( 1 ) RULE. Mrs. Sidhdhi Talati, Assistant Government Pleader waives service of the Rule on behalf of the respondents. At the request of the learned Advocates, this petition is taken up for final hearing today.

( 2 ) THE petitioner, who joined the services of the respondent No. 2 as Daily Wager labourer on 1. 11. 1960 and retired on 31. 12. 1996 on reaching the age of superannuation, has by this petition claimed pension and gratuity as per law from 1. 1. 1997 with 18% interest. It is the case of the petitioner that although he has worked as Daily Wager upto 27. 1. 1987 and thereafter as Work-charge Labourer upto the date of superannuation, he has not been paid the amount of pensionary benefits. He has placed reliance on the government Resolution No. WCE/1588/ (5) (2)/g. 2 dated 17th October, 1988 which, inter alia, provides that if a daily wager has put in more than ten years service as on 1. 10. 1988, he shall be entitled to pension, gratuity etc.

( 3 ) N. C. Mehta, Executive Engineer-respondent No. 2 has filed affidavit in reply on 29. 6. 1998. In the said reply affidavit, it is, inter alia, pointed out that the contention that the petitioner is working since 1. 11. 1960 as Rojamdar is untrue. It is further stated that there is nothing on record of the administration which supports the contentions. As per the record, the petitioner came to be appointed as workcharge male labour w. e. f. 12. 1. 1987 from the daily rated casual persons and as such services for all the purposes can be counted for consideration for terminal benefits from the date of appointment in temporary establishment of Government of Gujarat. It is further stated that the petitioner has rendered services in workcharge establishment for a period of 9 years, 11 months and 4 days and as per the norms settled by the Government, the petitioner has not rendered minimum pensionable services i. e. , 10 years, and that the petitioner attained the age of superannuation on. 11. 12. 1996 and accordingly came to be relieved on 31. 12. 1996. In paragraph 5 of the said affidavit, it is further stated that the petitioner has not rendered qualifying services for pension purposes and therefore the petitioner is not entitled for pensionary benefits, and that the Government has made clarification to the effect that the working as and when required on daily rated basis and period spent during that period cannot be counted for pensionary benefits and in that view of the matter and norms fixed by the Government, the petitioner is not entitled for the pensionary benefits.

( 4 ) READING the said affidavit, it is clear that the factum of work of the petitioner as daily rated employee with effect form 1. 11. 1960 is denied on the ground that the respondent No. 2 has no record of the administration. However, it is clear as per the admission made by the deponent of the affidavit that the petitioner came to be appointed as a workcharge male labourer with effect form 12. 1. 1987 from the daily rated casual persons, meaning thereby prior to 12. 1. 1987, the petitioner was working as a daily rated casual person. The petitioner in the affidavit in rejoinder has produced a chart in order to show that he had worked from February, 1979 as a daily wager upto 1986. Not only that, the petitioner has also produced a copy of the letter dated 12. 3. 1984 written by the Section officer (Randb) to the Deputy Executive Engineer (Randb) Upleta wherein it was conveyed that the petitioner has worked as a daily wager for more than five years as on that date. This letter was accompanied by the statement showing the number of days worked by the petitioner i. e. 1750. In view of this documentary evidence on record, it is clear that the petitioner has worked as a Daily wager since 1979 till 1987 when he became workcharge labourer. Mr. Supehia. learned Advocate for the petitioner, has however, fairly restricted the claim of the petitioner from 1979 instead of 1. 11. 1960.

( 5 ) THE next question t