JUDGMENT
Manmohan Sarin, J.
1. Petitioner Superintending Archaeologist, Archaeological Survey of India by this order assails the order dated 1st June, 2005 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 2205/2004 (hereinafter referred to as the `impugned order’). By the impugned order the Tribunal directed the petitioner herein to consider respondent No. 2-Sardar Singh services’ prior to as also post regularization till his retirement as qualifying service for pension/retiral benefits. Petitioner also was directed to pay the arrears in this behalf within a period of three months from the date of communication of the said order. Petitioner also seeks a writ of mandamus to seek stay of the implementation of the impugned order.
2. Notice to show cause was issued in the writ petition along with a direction to the petitioner to file on record the details of the number of days respondent No. 2 worked with the petitioner from the year 1970 till 2003. This Court also restrained respondent No. 2 from taking coercive steps to enforce the impugned order during the hearing of the writ petition. Pleadings were completed and after hearing parties, the judgment reserved on 5th July, 2007. The brief facts of the case are:
i) Respondent No. 2 was employed as a daily wager with the petitioner in 1970. In 1989, Respondent No. 2 filed an OA No. 1290/1989 before Central Administrative Tribunal seeking regularization of his service with the petitioner. The Tribunal directed the petitioner to decide respondents claim for regularization vide order dated 5.2.1993.
ii) In 1999, Respondent No. 2 filed another O.A. No. 513/99 praying that his services with the petitioner be regularized. He also claimed wages of regular employees. Tribunal vide order dated 31.7.2000, directed petitioner to consider the claim of respondent for regularization in the post of mason. In compliance with the order of the Tribunal, a specially constituted committee recommended the names of eligible candidates. Interviews were held and respondent No. 2 and two other candidates were selected by the petitioner on 21.5.2001 and offers of appointment were accordingly issued to them.
(iii) On 2.5.2002 respondent No. 2 filed a contempt petition No. 181/2002 in O.A. 513/99 alleging that he had not been regularized despite the orders of Tribunal. The petition was subsequently withdrawn leaving it open to respondent No. 2 to pursue his remedies in accordance with law. iv) On 3.9.2003, an office order was issued by the petitioner appointing respondent No. 2 on probation for a period of two years on the post of mason in the pay scale of Rs. 3050-4590/- with effect from 31.7.2003. Vide an office order dated 28.1.2004 respondent No. 2 was informed of his impending superannuation. Respondent No. 2 in the event superannuated on 31.1.2004 v) Respondent No. 2 made a request on 15.4.2004 to the petitioner for grant of pension. Petitioner vide letter dated 11.10.2004 informed respondent No. 2 that he was not entitled to pension since he had rendered less than 10 years of qualifying service under the provisions of Section 49(2) b of CCS Pension Rules.
vi) On 27.8.2004, Respondent No. 2 filed an O.A. No. 2205/2004 before Tribunal seeking directions to the petitioner that respondent herein be treated in service since 1970 and to give all pensionary/retiral benefits for services rendered for more than 34 years. The Tribunal vide the impugned order held that respondent No. 2 was entitled to the pensionary/retiral benefits and the same be paid within 3 months of communication of the order.
3. Learned Senior Counsel, Mr. Keshav Dayal on behalf of the petitioner submitted that respondent No. 2 had not rendered requisite 10 years of regular service with the petitioner. He had rendered only limited Govt. service of about 4 months 29 days, post regularisation and is, therefore, not entitled to pension under the provisions of Rule 49(2) b of the CCS Pension Rules 1972. Learned Counsel urged that Respondent No. 2 had not worked regularly and continuously with the petitioner department even when he was working as a daily/casual-wager/mason and had not worked for more than 240 days consecutively in any 2 years.
4. Mr Dayal relied on the provisions under Rule 2 of Central Civil Services (Pension) Rules 1972 which stipulates that rules framed there under shall apply to Central Government Services including civilian Government Servants in defense Services, appointed substantively to Civil Services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to Persons in casual and daily rated employment. Counsel vehemently urged that respondent No. 2 had worked for only about 5 months and was otherwise in daily rated/casual employment prior to his regular appointment. Counsel for the petitioner further submitted that the orders passed by the Tribunal was not sustainable as it took into consideration the period of service as Daily wager, while calculating the qualifying service of the Respondent No. 2 for pension. It is submitted that Respondent No. 2 was admittedly in daily rated/casual employment of petitioner prior to his regular appointment.
