SISIR KUMAR DE Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed against the order of the Government of Orissa fixing the pension for the petitioner under the new pension scheme as provided in Rule 8 fa) of the Liberalized Pension Rules published in No. 13795f, dated 19 September 1951.

(2.) THE petitioner Joined Government service in 1921 and retired in the Orissa Subordinate Educational Service as headmaster of Government High School, Koraput, with effect from 7 December 1954. When the new liberalized pension rules were brought into force, he was given an option, by Rule 8 thereof, to come under the new scheme of pensions. This option was to be exercised by all old entrants. Three choices were open to them: firstly they may agree to come under the new liberalized pension rules; secondly they may express their willingness to continue under the old pension rules as a whole; and thirdly they may exercise their option of continuing to be governed by the old pension rules subject to death-cum-retirement gratuity as provided under the new rules. Rule 11 contained detailed provisions as to how this option should be exercised. The option was required to be exercised within one year from the date of issue of the resolution and it was further stated that the option should be given in writing and communicated by the Government servant concerned to the head of his office. The petitioner's case was that while he was on leave he received the memorandum of the Inspector of Schools, Southern Circle, No. 6660-C (4)/4c~8-52, dated 9 September 1952, requiring him to exercise his option under the new rules, before 15 September 1952. According to the petitioner this memorandum was received by him (only on 17 September 1952 and on that date he sent the following reply-

(3.) SRI Misra for the petitioner ingeniously contended that the letter sent by the petitioner to the Inspector of Schools on 17 September 1952 (already quoted) must be deemed to be an exercise of hia option not to come under the new scheme. That letter was sent admittedly within one year of the coming into force of the liberalized pension rules and hence he was entitled to pension under the old rules in accordance with Clause (b) of Rule 8. We are unable to accept this contention. There is no doubt, from a scrutiny of his letter dated 17 September 1952, that the petitioner unequivocally declared that he was not prepared to exercise any option because he had not seen the new rules as yet. In the last sentence he further stated that he would express his views after resuming duty. The question of exercising option does not arise unless the person is aware of the contents of the rules and when the petitioner himself clearly stated that he would express his views later, it is difficult to accept the contention of Sri Misra that the letter must be deemed to be an exercise of option one way or the other.