ORAL JUDGMENT

RULE

1. returnable forthwith. Learned AGP Mr.Soaham Joshi waives service of notice of Rule on behalf of the respondents.

2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

3. By way of this petition under Article 226 of the Constitution of India the petitioners have prayed to fix their pension and to pay them other retirement benefits by taking into consideration their entire length of service right from the date of their appointment till the retirement.

4. Facts in brief would indicate that the petitioner no. 1 was engaged as a daily wager from 01.02.1992 and retired from service on 28.02.2017 after completing 25 years of service. The petitioner no. 2 was engaged as a daily wager from 01.01.1992 and retired from service on 21.12.2019 after completing 27 years of service .

5. From the record of this case as is evident from page 41 and 42 of the petition, the petitioners were appointed in the year 1992 and have completed more than 20 years of service in which they have completed 240 days if Sundays and holidays are to be included in the said working days. By order dated 23.01.2015 the petitioners were granted benefit of Government resolution dated 15.09.2014. However, while considering their service, the years in which they have not completed 240 days of service were excluded for calculation of pensionary benefits. According to learned AGP the petitioners were engaged as a daily wager and they cannot be granted benefits of pension as they have hardly worked for ten years prior to 2005.

6. Reliance was placed by learned advocate for the petitioners on the decision in case of EXECUTIVE ENGINEER PANCHAYAT (MAA & M) DEPARTMENT and Another Versus SAMUDABHAI JYOTIBHAI BHEDI & other reported in 2017 (4) GLR 2952.

7. On the issue of grant of pension, reliance was placed by Mr.Dave on an order passed by this Court in Special Civil Application No.12350 of 2016 dated 22.12.2016. The Court therein was considering the rejection of the applications under Section 33(C)(2) of the I.D. Act, wherein, an identical prayer for pensionary benefits was made.

8. The Court in para 8 of the decision did consider the settled legal position under Section 33(C)(2) of the I.D. Act and after considering the decisions of this Court as well as the Supreme Court, held as under:

“8. True that the settled legal position as regards Section 33C(2) of the Act is, as canvassed by learned AGP. Section 33C(2) of the Act cannot be applied for adjudicating the facts in dispute but the facts in dispute must be genuinely disputed and not for the sake of disputing them. The crucial expression used in Section 33C(2) of the Act is thus:

“Where any workman is entitled to receive from the employer …. “The expression “entitlement” will have to be given its due and appropriate meaning. “Entitlement” may flow from statutorily recognised rights or recognised policy as may have been interpreted by the High Court or the Supreme Court or from some other legal source. If the legal position concerning the statute or the policy is made clear by interpretation by High Court or the Supreme Court, and if by virtue of such interpretation, the beneficiary is found to be entitled to certain benefits contemplated in the statute or the policy, such entitlement, in the opinion of this Court, would be the entitlement within the meaning of subsec.2 of Section 33(C) of the Act. If there are genuine reasons for disputing the entitlement, as contemplated in Section 33(C)(2) of the Act, of course, the court or the judicial authority exercising the power under Section 33(C)(2) of the Act would not have a jurisdiction to adjudicate upon disputed entitlement. If the issue of law has been raised in past and is settled by the court and is accepted and implemented, raising of such an issue once again to challenge the entitlement of the workman under Section 33(C)(2) of the Act would not, in the opinion of this Court, constitute a genuine disp