Jasbir Singh, J.:— Petitioner has filed this writ petition with a prayer that writ of certioraribe issued to quash order, Annexure P/6 dated 16.9.2002, vide which his prayer for sanction of pension was declined.
2. It is apparent from the records that petitioner was appointed as Mechanic (Diesel) on daily wage basis in the month of May, 1991, with the respondents. He remained in service for 31 days and again in the month of October, 1991, he was reappointed and continued in service for about a month. Again, on 1.12.1991, he was engaged on the same post and he continuously served the respondents as daily wager till 30.7.1996 Thereafter, his services were regularised vide order dated 1.8.1996 and he was given regular pay scale of Rs. 1090-2130 and on attaining age of superannuation, he retired on 30.6.2002
3. After his retirement, he made a representation to the respondents that he be granted pension. He was offered gratuity in lieu of pension and an amount of Rs. 26,700/- was released in his favour towards service gratuity and another amount of Rs. 19,359/- was sanctioned towards D.C.R.G His claim, regarding pension, as referred to above, was declined vide order, Annexure P/6. Hence, this writ petition.
4. 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 farther 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.
5. 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 v. State of Haryana, 1991 (3) Services Cases Today 147 : [1991 (3) SLR 684 (Pb. & Hry.)], 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, 1998 (2) I.L.R Punjab and Haryana 73 : [1999 (4) SLR 214 (Pb. & Hry.)]. 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 alongwith interest, as may be directed by this Court.
6. 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.
7. After hearing counsel for the parties, this Court is of the opinion that the writ petition deserves to be allowed.
8. 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 or 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 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.”
9. 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 sub-clause (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 In Kesar Chand v. State of Punjab (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.”
10. When confronted with the ratio of judgments, referred to above, counsel for the respondents has failed to show any contrary judgment on account of which relief, can be declined to the petitioner. This Court feels that order, Annexure P/6 was passed by the respondents without noticing established law on the subject, as such, the same is liable to be quashed.
11. Accordingly, this writ petition is allowed, order, Annexure P/6 dated 16.9.2002 is quashed, respondents are directed to count service of petitioner, rendered by him as daily wager towards qualifying service and sanction pension in bis favour. Needful be done within a period of three months from the date of receipt of a copy of this order. On sanction of pension in his favour, petitioner is directed to return amount of service gratuity and D.C.R.G, received by him alongwith simple interest @7% (from the date of receipt of amount in question till its return), to the respondents within a period of six weeks. Arrears be also paid within period, referred to above.
12. Petition allowed.