JUDGMENT 1. - The petitioner, who is an ex-teacher of the Education Department of the State and who last served as teacher at Gangapur city, District Sawaimadhopur from where he retired from service on attaining the age of superannuation, through the instant writ petition, has invoked the jurisdiction of this Court wherein the following question of law of public importance arise for consideration of this Court (a) Whether the period spent by the Government teacher on Basic Teachers Training Course (for short B.T.T.C.) should not be considered for-the purpose of computation of service period as privilege (earned) leave with pay, being the period spent on duty on the basis of official sanction obtained from the competent authority? (b) If the aforesaid question is answered in affirmative, whether the competent authority would be justified in deducting the amount due to the petitioner which he has earned during the aforesaid training period as the period spent on official duty from the emoluments found due and admissible at the time of his retirement from service? (c) Whether the respondents would be justified in considering the said period as on leave without say just as had been done in this case causing substantial monetary loss to an employee who had in good faith with a view to improve his career prospects had attained the aforesaid qualifications which would also have been beneficial to the interest of the students? (d) Would it not be gross violation of the law of the land apart from violation of the principles of natural justice if the competent authority should be permitted to adopt such unreasonable attitude towards an employee in treating privilege leave duly sanctioned by the competent authority as leave without pay? 2. The petitioner being aggrieved by the unlawful attitude of the respondents in having treated the period of 305 days i.e. w.e.f. 1.7.1963 to 30.4.1964 as leave without pay which has consequently affected his pensionary benefits on attaining the age of superannuation w.e.f. 30.9.1990, has approached this court by way of this writ petition on the grounds inter-alia that he was appointed as Assistant Teacher vide order, dated 6.9.1955 of the District Education Officer, Sawaimadhopur (respondent No. 3) in the pay-scale of Rs.70-90/- per month against a clear-cut vacancy till further orders vide appointment order (Annexure-1). The service of the petitioner duly continued under different orders passed by competent authority and he was finally fixed in the regular pay scale of Rs.50- 80/- vide (Annexure 2) dated 23.1.1958. 3. It has further been contended by the petitioner that in the aforesaid manner ever since the date of his appointment, he dispensed his services in the different Government schools of the State till 30th September, 1990 i.e., when he retired on attaining superannuation having completed 35 of years of service. However, to the dismay of the petitioner, when the question arose for settlement of his consequential benefits, i.e., pension etc. difficulties were created by the respondents in not settling the dues of the petitioner which were lawfully admissible to him under the Rules, since instead of calculating the period of service actually rendered by him to the education department of the State, i.e., 35 years, the respondents had essentially calculated the same only as 30 years, 7 months and 11 days. The petitioner has further contended that under the orders dated 3.2.1964 of the Finance Department of the State Government and the order dated 7th March, 1964, the petitioner was fixed in the pay scale considering him to be appointed on 9.9.1955 and was given the annual grade increments from the said date. 4. During his tenure of service, in accordance with the rules of the Education Department of the State Government, the petitioner was sent for B.T.T. Course commencing w.e.f. 1.7.1963 to 30.4.1964 at Teachers Training School, Sawaimadhopur. The leave for the said period was duly sanctioned by the competent authority vide it's order, dated 30.4.1970 (Annexure 3). The petitioner has further contended that likewise the petitioner was allowed to participate in B.Ed. Training course which was scheduled for the period 1968-69 commencing w.e.f. 12.6.1968 to 30.4.1969 vide order, dated 26.7.1968 of the District Education Officer, Karauli. In para 8 of the writ petition the petitioner has given the break-up for the aforesaid period which fact is also borne out from the order, dated 9.9.1968 (Annexure 4), of the District Education Officer, Karauli as under : 1. 12.8.1968 to 3.12.1968 114 days. 2. 4.12.1968 to 3.3.1969 90 days. 3. 4.3.1969 to 3.4.1969 58 days. In para 8 of the writ petition the petitioner has given the break-up for the aforesaid period which fact is also borne out from the order, dated 9.9.1968 (Annexure 4), of the District Education Officer, Karauli as under : 1. 12.8.1968 to 3.12.1968 114 days. 2. 4.12.1968 to 3.3.1969 90 days. 3. 