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2005 DIGILAW 101 (RAJ)

Mithu Lal v. State of Rajasthan

2005-01-11

SUNIL KUMAR GARG

body2005
Honble GARG, J.–The petitioner has filed the present writ petition under Article 226 of the Constitution of India on 1.10.2002 against the respondents with a prayer that by an appropriate writ, order or direction the entire period of service of the petitioner from 1.4.1958 to 30.6.1995 be counted towards fixation of pay, promotion, selection grades on completion of 9, 18 and 27 years of service, gratuity and pensionary benefits etc. and the order dtd. 2.8.1996 (Annex. 12) by which service of the petitioner for the purpose of pension were counted from 1977 to 1995 and not from 1.4.1958 be quashed and set aside and the respondents be directed to issue fresh PPO in respect of the petitioner by counting his entire service for the period from 1.4.1958 to 30.6.1995. (2). It arises in the following circumstances: (i) That the petitioner was appointed on the post of Secretary, Gram Panchayat Nawania, Panchayat Samiti Bhinder, Dist. Udaipur on 1.4.1958 and there he had worked till 23.12.1977 at the consolidated salary of Rs. 30/- per month. (ii) That in the year 1961, the Government of Rajasthan divided the work of development and Nyay (Judiciary) and constituted a Nyay Panchayat constituting of five gram panchayats i.e. Nawania, Rudeda, Bana, Baroda, and Kikawas having its headquarter at Nawania Nyay Panchayat, Panchayat Samiti Bhinder, Dist. Udaipur. The petitioner was appointed as Secretary to this Nyay Panchyat having its headquarter at Nawania and he was paid monthly honorarium of Rs.40/-. (iii) Further case of the petitioner is that he had worked as Secretary, Nyay Panchayat, Nawania from 15.2.1961 to 5.12.1975 and by the order of Government of Rajasthan, Nyay Panchayat was abolished in December, 1975 and the petitioner handed over the charge of articles in his possession to the President. Copies of list of articles handed over to President, Nyay Panchayat, Nawania and Vikas Adhikari, Panchayat Samiti Bhinder dtd. 5.12.1975 are marked as Annex. 2 and 3 respectively. (iv) Further case of the petitioner is that the petitioner while rendering his services to Gram Panchayat, Nawania as well as Nyay Panchayat, Nawania had also rendered services on the post of Sub-ordinate Secretary to Gram Panchayat, Daroli, Panchayat Samiti, Bhinder, Dist. Udaipur for the period from 1.4.1962 to 3.8.1967 and he was paid honorarium of Rs. (iv) Further case of the petitioner is that the petitioner while rendering his services to Gram Panchayat, Nawania as well as Nyay Panchayat, Nawania had also rendered services on the post of Sub-ordinate Secretary to Gram Panchayat, Daroli, Panchayat Samiti, Bhinder, Dist. Udaipur for the period from 1.4.1962 to 3.8.1967 and he was paid honorarium of Rs. 40/- per month in addition to the honorarium, he was paid for the post of Secretary to Gram Panchayat, Nawania and Secretary to Nyay Panchayat, Nawania. (v) Further case of the petitioner is that the petitioner had also worked on the post of Secretary, Gram Panchayat Adinha, Panchayat Samiti Bhinder Dist. Udaipur for the period from 1.4.1965 to 23.12.1977 and during this period, he was paid honorarium of Rs. 30/- per month. (vi) Further case of the petitioner is that Rajasthan Panchayat and Self Government Sub-ordinate services Commission, Jaipur vide its order dtd. 26.5.1977 invited applications for the post of Group Secretary/Gram Sewak and Secretary. A copy of advertisement dtd. 26.5.1977 is marked as Annex. 8. (vii) Further case of the petitioner is that in pursuance of advertisement (Annex. 8), the petitioner submitted an application form (Annex. 9) on 9.6.1977. (viii) Further case of the petitioner is that vide order dtd. 23.11.1977 (Annex. 10), the petitioner was appointed on the post of Group Secretary, Gram Panchayat Baiathal Head quarter under which four Gram Panchayats viz. Baiathal, Dhamaniya, Vallabhnagar and Kikawas fell. (ix) Further case of the petitioner is that he joined the duties on 24.12.1977 at Gram Panchayat, Baiathal in pursuance of advertisement (Annex. 8) and order dtd. 23.11.1977 (Annex. 10). (x) Further case of the petitioner is that he had retired from the services on 30.6.1995 vide order dtd. 30.6.1995 (Annex. 11). (xi) Further case of the petitioner is that pension payment order dtd. 2.8.1996 (Annex. 12) was issued by the respondent No. 4 (Joint Director of Pension, Jaipur) whereby his services for the purpose of pension were counted from 23.12.1977 to 30.6.1995 and not from 1.4.1958 to 30.6.1995. Hence, this writ petition with the abovermentioned prayer. (3). 30.6.1995 (Annex. 11). (xi) Further case of the petitioner is that pension payment order dtd. 2.8.1996 (Annex. 12) was issued by the respondent No. 4 (Joint Director of Pension, Jaipur) whereby his services for the purpose of pension were counted from 23.12.1977 to 30.6.1995 and not from 1.4.1958 to 30.6.1995. Hence, this writ petition with the abovermentioned prayer. (3). That reply to the writ petition was filed by the respondents and their case is that the petitioner had worked as Secretary in various Panchayats from 1.4.1958 to 23.12.1977 and at that time, his services were not Government services and he was not a Government employee and he had worked on contract basis and since the petitioner was regularly appointed through order dtd. 23.11.1977 and he joined the duties on 24.12.1977, therefore, for the purpose of pension, his services would be counted from 24.12.1977 and thus, the petitioner has rightly been granted pension and hence no case is made out and the writ petition be dismissed. (4). Heard. (5). There is no disputed on the point that the petitioner had worked from 1.4.1958 to 23.12.1977 under different panchayats on consolidated salary of Rs. 30-40/- per month. (6). There is also no dispute on the point that in pursuance of advertisement dtd. 26.5.1977 (Annex. 