Judgment 1. We have heard learned Counsel for the parties. No. 529/1995, decided on 11.02.1996;; Writ Petition Allowed 2. The issue raised in this petition is that in order to apply Rule 26 of the Rajasthan Service Rules, 1951 for fixation of pay, whether the period of service rendered by the incumbent as Government Servant under another Department of the Government rendered in Work Charge Establishment, which is also governed by rules framed under proviso to Article 309 and is pensionable, can be taken into account, when such incumbent is appointed later on in the other service governed by Rajasthan Service Rules. 3. The petitioners case is that from 01.06.1973 to 08.01.1980, he was serving under the State Government in the Work Charge Establishment `terms of which were not governed by Rajasthan Service Rules (RSR), but by Rajasthan Work Charged Establishment Rules, 1964, framed by the Governor in exercise of his powers under proviso to Article 309 of the Constitution. Thereafter, on 15.01.1980, the petitioner was appointed as Ammen in the service governed by RSR, by selection/absorption. At that time petitioner-appellant was working as Store Munshi on Work Charge Establishment. Pay Scale of Store Munshi and Ameen (the new post at which petitioner was appointed) was the same. 4. In view of his appointment from one Government Department to another Government Department, the question arose about fixation of pay of the petitioner in pay scale applicable to post of Ameen. The petitioner-appellant claimed that after the petitioner is appointed to a service governed by RSR., fixation of his pay on such post is governed by Rule 26 of RSR and he is entitled to protection of his pay, which he was drawing under the previous Government service in terms of Rule 26. 5. The respondents urged that since the terms and conditions of services rendered in Work Charge Establishment in certain circumstances are not governed by RSR as per Rule 2 (b)(f) of RSR, when such incumbent is later on appointed to a Government service governed by RSR, he cannot carry the benefit of previous service for the purpose of fixation of his pay on such latter appointment in terms of Rule 26 of RSR. He relies on a Bench decision of this Court in State of Rajasthan vs. Mangilal, passed in D.B. Civil Special Appeal (Writ) No. 529/1995 decided on 11.03.1996 6. He relies on a Bench decision of this Court in State of Rajasthan vs. Mangilal, passed in D.B. Civil Special Appeal (Writ) No. 529/1995 decided on 11.03.1996 6. Mangilals case (Supra), had arisen in like circumstances. The learned Single Judge had held that the fact that the petitioner appellant is a Government Servant governed by the RSR being not disputed, his pay is required to be fixed under Rule 26. Service rendered under Work Charge Establishment is a service rendered under Government. If this is so, notwithstanding that the RSR does not apply to work charge establishment, where the incumbent was previously employed, still persons employed in work charge establishment can be considered under Rule 26 RSR. The expression used in Rule 26 prescribes only “Government employee” “appointed to another Government service” and, therefore, the distinction cannot be drawn for the purpose of invoking Rule 26 between one Government service and another Government service on the basis of non-applicability of RSR to the previous service. 7. The said Judgment of the learned Single Judge on which reliance has been placed, by learned Counsel for the petitioner has since been subjected to appeal before the Division Bench in the case noticed above. The Division Bench held that since service under Work Charge Establishment is not governed by RSR, to such employees, Rule 26 is not applicable when later on they are appointed to a Government service governed by RSR. 8. Learned Counsel for the appellant states that issue needs to be reconsidered as the view taken by the Division Bench has not taken into account that Work Charge Rules, 1964 were also rules framed under proviso to Articles 309 and though all the general terms and conditions of RSR are extended to it, but it provides for status of permanent employees for persons recruited under it and that appointment on Work Charge Establishment has since been made pensionable like any other Government service. Hence, the persons appointed under the Work Charge Rules have the status of permanent Government Servant belonging to Work Charge Establishment of the State and such service is pensionable. 9. Learned Counsel further contends that basic foundation of the Judgment rendered by Division Bench on the assumption that employees on Work Charges Establishment did not hold substantive, temporary or ad hoc category of employees. 