Judgment :- 1. The petitioner has approached this Court with a prayer for issuance of a writ in the nature of Certiorari, to quash the impugned part of the order G.O.Ms.No.42 Transport (RW) Department dated 27.05.2005, ordering exclusion of the period of daily wage service for the purpose of pension. 2. The impugned part of order reads as under: "5. The Government after re-examination of the whole issue have decided to implement the orders of the Supreme Court of India, referred in the judgement seventh read above and accordingly issue the following orders:- The Government fix the cut off date as 1.4.1982 in respect of the erstwhile Tamil Nadu Transport Department employees who had put in less than 10 years of government service as on their permanent absorption in State Transport Undertakings, only for the limited purpose of assessing the requisite length of qualifying service of 10 years to earn pension. The eligible erstwhile Tamil Nadu State Transport Department employees whoever have retired shall get the arrears of pension only from 01.01.1988 which date is fixed with reference to the year of filing the first writ petition. The fixation of pension and payment of arrears shall be done accordingly as ordered by the Hon'ble Supreme Court of India as per the rules and Government Orders applicable to them in the following manner: a) The erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporations and retired before 1.1.1988 or after 1.1.1988 but before 1.9.1998 be paid pension if they had put in the qualifying service of 10 years as on 1.4.1982. Period of Daily paid services, leave on loss of pay and suspension treated as specific punishment should be excluded while arriving the net qualifying service." 3. The petitioner was selected by due process for appointment as Painter with the Tamil Nadu State Transport Department on 08.06.1963. Though the petitioner was selected through due process of law, but was appointed on daily wage basis. The service of the petitioner was regularized on 01.05.1968. 4. On formation of new Transport Corporation, i.e. Pallavan Transport Corporation on 01.01.1972, the petitioner along with other employees of the Transport department was sent on deputation with the newly formed Corporation. 5. The service of persons sent on deputation from transport department were finally taken over by the Corporation with effect from 01.05.1975 after taking option from the employees. 4. On formation of new Transport Corporation, i.e. Pallavan Transport Corporation on 01.01.1972, the petitioner along with other employees of the Transport department was sent on deputation with the newly formed Corporation. 5. The service of persons sent on deputation from transport department were finally taken over by the Corporation with effect from 01.05.1975 after taking option from the employees. The services of petitioner from 08.06.1963 till 30.04.1975 was taken to be the service rendered with the transport department. This absorption of the employees was in pursuance to the statutory agreement under Section 18(i) of the Industrial Dispute Act, 1947. The Government granted terminal benefit to erstwhile Government employees, who were permanently absorbed in the State Transport undertaking. 6. As per the rule 43(2) of the Tamil Nadu Pension Rules, the employee for being eligible for pension should render at least 10 years service, therefore, the employees in the transport department, who had put in 10 years of service as on 01.05.1975 were granted pension. 7. The persons, who had not put in less than 10 years of service as on 01.05.1975, filed writ petition in the High Court of Madras for sanction of pension, by reckoning the service rendered by them in transport Corporation beyond 01.05.1975 for the purpose of arriving at qualifying service of 10 years to earn pension. 8. The validity of cut off date came up for consideration before this Court and the matter was finally taken to the Hon'ble Supreme Court. In exercise of powers under Article 142 of the Constitution of India, the Hon'ble Supreme Court vide its judgment dated 29.10.2003, fixed the cut off date as 01.04.1982 for the purpose of assessing requisite length of service. 9. It was also directed, that all employees will be entitled to arrears of pension only from 01.01.1988, i.e. the date when the first writ petition was filed. It was also ordered, that the State Government could adjust the monetary benefits given to the employees. 10. It is in pursuance to the orders passed by the Hon'ble Supreme Court, G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005, was issued. It was also ordered, that the State Government could adjust the monetary benefits given to the employees. 10. It is in pursuance to the orders passed by the Hon'ble Supreme Court, G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005, was issued. In view of G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005, the service rendered by petitioner with effect from 08.06.1963 to 01.04.1982 and the service of 4 years, 4 months and 21 days spent on leave on loss of pay was deducted from the pensionable service to hold that the petitioner was not eligible for pension, having not completed 10 years of service. 11. The condition 5(a) of the G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005 is challenged, on the ground of it being arbitrary, thus violative of Article 14 of the Constitution of India. 