Rajasthan High Court - Jaipur
Ismail Khan vs State Of Rajasthan And Anr. on 18 November, 1985
Equivalent citations: 1986(1)WLN59
JUDGMENT Dinker Lal Mehta, J.
1. Teeming down trodden employed people are crying for justice a social justice which may really serve the cause of the people for the benefit of whom we are having an open democracy. People have a right to know and have a right to get information about the working of all the three institutions of the State, namely, the Executive, the Judiciary and the Legislature. This is a case in which a person who was employed in the year 1964 has come to the doors of the Court with a prayer that he is not getting any pension and he is on the verge of leaving the world, and there is a problem of his maintenance. The present petitioner is not only the exception, but there may be hundreds who are crying for the pension to lead a peaceful life awaiting for the day of passing over from this world. The cry of the present petitioner has not been heeded by the Pension Officer, Chief Pension Officer and for that reason he has rushed to the Court with a gloomy face and tears in eyes to show to the people that this is the fate of an employee who has served the State for a period of 16-17 years. He is not begging but claiming a right which is available to him the right of pension the right of survival the. right of maintenance and so on. He has invited the attention of the Court also towards the fate of the persons to whom he has to feed. Mr. Bhandari appearing on behalf of the petitioner with all his vehemence at his command has placed the case of the present petitioner in a befitting way and has submitted that pension is a right of an employee who retires after serving the employer for a pretty long time.
2. He further submits that a daily wage earner is a regular employee and cannot be said to be a casual labour or a work-charged employee in any way. He has invited the attention of this Court to the case of Ramesh Chand v. State of Rajasthan decided by this Court on 8-7-1985 and submitted that the payment of wages on daily basis is having no relevancy what so ever in the matter of regular or qualifying service. He submits that under Articles 14 & 16 of the Constitution of India the mode of payment has not been prescribed and the employer and employee may enter into a contract and the payment be made on daily, weekly, monthly, quarterly or yearly basis. The contention of Mr. Bhandari is that it is only the nature of the work which is to be looked into, and if the nature of the work is of a temporary nature, then it falls within the definition of a regular employment, and it is not necessary, according to Mr. Bhandari, that the temporary nature work should be considered as casual work. Mr. Bhandari's submission is that casual work is a work which is not a forseen work, which is a chance work, and if the work is anticipated work, then it cannot be said to be a casual work. The third contention of Mr. Bhandari is that the Rajasthan Public Works Department (B&R) including Garde s, Irrigation, Water Works and Ayurvedic Work-charged Employees Rules, 1964 are in part ultra vires. He has also challenged the vires of the definition of the work-charged employee given under Rule 2(a) of the Rules of 1964.
3. Mr. Bhandari has invited my attention to the fact that the petitioner was appointed as a Black-smith on 31-7-1964 in the Public Works Department. He has also submitted that after the completion of two years of his service he was declared as a semi-permanent employee. He has also invited my attention to Annexure-2 and submitted that after the completion of 10 years service his client was appointed as a regular and permanent employee vide order dated 2-7-1977 retrospectively with effect from 31-7-1974. As far as the question of employment and other facts are concerned, they stand unrebutted.
4. The right of pension is a right which is inherited by the employee because of his long association and service rendered to a particular institution. An employee cannot be thrown out and cannot be asked to starve when physically he becomes unfit because of the age factor. It is the solemn duty of an employer to see that the persons who have served the institution for a pretty long time and who have participated in the development of the institution in the functioning of the institution cannot be allowed and should not be allowed to starve when they are old. Pensionary benefits are the benefits' which arise out of the service conditions as a part of the service condition that after the retirement one should be given some benefits so that he can maintain himself and he can pass over to the next world peacefully without starvation. On this question, there cannot be any controversy that pensionary rights are fundamental rights of an employee which cannot be denied to him, if he has served for a pretty long time to the State and the State is bound to see that the employee will serve the State for a pretty long time as a devoted employee should not be allowed to starve and should not be allowed to pass over to the next world starving and in an agony. It is expected that even the passing over to the next world should be very peaceful and should not be of a nature which may give a feeling to an employee that he has been exploited throughout the life and he is passing over as an exploited person and there is none to care for him inspite of the fact that he has served to the best of his ability throughout his life.
5. Articles 14 & 16 of the Constitution are the fundamental rights. Preamble of the Constitution provides for social justice. Everyone knows that the wage earners and salary earners cannot save much, if they act as a devoted and faithful employee without the expectation from any one else other than the employer. The pension which he will get or the pension which he will earn, the gratuity and other retirement benefits are given only for the purpose and with the intention that there should not be a grievance to an employee during the term of his employment that he shall not be looked into by the employer after retirement when he becomes physically unfit. For this reason, I hold that the pensionary rights given to the pensioners are the fundamental rights and are arising out of the employment and its condition which is to be fulfilled by the employer.
6. In the instant case, it has already been stated that the petitioner was appointed on 31-7-1964 as a Black-smith by the Assistant Engineer, PWD., Sawai Madhopur, and since then he remained in continuous service of the Suite upto the date of retirement, i.e., 30-12-1980. Under Rule 179 of the. Rajasthan Service Rules it has been provided that the service of an officer does not. qualify for pension unless it conforms to the following three conditions:
(1) Service must be under the Government, and in the instant case it is not in dispute; (2) The service may be paid by the Government and that too is not in dispute;
(3) The employment may be substantive/permanent/temporary or officiating. This rule does not provide about the work-charged employees.