9. Learned Counsel further contends that basic foundation of the Judgment rendered by Division Bench on the assumption that employees on Work Charges Establishment did not hold substantive, temporary or ad hoc category of employees. Perhaps, it was not brought to the notice of the Court that when the Rules of 1951 were promulgated, the service under Work Charge Establishment was not governed by any rules framed under proviso to Article 309 or any other Statutory provisions, nor the other provisions giving the work charge establishment employees a permanent status and Work Charge Service was not pensionable. The Court in the absence of these provisions being brought to its notice did not consider the impact of promulgation of Work Charge Establishment Rules framed under proviso to Article 309. It is also urged that the Judgment is founded on the premise as if fixation of work charge employee is to be made under RSR. However, once a person is appointed on a post in the cadre governed by the RSR, the fixation of pay of incumbent is to be in accordance with the provisions of RSR as an employee appointed on cadre governed by the RSR, and not on the basis of previous service. The Judgment proceeds on the foundation that some benefits are extended to the work charge employees. In fact, Rule 26 of the RSR does not proceed on assumption that person from another Government service must be drawing salary in the regular pay scale on the lower post or higher post or the similar post. It is primarily concerned how the pay is to be fixed on appointment of any person from one Government service under the State to another Government service of the State. Rule 26 in substance lays down that pay of an incumbent in such case be fixed in a manner that the emoluments which the incumbent was drawing in another service under the Government is protected. The effect of provision that the Work Charge Rules, 1964 makes the appointment on work charge establishment on pensionable post is that on being absorbed on another pensionable post under Government, it has to be counted for qualifying service, else a person would become entitled to two separate pensions from the same employer while being employed in another Government service. The effect of provision that the Work Charge Rules, 1964 makes the appointment on work charge establishment on pensionable post is that on being absorbed on another pensionable post under Government, it has to be counted for qualifying service, else a person would become entitled to two separate pensions from the same employer while being employed in another Government service. With the aforesaid premises, the learned Counsel submits that the Judgment of the Division Bench is per in-curium and at any rate it requires reconsideration. 10. We find force in the contention of the learned Counsel for the appellant. When Rules of 1950 were framed and they provided general terms and conditions of service under the State it excluded certain posts and class of employees from the purview of such general conditions, and appointment on Work Charge Establishment then was of a casual nature with no statute as such. However, the Rajasthan Work Charge Employees (including PWD. (B&R), Garden, Irrigation, Water Supply and Ayurvedic) Service Rules, 1964 were promulgated vide notification dated 07.07.1964 by the Governor in exercise of his powers under proviso to Article 309 of the Constitution. Considering the nature of work discharged by the employees they were put on general purview of administration while continuously serving on Work Charge Establishment. 11. Part 2 of the Rules of 1964 provides general service condition and Rule 3 thereunder envisages three categories of work charge employees namely (i) permanent (ii) semi-permanent and (iii) casual. Sub-rule (3) envisages that a work charged employee in continuous service for two years or more shall be eligible for the status of semi-permanent and Sub-rule (2) provides that employees who have been in service for 10 years or more shall be eligible for the status of permanent work charge employees provided that their record of service in the opinion of competent authority is satisfactory. Albeit it envisages that on acquiring permanent status on Work Charge Establishment, an incumbent will be admitted to only such benefits of regular employees under RSR to the extent such benefits are extended to such employees under the Rules of 1964. However, Rules of 1964 do not control the fixation of pay of such employees in another Government service which is governed by RSR. On such appointment, obviously he ceases to be a work charge employee and consequently ceases to be governed by Rules of 1964. 12. However, Rules of 1964 do not control the fixation of pay of such employees in another Government service which is governed by RSR. On such appointment, obviously he ceases to be a work charge employee and consequently ceases to be governed by Rules of 1964. 12. Part II of Rules 1964, apart from providing eligible age, and qualification for recruitment, also provided for settling of the seniority amongst the persons employed on the work charged established. Under Rule 7. Appointments were envisaged both by direct recruitment as well as by promotion on various posts under work charge establishment. 13. Rule 12 envisages that in the case of work charged staff , whose emoluments have separate elements of pay and dearness allowance, as are admissible to regular employees of the Government, pay should be allowed in revised pay scale applicable to the regular employee of the Government performing similar duties. Those employees, who were employed on consolidated wages, without separate element of dearness allowance but whose wages are fixed on analogy of total emoluments admissible to regular employee together with provisions for regular increments, their wages are also liable to be revised in terms of the revised pay scale granted to regular employee of the Government discharge similar duties. The work charge employees were made entitled to the regular annual increments under Rule 13(1) 3. However, this rule clearly envisage that work charge employees are "Government Servants" and are serving under State Government. 