JUDGMENT 1. - Denial of pension to the petitioner who retired after 13 years of service as Asstt. Engineer (Mechanical) from the Rajasthan Canal Project has compelled the petitioner to file this writ petition for the appropriate relief. On a show cause notice being issued to the respondents, the explanation which has come forward for not granting pension to the petitioner is to the effect that the petitioner, although, has served for 13 years as Asstt. Engineer is not eligible for pension as in view of Rule 179 of the Rajasthan Service Rules, 1961 which was prevalent at the time when the petitioner retired put a bar on his eligibility for pension since according to the Rules, the employee was. eligible only if the worked on the post in substantive and permanent capacity. It is, however, an admitted position that Rule 179 of the Rajasthan Service Rules, 1951 was subsequently amended with effect from 31/1/79, according to which an officer qualifies for pension even if he retired from the post on which he served in substantive, permanent, temporary or officiating capacity. 2. It has therefore been submitted on behalf of the petitioner by Shri Sanjay Pareek that even if the petitioner retired from service after 13 years, which is wrongly treated as temporary, the petitioner should be held eligible for pension as even according to the amended rule if an employee in the Government of .Rajasthan served in a temporary or officiating capacity, the same cannot be a ground for denying him pension since the said dead-lock has been removed by the Government of Rajasthan itself by virtue of its amendment which became effective from 31/1/1979. 3. It has been further submitted that the petitioner who served for 13 years in the service of the State of Rajasthan as Asstt. Engineer cannot be treated as temporary Government servant merely because his order of appointment described him as a temporary employee. The petitioner having worked uninterruptedly as Asstt. Engineer for 13 long years cannot be described as a Government servant having working in temporary capacity. To reinforce his submission, he has relied upon a decision of this Court reported in 1993(1) Western Law Cases 79, delivered in the matter of R.S. Rawat v. State of Rajasthan and Ors. The petitioner having worked uninterruptedly as Asstt. Engineer for 13 long years cannot be described as a Government servant having working in temporary capacity. To reinforce his submission, he has relied upon a decision of this Court reported in 1993(1) Western Law Cases 79, delivered in the matter of R.S. Rawat v. State of Rajasthan and Ors. , wherein it has been laid down that there is no justification for' describing appointment as ad hoc merely because it is described so in the letter of appointment. Such letter of appointment was held to be arbitrary. This judgment delivered in the matter of R.S. Rawat's case (supra) is not a judgment in isolation as this had been delivered relying on a number of judgments delivered by the Supreme Court on a similar question, the latest being 1992(1) Judgments Today 105, Dr. Uma Kant v. Dr. Bhikha Lal Jain and the other in the row being AIR 1981 SC 41 Baleshwer Das v. State of Uttar Pradesh , 1980 SC 1098 State of Uttar Pradesh v. M.J. Saddique and Ors. In the matter of Baleshwer Das v. State of Uttar Pradesh (supra), their Lordships of the Supreme Court dealt with the circumstances under which an appointment can be construed to have been made in substantive capacity. While dealing with this question it had been categorically laid down that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. It has been further held in the State of Uttar Pradesh v. M.J. Saddique (supra) that mere use of the term 'appointment' in temporary vacancies by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity. In order, therefore, to determine the nature of appointment, the Court has to look to the nature and substance of the appointment, the surrounding circumstances, the mode and manner and the term of apartment and other relevant factors. 4. In order, therefore, to determine the nature of appointment, the Court has to look to the nature and substance of the appointment, the surrounding circumstances, the mode and manner and the term of apartment and other relevant factors. 4. While judging the case of the petitioner regarding his eligibility for pension, it is not really essential, in my opinion, to enter into the question whether the petitioner's appointment was temporary, as the amendment incorporated in Rule 179 of the Rajasthan Service Rules, 1951 itself envisages that a person would be entitled for pension if he had worked even in a temporary or officiating capacity. This amendment admittedly came into effect on 31/12/1979. The ambiguity, in my opinion, therefore, regarding petitioner's eligibility for pension came to an end at least on 31/1/1979, even if there were any dispute or ambiguity regarding the petitioner's eligibility for pension. It would be most illogical and unjust, in my view, for the Government to lay down two sets of criteria for payment of pension to the retired employee; one, prior to 31/11/1979 and the other for those who retired on or after 31/1/1979 so as to justify the contention that since the petitioner retired prior to the amendment in 1979 in temporary capacity, therefore, he was not eligible for pension, although, the employee who retired on or after 31/1/1979, in temporary capacity would be eligible for pension. It is obvious that the amendment in the year 1979 had been introduced to remove the hardship for the retired employee who even after serving long years of service were denied pension on the ground that they had retired in temporary or officiating capacity. Therefore, the argument advanced on behalf of the respondents to the effect that the petitioner cannot be allowed to take the benefit of the amendment incorporated in the year 1979 is without any merit and it is fit to be rejected. 5. Therefore, the argument advanced on behalf of the respondents to the effect that the petitioner cannot be allowed to take the benefit of the amendment incorporated in the year 1979 is without any merit and it is fit to be rejected. 5. In addition to the above, I also find no force in the submission that the petitioner's nature of appointment, who worked for 13 long years should be treated as temporary relying on the ratio of the decisions referred to hereinabove and merely because the petitioner's letter of appointment may have described him as temporary appointee, the same cannot be allowed to come in his way while claiming pension for the service he had rendered even assuming that the amendment of 1979 introduced in 1979 cannot be applied with retrospective effect. The argument, therefore, advanced in support of the case of the petitioner is far more weighty than that which has been advanced on behalf of the respondent justifying denial of pension to the petitioner. 6. This writ petition, therefore, claiming grant of pension to the petitioner from the date of retirement and payment of gratuity as also one month's pay which is alleged to have been withheld is ordered to be paid to the petitioner within a period of three months from the date of receipt of this order from 311/11/1979, on which date the amendment allowed pension even to the temporary Government servants. This amendment made the petitioner eligible for pension even if he had retired in a temporary capacity. If the applicability of this amendment is interpreted to be prospective, the whole purpose of the amendment itself gets frustrated which obviously had been incorporated to remove injustice to such employees who discharged their duties in the service of the State for long number of years and yet were described as temporary Government servants. If, however, any amount is due which the petitioner is liable to pay to the State, the same would be allowed to be adjusted while computing his pension amount. 7. The writ petition is accordingly allowed, but without cost.Writ Petition Allowed. *******