Rajasthan High Court - Jaipur
Association Of Retired Employees Of ... vs The State Of Rajasthan And Anr. on 6 July, 1992
Equivalent citations: 1992WLN(UC)119
JUDGMENT J.R. Chopra, J.
1. This writ petition has been filed by the Association of Retired Employees of Municipal Council, Jodhpur on behalf of its Members, whose names, dates of appointment, dates of retirement and other particulars are mentioned in Schedule-I appended to the writ petition. The members of the petitioner Association were contributors to the erstwhile Jodhpur Provident Fund as also to the Contributory Provident Fund. They retired from service after receiving. The amount credited to their Provident Fund Accounts during their service period. Although, they were initially appointed to the Jodhpur Municipal Council but on merger of the erstwhile state of Jodhpur with the State of Rajasthan, the Government of Rajasthan took control of the Jodhpur Municipal Board but the employees were governed by the conditions mentioned in the Jodhpur Municipalities Act. 1943 (hereinafter referred to as 'the Act'). It is alleged that while serving Jodhpur Municipal Council, they were the servants of the erstwhile Jodhpur State and on merger of the Jodhpur State with the State of Rajasthan, they became the employees of the Govt. of Rajasthan and continued to be so till the options were invited from they in the year 1953 i.e. on 31.3.1953 whether they want to remain in Govt. service or they want to opt for the services of Jodhpur Municipal Council.
2. The members of the petitioner-Association opted for the services of Jodhpur Municipal Board which later became Municipal Council. After the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959') came into force, two sets of Rules were promulgated by the Govt. of Rajasthan, they are Rajasthan Municipal Services Rules, 1963 and the Rajasthan Municipal Subordinate Ministerial Service Rules, 1963. It is alleged that so far as Jodhpur Contributory Provident Fund is concerned, no deductions were made from the salaries of Shri Ratanlal, Balkishan Bissa, Balkishan Trivedi, Sheo Dutt and Manak Raj till February 1960. Similarly deductions from the salary of Shri Govind Swaroop were not made till the year 1966 and the Municipal Board also did not make its matching contributions.
3. It is alleged that a number of Notifications were issued from time to time giving options to those who were contributors to the Fund to give their options for payment of pension. As these notifications were made effective from a definite dates they came to be challenged in S.B. Civil Writ Petition No. 900 of 1984, which was decided on 3.9.1984 by Hon'ble S.K. Mal Lodha, J. This Judgment has been reported in 1986 RLW 42. The learned single Judge, accepted the writ petition and while declaring dates referred to in the Notifications were held to be invalid and unconstitutional and directed the Govt. of Rajasthan to afford opportunity to the Govt. servants who were members of the Retired Contributory Provident Fund Holders Association to exercise option for pension Irrespective of the date of retirement or the date on which the retired officer was in service or not. Against this Judgment, an appeal was filed and that special appeal has been dismissed by a Division Bench of this Court. Consequently, In pursuance of the Judgment of this Court, the State Govt. issued a memorandum dated 17.10.1987 whereby it was notified that the ex-employees of the Rajasthan State, who retired after 1.4.1951 from a post under the Govt. availing themselves of retirement benefits available under the Jodhpur Conbtributory Provident Fund Rules and who had not opted for pension on affording opportunities from time to time after 1.4.1951 may opt for pension. In view of this memorandum, the members of the petitioner-Association approached the Jodhpur Municipal Council and presented their options to the Administrator but he refused to accept them. Thereafter, their options were sent by post and they were not entertained and it was conveyed to them that they are the retired employees of the Jodhpur Municipal Council and so, they are not entitled to any pension.
