K. S. LODHA, J. - (1.) THE petitioner Omkar Lal was initially appointed as 'coolie' in the erstwhile Jodhpur State in the Jodhpur Electrical and Mechanical Departmental the Jodhpur Ice Factory in the year 1943. On integration of the States, the services of the petitioner were taken over by the Industries Department of the pre-organised State of Rajasthan. Later, he was transferred as a mate in the establishment of training under the industries Department, Jaipur. However, on his representation that as he came from the Electrical and Mechanical Department of the erstwhile Jodhpur State, he should be placed under the Electrical Department i. e. the Electricity Board and not at the disposal of the Industries Department, the Chief Engineer, Rajasthan State Electricity Board, Jaipur wrote to the Superintending Engineer, Jodhpur circle, Rajasthan Electricity Board, Jodhpur to absorb him as Helper I in Generation Division and it appears that thereupon he came to be posted in the Electricity Board.
(2.) THE case of the petitioner is that in the year 1963, Industries Department had invited options from the employees whether they wanted to have pension or to contribute to the Provident Fund and the petitioner had given his option in favour of pension. This fact has, of course, been denied by the Board in its reply, however, it does appear that after his absorption as a helper and his seniority was determined with effect from 18. 10. 62, he did sent a representation that although his seniority may be counted from 13. 10. 62, his previous service since 5. 10. 43 must be counted for the calculation of his pension, this seniority should not affect his pension. In reply to this assertion, the Board has admitted the receipt of this letter but has only raised an objection that this cannot be said to be the exercise of an option as the option has not been subm-itted in a proper form prescribed for the purpose. THE case of the petitioner further is that thereafter on 15. 10. 72 again options were invited from the emplo-yees of the Board, who had been absorbed in pursuance did submit his option in favour of pension. In reply, of course, this fact has also been denied by the Board but in rejoinder the petitioner has specifically averred that the option had been submitted by him in the month of December, 1972 to one Om Kalla, who was officer-incharge at that time in the office of the respondent at Jodhpur. No reply to this rejoinder has been filed. It is also stated by the petitioner that even after retirement, he had submitted certain representations for preparing his pension case alleging that he was entitled to pension as he had already opted for the same and even while he was under the employment of the Ice Factory at Jodhpur, he was entitled to pension and that no deductions were ever made from his salary for the Provident Fund, either while he was in the Ice Factory or the Industries Department or the Board. THE copies of two of such representations have been filed as Annx. 5 and 6. THE receipt of these representations has been admitted by the Board and in reply, all that has been stated is that since the case of the petitioner was not governed under the rules as circulars issued by the Board from time to time, these representations hove no force. It is further stated by the petitioner that the Board also did not contribute towards the Provident Fund from time to time as required under the rules of the Provident Fund and, therefore, the petitioner was entitled to the pensionary benefits. THE case of the petitioner further is that till his retirement he was never informed that he was not entitled to pension, rather, on his retirement the Executive Engineer. Rajasthan State Electricity Board, Jodhpur had also got the photo of the petitioner for preparing his pension case. . In reply the Board has, of course denied that the Executive Engineer had asked for the photo of the petitioner for preparing the pension case. Thus the case of the petitioner is that from the very beginning i. e. from the time of his employment in the ice Factory under the Electrical and Mechanical Department of the then Jodhpur State, the Industries Department of Rajasthan and also during the employment of the petitioner with the Board, he was always deemed to be a person entitled to pension and not Provident Fund and, therefore, on his retirement he was entitled to get his pension, whereas the case of the Board is that the petitioner had not exercised his option in favour of pension and, therefore, under regulation 19 of the Rajasthan State Electricity Board Employees' Service Regulations (hereinafter referred to as 'the Regulations) the petitioner will be deemed to be holding a non-pensionable service and as he did not exercise the option given to him in 1972 as well in 1980, he cannot claim the benefit of pension, the amount payable to him by way of Provident Fund contribution and gratuity has already been paid to him. I have heard the learned counsel for the parties and have gone through the record. From the facts which I have mentioned in detail above, it does appear that the petitioner had been all through under the impression that he was entitled to pension and he had asserted that right as early as on 1. 4. 68 as would be clear from his letter dated 1. 4. 68 (Annx. 3), wherein he had specifically stated that although his seniority may be counted from 13. 10. 62 after he had come to the Board his previous service since 5. 10. 43 should not go uncounted and it may not adversely affect his pension. It is pertinent to note that if the petitioner had not been a pension holder, he would not have stated in the latter Annx. 3 that the fixation of seniority should not affect his pension. As already stated above, the receipt of this letter by the Executive Engineer, R. S. E. B. Jodhpur is not denied and there is no communication from the R. S. E. B. dispelling the apprehension of the petitioner that his pension would be affected nor is there any communication saying in reply to this letter that he was not entitled to pension at all and, therefore, there was no question of pension being affected. Then when option had been invited in the year 72 by notice dated 28. 10. 72. the petitioner states on oath to have filed his option although in the writ-petition itself he has not given the details, in the rejoinder he has stated that the option had been filed by him in the month of December, 1972 and it was submitted to Om Kalla, officer-in-charge of the office of the respondent at Jodhpur and no counter has been filed in respect of this rejoinder. Therefore, a presumption can be raised that the petitioner had in fact filed his option in pursuance of the notice dated 28. 10. 