5. Learned Counsel urged that the workman i.e. Respondent No. 2 cannot claim any better right of reinstatement/regular appointment than the one he was having prior to his appointment. He stated that a daily wager has no right in law to claim pension/retiral benefits upon regularization.
6. Petitioner avers in the writ petition that the services rendered by the respondent No. 2 as daily wager cannot be equated with the quasi permanent service or temporary service with the petitioner. Therefore, the services mentioned as daily wager/casual employee cannot be counted towards qualifying service for grant of pension under the CCS Pension Rules, 1972.
7. Respondent No. 2 , in his counter affidavit has averred that pursuant to the recommendation of the National Council, it had been decided that half the service paid from the contingencies will be permitted to be counted towards pension at the time of absorption of such employee in regular employment. He submits that the same provision is envisioned under CCS (TS) Rules 1965 in case of staff paid from contingencies is subsequently absorbed on regular basis.
8. Ms. Anu Mehta urged that respondent No. 2 was eligible for regularization in 1988 itself under the Department of Personnel and Training Scheme of 7th June, 1988 for absorption of Group C employees which the petitioners denied without any reason. She further submitted that the petitioner has gone contrary to settled law on the issue of applicability of pension to the quasi permanent/ temporary employee of any employer paid from contingencies.
9. We have heard learned Counsels for the parties and have perused the documents available on record along with written submissions. We have also gone through the cited cases and memoranda relied on. It may be noted that Mr. Keshav Dayal, learned senior counsel for petitioner sought to raise a plea that the CAT would not have had jurisdiction to determine the case of a daily wager which would appropriately fall within the adjudicatory machinery under the Industrial Disputes Act. We do not find it necessary to go into this submission as the petitioners had not at any stage challenged the orders of the Tribunal for want of jurisdiction and the same had attained finality as regards respondent No. 2′ case for regularization.
10. After going through the pleadings, documents and affidavits filed by the parties, the short question before us is whether the said period respondent No. 2 claims to have worked as daily wager since 1970 till his regularization, be counted towards the qualifying period for pension, which is ten years. We may note that Rule 2 of Central Civil Services (Pension) Rules 1972 clearly says that rules framed there under shall apply to Central Government Services including civilian Government Servants in defense Services, appointed substantively to Civil Services and posts in connection with the affairs of the union which are borne on pensionable establishments, but shall not apply to: Persons in casual and daily rated employment. In the present case, respondent No. 2 has worked on a daily wager basis and is therefore not entitled to the benefits of the rules. Although, the respondent No. 2 has been working since 1970 with the petitioners department but he has rendered only a limited Government Service of about 4 months and 29 days after regular appointment. He, therefore, does not fulfilll the condition required under the provisions of Rule 49(2)(b) of the CCS Pension rules. Learned Counsel for respondent No. 2 places reliance on Rule 14 of CCS Rules, notably para 2 which says that where the service is paid from contingency, the incumbent is entitled on the conditions as given in the said rule being satisfied to have half of the service counted towards qualifying service in our view does not apply in this case. On this aspect it may be noted that sub Clause (d) provides that the service paid from contingency should have been continuous and followed by absorption in regular employment without a break. Respondent No. 2’s service cannot be said to have been without any break.