4. It has been contended that certain employees of the Ajmer-Merwarda Municipalities have been allowed an opportunity to opt for pension. According to the petitioner-Association, one Shri Bhaglrath Sharma also filed a writ petition before this Court praying therein that he should also be given an opportunity to opt for pension. He was initially a member of the Dungarlancer of the erstwhile State of Bikaner and his services were put at the disposal of the Bikaner Municipality on deputation. He was later on transferred to various Municipalities and eventually retired from service with Provident Fund. His writ petition was allowed and it was directed that he should also be given an opportunity to opt for pension in the same manner as option was given to the employees of the erstwhile Ajmer-Merwara Municipalities. Of course, in reply to the writ petition filed In Bhagirath Sharma's case, it was contended on behalf of the State of Rajasthan that option was given to the employees of the erstwhile Municipalities of Ajmer-Merwara is they were entitled to get pension as per the Central Civil Services Regulations before the merger of Ajmer-Merwara with the Rajasthan State.
5. According to the petitioner-Association, they are entitled to opt for pension in terms of the Memorandum dated 17.10.1987 and the view taken otherwise is absolutely incorrect. They are also the servants of the State of Rajasthan and have retired from service after 1.4.1951 from a post under the Govt. and, therefore, they are entitled to pensionary benefits. It was submitted that in the alternative, at least upto 31.3.1953 when options were taken from them to opt either for Govt. Service or for Municipal Service, they were Govt. servants and, therefore, upto that date, they were entitled to pensionary benefits. Moreover, they are the persons who retired from a post under the Govt. and, therefore, they cannot be discriminated. It was further submitted that the members of the Jodhpur Contrioutory Provident Fund is one class and if options are given to others, who retired from a post under the Govt., this option should also be given to them. According to the petitioner-Association, Municipality being a State under Article 12 of the Constitution and Municipal Services being Civil Services under the State, the members of the petitioner-Association are entitled to the same benefits as are granted to other Govt. Servants.
6. It was contended that when the members of the petitioner-Association opted for provident fund, they had no other option. They were not given any chance to opt for pension or to opt for Provident Fund and, therefore, the option that has been given to others cannot be denied to them. If it is denied to them, it is violative of Articles 14 and 16 as also Article 21 of the Constitution. It was also claimed that from the salaries of certain members of the petitioner-Association, deductions of Contributory Provident Fund were not made from their salaries either upto February 1960 or upto 1966 and this is another reason why they are entitled to pensionary benefits.
7. The contention of the petitioner-Association is that if it is considered that this Notification dated 17.10.87 is not applicable to the Municipal employees then the words "ex", "of the Rajasthan State" and "from a post under the Govt." as occuring in the First para of the Memorandum dated 17.10.1987 be declared to be invalid as the same is discriminatory.
8. A reply to the show cause notice has been filed on behalf of the Municipal Council, Jodhpur as also by the State of Rajasthan. It was contended that the members of the petitioner Association were the servants of the Jodhpur Municipal Council and later, they were absorbed in the Municipal Services of the State when Jodhpur State was merged with the State of Rajasthan and, therefore, by nostretch of imagination, they can be said to be Govt. servants. Rule 36 of the Rajasthan Municipal Service Rules, 1963 clearly provides that the Rajasthan Service Rules, 1951 will be applicable to the Municipal employees except the provisions relating to pay, allowances, pension, leave and other conditions of service. A similar provision has been made in Rule 36 of the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963. Thus, pensionary benefits have been specifically excluded to the members of the Municipal Boards. When the municipal employees are not Govt. employees, then the Notification dated 17.10.1987 cannot be made applicable to them. According to the respondents, Municipal employees at no point of time were asked to give any option for pension. The Rajasthan Municipal Service Rules, 1963 and the Rajasthan (Subordinate and Ministerial Service) Rules, 1963 came into force in the year 1963 and no challenge has been made to the aforesaid Rules, which prohibit payment of pension to the Municipal employees. It was submitted that the members of the petitioner-Association have retired from service way back in the years 1966 to 1984 and, therefore, this writ petition is highly belated.
