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Himachal Pradesh High Court · body

2007 DIGILAW 304 (HP)

STATE OF H. P. v. SARAB DAYAL

2007-07-19

DEEPAK GUPTA, V.K.AHUJA

body2007
JUDGEMENT Per Deepak Gupta, J:- By this judgment, we are dealing with and disposing of common questions of law which have arisen in a large number of cases. The arguments in all these cases were heard together and the judgment rendered in CWP No. 180 of 2001 shall govern the decision in other cases also. A copy of this judgment shall be placed on the record of all of other connected writ petitions. 2. The respondents in most of these cases were initially employed as daily rated workmen in PWD or IPH departments of the State of Himachal Pradesh Services of most of the employees were regularized in terms of the scheme framed by the government and approved by the Apex court in Mool Raj Upadhyaya v. State of H.P. and others 1994 Supp. (2) SCC 316 which reads as follows:- "(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work-charged employees with effect from 1.1.1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the Government. (2) daily wage/ muster-roll workers, whether skilled or unskilled who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in theGovernment. (3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 3.12.1993, shall be paid daily wages at the rates prescribed by the Government of Himachal Pradesh from time to time for daily-wage employee falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2; (4) daily-wage/muster-roll workers shall be regularized in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularization they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular government servants of the corresponding grade." 3. On regularization they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular government servants of the corresponding grade." 3. As per the policy framed by the government the services of all the daily rated workmen who had completed 10 years uninterrupted services were to be placed or the work charge establishment. It would be pertinent to mention that the services of a few of the respondents were placed on work charge establishment even prior to the judgment in Mool Raj Upadhyayas case. The employees after being placed in the work charge establishment were brought on the regular establishments. However, when the employees superannuated from service on attaining the age of superannuation, the benefit of the service rendered by them on daily wages was not given to them. Consequently, the petitioners filed original applications before the learned HP. State Administrative Tribunal. The learned Tribunal on consideration of the CCS Pension Rules, especially decision No.2 under? Rule 14 has come to the conclusion that the workmen are entitled to benefit of counting 1/2 of the service rendered on daily wage basis. In some cases the learned Tribunal has even directed the regularization from a date prior to 1.1.1994 for purposes of pensionary benefits. The State has challenged the orders of the learned tribunal before us and contends that the services rendered by the respondents on daily wage basis cannot be taken into consideration while calculating their qualifying service for grant of pension and pensionary benefits. 4. To appreciate the rival contentions of the parties, it would be pertinent to quote some of the pension rules, referred to by the parties. Rule 2 of the Pension Rules provides that the rules shall apply to all government servants, but shall not apply to: "(a) x x x x x xx x x (b) persons in casual and daily-rated employment; (c) persons paid from contingencies." Relevant portion of Rule 13 reads as follows:- "13. Rule 2 of the Pension Rules provides that the rules shall apply to all government servants, but shall not apply to: "(a) x x x x x xx x x (b) persons in casual and daily-rated employment; (c) persons paid from contingencies." Relevant portion of Rule 13 reads as follows:- "13. Commencement of qualifying service Subject to the provisions of those rules, qualifying service of a Government servant shall commerce from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post." (a) Rule 14 reads thus: "14. Conditions subject to which service qualifies (1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. (2) For the purposes of sub-rule (1), the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pension able establishment unless such service is treated as qualifying service by that Government. (3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuos service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify: Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply." Rule 49 of the Rules reads as follows:- "49. Amount of Pension (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. Amount of Pension (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. (2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum. (b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than [Rupees three hundred and seventy-five] per mensum. (c) notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54. (3) In Calculating the fength of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service. (4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of rupee it shall be rounded off to the next higher rupee. (5) Deleted. (6) Deleted." 