Honble BALIA, J.–Heard learned counsel for the parties. (2). This appeal is directed against the order of learned Single Judge dated 30.1.2004 dismissing the writ petition filed the appellant laying claim to count the services, rendered by him from 15.7.1956 to 17.1.1965 under the Municipal Board, Nagaur before he was transferred to the office of the Sub-Divisional Officer, Parbatsar; as qualifying service for the purpose of determining his pension and his retiral benefits. (3). The petitioner-appellant retired from the services of the State Government on 30.9.1988 and he became entitled to pension w.e.f. 1.10.1988. (4). According to the learned counsel for the appellant, petitioner-appellant has been paid salary by computing his qualifying service with effect from the date he joined as LDC in the office of Sub-Divisional Officer, Parbatsar. (5). Prior to his transfer under the Sub-Divisional Officer, Parbatsar vide order dated 14.1.1965 (Annex.3), the petitioner was serving as LDC with the Municipal Board, Nagaur. The petitioner has laid claim to computation of his past services rendered with Municipal Board, Nagaur as qualifying service for the purpose of determination of his pension and other retiral benefits including the period during which he has served with the Municipal Board soon before he retired. The petitioner having not received any relief, approached this Honble court by way of filing S.B. Civil Writ Petition No.1625/1991, which was disposed of by this Court on 15.7.1991 by directing the respondents to consider the representation made by the petitioner. The representation filed by the petitioner was rejected on 28.11.1994 informing the petitioner that the period during which he has served under the Municipal Board cannot be counted as qualifying service under Rajasthan Service Rules, 1951. (6). The issuance of order dated 14.1.1965 (Annex.3) is not in dispute and has a relevant bearing to the controversy, which reads as under: Office of the Collector, Nagaur No.Estt/ Dated Order Shri Rameshwar Lal Bohra, LDC in the Municipal Board, Parbatsar is hereby transferred in the District Administration and posted in the office of SDO, Parbatsar against he vacancy caused due to the promotion of Shri Bhim Raj LDC. The seniority of Shri Rameshwar Lal however will be counted from the date he joints the District Administration. Sd/- H.M. Mathur Collector, Nagaur. Dated 14.1.1965 No.Estt/205 Copy forwarded to: 1. The Sub-Divisional Officer, Parbatsar for information. This is with reference to his end No.Estt/NG/lex/65 dated 7.1.1965 2. The seniority of Shri Rameshwar Lal however will be counted from the date he joints the District Administration. Sd/- H.M. Mathur Collector, Nagaur. Dated 14.1.1965 No.Estt/205 Copy forwarded to: 1. The Sub-Divisional Officer, Parbatsar for information. This is with reference to his end No.Estt/NG/lex/65 dated 7.1.1965 2. The Chairman, Municipal board, Parbatsar. He will please relieve Shri Rameshwar Lal Bohra, LDC of the office and direct him to report himself for duty to the office of SDO, Parbatsar immediately. 3. Shri Rameshwar Lal bohra, LDC, Municipal Board, Parbatsar. 4. Personal file. Sd/- (7). The respondents contention in reply is that since, the petitioner was to be assigned seniority with effect from the date he joined in pursuance of order dated 14.1.1965, as such he was not entitled to benefit of seniority prior to the date of his joining. The period prior to the joining was not liable to be counted. The respondents further urged that it was not a case of appointment by transfer but it was a case of fresh appointment. The other contentions raised by the respondents in their reply was that since the petitioner was not governed by Rajasthan Service Rules and his services under the Municipal Board was not a State service under RSR, the service rendered at the Municipal Board, Nagaur was not included in counting qualifying service in terms of Rule 179 which was in force at the time of petitioner retired. (8). We may notice here that chapter about Pension Rules from RSR has since been deleted and new pension rules have been framed in 1996. (9). The learned Single Judge was of the opinion that since pension scheme for the Municipal employee started after framing of the Pension Rules in 1989, as such the petitioner cannot claim pension for the tenure he served in the Municipal Board. Since, the service which was rendered by the petitioner under the Municipality was not pensionable, and the petitioner was a member CPF or PF, the services rendered by him cannot be included in qualifying service even after framing of the Pension Rules, 1989. (10). We have heard learned counsel for the parties. The multi- facet look at the controversy raised before us leads us to the conclusion that the services rendered by the petitioner under the Municipal Board cannot be excluded from computing the qualifying service under the pension rules. (11). (10). We have heard learned counsel for the parties. The multi- facet look at the controversy raised before us leads us to the conclusion that the services rendered by the petitioner under the Municipal Board cannot be excluded from computing the qualifying service under the pension rules. (11). If the Court looks from the point of view of appointment, the order of appointment is clearly an appointment by transfer from Municipal Board, Nagaur, to the office of Sub-Divisional Officer, Parbatsar. Fresh appointment under the Rules of 1957 which governs recruitment to subordinate services by the State could have been done in the manner prescribed