1 IN THE HIGH COURT FOR JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SMT.BISMILLAH V/S RSEB & ORS S.B.CIVIL WRIT PETITION NO.905/1993 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. Date of Judgment : 3rd July, 2006 PRESENT HON'BLE SHRI N.P.GUPTA, J. Mr. RK SONI, for the petitioner Mr. RAVI BHANSALI, for the respondent Mr. BL BHATI, ADDL. GOVT. ADVOCATE. BY THE COURT: The petitioner by this writ, claims a direction to the respondents, to grant pension to the husband of the petitioner, from the date of his retirement, and to pay all arrears thereof, and has claimed family pension, from the date of death of her husband, in the alternative, has claimed the grant of ex-gratia payment, as per the judgment of this Court, in 1992(1) WLN 166. The case of the petitioner is; that her husband, deceased Farid Khan, entered into service of Electricity Department of erstwhile Jodhpur State on 17.10.1946, and was absorbed in regular services of RSEB, consequent upon integration of the State, and retired from RSEB as Fireman, 2 on 14.11.1973. He was said to be holding CPF/Account No.W/630, and that, no payment of CPF was made during his lifetime, who expired on 13.10.1979, and payment was made to the petitioner on 13.2.91. It is then alleged, that after retirement, and before death of the petitioner's husband, Finance Department issued Memorandum dt. 31.1.1977, granting pension, and family pension, to the Work Charged C.P.F. Account Holders, and asking them to opt for the same, and that the petitioner's husband duly opted for the same on 30.4.1977. Copy of the option has been filed as Annexure-1. It is then alleged, that thereafter the State Government also issued Memorandum dt. 17.10.1987, asking the C.P.F. Account Holders to opt for the pension. It is then alleged, that in the judgment of this Court, in R.S.E.B. Retired Employees' Association Vs. R.S.E.B. & Ors., reported in 1992 WLN-166, it has been held that the same treatment should be given to employees absorbed by the Electricity Board, otherwise it will be violation of Article 14, and the petitioner has claimed this judgment to be applicable on her on all fours. It is then alleged, that unfortunately, as the petitioner's husband was not alive on 17.10.1987, the date of notification, in view of the judgment in R.S.E.B. Retired Employees Association's case, which was rendered following the judgment of Hon'ble the Supreme Court, in State of Rajasthan Vs. Rajasthan Pensioners Samaj, reported in 1991 Lab. I.C.-1651 =AIR 1991 SC-1743, the widows of such C.P.F. Account holders, who had 3 expired before 17.10.1987, instead of family pension will be entitled to get Ex-gratia payment of Rs. 150/- per month, instead of family pension, in addition to admissible dearness allowance. It is with these averments, that the above reliefs have been claimed. Reply has been filed on behalf of the respondents no. 1 and 3, being the Electricity Board on 6.8.1993, wherein it was denied that the petitioner's husband opted for pension, rather all amount of C.P.F. was paid to the petitioner, which would have been refused by the petitioner, had the deceased opted for pension. It was also contended, that the judgment in 1992 WLN-166 does not help the petitioner, as the petitioner had settled all C.P.F. amount, and there was no scheme of pension benefits for the employees of the Board, at that time. Regarding the judgment of Hon'ble the Supreme Court also, it was submitted that the petitioner is not entitled to any advantage on that basis. Then, a rejoinder was filed by the petitioner; submitting rejoinder to the above reply, it has been contended, that since the deceased was neither paid pension nor provident fund, during life time, the petitioner, in order to survive, had to accept the P.F., but then, this fact cannot falsify the document of option Annexure-1, which bears the signature of the then employee of the 4 R.S.E.B. as having received the same, and for this reason nothing has been said in this reply, in that regard. Thus, the same should be treated to have been admitted by the respondents. It was pleaded that Annexure-1 was submitted in pursuance of the Notification/Memorandum dated 31.1.1977, and that the State of Rajasthan by another memorandum of even number dated 10.3.1977, added para-9 to the Memorandum dt. 31.1.1977. According to which, the work charged employees, who were absorbed on regular posts, but died before exercising option for pension, under these orders, shall be deemed to have opted for pension under this order, unless the members of family of such deceased, specifically make a request, that they may be paid Contributory Provident Fund benefit. It was also directed, that the Head of Office should, before preparation of pension papers, invariably ascertain from the members of the family of the deceased, entitled to receive the retirement benefits, whether he/she would like to receive Contributory Provident Fund benefits or not. By reproducing the above memorandum dt. 10.3.1977, it is contended, that the