14. Rule 8 which provides the age of superannuation clearly indicates that ordinarily a person entering the Work Charge Establishment was liable to continue until he attains the age of 58 or 55 years depending upon the category in which he is employed at the time of attaining such age, except in case where his service could be brought to an and earlier under the other provisions of the rules. This is also indicative of the fact that the employment on the Work Charge Establishment was of regular continuity. Since, it was a continuous employment until one reaches age of superannuation, it cannot be treated in all circumstances to be of casual nature conferring no status of Government employees. 15. The progress in the service was also provided by providing promotional opportunities under the rules. 16. Initially Rule 22 provided for setting up a contributory provident fund for the benefit of employees on the Work Charged Establishment. 15. The progress in the service was also provided by providing promotional opportunities under the rules. 16. Initially Rule 22 provided for setting up a contributory provident fund for the benefit of employees on the Work Charged Establishment. Subsequent thereto by inserting Rule 22-A vide Notification dated 07.09.1980 a work charge employee having completed or completing 10 years service shall have the option to elect either to continue to be Member of the Contributory Provident Fund or to opt for pensionary benefits. While opting for pension, his own contribution to CPF was to be transferred to GPF and the amount contributed by State Government to CPF was to be credited to the general revenue of the State Government and the employee became entitled to count the service rendered on the Work Charged Establishment until the date of such option as part of the service rendered on a pensionable establishment. 17. All these provisions go to establish the status of an employee on the work charged establishment to be of a permanent/substantive temporary of ad hoc basis is in the cadre of Work Charge Establishments. But these provisions appear to have not been brought to the notice of the Court and, therefore, the same have not been noticed, nor its effect on issue before it could be considered by the Court. 9.18. In Table under Rule 26(1), Column (2) refers to the status of the person appointed on new post as he was holding in his previous service. All the Columns (a), (b) and (c) refer to the post held in service whose terms and conditions are governed by respective rules under which appointment is made and not by RSR. In fact, Para (b) clearly refers to the previous post in the Government to which appointment has been made in any capacity in accordance with the provisions of Services Rules relating to appointment by recruitment or promotion under proviso to Article 309 of the Constitution of India and also takes within its ambit temporary or permanent posts in case where no Service Rules were promulgated under proviso to Article 309 of the Constitution of India exist. Clause (c) refers to appointment in the previous service having been offered without following the procedure laid down in service rules promulgated under proviso to Article 309 of the Constitution of India as well as persons appointed by absorption or the services are governed by another service rules promulgated under proviso to Article 309 of the Constitution. In fact, Clause (iv) of Para (c) takes into all residuary Government service within its ambit not falling within any of preceding contingencies. Therefore, Rule 26 has to be read in its own context which includes within its ambit all the previous services under State Government from which a person is appointed to another department, to a post whose terms and conditions of services are governed by RSR and applicability of Rule 26 is not confined only to such cases where previous service is also governed by RSR. 18-A. It is apparent that it was not brought to notice of Division Bench in Mangilal’s case that under Para (b) of Table appended to Rule 26, all previous service to which recruitment or promotion is regulated by rules framed under proviso to Article 309 are brought within the purview of Rule 26. 19. Incidentally, Clause (iv) of Para (b) deals with the fixation of pay of an employee of State who is appointed in a new department by absorption while serving in another Government Department. The State Government, lately with a view to gradually close the Work Charge Establishments has projected absorption of work charge employees on availability of vacancy in other Government Departments. Apparently, it cannot be conceived that on absorption in the regular cadre of such work charge employees, they will loose their pay protection and the benefit of past service which is pensionable. On absorption past service remain with the employees who gets absorbed from one post to another post from one department to another department. Clause (iv) of Para (b) of Rule 26 applies to all instances of service where appointment in previous service is in terms of Service Rules framed under proviso to Article 309 of the Constitution. 20. On absorption past service remain with the employees who gets absorbed from one post to another post from one department to another department. Clause (iv) of Para (b) of Rule 26 applies to all instances of service where appointment in previous service is in terms of Service Rules framed under proviso to Article 309 of the Constitution. 