72. For the sake of argument, even if it is assumed that such an option has not been submitted by the petitioner, then also it is a question whether he was in fact required to such an option. Clause (5) (a) of the notice says "a government 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:- (1) to receive proportionate pension/gratuity according to rules, for service rendered under the Government or (ii) to accept in lieu of pension or any other form of retiring benefits or gratuity that may be admissible under (1) above, Government contribution to the provident fund maintained by the Board. . . . . . ". Therefore, according to this clause, the Government employee, who opts to serve the Board and is covered under the pension scheme had the option either to continue to receive proportionate pension gratuity according to rules for service rendered under the Government or to accept in lieu of pension or any other form of retiring benefits or gratuity etc. This pre-supposes that the person who was given this option was already covered under the pension scheme and, therefore, even if the option had not been filed by him in pursuance of the said notice, he could not be deprived of the pension which otherwise would have been payable to him. Coupled with these circumstances, is a very strong circumstance further to strengthen the petitioner's case, inasmuch as even though the petitioner, according to the respondent Board had not opted for pension, no deductions were either made from his salary towards Provident Fund nor the Board ever contributed its share towards the Provident Fund which it must have contributed regularly from month to month and this circumstance must have led the petitioner to believe that he was entitled to pension. The mistake of the Board is not deducting monthly amount of Provident Fund subscription and not making its contribution towards it cannot be used by the Board for its own benefit and the benefit must naturally go to the employee. Such a view has been taken by a learned single Judge of this Court in Smt. Dhai & others v. The R. S. E. B. Jaipur S. B. Civil Writ Petition No. 242/83 decided on 24. 11. 85 and I am in respectful agreement with that view.
(3.) THE contention of the learned counsel for the respondent Board, based on regulation 19 of the Regulations that services of the employees of the Board shall be non-pensionable, provided that such employees whose services were transferred to the Board vide Rajasthan Government order No, PW. (B) Deptt. No. 13/osd/elec. Bd. dated 12. 2. 57 and who were holding permanent posts in substantive capacity on the 1st July, 1957, shall have a right to opt for pension, and in respect of such employees who opt for pension, the pension will be regulated by the Pension Rules of Rajasthan Government as amended from time to time, Pension allocation may be done between the Board and the Government in accordance with the principles as may he mutually agreed upon, and since the petitioner had not opted for pension, he is not entitled to pension cannot be accepted. In the first place, as already stated above, it does appear that the petitioner had exercised his option, in the second place, even if such option had not been exercised by the petitioner in pursuance of the notice dated 28. 10. 72 he must be deemed to be have already exercised that option on 1. 4. 68 when he submitted letter Annx. 3. It was also contended by the learned counsel for the respondent Board that the petitioner had again an opportunity to exercise his option when another notice dated 7. 6. 80 to exercise his option was issued but he did not avail of it and, therefore, he cannot now make a grouse that the pensionary benefit has not been allowed to him. This contention is also devoid of force. When as already staled above the petitioner must be deemed to have already exercised his option earlier he need not have exercised again in pursuance of the notice dated 7. 6. 80 because that notice was meant only for persons who had not properly exercised their options. Again, as already stated above from its own conduct the Board has always given the impression to the petitioner that he was entitled to pension because no subscription was either deducted from the petitioner's salary towards the Provident Fund nor contribution had ever been made by the Board towards it and, therefore, it now does not lie in the mouth of the Board to say that the petitioner is not entitled to pension. A contention was further raised by the learned counsel for the Board that the petitioner was as a matter of fact never absorbed in the services of the Board but had been given a fresh appointment and, therefore, he cannot be deemed to be an erstwhile employee of the Electrical and Mechanical Department of the then Jodhpur State and, therefore he can only be governed by the rules of the Board which only provide for non-pensionable services. According to me this contention is also devoid of force inasmuch as it is not disputed that initially the petitioner had been employed as a 'coolie' with the Ice Factory in the Electrical and Mechanical Department of the then State of Jodhpur and later it was in pursuance of the representation of the petitioner that the petitioner was sent from the Industries Department where earlier he had taken from the Ice Factory to the Rajasthan State Electricity Board. It is also not in dispute that earlier the Government had already decided that the services of the employees of the former Electrical and Mechanical Department were to be placed at the disposal of the Board vide Government of Rajasthan. Power Department order No. F. 12 (050) (Elect. Bd ) 57 dated 12. 5. 58 and it was in pursuance of this order that the petitioner had made a representation that he should be sent to the Rajasthan State Electricity Board from the Industries Department and thereupon he was so taken by the Board. It must, therefore, be held that he had been absorbed by the Board in pursuance of the Government order dated 12. 2. 58. This matter had earlier been raised and Accounts officer, R. S. E. B. , Jodhpur had written to the Deputy Director (Personnel) R. S. E. B. , Jaipur on 14. 8. 72 that the Labour Court had already decided that the petitioner had been absorbed in the Board and in pursuance thereof, the Board had already made the payment of wages based on the last pay certificate received from the Industries Department, it is quite clear that the Board had accepted this position and his increment will have to be fixed from April 1. i. e. the date of normal increment in his previous post. In these circumstances, it does not lie in the mouth of the Board to say that the petitioner had not been absorbed in the Board but had been given a fresh appointment. That being so, the petitioner cannot be denied the benefit of the pension for which he must be deemed to have already opted as already stated above. ;