Judgment 1] In Complaint (ULP) No.103 of 2004 filed by the petitioners invoking jurisdiction of the Industrial Court under Section 28 read with Item 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short “MRTU & PULP Act”), a declaration was claimed that the respondents are engaged in an unfair labour practices under Items 5 and 9, along with the relief of grant of pension upon completion of their qualifying service on the establishment of the respondents. The complaint has been dismissed by the Industrial Court by its judgment and order dated 24.09.2008. Hence, the present petition is filed by the original complainants. 2] The Industrial Court has recorded the finding that the complainants have failed to establish that they have completed ten years of qualifying service so as to become entitled to get the pension. The finding is that the complainants were appointed to hold the post of Van Mazdoor w.e.f. 01.11.1994 as per the Government Resolution dated 31.01.1996 and before completion of period of ten years from that date they have attained the age of superannuation. The complainant No.1 retired from service on 31.05.2004, the complainant No.2 retired from service on 31.05.2004 and the complainant No.3 retired on 31.03.2004. The Industrial Court has held that the complainants have failed to make out a case for counting of half of the previous continuous service rendered on daily wages from 21.03.1977, 01.07.1986 and 01.04.1979. According to the Industrial Court, in order to count such service the complainants were required to establish in terms of Note No.1 under Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982 (“Pension Rules” for short) that they were being paid as daily wagers from the contingency fund, and there is no evidence brought on record to show that they were so paid, but the respondents have brought on record the evidence to show that the complainants were paid under the head “02 Wages”. 3] Shri Saboo, the learned counsel appearing for the petitioners/complainants has relied upon the Division Bench judgment of this Court in Parshuram Vithoba Bhandare v. State of Maharashtra and anr. reported in 2002 I CLR 228, for the proposition that even the service rendered as a daily wager prior to the date of bringing the employee on regular establishment can be counted towards qualifying service for pension. reported in 2002 I CLR 228, for the proposition that even the service rendered as a daily wager prior to the date of bringing the employee on regular establishment can be counted towards qualifying service for pension. He submits that the said decision holds that in the absence of the pleadings and proof on the part of the employer that the employee was paid as daily wager prior to 01.11.1994 from the contingency fund of the State, the service rendered by the employee on daily wage basis prior to his regularization in service w.e.f. 13.09.1983 was counted for completion of qualifying service of ten years to get the pension. 4] Shri Gode, the learned counsel appearing for the respondent Nos.1, 2 and 4 has relied upon the decision of this Court in the case of the Conservator of Forest, Nagpur and another vs. Yashwant s/o Dayaram Gaikwad and others delivered in Writ Petition No.664 of 2007 on 10.11.2014. He has urged that this Court has already considered the terms of Government Resolution dated 31.01.1996 under which the complainants in the present case were regularized w.e.f. 01.11.1994 as Van Mazdoor, and it has been held that the complainants have to make out a case that they are entitled to pension in terms of Note 1 below Rule 57 of the Pension Rules, and such case was not made out. This Court has set aside the decision of the Industrial Court that the complainants were entitled to pensionary benefits. 5] Undisputedly, the qualifying service prescribed under the rules is of ten years to get the pension. Rule 30 of the Pension Rules deals with the commencement of qualifying service. The relevant extract along with first proviso is reproduced below: 30. Commencement of qualifying service. : Subject to the provisions of these rules, qualifying service of a Government servant shall commence 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 at the time of retirement he shall hold substantively a permanent post in Government service or holds a suspended lien or certificate of permanency : In terms of above, the qualifying service commences from the date, the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. In terms of proviso, at the time of retirement the employee should continue to hold substantively a permanent post in Government service. 6] It is for the first time by Government Resolution dated 31.01.1996, the sanction is accorded for creation of 8038 posts of Van Mazdoor all over the State, and the persons working as daily wagers continuously for a minimum period of 240 days during the last five years prior to the date of issuance of the Government Resolution dated 01.11.1994, are regularized in service. It is from that date the complainants took charge of the posts of Van Mazdoor created for the first time. Though the complainants were working as daily wager Van Mazdoor prior to 01.11.1994, they were not holding any posts. Hence, commencement of their qualifying service in terms of Rule 30 reproduced above, shall be w.e.f. 01.11.1994 that is the date on which the complainants were appointed to hold the posts of Van Mazdoor. Undisputedly, none of the complainants have completed ten years of qualifying service from 01.11.1994. Hence, they are not entitled to pension. 7] In the decision of the Division Bench of this Court in Parshuram Vithoba Bhandare's case the complainant was recruited as daily wager in the year 1964. On 13.09.1980 the post of Labour Supervisor was sanctioned on the establishment of the employer i.e. the State Government. The complainant in the said decision was appointed permanently as Labour Supervisor on 13.09.1983. The complainant therefore, worked on a substantive post which was created on 13.09.1980 though on temporary basis upto 13.09.1983, when he was made permanent. In the light of this factual position, the Division Bench of this Court has held that in terms of Rule 30 of the Pension Rules, the complainant was entitled to pensionary benefits, and in the absence of the pleadings and proof by the State Government to the effect that the salary of the complainant was paid as daily wager from 1964 to 1980, the entire service rendered by the petitioner-complainant was required to be counted as qualifying service. The specific finding is recorded that the complainant in the said decision had completed more than ten years of continuous service as Labour Supervisor, and his salary was at no point of time drawn from the contingency fund. The specific finding is recorded that the complainant in the said decision had completed more than ten years of continuous service as Labour Supervisor, and his salary was at no point of time drawn from the contingency fund. 8] The aforesaid decision is not applicable to the facts of the present case, for the reason that the date of superannuation of the petitioner-complainant in the said decision is not reflected in the judgment and there was no dispute that the complainant completed more than ten years continuous service on a substantive post of Labour Supervisor, which was sanctioned on 13.09.1980. The daily wager does not hold any post and unless there is evidence about creation of sanctioned post on which the complainants were working for ten years, the service rendered as daily wager cannot be counted as a qualifying service for pensionary benefits. 9] In view of above, no fault can be found with the view taken by the Industrial Court in dismissing the complaint. The writ petition is dismissed.