SBCWP No.9619/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.9619/2007. Rajendra Prasad Sain Vs. State of Rajasthan & Ors. Date of order : 26/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mahendra Shah for the petitioner. Shri Ganesh Meena, Government Counsel. ****** BY THE COURT:- This writ petition has been filed by the petitioner with the prayer to direct the respondents to treat the period of service rendered by him with them on the post of L.D.C. on daily wage basis for the period from 2/9/1985 to 26/9/1992 towards qualifying period of service for pension. Shri Mahendra Shah, learned counsel for the petitioner has argued that petitioner when he was earlier removed from service w.e.f. 31/7/1986, he earlier filed writ petition being S.B. Civil Writ Petition No.1197/1989. Said writ petition was allowed SBCWP No.9619/07. 2 vide order dated 18/12/1991 declaring action of the respondents illegal. In the judgment, there is a finding that before the date of his retrenchment, he had already worked for 231 days and that at the time of retrenchment, compliance of Section 25F of the Industrial Disputes Act, 1947 was not made. Respondents were directed to reinstate the petitioner in service. However, with regard to backwages, he was given liberty to approach the Labour Court Jaipur by recourse to Section 33C(2) of the Act of 1947, upon which, petitioner submitted L.C.C. No.83/1992 before the Labour Court, Jaipur. Labour Court, Jaipur vide order dated 29/3/1995 allowed the labour case. Learned counsel for petitioner further submitted that petitioner was regularized in services of the respondents vide order dated 26/9/1992. Earlier service rendered by the petitioner to the respondents was thus in continuity. His appointment on daily wage basis was followed by his regularization on the same post thus for all purposes, petitioner continued, worked with the respondents, is entitled to arrears which were withheld by the respondents. There is no reason why he should not be allowed arrears for the intervening period which should be taken as part of qualifying service for the purpose of pension. Learned counsel in this connection, cited the judgment of this Court in Ismail Khan Vs. State of Rajasthan & Ors. : 1986 RLR 24 and Division Bench judgment of this Court in State of Rajasthan Vs. Prabhu Dayal Sharma (DBSAW SBCWP No.9619/07. 3 No.769/2002) decided on 23/9/2002 wherein, judgment of learned Single Judge has been approved. Shri Ganesh Meena, learned Government Counsel has opposed the writ petition and submitted that after judgment of this Court in earlier writ petition of the petitioner dated 18/12/1991, he was given a fresh appointment and was regularized therefore, he was not entitled for counting the services rendered by him earlier for the purpose of seniority and pension. Action of the respondents is perfectly justified and valid. Having heard learned counsel for the parties and perused the material available on record, I find that the issue which involved in the present case fell for consideration before this Court way back 1986. Writ petition of one Prabhudayal Sharma was allowed with direction to the respondents to count the period of service earlier rendered by Prabhudayal Sharma on daily wage basis towards qualifying period of service as provided under Rule 179 of the Rajasthan Service Rules, 1951. The said judgment of the learned Single Judge was challenged by the State Government before the Division Bench, which dismissed the appeal citing the judgment of Ismail Khan supra and held that since service rendered by the petitioner to the government comes within the purview of Section 179 RSR, therefore, earlier period of service rendered by the petitioner shall be countable towards qualifying period of service for the purpose of pension. No SBCWP No.9619/07. 4 judgment to the contrary has been brought to my notice. Even otherwise, what is provided under Rule 12 of the Rajasthan Civil Services (Pension) Rules 1996 is that the qualifying period of service 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. In the result, writ petition is allowed. Respondents are directed to treat the period w.e.f. 2/9/1985 to 26/9/1992 i.e. the service rendered by the petitioner with the respondents on the post of L.D.C. on daily wage basis towards qualifying period of service for grant of pension. Compliance of the judgment shall be made within a period of three months from the date, copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil