Hemant Gupta, J. - (1.) THIS order shall dispose of aforementioned two writ petitions i.e. CWP No. 21554 of 2013 directed against an order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal') on 15.05.2013, whereby claim of the petitioner for pension after taking into consideration his previous service, as a daily wager/work charge basis was dismissed and CWP No. 25530 of 20 -13 directed against an order passed by the Tribunal on 15.05.2013 declining the claim of pay from the date of his termination in the year 2006 till his date of appointment as Beldar on 25.02.2010. The petitioner initially started working as Khalasi in the year 1972. However, in February, 1976, he was posted as Motor Lorry Driver, on which post he continued till February, 1981. In February, 1981 due to family circumstances, petitioner left his service on his own accord. The petitioner was again appointed as Motor Lorry Driver on 24.09.1990 and had been continuously performing his duties. Since the services of the juniors were said to have been regularized ignoring the petitioner, therefore, the petitioner filed an Original Application before the Tribunal. The Tribunal vide order dated 17.05.1998 directed the respondents to consider the claim of the petitioner for regularization. Such claim of the petitioner was rejected on 17.08.1998 for the reason that there was no vacancy available. The petitioner again filed an Original Application challenging the order dated 17.08.1998. While disposing of such application vide order dated 17.08.2001, the Tribunal directed the Department to pass a speaking order. However, again the claim of the petitioner was rejected for the reasons that he did not have the experience of three years and that ban was imposed by the Government of India in filling up vacant posts. The petitioner filed another Original Application, which was dismissed on 12.03.2003. The review application filed by the petitioner was also dismissed. Thereafter, the petitioner challenged the said order before this Court by way of CWP No. 8332 of 2003, which was allowed on 02.04.2004 directing the respondents to consider the claim of the petitioner for regularization of his service as Motor Lorry Driver within a period of two months. Since the respondents failed to take any action, the petitioner invoked the contempt jurisdiction of the Tribunal, but during the pendency of such contempt petition, appointment order dated 21.07.2005 was issued. However, during medical examination, the petitioner was found to be 'colour blind' and, thus, could not be permitted to join. Thereafter, a letter was issued on 31.01.2006 declining the petitioner to continue in service, as he was no longer required being medically unfit for the job of Driver.
(2.) THE petitioner again invoked the jurisdiction of the Tribunal for getting him medically re -examined by a Board of Doctors of PGI or in any other hospital, so as to ascertain his alleged colour blindness and suitability for the job. The petitioner was reexamined from Government Medical College & Hospital, Sector -32, Chandigarh and was found to be 'colour blind' and as such the Original Application was dismissed on 28.07.2006. Thereafter, the petitioner got 'Ishiara Plates Test' from PGI and on the basis of the report that he is fit to be appointed as Driver, filed a Miscellaneous Application to seek a direction that he should be re -examined from PGI or some alternative job of regular basis may be granted to him. Such application was dismissed on 04.10.2006. The petitioner filed a writ petition bearing CWP No. 16921 of 2006 before this Court, which was disposed of on 07.05.2009 with a direction to the respondents to give appointment to the petitioner on a Class -III post against any available vacant post or to the next post, which falls vacant. The relevant extract from the order dated 07.05.2009 reads as under: "After hearing learned counsel for the parties, we are of the considered opinion that the petitioner cannot be appointed as a Motor Lorry Driver, as he has failed in the 'Ishihara Colour Plates' test twice. The petitioner cannot differentiate between different colours. Therefore, this prayer of the petitioner for appointing him as Lorry Motor Driver, is outrightly rejected. However, we are of the considered opinion that as the petitioner has worked for more than 25 years in the CPWD Department as a Lorry Driver and has an unblemished service record, therefore, it would be appropriate if the petitioner can be adjusted on a post which has sedentary duties. Accordingly, we direct the respondents to give appointment to the petitioner on some alternative post in the department in which colour blindness does not come in his way in the performance of his duties. Counsel for the respondents submits that there is no post lying vacant at present in the department, and hence, no alternative appointment can be given to the petitioner. Although, the statement of the learned counsel for the respondents, is contested by Mr. Bal, counsel for the petitioner, but nevertheless, we direct the respondents to give appointment to the petitioner on a Class -III post against any available vacant post or to the next post, which falls vacant. In case, a Class III post is not available, then the petitioner may be adjusted on some Class -IV post." It is in pursuance of such directions, the petitioner was issued appointment letter for the post of Beldar on 17.02.2010. The petitioner joined his services as Beldar on 25.02.2010. The petitioner attained the age of superannuation on 28.02.2011. The claim of the petitioner to take into consideration, the period of daily wager has been rejected inter -alia on the ground that the petitioner has been offered appointment on 17.02.2010 after new pension scheme was enforced by the Government of India w.e.f. 01.01.2004. Therefore, the petitioner is not entitled to pension.
(3.) THE petitioner firstly claims pension after taking into consideration the period of his services rendered as Khalasi from the year 1972. We do not find any merit in such claim. The petitioner left his assignment voluntarily as Motor Lorry Driver in February, 1981. Since, the petitioner left his work on his own account, therefore, he cannot claim benefit of such service after his deemed resignation. Such break in service was not actuated by any action of the respondents, but as per the petitioner himself, it was a voluntary act due to adverse family circumstances. Such period cannot be counted towards qualifying service in any circumstances whatsoever.;