petitioner cannot be denied benefit of option, already exercised by her husband. Then, giving rejoinder to para-4 of the reply, it was pleaded, that the petitioner's husband was employee of erstwhile Jodhpur State's Electrical and Mechanical Department, which merged into the Electrical and Mechanical Department of the State, and thus, the deceased was the employee of State of Rajasthan, as held in the 5 judgment of this Court, in RSEB Retired Employees Association Vs. RSEB reported in 1992(1) WLN-166, which is fully applicable to the petitioner. Later on a reply has been filed on behalf of the respondent no. 5, the Pension Department also, wherein issuance of memorandum dt. 31.1.1977 was not disputed, and replying para-5, it was pleaded that the petitioner has been sanctioned grant of ex-gratia payment in accordance with the judgment of Hon'ble the Supreme Court, in Rajasthan Pensioners' Samaj’s case. Yet another reply has been filed on behalf of the respondent no.4, again, being the successor company of the Electricity Board, pleading inter alia, that at the time of death of Farid Khan, pension scheme was not in existence in Electricity Board, and only C.P.F. scheme was there, whereunder deductions were made, and amounts have been paid to the petitioner. Regarding option for pension, it was pleaded, that in 1977, since the petitioner's husband was member of Electricity Board, the above option given by the Finance Department, was neither applicable on the employees of the Board, nor could it have been exercised by them, and that, the fact remains, that no option, if at all has been submitted by late Shri Farid Khan, was accepted by the competent authority, and the petitioner's husband continued to be C.P.F. subscriber. Then, it was pleaded, that as per 6 the memorandum dt. 17.10.1987, petitioner has been sanctioned ex-gratia benefit, along with admissible dearness allowance. It was pleaded, that since on 17.10.1987, the petitioner's husband was not alive, when the option for pension was given by the State Government to the ex-employees of the Jodhpur State C.P.F. Holders, the petitioner cannot claim benefit of pension. Arguing the writ petition, submissions were made by the learned counsel for the petitioner, far beyond the pleading in the writ petition. A confusion was sought to be created, in the manner, that by virtue of memorandum dt. 31.1.1977, the petitioner's husband (an employee of the Electricity Board) was also entitled to pension, and then, referring to judgment of this Court, in Chiranjilal Avasthi Vs. State, reported in WLR 1994 Raj.-745, it was contended, that even if the option was not in prescribed form, it was curable irregularity. Then, the judgment of this Court, in Smt. Chhoti Devi Vs. State of Rajasthan, reported in 2005 (3) CDR 1838(Raj.) was cited wherein it was held, that even if the option was not accepted, having been submitted by the deceased, which was submitted on 10.11.1987, the petitioner therein was held entitled to pension, finding, that it is irrelevant, as to whether the same had been accepted by the concerned authority in time, or not. Then, on the basis of judgment of this Court, in Retired Contributory Provident Fund Holders Association Vs. State 7 of Rajasthan, reported in 1986 RLW-42, as affirmed by the D.B., in the State of Rajasthan Vs. R.C.P. Fund Holders Association, reported in 1987(1) RLR-353, it was contended that since the various cut off dates had been struck down, and since the petitioner's services were absorbed in the Board, w.e.f. 25.10.1972, till then, he was deemed to be employee of the State Government, and therefore, he is entitled to the benefit of Memorandum dt. 31.1.1977. On the other hand, learned counsel for the respondent, Mr. Bhansali submitted, that the petitioner is not clear, as to whether she wants to claim pension of her husband as an employee of the State, or as an employee of the Board. It was also contended, that the Memorandum dt. 31.1.1977 is issued by the State Government, and not by the Electricity Board, and since there is nothing in terms of the Memorandum dt. 31.1.1977, that it would cover the employees of the Electricity Board also, thereunder the petitioner is not entitled to any benefit of pension. The other submission made was, that in any case, the memorandum dt. 31.1.1977 shows, that it applies to only work charged employees of the State Government, while the petitioner was a regular employee of the Electricity Board, and therefore, he cannot be said to be entitled to claim benefit, as work charged employee. Then, relying upon the judgment of Hon'ble the Supreme Court, in Krishena Kumar Vs. Union of India, reported in AIR 1990 SC-1782, it was contended, that 8 since the petitioner had retired as a C.P.F. subscriber, and since after his retirement, till his death, the benefit of pension, was not given by the Board, entitling the retired employees to opt to switch over to pension, the petitioner cannot claim any benefit of pension. Regarding Annexure-1, it was submitted, that