ORAL JUDGMENT

1 Rule returnable forthwith. With the consent of the learned advocates taken up for final hearing today.

2 Heard Mr.M.P.Prajapati, learned advocate for the petitioner and Mr.Meet Thakkar, learned AGP for the State-

respondents.

3 As far as prayer in terms of para 25(A) is concerned, the issue is with regard to encashment of leave to the extent of 300 days, which is a subject matter pending before the Hon’ble Supreme Court vide Special Leave Petition (C) No. 1505 of 2022. Therefore, as far as prayer 25(A) is concerned, Mr.Prajapati, learned advocate, states that he would not press for that prayer at this stage leaving liberty to file a fresh petition on the outcome of the aforesaid Special Leave to Petition.

4 As far as prayers in terms of para 25(B) is concerned, the case of the petitioner is that a direction be issued to the respondents to consider the initial period of 11 years, two months and ten days of service for the purposes of including the same as qualifying service for the purposes of pension.

5 Facts in brief would indicate that the petitioner joined service as a daily wager employee with respondent No.1 on 21.06.1981. The permanency benefits were extended on completion of ten years with effect from 31.01.1992. The petitioner superannuated on 31.08.2016.

5.1 It is the case of the petitioner that he had rendered continuous service for the period of 34 years. For the purposes of pension, the respondents are considering 31.1.1992 as the date for the purposes of computation of pension.

6 Mr.Prajapati, learned advocate, would rely on a decision of the Division Bench of this Court rendered in Letters Patent Appeal No. 1518 of 2017 dated 10.04.2018, the relevant paras of which reads as under:

“5. Reliance was placed on the judgment of this Court in the case of Tribhovanbhai Jerambhai v. Deputy Executive Engineer, reported in 1998 (2) GLH 1, in support of contention that the service rendered as a 'daily wager' ought to be considered for the purposes of counting the period of qualifying service for pension purpose. Learned Single Judge has considered the said judgment and we too, deem it fit to reproduce the relevant paragraphs which learned Single Judge has reproduced:- “

“9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.5.1989 (Annexure E), in which a specific query was raised at item No (6) with reference to resolution dated 17.10.1988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty