BALIA, J. - (1.) ONLY question raised in aforesaid petition is whether members of petitioner association are entitled to exercise their option for pension and other pensionary benefits in response to memorandum dated 17/10/1987 issued by the Govt. of Rajasthan (Ex. 27 ).
(2.) AFORESAID petition has been filed by the Rajasthan State Electricity Board Retired Employees Association, Jodhpur and another representing the interest of certain retired employees of the Rajasthan State Electricity Board, list of which has been attached as Schedule 'a' to the writ petition. All these persons named in the Schedule 'a' were employees of the Electrical and Mechanical Department of Govt. of Rajasthan when they were placed at the disposal of the Rajasthan State Electricity Board vide order dated 12. 2. 1958 (Ex. 1 ). All the incumbents, named in Schedule 'a' are stated to be employees who were members of the Jodhpur State Contributory Provident Fund at the time of their entry into service for the purposes of retrial benefits. After services of these persons were placed at the disposal of the Board, directives dated 16/ 28. 03. 1960 were issued by the Govt. of Rajasthan in exercise of powers under Sec. 78a of the Electricity (Supply) Act, 1948 which inter-alia mentioned as under : - "1. Salaries, allowances and other emoluments of the service personal placed under the administrative control of the Board shall be continued to be paid on the same basis at the same scales and the same manner as would have been done if they had continued as employees of the Government Electrical Deptt. and shall not be varied to their disadvantage. Any contributions e. g. towards pensions, leave allowances payable by the Board irrespect of staff working under the Board shall continue to be payable in the same manner as hithertofore. 2. The present rate structure in the various areas of the State shall not be varied except with the previous approval of Government. " By these directives, the employees whose services were placed at the disposal of the Board were entitled to the same emoluments as were being paid to them as employees of the Govt. in Electrical Department. Thereafter, another circular dated 10. 08. 1960 was issued by the Govt. of Rajasthan which is placed on record as Ex. 3 which made it clear that pending final decision regarding the transfer of Govt. Servant concerned to the service of the Board, they will be treated on deputation. It was further stated in the said Circular that the question regarding the manner in which liability for pension is to be shared or discharged will be decided later on but in case of those who retire before final decision in this regard, the Board may discharge its liability by payment of pension contribution at the prescribed rates, so that settlement of the pension claims of the Govt. servants concerned may not be held up. This clearly meant that until final decision was taken regarding the transfer of Govt. Servants to the service of the Board, they were entitled to be treated as Govt. Servants on deputation' and in case of their retirement before such final decision regarding the transfer, they were entitled to the same pensionary benefits as Govt. servants were entitled to. Yet another notice was issued by the Govt. of Rajasthan on 25th Oct. 1972 (Ex. 4), relevant clauses of which for the present purposes are quoted herein below : - "1. On the publication of this notice in the Rajasthan Rajpatra all the Govt. employees who are in continuous service from a date prior to the 1st July 1957, shall exercise their option in the form given at Appendix 'a' within 3 months from the date of publication to the Secretary to the Govt. , Irrigation and Power Deptt,. , Jaipur through the Secretary, Rajasthan State Electricity Board, Jaipur with an advance copy to the Secretary to the Govt. Irrigation and Power Deptt. Jaipur for absorption in the Board or for reversion to the Govt. Any request for extension of the aforesaid time limit for exercising such option, seeking clarification or review, will not be entertained. If any Govt. employee does not exercise his clear option for reversion to the service of the Govt. before the expiry of the prescribed time limit, it will be presumed that he has exercised his option in favour of his continuance in the Board's service accepting the grades and service conditions framed by the Board under its regulations and the Rajasthan State Electricity Board Contributory Provident Fund Scheme. 2. . . . . . . . . . 3. . . . . . . . . . 