5. The Government of India has taken a decision under Rule 14 which has been notified by G.I. M.F., O.M. No. F 12(1)-E/ V/68, dated the 14th May, 1968. The said decision reads as follows:- Counting half of the service paid from contingencies with regular service- Under Article 368 of the CSRs (Rule 14), periods of service paid from contingencies do not count as qualifying service for pension. In some cases, employees paid from contingencies are employed in types of- work requiring service of whose-time workers and are paid monthly rates of pay or daily rates computed and paid on monthly basis and on being found fit brought on to regular establishment. In some cases, employees paid from contingencies are employed in types of- work requiring service of whose-time workers and are paid monthly rates of pay or daily rates computed and paid on monthly basis and on being found fit brought on to regular establishment. The question whether in such cases service paid from contingencies should be allowed to count for pension and if so, to what extent has been considered in the National Council and in pursuance of the recommendation of the Council, it has been decided that half the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to the following conditions, viz:- (a) Service paid from contingencies should have been in a job involving whole-time employment (and not part-time for a portion of the day). (b) Service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned, e.g. malis, Chowkidars, khalsis, etc. (c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being performed by staffs in regular establishments. (d) The service paid from contingencies should have been continuos and followed by absorption in regular employment without a break. (e) Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies will be limited to the period after 1st January, 1961, for which authentic records of service may be available. It has been decided that half of the service paid from contingencies will be allowed to be counted for the purpose of terminal gratuity as admissible under the CCS (TS) Rules, 1965, where the staff paid from contingencies is subsequently appointed on regular basis. The benefit will be subject to the conditions laid down in OM, dated the 14lh May, 1968, above." 6. A perusal of Rule 49 (b) aforesaid makes it absolutely clear that in case a Government servant retires on attaining the age of superannuation after completing 10 years of service, he shall be entitled to pension at the prescribed rates. All the employees in the present case have not completed 10 years of regular service. A perusal of Rule 49 (b) aforesaid makes it absolutely clear that in case a Government servant retires on attaining the age of superannuation after completing 10 years of service, he shall be entitled to pension at the prescribed rates. All the employees in the present case have not completed 10 years of regular service. They claim that the service rendered by them on daily rates basis before they were put in work charge establishment should be reckoned and counted in terms of Rule 13 and in the alternative, they pray that in terms of the decision of the Government, dated 14lh May, 1968, quoted hereinabove, at least 1/2 of the service rendered on daily wage should be added to their regular service for the purpose of reckoning the qualifying service rendered by them and to calculate the pension. 7. The stand of the State is that Rules 2(b) and 2 (c) separately deal with persons in casual and daily rated appointment and persons paid from contingencies. The learned Advocate General submits that the decision of the Government dated 14th May, 1968 only applies to persons paid from contingencies and does not deal with persons in casual and daily rated employment who fall in a separate category. Therefore, according to him, the learned tribunal gravely erred in holding that the benefit of the decision of the Government of India should be given to the employees in the present cases. 8. A large number of decisions have been cited before us by both sides. Reliance has been placed by the employees on the decision of a Division Bench of this Court rendered in Shaknuntla Devi Vs. The State of Himachal Pradesh and others 1988 (2) SLC 18 wherein this Court in para 6 passed the following order- "6. For the foregoing reasons, it appears expedient in the interest of justice to direct the State Government to consider in accordance with law and in conformity with the principles of equity, justice and good conscience and in light of the observations hereinabove made the question of granting the deceased husband of the petitioner the benefit of ex-post-facto regularization of service and to work out and grant all the monetary benefits including the pensionary benefits due and admissible in accordance with law to the petitioner. Compliance to be report on or before February 29, 1938." 9. Compliance to be report on or before February 29, 1938." 9. A perusal of the aforesaid portion of the judgment clearly shows that this court did not itself give any finding with regard to the entitlement to pension but directed the State to consider the same in accordance with law and in accordance with the principles of equity, justice and good conscience. This was a direction given in the context of the peculiar facts of the case and does not lay down any proposition of law. 10. In Kesar Chand Vs. State of Punjab and others 1988 (S) SLR 27 a Full Bench of the Punjab and Haryana High Court held that an employee is entitled to count the service rendered by him on work charge basis for counting the whole of his service for the purpose of calculating the pension and gratuity. The State of Himachal Pradesh is admittedly counting the service rendered on work charge basis of calculating the pension. This decision does not deal with the question of counting service rendered on daily wages for calculating the qualifying service for purposes of pension. 