- (1.) PURUSHOTTAMLAL petitioner has, in this petition under Article 226 of the Constitution of India, prayed for issuing a writ of mandamus directing the respondent No. 1 to make payment of his pension with effect from January 1, 1979 and thereafter the respondent should also be directed to make the payment of interest @ 18% per annum on the accumulated arrears of pension.
(2.) SINCE no reply has been filed to the writ petition, the averments made by the petitioner on factual position, supported by an affidavit, go unchallenged from the respondents. By an order dated April 1, 1963 (Ex. 1) the petitioner was appointed as Driver in the Department of Rajasthan State Roadways, then run by the Government of Rajasthan. His appointment was temporary for a period of 3 months in the scale of Rs. 75-3-120 - EB - 130 plus usual Dearness Allowances. On November 18, 1964, the Government of Rajasthan, Home (B) Gr. 1. Department in exercise of the powers conferred by Section 34 of the Road Transport Corporation Act, 1950 (Central Act 54 of 1950) directed, after consu-lation with the Rajasthan State Road Transport Corporation, that the Corporation shall take over the management of the existing Roadways Department of the Government of Rajasthan. It was provided in para 6 of the said notification that the services of all Government employees holding whole or part-time posts in the Roadways Department shall be temporarily placed at the disposal of the Corporation on deputation for a period of three months or for the period as may be extended from time to time by the Government on the terms and con-ditions governing them at present till the Corporation frames its own regulations in respect of services of their employees which shall not be less advantageous than the terms and conditions applicable to them at present including provision for absorption in services of the Corporation of Government employees of the Roadways Department. However, no deputation allowance was to be paid to such Govt. employees. The leave salary and pension contribution was to be regularly paid by the Corporation in respect of such servants. On April 15, 1966, the State Govt. issued a notification (Ex. 3), inter-alia providing therein that any permanent Government employee. who was entitled to get benefit of pension, will have right to give his option either opting for the existing pension rules or for getting the contributory provident fund in the scheme for that purpose. Para 9 of (Ex. 3) provided that in case any permanent Government employee who has been retired from the service of the Corporation gives an option for Contributory Provident Fund Scheme, then the State Government in relation to such Government servant contribute 8% of salary for such employee with interest @ 2% per annum and on that proportionate basis it would pay pension and gratuity according to Rajasthan Service Rules. Pension would be paid only after he had obtained superannuation age. It is then provided in para 11 of the notice (Annexure-3) that if such temporary Government employee who had been in employment for not less than 2 years as on September 30, 1964 and he gives an option for appointment in the Roadways Corporation he will have the rights of a permanent Government Servant. Then there was a memorandum issued by the Rajasthan State Roadways Transport Corporation on June 20, 1984 (Annexure 6 ). The issue of this memorandum was necessitated on account of the fact that in pursuance of the recommendation of the Beri Commission, the State Government had revised the salaries in accordance with Rajasthan Civil Services Revised Pay-scales Rules, 1983 with effect from September 1, 1981 and thereby pension ruses were more liberalised. The Rajasthan State Road Transport Corporation also accepted the recommendations of the Beri Commission. It, therefore, decided to give one more option to its employees who had opted for Contributory Provident Fund to opt for pension. The option was to be furnished within 3 months. It was further provided in this memorandum that this facility of option would be available only to those Government employees who were confirmed employees on any post as on September 30, 1964 and who had completed at least two