CHAUHAN, J. - (1.) THE instant petition has been filed for seeking a direction to the respondents to restore the pension already sanctioned to the petitioner vide Annexure 5 and for quashing the order dated 4. 12. 92, contained in Annexure 6 to the petition, by which the petitioner has been found non-suited for the grant of pension.
(2.) THE facts and circumstances giving rise to this case are that petitioner was appointed as a Helper with effect from 1. 6. 66 with the respondents and he was given semi-permanent status under the provisions of the Work-charge Rules, 1964 with effect from 1. 6. 68 as is evident from Annexure 7 issued on 28. 8. 72. Petitioner was further given permanent status with effect from 1. 4. 82 as is evident from the order dated 2. 8. 82 contained in Annexure 1 to the petitioner. He applied for voluntary retirement under the provisions of Rule 244 (1) of the Rajasthan Service Rules, 1951 and his application was considered vide order dated 11. 11. 91 contained in Annexure 3 and he was relieved with effect from 29. 11. 91 as is evident from the contents of Annexure 4 to the petitioner. THE petitioner was given the provisional pension etc. but now, it has been stopped. Hence this petition. Heard Mr. H. K. Purohit, learned counsel for the petitioner and Mr. R. P. Vyas, learned counsel for the respondents. It has been submitted by Mr. Purohit that rule 244 (1) of the Rajasthan Service Rules, 1951 provides for optional retirement on completion of twenty years qualifying service, which means that a person may seek retirement with three months notice in writing on the date on which he completed twenty years of "qualifying service" or attained the age of 45 years, whichever is earlier, or any date thereafter to be specified in the notice. The respondents have wrongly considered his case under the second category. He has no quarrel regarding the first proposi- tion as the date of Birth of the petitioner is 13. 3. 1948 and he was below 45 years of age when he was given voluntary retirement. However, his contention is that the petitioner admittedly joined service with effect from 1. 6. 66 and served the respondents till the date of his voluntary retirement for a period of 25 years and six months and, therefore, he cannot be denied the pension etc. Mr. Vyas has placed reliance on Sub-rule (5) to rule 244 of the Rajasthan Service Rules, 1951, which reads as under :- " This rule is also applicable to government servant who are members of Contributory Provident Fund. In their case, the term "qualifying service" shall mean service commencing on the day the government servant started subscribing towards the Contributory Provident Fund. " Mr. Vyas has submitted that the petitioner started contributing towards Contributory Provident Fund with effect from 1. 4. 73, as is evident from Annexure 8, therefore, he did not qualify the period of twenty years from the said date and he cannot be considered eligible for the grant of pension. Similar provisions have been provided under rule 22-A of the Rajasthan Work-charge Employees Rules, 1964 Mr. Purohit, learned counsel for the petitioner has placed reliance on various judgments of this Court wherein it has been held that for the purpose of computing the pension, the entire service rendered by a work-charge employee has to be considered. (Rameshwar Lal vs. State of Rajasthan (1); Durga Lal vs. State of Rajasthan & Ors. (2); and Harbans Lal vs. State of Rajasthan & Ors.
(3.) SIMILAR view has been taken in Om Prakash vs. State of Rajasthan & Ors. etc. etc. In the said case, this Court was pleased to hold that whenever a tempo- rary or work-charge employee is appointed subsequently on regular basis, he cannot be denied the benefit of past services. The Court further observed that the work-charge employee and the temporary employee, both being discharging the same duties and functions, thus, there can be no justification in discriminating them for grant of future benefits in service on the basis of their birth-mark. While deciding the case, the Court placed reliance on its earlier judgment in Ismail Khan vs. State of Raj. & Ors. (5) and held that such employees shall be treated as permanent employees and they will be entitled for all pensionary benefits applicable to them. The issue of "qualifying service" was, also, considered by the Division Bench of this Court while deciding State of Rajasthan & Ors. vs. Vasu Deo & Anr. (6) and the Court held that an employee appointed on daily wages towards anticipated work would, also, be deemed eligible to treat the services rendered by him as a daily wager for computing the qualifying service for pension within the meaning of rule 179 of the Rajasthan Service Rules, 1951. While deciding Amar Singh vs. State of Rajasthan & Ors. (7), this Court has held that the primary liability to deduct the Contributory Provident Fund amount is of the employer and not of the employee and if such a deduction has not been made, the employee cannot be deprived of the right of pension. ;