IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6276 of 2009 UPENDRA SINGH SON OF LATE SARJU SINGH, RESIDENT OF MOHALLA NANAURA, P.S. NOORSARAI IN THE DISTRICT OF NALANDA. Versus THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPTT. GOVERNMENT OF BIHAR, PATNA. 2. THE DEPUTY SECRETARY-CUM-DIRECTOR, URBAN DEVELOPMENT, AND HOUSING DEPTT. GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3. THE PATNA MUNICIPAL CORPORATION, PATNA, THROUGH ITS COMMISSIONER, BUDH MARG, PATNA. 4. ADDITIONAL MUNICIPAL COMMISSIONER, PATNA MUNICIPAL CORPORATION, BUDH MARG, PATNA ----------- 11. 12.05.2010 Heard the learned counsel for the petitioner, State and the respondent – Corporation. The prayer is for quashing the decision as contained in Annexure-5 and 6 declining his claim for pension on his superannuation from the service of the respondent – Corporation while working on the post of Assistant on 01.03.2001. Petitioner received his post retiral dues including his part of contributions to Contributory Provident Funds (C.P.F), the employer’s contribution has not been received by the petitioner since claiming pension in terms of the provision of Patna Municipal Corporation Officers and Servants Pension Rules, 1986 (hereinafter referred to as the “pension rules”). Petitioner submits that in light of the office order as per Memo No. 2760 dated 27th of October 2005 vide 2 Annexure-2, the required option for receiving the pension was submitted on 29th of October 2005 and as such, petitioner is entitled to pension after quashing the aforesaid Annexures - 5 and 6. Learned counsel for the respondent – Corporation submits that in terms of the resolution no. 66 dated 28th of October 2004 (Annexure-2) taken in the meeting of the Corporation in which a request was made to the State Government for allowing the employees of the Corporation, who could not exercise their option for claiming the pension within the time prescribed under Rule 4(i) of the Pension Rules, be allowed one month time. Pending request the concerned employees were directed to submit their option for receiving the pension. The petitioner, accordingly, no doubt, submitted his option for receiving the pension but the State Government did not amend the said rule 4(i) of the pension rules extending the period prescribed under the aforesaid statutory rule for exercising the option vide letter no. 5677 dated 19.12.2007 (Annexure- 5). The request of the petitioner for pension accordingly could not be allowed. Petitioner was informed of the same as per letter no. 2607 dated 28.12.2007 rejecting his claim for pension vide Annexure- 6 It is further submitted 3 that the statement made in the writ petition to the effect that similarly situated persons have been allowed pension in absence of any details are vague and, as such, cannot be accepted. It is further submitted that the order of this court vide Annexure- 9 is on concession of the counsel contrary to Rule 4 (i) of the pension rules, as such, petitioner cannot taken any advantage of the same. Learned counsel appearing for the State submits that in terms of the aforesaid letter as contained in Annexure- 5, State Government communicated to the Corporation that the request of the Corporation for extending the time period for submitting the option which is virtually the request for amending the statutory rule prescribing time limit could not be allowed and as such corporation was informed accordingly. Considering the rival submissions of the parties and their respective pleadings, it would appear that the payment of pension to the employees of the Corporation is governed by the statutory provisions of Rules 4 (i) and (ii) Patna Municipal Corporation Officers and Servants Pension Rules, 1986. The Rules 4 (i) being relevant is quoted below :- 4 (i) “Corporation employee on roll on the date of confirmation of this rule and who had subscribed to the contributory provident fund under P.M.C. employee provident fund rules and want to be governed by these rules shall have the option to do so and such option shall be exercised in writing in the prescribed form (Annexure-1) and submitted to the chief Executive Officer within 90 days from the date of framing of this rule by the State Government. If such option in writing in prescribed form is not received within the period so fixed it will be deemed that they would retain the existing contributory provident fund.” It is not in dispute that in terms of the aforesaid rule, the employees who were desirous to receive pension were required to exercise their option for receiving the pension. The aforesaid rule came into force with effect from 20th of March 1987 and petitioner retired on 28.02.2001, petitioner admittedly, petitioner did not exercise his option till the date of his retirement. 5 The claim of the petitioner for pension on the basis of his option in terms of the order dated 22.10.2005 contained in Annexure-2 could not have been acted upon for the reason that the request of the Corporation to the State Government for allowing one month time to invite the option from the concerned employees who could not give the option till date in terms of the requirement for submitting the option as per rule 4 (i) of the aforesaid rules was not allowed by the Government. As such, Corporation could not have accepted the option contrary to the aforesaid pension rules 4 (i) in absence of its amendment for which the State Government is only competent. In the above circumstances, I do not find any error in the order declining the request for pension as contained in Annexures- 5 and 6. Accordingly, writ application being devoid on any merit the same is dismissed. Jagdish ( Shailesh Kumar Sinha, J)