8), the petitioner was regularly appointed by order dtd. 23.11.1977 (Annex. 10) as Group Secretary, Gram Panchayat Balathal and he joint the duties on 24.12.1977. (7). There is also no dispute on the point that through order 30.6.1995 (Annex. 11), the petitioner retired from the services on attaining the age of superannuation. (8). There is also no dispute on the point that for the purpose of pension, the services rendered by the petitioner from 24.11.1977 to 30.6.1995 were counted. (9). Now the question which arises for consideration is whether in the facts and circumstances just mentioned above, the services rendered by the petitioner from 1.4.1958 to 23.12.1977 on the consolidated salary of Rs. 30-40 per month should be counted as qualified services for the purpose of pension or not. (10). The learned counsel for the petitioner has placed reliance on Rule 179 of the Rajaisthan Services Rules, 1951 (hereinafter referred to as the Rules of 1951). For convenience Rule 179 of the Rules of 1951 is quoted hereunder: ``179. 30-40 per month should be counted as qualified services for the purpose of pension or not. (10). The learned counsel for the petitioner has placed reliance on Rule 179 of the Rajaisthan Services Rules, 1951 (hereinafter referred to as the Rules of 1951). For convenience Rule 179 of the Rules of 1951 is quoted hereunder: ``179. Conditions of qualification:- 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 substantive/permanent, temporary or officiating capacity. Third - The service may be paid by the Government. (11). In my considered opinion, the Rules 179 of the Rules of 1951 would not come to rescue the petitioner for establishing his claim that his services rendered from 1.4.1958 to 23.12.1977 should be counted for the purpose of pension because of the following reasons: (i) The petitioner was first appointed on contract basis and he was never appointed by the respondents in the regular manner and he had worked on the consolidated salary of Rs. 30 or 40 per month under different Panchayats and prior to 24.12.1977 he was not discharging the duties either substantively or in an officiating or temporary capacity. So far as the submission of the learned counsel for the petitioner that respondent No. 6 (Vikas Adhikari, Panchayat Samiti, Bhinder) while forwarding the application (Annex. 9) of the petitioner for the post of Group Secretary has mentioned in column No. 19 that the petitioner had worked under him from 1.4.1958 and therefore, from this point of view, it should be treated that he was in the employment of the respondents is concerned, in my considered opinion, this argument carries no weight because so far as working of the petitioner with the respondents is concerned, it was purely on adhoc or contract basis and no appointment order was issued and thus, the appointment of the petitioner was not regular and for the first time, when the post of Group Secretary was advertised through advertisement Dtd. 26.5.1977 (Annex. 8), the petitioner applied for same and thereafter through order dtd. 23.11.1977 (Annex. 10), he was regularly appointed and he joined the services on 24.12.1977 and thus, the petitioner was regular employee of the respondents only w.e.f. 24.12.1977 and not prior to that. 26.5.1977 (Annex. 8), the petitioner applied for same and thereafter through order dtd. 23.11.1977 (Annex. 10), he was regularly appointed and he joined the services on 24.12.1977 and thus, the petitioner was regular employee of the respondents only w.e.f. 24.12.1977 and not prior to that. (ii) Apart from this as per Sub-Rule (b) of Rule 12 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as the Rules of 1996), the qualifying service of a Government servant shall commerce from the date he takes over charge of the post to which he is first appointed, either substantively or in an officiating or temporary capacity. In the present case, since the petitioner was first appointed on the post of Group Secretary on substantive basis through order dtd. 23.11.1977 and he joined the duties on 24.12.1977, therefore, the qualifying services of the petitioner for the purpose of pension shall commence from 24.12.1977 when he took over the charge of the post on substantive basis and not prior to that. (iii) It may be stated here that the expression ``qualifying service is not to be confused with ``years of service and therefore from every point of view, the qualifying services of the petitioner would be counted from 24.12.1977 and not prior to that. (12). The learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Sajjan Singh Jodha vs. State of Rajasthan and Ors. reported in 2003 (3) RLR 78). In my considered opinion, the facts of the present case stand distinguished from the facts of the case of Sajjan Singh Jodha as in the case of Sajjan Singh Jodha (supra), there was specific Rule 6 in the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954 for counting the past services, but in the present case there is no such rule and hence this authority would not be helpful to the learned counsel for the petitioner. (13). For the reasons mentioned above, the present writ petition has no force and the same deserves to be dismissed. Accordingly, the present writ petition is dismissed. No order as to costs.