CAV JUDGMENT

Heard learned Senior Advocate Mr.Shalin Meht a assisted by learned advocate Mr.Hemang Shah for t he petitioner and learned Assistant Government Plead er Mr.K.M. Antani for the respondents.

2. By filing the present petition under Articl e 226 of the Constitution, the petitioner has prayed to set aside order dated 0t6h May, 2017, passed by th e Joint Director of Commissionerate of Technic al Education. The decision conveyed by the said order is that since the petitioner - as Assistant Lectur er Class-III – was appointed ona d-hoc basis and since his services were not regularized, the petitioner was n ot eligible to get pension and was not entitled to recei ve any retirement benefits.

3. The petitioner came to be appointed as a n Assistant Lecturer in Computer Engineering Class-III on 09th May, 1993 in the pay-scale of Rs.450-1040 und er respondent No.3 Government Polytechnic for Girls. T he Principal of respondent No.3 addressed a letter dat ed 01st September, 1987 to the Commissionerate of Technic al Education to appoint the petitioner on long term bas is since the petitioner had been working since four year s. It appears that the petitioner requested t he authorities for upgradation to his post as Lecturer a nd further requested also for regularization of h is service. The petitioner has given the details of correspondence that ensued between him and t he authorities.

3.1 It appears that the petitioner had at on e stage filed writ petition before this Court seeki ng regularization based on the directions and observatio ns in the decision of the Supreme Court inS ecretary, State of Karnataka vs. Uma Devi (3) [2006 (5) SCC .1 ] The petitioner could not get relief. By order dated t0h 7 February, 2011, abruptly, service of the petitioner w as terminated on the ground that he wasa d-hoc Lecturer and further on the ground that the decision of t he petition was against the petitioner.

4. The petition was contested by respondent No. 2 by filing affidavit-in-reply mainly on the ground th at since the petitioner was appointed ona d-hoc and temporary basis, he would not be entitled to pensio n. It was stated that Special Civil Application No.167 95 of 2004 and others were filed for regularization whi ch were dismissed, therefore, the claim of the petition er for pension was indirectly rejected.

5. At the outset, it has to be stated tha t rejection of claim of regularisation would have no adverse bearing on the claim to pension. T he entitlement for receiving pension for the petition er would arise from the relevant rules. There cannot be either prefacing conclusion or final decision based on the premise that a petition with a prayer f or regularisation was not entertained.

5.1 Rule 25 of the Gujarat Civil Service s (Pension) Rules, 2002, deals with the qualifyi ng service for the purpose of pension. This rule extract ed in its relevant part, reads as under, “Rule-25. Qualifying Service : Subject to the provisions of these rules, qualifying service of a Government employee, means and includes, -

(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include -

(a) service in non-pensionable establishment, (b) service paid from contingencies, (c) service rendered in daily rated establishment, (d) actual periods of break in service if any, between spell of service, (e) service prior to resignation, removal or dismissal, (f) service as an apprentice, (g) service on fixed pay basis, and (h) service on contract basis.

(ii) all service rendered in work charged establishment provided that the total service put in, as such is five years or more, (iii)… … … (iv) … … … (v) … … … (vi) … … … (vii)… … …

(viii) … … … (viii) … … …

(ix) … … …

5.2 Thus, Rule 25(i) of the Rules provides that qualifying service shall include all services including services rendered on probation. It also includes services rendered in any capacity whether tem