However, under rule! 80 the Government has power to declare that any specific kind of service or service rendered by Government servant shall be qualified for pension subject to such conditions as the Government may think Sit to impose. The first question which Mr. Bhandari has raised is that Rule 179 applies in the instant case, and as of right his client is entitled for the pension as work-charged employee. Daily wages employees are the regular employees and they should be equated with temporary employees for all the purposes and temporary employees are entitled to get the right under Rule 179. in the alternative, he has taken the plea that under Rule 180 the state Government has considered the case of work-charged employees vide Finance Department Memorandum No. F. 1(26)FD/Gr. 11/74 dated 31-1-1977. The Governor was pleased to order that the work-charged employees who are absorbed/ appointed to a regular post by conversion of work-charged post to a regular post under the Government from time to time may be allowed to exercise option to elect either to contribute towards CPF or to opt for pensionary benefits under the Rajasthan Service Rules. His Excellency the Governor was further pleased that if the employee elects to opt for pension rules, the period of service rendered by him as work-charged employee before appointment, that absorption on regular post shall qualify for pension for the period during which he has subscribed to the contributory provident fund irrespective of the date of their absorption in Government service subject to the conditions laid down. One of the conditions is that in case the Government servant requires to contribute under the Contributory Provident Fund Rules as applicable to him prior to his absorption but did not contribute during any period, or has failed after coming into force of respective relevant Work-charged Employees Contributory Provident Fund Rules for one reason, or the other, he may be allowed to contribute for that period so that the intervening period may also be counted for pension. It further provides that the option has to be exercised within a period of three months from the date of publication of these orders in the Official Gazette. Mr. Bhandari has pointed out that, vide Annexure-3 the option has been given. It was also submitted that the State Government accepted the declaration and stopped the deduction of the CPF. It will not be out of place to mention here that the petitioner is not an educated person and the Government has already accepted the declaration and stopped the deduction of CPF. Mr. Bhandari submits that once the declaration has been accepted and the deduction of provident fund has been stopped, then the Government is estopped from raising technical objections. Apart from that Mr. Bhandari points out that the period for giving the option has been extended from time to time, and the Government vide its order dated 24-4-80 has extended time and further directed that it could be sub-mitted even within a period of nine months from the date of publication of the order dated 24-4-80. Thus the option given by the present petitioner is also within time as it was given prior to the publication of the order dated 24-4-80. Now the only question remains about the . qualifying service. The petitioner was appointed on 21-7-64 against an. anticipated post which was of a regular nature, though it may be of a temporary nature. It was not a chance post or a chance work, and the mode of payment has nothing to do as far as the definition of casual labour is concerned. It is only the nature of work which is to be looked into, and Mr. Bhandari submits that this type of work is a continuing process and not a chance work but is a regular work, may be of a temporary nature. Even from the perusal of the working of the present-petitioner it is clear that he worked for two years and thereafter he was declared semi-permanent in the year 1967, and he continued as such. Then he was declared as permanent in the year 1974 and continued to serve the Government upto the year 1980. A temporary employee is entitled to get pension under the rules, and Rule 179 provides that the employment may be in substantive/permanent/temporary or officiating capacity. The petitioner's period is to be divided into three parts; (1) from 31-7-1964 to 30-7-1967, during which period he was getting daily wages and he was called daily wage earner; (2) from 31-7-1967 to 30-7-1974, during which period he was treated as semi-permanent; and (3) from 31-7-1974 upto the date of retirement. So far as the period of semi-permanent employment, i.e., the period intervening between 31-7-1967 to 30-7-1974 is concerned, it stands on a better footing, as he was a semi-permanent employee. If a temporary employee can be given the benefit of pension during which the petitioner remained as semi-permanent cannot be counted for the purpose of benefit of the employees is not understandable.
7. The period during which the petitioner has worked as a daily wage earner towards a regular work, may be of a temporary nature, cannot be said to be a daily wage earner within the classification of a casual labour. 1 have already discussed earlier that a casual labour means a person who has been appointed towards ah unforseen and unanticipated work for a particular work only. If the work has been anticipated earlier, then the person employed does not fall within the capacity of a casual labour, but may fall within the definition of a temporary labour. Therefore, the protection of Articles 14 and 16 is not available to a casual labour but it is available to a temporary labour and for this reason because it is not the case of the State Government that he was a daily wage earner towards an unanticipated work, it is to be presumed that he was a temporary employee during the period during which he was earning daily wages and for this reason also I hold that the period lying between 31-7-1964 to 30-7-1967 also falls within the definition of the qualifying service and the petitioner is entitled for the benefits of pension in accordance with the rules. The petitioner's qualifying service shall be considered as qualifying for the purpose of pension from 31-7-1964 upto the date of retirement.
8. The writ petition is, therefore, accepted and it is directed that the petitioner should be paid pension in accordance with the rules treating him as a person qualified and eligible for pension and taking into consideration his qualifying service from 31-7-1964 to the date of retirement. It is further directed that pension should be made available to the petitioner within a period of four months.