The main legal point established in the judgment is the entitlement of temporary service for pensionary benefits and the unconstitutionality of Rule 11 of the Pension Rules under Article 14 of the Constitution of India.

1. The petitioner prays for issuance of a Writ, in the nature of Certiorari, to quash the order No. 43450/Ni A 4(1)/2007 – 4 dated 14.2.2011, rejecting the request of the petitioner, for regularising his services from the date of initial appointment, and for grant of consequential benefits, including pensionary benefits.

2. The petitioner was appointed, as Chain Man on 20.11.1972, but his services were terminated, for want of vacancy. He was reappointed after notional break. This process of termination and reappointment continued till 18.6.1991. The service of the petitioner was regularized and on attaining the age of superannuation, the petitioner retired from service on 28.2.2011.

3. The petitioner, after retirement filed a representation, with the respondents, to regularize the services from the date of initial appointment and recalculate the pensionary benefits due to him.

4. The request has been declined, on the ground, that the petitioner claimed the benefit of temporary service after lapse of over 15 years.

5. The impugned order does not suffer from any illegality as the respondents are right in not regularising the services of the petitioner from the date of initial appointment on the ground of delay and latches.

6. Even otherwise, person is not entitled to regularization of service, having been appointed on temporary basis by backdoor method (In view of the law laid down by the Hon’ble Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1 ).

7. However, the impugned part of the order, refusing to grant benefit of temporary service for pensionary benefit cannot be sustained in law. It is now well settled law that the services rendered on temporary/ad hoc basis prior to regularization of service is to be counted for pensionary benefits.

8. This claim of the petitioner is opposed by the learned counsel for the fourth respondent, on the ground, that according to Rule 11 of the Pension Rules, there should not be any break in service, and further more, only 50% of the service can be counted for grant of pensionary benefits and not the whole service.

9. On consideration, I find, that the petitioner is not entitled to the relief of regularization from the date of initial appointment, but, he is certainly entitled to benefit of temporary service rendered prior to regularization by ignoring the notional breaks for the purpose of pensionary benefits.

10. The Rule 11 of the Pension Rules in allowing only 50% of the service rendered on temporary basis for the grant of pensionary benefit cannot stand the test of Article 14 of the Constitution of India.

11. This view finds support from the Judgment of the Hon’ble Full Bench of Punjab and Haryana in Kesar Chand v. State of Punjab and Others 1988 (2) PLR 223 , where sub-rule (ii) of Rule 3.17 of the Punjab Civil Services Rules, Volume II, which provided that period of service of work charged establishment will not be counted while determining qualifying service, was held to be violative of Article 14 of the Constitution of India, thus, was struck down.

12. Again, the Hon’ble Division Bench of Punjab and Haryana in Hari Chand v. Bhakra Beas Management Board and Others 2005 (2) SCT 95 , has been pleased to lay down as under:

“3. Upon notice, written statement has been filed by the respondents, wherein it has been stated that since petitioner has accepted gratuity amount, he is not entitled to press his claim towards pension. It has further been stated, that since qualifying service, rendered as a regular employee, was less than 10 years, petitioner was not entitled to grant of pension. It has further been mentioned that in view of provisions of Section 3.17(A) of Punjab Civil Services Rules, Part I Volume II (in short the Rules), service rendered as a daily wager could not have been counted towards qualifying service. Averments, regarding length of service as daily wager and thereafter as regular employee, were virtually admitted in the written statement.

4. Coun