JUDGMENT M. Karpaga Vinayagam, C.J. 1. The petitioner was appointed as Electrical Instructor in ITI, Marhaura (Chhapra) Bihar on 11.9.1975 on the basis of daily wage. He was regularly appointed on 14.8.1981. He got superannuated on 30.4.2002. Thereafter he has been paid his retiral benefits only for the period 14.8.1981 to 30.4.2002 and not for the earlier period during which he worked as an Instructor on Daily Wage Basis. 2. Since the earlier services rendered by him from September 1975 to 14.8.1981, the date of his regularisation, had not been counted for his retiral benefits, the petitioner filed this writ petition seeking for a direction to the respondents to count his services rendered as Electrical Instructor from 11th September, 1975 to 14th August, 1981 also for his pensionary benefits and his retirement benefits. This writ petition was earlier heard by Justice Permod Kohli, the learned Single Judge. The counsel for the petitioner, on the basis of the judgment rendered by Justice Tapen Sen, the other learned Single Judge of this Court in the case of Laljit Bhuiya v. Bharat Coking Coal Limited and Ors., submitted that the said point has been answered in favour of the petitioner in the said decision and as such the same benefit must be given to the petitioner by giving suitable direction to the authorities, the respondents, for counting the said period also for retiral benefits and pensionary benefits. 3. Learned Single Judge, Justice Permod Kohli, while considering the said judgment, found that the ratio decided by Justice Tapen Sen, the other learned Single Judge of this Court to the effect that the earlier services as a temporary worker also has to be counted for retiral benefits or pensionary benefits, taking support from Supreme Court decision in has not been correctly decided. The learned Single Judge, Justice Permod Kohli, further is of the view that the decision rendered by the Supreme Court in cited to get support has no application so far as the direct recruitment is concerned, as it relates to the inter se seniority between the direct recruits and the promotees and the observations made by the Supreme Court are only in respect of promotees who are appointed to higher post without following the procedure prescribed, and as such these observations have nothing to do with the direct appointments. 4. 4. On the other hand, learned single Judge, Justice Permod Kohli, is of the view that the point in issue is clearly covered under the Supreme Court judgment in K. Madalaimuthu and Anr. v. State of T.N. and Ors. , and as such the correct ratio, as decided by the Supreme Court, is that the past services rendered as temporary basis, cannot be counted for the pensionary benefits or retiral benefits, and the same can be counted only from the date of appointment after regularisation. 5. On the basis of this opinion the learned Single Judge, Justice Permod Kohli, thought it fit to refer the matter to the Division Bench. That is how the matter has come before us. 6. The counsel for the petitioner would reiterate his earlier arguments before this Court, taking support of the view expressed by the learned Single Judge in Laljit Bhuiya v. Bharat Coking Coal Limited and Ors. rendered on the basis of the Supreme Court Judgment in . We have heard the counsel for the petitioner and the respondents. As indicated above, this petition has been referred to Division Bench, since according to the learned Single Judge, Justice Permod Kohli has no application in the present facts of the case, because it deals with the inter se seniority of promotees and direct recruits and does not deal with the present issue and therefore, the view of justice Tapen Sen is not correct and the point in issue has been dealt with by the Supreme Court in another judgment in K. Madalaimuthu and Anr. v. State of T.N. and Ors. . 7. Before going into the question of applicability of the Supreme Court decision to the present facts of the case, as opined by the learned Singe Judge, who referred the matter before the Division Bench, it would be worthwhile to refer to the relevant rules of the Bihar Pension Rules to deal with the question. The question raised in this matter is as follows: Whether the period between 11.9.1975 and 14.8.1981, during which the petitioner worked as Daily Wage Earner, to be counted along with the period between the date of regularisation, namely, 14.8.1981, and the date of superannuation, namely, 30.4.2002? Let us go into the rules now. The relevant rules are Rules 40, 45b, 56 and 58 of the Bihar Pension Rules. Rule 40 reads as under: 40. Let us go into the rules now. The relevant rules are Rules 40, 45b, 56 and 58 of the Bihar Pension Rules. Rule 40 reads as under: 40. Temporary post means a post carrying a definite rate of pay and sanctioned for a limited time. Thus, under Rule 40, the temporary post means a post carrying a definite rate of pay and sanctioned for a limited time. 8. Rule 45b reads as under: 45. In the following cases no claim to pension is admitted- (a) ... (b) When a person is employed temporarily on monthly wages without specified limit of time or duty. Thus, under Rule 45b, when a Government Servant is appointed for a limited time, only for a specified duty and when he is employed temporarily for specified limit of time or duty, there cannot be any claim to pension. Rule 56 reads as under: 56. Unless it be otherwise provided by special rule or contract, the service of every Government servant qualifies from the date on which he takes charge of the post to which he is first appointed. It is clear from the reading of Rule 56 that unless there is special rule, the service of Government Servant qualifies only from the date on which he takes charge of the post to which he is appointed in the substantive capacity and only from that date the Government Servant is entitled to the pension. In other words, a Government Servant is not entitled to pension till he takes charge of the post to which he is first appointed. 9. Rule 58 reads as under: 58. The service of a Government Servant does not qualify for pension unless it conforms to the following three conditions: First--The service must be under Government. Second--The employment must be substantive and permanent. Third--The service must be paid by Government. Thus, under Rule 58, unless the Government servant conforms the three conditions as indicated above, he cannot claim pension in respect of past service rendered as a temporary service. 10. The conjoint reading of Rules 40, 45b, 56 and 58 would clearly indicate that past services rendered by the petitioner temporarily before the appointed in the substantive post permanently cannot be considered towards his pensionary benefits or retirement benefits. 