Point of Law: Under Rule 13 thereof, the service that qualifies for pension commences from the date the employee takes charge of the post to which he is appointed either substantively or in an officiating/temporary capacity, provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.

ORDER :

Petitioner, a retired Class-III employee, who has been denied pension on account of not possessing the qualifying service of 10 years, seeks applicability of a judgment rendered on 08.03.2018 by the Hon’ble Apex Court in case of Class-IV employees in Civil Appeal No.6309 of 2017 (Sunder Singh Versus The State of Himachal Pradesh & Ors.), for counting his daily waged service for grant of pension.

2. Facts :-

The petitioner was engaged as a Fitter on daily wage basis in Irrigation & Public Health (I&PH) Department on 11.02.1991. His services were regularized w.e.f. 01.02.2002. He superannuated on 31.10.2010. Having served for 8 years on regular basis, i.e. less than the required qualifying period of 10 years, the petitioner is not being paid pension. 12 years after his retirement, the petitioner filed this writ petition on 08.11.2019, seeking pension with following substantive prayer:-

“i. That the respondents may be ordered to process the case of the petitioner for pension and the same may be ordered to be paid to the petitioner from the due date with all the benefits incidental thereof.”

3. Contentions:-

I have heard learned counsel on both sides.

In support of the relief claimed, Mr. A.K. Gupta, learned counsel for the petitioner advanced submissions under the following broad points:-

3(i). Judgment passed by the Hon’ble Apex Court in Civil Appeal No.6309 of 2017, titled Sunder Singh Versus The State of Himachal Pradesh & Ors., decided on 8th March, 2018, is applicable to the case of the petitioner for grant of pension. In terms of this judgment, daily waged service rendered by the petitioner prior to his regularization is to be computed towards qualifying service for grant of pension in the manner prescribed in the judgment.

3(ii). Petitioner, a Class-III employee, cannot be discriminated vis-à-vis Class-IV employee in the matter of computation of daily wage service for the purpose of grant of pension. When daily waged service of Class-IV employees is being counted in the manner mandated in Sunder Singh’s case, supra, towards qualifying service for grant of pension, then by drawing the same analogy, it should be counted in the same manner in case of Class-III employees as well.

3(iii). This Court should exercise its jurisdiction under Article 226 of the Constitution of India to obviate the discrimination between the similarly situated Class-III and Class-IV employees.

4. Observations:-

Before discussing the points raised by learned counsel for the petitioner, basic provisions pertaining to entitlement of an employee to pension may first be noticed.

4(I). Rule Position:-

4(I)(a). Central Civil Services (Pension) Rules, 1972 (hereinafter to be referred as ‘Pension Rules’) have been made applicable to the State of Himachal Pradesh vide notification dated 30.03.1974. Rule 49 of the Pension Rules provides for qualifying service of 10 years for an employee to become eligible for grant of pension. Relevant part of Rule 49 reads as under:-

“(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six monthly period of qualifying service.

(1-A) The Dearness Allowance admissible on the date of retirement shall also be treated as emoluments for the purpose of sub-rule (1);

(2) Subject to the proviso to sub-rule (2) of Rule 38, in the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty-five thousand rupees per mensem…………..”

4(I)(b). Chapter-III of the Pension Rules outlines nature of qualifying service. Under Rule 13 thereof, the se