JUDGMENT Honble Sudhir Agarwal, J.—Heard learned counsel for the petitioner, the learned Standing Counsel for respondents No. 1, 2, 3 and 4, Sri A.K. Singh, holding brief for Satish Mandhyan for respondent No. 5. 2. Learned counsel for the parties requested and agreed that this matter may be heard and decided finally at this stage under the Rules of the Court. Hence, I proceed accordingly. 3. Counter affidavits on behalf of respondent Nos. 2 and 5 have been filed. 4. The only grievance of the petitioner is that he was a Safai Karmchari and after attaining the age of superannuation on 31st January, 1998, he was relieved from service but his retiral benefits have not been paid till date. 5. In the counter affidavit filed by the respondent No. 5, the defence taken is that the pension and other retiral benefits could not be paid due to financial crisis and they are making all efforts for payment thereof as soon as necessary funds are arranged. 6. In the counter affidavit filed by respondent No. 2, the defence taken is that the petitioner was appointed as Safai Karamchari on temporary basis and continued as such till the date of his retirement i.e. 31st January, 1998, hence not entitled for pension. 7. It is not in dispute that the matter of pension and other retiral benefits of members of non-centralized service of U.P. Nagar Palika is governed by the U.P. Nagar Palika Akendrayit Seva Nivritti Labh Viniyamawali, 1984 (hereinafter referred to as “1984 Rules”) published in official Gazette, U.P., dated 1st June, 1985 and has been enforced w.e.f. the date of publication in the Gazette vide Rule 1(2). 8. 8. The “qualifying service” is defined in Rule 2(da) as under : ¼M½ **vgZdkjh lsok** dk rkRi;Z ,slh lsok ls gS tks fuEufyf[kr dks NksM+dj] le; le; ij ;Fkk la’kksf/kr flfoy lfoZl jsxqys’kUl ds vuqPNsn 368 ds micUèkksa ds vuqlkj isa’ku ds fy, vgZrk iznku djrh gks % ¼,d½ lEc) uxjikfydk cksMZ ds v/khu ias’ku jfgr vf/k"Bku esa vLFkk;h ;k LFkkukiUu lsok dh vof/k( ¼nks½ fdlh dk;Z izHkkfjr vf/k"Bku esa lsok dh vof/k( vkSj ¼rhu½ fdlh ,sls in ij ftlds fy, vkdfLedrk fuf/k ls Hkqxrku fd;k tkrk gS] lsok dh vof/k % ijUrq lEc) cksMZ ds v/khu fujUrj vLFkk;h ;k LFkkukiUu lsok dh vof/k dh x.kuk vgZdkjh lsok ds :i esa dh tk;sxh ;fn mlh ;k fdlh vU; in ij lsok ds fdlh O;oèkku ds fcuk ckn esa mls LFkk;h dj fn;k tk;A fVIi.kh&;fn fdlh ias’ku jfgr vf/k"Bku] dk;Z izHkkfjr vf/k"Bku esa ;k vkdfLerk fuf/k ls Hkqxrku fd;s tkus okys fdlh in ij dh x;h lsok fdlh isa’ku ;ksX; vf/k"Bku esa vLFkk;h lsok dh nks vof/k ds chp ;k fdlh isa’ku ;ksX; vfèk"Bku esa vLFkk;h lsok vkSj LFkk;h lsok dh vof/k ds chp iM+rh gks rks og lsok dk O;o/kku ugha gksxhA"””””” “(m) Except for the following, ‘qualifying service implies such service which provides eligibility for pension under the provisions of Article 368 of Civil Service Regulations, as amended from time to time : (1) The temporary or officiating service period in non-pensionable establishment under concerned Municipal Board; (2) The service period in any work charged establishment; and (3) The service period on any such post, whose payment is made out of the Contingency Fund. However, the period of continuous temporary or officiating service under the concerned Board, will be calculated as qualifying service if he is subsequently confirmed on that or some other post without there being any break in service. Note.—If the service rendered in any non-pensionable establishment, work charged establishment or on any post, whose payment is made out of the Contingency Fund, falls in between two periods of temporary service in any pensionable establishment or in between the period of temporary & permanent service in any pensionable establishment, then it will not be a break in service.” (English translation by Court) 9. A perusal of the above makes it clear that it excludes only three categories from being counted from qualifying service, namely, (a) temporary or officiating service rendered in non-pensionable establishment of Nagar Palika Board ; (b) service rendered in work charge establishment, and (c) service rendered on a post for which payment is made from contingency fund. 10. However, the service rendered on temporary and officiating basis followed by confirmation is not to be treated as break in service and will be counted for as qualifying service. 11. In paragraph 4 of the writ petition the petitioner has categorically averred that he was initially appointed on temporary basis and later on confirmed, as would be evident from the following : “That petitioner was initially appointed on the post of Safai Karmchari on temporary basis but subsequently his services were confirmed on the said post from the date of appointment.” 12. Respondent No. 2 in paragraph 5 of the counter affidavit has not disputed the petitioner’s averment that he was confirmed on the post as is evident from the following : “5. That the contents of paragraph 4 of the writ petition relates to the services of the petitioner, which is being the matter of record, hence need no reply.” 13. Referring to Rule 13(2) of 1984 Rules in paragraphs 8, 11 and 13 of the counter affidavit respondent No. 2 further says that he was supposed to certify and verify complete physical verfication of the relevant papers for releasing pensionary benefits to the retired employees and in discharge of that duty, after receiving the papers pertaining to the petitioner, he checked, verified the same and transmitted it to the office of respondent No. 1. It is not his case in the entire counter affidavit that after verification of the papers of the petitioner he found him ineligible for pension. 14. The counter affidavit sworn by Sri Vijay Pal Singh, Executive Officer, Nagar Palika Parishad, Sirsaganj, District Firozabad, respondent No. 5 does not dispute the contents of paragraph 4 of the writ petition, as is evident from the following : “8. That the contents of paragraph 4 of the writ petition need no reply being matter of record relating to his service.” 15. That the contents of paragraph 4 of the writ petition need no reply being matter of record relating to his service.” 