IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.863 of 2007 1. ARA MUNICIPAL CORPORATION through its Commissioner, Vinod Kumar Jha son of Late Chandra Kant Jha, resident of Titra Ashanand, P.S Sakra District Muzaffarpur. 2. Vinod Kumar Jha son of Late Chandra Kant Jha, resident of Titra Ashanand, P.S Sakra District Muzaffarpur Versus (i) Sanchari Devi- widow (ii) Binod Kumar Ram- son (iii) Krishna Ram-son (iv) Guddu Ram-son (v) Dablu Ram-son Residents of Shivganj PS Town Ara District Bhojpur 2 The State of Bihar 3. The Secretary, Nagar Vikash Department, Govt. of Bihar, Patna 4. Chairman, Nagar Parishad, Ara ----------- With LPA No.914 of 2007 1. ARA MUNICIPAL CORPORATION through its Commissioner, Vinod Kumar Jha son of Late Chandra Kant Jha, resident of Titra Ashanand, P.S Sakra District Muzaffarpur Versus 1. RAMASHISH PRASAD son of late Bechan Prasad, resident of Balbatra PS Town Ara, District Bhojpur 2 The State of Bihar 3 The Secretary, Nagar Vikash Department, Govt. of Bihar, Patna 4 Chairman, Nagar Parishad, Ara ----------- For the appellants in both cases: Mr. Umakant Shukla, advocate Mr. Rajesh Ranjan No.1, advocate For the respondents: Mr. R. Sharan, advocate 9 04-03-2009 After hearing the parties, the delay of 123 days in preferring these appeals is condoned for the reasons mentioned in the limitation petitions. Heard learned counsel for the appellant, Ara Municipal Corporation as well as learned counsel for the respondents in both - 2 - these appeals which arise out of a common judgement and order dated 25-5-2007. By that judgement the writ petitions filed by the retired employees of Ara Municipal Corporation have been allowed with a direction to pay the pensionary dues of the writ petitioners along with entire arrears within 90 days, treating them to be members of the pension scheme in terms of Bihar Municipal Officers and Servants Pension Rules, 1987 (hereinafter referred to as the Rules). On behalf of the appellants it has been submitted that the Rules made u/s 353 of the Bihar & Orissa Municipal Act, 1922 provide that they shall come into effect from 1-4-1986. It has further been submitted that under Rule 4 all the Municipal employees on roll on the date of coming into effect of the Rules who had subscribed to the Contributory Provident Fund under Provident Fund rules may opt to be governed by these pension Rules by exercising option in writing in the prescribed form (annexure-1 to the Rules) and by submitting the same to the head of the office within 90 days from the date of framing of Rules by the State Government. It was emphasized that Rule 4 (i) further provides that if such option in writing in prescribed form is not received within the period so fixed, it will be deemed that concerned employee would retain the existing Contributory Provident Fund. Sub Rule 2 of Rule 4 further provides that Municipal employees who retired before the date of effect of Rules and have received the part or whole amount of Contributory Provident Fund contribution will not be entitled for the pension. From the judgment under appeal it was shown by learned - 3 - counsel for the appellant that the Municipality had made a submission in terms of Rule 4 that the writ petitioners had not submitted their option and hence, there was no question to grant them benefit under the Rules. Learned counsel for the respondents-retired employees has submitted that there is averment in paragraph 6 of the writ petition that several employees after their retirement waited for years but when they found that Municipality is neglecting to implement the statutory Rules they withdrew their Contributory Provident Fund. But there are several other retired employees who have not withdrawn their Contributory Provident Fund and opted for pension, the writ petitioner, Vishwanath Ram, being one of them. The aforesaid averment in paragraph 6 of CWJC no. 3441/2005 has been categorically refuted in paragraph 6 of the counter affidavit by a clear statement that writ petitioner, Vishwanath Ram, has never opted for the pension scheme in the prescribed form as provided under the Rules. In a supplementary affidavit the above writ petitioner gave a reply in paragraph 5 by stating that the Municipality has taken a vague objection that he had not opted in the prescribed form during his service. It was claimed that he has opted properly and the same should be on the record. However, no dates or even year of such option were mentioned either in the writ petitions or in the supplementary affidavit. In the supplementary affidavit there is further averment that the objection raised by the Municipality on the ground of lack of option is not