11. Petitioner had filed, along with an affidavit, Annexure P-9, which is a statement showing the working days in respect of respondent No. 2 from the year 1985 till 1st May, 2003. Pursuant to the directions given by the court on 23rd September, 2005, an additional affidavit together with a chart showing the total number of days worked by respondent No. 2 from 1970 to 2003 was filed by the petitioner. The chart indicates the years for which the data is not available and the particulars of the muster roll. The same is reproduced for facility of reference:
Year Days Worked Years Days worked
1970 to 1973 NA 1991 310 days
1974 14 days 1992 247 days
1976 81 days 1993 279 days
1977 48 days 1994 190 days
1978 124 days 1995 Nil
1979 42 days 1996 186 days
1980 NA 1997 205 days
1981 86 days 1998 Nil
1982 NA 1999 141 days
1984 211 days 2000 61 days
1985 224 days 2001 212 days
1986 224 days 2002 237 days
1987 288 days 2003 169 days
1988 264 days 1989 189 days
1990 246
12. Learned Counsel sought to urge that before the Tribunal, it had not been disputed that respondent No. 2 had rendered services of 3630 days from 1973 till 1993 without any break completing 240 days in each year and the total service of 4903 days up to 31st August, 2003 had been rendered which was more year 10 years. She further urged that this issue could not be gone into by the court. We find that the said observation of the Tribunal on the face of it suffers from an error inasmuch as if 240 days rendered from 1970 till 1993, the number of days than would be 5520 days and not 4903 days as mentioned by the Tribunal.
13. The entire record of number of days worked had been produced before the court in November, 2005 based on the orders passed in the writ petition. Respondent No. 2 had adequate opportunity to produce or point out any error to show that he had worked for a larger number of days. In any case, it appears to us that while respondent No. 2 may have worked for 4903 days as on 31st August, 2003 i.e for more than 10 years from 1970 till 2003, the issue is whether this is to be regarded as regular and qualifying service for purposes of grant of pension. This, as noticed by us earlier, cannot be so in terms of the Central Central Services (Pension) Rules, 1972 under which regular services rendered by an employee is to be counted. The status of respondent No. 2 till regularization was of a daily wager casual employee and it cannot be equated with quasi permanent service or temporary service.
14. It is a settled proposition that a daily wager does not hold a post or derive any legal right by merely continuing to work when he is not appointed in terms of the provisions of the Act and the rules framed there under. Reference may be made to MP Agro Industries v. S.C. Pandey , M.P. Housing Board v. Manoj Srivastava support of the above proposition. In Secretary, State of Karnataka and Ors v. Umadevi and Ors , the Constitution Bench of the Supreme Court noted that mere long continuance of daily rated employees on irregular basis, in public employment cannot by itself create any right to be considered for regularization and therefore such wagers cannot claim that they are being discriminated against vis-a-vis those who have been regularly recruited on the basis of the relevant Rules. Counsel for respondent No. 2 placed reliance on Smt. Anita Devi v. Union of India and Ors. 2006(2) ATJ 260, a decision of the Central Administrative Tribunal. The above was a case of a casual worker who had been conferred temporary status and his widow had been denied family pension on account of belatedly claiming the same. In terms of para 1501 of IREM, they were treated as temporary Government servants on acquirement of Government status even though not working against a permanent post. Benefit was conferred relying on para 2511 of IREM to a widow of a temporary Government servant who died in harness. The said case is distinguishable and would not advance respondent No. 2’s case. Similarly reliance was placed on Yashwant Hari Katakkar v. Union of India and Ors. where an employee having rendered 18 and half years of quasi permanent service was allowed to retire prematurely. The court held that he should be deemed to have become permanent and hence entitled to pension. This case is distinguishable and will not advance respondent No. 2’s case. It is pertinent to note that in the instant case, respondent No. 2 was not in quasi permanent service but was a daily rated employee. A.P. Srivastava v. Union of India and Ors. was again a case of a temporary Government employee with 20 years of service who was compulsorily retired. The court held that if a temporary Government servant who was entitled to pension on voluntary retirement, there was no justification to deny him the same, when he was made to retire compulsorily. This case is again distinguishable and will not advance respondent No. 2’s case since the respondent No. 2 is not a temporary employee entitled to pension/retiral benefits as per rules and is only a daily wager. In view of the foregoing discussion, we hold that respondent No. 2 did not have the requisite qualifying service to be exigible for pension and the services rendered prior to regularization as a daily wager for different periods cannot be regarded as continuous service, to be reckoned as qualifying service. This may cause hardship to respondent No. 2 but is a necessary sequel to the application of the Pension Rules. Accordingly, writ petition is allowed and the impugned order is set aside.