The service of an officer qualifies for pension if it conforms to the following conditions: * The service must be under Government; * The employment must be substantive and permanent; * The servant must be paid by government.

JUDGMENT

J.N.Sarma, J.

1. This matter is covered by judgment dated 26.8.93 passed by this Court in Civil Rule No. 694/90 (Mahimuddin Ahmed v. The State of Assam and ors) wherein this Court directed that the earlier period as Muster roll labourer shall be counted as qualifying service period for the purpose of pension only in order to give benefit to such an employee. In the instant case also the petitioner joined as Muster roll worker on 1.1.58 and he continued in that capacity till 1.3.84, but on 1.3.84 the petitioner was regularised as Gr. IV employee vide order dated 30.6.83. He retired from service on 31.12.90 and the total period of service is more than 32 years. Total regularised period of service is only 6 years 9 months. On 20.12.92 an order was passed by the Government providing all benefits of Grade-IV employees to regularise Muster Roll workers vide Annexure-E to the writ application. Annexures-D and E are quoted below :

“No.PPG (P) /83/89/1. Dated Dispur, the 14th Dec'

89. OFFICE MEMORANDUM Sub:

Counting of Work-charged period of services towards pension/DCRG. Consequent upon the Govt. decision to regularise the services of the Work-charged employees of different works Deptt. viz; P.W.D., Irrigation, Flood Control, Public Health Engineering on completion of 5 years of service, Government have been considering for some time past the question of counting a portion of the work-charged period of services towards pension/Gratuity etc. After careful consideration of all aspects, the Governor of Assam is pleased to order that after regularisation of the service of Work-charged services beyond the initial period of 3 years of work- charged service shall qualify for the purpose of Pension/D.C.R.G. subject to fulfilment of the following conditions:-

(a) Such work-charged period of services must be whole time services like other regular Govt. Servants:

(b) Such work-charged period of Services must be continuous and the incumbent was not employed for a specific broken period. The Assam Services (Pension) Rules, 1969, Assam Financial Rules and Assam P.W.D. code stand amended to the extent of the orders contained herein. Formal amendments will be issued in due course. This will come into force with effect from 1.6.89.”

The only question in this case is that whether the petitioner shall be entitled the benefit which was granted subsequently to the retirement of the petitioner. Considering the hard facts and considering the fact that the petitioner had rendered service for more than 32 years continuously, I deem it proper that the benefit of 1989 scheme i.e. Annexure-D and E should be given to the petitioner. No doubt, Annexure-D is with regard to the Work-charged labourers and Annexure-E only with regard to the Muster Roll labourers. But it is not understood why there should be discrimination between the Muster roll labourers and the work-charged employees. They almost stand on the same footing. THIS is disputed by Sri K.H. Choudhury, learned counsel appearing for the Respondents on the ground that the work-charged employee gets regular scale of pay, but the Muster roll workers only get a fixed salary of Rs. 900/- p.m. and so this benefit should not be made available to such an employees.

2. Pension for the Assam Government employees are governed by Assam Services (Pensions) Rules, 1969, Rule 31 provides for conditions of qualifying service. It is quoted below:

“31. Conditions of qualifying service - The service of an officer does not qualify for pension unless it conforms to the following conditions:

Firstly, the service must be under Government; Secondly, the employment must be substantive and permanent; Thirdly, the servant must be paid by government; Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled-

(i) declare that any specified kind of service, rendered in a non-gazetted capacity shall qualify for pension, and

(ii) in individual cases and subject to such conditions as he may th