M.C.JAIN, J. - (1.) BY this writ petition, the petitioners seek the grant of family pension.
(2.) THE facts of the case are not in dispute. Dr. D.R. Bhandari, the husband of petitioner No. 1 entered into the service of the Government of Rajasthan as Research Assistant in the Maize Breeding Scheme vide Order dated 29 -3 -1955 in the Department of Agriculture. In pursuance of the recommendation of the National Commission on Agriculture that all fundamental and applied research in Agriculture and allied sciences be under taken by the University, the Governor of Rajasthan was pleased to order that all research activities be transferred from Agriculture Department to the University of Udaipur with effect from 1 -1 -1976 and all responsibility for research in Agriculture and allied sciences will vest in the University of Udaipur. As a result of transfer of the Research Wing of the Agriculture Department, the result of transfer of Research Work were transferred to the University, under the order of the Government No. F ii(I) Agrl./Gr 1/74, dated 17 -12 -1975. The relevant para of Clause 6 of the Order reads as under: 6. The Services of the Government Servants employed in Research Wing of the Directorate of Agriculture shall be transferred to the University of Udaipur on the following terms and conditions: (1) Transfer of employee: (i) All permanent Government Servants and temporary Government Servants, who have been regularly recruited and appointed to the various categories of posts in the Agriculture Research Section of the Agriculture Department, shall stand transferred to the University pending final absorption in the University, the staff shall be on deputation to the University but no deputation allowance shall be paid. The process of the absorption should be completed within a period of three months. The personnel engaged in research in the State Directorate of Agriculture will have the choice of joining the University or will in the alternative be returned. (5) Pension/Provident Fund benefits: Pensionary benefits shall be admissible to them in accordance with provisions of Sub -clause (1) of Clause II of paragraph I of 60 Order No. F. 1(11) FD (Exp. Rules)/65 dated 23 -7 -1968 referred to shows (Relevant extract attached annexure). Para 8 of the order relates to Discharge from Government Service, which is also reproduced as under for facility of reference: (8) Discharge from Government Service: If a permanent Government Servant whose services have been taken over by the University elects put to serve the University, he shall from the date of relief he treated to have been discharged owing to abolition of post. The relevant para of the Finance Department Order dated 23 -7 -1968 is as under: (C) Pensionary /Provident Fund benefits: (1) An employee who is under Pension Scheme shall have the option to accept either of the following benefits; (i) to receive proportionate pension/gratuity according to rules, for service rendered under the Government, or (ii) to accept in lieu of pension and any other form of retiring benefits of gratuity that may be adjustable under (1) above, Government Contribution to the Provident Fund maintained by the Autonomous Body/Public Sector Corporation of an amount equal to 8% of his monthly pay drawn from time to time during service under Government with simple interest at the rate applicable from time to time and also special contribution if adjustable to employee governed by Jodhpur Contributory Provident Fund Rules. The amount of the contribution together with interest thereon will earn simple interest at two per cent per annum from the date of transfer of service till such time it became payable. Provided that if option at (i) above is exercised by the Government Servant concerned he will not be eligible to receive family pension benefit admissible to him under Chapter XXIII, XXIII -A of the Rajasthan Service Rules on the date of transfer of his services to Autonomous Bodies/Public Sector Corporation etc. No deduction of portion of gratuity where it is required to be surrendered in terms of Rule 268G of the Rajasthan Services Rules will be made in their cases (3) The amount of pensionary and provident fund benefits referred to in Clauses (1) and (2) above shall become payable to the Government Servant: (a) attaining the age of 55 years, or completing 30 years qualifying service (including his service under the Government) in the Autonomous Body/Public Sector Corporation concerned, or (b) Retiring prematurely under circumstances, which would not have resulted in a forfeiture of pensionary benefits, had he continued in Government Service. Initially, the petitioner was sent on deputation. Under the Government Order dated 27 -12 -1975, the petitioner was asked to give his option for service in the University of Udaipur. Consequently, the petitioner gave his option as under: Option Under para (6) of the terms and conditions to the University Service issued under Order No. F. ii(i) Agr/Gr. 1/74 dated Jaipur the 27th December, 1975 from the Agriculture Production Commissioner and Secretary to the Government of Rajasthan Jaipur and Order No. F. ii(i) Agrl./Gr. 1/74 dated March 25, 1977 from the Asstt. Secretary to the Government, Agr. (Gr. I), Department, Rajasthan, Jaipur. My name is at S. No. 42 of the Order I being appointed on 11 -4 -1955 and having put in 21 years, 11 months, 28 days service on the date of transfer of service i.e. 1 -4 -1977. (1) Pension - Yes (2) Gratuity - Yes (3) Provident Fund In case, I propose to return early, after completion of 30 years service, I shall be eligible to claim pension earlier. The salary drawn at the time of option was 1500/ - p.m. Sd/ - Signature Name in Block Letters: Date: Designation - -Cotton Botanist, Place: Sri Ganganagar Note: (1) Out of the three alternative given above that which is not opted by him may be scored out (2) The Government Order Number and date, which are not applicable to him, may be scored out. Dr. Bhandari, was absorbed in the University Service on 1 -4 -1977, as, he became an employee of the University with effect from 1 -4 -1977. Dr. D.R.Bhandari expired while in service on 2 -3 -1980. The petitioner's case is that Dr. D.R. Bhandari having completed qualifying service of 20 years, he became entitled to pension for the periods of the service on the basis of salary last drawn by him In view thereof, the petitioners approached the University for grant of pension including family pension. The University in its turn, proceeded to write to the Government expressing its willingness to remit to the State Government provident fund contribution along with interest lying in the account of late Dr. Bhandari. But the Government of Rajasthan declined to grant the family pension under the Rules vide Annx 8 dated 9 -6 -1981. The Petitioners further submitted representations to the Governor of Rajasthan but to no effect The petitioners have referred to an order of Dr. D.S. Saraswat, whose services were transferred to the University of Udaipur and who was permanently absorbed by the University. Thereafter, he was taken back on deputation by the Government of Rajasthan and was retained in service. After more than 7 years in his case, the period spent in the University service was considered to be the period of Government Service for the purpose of pension on the condition that the University of Udaipur shall refund to the State Government, employer's contribution for the period he was in the University Service towards his provident fund along with interest therein The petitioners have claimed family pension on the ground that Dr. D.R. Rhandari had to his credit more than qualifying service of 20 years and as such, when he was transferred to the University, he became entitled to the proportionate pension and after his death in lieu of pension, the petitioners became entitled to the family pension. Even otherwise, for the purpose of pension, in case of Dr. D.S. Sarsawat more than 7 years period of University Service has been treated as the period spent in the Government Service then the period spent by Dr. Bhandari, in these circumstances, could have also been treated as the period spent in the Government Service for the purpose of pensionary benefits.
(3.) THE reply of the State Govt. is that after absorption of Dr. D.R. Bhandari in the University service with effect from 1 -4 -1977, he ceased to be a Government employee and his lien was terminated automatically on account of absorption Dr. Bhandari was only entitled to the Provident fund as he was an University employee. It was further stated that when Dr. Bhandari gave option for absorption in the University, the family of Dr. Bhandari after his death was not entitled to the family pension in accordance with the terms and conditions mentioned in the Finance Department Order dated 23 -5 -1968 It was also stated that the kind of special benefit is not permissible and the State Government does not grant any ex gratia pension. The Finance Department Order denies the benefits of family pension to such employees. The case of Dr. D.S. Saraswat is not akin to the case of Dr. Bhandari.;