20. Clause (iv) of Para (c) of Rule 26 also does not appear to have been brought to the notice of the Court, which is framed as residuary clause and provides for fixation of pay when a person already in one Government employment to another post under the Government in the circumstances not governed by other provision which includes appointment by absorption not covered by Para (b) envisages fixation of emoluments under Rule 26 protecting the pay of last pay even in case last appointment was not in accordance with rules framed under provision. We have noticed that Work Charge Rules were framed under proviso to Article 309 of the Constitution and the petitioner had been appointed in accordance with the same to Work Charged Service. 21. As these aspects have vital bearing on the nature of petitioners service, his status and fixation of emoluments on being appointed to another service of the State Government while he was already a Government servant, which could not be considered by the Division Bench apparently because the scheme of the Work Charged Rules was not brought to the notice of the Court, and the Judgment proceeded on assumption that the petitioners appointment to Work Charged Establishment was not a regular appointment but was of casual nature, the Judgment in Mangilals case must be held to be per in-curium. 22. Taking into consideration the aforesaid provisions of the Work Charged Establishment Rules, 1964 there cannot be any doubt that the employees under the work charged establishment are appointed by direct recruitment or by promotion on various posts governed by said Rules of 1964 and their recruitment, promotion and terms of employment is governed by the rules framed under proviso to Article 309. Their status has to be determined in the light of provisions of statutory rules under which they have been appointed and not on the basis of general perception of Work Charged Establishment, appointment under which in the absence of Statutory rules were concerned on the basis of administrative exigencies as was the initial stage of the establishment in Rajasthan. But where the employment under Work Charge Establishment is governed by under rules framed under proviso to Article 309, their nature of employment and status has to be considered in the light of such rules. Under the Rules of 1964, the employees on Work Charged Establishment in Rajasthan acquire a different status at different point of time under Rule 3 namely (i) permanent, (ii) semi-permanent and (iii) casual. The employment under Rules of 1964 is of permanent nature is clear from prescription of age of superannuation at 55 or 58 as the case may be. Merely because all the general terms and conditions applicable to other service under Government as provided under RSR are not applicable to the post under the Work Charged Establishment, it cannot be held to be not substantive temporary or ad hoc as in any other cadre or department of the Government. The rule framed under Article 309 clearly shows that the Work Charge Establishment is a regular establishment of the Government and was not a temporary establishment. If ultimately at some point, Government decides to abolish any particular establishment or department, does not make the employee working in such department or establishment without any status. This can happen with any service depending upon the policy of State in this regard. On abolition or closure of Work Charge Establishment, the employees working thereunder, unless their services are terminated in accordance with law, are required to be absorbed in other services in accordance with scheme of absorption of surplus employees. 23. Viewed from any angle, status of an incumbent serving on Work Charged Establishment is of a Government Servant of a Department of Government. The petitioner, therefore, fulfills the first condition for invoking Rule 26 that to be a Government Servant already serving in one service, cadre, or department. He also fulfills the second requirement of Rule 26 viz. that while he was a Government Servant serving in Work Charged Department, he has been appointed to another Department. The petitioner, therefore, fulfills the first condition for invoking Rule 26 that to be a Government Servant already serving in one service, cadre, or department. He also fulfills the second requirement of Rule 26 viz. that while he was a Government Servant serving in Work Charged Department, he has been appointed to another Department. These are the only condition necessary for invoking Rule 26 of RSR for the purpose of fixing emoluments of such person on latter appointment. 24. It is not the requirement for invoking Rule 26 that previous service under the Government must also be governed by RSR. RSR are not the rules governing recruitment to any service. Recruitment is under separate rules applicable to service concerned. RSR becomes applicable only after one is appointed to a service to which RSR applies. 