therein. It is not the case of the respondents that the petitioner was appointed as LDC through he process of direct recruitment or by giving any appointment through the process of selection provided under the Rules of 1957. It was clearly a case where the State Government exercised its administrative control, may be at the request of the petitioner for transferring him from the municipal service to the State service and, therefore, it is too late to urge by the respondents that the petitioners appointment was a fresh appointment. The order (Annex.3) speaks in no uncertain terms that the `petitioner has been transferred from Municipal Service to the District Administration. In ordinary circumstances, transfer means continuity in service and not a break in service. The order did not require the petitioner to resign and join at new assignment as a fresh appointment but carried with it a request to Chairman, Municipal Board to relieve the petitioner with direction to join in the office of SDO, Parbatsar. This was clearly indicative that the petitioner was required to join at available vacancy by way of transfer from one service to another service and not by bringing an end to earlier service by way of fresh appointment under new service. (12). The fact that the seniority has been assigned with effect from the date of joining in pursuance of the transfer order, has hardly any relevance with the question of determining the qualifying service. Determination of seniority depends upon rules governing seniority under the service whereas the qualifying service depends on the pension rules providing for computing of qualifying services and the retiral benefits as may be available to the incumbent at the time of his retirement. Determination of seniority depends upon rules governing seniority under the service whereas the qualifying service depends on the pension rules providing for computing of qualifying services and the retiral benefits as may be available to the incumbent at the time of his retirement. Reference to the seniority position of the petitioner is wholly irrelevant for considering the claim of the petitioner to the retiral benefits by appropriately computing the qualifying service. In fact, the respondents while considering the representation of the petitioner had confined their application of mind to Rule 179 but Rule 180 had escaped their attention, which existed on the rule book at the relevant time and certain orders issued by the Government in exercise of power conferred upon it had come into existence prior to the petitioners retirement from service. (13). The State Government vide its order dated 23.9.1988 in exercise of its powers under Rule 180 added item Nos. (v) and (vi) in existing notification, which reads as follows: (v) The employees of a Central autonomous body/statutory body or State Government, as the case may be, who have already been sanctioned or have received pro rata retirement benefits or other terminal benefits for their past service will have the option either:- (a) to retain such benefits and in that event their past service will not qualify for pension under the Central autonomous body/Statutory body or the State Government, as the case may be; or (b) to have the past service counted as qualifying service for pension under the new organization in which case the pro rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of these benefits till the date of deposit with the Central autonomous body/statutory body or the State Government, as the case may be, the rate of interest in such cases would be simple interest of 6% per annum. (14). The said service is to be counted for qualifying service only after such an amount has been refunded to the same authority. On fulfillment of this condition, the service rendered in the previous organization is to be computed for qualifying service. The order was to be effected from 23.9.1988. (15). (14). The said service is to be counted for qualifying service only after such an amount has been refunded to the same authority. On fulfillment of this condition, the service rendered in the previous organization is to be computed for qualifying service. The order was to be effected from 23.9.1988. (15). Thus, the State Government having exercised its power under Rule 180 to compute the past services rendered by the incumbent in a Central autonomous body/statutory body or other Department of State Government on refund of the retiral benefits, if any, received from such post employment, the period of service rendered in the past organization is to be computed for qualifying service. It appears that notice to Rule 180 and the decision rendered thereunder by the State Government was not drawn to the notice of the learned Single Judge. (16). We find that a Bench decision was rendered on 12.4.2005 in DBCWP No.4747/2004, Udai Singh Udawat vs. Rajasthan High Court & Ors. It was a case in which the petitioner had entered initially in the services of JNV University, Jodhpur as Laboratory Assistant and subsequently he was selected for the post of Prosecuting Sub-Inspector in the year 1973. Thereafter, he became member of the Rajasthan Judicial Services on 2.1.1979. The same question arose whether the services rendered by him as Laboratory Assistant during the period from 19.7.1963 to 31.5.1973 is to be counted for pension purposes. The claim of the petitioner for inclusion of the said period into qualifying service was rejected by the State Government in the like manner. (17). The Division Bench referred to Rule 40 of the Rajasthan Pension Rules, 1996, which