents-petitioners were working in the work-charged Establishment and by virtue of Regulation 370 of Civil Services Regulations, such period of working being non-pensionable cannot be added nor any benefit of pension can be granted. He has placed reliance upon the Division Bench Judgment of this Court in the case of Bansh Gopal v. State of U.P., 2006 (6) ADJ 384 (DB). 10. Sri B.P. Srivastava and Sri Ramanuj Pandey, learned Counsel for Sita Ram and Ram Pratap Shukla, respondents-petitioners in reply submits that the respondents-petitioners had worked for such a long period on regular basis, therefore, were entitled to benefit of pension. 10. Sri B.P. Srivastava and Sri Ramanuj Pandey, learned Counsel for Sita Ram and Ram Pratap Shukla, respondents-petitioners in reply submits that the respondents-petitioners had worked for such a long period on regular basis, therefore, were entitled to benefit of pension. Learned Counsel for the respondents-petitioners also disputed the fact that their appointment was in work-charged establishment of the Department, therefore, they seek addition of the temporary service also for the benefit of pension. 11. Sri Ramanuj Pandey, learned Counsel for Ram Pratap Shukla, has submitted that this Court vide judgment and order dated 5th December, 2002 passed in Civil Misc. Writ Petition No. 36125 of 1996; State of U.P. through Secretary, Irrigation Department, U.P. Lucknow and another v. Presiding Officer, Industrial Tribunal-IV, Agra, has dismissed the writ petition upholding the award of the Presiding Officer, Industrial Tribunal (IV), Agra treating such kind of employees to be regularly appointed, and entitled for pensionary benefit. The Judgment of the High Court is stated to have been upheld by the Hon’ble Supreme Court of India by dismissing the special leave to appeal. 12. We have considered the submissions made by the learned Counsel for the parties and have perused the records. 13. Dates of appointment/engagement, regularization and retirement of respondents-petitioners are not in dispute. Although the learned Counsel for the respondents-petitioners sought to submit that their engagement cannot be said to be in work-charged establishment of the department, but from perusal of the pleadings of the writ petition, it is clear that no such plea was raised both. It had specifically been stated in the counter affidavit filed in the writ petition that the petitioner was engaged in the work-charged establishment of the department and he worked as work-charged employee. He has drawn the wages as work-charged employee and was engaged against a particular project. 14. The learned Single Judge, in the impugned judgment has also not entered into the issue as to whether the respondents-petitioners were work-charged employees or not. The basis of the judgment is that the earlier services rendered by the employee has to be taken into consideration. Hence they are entitled to benefit of pension. 15. We are, therefore, not persuaded to enter into the consideration of submissions made qua the nature of engagement during the period prior to the date of regularization. 16. The basis of the judgment is that the earlier services rendered by the employee has to be taken into consideration. Hence they are entitled to benefit of pension. 15. We are, therefore, not persuaded to enter into the consideration of submissions made qua the nature of engagement during the period prior to the date of regularization. 16. It is well settled that where the nature of employment is challenged, appropriate forum for such challenge is the Labour Court, wherein the issues of facts can be decided after the evidence is led, as has been laid down by the Apex Court in the case of State of Haryana and others etc. etc. v. Piara Singh and others etc., AIR 1992 SC 2130 . 17. Thus, in these appeals the issue is as to whether an employee who has worked in the work-charged establishment is entitled for addition of the services rendered as such for the benefit of pension or not, if he was subsequently regularized in the department. 18. Regulation 370 of Civil Service Regulations is relevant in this context, which reads as follows : “370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions 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 form contingencies, (The amendment takes effect from April 20, 1977) Note : If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid form contingencies, falls between two periods of temporary service in a pensionable establishment or between periods of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service.” 19. Learned Single Judge, while allowing the writ petitions, has referred to the Regulation 361 of the Civil Services Regulations and has relied upon the Government Order dated 1st July, 1989, and it has been observed that the petitioner has rendered considerable period of service, he is entitled for the benefit of the Government Order dated 1st July, 1989, which provided for grant of pension to such employees, even if he has not rendered regular service for a period of ten years. Said Government Order extends the benefit of pension, even to temporary employees, who have worked without break. 20. Said Government Order extends the benefit of pension, even to temporary employees, who have worked without break. 20. However, the work-charged establishment being a non-pensionable establishment, the services rendered thereunder was clearly excluded from pensionary benefit under Regulation 370 of the Civil Services Regulations. Said Government Order does not entitle the respondents-petitioners for grant of pension, contrary to said Regulation. 21. Although Regulation-361 has been noticed by the learned Single Judge, but Regulation 370, which is relevant qua work-charged establishment has escaped the attention of the learned Single Judge. 22. The Division Bench of this Court in the case of Bansh Gopal (supra) of which one of us (Hon. Ashok Bhushan, J.) was a member, had the occasion to consider a similar issue. This Court, after relying upon Regulation 370 held that the services rendered under work charge establishment are not to be included for benefit of pension. The Division Bench of this Court also considered the scope of Government Order dated 1st July, 1989 and in paragraph 18, 19 and 20 has held as follows : “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-charged establishment does not qualify for purposes of pension. 19. The appellant’s case is also not covered by the Government Order dated 1st July, 1989. The Government Order required that pension shall be payable also to temporary employee 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 work-charge establishment only by order dated 12th October, 1999 and he retired on 31st May, 2005. 20. In unreported judgment of Hon’ble Single Judge delivered on 22nd February, 2005 in Civil Misc. Writ Petition No. 53568 of 1999 (Shri Gangoo v. 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.” 23. 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.” 23. The Division Bench Judgment of this Court in the case of Bansh Gopal (supra) fully covers the issue raised in these two special appeals. 24. The Division Bench Judgment in the case of Board of Revenue and others v. Prasidh Narayan Upadhayay, 2006 (1) ESC 611 (All), which has been relied upon by the learned Single Judge, has been considered by the Division Bench in the case of Bansh Gopal (supra). Even otherwise the facts in the case of Board of Revenue (supra) were not with reference to the work-charged employee rather in respect of a temporary employee. Hence the said judgment is clearly distinguishable. It is further to be noticed that the Division Bench in Bansh Gopal (supra) had disapproved the view expressed by another learned Single Judge in the case of Shri Gangoo (supra) qua addition of services rendered in the work-charged establishment for the purposes of pension. 25. The judgment of learned Single Judge relied upon by Sri Ramanuj Pandey, learned Counsel for Ram Pratap Shukla in the case of State of U.P. through Secretary, Irrigation Department, U.P. Lucknow and another v. Presiding Officer, Industrial Tribunal-IV, Agra (supra), arose out of an award of the Labour Court, wherein the employee was declared to be employed on regular basis, and therefore, are entitled to benefit of pension. 26. In view of the Division Bench Judgment of this Court in the case of Bansh Gopal (supra), these two special appeals are allowed and the impugned judgment passed by the learned Single Judge dated 27th March, 2006 in writ petition filed by Ram Pratap Shukla and that dated 19th May, 2006 in writ petition filed by Sita Ram are set aside. We, however, make it clear that this order shall not prejudice the rights of the respondents-petitioners to pursue their claim before appropriate forum qua the nature of employment prior to their regularization, if they are so advised. ————