9.According to the respondents, the Municipalities are autonomous bodies and even if they are treated as State under Article 12 of the Constitution, the retired employees of the Municipal Boards/Councils cannot be treated as persons who have retired from Govt. service and, therefore, the Memorandum dated 17.10.1987 is not applicable to them. It was contended that the retired municipal employees never acquired the status of Govt. servants and, therefore, they are not entitled' to take benefit of the Memorandum dated 17.10.1987 giving options to the Govt. servants either to opt for Contributory Provident Fund or for pensionary benefits. It was further contended that the members of the petitioner-Association have retired from Municipal services after receiving the benefit of Contributory Provident Fund and, therefore, they cannot turn round and say that they should also be granted pension. This Memorandum dated 17.4.1987 is applicable to those ex-employees of the State of Rajasthan who retired after 1.4.1951 from a post under the Govt. When the members of the petition-Association have not retired from a post under the Govt., they are not entitled to any pensionary benefits. The employees of the Ajmer-Merwara Municipalities were entitled to pensionary benefits and, therefore, their case cannot be equated with the case of the members of the petitioner-Association.
10. We have heard Mr. M. Mridul, the learned Counsel for the petitioner, Mr. M.R. Singhvi, the learned Counsel for respondent No. 2 and Mr. L.S. Udawat, the learned Addl. Advocate General for the State and iiave carefully gone through the record of the case.
11. It is an admitted case of the parties that, initially, the members, of the petitioner-Association were appointed in the Jodhpur Municipal Council forming part of the erstwhile Princely State of Jodhpur. Their service conditions were governed by the Jodhpur Municipal Act, 1943 and the Rules made thereunder, and they contributed to the Jodhpur Contributory Provident Fund like all other employees of the State of Jodhpur.
12. It was contended by Mr. M. Mridul, the learned Counsel appearing for the petitioner-Association that some of the Members of the Jodhpur Contributory Provident Fund Association who have retired from service filed a writ petition before this Court, which came to be decided on 5.9.1985 by a learned single Judge of this Court. The particulars of that writ petition are: Retired Contributory Provident Fwxd Holders Association, Jodhpur v. State of Rajasthan 1986 (1) WLN 633. In that writ petition, it was contended that the memorandum/circulars Exs. 5 to 8, by which option in favour of pension was made open for those Govt. servants who were members of the CPF Scheme and who had retired after the dates mentioned therein or who were in service or a particular date, it was prayed that the non-petitioner State may be directed to allow an opportunity to exercise the option for pension to all those employees of the Govt. irrespective of the date of retirement or the date on which the retired Govt. servants were in service or not and the memorandum/circulars Exs. 5 to 8, in so far as the dates have been mentioned therein, in respect of the retirement of the Govt. servants may be declared violative of Arts, 14 and 16 of the Constitution, to the extent they restrict the exercise of the option for the pension to the already retired Govt. servants on the basis of the dates mentioned therein. It was submitted that on formation of Rajasthan, the employees who were governed by the CPF scheme were given an opportunity to elect either for the pension under the Rules as contained in the Raj Service Rules or to continue to be governed under the Jodhpur CPF Rules. No doubt, the members of that Association opted for Jodhpur. It was submitted that those who opted for the pensionary benefits came over to the pension schemes contained in the Rajasthan Service Rules, while those who did not exercise this option, retired with CPF benefits. The persons who opted for CPF scheme at the time of retirement were paid lump sum amount at one time in full settlement of their claims for the services rendered In the State as per the provisions of the CPF Scheme and they-are now estopped from saying that the opportunity should be given to them and further they having taken benefit of the CPF scheme are now estopped from challenging the same on the grounds alleged by the petitioner-Association. It was further submitted that the Circulars/Memos Exs. 5, 6 and 7 relate to the existing Govt. servants, who had not retired till then and Ex.8 was made effective from the date the liberalized Pension Rules came into force. It was claimed on behalf of the petitioner-Association that the members of the Jodhpur Contributory Provident Fund Scheme form one class and, therefore, they cannot be discriminated by giving different dates. After citing D.S. Nakara's case , the learned single Judge accepted that contention and held that CPF holders constituted one class. They were governed by the RSR and on the basis of date of retirement, the classification of retired CPF holders could not be made and this classification does not pass the test of permissible classification, for the object could not be achieved on the basis of Exs. 5 to 8 by providing different dates of retirement, or classifying them by specifying different dates of retirement for exercise of option for pension. In the result, that writ petition was allowed and the words on or after 1.9.1968' in Ex.5; 'after 1.9.1976' in Ex.6; 'on or after 31.1.1977' in Ex.7 and 'after 1.9.1981' in Ex. 8 were declared to be unconstitutional and were struck down and, therefore, now the options have been made available to all the employees who have retired after 1.4.1953 when the RSR came into force. It may be stated that the memorandum dated 17.10.1987 was issued in respect of all the persons who have retired from service after 1.4.1951 from a post under the Govt.
