GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 26. 5. 1992 against the respondents with the prayer that by an appropriate writ, direction or order, it may be declared that the petitioner is entitled for family pension and the State Government is under an obligation to accept the revised option of the petitioner etc. etc.
(2.) IT arises in the following circumstances: The husband of the petitioner retired on 15. 7. 1974 after attaining the age of superannuation. The husband of the petitioner expired on 30. 7. 1974. Her husband of the petitioner expired on 30. 7. 1974. Her husband was working as Chowkidar in the Irrigation Department, Government of Rajasthan in the office of Assistant Engineer, Irrigation Sub Division, Pindwara and at the time or retirement, he was posted at Saie Pariyozna Sub Division No. 3. The petitioner is the widow of late Shankerlal, Chowkidar and is entitled to get pension which is being denied to her and, therefore, this writ petition is preferred. IT was submitted in the writ petition that the petitioner made various representations to all concerned officers of the State Government with effect from 17. 9. 1990 to 8. 4. 1991 and the copies of the representations are marked as Ex. 1 to Ex. 5. IT was further submitted in the writ petition that on the representations of the petitioner, the Executive Engineer, Jawai Nahar Khand Sumerpur (Raj.) had written to the Assistant Engineer for necessary action and the copies of the communications between Executive Engineer and Assistant Engineer are marked as Ex. 6 to Ex. 9. IT was further submitted in the writ petition that on representation by the petitioner in the public interest litigation, the Collector, Sirohi also written to the executive Engineer for grant of pension to the petitioner through letter dated 22. 2. 1991, a copy of which is marked as Ex. 10. However, the petitioner was informed by the Assistant Engineer, Irrigation Sub Division, Pindwara through letter dated 1. 6. 1991 (Ex. 11) that the benefit of pension could not be granted to her because the benefit of Contributory Provident Fund (CPF) had been given to her and on this ground, she was denied pension and mainly that order dated 1. 6. 1991 (Ex. 11) is attacked in this petition. The Case case of petitioner in this petition is:- (1) That he husband did not opt the benefit of CPF Scheme and no amount was deducted under that Scheme and, therefore, if the petitioner has simply stated in the letter dated 17. 9. 1990 (Ex. 1) that the received the amount of Rs. 2185/- under CPF Scheme, it should not have been accepted by the respondents as she was illiterate lady and she did not know the pros and cons of anything. (2) That since she did not receive any benefit of the CPF Scheme, therefore, denial of pension resulted in infringement of her legal right and, therefore, she be allowed the pension as per the Rules of the State Government. A reply to the writ petition was filed by the respondents on 14. 1. 1998 and the main objection taken by the respondents in the reply was that Shankarlal, husband of the petitioner, did not opt for pension as required under the Rules and since after retirement, he was paid CPF amount, therefore, the petitioner was not entitled to any pension and furthermore, apart from this, the respondents are moving higher authorities to grant pensionary benefits to her. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the materials available on record. The question whether benefit of CPF Scheme was made available to the petitioner or not, is a question of fact and that cannot be decided in the writ petition. However, there is one aspect on this count that no doubt in the letter dated 17. 9. 1990 (Ex. 1) the petitioner had written that she was paid Rs. 2185/- towards amount of CPF, but apart from this, there is no documentary evidence produced by the respondents showing as to when deductions under CPF Scheme were made from the salary of the husband of the petitioner and how much amount was due under CPF Scheme at the time of retirement of the husband of the petitioner and these facts could have been proved by the respondents very easily by producing record, but since that has not been produced, therefore, a shadow of doubt still remains on the point whether the husband of the petitioner was a beneficiary of CPF scheme of not. No doubt the Hon'ble Supreme Court in V. K. Ramamurthy vs. Union of India & Anr. (1), has held that PF optee cannot switch over to pension after his retirement, in PF Government liability starts with appointment and ends with retirement, but in pension it starts with retirement and continues till death and PF cannot be varied after retirement and pension can be increased/with held after retirement also. But, so far as the present case is concerned, as stated above, the fact whether husband of the petitioner was optee of CPF Scheme or not is not clear and since this fact is not clear, this petition cannot be dismissed on this point.
(3.) APART from this, pension is a right and the payment of it does not depend upon the discretion of the government, but is governed by the rules and procedure established under law. Since there is no record in this case showing that deductions under the CPF Scheme were made from the salary of the husband of the petitioner, therefore, this fact may lead to the conclusion that the husband of the petitioner was not given benefit of that Scheme and if he was not given benefit of that Scheme, the petitioner was entitled to pensionary benefits, but since the respondents have frankly admitted that the matter has already been sent to the higher authorities for grant of pensionary benefits to the petitioner as per Rules, therefore, this Court does not want to enter into the controversy in detail and it would meet the ends of justice if some time is granted to the respondent for deciding the case of the petitioner for grant of pensionary benefits to her. Accordingly, this writ petition is disposed of in the manner that the respondents are directed to consider and decide the case of the petitioner for grant of pensionary benefits within a period of six months from today and for that, if found necessary, an opportunity of hearing be also provided to the petitioner. .;