1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 571 of 2001 SMT. BHANWAR KANWAR V/S STATE & ANR Mr. NARPAT SINGH RAJPUROHIT for Mr. SAJJAN SINGH, for the appellant / petitioner Mr. KR SARAN, for the respondent Date of Order : 3.11.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. ORDER ----- This appeal seeks to challenge the judgment of the learned Single Judge dated. 23.2.2001, dismissing the writ petition, on the ground, that petitioner's husband, who died on 8.2.1980, had not given option for pensionary benefit, as prescribed by Rule 22A, and therefore, the claim could not be granted. Thus, it was found that denial of pensionary benefit to the petitioner cannot be said to be incorrect or illegal or unjustified. The skeleton facts are, that the husband of the petitioner late Shri Prem Singh was appointed as a driver on 3.11.1969 as a work charged employee in the pay scale of Rs. 120/- with D.A. etc. and allowances. He was conferred the status of semi permanent w.e.f.3.11.1971 vide order dt. 18.1.1972. According to the petitioner the deceased was regularly discharging the duties since the date of initial appointment. However, while in service he died on 8.4.1980. It is also mentioned, that in ordinary course of nature he 2 would have retired on completion of 58 years, on 14.7.1989. It is pleaded that there was no disciplinary proceedings initiated or pending, nor any punishment imposed, nor even any suspension order passed. With this, it is then pleaded that he was later on fixed in the pay scale of 355-570 vide order dt. 7.5.1977, and was given annual grade increments subsequently. Then, on completion of 10 years of service, he became entitled to be conferred status of permanent employee, which was accordingly conferred vide order dt. 21.2.1998 w.e.f. 23.11.1979. This order was subsequently revised, and the permanent status was conferred w.e.f. 24.12.1979, vide order dt. 27.6.1998 Annexure-1. Accordingly revised fixation was made, and his pay was fixed at Rs. 530/- per month, with other benefits. The case of the petitioner then is, that it was on account of delayed passing of the order of conferment of status of permanent employee, that the matter of pensionary benefits also got delayed, as the pensionary benefits were not available to work charged employees earlier, till conferment of status of permanent employee. However, even after such conferment, the pensionary benefits, admissible to the petitioner (family pension) has not been given, therefore, writ petition has been filed, praying for being extended, and paid pensionary benefits, and other benefits admissible to the petitioner w.e.f. 8.4.1980, along with interest. Reply was filed, wherein the period of service rendered by the deceased was not disputed. The fixation of pay was also not disputed, conferment of status of permanent employee was also not disputed. However, it was 3 contended that the petitioner cannot claim any relief in the writ petition, as according to the respondent, the deceased was given status of permanent employee, and not of regular employee. It was also contended, that being work charged employee, the deceased was not entitled to pensionary benefits. However, Rule 22-A was inserted much after his death w.e.f. 17.9.1980, therefore, the petitioner cannot claim any pensionary benefits. We have heard learned counsel for the parties, and have considered the pleadings, and have gone through the impugned order of the learned Single Judge. In our view, the view taken by the learned Single Judge in the circumstances amounts to insisting on an impossibility, for the simple reason, that when Rule 22A was inserted only w.e.f. 17.9.1980, while the employee had expired on 8.4.1980, he possibly could not give his option. That apart, what is significant to note is, that the deceased was conferred the status of permanent employee, despite having completed 10 years of service, as late as in the year 1998 only. Then, there had been a spate of litigation in this Court, on the aspect of exercise of option, and deemed exercise of option, and this Court has consistently taken the view, that in such circumstances, where the employee could not exercise option to switch over from contributory provident fund to pension, the employee should be deemed to have opted in favour of pensionary benefits. That being the position in our view, with 4 insertion of Rule 22A, and with passing of the order dt. 29.6.1998, conferring the status of permanent employee on the deceased w.e.f. 24.12.1979, the pensionary benefits, flowing to the deceased, or his family, could not be denied, on the ground of his having not exercised the option. The benefits that might have been paid to the petitioner, consequent upon the death, being the amount representing the provident fund, could very well be recovered along with permissible rate of interest, but then pension/ family pension, as would be admissible under the Rules has to be paid. Regarding entitlement of pension, we may refer to Rule 268 B and 268 C of the R.S.R., and other connected provisions in that regard. The net result of the aforesaid discussion is, that the appeal is allowed. The impugned order is set aside, and in turn, the writ petition is also allowed. The respondents are directed to compute, calculate, and pay, the admissible pension (family pension) to the petitioner, in accordance with the provisions of Rule 268 B and 268 C onwards, and from out of amount of arrears of pension, that may become payable to the petitioner, whatever amounts may have been paid to the petitioner, by way of contributory provident fund benefits, may be recovered from the petitioner, along with admissible rate of interest. However, the amount of arrears of pension shall also be payable along with interest, at the same rate, and interest shall be calculated in the same manner, i.e. whether compound, or simple, in which manner the interest is 5 calculated by the State on the amount of provident fund, which may be sought to be recovered from the petitioner. The above exercise shall be undertaken, and is required to be undertaken, within a period of three months, and payment is required to be made. However, at the request of learned counsel for the State, extra indulgence is granted, and six months time from today is granted for doing the needful. The parties shall bear their own costs of this appeal. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/