13. This takes us to the question as to whether the members of the petitioner-Association retired from a post under the State Govt.
14. It was contended by Mr. M. Mridul, the learned Counsel appearing for the petitioner-Association that the employees of the Municipal Boards/Councils are employees of the State and are equally entitled to the pensionary benefits, which are conferred on other members of the Jodhpur Contributory Provident Fund Scheme. In support of his submission, he has drawn our attention to a decision of this Court in Mehtab Ali Khan v. B.D.O. Panchayat Samiti Chaksu and Ors. 1981 WLN 523, wherein it has been observed:
that the ultimate master of an employee in the 'service' is the State Govt. The rules are framed by the State Govt. and the powers of transfer are vested in it. The B.D.O. of the Panchayat Samiti or the Secretary of the Zila Parishad is a member of the State Service, the pension of the members of the service is payable out of the consolidated fund of the State. These factors, to my mind, leave no manner of doubt that an employee of the 'service' as defined in Section 2(K) of the Rules of 1959 is a member of civil service of the State, namely, the Rajasthan Panchayat Service.
In coming to the aforesaid conclusion, the learned single Judge has referred to the decision of the Gujarat High Court in G.L. Shelda v. The State of Gujarat (1967) 8 Guj. L.R. 833 and certain observations made by their lordships of the Supreme Court in Mathwadas v. Hanshaw and State of Assam v. Kanak Chand Dutta . In State of Assam's case (supra), their lordships of the Supreme Court have observed:
that the true test for determination of the question whether a person is holding a civil post or is a member of the civil services is the existence of the relationship of master and servant between the State and the person holding a post under it and that the existence of such relationship is dependent upon the right of the State of select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wage, and remuneration. It Further held that the relationship of master and servant may be established by the presence of all or some of the factors referred to above in conjunction with other circumstances.
After analysing the provisions of the Gujarat Panchayat Act and various Rules framed under the Act, in G.L. Shelda's case, it has been observed that the members of the Gujarat Panchayat Service are the members of the Civil services under the State Govt.
15. It is one thing that one may be a member of the Civil Service under the State and it is quite another thing that one may be a Govt. servant retired from a Govt. Department from a post under the Govt. According to the Rajasthan Municipal Service Rules, 1963 and the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 read with Section 310(5) of the Rajasthan Municipalities Act, 1959, the employees of the Municipal Boards/Councils are selected by the Municipal Boards/Councils. They can be removed or dismissed or suspended by the Municipal Boards/Councils. Payments of their salaries are being made from the funds of the Municipal Boards/Councils. Their day to day working is governed by the Municipal Service Rules and, therefore, they cannot be termed as Govt. servants. They are employees of the autonomous bodies created by the State Govt. They are not transferable by the orders of the State Govt.
