1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT LRs. of Laxman Singh Versus The State of Rajasthan & Ors. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.637/2001 Dated of Judgment :: 29th September 2010 HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR.JUSTICE C.M.TOTLA Mr.Tribhuvan Gupta for the appellant. Mr.R.L.Jangid, Additional Advocate General .... BY THE COURT: (Per Dinesh Maheshwari,J.) This intra-court appeal is directed against the order dated 10.05.2001 whereby the learned Single Judge dismissed the writ petition (CWP No.2732/1988) filed by the petitioner-appellant (since deceased and represented by his legal representatives) seeking the relief of grant of pension. The petitioner-appellant claimed that he was appointed as Sanitary Inspector on 10.07.1941 by the erstwhile State of Mewar in the Udaipur Municipality; and after reorganisation of the States, his services came to be governed by the Rajasthan Service Rules of 1951 ('the Rules of 1951'). The petitioner stated the grievance that though retired long back, he was deprived of the benefit of pension and by the order dated 10.03.1976, he was informed of being not entitled to pension. The petitioner contended that he was entitled for pension 2 under the Rules of 1951 as well as under the earlier service regulations of the erstwhile Mewar State as per proviso to Rule 35 of the Rajasthan Municipal Service Rules, 1963 ('the Rules of 1963'). The petitioner also submitted that deduction of contribution to CPF from his salary from 01.12.1963 onwards was illegal and mistaken and in any case, cannot be taken into account so far his right of pensionary benefit was concerned. The petitioner also contended that from 10.07.1941 to 01.04.1960 he was in service of the respondents to qualify for pension as per the Rules of 1951. In their reply, while taking the objection of inordinate delay in filing the writ petition, the respondents contended that the petitioner retired in the month of September 1974 and was paid all the retiral benefits long back. This apart, the respondents contended, the petitioner was not engaged on any pensionary service and he was not a permanent employee as on 31.03.1943 so as to be entitled to pension as per Article 75 (9) of the Mewar Civil Service Regulations, 1942 ('the Regulations'). It was contended that the petitioner was appointed as Safai Inspector Halka No.2 in Udaipur Municipality; and the post of Safai Inpsector was an executive post and not a clerical post. The petitioner submitted a rejoinder refuting the assertions of the respondents and submitted that he was appointed as Sanitary Inspector with effect from 13.08.1941; and the appointment order made it clear that he was employed against permanent vacancy that occurred due to superannuation of another employee. The petitioner also 3 contended that as per Clause (9) of Regulation 75 of the Regulations, the municipal employees appointed after 31.03.1943 were disentitled from pensionary benefits; but the employees like him, who entered the service prior to 31.03.1943, were indeed entitled for pensionary benefits. In the earlier round of proceedings, the learned Single Judge of this Court dismissed the writ petition by the order dated 19.08.1997 after finding the same to be a belated one and suffering from gross delay and laches. However, when the matter was taken in appeal by the petitioner-appellant (SAW No.330/1998), the Division Bench of this Court did not agree with the learned Single Judge for dismissal of the writ petition only on the ground of delay and laches; and observed that the matter ought to have been considered on merits and if the petitioner was found entitled for pension, he should have been given the benefit at least from the date of filing of the writ petition. Hence, by its order dated 04.09.2000, the Division Bench remanded the matter; and, while noticing that the petitioner was already 81 years in age, observed that the matter was required to be decided expeditiously. After remand, the learned Single Judge considered the writ petition in the impugned order dated 10.05.2001. The learned Single Judge found the petitioner not entitled for any relief particularly for want of necessary proof that pension was payable to him. The learned Single Judge proceeded to dismiss the writ petition while observing,- “The petitioner claims pensionary benefits on the ground that he was a permanent employee of the earlier erstwhile State. There is nothing on record to prove that the petitioner was appointed permanently 4 on a permanent vacancy, as several facts have been averred by the petitioner are disputed. There is no proof on record that the petitioner is entitled to pension. The petitioner has already received appropriate money which was paid to him on retirement towards provident fund. There is no proof on record to show that pension is payable to the persons like petitioner. Reliance placed on document directing payment of pension to 10 employees is useless for the reason that the petitioner is not proved to be a permanent employee. In the face of this disputed questions of fact and a clear cut denial by the respondents of the claim of the petitioner and statement by the respondents that the petitioner is not eligible to pensionary benefits under any rules, therefore, disentitles the petitioner for any relief. The petition fails and is dismissed.” As noticed, the petitioner-appellant preferred this appeal against the aforesaid order dated 10.05.2001; however, during pendency of this appeal, the petitioner-appellant expired and