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 petitioner has prayed to fix his pension and to pay him other retirement benefits by taking into consideration his entire length of service right from the date of his appointment i.e. 1987 till the date of his retirement in the year 2015.

4. Facts in brief would indicate that the petitioner was engaged as a daily wager from 1987 and retired from service on 31.03.2015 after completing 28 years of service.

5. From the record of this case as is evident from page 36 of the petition, the petitioner was appointed in the year 1987 and has completed more than 20 years of service in which he has completed 240 days. The record indicates that as on 01.01.1992 the petitioner has completed more than 5 years of service. By order dated 23.01.2015 the petitioner was granted benefit of Government resolution dated 15.09.2014. The date of appointment of the petitioner has been wrongly shown as 01.09.1995 in the said order despite the record, indicating clearly that the petitioner has completed more than five years of service as on 01.01.1992. However, while considering his service, the years in which he has not completed 240 days of service were excluded for calculation of pensionary benefits. According to learned AGP the petitioner was engaged as a daily wager and he cannot be granted benefits of pension as he has hardly worked for ten years prior to 2005.

6. Reliance was placed by learned advocate for the petitioner 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 from some other legal source. If the legal position concerning the statute or the policy is made clear by interpretation by High Court or the Supreme Court, and if by virtue of such interpretation, the beneficiary is found to be entitled to certain benefits contemplated in the statute or the policy, such entitlement, in the opinion of this Court, would be the entitlement within the meaning of subsec.2 of Section 33(C) of the Act. If there are genuine reasons for disputing the entitlement, as contemplated in Section 33(C)(2) of the Act, of course, the court or the judicial authority exercising the power under Section 33(C)(2) of the Act would not have a jurisdiction to adjudicate upon disputed entitlement. If the issue of law has been raised in past and is settled by the court and is a