VYAS, J. - (1.) IN this writ petition, petitioner is challenging the impugned order dated 11. 8. 2003 (Annex. R/3) filed by respondents along with their reply.
(2.) THE facts leading to this case are that petitioner's husband died while in service and petitioner was provided appointment on compassionate ground on the post of LDC on 2. 5. 1991. According to petitioner, she applied for voluntary retirement vide application dated 31. 5. 2003 w. e. f. 4. 6. 2003. Upon application filed by petitioner for voluntary retirement, her service particulars were got verified by the Assistant Engineer (HTM-I), Jodhpur Vidhyut Vitran Nigam Ltd. , Jodhpur and forwarded information that no inquiry is pending against petitioner nor there is anything due against her, therefore, she was found eligible for voluntary retirement and finally her application was accepted on 4. 6. 2003. According to petitioner she is entitled for pension and other retiral benefits like GPF gratuity, commutation and leave encashment under the provisions of RSEB Pension Rules, 1988. Further, after retirement all requisite forms were filled for getting the said retiral benefits but same were not paid to her. Upon inquiry petitioner was informed that her papers are under process and in the meanwhile she was made available the amount of leave encashment. The petitioner's daughter is of marriageable age, thus, she is facing hardship and despite making all possible efforts she failed to get the pension and other benefits. In these circumstances, as per petitioner, to avoid any kind of litigation, a notice for demand of justice was got served upon respondents through her counsel on 13. 6. 2006. Thereafter, petitioner preferred this writ petition and a prayer was made that respondents may be directed to provide all retiral benefits such as pension, gratuity, GPF, commutation etc. Upon filing the writ petition, this Court issued notices to the respondents and in reply it is pointed out by the respondents that application for voluntary retirement made by the petitioner was wrongly accepted as requisite years of qualifying service i. e. 15 years were not completed by the petitioner, therefore, competent authority after considering this aspect of the matter revoked the order of acceptance of voluntary retirement vide its order dated 11. 8. 2003. The said order has been placed on record along with reply by the respondents as Annex. R/3. After perusing reply filed by the respondents, it was felt necessary by the petitioner to challenge the order Annex. R/3 dated 11. 8. 2003 because said order was not communicated to petitioner and in reply for the first time it has come to the knowledge of petitioner that earlier order for accepting voluntary retirement dated 4. 6. 2003 has been revoked as petitioner did not complete requisite period of qualifying service as per Regular 18 (3) of Employees Service Regulation, 1964, therefore, an application was filed for amendment of writ petition, which was allowed and in amended writ petition order Annex. R/3 dated 11. 8. 2003 has been challenged on various grounds. Learned counsel for the petitioner argued that order impugned dated 11. 8. 2003 was never served upon the petitioner till filing of reply to writ petition. Further it is submitted that petitioner served with the respondent department since 1991 to 2003 and her application for voluntary retirement was accepted by the competent authority, thus she has become entitled for pension but unfortunately no retiral benefits are granted, which is violative of Article 300a of the Constitution of India.
(3.) ACCORDING to the petitioner, pension is neither a charity nor bounty or grade but is a right of an employee under the Rules, therefore, statutory right cannot be snatched by the respondents which is to be paid for the past services rendered by an employee and to provide as a social welfare measure. Further it is submitted that employee after completion of 10 years of service becomes entitled for retiral benefits, therefore, application seeking voluntary retirement was filed by the petitioner which was accepted but later on as per respondent's contention vide order dated 11. 8. 2003 order of acceptance of voluntary retirement was revoked. ACCORDING to the petitioner the order dated 11. 8. 2003 was not served upon her and for the first time it is brought to the notice of petitioner in reply to the writ petition that the order of acceptance of voluntary retirement was revoked vide order dated 11. 8. 2003. As per petitioner there was no ground left with the respondents to review the order of acceptance of voluntary retirement and there is no provision in the Regulation which empowers the Superintending Engineer (City) to review or revoke the order passed by him, therefore, order impugned is without jurisdiction. It is further argued by learned counsel for the petitioner that while filing an application for voluntary retirement petitioner made true disclosure of all service particulars and there was no concealment or misrepresentation in her application for voluntary retirement so also application was processed in accordance with law and same was accepted vide Annex. P/2 dated 4. 6. 2003 and petitioner was also paid amount of leave encashment and she was assured by the respondents that her post retiral benefits will be finalized within stipulated time. But now in reply, for the first time, it is informed that order of acceptance of voluntary retirement dated 4. 6. 2003 has been revoked on 11. 8. 2003 because petitioner has not completed qualifying service, which is 15 years, at the time of filing application for voluntary retirement, therefore, according to Rules petitioner's application for voluntary retirement was wrongly considered and accepted by the department. According to counsel for the petitioner, for the mistake of respondents petitioner cannot be blamed and now the question of completing 15 years service has become academic because mistake of accepting voluntary retirement prior to 15 years cannot be attributed to the petitioner. Therefore, her application for voluntary retirement can now be accepted with effect from completion of 15 years service and petitioner is ready to accept the benefits of voluntary retirement from the date of completion of 15 years of service and if such relief of pension is granted by the respondents then petitioner will not claim salary for the period from 5. 6. 2003 till the date of completion of 15 years of service. ;