4.3.1969 to 3.4.1969 58 days. Total 262 days During' the course of hearing, learned counsel for the petitioner contended at the bar that w.e.f. the date of his joining the services of the Education Department of the State i.e. 9.9.1955 to 30.9.1990, i.e., when he retired from service on attaining the age of superannuation, he had completed 35 years and 21 days of service in all and had consequently become entitled for full pension in accordance with the Rule 121 of Rajasthan Service Rules, 1951 (for short "RSR"). It was further contended by the learned counsel that as per Rule 256(D) of the RSR the employee of State Government who retires from service on completion of 33 years of service or more, he would be entitled to full pension i.e., half of the last drawn salary i.e. 50% of the basic pay and other consequential benefits as admissible to the petitioner in accordance with Rules and if he retires on completion of qualifying period of service i.e. 21 years or less than 33 years (ceiling period), then he would be entitled to 40% of the last drawn salary (basic pay) for the purpose of computation of pension. It has been contended in this regard that contrary to the rules, the Director, Pension Department Rajasthan, Jaipur (respondent No. 2) had erroneously and without any basis counted the period of service rendered by the petitioner to the education department for computation of pension w:e.f. 1.7.1968 instead of reckoning the same w.e.f. 9.9.1955, the date of joining his service. Further more the respondents have also over-looked and not counted the period w.e.f. 1.7.1963 to 30.4.1964 (305 days) spent by the petitioner on B.T.T.C. Training and from 4.12.1968 to 30.4.1969, which was held to be non-qualifying service by the pension department notwithstanding the fact that he had actually spent the said period for training against duly sanctioned leave but had not been considered as the period on account of service rendered for qualifying service for computation of pension. 5. 5. As against the actual service of 35 years & 21 days actually rendered by the petitioner w.e.f. 9.9.1955 to 30.9.1990 the respondents had erroneously computed as only 30 years, 7 months and 11 days as the period of qualifying service for computation of pensionary benefits as admissible to the petitioner. Failing to get any relief from the respondents notwithstanding various representations made by him to the competent authority, the petitioner before approaching this court by way of this writ petition had also served legal notice of demand for justice on the respondents on 1.4.1991 vide (Annexure 6) and in pursuance of the said notice,' respondent No. 3 sent a communication to respondent No. 2 on 18.4.1991 for transmitting the service records of the petitioner to him vide (Annexure 7), which was duly acknowledged. Thereafter respondent No. 3 instead of deciding the case of the petitioner on merits, again sent another letter to the petitioner's counsel, for sending all the relevant documents in support of his contentions contained in the notice of demand for justice but failing to get any positive reply from the respondents, the petitioner finally approached this court by way of this writ petition on 20.11.1991. 6. The respondents on being noticed by this court have controverted the contentions of the petitioner on the grounds inter-alia that the pension case of the petitioner was forwarded to the Pension Department by the competent authority with a view to give benefits of revised pension in accordance with the benefits of revised pension as admissible to the employees retiring from Government service in accordance with the Revised New Pay Scales Rules, 1989 and for fixation in the selection grade. 7. The respondents have further raised preliminary objection regarding maintainability of the writ petition on the ground of concealment of material facts regarding the termination of his service as Assistant Teacher vide order, dated 6.9.1955 and his service stood terminated on the said post w.e.f. 16.5.1956, though no documents in proof of the same have been placed on the record by the respondents. The respondents have further contended that while computing the period of qualifying service for pension purpose the period w.e.f. 12.6.1968 to 3.4.1969 was rightly deducted although no plausible explanation or documentary evidence has been placed on the record to justify their contention in this regard. The respondents have further contended that while computing the period of qualifying service for pension purpose the period w.e.f. 12.6.1968 to 3.4.1969 was rightly deducted although no plausible explanation or documentary evidence has been placed on the record to justify their contention in this regard. With regard to the period of 603 days as stated in para 9 of the writ petition, the respondents have contended that the said period was rightly excluded by them from the period of qualifying service of the petitioner for grant of pensionary benefits to him. According to the respondents the qualifying pensionable service rendered by the petitioner is 30 years, 7 months and 11 days which, according to them was correctly computed in accordance with the rules. The respondents have controverted the contentions of the petitioner in this regard that he had rendered the period of qualifying service as 35 years and 21 days and as such they have controverted the contentions of the petitioner that he is not