GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner, who is wife of late Lehri Ram (hereinafter referred to as "the deceased") on 27. 2. 1996 against the respondents with the prayers that by an appropriate writ, order or direction, the respondents be directed to compute the family pension and gratuity of the petitioner's husband by treating him to be in service from 30. 1. 1982 and pay her all arrears and other consequential benefits etc. etc.
(2.) THE case of the petitioner as put forward by her in this writ petition is as follows:- THE deceased was initially appointed as a part time employee after being regularly selected by regular process of selection for a period of 8 months vide order dated 30. 1. 1982 (Annex. 1 ). THE services of the deceased were later-on regularised on the post of Class IV employee and thus, he was given regular pay scale of Class IV employee through order Annex. 2 dated 1. 10. 1991. THE petitioner's husband (deceased), after serving more than 13 years in the Department of the respondents, expired on 26. 10. 1995, a copy of death certificate is marked as Annex. 4. THE case of the petitioner is that total service rendered by her husband (deceased) i. e. from 30. 1. 1982 upto his death on 26. 10. 1995 should be taken into consideration for purposes of computing the pension, but to the utter surprise, the respondents took into account the service period of the petitioner's husband from 1. 10. 1991, the date on which petitioner's husband was given regular appointment on the post of Class IV employee. According to the petitioner, the period during which deceased worked as part time worker should also be counted towards the post retirement benefits. Since after death of the petitioner's husband, family pension as well as gratuity have been computed on the basis of services rendered by the petitioner's husband from the date when deceased was regularised on the post of Peon on 1. 10. 1991 through order Annex. 5, therefore, that order Annex. 5 is contrary to law and also violative of Articles 14 and 16 of the Constitution of India. It was further submitted by the petitioner that as per the provisions of Rule 179 of the Rajasthan Service Rules (for short `the RSR"), the period of service rendered by the deceased with effect from 30. 1. 1982 to 1. 10. 1991 should be taken into consideration for the purpose of computing pension etc. Since the period of service rendered by the deceased with effect form 30. 1. 1982 upto 1. 10. 1991 has not been taken into consideration by the respondents while computing the family pension etc. , therefore, this writ petition has been filed by the petitioner with the prayers as stated above. The respondent No. 4 Director, Pension Department has filed a reply to the writ petition of the petitioner and in that reply, the main averment as put forward by the respondent no. 4 was that before 1. 10. 1991, the deceased was employed on daily wages basis and as per Rule 2 of the RSR, the provisions of RSR would not be applicable to work charged employees and, therefore, deceased was not entitled to the pensionary benefits as put forward by the petitioner. It was further submitted by the respondent No. 4 that as per Rule 171 of the RSR, part time services are not included in the qualifying services for the purposes of pension. Therefore, the petitioner is not entitled to get any benefit of Rule 179 of the RSR. Hence, the writ petition filed by the petitioner be dismissed. The respondents No. 1 to 3 have also submitted their reply and it has been submitted by them that from the order Annex. 2, it is very much clear that the deceased was given regular pay scale of Class IV employee on 1. 10. 1991 and the services rendered by the petitioner's husband (deceased) on daily wages basis as part time worker were rightly not counted for the purposes of giving benefits and other retiral benefits and in this respect, reliance has been placed on Rules 171 and 185 of the RSR. It was further submitted by the respondents No. 1 to 3 that the petitioner's husband was never appointed as work charged employee under the Rajasthan P. W. D. (B & R) including Gardens, Irrigation, Water Works & Ayurvedic Departments Workcharged Employees Service Rules, 1964 (hereinafter referred to as "the Rules of 1964" ). From this point of view also, the petitioner is not entitled to any relief in this writ petition and the same be dismissed. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. In this case, there is no dispute on the point that the deceased was initially appointed vide order Annex. 1 dated 30. 1. 1982 as a part time employee for a consolidated sum of Rs. 182/- per month for a period of eight months and there is also no dispute on the point that thereafter he was working as such and through order Annex. 2 dated 1. 10. 1991, his fresh appointment was made as Class IV employee in the pay scale of Rs. 750-940.
(3.) THERE is also no dispute on the point that deceased died on 26. 10. 1995 and during the life time of the deceased, there was no dispute about regularisation of services of the deceased and for the first time, after the death of the deceased, when family pension and other benefits were given to the petitioner, the petitioner raised the dispute that the services rendered by her husband (deceased) from 30. 1. 1982 to 1. 10. 1991 should also be counted for the purposes of computing pension etc. During the course of arguments, it has been submitted by the respondents that the appointment of the petitioner's husband (deceased) as Class IV employee was made for the first time through order Annex. 2 dated 1. 10. 1991 under the provisions of the Rajasthan Class IV Services (Recruitment and other Services Conditions) Rules, 1963 (hereinafter referred to as "the Rules of 1963") and, therefore by the petitioner's husband (deceased) prior to issuance of the order Annex. 2 dated 1. 10. 1991 should not be counted. To appreciate the contentions of the parties, for convenience, Rules 2 (g), 171, 179 and 185 of the RSR are quoted here:- " Rule 2 Extent of Application.- These rules apply.- (i ). . . . (ii ). . . (iii ). . . . (a ). . . . . . (b ). . . . . . Provided that. . . . . . Provided further that these Rules shall not apply- (a ). . . . . . (b ). . . . . . (c ). . . . . . (d ). . . . . . (e ). . . . . . (f ). . . . . . (g) to work-charged employees, that is, persons who are not on regular establishment and are paid out of provisions for expenditure on works, maintenance of works, or State trading schemes and similar other provision for funds, other than provisions under budget unit of appropriation `pay of Officers' and `pay of Establishment'," 171. Claim to pension when inadmissible.- In the following cases no claims to pension is admitted:- (a) When a Government servant is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily on monthly wages without specified limit of time or duty, but a month's notice of discharge should be given to such a person, and his wages must be paid for any period by which such notice falls short of a months. (c) When a person's whole time is not retained for the public service, but he is merely paid for work done for the State. 179. Conditions of Qualification.- the service of an officer does not qualify for pension unless it conforms to the following three conditions. First - The service must be under Government. Second - The employment may be in substantive/permanent, temporary or officiating capacity. Third- The service may be paid by the Government. 185. Service when qualifies.- Service does not qualify unless the officer holds a substantive office on a permanent establishment. " ;