there is nothing to show, that it was ever submitted with the authorities, apart from the fact, that even if it was submitted, that is of no consequence, as it was neither contemplated, nor permissible, nor was it ever accepted, and in accordance with the memorandum dt. 17.10.1987, the petitioner is being paid the ex-gratia payment, as directed by Hon'ble the Supreme Court, in Rajasthan Pensioners' Samaj’s Case. Thus, taken from any stand point, the petitioner is not entitled to any reliefs in the writ petition. However, it was submitted, that the ex-gratia payment, sanctioned to the petitioner, in accordance with the memorandum dt. 17.10.1987, shall be continued to be paid. I have considered the submissions, and have gone through the pleadings, the two memorandums, and various judgments, cited at the bar. Before proceeding further I may gainfully reproduce the memorandums dt. 31.1.1977 and 17.10.1987 which read as under:- 9 “FINANCE (Gr.2) DEPARTMENT MEMORANDUM Jaipur, January 31, 1977. Sub:- Counting of work-charged service for pension on absorption/appointment of work-charged employees on regular post under Government. G.S.R.112.- Under the existing provisions contained in the Rajasthan Service Rules the service rendered by a Government servant as work-charged employee before his appointment to a regular post does not count as qualifying service for pension. 2. Certain work-charged employees in Public Works Department (including Gardens), Public Health Engineering and Irrigation Department etc. are absorbed/appointed to regular posts/under Government in accordance with the orders issued by the Administrative Department of Government from time to time. The question regarding grant of pensionary benefits and counting of service rendered by such Government servants as work-charged employee prior to appointment to regular post for the purpose of pension under Rajasthan Service Rules has been under consideration of the Government. 3. The Governor is now pleased to order that the work-charged employees who are absorbed/appointed to regular post by conversion of work charges post into regular post under Government from time to time may be allowed to exercise option to elect either to continue to contribute towards Contributory Provident Fund or to opt for pensionary benefits under Rajasthan Service Rules. On their electing to opt for pension rules the period of service rendered by them as work-charged employees before appointment/absorption on regular post shall qualify for pension for the period during which they subscribed to the Contributory Provident Fund, irrespective of their date of absorption in Government service subject to the conditions laid down in para 4 below. 4. In the case of a Government servant who opts for pension under the Rajasthan Service Rules the following procedure shall be followed;- (i)The amount of subscriptions together with interest thereon standing to the credit of such Government servant in his Contributory Provident Fund on the date of option shall be transferred to his credit in the General Provident Fund. (ii)The amount of contribution by the State Government 10 together with interest thereon standing to his credit in the fund on the above date shall be credited to the General Revenues. (iii)The employee shall, in exchange, be entitled to count towards pension the service rendered by him as a work-charged employee prior to such date, as if such service has been rendered in a pensionable establishment under the Government provided that the benefit of pensionable service shall accrue only in respect of the period or periods of service rendered as a work-charged employee during which he subscribed to the Contributory Provident Fund. 5. The option has to be exercised in writing within a period of three months from the date of publication of these orders in the official gazette in the form appended to this Memorandum. Option once exercised shall be final. Those who do not exercise option within the aforesaid time limit shall be deemed to have retained the Contributory Provident Fund benefits. It should be noted that it is not sufficient for a Government servant to exercise option within the specified time but also to ensure that it reaches the prescribed authority within the time and that he obtains acknowledgement thereof. The option given by the Government servant may be pasted in the service book and a true copy of it be placed in his personal file. The option shall be communicated to the Head of Office. The option when received from a Government servant shall be countersigned by the authority which receives it. 6. Government servants, who have retired between the date of absorption/appointment and the issue of these orders and received their retirement benefits as admissible under the Contributory Provident Fund Rules, shall also be entitled to exercise option for pension and their retirement benefits already paid to them shall be adjusted against the Death-cum-Retirement Gratuity and pension admissible under the Rajasthan Service Rules; and they shall not be asked to refund the retirement benefits already received by them alongwith interest thereon for the intervening period i.e. for the period from the date of receipt of retirement benefits under Contributory Provident Fund Scheme and issue of pension under this order. 