entitled to the revision of his pension as the same would be contrary to rules. With regard to the B.Ed. Training Course it has not been disputed by the respondents in their reply that he did complete the said training but it was at his own expenses by availing the different kinds of leave other than the leave with full pay and, therefore, while computing the period of qualifying service or pension purpose the period w.e.f. 12.8.1968 to 3.4.1969 was rightly deducted. On merits, they have further stated that the petitioner had been granted all pensionary benefits after his retirement by taking into account the period of his qualifying service as 30 years 7 months and 11 days. They have further stated that the grievance of the petitioner with regard to the credit of 603 days which were not counted towards the period of qualifying service, the respondents have stated that he is not legally entitled for the same, and it has rightly been construed as period of non-qualifying service in accordance with the R.S.R., 1951. 8. They have further stated that the grievance of the petitioner with regard to the credit of 603 days which were not counted towards the period of qualifying service, the respondents have stated that he is not legally entitled for the same, and it has rightly been construed as period of non-qualifying service in accordance with the R.S.R., 1951. 8. In support of his contentions learned counsel for the petitioner has placed reliance upon the following judgments of this court as well as the apex court Ismail Khan v. The State of Rajasthan 1986 RLW 82 , Ram Rakshpal v. State of Rajasthan : 1996 (3) WLC 570 Shushil Kumar Yadunath Jha v. Union of India and another AIR 1986 SC 1636 . In the matter of Ismail Khan v. State of Rajasthan (supra) the question which arose for consideration of this court was as to whether the pensionary benefits are admissible to an employee of the Public Works Department who had remained in continuous service of the State with effect from 31.7.1964 till the date of his retirement i.e. 30.12.1980 when he completed 17 years of qualifying service in the said department. Learned Single Judge of this court on interpretation of the relevant provisions of the R.S.R. with reference to Rules 179 and 180 as substituted by the notification dated 2.4.1979 of the Finance Department of the State which became effective from 31.1.1979 while allowing the writ petition, directed the respondents to treat the services of the petitioner rendered by him to the department as the period of qualifying service and consequently was held eligible for grant of pension and other consequential benefits as admissible to him as per rules and directed the petitioner's qualifying service to be considered as qualifying for the purpose of pension w.e.f. 31.7.1964 i.e. the date when he joined the service upto the date of his retirement. The learned Single Judge further observed as under "The right of pension is a right which is inherited by the employee because of his long association and service rendered to a particular institution. An employee cannot be thrown out and cannot be asked to starve when physically he become unfit because of the age factor. The learned Single Judge further observed as under "The right of pension is a right which is inherited by the employee because of his long association and service rendered to a particular institution. An employee cannot be thrown out and cannot be asked to starve when physically he become unfit because of the age factor. It is the solemn duty of an employer to see that the persons who have served the institution for a pretty long time and who have participated in the development of the institution in the functioning of the institution cannot be allowed and should not be allowed to starve when they are old. Pensionary benefits are the benefits which arise out of the service conditions as a part of the service condition that after the retirement one should be given some benefits so that he can maintain himself and he can pass over to the next world peacefully without starvation. On this question, there cannot be any controversy that pensionary rights are fundamental rights of an employee which cannot be denied to him if he has served for a pretty long time to the State and the State is bound to see that the employee will serve the state for a pretty long time as a devoted employee should not be allowed to starve and should not be allowed to pass over to the next world starving and in an agony. It is expected that even the passing over to the next world should be very peaceful and should not be of a nature which may give a feeling to an employee that he has been exploited throughout the life and he is passing over as an exploited person and there is none to care for him in spite of the fact that he has served to the best of his ability throughout his lief." The above view of the learned Single Judge of this court in the aforesaid case was also followed in a subsequent decision of this court in the matter of Durga Prasad Sharma v. State of Rajasthan & others (1993 (1) WLC 428 wherein this court directed the release of pension, gratuity and other consequential benefits as