12. Learned counsel for the petitioner vehemently contends, that the services rendered on daily wage basis, which is followed by the regular service, has to be counted for pension. It was thus not open to the respondents to take away the right under the pension rules by way of G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005. 13. Learned counsel for the petitioner has challenged the validity of rules framed under G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005 on the ground of it being arbitrary, thus violative of Article 14 of the Constitution of India. It is the contention of learned counsel for the petitioner, that the State Government in exercise of powers under Article 309 of the Constitution could not deny the benefit of service rendered on daily wage basis, specially when the pension rules do not stipulate any such condition. 14. The impugned rules are also challenged, that it is not open to the State Government to issue two sets of rules, one regulating pension of Government employees and one for the employees who have become entitled to pension in pursuance to the cut off date fixed by the Hon'ble Supreme Court and stood observed in the service of the Government Corporations. 15. On consideration, I find force in this contention of the learned counsel for the petitioner. 15. On consideration, I find force in this contention of the learned counsel for the petitioner. The Hon'ble Full Bench of Punjab and Haryana in Kesar Chand vs. State of Punjab and others, 1988 (2) PLR 223, has held, that sub-rule (ii) of Rule 3.17 of the Punjab Civil Services Rules, Volume II, which provided that period of service of work-charged establishment will not be counted while determining qualifying service, was violative of Article 14 of the Constitution, thus, was struck down. 16. Again, the Hon'ble Division Bench of Punjab and Haryana in HariChand vs. Bhakra Beas Management Board and others, 2005 (2) SCT 95, has been pleased to lay down as under: "3. Upon notice, written statement has been filed by the respondents, wherein it has been stated that since petitioner has accepted gratuity amount, he is not entitled to press his claim towards pension. It has further been stated, that since qualifying service, rendered as a regular employee, was less than 10 years, petitioner was not entitled to grant of pension. It has further been mentioned that in view of provisions of Section 3.17 (A) of Punjab Civil Services Rules, Part I Volume II (in short the Rules), service rendered as a daily wager could not have been counted towards qualifying service. Averments, regarding length of service as daily wager and thereafter as regular employee, were virtually admitted in the written statement. 4. Counsel for the petitioner has vehemently contended that his claim towards pension had wrongly been declined. As per law laid down by this Court in Mohan Singh vs. State of Haryana, 1991 (3) Services Cases Today 147, it was incumbent upon the authorities to count service rendered by the petitioner, as a daily wager, towards qualifying service. To support his contention, he has further placed reliance upon a judgment of this Court in Joginder Singh v. State of Haryana and others, 1998 (1) RCR (Civil) 94 (P&H): 1998 (2) I.L.R. Punjab and Haryana 73. Counsel prayed that in view of ratio of judgments, referred to above, writ petition be allowed and authorities be directed to sanction pension in favour of the petitioner. Counsel further undertakes that in case pension is granted to the petitioner, he shall return amount of service gratuity and D.C.R.G. to the authorities within a reasonable time along with interest, as may be directed by this Court. 5. Counsel further undertakes that in case pension is granted to the petitioner, he shall return amount of service gratuity and D.C.R.G. to the authorities within a reasonable time along with interest, as may be directed by this Court. 5. Prayer made by counsel for the petitioner has vehemently been opposed by counsel appearing for the respondents. Counsel, by placing reliance upon provisions of Rule 13.17(A) of Rules, has argued that it is not possible to count service, rendered as a daily wager, towards qualifying service. He prayed that since petitioner had accepted gratuity amount, he is estopped to claim pension. 6. After hearing counsel for the parties, this Court is of the opinion that the writ petition deserves to be allowed. In view of pleadings on record, factual position is not in dispute. Petitioner had served respondents as a daily wager and thereafter as a regular employee for the period of more than 12 years. Qualifying period to get pension is only 10 years. If service rendered by the petitioner as daily wager is counted towards qualifying service, he will become eligible to get pension. A similar question came up for consideration before this Court in Mohan Singh's case (supra). After analysing facts of that case and by placing reliance on a Full Bench judgment of this Court in Kesar Chand v. State of Punjab, 1998 (2) P.L.R. 223, it was opined that the period of work-charge service is required to be counted towards qualifying service. In the above-mentioned case, it was observed as under: "Even otherwise Full Bench of this Court in Kesar Chand v. State of Punjab, 1988 (2) P.L.R.223, had held that under Rule 3.17 of the