Entitlement to pension based on combined service period and the applicability of Government Resolutions.

J.B. Pardiwala, J.

By this writ application under Article 226 of the Constitution of India, the writ applicant (since deceased), now through his legal heirs on record, has prayed for the following reliefs;

"(A) Directing the respondents to fix and pay pension to the petitioner on the basis of award of the Labour Court, and to pay the resultant amount with 12% interest.

(B) During the pendency and final disposal of this petition, Respondents may be directed to pay an amount of Rs.20000/- to the petitioner on adhoc basis.

(C) To grant such other relief as may be deemed fit."

2. The writ applicant was working as a daily wager between 1976 and 1985. Thereafter, he was appointed as a work charged employee. He worked as a work-charged employee upto 30th June, 1994. He retired on attaining superannuation on 30th June, 1994.

3. It appears that his claim for pension was not being taken into consideration. In such circumstances, he approached the Labour Court. The Labour Court took the view that it had no jurisdiction to consider whether the writ applicant was entitled to received the pension. In such circumstances, he has come up with this writ application.

4. The following facts are not in dispute as reflected from the affidavit-in-reply itself.

4.1 The writ applicant was working under the Respondent No.2, i.e. the Deputy Executive Engineer, Roads & Buildings Department.

4.2 He worked as a daily wager between 1976 and 1985.

4.3 He, thereafter, worked as a work-charged employee from 21st January, 1985 to 30th June, 1994 and, ultimately, retired on 30th June, 1994.

5. In the affidavit-in-reply, the following has been stated;

"7. I say and submit that the service has been rendered by the present petitioner as a daily wager cannot be counted for the pensionary benefits. As daily wagers is paid from the contingency fund his service cannot be counted for the pensionable service. The present petitioner was working a a work charge employee from 21.01.1985 to 30.06.1994. This service cannot be counted for the pensionary benefits. As per this the present petitioner had worked as a work charge employee for 9 years 5 months and 9 days. He did not complete 10 years service and he is not entitled for pensionary benefits, as he did not complete 10 years pensionable service.

8. I say and submit that the as per Rule 233 of BCSR, Government servants who are paid from the contingency fund and the services which have been rendered by these Government employees cannot be counted for the pensional be service. The Rule 233 is produced for kind perusal of this Hon'ble Court.

Rule 233:

[1] Government servants who are paid for work done for Government but whose whole time is retained for the public service.

[2] Government servants who are not in receipt of pay but are remunerated.

[I] honoraria, or,

[ii] the grant of a tenure of land of any other source of revenue or of a right to collect money.

[3] Government Servants who are paid from contingencies;

[4] Government servants holding posts, which have been declared by the authority, which created them to be non pensionable.

[5] Holders of all tenure posts in the Medical Department, whether private practise is allowed to them or not when they do not have an active or suspended lien on any other permanent posts under Government.

9. I say and submit that 10 years of the service was required for pensionable benefits. The gratuity and other benefits have already been paid. Hence, the present petitioner is not entitled for pensionary benefits and therefore the petition of the petitioner is required to be rejected. I submit that in Special Civil Application No.12167/94 this Hon'ble Court held that if service period is less than 10 years the employees is not entitled for pension. Copy of the judgment of Special Civil Application No.12167/94 is annexed herewith and marked as ANNEXURE-R to this reply.

6. Ms. Pandya, the learned counsel appearing for the writ applicant submitted that the issue is squarely covered, not only by the judg