4. . . . . . . . . . (a) A Govt. employee who opts to serve the Board and is covered under the pension scheme shall have the option to accept any of the following benefits: - (i) to receive proportionate pension/gratuity according to rules for service rendered under the Govt. or (ii) to accept in lieu of pension or any other form of retiring benefits or gratuity that may be admissible under (i) above, Government Contribution to the Provident Fund maintained by the Board of an amount equal to 8% of his monthly pay drawn from time to time during service under Govt. with simple interest at the rate applicable from time to time and also special contribution if admissible to employees governed by Jodhpur Contributory Provident Fund Rules. The amount of the contribution together with interest thereon will earn simple interest at two percent per annum from the date of transfer of service till such time it becomes payable, (iii) to continue to be governed by the pension scheme as applicable to him under the Rajasthan Service Rules as existing on the date of publication of this notice. Provided that if option at (i) above is exercised the Govt. employee concerned will not be eligible to receive family pension benefits admissible to him under Chapter XXIII, XXIII-A and XXIV of the Rajasthan Service Rules on the date of transfer of his service to the Board. No deduction of portion of gratuity where it is required to be surrendered in terms of Rules 268-G of Rajasthan Service Rules will be made in their case. (b) In the case of a Govt. servant who is a subscriber to the Jodhpur Contributory Provident Fund Scheme, the amount standing to his credit alongwith Govt, contribution plus interest thereon and special contribution if admissible on the date of transfer of his services to the Board shall be transferred to the Provident Fund Account of the employee under the Board. Provided that the amount equivalent to Govt. contribution plus interest thereon shall not be payable to the employee if he resigns or in any other manner voluntarily leaves the service of the Board before reaching the age of 55 years. (c) The amount of pensionary and provident fund benefits referred to in clause (a) and (b) above, shall become payable on the Govt. employee. : - (i) attaining the age of 55 years or completing 30 years qualifying service (including his service under the Govt.) in the Board, or (ii) retiring prematurely under circumstances which would not have resulted in a forfeiture of pensionary or other retirement benefits, had he continued in Govt. service. (d) Grant of full pensionary or other retirement benefits admissible to the Govt. employees as per Rajasthan Service Rules or Jodhpur Contributory Fund Scheme existing on the date of publication of this notice is hereby guaranteed by the Govt. . . . . . .
(3.) ANY Govt. employee on appointment by the Board on any post in the Board, as a result of his option for the Board's service or who is deemed to have opted for the Board's service in terms of para (1) above shall cease to be in the service of the Govt. with effect from the date of the issue of the Government orders finally transferring him to the Board and any lien held by him on any post including supernumerary post under the Government will be terminated with effect from the date of issue of the aforesaid orders. 8. . . . . . . . . 9. . . . . . . . . 10. . . . . . . . . 11. . . . . . . . . " 5. It may further be stated that as envisaged under clause (7) above, thereafter on much later dates, orders were issued on different dates by the Government finally transferring the said employees to the Board and their lien was terminated with effect from the date on which their services were respectively ordered to be finally transferred by the Govt. to the Board. 6. On these premises, it is contended that all the persons continued to be the Govt. servants until the date of issuance of Govt. orders finally transferring them to the Board and lien held by them on the posts with Govt. was terminated and new lien on the post under the Board was acquired. 7. On the aforesaid foundation, it is contended by learned counsel for the petitioners that the dates, on which their lien was terminated as a result of acquisition of new lien on a permanent post with the Board in pursuance of Govt. order finally transferring their services to the Board, should be treated as their respective dates of retirement from the Govt. service, and as a consequence of retirement from Govt. service, retrial benefits for their period of service with the Govt. should be computed in accordance with law applicable to retired Govt. employees. As a further corollary of this submission, the petitioner submits that as a result of decision of this Court rendered in Retired Contributory Provident Fund Holders Association, Jodhpur vs. The State of Rajasthan (1) as affirmed by a Division Bench of this Court in State of Rajasthan vs. Retired Contributory Provident Fund Holders Association (2), the Govt. of Rajasthan issued a memorandum dated 17/10/1987 after Special Leave Petition filed by State of Rajasthan against aforesaid decision was rejected by the Hon'ble Supreme Court on 11. 8. 87. under this memorandum, ex-employees of the State Government who retired after 1. 4. 