11. In State of U.P. and others Vs. Ajay Kumar (1997) 4 SCC 88 the Supreme Court held that before the High Court can order regularization of an employee there must exist a post and there must be administrative instructions or statutory rules in operation to appoint a person to the post. The Supreme Court held "Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists." (emphasis supplied) 12. In (2001) 4 SCC 309 Union of India and others Vs. Rakesh Kumar the Apex Court was dealing with a case in which members of the BSF who had resigned from their posts after serving for more than 10 years, but less than 20 years, had been held entitled to pension/pensionary benefits by a decision of this court rendered in CWP No. 761 of 1988. The Apex Court while dealing with Rule 49 of the Pension Rules held as follows:- "16.x x x x . The Apex Court while dealing with Rule 49 of the Pension Rules held as follows:- "16.x x x x . This would only mean that in case where a government servant retires on superannuation i.e. the age of compulsorily retirement as per service conditions or in accordance with the CCS (Pension) Rules, after completing 10 years of qualifying service, he should get pension which is to be calculated and quantified as provided under clause (2) of Rule 49. x. x. x x x x x x." 13. The court further went to hold that this would only apply the cases of retirement on superannuation or voluntary retirement after 20 years of qualifying service or compulsory retirement after the prescribed age. It further went to hold that if the employee had resigned from service after completing more than 10 years of qualifying service, but less than 20 years, they would not be eligible to get pensionary benefits. Dealing with the question as to whether the court had the jurisdiction to issue a writ directing payment of pension on the ground of hardship the Apex Court as follows:- "21. X x x x x. Therefore, by erroneous interpretation of the Rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is dehors the statutory rules nor can there be any estoppel. Further, in such case§ there cannot be any consideration on the ground of hardship. If the Rules are not providing for grant of pensionary benefits it is for the authority to decide the frame appropriate rules but the Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a government servant Who is required to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions." 14. A learned Single Judge of the Delhi High Court in Kesri Devi Vs. As a normal rule, pensionary benefits are granted to a government servant Who is required to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions." 14. A learned Single Judge of the Delhi High Court in Kesri Devi Vs. Municipal Corporation of Delhi 2005 (2) SLR 112 held that the qualifying service is to commence from the date an employee takes charge of the post to which she or he is substantively or in officiating capacity or temporary capacity appointed. Therefore, the entire period of ad hoc service rendered by a Safai Karamchari was directed to be taken into account while calculating her service. However, this decision does not take into account Rule 2 of the CCS Pension Rules. 15.A Division Bench of the Punjab and Haryana High Court in Mangat Ram Vs. Haryana Vidyut Prasaran Nigam Ltd. and others 2005 (5) SLR 793 following the Full Bench Decision in Kesar Chands case held that the period spent by the daily wager cannot be excluded from qualifying service as it was followed by the regular service which was continuous. In Ram Dia and others Vs. Uttar Haryana Bijli Vitran Nigam Ltd. (UHBVNL) and another 2005 (8) SLR 765 the service rendered on work charge basis has been directed to be taken into account. In both these cases the provisions of Rule 2 of the CCS CCA Rules have not been taken into account. 16.A Constitution Bench of the Supreme Court in Secretary, State of Kamantaka and others Vs. lima Devi (3) and others (2006) 4 SCC 1 held as follows:- "49. It is contended that the State action in no regularizing the employees was not fair within the framework of the rule of law. The rule of law complete the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore, not possible to accept the argument that there must be a direction to make permanent all the person employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution." 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for the employment and an equal opportunity for competing for the employment and it is in that context that the Constitution as one of its basic features, has included Article 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vat majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own violation and with eyes open as to nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. 51.XXXXXXXXXXXXXXXXXXXXXXXXXXXX 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahandur (Dr.) Vs. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may be issue to compel the authorities to do something, it must be shown that the statue imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. 17.The Supreme Court in Principal, Mehar Chand Polytechnic and another Vs. Anu bamba and others (2006) 7 SCC 161 while dealing with the questions whether the courts had any jurisdiction to direct regularization of the employees who had been continuing for long held as follows;.- "35. The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The Project undertaken by the Union of India although continued for some time was initially intended to be a time-bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturists. In the absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ or in the nature of mandamus." 