- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Smt. Mangi Devi vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.4753/2006 DATE OF ORDER : 30th July, 2008 P R E S E N T HON’BLE JUSTICE GOPAL KRISHAN VYAS Mr.N.K.Khandelwal, for the petitioner. Mr.Rameshwar Dave, Dy. Government Counsel. In this writ petition petitioner being widow of late Shri Tulsi Ram has prayed for quashing letter dated 18/2/2005 (Annex.7) issued by respondent no.2, whereby, she was held informed that she is not eligible for pension benefits and further prayed that respondents may be directed to grant pensionary benefits and also pay arrears from the date of eligibility with interest @ 12% p.a. - 2 - As per facts of the case, petitioner’s husband late Shri Tulsi Ram was working as Class IV employee in the PWD Department since 30/7/1971 and on the date of death i.e. 7/7/1984 he was working as Carpenter Gr.I under the control of Assistant Engineer Sub Division Ist, PWD, Jodhpur. The husband of petitioner was appointed on 30/7/71 and died while in service, as such he had completed 13 years of service, therefore, petitioner is entitled for family benefits and other pensionary benefits being wife of late Tulsi Ram. Petitioner filed an application for grant of family pension. The case of the family pension of petitioner was rejected by the respondents vide Annex.P/7 dated 18/2/2005 while observing that late Shri Tulsi Ram has not opted for pension benefits and the amount of CPF has been paid long back, therefore, there is no question of granting family pension to the petitioner. The petitioner has prayed that in accordance with Rule 22-A it was the duty of respondents to get option from the work charged employee for getting pension benefits, but petitioner’s husband was not provided said opportunity although Rule 22-A was inserted on 17/9/1980. Likewise, - 3 - while inviting attention towards Annex.9 dated 15/7/1994 issued by the Finance Department, Government of Rajasthan, it is submitted that the State Government took decision for granting opportunity to opt for pension but said opportunity was not afforded to the petitioner being a widow of deceased employee, therefore, denial of family pension and other pensionary benefits is totally illegal and communication dated 18/2/2005 deserves to be quashed. Learned counsel for the petitioner argued that petitioner’s husband was initially appointed in 1971 and he was declared regular vide order dated 18/6/1982 after completion of ten years of service w.e.f. 31/7/1981, therefore, petitioner’s husband was a regular employee of the respondent department and as per judgment of this Court in Sajjan Singh vs. State of Rajasthan & Ors. reported in 1991 (WLR) page 340 in which this Court has held that after declaration of an employee as regular or permanent, he becomes entitled to get all benefits which are available under RSR, therefore, denial of pensionary benefits to petitioner is contrary to law. It is further argued that according to Rule 22- A of the Rules of 1964, which was inserted for granting option - 4 - for pensionary benefits vide notification dated 17/9/1980, the husband of petitioner Late Shri Tulsi Ram became entitled to opt for pensionary benefits but said opportunity was not granted to him and unfortunately he died in 1984. While inviting attention towards Annex.9 it is contended that petitioner being widow of late Tulsi Ram claimed family pension but it was informed by the respondent department that her case will be considered in accordance with Annex.9 dated 15/7/1994 but ultimately her claim has been rejected on illegal grounds, therefore, petitioner is seeking aforesaid directions for grant of family pension. In reply to the writ petition, it is contended by the respondents that late Shri Tulsi Ram was a member of CPF Scheme and as such full and final payment of CPF was made to his dependent i.e. petitioner. It is also contended that the Assistant Director, State Insurance and G.P.F. has sent a communication Annex.R/1, whereby, it was informed that petitioner is not entitled for family pension as she has already been given benefit of CPF Scheme. In the said communication a reference is made to the order dated 13/7/1994 issued by - 5 - Finance Department that petitioner is not entitled for any family pension. Learned Government Counsel vehemently argued that in clause (4) of Government Order dated 13/7/1994 (Annex.R/2) it is specifically provided that this order shall apply to all such work charged employees who are in service of Government on the date of issuance of said order and past cases already decided otherwise in accordance with existing provisions of relevant time shall not be reopened. In this view of the matter it is contended that this writ petition may be dismissed. I have considered the rival submissions and perused the entire record of the case. First of all it not disputed that petitioner’s husband was a regular employee of respondent department and he died while in service. Meaning thereby, when late Shri Tulsi Ram was regular employee of the respondent department then obviously his legal heirs were to be given benefits available under RSR, 1951. In the judgment rendered in Sajan Singh’s case (supra) it has been held by coordinate bench of this Court that if a work charged employee is declared regular or permanent after completion of ten years of service then he is entitled for all benefits - 6 - available under the RSR. In this case also indisputably petitioner’s husband was declared regular in the year 1982 w.e.f. 31.7.1981 after completion of ten years of service, therefore, service benefits available under RSR were to be given to the petitioner. Despite above clear position of law, even under Rule 22-A it was provided that a work charged employee can opt for pensionary benefits and in Annex.R/2 dated 13/7/1994 in clause (4) it is specifically provided that those employees who died while in service, the application for grant of pension from the widow/legal heirs for grant of pension would be treated as option. Meaning thereby, Government has decided to grant pensionary benefits to work charged employees, so also in the event of their death, such benefits are made available to the widow/legal heirs of deceased work charged employees. This Court also in so many cases has decided the present controversy, which are as under:- 1. 2004 (3) CDR page 2503 (Kiran Devi vs. State of Rajasthan & Ors) 2. 2004 (3) CDR page 2367 (Gulabi Bai vs. Secretary, Govt. of Rajasthan, Department of Irrigation & Ors.) - 7 - 3. 