16. It may be stated here that a provision was incorporated in the Municipal Act and the Rules framed thereunder that the State Govt. can transfer any employee of any Municipal Board or Council to another Municipal Board/Council and that provisions came to be struck down by a Division Bench of this Court in Chhaganlal v. State of Rajasthan (D.B. Civil Writ Petition No. 2658 of 1989, decided on 9.8.1990), wherein the learned Division Bench referred to certain observations of their lordships of the Supreme Court in General Officer Commanding-in-Chief and Anr. v. Dr. Subhash Chandra Yadav and Anr. . In General Officer Cornmanding-in-Chiefs case (supra), the question arose was whether the Central Govt. is entitled to frame the rules for transfer of the employees of the Canconment Boards under the substituted Clause (c) of Sub-section (2) of Section 280 of the Cantonments Act. Their lordships of the Supreme Court have held that, the transfer of employee from the Cantonment Board to another violates the autonomy of the autonomous bodies. It was further observed that it was neither a centralised service nor was it a service at the State level and it was pointed out that any such transfer would means termination of the services of the employee from the Cantonment Board from where he was transferred and a fresh appointment to the Cantonment Board where he joins on his transfer. Keeping in view the abore said observations of their lordships of the Supreme Court, the Division Bench of this Court in Chhaganlcd's case (supra) has struck down the provisions of Rule 38 of the Rajasthan Municipal (subordinate and Ministerial Service) Rules, 1963 and Rule 20 of the Rajasthan Municipalities (Class IV Service) Rules, 1964.
17. From the decision of Chhaganlcd's case (supra), it is clear that Municipal Boards/Councils are autonomous bodies. Even the employees of the Municipal Boards/Councils may be holding the character of civil services under the State but they cannot be said to be the persons holding any post under the State Govt. In this view of the matter, we are firmly of the view that the employees of the Municipal Boards/Councils are not the Government servants and it cannot be held that the members of the petitioner Association have retired from a post under the State Govt.
It was next contended by Mr. M. Mridul, the learned Counsel appearing for the petitioner-Association that initially the members of the petitioner-Association were recruited to serve the Jodhpur Municipal Council under the provisions of the Jodhpur Municipal Act, 1943. They were very much Govt. servants and were treated as such till 31.3.1953 when the options were taken from them as to whether they opt for Govt. service or for Municipal Services. Section 61 of the aforesaid Act provides that the Govt. will appoint an Officer as Secretary of the Board on such salary and terms of service as it deems fit. Section 62 lays down that the Govt. will appoint a Health Officer or an Assistant Health Officer for the Municipality on such salary and terms as it deems fit. Sections 63, 64, 65 and 66 of the aforesaid Act reads as under:
Section 63. The Govt. may also appoint an Assistant Secretary for the Municipality.
Section 64. The power to promote, suspend, reduce, fine and dismiss the officers and servants appointed under Section 53 to 65 will be vested in the Govt., who will give due weight to any recommendation that the board may make in this behalf.
Section 65. The Govt. may employ such other officers and servants as may be required for the Municipality.
Section 66. The Jodhpur Govt. Service Regulations will apply to all Officers and servants of the Municipality.
From the perusal of the provisions of Sections 61 to 66 of the Jodhpur Municipal Act, 1943 it is clear that it was the State Govt. who was the appointing authority of the employees of the Municipal Council and it could suspend or terminate or dismiss the employees of the then Jodhpur Municipal Council and, therefore, keeping in view the observations of their lordships of the Supreme Court in Mathwadas's case (supra) and State of Assam's case (supra) as also the observations made by the Gujarat High Court in G.L. Sholda's case (supra), the members of the petitioner-Association can be held to be the persons who have retired from a post under the State Govt. on 31.3.1953, when they have opted for the Municipal services.
18. It was lastly contended by Mr. Mridul, the learned Counsel appearing for the petitioner-Association that in S.B. Civil Writ Petition No. 3057 of 1988, Retired Contributory Provident Fund Holders Association, Jodhpur v. State of Rqjasthan and Ors. decided on 16.3.1990, a learned single Judge of this Court took the view that the members of the petitioner-Association, whose names are mentioned in Schedules A and B annexed with the writ petition have served the State Govt. and later, on their selection for their permanent absorbtion by the University concerned, they were absorbed in the University service after giving their options and therefore, from the date their lien was terminated by the Govt. they ceased to be Govt. servants and became entitled to proportionate pensionary benefits keeping in view their period of service with the Govt. Their employment under the University would not be employment or reemployment under the Govt. Merely because, the members of the petitioner-Association had not opted pension at a particular point of time in view of the then Prevailing circumstances, they cannot be estopped from claiming the right to opt for pension subsequently in the changed circumstances. So far as their Govt. service is concerned, it will be deemed that they have been permanently absorbed in the University service from the date their lien has been terminated from the Govt. service and as such, they became entitled to the proportionate pensionary benefits as per Rules as regards the period they have served the State Govt.