admissible to the concerned employee in accordance with the Rules.In the matter of Sushil Kumar Yadunath Jha v. Union of India and others (supra), the appellant was appointed as a Post Graduate teacher in Hindi in the erstwhile central Schools Unit under the Ministry of Education, Government of India, now described as Kendriya Vidyalaya Sangthan. The nature of this appointment was temporary and his service were terminated on the expiry of three years of continuous service. Subsequently fresh appointment order was issued to the appellant with specific indication in the appointment order itself that no benefit of previous service rendered to the department, would be admissible to him. The appellant after entering upon his fresh appointment, requested the authorities that the break in service should be condoned which request was turned down by the competent authority. The writ petition challenging break in service was filed after Government rejected petitioner's request for condonation of break. The Apex Court while reversing the decision of Delhi High Court denying the benefit of past services rendered by the petitioner to the department for the purpose of condonation of break in service held that the appellant was entitled to condonation of break in service despite the terms to the contrary in this fresh appointment. 9. I have heard learned counsel for the parties at length, perused the relevant documents on the record as well as their rival claims and contentions advanced by the learned counsel for the parties. 10. 9. I have heard learned counsel for the parties at length, perused the relevant documents on the record as well as their rival claims and contentions advanced by the learned counsel for the parties. 10. Prima facie I am of the opinion that the right to pension is a fundamental right and is derived by an employee on account of his long association and service rendered to a particular institution which matures on attaining the age of superannuation and the said right cannot be curtailed or scuttled by the employer at his sweet will and an employee cannot be thrown out nor he can be asked to starve when he becomes physcically unfit to render the service because of his old age. I am further of the opinion that it is the solemn duty of the employer to see that the persons who have rendered continuous service to an institution for a long spell of time and have participated in the development of the said institution, should not be allowed to starve when they grow old and they should automatically become entitled to the grant of pensionary benefits either on completion of the period of qualifying service or on attaining the age of superannuation which ever is earlier. I am further of the view that the pensionary right is a fundamental right of the employee and forms an integral part of right to life and liberty as enshrined in Article 21 of the Constitution, since the right to life and liberty would become meaningless for a citizen if he finds his very livelihood at stake consequent upon his attaining the age of superannuation. Hence a corresponding duty should be imposed on the employer to safeguard the livelihood of the employee by granting pensionary benefits to the said employee consequent upon his retirement from service or even in a case where he opts for voluntary retirement on completion of period of qualifying service. Hence a corresponding duty should be imposed on the employer to safeguard the livelihood of the employee by granting pensionary benefits to the said employee consequent upon his retirement from service or even in a case where he opts for voluntary retirement on completion of period of qualifying service. As held by the Apex Court in the matter of D.S. Nakara & others v. Union of India (1993 (1) SCC 305) the right to pension is neither bounty nor grace depending upon the sweet will for the employer but an incidence of service which the employee earns by virtue of his having rendered continuous period of his qualifying service to the employer hence any violation of the said right by the employer would amount to violation of the fundamental rights of the employee under Articles 14, 16 and 21 of the Constitution of India which should not be permitted and this court would not hesitate to come to the rescue of the helpless citizen for enforcement of the said right. 11. I am further of the view that particularly at a stage when an employee after having rendered continuously long spell of service to the employer retires from service, and when he has to settle his children in the evening of his life, he should not feel desperate for want of financial support from any quarter and hence the only hope and aspiration of the said employee when he retires from service on attaining the age of superannuation is that he should spend the remaining years of his life very peacefully and should not feel having been exploited by his employee when there is none else to take care of him with no means of subsistence except the benefits of pension and other consequential benefits which he may get on his attaining the age of superannuation from the state. 