1992 (1) WLC page 89 (Naurti Devi vs. State of Raj. & Ors.) 4. S.B.Civil Writ Petition NO. 1814/1998 decided on 25/10/2007 (Sugan Kanwar vs. State of Raj.) 5. S.B.Civil Writ Petition No.1484/2006 decided on 8/3/2007 (Mahendra Kaur vs. State of Raj. & Ors.) 6. S.B.Civil Writ Petition NO.5971/2006 decided on 30/5/2008 (Smt. Vidhya Devi vs. State of Raj. & Ors.) 7. WLR 1991 (S) Raj. 340 (Sujan Singh vs. State of Raj.& Ors.). Para nos. 2 and 3 of Sujan Singh's case are as follows:- “(2) Under Work Charge Rules 1964, r.3 provides that work-charge employee including regular technical staff of Water Work Department for the purpose of this rule shall be divided into the following three categories:- (i)Permanent status; (ii)Semi permanent status; (iii)Casual Those employees who have completed 10 years service have been given the status of a permanent employee. I fail to understand the difference between the regular employee and the permanent employee. Every permanent employee is a regular employee of the State and he is - 8 - entitled for the regular grade and all allowances admissible to other employees. This view has been approved by Hon'ble the Supreme Court also. The petitioner is entitled for the regular grade of the post of which he is holding and also allowance of the same grade which are permissible under the Rules to other regular employees from after the completion of 10 years' service. If there is no stigma or default against him. In the instant case the respondents have not come with the case that there is a stigma or default against him. (3) In the result, the writ petition is accepted, the petitioner shall be treated as a permanent status holder i.e a regular employee and the word permanent and regular should be equated for all purposes and the petitioner shall be given all benefits of a regular employee from the date on which he has completed 10 years' service and he shall be entitled for all types of allowances inclusive of house rent allowance and all Rajasthan Service Rules and C.C.A. Rules will be applicable to the petitioner.” The State Government has issued a notification on 13/7/1994 which is placed on record as Annex.R/2, whereby, Finance Department of Government of Rajasthan granted an - 9 - option for pension who have already retired without exercising option. In the notification dated 13/7/1994 (Annex.R/2) it is stated that those work charge employees appointed/absorbed on regular post on conversion of work charge post to regular post under the Government from time to time may be allowed to elect either to continue to contribute towards CPF or to opt for pensionary benefits under RSR. While considering the Finance Department Memorandum dated 31/1/1977, which was further amended vide Finance Department Memorandum dated 10/3/1977 and 24/4/1980 for work charge employees, the above decision was taken by the Finance Department. In para no.4 of the said notification, following decision was taken:- “4.These orders shall apply to such work-charged employees who are in the service of Government on the date of issue of this order. Past cases already decided otherwise than in accordance with the provisions of this order, shall not be re-opened. But in respect of pending cases of i. Those employees who have died, the application from the widow/legal heirs for grant of pension would be treated as option. - 10 - ii. Those employees who have already retired without exercising option may also exercise fresh option under these orders.” As per para 4 (ii) of the Notification it is specifically provided that those employees who have already retired without exercising option may also exercise fresh option under the Notification. Meaning thereby, option was given to those employees who have already retired without exercising option but at the same time in para 4 it is provided that past cases already decided otherwise than in accordance with provisions of this order shall not be reopened. In my opinion, the order of not reopening the cases already decided is discriminatory because right of fresh option has been given to retired employees, who retired without exercising option, therefore, same benefit is also required to be given to the petitioner, who is widow of late Tulsi Ram, who died while in service in the year 1984 without availing opportunity to exercise option after granting regular status on the post of Carpenter. In this view of the matter when petitioner filed an application for grant of pensionary benefits being widow of late Tulsi Ram then her case was to be considered for grant of - 11 - pension because as per reply of respondents it is no where stated that any option was given to late Shri Tulsi Ram to opt for pensionary benefits. Therefore, denial of pensionary benefits to petitioner is totally unfounded and discriminatory, hence violative of Article 14 of the Constitution of India. It is also required to be observed that the period during which CPF was not deducted is also required to be counted for the purpose of pensionary benefits because in case of Ismail Khan vs. State of Rajasthan reported in 1986 RLR 24 it has been held by this Court that entire service rendered by employee as work charged employee is to be counted for the purpose of grant of pension. Said adjudication is followed in various judgments of this Court, therefore, at the time of finalisation of pension case the entire service period of late Tulsi Rm including the period during which CPF amount was not deducted shall be considered for the purpose of granting pensionary benefits. In this view of the matter, petitioner is entitled for family pension and other pensionary benefits because her husband had completed ten years of service which is - 12 - minimum required service for grant of pension, therefore, denial of family pension to petitioner is totally illegal and unconstitutional. While following the law laid down in Sujjan Singh's case (supra) and Ismail Khan's case supra) and other judgments mentioned above, this writ petition is allowed. Order Annex.7 dated 18/2/2005 is hereby quashed and set aside and respondents are directed to allow family pension to petitioner and other retiral benefits as available within a period of three months from the receipt of certified copy of this order. Respondents are further directed to pay 6% simple interest on the amount of family pension from the date of entitlement of petitioner. It is also made clear that amount paid to petitioner under CPF Scheme shall be adjusted from the arrears of family pension and arrears shall be paid within stipulated time. No order as to costs. (GOPAL KRISHAN VYAS), J. pb