25. Apparently the question of pay fixation arises when a person is appointed in a service to which terms and conditions of the RSR are applicable and not while he is continuing in the same Government service. The applicability of RSR is relevant for the present service wherein emoluments are to be fixed which is in continuation from previous service. The fact that in the previous Government Service emoluments were not fixed in terms of RSR is not relevant. It is not in dispute that the petitioner was appointed as Amin under the Rajasthan Land Revenue Act and rules framed thereunder which is a service governed by RSR. Once he becomes the member of such service, the terms and conditions of pay fixation on the new post are governed by the RSR. All the terms and conditions of the RSR applies to such employees including pay fixation under Rule 26. It is not the condition that in order to invoke Rule 26 a Government Servant already serving in another Department much also be subject to RSR. As we have noticed above, the primary object of Rule 26 is to protect the pay which an incumbent was drawing on the previous service, under the Government prior to his recruitment on another service even by extending personal pay if so necessitated. Rules 26 does not protect pay scale. 26. As we have noticed above, the primary object of Rule 26 is to protect the pay which an incumbent was drawing on the previous service, under the Government prior to his recruitment on another service even by extending personal pay if so necessitated. Rules 26 does not protect pay scale. 26. There being no exclusion of service under Rules of 1957 from the purview of Rule 26, once a person is appointed to a service governed by the RSR, on a plain reading of Rules 26 there is no room to reach a different conclusion than what has been reached by the learned Single Judge in Mangi Lals case (Supra). 27. From the material placed on record and about which there is no controversy it is apparent that the Service Book of the petitioner maintained by the respondents and placed with reply as Annexure-R-1, shows the petitioner to be a Government Servant serving at the Mahi Project, under the Irrigation Department of State on its Work Charged Establishment. He was serving since 01.06.1973. He was initially appointment on Muster Roll. He was made semi-permanent vide order dated 10.12.1976 and when he was relieved to join new service in the settlement Department on being selected on 08.01.1980 vide Annexure R-2, he was working as Store Munshi. 9.28. Rule 26 envisages that appointment to different department of such in service Government employee may be by way of direct recruitment, on special selection, or by absorption on being surplus from parent/previous department. The petitioner was appointed to Rajasthan Land Revenue Service as Amin on being selected. Thus, he was appointed in the Government service of Settlement Department by way of direct recruitment by selection. 10.29. The Government has also taken the view that pay of such work charged employee in Work Charged Establishment who has been appointed to regular department on being selected is protected. The petitioner has placed on record Annexure-4 alongwith rejoinder. Annexure-4 is approval accorded by the Government for protecting the pay of 27 employees who were working on Work Charge Establishment of Mahi Project on different pay scales and were appointed on regular cadre posts in an other Government Department on being selected for such regular posts. In all such cases, the difference between the last drawn pay on Work Charge Establishment and minimum of pay scale applicable to new post was allowed by way of personal pay. 130. In all such cases, the difference between the last drawn pay on Work Charge Establishment and minimum of pay scale applicable to new post was allowed by way of personal pay. 130. Likewise Annexure-5 dated 31.08.1990 is the order in the case of Shri Ram Baboo Sharma conveying sanction of protecting his pay which he was drawing as Work Charged employee just before his appointment in the regular cadre of Amin. 12.31. In the case of petitioner also the Commissioner of Settlement sought approval for protecting petitioners pay by placing him in the same stage of pay scale Rs. 355-570 which was applicable to previous post viz. Store Munshi, as well as by referring to identical case in which, where pay scale of two posts were same, pay of the incumbent on the new post were fixed at the same stage of pay scale at which incumbent has reached on his previous post. 32. Inexplicably there being no difference in the applicability of rule and on principle of protecting pay of last pay between the petitioner and other cases referred to above, the request was turned down on wholly extraneous ground vide Exhibit-3. 1.33. It does not say that petitioner was not a Government servant or his appointment on regular post was not by way of due selection while he was serving in one Department. On the other hand, it acknowledged that department of Work Charged is different from Settlement Department and that is the reason given by the order for non-applicability of principle of pay protection. If that were so, Exhibit-4 and Exhibit-5 would have been issued sanctioning approval of pay protection on being appointed to regular establishment of an employee working on Work Charged Establishment of Mahi Project. No distinction can be made on the ground of difference in the Department of two postings. In fact Rule 26 is also founded on basis principles, envisaging pay protection in cases where Government servant who is already serving in one Department is appointed in another Department. 