Service prior to regularization should be considered for pension calculation, as clarified by the Government circular.

JUDGMENT :

1. RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent State.

2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

3. By way of this petition under Article 226 of the Constitution of India, it is the case of the petitioners that they have been working as daily wagers who have been granted the benefits of the regularisation pursuant to the Government Resolution dated 17.10.1988. Having retired from service, pension payment orders were issued, wherein, service prior to their date of completion of 10 years i.e. from the date of initial appointment has not been considered for the purposes of pension.

4. The issue raised in the present petition is already covered by the decision of this Court dated 19.12.2018 rendered in Special Civil Application No.9702 of 2018 and allied matters. The relevant paragraphs of the said order read as under:

“3.3 Therefore, the common grievance of all the petitioners in the captioned petitions, who are daily wagers and who have worked more that 10 years, in some cases more than three decades, raised is that their pension and gratuity are not calculated from initial date of their appointments, but they are counted only from the date when they were made regular under resolution dated 17.10.1988. They further prayed to release the benefits available under resolution dated 17.10.1988 from their initial appointment.

4. When learned advocate for the petitioners relied on decision of the Division Bench of this court in Executive Engineer Panchayat (Road and Building) department vs. Samudabhai Jyotibhai Bhedi [2017 (4) GLR 2952], the respondents were at their receiving end and could not dispute the applicability of the law laid down to the facts of the petitioners to make them entitled to the reliefs claimed in the petition.

5. In Samudabhai Jyotibhai Bhedi (supra), the Division Bench held that for the purpose of conferring the benefit of pension to the daily wagers, their services as continuous from the date of their initial appointments is liable to be counted. It was observed and held as under,

“6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.

7. This Government Resolution led to several doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause 6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.

8. Two