BRIJ MOHAN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the parties. Petitioners of both the writ petitions were appointed in work charge establishment of irrigation department on class IV post. Petitioner of the first writ petition was appointed in the year 1977 as Chaukidar and petitioner of the second writ petition was appointed as helper in the year 1970. Thereafter both of them were regularised /made permanent. Petitioner of the first writ petition was regularised/made permanent in 1977 on the post of Beldar. Petitioner of the second writ petition was regularised/made permanent in June 1999 on the post of mate. Both the posts of Beldar and mate are class IV posts. Both the petitioners were issued notices to the effect that they would be retiring on attaining the ages of 58 years. Petitioner of the first writ petition was given notice on 07.02.2000 to the effect that he would be retiring on 30.06.2000 on attaining the age of 58 years and the petitioner of the second writ petition was given notice on 20.01.2000 intimating that he would be retiring on 30.06.200 on attaining the age of 58 years. They filed these writ petitions against the said notices. In both the writ petitions stay order was passed on 30.06.2000 in which the contention of learned counsel for the petitioners was noted which was to the effect that in view of notification dated 28.07.1987 as well as office memo dated 14.11.1996 age of retirement of the petitioners will be 60 years and not 58 years. Accordingly, by interim orders dated 30.06.2000 passed in both the cases it was directed that petitioners should not be retired on attaining the age of 58 years. In view of the interim orders both the petitioners worked till they attained the ages of 60 years. I need not to decide the question as to whether age of retirement of employees like the petitioners is 58 years or 60 years as under the interim orders both of them worked till the age of 60 years and were paid salaries till then. In para 18 of full Bench Authority of this Court reported in Surya Deo Mishra Vs. State of U.P. 2006(62) ALR 769 it has been held as follows: "Thus, broadly speaking the principle which can be culled out from these decisions is that in commercial matters, the successful party is not only entitled to the amount withheld on the basis of the interim order, but it is also entitled to interest thereon. However, in service matters, if the incumbent has worked and has been paid, unless his claim was fraudulent, based upon frivolous grounds or upon acute factual dispute, the amount so paid ought not to be recovered. Even in cases of excess payment, it can not be recovered unless said payment is result of the employee's mistake or on his showing . But, if the employee has been paid without working or has not been paid though has worked, he would not be entitled to it if the petition is dismissed as infructuous. We hasten to add, that the Court can not draw a exhaustive list of such situation, as each case is to be decided on its facts. However in both the writ petitions amendment applications have been filed and it has been prayed that respondents must be directed to pay pension to the petitioners as after clubbing the period which both of them spent as work charge employees and regular employees, both of them had worked for more than 10 years which is qualifying period for pension. Admittedly if the period spent as work charge establishment employees is excluded then none of the petitioners worked for 10 years as regular/permanent employee. In two Division Bench authorities of this Court reported in Vansh Gopa Vs. State of U.P. 2006(3) ESC 2248 and State of U.P. Vs. Ram Pratap Shukla 2008(6) ADJ 753 it has been held that inspite of Government order dated 01.07.1989, the period of service as work charge employee can not be added for counting the qualifying period for pension. It has been held that the said Government Order only permits counting of period spent as temporary employee and not as work charge employee. Accordingly, both the writ petitions are disposed of. It is held that petitioners are not entitled to pension. However, the salary which has been paid to the petitioners till they attained the age of 60 years shall not be refundable.