19. It was submitted by Mr. Mridul or the strength of the decision in Retired Contributory Provident Fund Holders Association, Jodhpur's case S.B. Civil Writ Petition No. 305.7 of 1988, decided on 16.3.1990, which was later on followed in R.S.E.B. Retired Employees Association, Jodhpur v. K.S.E.B. Jaipur and Ors. S.B. Civil Writ Petition No. 1335 of 1989 decided on 22.1.1992 and in Retired Contributory Provident Fund Holders Association v. State of Rajasthan S.B. Civil Writ Petition No. 4037 of 1989 decided on 5.2.1992, that a view has been taken by the Court that if an employee of the Govt. is absorved in the University or the RSEB or elsewhere then it will be treated that he has retired from the Govt. service on and from the date, his lien has been terminated from the Govt. service and he will be entitled to proportionate pension on the basis of his length of service with the Govt. All the members of the Jodhpur Contributory Provident Fund from one class and they cannot be discriminated specially when the decisions of this Court have been implemented and reliefs have been granted to others and, therefore, the members of the petitioner-Association cannot be denied similar reliefs.
20. Mr. L.S. Udawat, the learned Addl. Advocate General has argued that the members of the Jodhpur Contributory Provident Fund Scheme form a separate class than the members of the Pensionary scheme. When the members of the Jodhpur Contributory Provident Fund Scheme have not opted for pensionary benefits then they are not entitled to any pensionary benefits. In this respect, reliance has been placed on certain observations of their lordships of the Supreme Court in State of Raj. v. Rajasthan Pensioner Samaj , wherein it was observed that the Contributory Provident Fund retirees and employees opting for pension scheme form different classes. The Contributory Provident Fund retirees cannot as of right switch over to pension scheme and get benefits granted to pension scheme retirees. In coming to this conclusion, reliance has been placed on Krishna Kumar v. Union of India , wherein the petitioners were retired Railway employees who were covered by or had opted for the Railway Contributory Provident and Scheme. Before 1957, the only scheme for retirement benefits in the Railways was the Provident Fund Scheme. It was replaced in the year 1957 by the pension scheme. The employees who entered railway service on or after April 1, 1957 were automatically covered by the Pension Scheme instead of the PF Scheme. The employees who were already in service on April 1, 1957 were given an option either to retain the PF benefits or to such over the pensionary benefits on conduction that the matching railway contribution already made to their PF accounts would revert to the railways on exercise of the option. Twelve notifications were issued and in case of each option, the cut-off date was anternior to the respective datee of announcement and as a result, employees who retired after the cut-off date (specified date) and before the notification date were also made eligible for exercising option despite the fact that they already retired in the meantime. It was stated that while two alternative benefits of PF and pension were more or less equal at the time when the petitioners were to make their choice but the pensions had thereafter been liberalised manifold to the benefit of the pension retirees, whereas no similar benefits had been extended to those who retired opting for PF and that had the petitioners, all of who are PF retirees, known that pensionary benefits might subsequently be so increased, they would no doubt have opted for pension instead of PF. As regards the cut-off date it was mainly submitted that the railways issued the notifications giving options to certain PF retirees after the respective cut-off dates to opt for the pension scheme even after their retirement but the same options were not given to other similarly situated PF retirees beyond the respective cut-off dates. This, it was submitted, was clearly discriminatory and violative of Article 14. Dismissing the writ petitions and the SLP, the Supreme Court has held that those who did not opt for the pension scheme had ample opportunity to choose between the two viz., the PF Scheme or the pension scheme. Each option was given for stated reason related to the options. On each occasion time was given not only to the persons in service on the date of the railway Board's letter but also to persons who were in service till the stated anterior date but had retired in the meantime. The period of validity of option was extended in all the options except a few. Therefore, the cut-off dates were not arbitrarily chosen but had nexus with the purposed for which the option was given. It was further held that morally it may be that the State's obligation towards pension retirees is the same as that towards PF retirees out that was not the ratio decidenti of Nakara's case. Legislature has not said so. To say so legally could amount to legislation by enlarging the circumference of the obligation and converting a moral obligation into a legal obligation.