years Government service. Then the memorandum proceeded further to state that even those employees of the Corporation who had retired after September 1, 1981 but before the issue of the memorandum on June 20, 1984 and had taken the benefit of Contributory Provident Fund Rules, they would also be entitled to opt for pension, subject to the condition that they will have to refund the Corporation contribution to the Provident Fund alongwith interest so that the Corporation may be able to deposit the capitalised value in respect of their service period with the Government of Rajasthan. The petitioner has alleged that he had been paid amount of gratuity and Provident Fund due to him at the time of his retirement only with effect from 1-11-1966 to 31-12-1978 and no amount of Gratuity and Provident Fund, due to him, prior to this period i. e. from 4-4-1963 to 30-10-1966 had been paid to him. He has also referred to the memorandum issued by the respondent No. 1 on June 27, 1984 and has stated that he had exercised option for granting pension and submitted relevant papers in the office of Divisional Mechanical Engineer, Rajasthan State Road Transport Corporation, Ajmer but he has not received a favourable reply. He has shown his readiness to deposit the Corporation's share of the Contributory Provident Fund in order to enable the Corporation to give him monthly pension. Thus the petitioner has prayed for issuing a writ of mandamus directing the respondent to make the payment of pension with effect from 1-1-1979 and thereafter further to make payment of interest @ 18% per annum on the accumulated arrears of pension. It is clear from the documents produced by the petitioner alongwith the writ petition that the petitioner was temporarily appointed as driver for a period of three months by order (Ex. 1) dated April 1, 1963. He came on deputation to the Rajasthan State Road Transport Corporation with effect from 1st October 1964. It has not at all been shown by the petitioner that while he was in employment, under the Government of Rajasthan in its State Government Department, he was making any contribution to the State Govern-ment Provident Fund or that the State of Rajasthan was under any obligation to make its own contribution. In the absence of that everment and proof, the petitioner is not entitled to any amount as Provident Fund Contribution with respect to the period from April 1, 1963 to the date on which he was permanently absorbed in the Rajasthan State Road Transport Corporation. The only question, therefore, remains is as to whether the petitioner under the memorandum issued by the Rajasthan State Road Transport Corporation on June 27, 1984 is entitled to pension with effect from January 1, 1979 i. e. from immediately after his retirement on December 31, 1978. It is not in dispute that the petitioner had been paid amount of gratuity and Provident Fund due to him at the time of his retirement for the period from November 1, 1966 to December 31, 1978. It appears that the petitioner had opted for the Provident Fund. Para (ka) of Exhibit 6 applies the facility or privilege of option only to those officials and employees who while in employment of the State Government as Government servant as on September 30, 1964 were permanent employee on a post and had completed two years service as On the said date. As already observed, the petitioner was appointed on 1. 04. 1963 in a temporary capacity. He has not shown that he had been made permanent on the post while he was a Government employee and that he was a permanent servant on September 30, 1964, He had also not completed two years Government service as on the said date. Para (ka) of Exhibit-6 does not, therefore, apply to him. Coming to the last para of Exhibit-6, it is quite clear that this para applies only to those employees of the Rajasthan State Roadways Transport Corporation who had retired from the employment of the Corporation after September 1, 1981 and before June 20, 1984. The petitioner admittedly had retired from the employment of the Corporation much before September 1, 1981 in as much as he had retired on superannuation on December 31, 1978. The last para of Exhibit-6, as it stands, has thus no application.
