RAM RAKSHPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Denial of pension to the petitioner who retired after 13 years of service as Asstt. Engineer (Mechanical) from the Rajasthan Canal Project has compelled the petitioner to file this writ petition for the appropriate relief. On a show cause notice being issued to the respondents, the explanation which has come forward for not granting pension to the petitioner is to the effect that the petitioner, although, has served for 13 years as Asstt. Engineer is not eligible for pension as in view of Rule 179 of the Rajasthan Service Rules, 1961 which was prevalent at the time when the petitioner retired put a bar on his eligibility for pension since according to the Rules, the employee was. eligible only if the worked on the post in substantive and permanent capacity. It is, however, an admitted position that Rule 179 of the Rajasthan Service Rules, 1951 was subsequently amended with effect from 31/1/79, according to which an officer qualifies for pension even if he retired from the post on which he served in substantive, permanent, temporary or officiating capacity.

(2.) It has therefore been submitted on behalf of the petitioner by Shri Sanjay Pareek that even if the petitioner retired from service after 13 years, which is wrongly treated as temporary, the petitioner should be held eligible for pension as even according to the amended rule if an employee in the Government of .Rajasthan served in a temporary or officiating capacity, the same cannot be a ground for denying him pension since the said dead-lock has been removed by the Government of Rajasthan itself by virtue of its amendment which became effective from 31/1/1979.

(3.) It has been further submitted that the petitioner who served for 13 years in the service of the State of Rajasthan as Asstt. Engineer cannot be treated as temporary Government servant merely because his order of appointment described him as a temporary employee. The petitioner having worked uninterruptedly as Asstt. Engineer for 13 long years cannot be described as a Government servant having working in temporary capacity. To reinforce his submission, he has relied upon a decision of this Court reported in 1993(1) Western Law Cases 79, delivered in the matter of R.S. Rawat Vs. State of Rajasthan and Ors. , wherein it has been laid down that there is no justification for' describing appointment as ad hoc merely because it is described so in the letter of appointment. Such letter of appointment was held to be arbitrary. This judgment delivered in the matter of R.S. Rawat's case (supra) is not a judgment in isolation as this had been delivered relying on a number of judgments delivered by the Supreme Court on a similar question, the latest being 1992(1) Judgments Today 105, Dr. Uma Kant Vs. Dr. Bhikha Lal Jain and the other in the row being AIR 1981 SC 41 Baleshwer Das Vs. State of Uttar Pradesh , 1980 SC 1098 State of Uttar Pradesh Vs. M.J. Saddique and Ors. In the matter of Baleshwer Das Vs. State of Uttar Pradesh (supra), their Lordships of the Supreme Court dealt with the circumstances under which an appointment can be construed to have been made in substantive capacity. While dealing with this question it had been categorically laid down that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. It has been further held in the State of Uttar Pradesh Vs. M.J. Saddique (supra) that mere use of the term 'appointment' in temporary vacancies by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity. In order, therefore, to determine the nature of appointment, the Court has to look to the nature and substance of the appointment, the surrounding circumstances, the mode and manner and the term of apartment and other relevant factors.