18. From a perusal of the aforesaid judgments, it is apparent that the law has undergone sea-change in the last two decades. The Apex Court has clearly laid down that the court cannot order the permanent absorption of daily rated employees unless a sanctioned post is in existence. Even if a sanctioned post exist, it must be shown that the petitioner has been initially appointed in accordance with law and back door entrants cannot be given benefit of regularization. In the present cases are mainly concerned with the employees who have already been regularized in terms of a policy placed before and approved by the Apex Court in Mool Raj Upadhyayas case supra. The regularization has to be in terms of the said policy, i.e. after completion of 10 years of continuous service on daily rated basis. This policy continues to exist and holds the field till date, though the period of 10 years was reduced to 9 years and then to 8 years. 19. In a number of cases where the workmen had been employed much prior to the year 1994, the learned tribunal on the basis of Shakuntla Devis judgment has directed that they be regularized after completing 10 years for the purpose of grant of pensionary benefits. We are of the considered view that these directions could not have been given. The regularization/placing of the workmen on work charge basis was ordered by the Apex Court only from 1.1.1994. The learned tribunal could not have been passed orders directing the services to be regularized from a date prior to 1.1.1994 even for the purposes of pension. We are of the considered view that these directions could not have been given. The regularization/placing of the workmen on work charge basis was ordered by the Apex Court only from 1.1.1994. The learned tribunal could not have been passed orders directing the services to be regularized from a date prior to 1.1.1994 even for the purposes of pension. We, therefore, hold that earliest regularization could only be w.e.f. 1.1,1994 and that too only on completing of 10 years continuous service with a minimum 240 days service in each calendar year. 20.The Apex Court in Union of India and others Vs. Rakesh Kumar, supra has also clearly held that the pensionary benefit cannot be granted dehors the statutory rules. It has been laid down in unambiguous terms that the courts cannot direct payment of pension on the ground of so called hardship. A perusal of Rule 2 (b) and 2 (c) of the pension Rules clearly shows that the rules do not apply to persons in casual and daily rates employment and persons paid from contingencies. No doubt, Rule 13 provides that the qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantially or in officiating or temporary capacity. The contention of the petitioners is that the phrase "officiating or temporary capacity" shall include the appointment on daily wages also. We are afraid that we cannot accept this contention. Temporary service cannot be equated with service rendered on daily wages. We are aware that judgments of the Punjab and Haryana High Court and the Delhi High Court are to the contrary. However, as pointed out above, these courts have not taken into consideration the specific exclusion under rule 2 (b) and 2 (c) of the Pension Rules. In Kesar Chands case, a Full Bench of the Punjab and Haryana High Court was only dealing with the service rendered on work charge basis. This service is being counted for purposes of pension by the State of Himachal Pradesh. However, the later judgments of the Punjab and Haryana High Court have applied the judgment in Kesar Chands case in cases of daily wagers, also but without taking note of the specific exclusion under Rule 2 (b) and 2 (c) of the Pension Rules. This service is being counted for purposes of pension by the State of Himachal Pradesh. However, the later judgments of the Punjab and Haryana High Court have applied the judgment in Kesar Chands case in cases of daily wagers, also but without taking note of the specific exclusion under Rule 2 (b) and 2 (c) of the Pension Rules. We are of the view that rule 13 only contemplates the counting of service which has been rendered after appointment on substantial, officiating or temporary capacity. This pre-supposes that appointment is in terms of the rules like the Temporary Civil Service Rules. Daily wagers have been specifically excluded and on a reading of the Rules, it cannot be said that the words "officiating and temporary capacity" cover the employees engaged on casual daily rated basis. 21. The next contention on behalf of the employees is that in terms of decision No.2 taken by the Government of India and quoted hereinabove, half of the service rendered on daily wages should be counted. Admittedly all the employees were employed in jobs involving full and whole time employment. It is also a fact that though they were paid on daily wages, they were found a type of work or were working against such posts which could have been sanctioned, but for reasons best known to the State the posts were not actually sectioned. The decision also envisages that the service should be one for which payment is made on monthly or daily rates computed and paid on monthly basis. In all the cases before us, the employees though engaged on daily rated bats were paid on monthly basis. The employee who were paid on daily wage basis continued in service for long periods of 10 years or more where after they were brought on work charge establishment and their services were regularized. 