1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.1155/2005. : : Rajni Kant Sharma Vs. State of Rajasthan & Ors. : : Date of Order 27.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Suresh Kashyap for the petitioner. Mr.Neeraj Chandrana for Mr.Munindra Singh for the respondents No.2 & 3. Mr.S.S.Sharma, Govt.Counsel for the State. Reportable This writ petition has been filed by the petitioner aggrieved by action of the respondents in denying him benefit of pension from the date of his retirement. The petitioner was working with the respondents on the post of Conductor. He upon attaining the age of superannuation retired on 31.8.2004. Respondent-corporation introduced pension scheme for its employees in terms of RSRTC Pension Rules, 1989 and GPF Rules, 1989, which were notified vide communication dated 2.1.1990. The said notification required the employees to indicate their option for receiving pensionary benefits in lieu of Contributory Pension Fund. Clause (iii) of the notification provided that if no such option 2 is furnished within the stipulated time then, Pension Rules 1989 and GPF Rules, 1989 would apply to the employee and such employee shall be deemed to have automatically opted for pension and GPF under the said rules. The respondents issued a revised notification 15.6.1996 by which a last opportunity was provided for exercising such option to employees and 16.8.1996 was fixed as the last date for submitting such option. I have heard the learned counsel for the parties and perused the material on record. Shri Suresh Kashyap, learned counsel for the petitioner has submitted that in the first place, the petitioner by deeming clause referred to above, should be deemed to have opted in favour of receiving pensionary benefits and secondly, the petitioner actually submitted the option vide option form dated 21.7.1996, which is on record as Annexure-2. His option was duly forwarded by the Chief Manager of RSRTC Depot, Barmer the Corporation. Photo- stat copy of the relevant document, which is on record, indicates signature of not only the petitioner but also of the Chief Manager with his seal. The respondents have contested the writ petition and submitted that the petitioner did not timely submit the 3 option inasmuch as the option form said to have been submitted on 21.7.1996 was not traceable in their office because at the relevant time, due to heavy rainfall Barmer region witnessed unprecedent flood and the Office of RSRTC was over flooded. In this flood, entry register of the year 1996 of the office of Barmer Depot was destroyed. This fact was stated in the additional affidavit of the Officer-in-charge filed on behalf of RSRTC before this Court. I have given my anxious consideration to the rival submissions. I had the occasion to deal with a somewhat similar controversy in S.K.Khatri Vs. RSRTC & Ors. : SB Civil Writ Petition No.3644/2005 decided on 20.8.2008. Though that was a case in which the employee concerned was on deputation, but the effect and consequence of deeming clause referred to above was discussed in para No.4 and 5 of the judgment in the following terms :- “4. Having heard learned counsel for the parties and perused the material on record, I find that in a notification dated 2.1.1990 as also the amended notification dated 8.2.1992, though requirement of exercising option within 90 days and 60 days respectively, has been given but two 4 separate clauses i.e. clause (i) and (ii) in both the notifications deal with two different categories of employees, while clause (i) referrs to the employees who are in active service with the respondent-corporation whereas clause (ii) pertains to the employees who are on leave or on deputation or under suspension. Clause (i) provides that those who are on deputation/leave or under suspension on 2.1.1990, have to submit option within 90 days from the relevant date whereas clause (ii) of the notification dated 8.2.1992 provides that such an option shall be submitted within 60 days from the date of repatriation. The contention that this clause should be read in isolation, by ignoring other Clauses, cannot be accepted because for the employees who are in active service with the respondents, Clause (i) provides that they ought to submit their option within 90 days according to notification dated 2.1.1990 and within 60 days according to Clause (ii) of notification dated 8.2.1992. But, Clause (iii) is common in both the notifications, which provides that in the event of failure of an employee to submit option within the time prescribed, provisions of Pension Regulations of 1989 and GPF Rules, 1989 shall be deemed to have been applied to the employee and this clause does not make any exception for the employees who are on deputation. 5 5. The resultant effect would be that those in active service of the respondents, upon failure to exercise the option within the time prescribed, are deemed to have opted for pension. A different interpretation cannot be taken for such of the employees who are on deputation and fail to exercise the option within the time so prescribed. Merely because petitioner after resuming duties on his repatriation has submitted the application, would not make the aforesaid clause (iii) inapplicable to his case. Such a facility has been given to the employees only in order to ensure that if they consider that benefits payable to them under the CPF scheme are more favourable, they can immediately after resuming their duties in the Corporation within the time prescribed opt for that but mere non- exercise of such option or delayed exercise of option, cannot defeat their right enshrined in clause (iii). Evidently, consequence of failure of the petitioner to submit option in the first instance when the respondents issued notification dated 2.1.1990 would be that he shall be deemed to have opted in favour of the pension. There was then no necessity for the respondents to have issued any further notification again inviting options. If the respondents did do by the subsequent notification, that would be only a 6 superfluous exercise as far as those who did not submit option within prescribed time limit because consequence of failure of the petitioner or for that matter of any other employee, to submit option would be that he shall be deemed to have opted in favour of receiving pension and such option would come into effect soon upon expiry of the period of 90 days within which such option was required to be exercised as per notification dated 2.1.1990. Even otherwise, the respondents on their own showing by fresh notification dated 15.6.1996 again invited options upto 16.8.1996 and the petitioner submitted such option on 16.8.1996 as is evident from the photo-stat copy of the option form, which contains the signature of the petitioner and also of the Chief Manager with his seal. Requirement of submitting written option, if at all there was any, thus stood fulfilled. The petitioner cannot be held responsible for the loss or destruction of records in the Office of respondents due to natural calamity or otherwise. The respondents for the purpose of the notification dated 16.8.1996 are, therefore, bound to act upon the option form submitted by the petitioner. In the result, this writ petition deserves to be allowed on acceptance of either of the above arguments and 7 is accordingly allowed. The petitioner is held entitled to pensionary benefits in accordance with the Rules of RSRTC Pension Rules, 1989 and GPF Rules, 1989. The respondents are directed to make compliance of this judgment within a period of three months from the date its copy is produced before them. In doing so, however, they would be entitled to recover the outstanding amount, if any, advanced as loan to the petitioner, as informed by the learned counsel for the respondents to the Court. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.20.