51 from a post under the Govt. availing themselves of retirement benefits available under the Jodhpur Contributory Provident Fund Rules and had not opted for pension inspite of various chances having been given to them to opt for pension, were allowed an opportunity to exercise option under the existing Rajasthan Service Rules, 1951 on the date of their respective retirement. It is submitted by the learned counsel for the petitioners that the members of the petitioner Association named in Schedule 'a' fall in the same category as members of Jodhpur Contributory Provident Fund in as much as they have retired after 1. 4. 51 and were members of the Jodhpur Contributory Provident Fund and had not opted for pension on earlier occasion. But these employees have not been so treated and option under memorandum dated 17. 10. 87 has not been made available to them on the ground that they were absorbed by Board before they retired from Govt. service and cannot be treated to have retired from a post of Government. Merely because they were ultimately absorbed in the service of the Electricity Board after serving for qualifying period under the State, they cannot be denied the benefit of said memorandum. His further case is that after obtaining their options in pursuance of the memorandum dated 17/10/87, the members of the petitioner Association named in Schedule 'a' should be allowed pension calculated on the basis of the service rendered upto the date of their permanent absorption in the Board as per the terms of Ex. 4 as qualifying period for pension. For the proposition that until final order of absorption was made by the State, the petitioners continued as Govt. servants notwithstanding the fact his services were placed at the disposal of the Board vide order dated 12. 2. 1958 (Ex. 1), learned counsel relies on a decision of this Court in Ram Dutt Purohit vs. Stale of Rajasthan and anr. (3) wherein a controversy arose whether a person whose services were placed at the disposal of the Board by the very order dated 12th, February, 1958 and who has opted for absorption in the service of the Board, could he be termed as an employee of Board with effect from the date of his option so as not to be governed by Rajasthan Service Rules for being superannuated on attaining age of 55 years. The petitioner had contended that on exercise of his option, he became an employee of the Board, therefore, he cannot be superannuated from service on the basis of any rule in the Rajasthan Service Rules. This contention of the petitioner was repelled and it was held as under : - "it will be recalled that the petitioner was holding substantive appointment in the service of the Rajasthan State before his transfer to the Board, and his service was placed at the disposal of the Board as aforesaid. He therefore acquired a lien on the post of Upper Division Clerk, which he was holding on the relevant date, in terms of rule 15 of the Rajasthan Service Rules. So when his service was placed at the disposal of the Board, he was on "foreign service" within the meaning of rule 7 (10) of the Raj. Service Rules. Consequently, by the virtue of rule 16 (b) he retained a lien on the post of Upper Division Clerk in the service of the State Govt. while on "foreign service" with the Board. That lien could be suspended by the State Govt. under rule 17 (b) of the Rajasthan Service Rules, but it was to revive as seen as he ceased to be on deputation on "foreign service" with the Board. It is therefore quite clear that in accordance with the aforesaid provisions of the Rajasthan Service Rules, the petitioner had a lien or, at any rate, a suspended lien on a post in the State Service. A reference to rule 18 (a) of the Rajasthan Service Rules shows that that lien could, "in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. " It is significant that although the petitioner has taken the plea that he opted for the termination of his lien in the State Service, he has not ventured to state that he had acquired a lien or suspended lien upon a permanent post in the service of the Board. There is also no evidence to justify the conclusion that the petitioner acquired any such lien in the service of the Board. It must, therefore, be held that it was not permissible for the State Govt. , what to say of the Board, to terminate his lien on the post of Upper Division Clerk in the State service as that would have left him without a lien or a suspended lien on a permanent post and would, therefore, have violated the specific requirement of rule 18 (a) of the Rajasthan Service Rules. The petitioner, therefore, must be taken to have retained a lien in the service of the State Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the exercise of the option could not by itself result in the termination of the petitioner's lien in face of requirement of rule 18 (a) of the Rajasthan Service Rules. " This view was founded on an earlier decision of a Division Bench of this Court in Rajasthan State Electricity Board, Jaipur vs. Shri Kishan and another The conclusion was supported on the ground that the fact that petitioner exercised option on June 30, 1985 in the form prescribed by the Board cannot have the effect of terminating his lien in State service. ;