22. The stand of the State is that the employee were not persons paid form contingencies. According to the not persons paid from contingencies. According to the State, the employees were paid out of the sanctioned plan expenditure of the works where they were employed. It is submitted that the employees have not been paid out of the contingency fund. This contention is without any force. The word "contingencies" as used in the Rules does not relate to the contingent fund of the State. According to the State, the employees were paid out of the sanctioned plan expenditure of the works where they were employed. It is submitted that the employees have not been paid out of the contingency fund. This contention is without any force. The word "contingencies" as used in the Rules does not relate to the contingent fund of the State. In our considered view the words contingencies in the present case must be given its natural grammatical meaning. The Concise Oxford Dictionary defines contingencies as a future event or circumstance which is possible but cannot be predicted with certainty. It also defines contingencies to mean a provision made for meeting for such event or circumstance. Blacks Law Dictionary defines contingencies as something that may or may not happen; an event which may occur; possibility etc. it is clear that contingencies in respect of Pension Rules only means that the works are not paid from out of the regular salary account of the State, but are paid from other funds which are created to meet such possible contingencies. Therefore, the benefit of decision No.2l under Rule 14 is available both to persons who were in casual and daily rated employment as well as persons paid from contingencies as long as the conditions mentioned in decision No.2 are met. 23. It would also be pertinent to add that we see no reasons for differentiating between daily rated workmen who have been allowed to continue for 10 years or more and employees paid from contingencies. There is no rational nexus in this classification. The classification, if accepted, would be totally arbitrary, invidious and violative of Article 14 of the Constitution of India. In our considered opinion the daily rated workmen who are permitted to continue for 10 long years followed by regularization cannot be denied the benefit of pension on this count. 24.While taking the aforesaid view, we also derive support from the decision of the Apex Court in State of U.P. and others Vs. Ajay Kumar (1997) 4 SCC 88 (supra) wherein the Apex Court clearly held that daily wage appointment is obviously in relation to contingent establishment. This also indicates that daily wage employment is in the nature of a contingency. 25. Ajay Kumar (1997) 4 SCC 88 (supra) wherein the Apex Court clearly held that daily wage appointment is obviously in relation to contingent establishment. This also indicates that daily wage employment is in the nature of a contingency. 25. We are, therefore, of the considered view that 50% of the continuos service rendered by the employees on daily rated basis followed by work charge/regular employment should be taken into account while calculating the qualifying service for purposes of entitlement to and the amount of pension to be paid to them. 26.0ne of the questions which has arisen in a number of cases is with regard to interpretation to be given to Rule 49(3). According to the employees if a person has worked for a 2 completed quarters in a year then he should be given the benefit of 6 months for each quarter for reckoning his qualifying service. We are not in agreement with this contention. If this argument is accepted, then even a person who has rendered only 5 years service i.e. 20 quarters can claim that each quarter of service rendered be equated to 6 months of service and he be held entitled to pension. It is apparent that the intention is that if a person has worked for a period of 3 months or more in the last tenure of his service, he should be given benefit of having served for 6 months. To give an example, if a person has worked for 9 years, 9 months and 2 days, then the last quarter of 3 months and 2 days worked by him should be treated as a complete one half year and his service will come to 10 years. This benefit, however, cannot be given to people who have less than 9 years and 9 months of service. 27. In this case even as per the man days chart, the employee has completed more than 240 days in each calendar year w.e.f. 1.1.1975. He was regularized as work charged Beldar on 28.2.1980 and retired on 31.5.1987. He has thus rendered 5 years, 2 months service on daily wage, half of which works out to 2 years 7 months. His regular service is 7 years, 3 months and 14 days. Adding half of his daily waged service i.e. 2 years 7 months, his total services comes to 9 years and 10 months. He has thus rendered 5 years, 2 months service on daily wage, half of which works out to 2 years 7 months. His regular service is 7 years, 3 months and 14 days. Adding half of his daily waged service i.e. 2 years 7 months, his total services comes to 9 years and 10 months. Even if the stand of the petitioner is accepted that he only joined on 18.3.1980, his total service still works out to 9 years, 9 months and 14 days. As per Rule 49(3) the complete quarter has to be counted as 6 months and, therefore, the petitioner has 10 years service. The respondents are directed to treat this as his qualifying service, calculate the pension and pay the same to the employee accordingly. The arrears of pension and pension be released to the employee latest by 31st December, 2007. The petitioner-State shall also pay interest at the rate of 7 %% per annum from the date of pension fell due till date of deposit/payment of the same. The writ petition is disposed of in the aforesaid terms with no order as to costs.