(3.) THE learned counsel for the petitioner has strongly relied upon a decision of a Division Bench of this Court in State of Rajasthan Vs. Retired Contributory Provident Fund Holders Association. Jodhpur (1 ). THE facts of that case were that members of the Retired Contributory Provident Fund Holders* Association, Jodhpur were employees of the formerly Princely State of Jodhpur and they were members of the Contributory Provident Fund Scheme which was prevalent in the former State of Jodhpur. After the formation of the Rajasthan those employees became the employees of the Government of Rajasthan and were governed by the Rajasthan Service Rules, 1951. THE Scheme of Contributory Provident Fund was that the employees were to give their own subscription and an amount equal thereto was contributed by the State Government. Those employees were asked to give option for pension, some of them opted for pension while others did not. Those who opted for pension were placed in an advantageous position than the rest. THE pay scales of the Rajasthan employees were revised in the years 1961-1966, 1969, 1971, 1976 and 1983. THE increase in the pay scales brought an increase in the amount of pension to be paid to the retired employees. However, no such corresponding benefit was available to those who had opted for continuing in the Contributory Provident Fund Scheme. In order to revise the pay scales and redress the grievances of the employees under the pressure of rising prices, the State Government constituted a Pay Commission headed by Hon'ble Mr. Justice B. P. Beri, former Chief Justice of Rajasthan High Court by a notification dated May 31, 1979. He gave his report on February 17, 1983 and its recommendations were made effective from September 1, 198l, Point No. 7 of that report relates to the recommendation for ex gratia payment to those who had retired as members of the Contributory Provident Fund Scheme. THE Contributory Provident Fund holders made a representation to the Chief Minister for an opportunity of exercising fresh option for pension. THE State Government had issued various Circulars by which it was made optional to the Government Servants who were Members of the Contributory Provident Fund Scheme and had retired after the dale mentioned therein or were in service on particular date, to opt for pension. THE case of the members of the Association was not governed by those circulars and therefore, they could not have opted for pension. THE benefit given to some and denial of the same to others were felt to a hostile discrimination by the members of the Association and, therefore, the Association invoked the extraordinary jurisdiction of this Court by filing S. B. Civil Writ Petition No. 900/1984 (2 ). That writ petition was allowed by the learned Single Judge by his judgment reported in (2) 1986 RLW P. 42. THE State Government filed a Special Appeal which was dismissed by the Division Bench of this Court by the judgment referred to above. THE Division Bench held that merely because the aggrieved members of the respondent Association had not opted pension at particular time in view of the then prevailing circumstances, they cannot be estopped from claiming the right to opt for pension subsequently in the changed circumstances when the others similarly situated, have been placed in an advantageous position and the fixing of dates in those Circulars had no rational with the object sought to be achieved, It was noted that on account of rising prices the Government of Rajasthan realised the difficulties of its employees and revised the pay scales in the years 1961, 1966, 1971, 1976 and 1983. So far as the Beri Commission Report of 1983 was concerned, it had been made effective from 1. 09. 1981. In consonance with the revised pay scales, there was also liberalisation in the Pension Rules and option was given to the Contributory Provident Fund holders who retired on or before the date mentioned. In Exhibit-5 to Exhibit 8. THE learned Division Bench relied upon the decision in Purusho-ttamlal Vs. Union of India (3) and D. S. Nakara Vs. Union of India (4) and affirmed the findings of the learned Single Judge inter alia on the point that the words "after 1-9-1981" in Exhibit 8 in that case was unconstitutional and the same was struck down. THE learned Single Judge had directed the State of Rajasthan to afford an opportunity to the members of Retired Contributory provident Fund Holders Association to exercise to option for pension irrespective of the date of retirement or the date on which the retired person was in service or not plus interest thereon. More or less the same view has been taken by their Lordships of the Supreme Court in the case of Mangilal Jain Vs. Union of India (5 ). Consequently, I allow this writ petition and hold that the words "jo 1-9-1981 Ke Paschat tatha" in Exhibit 6 are arbitrary and violative of the fundamental right of the petitioner guaranteed by Articles 14 and 16 of the Constitution of India and Exhibit-6 should be read after deleting these words. Accordingly, respondent No. 1 is commanded to give opportunity to the petitioner to exercise his option for pension under Exhibit 6 irrespective of the date of his retirement and irrespective of the fact whether he was in service or not. In case the petitioner elects to opt for pension within 3 months, the respondent No. 1 is commanded to calculate the pension amount and to pay the pension admissible to the petitioner under the rules and in accordance with the other conditions contained in the last para of Exhibit 6 i. e. on his depositing lumpsum of the benefits of Provident Fund Contribution amount with interest which had already been received by him or such amount already paid to him of Contributory Provident Fund amount plus interest and retirement benefits already paid to the petitioner shall be adjused by respondent to No. 1 against the pension amount that has become admissible to petitioner in accordance with this order. I shall make no order regarding interest because the petitioner had got Provident Fund amount and he is liable to refund it on deposit in bank. This order will be complied with within 6 months. ;