7. In the case of Government servants who were required to contribute under contributory Provident Fund Rules as applicable to them prior to their absorption but who did not contribute during any period or spell after coming into force of the respective relevant Work-Charged Employees Contributory Provident Fund Rules for one reason or another, they may be allowed to contribute for that period so that any intervening period may also be counted for pension. 11 8. Government servants who have already exercised option in accordance with the orders issued by the Administrative Department from time to time to retain Contributory Provident Fund as their retirement benefits shall also be entitled to exercise fresh option under these orders in the form appended to this Memorandum. FORM OF OPTION In pursuance of Finance Department Memorandum No.F.1 (26) FD (Gr.2)/74, dated 31-1-1977 I -------------- son of Shri ------------ designation ------------and who is subscriber to the Contributory Provident Fund Account No.---------- under Work Charged Employees Contributory Provident Fund Scheme hereby opt for the pension rules contained in the Rajasthan Service Rules, including the New Family Pension Rules, as amended from time to time in lieu of the Work-Charged Employees Contributory Provident Fund benefits as now admissible. Witness: Singnature of Government Servant. Signature Date Date Name in Full Name in Full (in Block letters) (in Block letters) Designation Designation. Office Office ___________________________________________________________ Countersigned Signature with date (Head of office) ___________________________________________________________ Received the above declaration Station Signature Date (Head of office) ____________________________________________________________ [No.F.1(26)FD (Gr.2)/74] By Order of the Governor, M.S.Sadashivan, Financial Commissioner & Secretary to Government.” “GOVERNMENT OF RAJASTHAN Finance (Gr.2) Department MEMORANDUM No.F.1(35) FD (Gr.2)/87 Jaipur, dt.17.10.1987. 12 Sub : Grant of Option to the ex-employees who retired availing themselves of retirement benefits available under the Jodhpur Contributory Provident Fund Rules to come over to pensionery benefits under the Rajasthan-Service Rules, 1951. The under-signed is directed to say that consequent upon the Judgment of the Rajasthan High Court, the matter has been considered and the Governor is pleased to decide that the ex-employees of the Rajasthan State who retired after 1.4.1951 (the date on which the Rajasthan Service Rules 1951 came in to force) from a post under the Govt. availing themselves of retirement benefits available under the Jodhpur Contributory Provident Fund Rules and who had not opted for pension rules on affording chances from time to time after 1.4.1951 to opt for pension rules may be allowed an opportunity to exercise option for pension rules as existing in the Rajasthan Service Rules, 1951 on the date of their respective retirement. 2. The option has to be exercised in writing within a period of three months from the date of publication of this memorandum in the Rajasthan Rajpatra in the form appended to this memorandum. Option once exercised shall be final. Those who do not exercise option within the aforesaid time limit shall be deemed to have retained Contributory Provident Fund benefits already availed of by them. It should be noted that it shall not be sufficient for an ex- employee to exercise option within the specified time but also to ensure that it reaches the prescribed authority indicated below within the specified time and he obtains acknowledgment thereof. 3.(a) The option shall be communicated to:- (i)if he was a non-gazetted Government servant or a gazetted Government servant whose pay and allowances were drawn by the Head of office., to the head of office concerned. (ii)If he was himself Head of office/Head of Deptt. to the Head of Deptt. Administrative Deptt. concerned respectively. (b) The option form when received shall be counter signed by the authority which receives it and shall be kept in a new file to be opened for the purpose of grant of pension/gratuity. Acknowledgment of the opt, form received may be issued from this file. 4. The entire period of service rendered by the ex- 13 employees referred to above, on their electing to be governed by pension rules shall qualify for the purpose of pension as already clarified vide Finance Deptt Memorandum No.F.1(52)FD(Gr.2)/76 dtd.22.11.76. The retirement benefits already paid to them shall be adjusted against retirement gratuity and pension admissible under the Rajasthan Service Rules. They would not be required to refund the retirement benefits received by them any interest on the amount