IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1440 of 2010 1. LAKHISARAI MUNICIPALITY THROUGH ITS EXECUTIVE OFFICER 2. THE EXECUTIVE OFFICER, LAKHISARAI MUNICIPALITY, LAKHISARAI …………APPELLANTS/RESPONDENTS. Versus 1. BRAJESHWARI PRASAD S/O LATE ISHWARI PRASAD R/O NAYA TOLA, PURANI BAZAR, NEAR MAHILA VIDYALAYA, MANDIR SCHOOL, LAKHISARAI, DISTT.- LAKHISARAI. ………RESPONDENT/PETITIONER. 2.THE STATE OF BIHAR. RESPONDENT/RESPONDENT. For the appellant: Mr. Shivaji Pandy, Sr. Adv. and Mr. Avinash Kumar Adv. For the respondents:Mr. Chittaranjan Sinha, Sr. Adv. and Mr. Shobha Kant Jha, Adv. ----------- 6/ 27.01.2011 Having heard Mr. Shivaji Pandey, learned Sr. counsel appearing on behalf of appellant-Municipality as also Mr. Chittaranjan Sinha, learned Sr. counsel appearing on behalf of the respondent-writ petitioner, we are of the considered view that once the appellant-writ petitioner had retired from service on 28.02.2001 and had also drawn his final entitlement under the C.P.F. in the month of April 2001,there was no question of his being allowed to switch over his option from C.P.F to Family Pension Scheme. It is not in doubt that the benefit 2 of Family Pension Scheme for the Municipal employee came to be enforced with effect from 13.11.1987 when the rules were framed namely Bihar Municipal Officers and Servants Pension Rules 1987. Rule 4 thereof reading inter alia:- “(i) Municipal employee on roll on the date of confirmation of this rule and who had subscribed to the contributory provident fund under 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 their head of office 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. (ii) Municipal employees who retired before the date of effect of this rule and have received the part or whole amount of Provident Fund Contribution will not be eligible for the pension. 3 cleary lays down the time period in which such option was to be exercised by the Municipal employee for joining the Family Pension Scheme. Admittedly the respondent- writ petitioner had filed his application for the first time for being included in the Family Pension Scheme after almost 13 years of enforcement of the Rules. Mr. Sinha, however, has tried to support the order of the learned Single Judge by taking a plea that such Rules were never notified in the concerned Municipality as such the employee had no occasion to know about the enforcement of such Rules. In our considered opinion, that explanation in view of the clear aforementioned statutory provisions cannot be accepted. It is not in doubt that the respondent-writ petitioner had already accepted his full and final payment of his C.P.F in the month of April 2001 and thereafter he had deposited the same only in the year 2007, that too after filing of the writ petition. In that view of the matter, we would find it difficult to sustain the order of the learned Single Judge allowing 4 him the benefit of Family Pension Scheme. We are also not in position to appreciate the defence of the respondent-writ petitioner that such delay was caused in depositing the amount only because the calculation was not conveyed to him by the authorities of the corporation. As a matter of fact once the order of the Municipality itself was cancelled on 30.06.2001 and before that date the respondent-writ petitioner had already withdraw his full amount of C.P.F., the chapter should have come to an end on that very date. We are also not impressed with the remaining submission of Mr. Sinha that ultimately the Board of Municipal Commissioners in the year 2004 had passed an order for allowing such switch over. We have found from the Rules that there is no power of relaxation under which the Municipality could have shifted the date of operation of Rule 4 of the aforementioned Rules. Mr. Pandey, learned Sr. Counsel appearing on behalf of appellant has rightly relied on the judgment of the Apex Court in 5 the case of Union Of India and Others vs M.K. Sarkar, reported in (2010) 2 SCC 59, wherein it has been clearly laid down that when a scheme stipulates that benefits thereunder will be available only to those who exercise the option within a specified time, option should obviously be exercised within such time. Thus following the ratio of M.K. Sarkar case (supra) this Court would find that the respondent-writ petitioner would not be entitled for payment of pension under the Family Pension Scheme as prescribed under the Rules, especially when he had filed an option only after 13 years. That being so, we would set aside the order of the learned Single Judge but at the same time direct the appellant- Municipality to refund the amount of Rs. 17,251/- to the respondent-writ petitioner within a period of four weeks along with statutory interest from the date of its receipt in the Municipality till its actual payment. 6 In the result, the appeal is allowed and the writ petition is dismissed. Ranjan (T. Meena Kumari,J) (Mihir Kumar Jha,J)