JUDGMENT :

1. Rule returnable forthwith. Learned AGP Mr.Soaham Joshi waives service of notice of Rule on behalf of the respondents.

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 the petitioners have prayed to fix their pension and to pay them other retirement benefits by taking into consideration their entire length of service right from the date of their appointment till the retirement.

4. Facts in brief would indicate that the petitioner no. 1 was engaged as a daily wager from 01.01.1991 and retired from service in the year 2011 after completing 20 years of service. The petitioner no.1 expired on 22.12.2020. The petitioner no. 2 was engaged as a daily wager from 01.01.1983 and retired from service on 30.04.2012 after completing 29 years of service. The petitioner no. 3 was engaged as a daily wager from 01.07.1981 and retired from service in the year 2014 after completing 33 years of service. The petitioner no. 4 was engaged as a daily wager from 01.07.1988 and died while in service on 30.12.2009. The petitioner no. 5 was engaged as a daily wager from 01.06.1989 and expired while on service on 15.05.2013. Earlier the petitioners approached this court by wasy of SCA no. 15122 of 2020. This court while quashing and setting aside the order dated 28.07.2020, specifically observed to assess the number of days by taking into consideration Sundays and holidays. Despite the said order of this court, once again same order has been reiterated by the impugned order dated 04.02.2022 of the respondents.

5. From the record of this case as is evident that all the petitioners have worked from the date of their respective appointments till the date of their retirement/ death as the case may be. Thus the petitioners have continuously worked from the date of their appointment till retirement/ death as the case maybe. Thus, the petitioners have completed more than 20 years of service in which they have completed 240 days if Sundays and holidays are to be included in the said working days. However, while considering their service, the years in which they have not completed 240 days of service were excluded for calculation of pensionary benefits. According to learned AGP the petitioners were engaged as a daily wager and they cannot be granted benefits of pension as they have hardly worked for ten years prior to 2005.

6. Reliance was placed by learned advocate for the petitioners on the decision in case of EXECUTIVE ENGINEER PANCHAYAT (MAA & M) DEPARTMENT and Another Versus SAMUDABHAI JYOTIBHAI BHEDI & other reported in 2017 (4) GLR 2952.

7. On the issue of grant of pension, reliance was placed by Mr.Dave on an order passed by this Court in Special Civil Application No.12350 of 2016 dated 22.12.2016. The Court therein was considering the rejection of the applications under Section 33(C)(2) of the I.D. Act, wherein, an identical prayer for pensionary benefits was made.

8. The Court in para 8 of the decision did consider the settled legal position under Section 33(C)(2) of the I.D. Act and after considering the decisions of this Court as well as the Supreme Court, held as under :

“8. True that the settled legal position as regards Section 33C(2) of the Act is, as canvassed by learned AGP. Section 33C(2) of the Act cannot be applied for adjudicating the facts in dispute but the facts in dispute must be genuinely disputed and not for the sake of disputing them. The crucial expression used in Section 33C(2) of the Act is thus:

“Where any workman is entitled to receive from the employer …. “The expression “entitlement” will have to be given its due and appropriate meaning. “Entitlement” may flow from statutorily recognised rights or recognised policy as may have been interpreted by the High Court or the Supreme Court or