1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.9742/2007. Smt. Reshma Devi Vs. State of Rajasthan & Ors. WITH S.B. CIVIL WRIT PETITION No.9739/2007. Smt. Laxmi Devi Vs. State of Rajasthan & Ors. : : Date of Order 25.2.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. V.D.Gathala for the petitioner. Mr. Zakir Hussain, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. 2. These two writ petitions have been filed by the petitioners, who were both serving as Sweeper and retired from services of Municipal Board, Padampur, in the case of Reshma Devi on 30.9.2007 and in the case of Laxmi Devi on 31.7.2007. It is common ground between the parties that when the Rajasthan Municipal Service (Pension) Rules, 1989 were enforced w.e.f. 1.10.1987, both the petitioners opted to be governed by the Contributory Provident Fund Scheme. Such option was given by petitioner Smt. Reshma Devi on 2 10.7.1989 whereas petitioner Smt. Laxmi Devi gave such option on 13.7.1989. However, when the date of their retirement was approaching, they had change of mind and both the petitioners submitted application to the Municipal Board, Padampur on 8.3.2006 that they should be allowed the benefit of pension. Their matter was placed before the General House of Municipal Board, Padampur, which resolved that the case of the petitioners be eventually recommended to the State Government for change of option and sympathetic view should be taken in the matter. Rajasthan Nagar Palika Karamchari Federation also in letter dated 6.6.2007 recommended to the Director, Local Bodies, Jaipur for accepting the change of option. A similar letter was written by the Federation to the Government on 17.7.2007. When nothing was done the petitioners approached this Court. 3. Learned counsel for the petitioners has argued that there is no impediment in law for change of option specially when such options were changed before the date of retirement. Learned counsel invited attention of the Court towards sub-Rule (4) of Rule 5 of Rules of 1989, which provides that if an employee who has availed of Contributory 3 Provident Fund benefits on his retirement on or after 10.10.1987 exercises option for the pension rules, the amount of contribution of the Board till the date of retirement plus interest on this total amount @ 6% per annum shall be refunded for being credited to the contributory fund. 4. Learned Additional Government Counsel opposed the writ petition and submitted that as per sub-Rule (3) of Rule 5, option once exercised shall be final and, therefore, the option of the petitioners could not be allowed to be changed even if such request is made before the date of retirement. 5. Having heard learned counsel for the parties and perused the material on record and specially Rule 5 of the Rules of 1989, the arguments of the learned Additional Government Counsel does not appear to be tenable. Rule 5 of the Rules of 1989 provides as under :- 5. Excerise of Option – (1) All employees would have option to continue to be governed by the Contributory Provident Fund Rules or by these rules with effect from 1.10.1987. (2) The option under sub-rule (1) shall be 4 exercised n writing so as to reach the authorities mentioned in Rule 6 within 3 months of the date of publication of these rules in the Official Gazette in the form appended to these rules. (3) If the option is not received within the aforesaid time limit, the employee shall be deemed to have opted for the pension rules. The option once exercised shall be final. It is not sufficient for an employee to exercise option within the specified period but also to ensure that it reaches the authorities mentioned in Rule 6 within the time and that he obtains acknowledgment thereof. The option given by the employee shall be pasted in the service book and a true copy of it be placed in his personal file. (4) If an employee who has availed of the Contributory Provident Fund benefits on his retirement on or after 10.10.1987, exercises option for the pension rules, the amount of contribution of the Board together with interest thereon till the date of retirement plus interest on this total amount @ 6% p.a. Shall be refunded for being credited to the Pension Fund, Interest @ 6% p.a. shall be charged for the period from the date of receipt of benefit under the Contributory Provident Fund Rules to the date of refund. While sub-Rule (3) of Rule 5 on which reliance has been placed by the learned Additional Government 5 Counsel, provides that in the aforesaid rule the employee shall be deemed to have opted for the pension rules and option once exercised shall be final, but then, sub-Rule (4) of Rule 5 is also part of the very same rule, which clearly provides that an employee even after availing the contributory provident fund on his retirement on or after 10.10.1987 would be free to exercise of option of the Pension Rules, the amount of contribution of the Board together with interest thereon till the date of retirement plus interest on this total amount @ 6% p.a. is refunded for being credited to the Pension Fund. It is further provided that interest @ 6% per annum shall be charged from the date of receipt of the benefit under the Contributory Provident Fund Rules to the date of refund. The respondent in my considered view have acted arbitrarily in not accepting the request of the petitioners for change of option when such request was made by them more than a year before their date of retirement and the Municipal Board in its General House also unanimously resolved to recommend their case to the Government. In view of above, this writ petition is allowed. The respondents are directed to accept the option of the petitioners for receiving pension in place of contributory 6 provident fund. Arrears payable to the petitioner shall be calculated. The respondents would be at liberty to deduct the amount of contribution of the Board together with interest @ 6% per annum from the date such amount received by the petitioners till it is adjusted. At the same time the petitioner would also be entitled to interest @ 6% per annum for the arrears of pension payable to them till this actually paid. The petitioners shall be then entitled to receive pension regularly on month to month basis. Compliance of the judgment be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.26 & 27