15. In the entire counter affidavit the disqualification of the petitioner for claiming pension as an unconfirmed employee has not even been whispered but the only defence taken in the counter affidavit sworn by Sri Vijay Pal Singh is that Nagar Palika Parishad, Sirsaganj is in serious financial crisis on account whereof it is not in a position to make payment despite all out efforts to arrange requisite funds to finalise retiral dues of the petitioner and in this regard in paragraph 19 of the counter affidavit of respondent No. 5 he has said as under : “19. That in reply to the contents of paragraph 18 of the writ petition it is stated that the retiral dues as admissible to the petitioner has already been released except pension for which papers for sanction of the Assistant Director, Local Funds Account has already been sent after depositing amount of pension in the Pension Contributory Account, therefore, Nagar Palika Parishad has completed its duty.” 16. It is in view of the aforesaid facts and circumstances that I do not find any reason to construe the averments contend in paragraph 6 of the counter affidavit of respondent No. 2 as it means that the petitioner was throughout a temporary employee till the date of his retirement particularly in view of the fact that specific averments made in paragraph 4 of writ petition have not been disputed by respondent No. 2 in his reply in paragraph 5 of the counter affidavit. Moreover, the petitioner was an employee of a local body of Sirsaganj and the said body, having not disputed the status of the petitioner as a confirmed employee, I see no reason to accept the contention of the learned Standing Counsel that the petitioner was a temporary employee and, therefore, his service would not qualify for pension and other retiral benefits in view of Rule 2 (da) of 1984 Rules, particularly since it is not substantiated in any manner. On the contrary, from the pleadings and the state of affairs are established otherwise. 17. On the contrary, from the pleadings and the state of affairs are established otherwise. 17. Now coming to the second aspect of the matter as to whether delay in payment of retiral benefits on account of financial crisis can be held to be just and valid, I find that this issue has already been considered in Samal Chand Tiwari v State of U.P. and others, (Writ Petition No. 34804 of 2004) decided on 6.12.2005, this Court has taken a strict view in observing that financial crisis is no defence for non-payment of retiral benefits or deny the same. The Court held as under : “Similarly financial crunch or shortage of funds would not be a valid defence for the State where it is bound to discharge its duties which are statutory or constitutional is also the view taken by the Apex Court in the case of Secretary, Ministry of Chemicals & Fertilizers, Government of India v. Cipla Ltd. and others, 2003(7) SCC 1 and State of Gujarat and another v. Shri Ambica Mills Ltd., Ahmedabad and another, 1974 (4) SCC 656 (para 54 to 63) and AIR 1987 SC 157, (para 92, 93 and 99). In the present case, the petitioner has a fundamental right to earn livelihood under Article 21 of the Constitution of India which includes that after the retirement he is also entitled to receive his deferred wages in accordance with rules. Non-payment of retiral benefits, therefore, of the petitioner is violation of the petitioner’s fundamental right under Article 21 of the Constitution of India. The respondents have not shown anywhere as to what efforts they have made to arrange the requisite finance for payment of retiral benefits to the petitioner, who has retired as long as on 31st October, 2001, i.e. more than four years ago. Counter affidavit is completely silent on this aspect and shows the total laxity and apathy on the part of the respondents. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has never been a silent spectator but always reacted to bring the authorities to law. In the case of Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 the Apex Court held as follows : “An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law........public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it...........Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may turn him personally but the injury to society is far more grievous.” 18. Regarding payment of interest on delayed payment of the retiral dues, the Court further held in Shamal Chand Tiwari (supra) further held as under : “Now the question comes about entitlement of the petitioner for interest on delayed payment of retiral benefits. Since the date of retirement is known to the respondents well in advance, there is no reason for them not to make arrangement for payment of retiral benefits to the petitioner well in advance so that as soon as the employee retires, his retiral benefits are paid on the date of retirement or within reasonable time thereafter. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. In the case of State of Kerala and others v. M. Padmanabhan Nair, 1985 (1) SLR 750, the Hon’ble Supreme Court has held as follows : “Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement. In this view of the matter, this Court is of the view that the claim of the petitioner for interest on the delayed payment of retiral benefits has to be sustained.” 19. From the above discussion it is evident that the financial crisis is no defence for non-payment of retiral benefits or deny the same. The claim of the petitioner for interest on delayed payment of retiral benefits therefore, has to be sustained. 20. In view of the above discussion, the writ petition is allowed. The respondents are directed to pay pension and other retiral benefits due to the petitioner along with arrears within three months from the date of presentation of a certified copy of this order, along with interest @ 10% per annum for the period, the pension has been withheld till actual payment of pension is made. The petitioner shall also be entitled to cost, which is quantified to Rs. 1,00,000/- (Rs. One Lac) which shall be borne by respondent No. 2. ————