his legal representatives have been substituted as appellants. The learned counsel for the appellants strenuously contended that there had been decisions rendered by this Court in relation to other employees of other district of erstwhile State/Municipalities for grant of pensionary benefits with further direction that the benefit of provident fund if taken, was to be adjusted towards the arrears of total pension. Learned counsel contended that the petitioner's case stands rather on better footing as he was in pensionable service in Mewar Government and his order of appointment did not carry any stipulation about his being a temporary employee. The learned counsel also referred to the order dated 30.05.1943 whereby the petitioner was transferred as Secretary, Municipal Board, Bhilwara and then also to the order dated 28.09.1951 whereby he was transferred as Secretary, Municipal Board, Chittorgarh. Learned counsel 5 submitted that these and other orders make it clear that the petitioner was not a temporary employee and denial of pension to the petitioner had been entirely illegal. Learned counsel has referred to and relied upon the decisions in Rajasthan Nagar Palika Seva Nirwat Karmchari Sangh Vs. The State of Rajasthan & Ors.: 1991 (2) WLN 562; The State of Rajasthan Vs. Retired Contributory Provident Fund Holder Association, Jodhpur: 1987 RLW 112; Rajasthan Pensioners Samaj Vs. State of Rajasthan: 1989 (1) RLW 347; Brij Bhooshan Sharma & Ors. Vs. State of Rajasthan & Ors.: 1997 (2) WLC (Raj.) 140; Bhagwani Devi Vs. State of Rajasthan & Ors.: 1997 (3) WLC (Raj.) 511; Bhagwan Sahay Pareek Vs. State of Rajasthan & Ors.: 1997 (3) WLC (Raj.) 370. The learned Additional Advocate General has supported the order impugned and contended that by the very nature of employment, the petitioner was not on pensionable service; and having been paid all other retiral benefits including PF, was not entitled to any other relief. Regulation 75 (9) as referred by the petitioner-appellant in his representations has been quoted by the respondents in their reply and is reproduced hereunder for ready reference:- “The following Municipal Officers have hitherto been treated as Government servants as the distinction between Government and Municipal Service was not clearly drawn in the past. They will be admitted to pension but not their successors. The President and the clerical staff in permanent employment of the Udaipur and Bhilwara Municipalities on 31st March, 1943”. The respondents have stated in their reply that the petitioner was not appointed to the clerical post as on 31.03.1943 and hence was not treated as government servant 6 and was not entitled to pensionary benefits. Though the respondents stated so and the learned Single Judge accepted such submissions with the observations that the petitioner failed to show his eligibility to the pensionary benefits under the rules but then, the fact of the matter remains that the petitioner was transferred from the post of Inspector in Municipal Board, Udaipur to the post of Secretary in Municipal Board, Bhilwara by the order dated 30.05.1943. As to what had been the clerical jobs in the erstwhile municipalities has not been clarified by the respondents; and it is not borne out on record as to what would be the effect of the petitioner having been appointed against a post after superannuation of another employee; and as to how he was transferred to the post of Secretary of another Municipal Board? Mere granting of the amount under CPF may also not be decisive of the matter as it is given out that such CPF has been paid from the year 1960 until the date of superannuation. As to what treatment has been given to his service from the year 1941 to 1960 is not borne out on record. Having regard to the totality of circumstances, we are less inclined to agree with the learned Single Judge that merely for there being some disputed questions of fact and for a denial by the respondents of the pensionary claim of the petitioner that the writ petition was liable to be dismissed in toto. We are clearly of opinion that the petitioner made out a case of the respondents having acted irrationally and superficially and for issuance of a direction to the respondents to reconsider his case in accordance with law. 7 Though the present one is an old matter and in fact the petitioner-appellant claiming pensionary benefits has since expired but having regard to the overall circumstances, we are of the view that interest of justice shall be served if while allowing the appeal and setting aside the order impugned, the writ petition is partly allowed and the respondents are directed to take a considered decision in the matter. Accordingly and as a result of the aforesaid, this appeal is allowed to the extent indicated above; the impugned order dated 10.05.2001 is set aside; the writ petition is partly allowed and the respondents are directed to reconsider the claim of the petitioner for grant of pensionary benefits after examining the record and after hearing the present appellants, if they so desire, while keeping in view the law declared by this Court in the decisions referred supra. For this purpose, the appellants may be allowed to file a fresh representation if so advised. The appellants are directed to appear before the Secretary, Local Self Department, Government of Rajasthan, Jaipur in the first place on 29.10.2010 who shall take steps for decision afresh in the matter in accordance with law keeping in view the observations foregoing. No costs. MK (C.M.TOTLA),J. (DINESH MAHESHWARI),J.