J.B. Koshy, J.

Petitioners were employed as daily-rated reserve drivers in the Kerala State Road Transport Corporation from 1981 onwards. They were continuously doing the work on daily wage basis till they were permanently appointed through the Public Service Commission. We refer to the date of appointment mentioned in O.P.No.32947 of 2002 (W.A.No.1636 of 2003). Petitioner in that case who was advised by the Employment Exchange was appointed as driver on provisional basis on 29-6-1981. Petitioner was appointed on regular basis as driver on the advice of the Kerala Public Service Commission on 29-5-1989. Therefore, on 3-6-1989 provisional appointment was terminated and he joined duty as regular driver on 5-6-1989. He retired from service on 30-4-2002. He wanted his daily rated provisional service to be counted for pensionary benefits. That was disallowed and hence the writ petition was filed.

2. The question is whether the uninterrupted provisional service without break is liable to be counted for pensionary benefits. The date of appointment has to be taken from the date of appointment by Public Service Commission. Normally, provisional service is not taken into account for counting qualified service for pension. But, the question is whether there is any rule in the KSRTC to count provisional service for pensionary benefits. There is no regulation or service rules regarding pensionary matter in the KSRTC. According to the KSRTC, they are following the Government pattern and rules regarding pension from time to time. Ext.P11 is the conciliation settlement entered into with the KSRTC which is binding on the workmen as well as the management. Clause XXIII of Ext.11 conciliation settlement deals with pension. It reads as follows:

"XXIII Pension:

1. Pension will be paid as per the provisions of Kerala Services Rules followed by the Government from time to time.

2. Service under State Government prior to joining the Corporation will qualify for pension provided the break between Government service and KSRTC service shall not exceed three months.

3. Daily wages period of Conductors, Drivers and Mechanical Staff before their regular appointment in full, will count for pension provided there should be at least ten days duty in a month. If there is no duty in a month, that month will be excluded and 50% will be taken as qualifying service of the months in which the number of duty is below 10 or 50% of the total daily wage period excluding the months having no duty whichever is beneficial to the employee.

4. Pre-appointment training period of Mechanical Staff including Assistant Depot Engineers will be treated as qualifying service for pension."

Sub-clause (3) very clearly shows that daily wage period of conductors, drivers and mechanical staff before their regular appointment will counter for pension provided there should be at least ten days' duty in a month. So, if there is ten day's duty in a month, it will not be considered as break in service and their appointment on daily wages before their regular appointment will be counted for pension. Apart from the above. Sub-clause (1) of clause XXIII shows that pension will be paid as per the Kerala Service Rules. It is specifically mentioned that service rules followed by the Government from time to time will be applicable in KSRTC also with regard to the payment of pension. By Ext.P3 Government ordered that the provisional service of an employee with or without break will be reckoned for qualifying service for the purpose of calculating pensionary benefits. In Ext.P4 it is mentioned that Ext.P3 order was cancelled with effect from 1-10-1984. Thereafter, Ext.P5 was issued clarifying the same stating that the provisional service prior to 1-10-1994 will be added to the service and provisional service after 1-10-1994 will not be counted. In Ext.P5 it was mentioned as follows:

"Government have examined the case in detail and are pleased to clarify that the provisional service with or without