12. It is indeed unfortunate that the respondents had not taken into account the period of sanctioned leave as referred to in para 8 of the writ petition amounting to 603 days in all which the petitioner had actually spent for attending the Basic Teachers Tranining Course as well as the B.Ed. Training Course while on duty which, in my opinion has to be taken into account as a period of qualifying service for computation of pensionary as well as the other consequential benefits as admissible to the petitioner. 13. Training Course while on duty which, in my opinion has to be taken into account as a period of qualifying service for computation of pensionary as well as the other consequential benefits as admissible to the petitioner. 13. It will be pertinent to refer to Rule 179 & 204 (2) of the Rajasthan Service Rules which read as under "Rule 179-Conditions of qualifying service-The service of an officer does not qualify for pension unless it conforms to the following three conditions First-The service must be under Government. Second-The employment may be in substantive/permanent, temporary or officiating capacity. Third -The service may be paid by the Government." Rule 204-Time passed on leave (1) Time passed on leave with allowances shall count as service in respect of Government servants retiring on or after 31.1.1979. (2) Time passed on extra-ordinary leave (leave without pay and allowances) taken in any of the circumstances mentioned below shall, in respect of Government servants retiring on or after 31.1.1979, count as service (i) If it is taken on medical certificate granted by the Authorized Medical Attendant; (ii) If it is taken for prosecuting higher scientific and technical studies; (iii) If it is taken due to the inability of the Government servant concerned to join or rejoin duty to civil commotion or a natural calamity provided that he has not any other kind of leave to his credit." In my view the conditions stipulated in the aforesaid rules of RSR are fully attracted to this case and since the petitioner fulfils the necessary eligibility conditions as referred to in the aforesaid rules, he is entitled to the grant of pensionary benefits as admissible to him under the rules.With regard to the period of qualifying service for the purposes of computation of full pension admissible to the retired employee on superannuation there is specific provisions in the R.S.R.. In this regard reference may be made to Rule 256(D) of R.S.R. which reads as under "Rule 256D-Notwithstanding the provisions contained in Rule 256D in respect of a Government servant retiring on or after 1.9.1986 the amount of superannuation, retiring, invalid and compensation service gratuity and pension shall be as follows (b) Pension-The amount of pension shall be determined at 50% of "emoluments" subject to a minimum of Rs.300/- per month. The amount of pension arrived at shall be related to the maximum qualifying service of 33 years. The amount of pension arrived at shall be related to the maximum qualifying service of 33 years. Note-Fraction of a year equal to six months and above shall be treated as a completed six monthly period of qualifying service for the purpose of calculation of pension)." From the perusal of the above Rule it is apparent that in a case of Government employee who retires from service on attaining the age of superannuation, the amount of pension which has to be calculated by the pension department shall be related to maximum qualifying service which an employee had rendered to the department, i.e., 33 years being the ceiling limit. Reference may also be made to the revised pension rules as applicable to the employees of the State Government inserted in RSR vide (FD Order No. F.1(29) FD (Gr.2) 87-III, dated 20th October, 1987) with effect from 1.9.1986, Rule 3(1) of the Revised Pension Rules reads as under- "Rule 3(i)-The last drawn emoluments immediately preceding the date of retirement may be taken into account for the purpose of calculation of revised pension. The last drawn emoluments for this purpose shall be as per rules in force at the time of retirement of the respective Government servant." Having resort to rule 256D(b) of the RSR to the instant case I am of the view that assuming the contentions of the respondents to be correct that the petitioner was not entitled to the full pensionary benefits of 605 days study leave for pursuing Basic Teachers Training Course and B.Ed. Course, even then the petitioner is entitled to full pensionary benefits, since he had rendered the maximum period of qualifying service to the respondents, i.e. over 33 years as on the date when he attained superannuation, i.e., 30.9.1990 if reckoned from the date of joining his service i.e., 9.9.1955 he had rendered 35 years and 21 years of service as on 30.9.1990 when he retired from service on attaining the aged of superannuation. Hence the case of the petitioner is fully covered by the provisions of the above rules and hence he is legitimately entitled to the payment of his full pensionary as well as other consequential benefits admissible to him in accordance with law.Writ petition allowed - Petitioner entitled to full pensionary as well as Pensionary as well as other consequential Benefits. *******