of retirement benefits would be charged in respect of the intervening period. By Order of the Governor, Sd/- (Shiv Nath Singh) Dy.Secretary to the Government.” So also the memorandum dt. 10.3.1977 which reads as under:- “GOVERNMENT OF RAJASTHAN FINANCE (GR.2) DEPARTMENT MEMO No.F.1(26)FD(GR.2)/74 Dated Jaipur, the 10th March,1977 Sub : Counting of Work-charged service for Pension on absorption/appointment of work-charge Employees on regular post under the Government. The Governor are pleased to order that after existing para 8, the following para may be added in the Finance Department order of even number dated 31.1.1977 namely; “9. The work-charged employees who were absorbed on regular posts but died before exercising option for pension under these orders shall be deemed to have opted for pension under this order unless the members of family of such deceased specifically make a request that they may be paid contributory Provident Fund benefit due to deceased. The Head of Office should before preparation of pension papers invariably ascertain from the members of the family of the deceased entitled to receive the retirement benefits whether he/she would like to receive Contributory Provident Fund benefits or not. 14 By order of the Governor. Sd/- Financial Commissioner & Secy. to the Government.” Thus, a look at these memorandums show, that the memorandum dt. 31.1.1977 was issued by the State Government, in its Finance Department, for counting of work charged service for pension, on absorption /appointment of work charged employees, on regular post under Government, and thereby it was provided, that under the existing provisions, contained in the Rajasthan Service Rules, the service rendered by a Government servant, as work-charged employee, before his appointment to a regular post does not count as qualifying service for pension, and that, such a work charged employees are absorbed/appointed to regular posts under the Government in accordance with the orders issued by the Administrative Department of Government from time to time. The question regarding grant of pensionary benefits, and counting of service rendered by such Government servant as work charged employee prior to appointment to regular post, for the purpose of pension under Rajasthan Service Rules, has been under consideration of the Government, and therefore, the Government ordered, that the work charged employees, who are absorbed/appointed to regular post, by conversion of work charged post into regular post, under Government from time to time, may be 15 allowed to exercise option to elect, either to continue to contribute towards Contributory Provident Fund, or to opt for pensionary benefits under the R.S.R., and on their electing to opt for pension rules, the period of service rendered by them, as work charged employees, before appointment/absorption on regular post, shall qualify for pension, for the period during which they subscribed to the Contributory Provident Fund, irrespective to the date of absorption. Then, the procedure was prescribed to be followed, in case of opting for pension, and according to para-5, the option was to be exercised in writing, within a period of three months from the date of publication. Then, in para-6 it was stipulated, that the Government servants, who had retired between the date of absorption/appointment, and the issue of these orders, and received retirement benefits, shall also be entitled to exercise option for pension. Thus, this memorandum had the definite object, and applied to definite factual situation, and to definite category of persons. The object was to clear the confusion, about the computation of period of service rendered as work charged employees after being appointed/absorbed in regular posts of Government for the purpose of computing their qualifying service, so also for the purpose of pension, and then an option was decided to be made available to such employees, to opt for pension. Likewise with respect to such employees, as were covered by that memorandum, an option was also available, to those, who had retired 16 between the date of absorption/appointment, and the issue of order dt. 31.1.1977. Then, in continuation of this memorandum dt. 31.1.1977, the memorandum dt. 10.3.1977 was also issued, adding further para-9 to the memorandum, and providing for the right to exercise option, to be made available to the family members also, in the event of such employees having died before exercise of option for pension under this memorandum. Thus, these two memorandums are clear, and categoric, to be applicable to work charged employees only, who are absorbed or appointed on regular Government posts. It is not case of the petitioner, that the deceased was a work charged employee, having been absorbed or appointed on regular post in Government, rather he claims to be regular employee of the erstwhile Jodhpur State, and therefore, no benefit of these memorandums can be claimed by the petitioner. Since the whole thrust of the writ petition is,