10. The conjoint reading of Rules 40, 45b, 56 and 58 would clearly indicate that past services rendered by the petitioner temporarily before the appointed in the substantive post permanently cannot be considered towards his pensionary benefits or retirement benefits. In the present case, admittedly, the earlier period was a temporary period and the petitioner was working as a Daily Wage Earner and as such his employment cannot be said to be substantive and permanent. Admittedly, his appointment in the substantive post was made only on 14.8.1981 and not earlier, and as such, only the period from the date on which he was appointed in the substantive post has to be counted for pensionary benefits. 11. That apart, there are other reasons to reject his claim. As indicated above, the petitioner, in the present case, was appointed on Daily Wage basis in September 1975. While he was working as Daily Wage Earner, the process of selection was initiated for appointment to the post of Electrical Instructor. He attended the interview and since he passed all the tests, he was selected for the post and he was consequently appointed in 1981. Therefore, in this post he was appointed on the basis of process of selection and not on the basis that he was working from 1975 to 1981. 12. Thus, it is clear that the appointment made in 1981 is completely independent to his earlier engagement as Daily Wage Earner and totally unrelated to his previous engagement. That apart, when he was selected for the post, which is substantive post, on 14.8.1981 without any reservation or objection, the petitioner accepted and enjoyed the usufructs of regular appointment from 14.8.1981 till his superannuation on 30.4.2002. During this period, he never asked for extention of his regular appointment to the period of temporary engagement as Daily Wage Earner. He never claimed any other relief for the said period of his previous engagement. It is only after retirement, he has filed the present writ petition seeking for the inclusion of the period spent on Daily Wage basis towards his regular services for the purpose of his post retirement benefits. 13. Now, let us deal with the decision of the learned Single Judge, Justice Tapen Sen, giving a contrary view in [Laljit Bhuiya v. Bharat Coking Coal Limited and Ors.]. 13. Now, let us deal with the decision of the learned Single Judge, Justice Tapen Sen, giving a contrary view in [Laljit Bhuiya v. Bharat Coking Coal Limited and Ors.]. In the said judgment, learned Single Judge took the support of Supreme Court decision in [The Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors.] to come to the conclusion that past service has to be counted for considering pensionary benefits. On the other hand, Justice Permod Kohli, learned Single Judge, who referred this matter to the Division Bench, has taken support from Supreme Court decision in [K. Madalaimuthu and Anr. v. State of T.N. and Ors.] to come to the conclusion that the correct ratio is that the past services, rendered on temporary basis, cannot be counted for pensionary benefits or retirement benefits, and the same can be counted only from the date of appointment on the substantive post. 14. We have gone through all the three judgments referred to above. We are of the view that the view expressed by the learned Single Judge [Laljit Bhuiya v. Bharat Coking Coal Limited and Ors.] may not be said to be a correct view as it is not in tune with the ratio of the decision of the Apex Court in [The Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors.]. The said judgment relates to the inter se seniority between the direct recruits and the promotees and it has no application to the facts of that case or the present case. 15. The observations of the Supreme Court, which have been referred by the learned Single Judge in 2003 (2) JLJR 112 have been made by the Supreme Court only in the context of dispute between direct recruits and the promotees. The observations are in respect to the promotees who are appointed to the higher post without following the procedure prescribed in the rules. These observations have nothing to do with the appointment against direct recruitment quota. Therefore, in the said decision, there is no ratio decided in respect to the question raised in this case. 16. On the other hand, the others decision of the Supreme Court, which has been cited by the learned Single Judge, who referred the matter to the Division Bench, Le., [K. Madalaimuthu and Anr. Therefore, in the said decision, there is no ratio decided in respect to the question raised in this case. 16. On the other hand, the others decision of the Supreme Court, which has been cited by the learned Single Judge, who referred the matter to the Division Bench, Le., [K. Madalaimuthu and Anr. v. State of T.N. and Ors.] has decided the issue. Paragraph 24 is the relevant paragraph, which reads as under: 24. The law is well settled that initial appointment to a post without recourse to the rules of recruitment is not an appointment to a service as contemplated under Rule 2(1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service.... It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. It, therefore, follows that it is only from the date on which his services are regularised that such appointee can count his seniority in the cadre. 17. The above paragraph gives out a clear ratio that a person, who is appointed temporarily to discharge a function in a particular post without recourse to the Recruitment Rules, cannot be said to be in service till such time as his appointment is regularised. Therefore, it follows that it is only from the date on which his services are regularised, or he is appointed in substantive post, his service can be counted. 18. These observations clearly apply to the present facts of the case. Therefore, in view of the decision of the Supreme Court in [K. Madalaimuthu and Anr. v. State of T.N. and Ors.] and in the light of the relevant rules of the Bihar Pension Rules, referred to above, namely, Rules 40, 45(b), 56 and 58, the petitioner, who was appointed as an Instructor, temporarily as a Daily Wage Earner in 1975 and worked up to 1981 to discharge the function as Instructor without recourse to the Recruitment Rules, cannot claim pensionary benefits as he was appointed on substantive post only in 1981. 19. Therefore, he is entitled to claim pensionary benefits only from that date onwards till the date of superannuation. 19. Therefore, he is entitled to claim pensionary benefits only from that date onwards till the date of superannuation. To make it clear, the petitioner cannot claim the pensionary benefits for the period during which he worked as a temporary worker as no right vests in him being a Daily Wage Earner as there is no rule providing for counting that period for pensionary benefits, and as such, he cannot claim benefit of any service rendered by him as Daily Wage Earner after his permanent appointment to the post. Reference is answered accordingly. Therefore, this writ petition is dismissed. There shall be no order as to cost D.G.R. Patnaik, J. 20. I agree.