is peri materia to Rule 180 of the Rajasthan Service Rules, 1950 and considering the order issued by the Government on 19.8.1989, which was clarification of its earlier Notification dated 23.9.1988 nd has been appended to the Rules of 1996, came to the conclusion that ``now it is well settled that even the employees of the JNV University, Jodhpur, who have retired before the introduction of the pension scheme on being given option are entitled to pension. Thus, as per Appendix IX, the services rendered by the petitioner as Laboratory Assistant is liable to be counted, if he is prepared to deposit the amount received by him under the Provident Fund Scheme with interest at the rate of 6%. (18). Thus, as per Appendix IX, the services rendered by the petitioner as Laboratory Assistant is liable to be counted, if he is prepared to deposit the amount received by him under the Provident Fund Scheme with interest at the rate of 6%. (18). With this conclusion, the State Government was directed to include the service rendered by the petitioner as Laboratory Assistant with JNV University, Jodhpur for the purpose of computing the qualifying service and calculation of pension. (19). We are in respectful agreement with the ratio laid down in Udai singh Udawats case. (20). There is yet another aspect of the matter. Proviso to Article 309 is not the only repository of power for framing rules for laying down terms and conditions of service. Proviso to Article 309 is only an enabling provision conferring authority on the President or Governor, as the case may, to frame service rules and lay down terms and conditions of any service under the Union or the State, as the case may be, until Parliament or State Legislature provides for such terms and conditions. This power is to be exercised only subject to Acts of the appropriate legislature. (21). So far as the municipal service is concerned, it is governed by Rajasthan Municipalities Act, 1959 enacted by the State Legislature. The authority has been delegated to the State Government for framing rules. In exercise of such powers, State Government has framed Rules known as `Service Rules, 1963. (22). Section 302 of the Act of 1959 directs the State Government to create and constitute for the whole of the State, a service designated as the Rajasthan Municipal Service and hereinafter referred to as the service. Therefore, the mandate of the legislature is that municipal service is to be created by the State Government. Creation of service is not open to Municipality. Therefore, a serious question do arise whether in terms of the statutory provisions of he Act of 1959, directing the State Government to create municipal service, the municipal service constituted and created by the State Government under the legislative mandate can be denied the status of State service so as to be kept out of the purview of Rajasthan Service Rules laying down general terms and conditions of service for all State service. Application of RSR is not confined to State employees appointed to service constituted and continued under rules framed in exercise of powers under proviso to Article 309 or in the absence of any rules in exercise of executive powers of State, in so far as the same are not in consonance with specific rules. (23). Relevant rules were framed known as `The Rajasthan Municipal Service Rules, 1963. Clause (j) of Rule 2 of the Rules of 1963 defines ``Service, which means Rajasthan Municipal Service created and constituted by the Government under Section 302 of the Act. (24). A question do arise whether a service created and constituted by the State Government under the mandate of the competent Legislature made by State Legislature be excluded from the purview of RSR merely because service rules have not been framed under proviso to Article 309. (25). Since, the matter has not been directly raised and argued before us, we are restrained from giving any final opinion on the aspect but prima facie it does make it plausible view that employees of Municipalities are the State employees and cannot kept out of purview of RSR within the field in which the RSR operates. (26). As a result, the appeal is allowed. The judgment under appeal is set aside. The respondents are directed to include the service rendered by the petitioner under Municipal Board, Nagaur as qualifying service and re-compute his pension and other retiral benefits, provided the petitioner returns all the benefits, if any, received by him from the Municipality, Nagaur for his service rendered thereunder within a period of three months with simple interest @ 6% with effect from the date of receipt of such benefits and the aforesaid direction to include the period of service rendered in the Municipal Board, Nagaur within qualifying service shall only be given effect to on refund. Failure on the part of the petitioner will foreclose the claim of the petitioner for inclusion of the period of service rendered by him as qualifying service so as to modify his retiral benefits. Failure on the part of the petitioner will foreclose the claim of the petitioner for inclusion of the period of service rendered by him as qualifying service so as to modify his retiral benefits. If the amount is refunded within three months as aforesaid, the respondents shall recalculate the pensionary and other retiral benefits of the petitioner within a further period of two months and pay arrears within a month of such determination, falling which interest @ 6% per annum shall be attracted from the date of deposit of amount refunded by the petitioner. No costs. _