2.34. The other reason given in the impugned order is about hiatus between the relieving from president department and joining in new department. When appointment by direct recruitment on the new post is envisaged for fixing emoluments under Rule 26 on such latter appointment, there is bound to be some hiatus between the date of relieving and date of joining. 2.34. The other reason given in the impugned order is about hiatus between the relieving from president department and joining in new department. When appointment by direct recruitment on the new post is envisaged for fixing emoluments under Rule 26 on such latter appointment, there is bound to be some hiatus between the date of relieving and date of joining. Without getting relieved from previous posting one cannot join a new posting. Joining time is availed even on transfers if not otherwise directed, on joining a new post in pursuance of new appointment. No rule has been shown which say that if joining time is availed he forfeits his right of pay protection. Even otherwise law envisages that such hiatus can be bridged by grant of regular leave. The impugned order Annexure-3 appears to be on the face of it capricious, whimsical and arbitrary, apart from suffering from vice of hostile discrimination for the reasons noticed hereinabove. Thus, on facts also the petition succeeds. 3.35. Apart from the above factual aspect of the case which reveals that the petitioner has been subjected to hostile discrimination and his fundamental rights have been violated in the matter of protecting the pay on his being appointed to a regular establishment of the Settlement Department as "Amin" on regular selection when he was already a Government Servant serving in Work Charge Establishment, a significant departure from the general view of the nature of the Work Charge Establishment emanating from judicial pronouncements has taken place with insertion of Rule 22-A in the Rules of 1964 by making the service under the Work Charged Establishment a pensionable service. 4.36. As noticed above, Rule 22-A not only makes the service of Work Charged Establishment pensionable but also extends the rules applicable to the grant of pension to the Government Servant from time to time applicable to the Work Charged Employees on their becoming eligible to pensionary benefits. This takes us to the scheme of pension under the RSR prior to promulgation of the separate Civil Service Pension Rules, 1996 5.37. Rule 22-A read with Rule 179 defines the conditions of qualifying service. This takes us to the scheme of pension under the RSR prior to promulgation of the separate Civil Service Pension Rules, 1996 5.37. Rule 22-A read with Rule 179 defines the conditions of qualifying service. Rule 179 states that the service of an officer does not qualify for pension unless it conforms to the following three conditions: (i) The service must be Government; (ii) The employment may be in substantive/permanent, temporary or officiating capacity; (iii) The service may be paid by the Government. Read with the Rules of 1964, referred to above, the service on the Work Charged Establishment fulfills all these three criteria to be considered for the purpose of qualifying service. 6.38. Rule 181 makes the "appointment by Government" necessary condition for pension. The appointment on Work Charged Establishment is also "by the Government" 7.39. Even before insertion of Rule 22-A in the Rules of 1964, the Government vide its decision dated 31.01.1977 had given option to Work Charged employees on their being appointed to regular posts, to opt to surrender their CPF benefits, and on such options, the services rendered on Work Charged Establishment, prior to appointment on regular post were counted for qualifying service. 8.40. This Court has opined consistently that services rendered on Work Charged Establishment is to be computed for qualifying service, on their appointments in regular post. In this connection, reference may be made to Durga Prasad Sharma vs. State of Rajasthan, 1993 (1) RLR 428 in which the Court relying on three earlier Judgment s held that period of service rendered on Work Charged Establishment before appointment in regular cadre has to be counted as pensionable service. 9.41. Similarly, Rule 337 of RSR prohibits drawing of pension in addition to pension pay, in case he retires from one Government service and is re-employed in another. 10.42. These provisions are indicative of principle that a Government Servant simultaneously cannot draw pension from one post which he ceases to hold by direct appointment on another post, and pay of post on which he is re-appointed thereafter. 11.43. Obviously, the rules cannot be interpreted in a way to exclude a qualifying service while considering eligibility to pension and computing pensionary benefits, which otherwise fall within Rule 179 as qualifying service, unless such service is forfeited. In the case of cessation of one employment and initiation of another appointment, services on previous appointment is not forfeited. 11.43. Obviously, the rules cannot be interpreted in a way to exclude a qualifying service while considering eligibility to pension and computing pensionary benefits, which otherwise fall within Rule 179 as qualifying service, unless such service is forfeited. In the case of cessation of one employment and initiation of another appointment, services on previous appointment is not forfeited. On principle, in such cases joining time as allowed under law for join