JUDGMENT : 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. (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 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 pay-scale 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. 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 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. 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 pay-scale 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. 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. Judgment and order passed by the Tribunal had been complied with, however, while implementing the said judgment and order, as mentioned above, it was directed 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. (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. 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 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 work-charged establishment and (iii) periods of service in a post paid from contingencies shall also count as qualifying service. Note:-If service rendered in a non-pensionable 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, 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 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, 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. 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 non-pensionable 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 23¾00 ¿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” (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 pay-scale 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 pay-scale 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. 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 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 judgments 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. 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 pay-scale 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.