sustainable because on one hand its case is that till the - 4 - writ petitioners retired the Municipality had not opted for the pension scheme and hence, on the other hand it cannot take the ground of lack of option to deny the benefit of pension scheme to the writ petitioners. In the judgement under appeal the learned Single Judge has not gone into facts to meet the objection of the Municipality that the writ petitioners had never exercised their option under Rule 4 of the Rules. Learned Single Judge has refused to accept the submission of the Municipality only on the ground that according to Municipality the decision to adopt the Rules was taken much later and the adoption was with effect from the year 2000 and hence, there was no occasion for the Municipal servants to indicate their option within 90 days from 1.4.1986 or within 90 days from the date of publication of the Rules in the gazette on 13-11-1987. It was further observed that the writ petitioners since their retirement in the year 1996/1999 till date have not accepted their Contributory Provident Fund amounts, therefore, it is evident that they always wished to be members of the pension scheme in terms of the Rules. On going through the various judgments of learned Single Judges relied upon by the parties which are available on the records of the case as part of supplementary affidavit or counter affidavit, this court finds that earlier judgments did not examine the legal position as to whether there was any scope under law for the Municipality to adopt or not to adopt the Rules on a later date. On going through the provisions of Section 353 of the Bihar and Orissa Municipal Act, 1922 We find that power of the State Government to make rules is subject - 5 - only to the condition of rules being made after previous publication and that they shall not take effect until have been published in the official Gazette . On that account the Rules, although as per rule 3 came into effect on 1-4-1986, in terms of the Act they could come into effect only on their publication in the Gazette, that is, on 13-11-1987. On going through the provisions under the Rules, particularly Rule 1 it is found that Rules are applicable to all permanent employees of the Municipality and the Notified Area Committees. Such provision is also in consonance with the powers of the State Government in Sub Section 2 of Section 353 which provides that any rule made by the State Government may be general for all Municipalities if no Municipality is exempted from its operation or may be special for the whole or any part of any one or more than one Municipality as the State Government directs. In absence of any enabling provision in the Act or even in the Rules, the Municipalities did not have any power to defer the implementation of the Rules, on the ground of adoption of Rules on a later date. In view of aforesaid discussions, the views taken in different judgments by learned Single Judges cannot be said to be in accordance with the provisions in the Bihar and Orissal Municipal Act and the Rules. In that view of the matter, the reasonings which weighed with the learned Single Judge for rejecting the submission of the Municipality based upon non exercise of option by the petitioners, cannot be accepted. The right of the petitioners to receive pension as - 6 - per the pension scheme under the Rules is dependant upon exercise of their option because on such option only the Municipality is required to create a pension fund in which contributions are required to be made by the Municipality as well as by the concerned employees. In view of such provisions in the Rules and particularly, provision under Rule 4, no employee of the Municipality can claim to have reverted to the pension scheme from the Contributory Provident Fund to which he was a member unless he can plead and prove that he opted for the pension scheme in accordance with Rule 4 of the Rules. On going through relevant facts and averments, as discussed earlier, We find that writ petitioners have failed to show that they exercised any option in prescribed form within 90 days or even soon thereafter, as required by Rule 4 of the Rules. In that view of the matter, the writ petitioners are not entitled to get any relief except to receive benefit of Contributory Provident Fund which they have not accepted as yet. In view of aforesaid discussion, the appeals are allowed and the writ petitions are dismissed but the Ara Municipality is directed to pay the proceeds of the Contributory Provident Fund to the writ petitioners without any delay along with permissible statutory interest. BKS/ (Shiva Kirti Singh,J.) (J. N. Singh, J.)