JUDGMENT :

1. Heard learned counsel for the petitioner and the learned counsel for the State.

2. It appears from the impugned order of the director that the petitioner herein was appointed in terms of an advertisement dated 5^th November, 1999, as Medical Technologist (Electro Cardiogram), referred to as M.T.(ECG) at the project hospitals, under the State Health System Development Project – II, in South 24 Parganas under the Health and Family Welfare Department, Government of West Bengal. The appointment was on a contractual basis having a consolidated remuneration of Rs. 5025/- per month. The contract was for a one year period, and contemplated annual renewal on the basis of performances.

3. It is not in dispute that the petitioner’s contractual services were continuously renewed on the basis of his performance, year after year, till it was regularised by order dated 5^th March, 2008, with effect from 17^th May, 2007.

4. From the order of regularisation it is apparent tht the post of Medical Technologist (ECG) was created under the Medical Technologist Cadre. Pursuant to an order No. HF/D/MS/697/W-64/06 dated 26^th December, 2007, the petitioner’s services were regularised on the said post, and he was directed to act until further orders at his place of posting.

5. The petitioner attained the age of superannuation on 31^st December, 2015. He was expecting pensionary benefits which was denied to him because as per the department/government the petitioner did not have the requisite qualifying services for the purposes of grant of pensionary benefits, which according to them is short by one year, four months and fifteen days (1year 4 months and 15 days). According to them the DCRB Rules requires a minimum of ten years of service to qualify for grant of pensionary benefits. Taking into consideration the petitioner’s services only with effect from 17th May, 2007 that is the date on which the petitioner was regularized on the post, they found a deficiency in the qualifying service.

6. The petitioner on the other hand contended that he had discharge the duties of the very same post as a temporary employee on contractual basis for seven years six months twelve days prior to his regularisation. Only when his services were found to be worthy of regularisation he was regularised with effect from 17th May, 2007. He, therefore, relied upon Rule 17 of the DCRB Rules to contend that he was entitled to counting of the services rendered as a temporary employee. Rule 17 of the DCRB Rules reads as follows:

“17. Qualifying service – Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the office to which he is first appointed either substantively or in an officiating or temporary capacity.”

7. Relying on this provision the petitioner claimed that his qualifying service was to commence from the date he took charge of the office of M.T.(ECG) in a temporary capacity, that is with effect from 5^th November, 1999.

8. The petitioner has further placed reliance on a memorandum issued by the State Government which is dated 22nd March, 1973. It is submitted that the memorandum has been issued as a measure for liberalising and simplifying the grant of pension. The same contemplates that the whole time continuous services rendered in contingent/work charged establishment is to be allowed as service qualifying for pension; subject, however, to the condition that the services rendered under any establishment wherein contributory provident fund benefits were allowed will not count unless the government contribution including the interest accrued therein is refunded in full to the government. Abiding by this stipulation contained in the memorandum dated 22^nd March, 1973 the petitioner claimed that he was entitled to counting of the past temporary services being seven years six months twelve days (7 years, 6 months and twelve days) for the purposes of qualifying service for grant of pension. If th