ORDER
D.V. Shylendra Kumar, J.
1. Petitioner was a daily wage worker in the services of the 1st respondent-Zilla Panchayat from 21-6-1979. Petitioner's services were regularized as a daily wage worker with effect from 1-1-1990 and the petitioner started working as a permanent employee from this date onwards by creating supernumerary post in terms of a Government Order No. DPAR 2 SLC 90, dated 6-8-1990.
2. While the petitioner was working in such a position as a junior work inspector his services were placed at the disposal of the Zilla Panchayat, Chickmagalur, against an existing vacancy of Second Division Clerk a post which was available at Zilla Panchayat, Chickmagalur, and making the petitioner's appointment permanent with effect from 1-1-1998. These are all undisputed facts.
3. Petitioner retired on attaining superannuation with effect from 31-3-2005.
4. While the petitioner claimed for pensionary benefits on the premise that his services were regularised with effect from 1-1-1990 upto the date of retirement, the respondent was of the view that the petitioner's services having been made permanent in the post of Second Division Clerk only with effect from 1-1-1998 - qualifying service can be taken as 7 years 1 month 5 days and even by adding three years weightage to this in view of the petitioners earlier services as a daily wage worker in terms of Government notification provided for the same, petitioner's services falls short of 15 years, which is the qualifying period for entitlement of pension. In this view of the matter, petitioner has been denied pensionary benefits. It is aggrieved by denial of such benefit the present writ petition.
5. Submission of Sri Dayananda, learned Counsel for the petitioner is that the petitioner's services which were earlier utilized as a daily wage worker came to be regularized with effect from 1-1-1990 in terms of the Government order dated 6th August, 1990 and for the purpose of regularizing the services of the petitioner a supernumerary post had been created; that the petitioner worked, on a regular basis in this post and it is only to relieve the petitioner from the supernumerary post, he had been sent to Zilla Panchayat, Chickmagalur and asked to work against an existing permanent vacancy and only because of this development over which the petitioner had no control. It cannot be said that the earlier services with effect from 1-1-1990 was neither regular nor one eligible to be accounted for qualifying service for the purpose of granting pension. Learned Counsel submits that therefore the petitioner is entitled to seek suitable directions to the respondents to grant pension to the petitioner.
6. Smt. Sathya Prabha, colleague of Sri Ashok N. Nayak, learned Counsel for the respondents submits that the petitioner's services prior to 1998 cannot be counted for pensionary benefits as the very order of appointment/transfer appointing the petitioner as against a permanent vacancy, itself recites that the period subsequent to this will be accounted for all purposes including the pension benefits.
7. It is therefore submitted that the action taken by the respondent is justified as the order is with effect from 1-1-1998 and does not speak anything about the earlier services particularly while the petitioner was holding the post of Junior Inspector (Works) and as the petitioner was holding a supernumerary post, the period cannot be taken for the purpose of qualifying service.
8. While it is true that the order dated 1-1-1998 may speak of the consequences of the petitioner's appointment against a permanent vacancy at Chickmagalur, Zilla Panchayat, it cannot be one to regularize/control the post the petitioner held earlier which is governed by an earlier notification dated 6th August, 1990 issued by the Government and being for the purpose of regularizing the services of a daily wage worker following the directions issued by the Supreme Court in the case of Hubli-Dharwad Municipal Corporation. The services of the petitioner for all purposes should be taken as on a regular basis with effect from 1-1-1990 and there is no question of not considering the services of the petitioner from 1-1-1990 upto 1-1-1998 as a period not qualifying for grant of pension to the petitioner. Petitioner if is entitled for pension, by completing the qualifying period in service i.e., 15 years by adding the period from 1-1-1990 upto 1-1-1998 he cannot be denied pension. The question of treating the period 1-1-1990 to 1-1-1998 being not a regular appointment for the purpose of qualifying period for pension does not arise.
9. The legal position can only be that the period from 1-1-1990 to 1-1-1998 when the petitioner was holding the post on a regular basis, the post though had been created only for the purpose of accommodating the petitioner as a supernumerary is nevertheless eligible for including this period in determining the total length of qualifying service of the petitioner.
10. The rule does not in any way deny the petitioner the pensionary benefits, if by adding such service to the other qualifying period and on such computation if is found that the petitioner crosses 15 years of service then the petitioner is definitely entitled for pension. Respondent to work out the pensionary benefits of the petitioner on such basis and pass orders in the regard within a period of three months from the date of receipt of a copy of this order.
11. Writ petition is allowed. Impugned order is quashed with a consequential direction as above. Rule issued and made absolute.