Rukma vs State of Rajasthan and Others

Ar. Lakshmanan, C.J.—Heard both the sides.

This special appeal is directed against the order of a learned single Judge dated May 9, 1997 dismissing the writ petition on the ground that the husband of the appellant had never opted for pension and did not submit even the pension form for family pension and because of that reason his stale claim is now being taken up after lapse of more than 20 years.

We are unable to appreciate the reasons given by the learned single Judge for disposal of the writ petition. In the present case, the husband of the appellant entered in service of the State Government as Helper w.e.f. April 1,1955. He was later promoted to the post of Assistant Gr.-II w.e.f. September 28, 1961, and further promoted to the post of Assistant Gr. I w.e.f. April 20, 1970 and thereafter as Fitter II w.e.f. November 19, 1976. The services of the petitioner-appellant''s husband were regularized in the regular cadre of workcharged employees. The husband of the appellant expired on December 25, 1976. At that time, he was holding the post of Fitter Gr. II in the workcharged cadre in the office of the Assistant Engineer, City Sub Division II, Public Health and Engineering Department, Jodhpur.

The State Government by Memorandum dated January 33, 1977 conveyed the decision of the Government of Rajasthan that the workcharged employees who are absorbed/ appointed on regular post of conversion of workcharged post into regular post under the Government from time to time be allowed to exercise the option to elect either to continue the contribution towards Provident Fund or to opt for pensionary benefits. By order dated July 23, 1977 the Government passed another order adding Para. 9 to the memorandum dated January 31, 1977 as under:

GOVERNMENT OF RAJASTHAN

FINANCE (GR.2) DEPARTMENT

MEMO

No. F.1(26)FD(GR.2)/74 Dated Jaipur,

March 10, 1977

Sub: Counting of Work-charged Service for Pension on Absorption/appointment of work-charged Employees on Regular post under the Government.

The Governor is pleased to order that after existing Para 8, the following Para may be added in the Finance Department Order of even number dated January 31, 1977 namely:

"9. The work-charged employees who were absorbed on regular posts but died before exercising option for pension under these orders shall be deemed to have opted for pension.under this order unless the members of family of such deceased specifically make a request that they may be paid Contributory Provident Fund benefit due to deceased. The Head of Office should before preparation of pension papers invariably ascertain from the members of the family of the deceased entitled to receive the retirement benefits whether he/she would like to receive Contributory Provident Fund benefit or not.

By Order of the Governor.

Sd/-

Financial Commissioner

& Secy. to the Government"

It is now submitted by Mr. Harish Purohit that by virtue of Clause 9 referred to above, the petitioner becomes entitled for pension as per Memorandum dated January 31, 1977 and has submitted that she has also submitted a form of option opting for pensionary benefits on April 4, 1977 i.e. within one month from the date of second notification dated March 10, 1977, however, the respondent did not allow her pension but made payment of contributory provident fund on November 19, 1977. The appellant made number of representations to the respondents requesting for grant of family pension and it is submitted that the then Executive Engineer, City Division had also recommended her case to the Director, Provident Fund Department, Jaipur for giving pensionary benefits to the appellant but the recommendations on the representations made by the appellant were of no avail, therefore, the appellant preferred a writ petition before this Court praying to direct the respondents to extend the pensionary benefits to the appellant from the date of death of her husband and also to pay the entire arrears with accrued interest.

A reply was filed by the respondents stating that the appellant is not entitled to the benefit of pension in the garb of Finance Department''s order dated March 10, 1977 because she has already received her claim. It is also submitted that the appellant has not opted for pension. It is further submitted that the Government order is not applicable to the appellant as her husband did not opt for pension. The writ petition was disposed of on May 9, 1997 on the ground of laches.

We have perused the pleading and heard the arguments of the counsel appearing on the either side. As already noticed, the appellant who is the widow of the deceased Government employee had exercised her option on April 4, 1977 in view of Clause 9 of the Memorandum dated January 31, 1977, the appellant is entitled to invoke the benefit of the notification dated March 10, 1977. The said notification dated March 10, 1977 deals with the work-charged employees who were absorbed on regular posts but died prior to the date of notification January 31, 1977 which directs that such employees shall be deemed to have exercised their option for pension under these orders unless the members of family of such deceased specifically make a request that they may be paid contributory Provident Fund benefits due to the deceased. The said notification also directs the Head Office to ascertain from the member of the family of the deceased who is entitled to receive the retirement benefits whether he/she would like to receive contributory benefit or not, but as already noticed, the appellant herself opted for pension as per the amended provisions on April 4, 1977 itself. It is also not the case of the department that she had requested them to pay the Contributory Provident Fund. In our view, the appellant is entitled to exercise the right successfully to get the family pension and arrears accrued, as such the contention of the respondents that the writ petition suffers from delay and laches cannot at all be accepted.

It is settled law that in case of pension, the cause of action is recurring and therefore there is no question of any delay or laches. It is also a matter of record that the appellant had made several representations and none of the representations was considered by the department. There is no reason for not giving the pension to the appellant.

The appeal therefore succeeds and the respondents are directed to pay the entire arrears of family pension to the appellant within three months from the date of receipt of the judgment and continue to pay the same in future. The amount already paid by the respondents as Contributory Provident Fund shall be adjusted towards her account and the balance if any shall be paid to the appellant within two months from the date of receipt of the intimation from the department.

The appeal is allowed accordingly. There shall be no orders as to costs.