SBCWP NO.7611/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.7611/2002. Nand Lal Sharma Versus State of Rajasthan & Ors. Date of order:- March 6, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mahesh Gupta for the petitioner. Shri Zakir Hussain, Additional Government Counsel. ***** BY THE COURT:- This writ petition has been filed by the petitioner with the prayer that respodnents be directed to finalise his pension case and consider the service rendered by him as daily wage employee from 24/10/1979 to 15/6/1992 as qualifying service for the purpose of granting pension. 2) Shri Mahesh Gupta, learned counsel for the petitioner has argued that petitioner was initially appointed as Part Time Class-IV employee by the District Education Officer (Girls) Kota on 6/10/1979 on fixed salary of Rs.150/- per month and was posted in Middle School, Basthuna. In compliance of the aforesaid order, petitioner joined his duty on 24/10/1979. Though, initial SBCWP NO.7611/02. 2 appointment order dated 6/2/1978 was issued by the Labour Department, Government of Rajasthan but petitioner has throughout continued to serve the Education Department from 24/10/1979 to 15/6/1992. His salary was initially increased in December 1981 to Rs.182/- and thereafter to Rs.234/- and then to Rs.572/-. He was thereafter paid on daily wage basis. Respondents vide order dated 15/6/1992, regularized the services of the petitioner. Copy of the order of regularisation is placed on record. Learned counsel has cited the judgment of co-ordinate Bench of this Court in Ismile Khan Vs. State of Rajasthan : 1986 RLR 24 and argued that services rendered by a daily wage basis employee has been held to be countable towards qualifying service for pension. 3) Shri Zakir Hussain, learned Additional Government Counsel opposed the writ petition and argued that petitioner was initially appointed under the Antodaya Yojana being a member of BPL Family. This appointment was not regular appointment and he was not paid salary. His services were on muster roll basis. Till date, petitioner would complete only 9 years and 3 months of service and as per Rule 54 of the Rajasthan Civil Service (Pension) Rules, 1996, minimum qualifying period of service for entitling pensioin is 10 years. His appointment was not on SBCWP NO.7611/02. 3 daily wage basis. In fact, petitioner was being paid honorarium. Writ petition be therefore dismissed. 4) Having heard learned counsel for the parties and upon perusing the material on record, I find that respondents have not denied averments made by the petitioner in para 3 of the writ petition that he continuously worked from 24/10/1979 to 15/6/1992. In this para, petitioner has also stated that later part of this perod, he was paid on daily wage basis. In response to this, respondents have in para 3 of the reply stated that petitioner was paid honorarium and was not paid on daily wage basis and that it was only an appointment under the Antyodaya Yojana which was meant to help the card holders of BPL Scheme. 5) True facts as emerging from the reply are that the respondents do not deny the continuity of services rendered by the petitioner from 24/10/1979 to 15/6/1992. The contention of the respondents that petitioner was paid only honorarium being not a daily wage employee, stands falsified from their own order dated 15/6/1992 by which they regularised services of the petitioner on the post of Class-IV and he was fixed in the regular pay scale. This order states that the daily wage employees who were working under the District Education Officer (Girls) were being SBCWP NO.7611/02. 4 regularised and posted in the schools indicated therein. In any case, Rule 13 of the Rules of 1996 provides that qualifying service means; “service” means service under the Government and paid by that Government from the Consolidated Fund but does not include service in a non-pensionable establishment, work-charged establishment and service in a post paid fro contingencies, unless such service is treated as qualifying service by that Government. Rule 14 thereof provides that Government may declare that any specified kind of service or service rendered by a Government servant shall qualify for pension subject to such conditions as Government may think fit to impose. From the tenure of reply, it is evident that though the respondents boost about extending a helping hand towards those coming from Below Poverty Line but here is a case in which petitioner was regularised in service treating him to have worked on daily wage basis and shortage of his service is only 9 months out of 10 years to qualify him for grant of pension. Period of that deficiency should be treated to have been made up because respondents themselves treated the petitioner having rendered services to them on daily wage basis with the same school under the same District Education Officer. Rule 12 of the Rules of 1996, provides that a qualifying service SBCWP NO.7611/02. 5 of a Government servant shall commence from the date he takes over charge of the post to which he is first appointed, either substantively or in an officiating or temporary capacity. As regards the fact that petitioner was a daily wage employee, as per judgment of this Court in Ismile Khan supra, even such service was held to be countable towards the qualifying period of service for grant of pensioin but in the facts of this case, when petitioner as per admission of the respondents themselves, has rendered to them 13 years of service and there is deficiency of only 9 months, that deficiency is liable to be treated as having been made up in consideration of the spirit of Rules 12, 13 & 14 of the Rules of 1996. 6) In the result, the writ petition is allowed. Respondents are directed to grant pensionary benefits to the petitioner from the date of his retirement and other terminal dues and continue to pay him pension. Arrears shall be paid to the petitioner with interest @6% p.a. Compliance of the judgment shall be made within a period of two months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil