State of Rajasthan and Others vs Smt. Mangi Devi and Another

Dinesh Maheshwari, J.—This intra-court appeal is directed against the order dated 30.07.2008 as passed in S.B. Civil Writ Petition No. 4753/2006 whereby the learned Single Judge of this Court upheld the claim of the writ petitioner (respondent No.1 herein) for family pension in respect of the services rendered by her late husband, who died while in service in the year 1984. The respondent No.1 filed the writ petition aforesaid stating the grievance against denial of family pension and prayed for the following reliefs:-

It is, therefore, most respectfully prayed that by an appropriate writ, order or direction this Hon''ble Court may be pleased to:-

i) quash and set aside letter dated 18/02/2005 issued by the office of respondent No. 2 (ANNEXUREP/7) according to which benefit of Pension is not admissible to the petitioner after making payment of C.P.F. Any other order which is prejudicial to the interest of the petitioner may also kindly be quashed and set aside.

ii) To declare that the petitioner is entitled to get Family Pension from 8/7/1984 on the death of her husband on 7/7/1984 while in service.

iii) To direct the State Government to finalise the claim of Family Pension of the petitioner and pay her the amount together with arrear thereon from the date the same became payable after adjusting the amount of CPF already paid.

iv) To direct the State Government to pay interest @ 12% per annum on the amount of Pension and arrear from the date same became payable till the date of actual payment.

v) Any other order, which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

The relevant background aspects are that late Shri Tulsi Ram, the husband of the writ petitioner, had been a Class IV Employee in the Public Works Department (''PWD'') since 30.07.1971 and died on 07.07.1984 while working as Carpenter Grade-I in the Office of Assistant Engineer, Sub-Division-I, PWD, Jodhpur. The case of the petitioner in the writ petition was that her husband having rendered the service for the requisite number of years, she was entitled for family pension; and she had regularly been pursuing the matter that remained under consideration of the department. In this regard, the petitioner referred to some of the communications including the one dated 29.08.1997 (Annex. 1) whereby the Executive Engineer, PWD (Mechanical Division), Jodhpur directed the concerned Assistant Engineer for appropriate proceedings. The petitioner averred that under a communication dated 30.07.1998 (Annex.3) the Assistant Engineer informed that the pensionary benefit could not be allowed to the petitioner as the amount of Contributory Provident Fund (''CPF'') had already been paid to her. The petitioner further averred that she made a representation dated 28.03.2003 to the effect that she was prepared to return the CPF amount and prayed for reconsideration of the case for grant of family pension; that yet another representation to the same effect was made on 09.06.2003 (Annex. 4) and then, she got served a notice for demand of justice through lawyer on 11.07.2003 (Annex. 5). The writ petitioner pointed out that ultimately she came to know of a communication dated 18.02.2005 (Annex. 7) as received from the Office of Additional Chief Engineer, PWD (Jodhpur Zone), Jodhpur to the effect that pension was not admissible if the CPF had already been paid. The petitioner further averred that after coming to know of the aforesaid communication dated 18.02.2005, she submitted the option for family pension in the office of the Superintending Engineer but was directed to submit the same in the Office of the Assistant Engineer.

After the aforesaid narration of facts, the petitioner referred to point No.4 in the circular dated 15.07.1994 (Annex. 9) as issued by the Finance Department of the Government of Rajasthan and contended that as per this circular, a person could exercise the option for pension and in case of the employee being not alive, the option given by any authorised person of the family could be considered as valid; and that pursuant to this circular, she had submitted her option on 31.05.2006 with the requisite affidavit. The petitioner further averred that despite the aforesaid, she was not granted family pension and got served another notice through the lawyer on 07.06.2006.

The petitioner alleged that she was entitled to get the family pension as her husband had completed 10 years of service at the time of his death; and that the respondents (the appellants herein) were not justified in ignoring the option submitted by her and were wholly unreasonable in denying her the family pension.

It was contended before the learned Single Judge on behalf of the writ petitioner that in accordance with Rule 22-A of the Rajasthan P.W.D. (B & R) including Gardens, Irrigation, Land Development (Programme) Circle C.A.D. Chambal Department Kota (including its Divisions/sub-divisions) Water Works, Ayurvedic and Forest Department (exluding Departmental Operation Circle) Work-charged Employees Service Rules 1964 (for short ''the Rules of 1964'') it was the duty of the respondents to get an option from the work charged employee for pension benefits but her husband was not provided this opportunity although Rule 22-A had been inserted on 17.09.1980. Further, with reference to the circular dated 15.07.1994 (Annex. 9), it was submitted that the State Government took the decision for granting opportunity to opt for pension but this opportunity was not afforded to the petitioner; and she being the widow of a deceased employee, denial of family pension and other pensionary benefits to her was totally illegal and the communication dated 18.02.2005 was liable to be quashed.

The appellants (respondents in the writ petition) essentially contended in their reply that the late husband of the petitioner was a member of the Contributory Provident Fund Scheme and as such, full and final payment was made to the petitioner; and that by the communication dated 21.12.1998, the Assistant Director, SI and GPF Department made it clear with reference to the Government Order dated 13.07.1994 that the petitioner was not entitled to the family pension. The respondents referred to the contents of the said Government Order dated 13.07.1994 (Annex. R/2) and contended that the petitioner was not entitled to family pension because her case had already been decided and could not be re-opened.

The learned Single Judge proceeded to consider and decide the writ petition by the impugned order dated 30.07.2008. The learned Single Judge referred to paragraph-4 of the Government Order dated 13.07.1994 (Annex. R/2) and found the petitioner entitled for the benefits particularly when it had not been the case of the respondents that any opportunity was given to her husband to opt for the pensionary benefits. The learned Single Judge observed as under:-

In para no. 4 of the said notification, following decision was taken:-

These orders shall apply to such work-charged employees who are in the service of Government on the date of issue of this order. Past cases already decided otherwise than in accordance with the provisions of this order, shall not be re-opened. But in respect of pending cases of

i. Those employees who have died, the application from the widow/legal heirs for grant of pension would be treated as option.

ii. Those employees who have already retired without exercising option may also exercise fresh option under these orders.

As per para 4 (ii) of the Notification it is specifically provided that those employees who have already retired without exercising option may also exercise fresh option under the Notification. Meaning thereby, option was given to those employees who have already retired without exercising option but at the same time in para 4 it is provided that past cases already decided otherwise than in accordance with provisions of this order shall not be reopened. In my opinion, the order of not reopening the cases already decided is discriminatory because right of fresh option has been given to retired employees, who retired without exercising option, therefore, same benefit is also required to be given to the petitioner, who is widow of late Tulsi Ram, who died while in service in the year 1984 without availing opportunity to exercise option after granting regular status on the post of Carpenter. In this view of the matter when petitioner filed an application for grant of pensionary benefits being widow of late Tulsi Ram then her case was to be considered for grant of pension because as per reply of respondents it is no where stated that any option was given to late Shri Tulsi Ram to opt for pensionary benefits. Therefore, denial of pensionary benefits to petitioner is totally unfounded and discriminatory, hence violative of Article 14 of the Constitution of India.

The learned Single Judge further observed that the period during which CPF was not deducted was required to be counted for the purpose of pensionary benefits; and while holding the petitioner entitled for family pension and pensionary benefits, observed and directed as under:-

In this view of the matter, petitioner is entitled for family pension and other pensionary benefits because her husband had completed ten years of service which is minimum required service for grant of pension, therefore, denial of family pension to petitioner is totally illegal and unconstitutional.

While following the law laid down in Sujjan Singh''s case (supra) and Ismail Khan''s case supra) and other judgments mentioned above, this writ petition is allowed. Order Annex. 7 dated 18/2/2005 is hereby quashed and set aside and respondents are directed to allow family pension to petitioner and other retiral benefits as available within a period of three months from the receipt of certified copy of this order. Respondents are further directed to pay 6% simple interest on the amount of family pension from the date of entitlement of petitioner. It is also made clear that amount paid to petitioner under CPF Scheme shall be adjusted from the arrears of family pension and arrears shall be paid within stipulated time. No order as to costs.

Assailing the order aforesaid, the learned counsel for the appellants contended that the learned Single Judge has erred in not considering that Clause 4 (i) of the Government Order dated 13.07.1994 is applicable only in respect of pending cases; that it is clearly provided that the Order shall apply to all such work-charged employees who were in the service of Government on the date of issue of this Order but past cases already decided otherwise than in accordance with the provisions of the Order, shall not be re-opened. The learned counsel contended that in the present case, the petitioner had received the full and final payment of CPF and, therefore, in view of Clause 4 of the Order dated 13.07.1994, this case was not to be re-opened. The learned counsel further contended that the learned Single Judge has been in error in entertaining the grossly belated writ petition inasmuch as the husband of the petitioner died in the year 1984 but she filed the writ petition claiming family pension only in the year 2006 i.e., after an inordinate delay of 22 years. The learned counsel has particularly referred to the decisions of the Hon''ble Supreme Court in the cases of Panchi Devi Vs. State of Rajasthan and Others, Union of India (UOI) and Others Vs. M.K. Sarkar, and Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh & Ors.: 2011 STPL (Web) 492 SC. It is also submitted that the learned Single Judge has been wholly unjustified in awarding interest to the writ petitioner despite the fact that the appellants had already made the payment of CPF amount.

Per contra, the learned counsel for the respondent No.1 has duly supported the order impugned and submitted that the present one has not been a matter of gross delay and latches particularly for the concerned circulars having been issued only in the year 1994 and the petitioner having been regularly pursuing her case since the year 1997. The learned counsel has referred to the Division Bench decisions of this Court in the case of Smt. Rukma Vs. State of Rajasthan, and Din Mohmmed @ Deenia (since deceased) through legal representative Shri Kayamuddin Vs. The Union of India & Ors.: 2002 WLC (Raj.) UC 103.

Having given a thoughtful consideration to the rival submissions and having examined the record, we are not persuaded to consider interference in this intra-court appeal except on the question of interest.

The appellants have questioned the order impugned and the claim of the writ petitioner essentially on two scores: first, that as per paragraph No.4 of the Government Order dated 13.07.1994, only the pending cases were to be considered for option but the past cases already decided were not to be re-opened and the present one was clearly a matter of past case already decided which was not to be re-opened; and second, that the writ petition suffered from gross delay and laches. Both these submissions remain untenable in the fact situation of the present case and in the true operation of the Rules of 1964.

It is noticed that Rule 22-A, providing for option for pension or provident fund to a work-charged employee who had been declared permanent on completing 10 years service, came to be inserted in the Rules of 1964 on 17.09.1980. Then, sub-rule (6) came to be inserted in Rule 22-A by a notification dated 11.12.1989 and reads as under:-

22.A. Option for Pension or Provident Fund.-

......

......

(6) In case an employee eligible to C.P.F. benefits who dies without exercising an option to elect the pension rules alongwith new family pension benefits before the prescribed date, the Administrative Authority at its discretion may give the benefits of pension rules alongwith the new family pension rules in lieu of C.P.F. benefits where such a request is specifically made by nominee or nominees validly nominated by the subscriber or in their absence by all the members of the family as defined in the C.P.F. rules. If all these latter are not agreed on making such a request, then the C.P.F. money will be paid to them according to the provisions of the rules in this regard. The above amendment shall be effective from 1.9.82. However, cases otherwise decided in past shall not be re-opened.

The provision itself made it clear that it would be effective from 01.09.1982. It is not in dispute that the husband of the writ petitioner expired on 07.07.1984 i.e., on a date after the said sub-rule (6) of Rule 22-A came into effect.

The learned counsel for the appellants though has referred to Panchi Devi''s case (supra) but noticeable it is that therein, the husband of the writ petitioner died in the year 1978 and in the given fact situation, the Hon''ble Supreme Court held that question of grant of any benefit under Rule 22-A (6) in favour of the said writ petitioner could not arise. According to the appellants, as per paragraph-4 of the Government Order dated 13.07.1994 (Annex. R/2), the cases decided in the past are not to be re-opened. The contents of the said paragraph-4 of the Order dated 13.07.1994 (as quoted in the order of the learned Single Judge and reproduced hereinabove) are required to be read in tune with above referred sub-rule (6) of Rule 22-A of the Rules of 1964. The said provision has essentially been made in relation to an employee who dies without exercising an option to elect the pension rules alongwith new family pension benefits before the prescribed date. In such a case, the benefit of pension rules alongwith new family pension rules in lieu of CPF benefits could be granted upon making of a request by the nominee or all the members of the family. In clause (i) of paragraph-4 of the Order dated 13.07.1994, it has been provided that in relation to the employees who had died, the application from the widow/legal heir for grant of pension would be treated as option. It is also noticed that in paragraph-2 of the said Order dated 13.07.1994, it has been provided that work-charged employee may be allowed option and in case of not receiving the option within stipulated period of two months, it would be deemed that he had opted for pension in lieu of CPF. Similarly in relation to employees who had already retired without exercising the option, they could exercise fresh option per sub-clause (ii) of Paragraph-4 of the said Order dated 13.07.1994.

Thus, evident it is that the intention, at all stages and to the maximum, has been to provide pension in lieu of CPF except for decided and closed cases; and merely for an employee dying without exercising option, the benefit of pension rules is not to be declined to the family. On the contrary, the said sub-rule (6) had been inserted in order to provide relief to the family of such employee who died without exercising the option. In the present case, when husband of the petitioner died on 07.07.1984, the benefit of sub-rule (6) of Rule 22-A was and is available to her. The only question now is as to whether the writ petitioner''s case could be termed as the one "decided in the past" and thus, not available to be re-opened?

It is noticed that the respondents have not stated in their reply that any option was given to the late husband of the petitioner to opt for pensionary benefits. Sub-rule (6) came to be inserted on 11.12.1989 and was made effective from 01.09.1982; consequently covering the case of the husband of the writ petitioner who died on 07.07.1984. The Government proceeded to issue necessary clarifications in its Orders issued in the month of July 1994. As noticed, the writ petitioner had made the prayer in the month of August 1997 for family pension and the matter remained under consideration. The last communication had been in the year 2005. We are unable to find anything on record whereby it could be said that the case of retiral benefits relating to the petitioner''s husband was ever "decided" as sought to be suggested by the appellants in this appeal. The appellants cannot suggest that the case of employee was "decided" in the past merely with reference to the fact that CPF amount had been paid to the petitioner; and the entitlement of the petitioner under sub-rule (6) of Rule 22-A read with the said Government Orders dated 13.07.1997 and 15.07.1994 cannot be denied. In our opinion, the learned Single Judge has not committed any error in holding the writ petitioner entitled to family pension.

So far the aspect of delay is concerned, after having taken into comprehension the fact situation, we are unable to agree with the learned counsel for the appellants that the petition filed in the year 2006 suffered from such delay and laches wherefor the petitioner was required to be denied the requisite relief.

The decision in Panchi Devi''s case (supra) on the aspect of delay does not apply to the facts of the present case. In Panchi Devi''s case, the writ petitioner had made the claim for family pension after 14 years of death of her husband but all the dues admissible to the husband of the petitioner were settled during his life time and the writ petitioner had received all dues. As noticed, the aforesaid had been a case where the benefit of sub-rule(6) was not even available as the employee had died in the year 1978. In the totality of circumstances, the said one had been a case of gross delay in relation to an untenable claim. The decision in M.K. Sarkar''s case (supra) was of an employee who long after retirement attempted to opt for pension scheme but failed to opt for the same despite having been given chances on 8 occasions and who ultimately chose the CPF Scheme. On the facts, it was found that the employee was aware of availability of option and he was held not entitled to contend want of written notice of availability of option and that too after 22 years. The decision in M.K. Sarkar''s case proceeding on its own facts does not apply to the present case. In Pepsu Road Transport Corporation''s case, again, the Hon''ble Supreme Court considered the case of an employee who failed to opt for pension scheme and to refund the advance taken from the employer''s contribution of CPF and, thus, he was held disentitled for any benefit under the pension scheme. As noticed, present case stands on entirely different footings. Sub-rule (6) came to be inserted on 11.12.1989 and the Government issued necessary clarifications in its Orders issued in the month of July 1994. The writ petitioner made the prayer in the month of August 1997 for family pension and could finally notice denial of her rights only in the questioned communication dated 18.02.2005 which too had not been sent to her. In this situation, the writ petition filed in the year 2006 could not have been thrown out on the ground of delay and laches. In the passing, we may observe that such objection regarding delay and laches was not even suggested before the learned Single Judge in the reply submitted by the respondents.

In an overall comprehension of the matter, we are satisfied that the learned Single Judge has rightly upheld the claim made by the writ petitioner for grant of family pension and other retiral benefits. The learned Single Judge has also taken care to direct that the amount paid to the petitioner under CPF shall be adjusted against the arrears and family pension.

However, so far the question of award of interest at the rate of 6% per annum from the date of entitlement of the petitioner is concerned, we are unable to uphold the directions in this regard. In the present case, the appellants cannot be said to have deliberately delayed the disposal of case of the writ petitioner and it cannot be said that they had intentionally harassed the petitioner. The appellants appear to have entertained bona fide doubts about the entitlement of the writ petitioner particularly for CPF amount having already been paid. In the given fact situation, awarding of interest to the writ petitioner before the date of order of the learned Single Judge does not appear justified.

In the fact situation of the present case, we are of opinion that interest of justice shall be served if the directions regarding interest are modified in the manner that the payable amount shall carry interest at the rate of 6% per annum from the date of order of the learned Single Judge. Accordingly, this appeal is partly allowed only to the extent of modification regarding directions for payment of interest as indicated above. The other part of the order impugned and the directions as issued by the learned Single Judge are upheld. The parties are left to bear their own costs of this appeal.