Punjab Civil Services Rules, Volume II, period of service of a work-charged employee before their regularisation has to be computed towards qualifying service. In the above-mentioned case, it was observed as under: "Even otherwise Full Bench of this Court in Kesar Chand v. State of Punjab, 1988 (2) P.L.R.223, had held that under Rule 3.17 of the Punjab Civil Services Rules, Volume II, period of service of a work-charged employee before their regularisation has to be computed towards qualifying service. In Kesar Chand's case (supra) sub-rule (ii) of Rule 3.17 of the Punjab Civil Services Rules, Volume II, which provided that the period of service of work-charged establishment will not be counted while determining qualifying service, was struck down being violative of Article 14 of the Constitution." Similarly, in Joginder Singh's case (supra), a Single Bench of this Court, while dealing with similar situation, has interpreted Rule 13.17(A)(f) & (g) of Rules and has opined as under: "It will be evident from the aforesaid rule that it provides for the method by which the qualifying service is to be determined. Sub-clause (i) of clause (f) of Rule 3.7-A of the said Rules provides that even persons paid from contingencies are entitled to count half of their service as qualifying service provided the four conditions laid down in subclause (i) are fulfilled. It is the admitted position that the petitioner had worked for about 23 years in the respondent department but for two breaks that were not due to any default on his part. It will also be seen that the stipulation in sub-clause (i) that half the period of service is to be counted towards qualifying service is to be read alongwith the subsequent four conditions in the same rule. These conditions read together clearly show that a person claiming qualifying service should have been working as a whole-time employee against a job for which a regular post should have been sanctioned with the payment of salary being made on a monthly or daily basis and that the service paid from contingency should have been continuous and without any break. To my mind, the facts of the case clearly spell out that the petitioner fulfilled these four conditions. I am also of the opinion that the stipulation in sub-clause (i) of Clause (f) of Rule 3.17-A that only half the period of service is arbitrary and no logic or reason can be spelt out in it. To my mind, the facts of the case clearly spell out that the petitioner fulfilled these four conditions. I am also of the opinion that the stipulation in sub-clause (i) of Clause (f) of Rule 3.17-A that only half the period of service is arbitrary and no logic or reason can be spelt out in it. In Kesar Chand V. State of Punjab and others (supra), this Court while considering Rule 3.17 of the Punjab Civil Service Rules Vol. II which provided that if work-charged service was followed by regular employment, the period of work-charge service could not be taken into account for the purpose of determining the qualifying service was quashed being arbitrary and unjust." 17. The impugned rule also suffers from vice of arbitrary exercise of power, as it was not open to the State Government to deny daily paid service for counting the qualifying service for pension. 18. The impugned part of notification, therefore, being violative of Article 14 of the Constitution of India, deserves to be struck down. It is therefore held, that the petitioner shall be entitled to benefit of daily paid service, for counting the service of 10 years for the purpose of pension. 19. However, there isno illegality in denying the service of 4 years, 4 months and 21 days on account of leave with loss of pay, as this service could not be counted for pension. 20. The learned Additional Government Pleader on the other hand vehemently contended, that the claim of petitioner for pension was rightly denied, as the State Government in exercise of power under Article 309 of the Constitution of India have framed rules, which stipulate that daily wage service was not to be counted. The petitioner cannot claim benefit of pension in violation of the rules. 21. This contention deserves to be noticed to be rejected, as the rule on which reliance is placed is ultravires the constitution, being hit by Article 14 of the Constitution, and deserves to be struck down. 22. For the reasons stated above, this writ petition is allowed. The petitioner cannot claim benefit of pension in violation of the rules. 21. This contention deserves to be noticed to be rejected, as the rule on which reliance is placed is ultravires the constitution, being hit by Article 14 of the Constitution, and deserves to be struck down. 22. For the reasons stated above, this writ petition is allowed. The impugned part of G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005, denying the benefit of daily wage service for the purpose of pension is declared ultravires the Article 14 of the Constitution of India, and writ in the nature of Mandamus is issued, directing the respondents to grant pension to the petitioner, by giving him the benefit of service rendered from 08.06.1963 to 01.04.1982 minus the service of 4 years 4 months and 21 days spent on leave on loss of pay. 23. The needful be done within four months of the receipt of certified copy of this order. 24. No costs. Connected miscellaneous petition is closed.