21. In Nakara's case, the Court treated the pension retirees only as a homogeneous class. It was never held that both the pension retirees and the PF retirees formed a homogeneous class and that any further classification among them-would be violative of Article 14. On the other hand, the court clearly observed that it was not dealing with the problem of a Fund. The Railway Contributory Provident Fund is by definition a fund. Besides on the retirement of an employees Govt's legal obligation under the PF account ends while under the pension scheme it begins. The rules governing the PF and its contribution are entirely different from the rules governing pension. It was further held:
It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to PF retirees. This being the legal position, the rights of each individual PF retiree finally crystalized on his retirement whereafter no continuing obligation remained while, on the other hand, as regard Pension retirees, the obligation continued will their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee "value and rising prices which, considering the corpus already received by the PF retirees, they would not be so adversely affected ipso facto. It cannot, therefore, be said that it was the ratio decidendi in Nakara that the State's obligation must be the same as that towards the pension retirees. An imaginary definition of obligation to include all the government retirees in a class was not decided and could not form the basis for any classification for the purpose of this case. Nakara cannot, therefore, be an authority for this case.
Their lordships of the Supreme Court also observed:
that the pension scheme and the PF scheme are structually different is also in view of the Central Pay Commissions and hence ex-gratia benefits have been recommended, which may be suitable increased.
It was further observed:
that the option given to the PF employees to switch over to the pension scheme with effect from a specified date is bad as violative of Article 14 for the same reasons for which in Nakara the notification were read down.... On the question of feasibility of financial implication and expenditure includible in the Annual Financial Statement, the Supreme Court has to be loath to pass any order or give any direction because of the division of functions between the three co-equal organs of the Govt. under the constitution.
On the question of feasibility of converting all living PF retirees to pension retirees, it is not necessary to express any opinion.
Mr. Singhvi and Mr. Udawat have therefore, contended the it has been held by their lordships of the Supreme Court that PF retirees and Pension retirees from different classes. There is no quarrel about this principle. That was a case where options were given to the holders of Railway Contributory Provident Fund Scheme to opt either for the pension or for the Fund but here, No. option was given to the members of the petitioner-Association. At no point of time, the members of the petitioner-Association refused to opt for pension. When the members of the petitioner-Association were taken in service, they started contribution to the Jodhpur Contributory Provident Fund and have retired with those benefits. Thus, on facts, the authorities cited by Mr. Udawat and Singhvi have no application to the facts of the present case. D.S. Nakara's case (supra) is applicable to the facts of the present case only to this extent that when other employees who were contributors to the Jodhpur Contributory Provident Fund Scheme have been given option by the State Govt. to opt for pension, if they have retired from Govt. service after 1.4.1951 then this option cannot be dried to the members of the petitioner-Association. We have already held that on 31.3.1953, the lien of the members of the petitioner-Association was terminated from Govt. Service when they opted to remain in Municipal Services and thus, they will be treated as retired from Govt. Service from that date when their lien was terminated.
22. The authorities cited by Mr. Mridul as regards the application of pensionary benefits to the employees of the Ajmer-Merwara Municipalities do not hold good so far as the case of the petitioner-Association is concerned. The employees of Ajmer-Merawa Municipalities were governed by the Rules of Central Services and those Rules provided for pensionary benefits. The Rajasthan Municipalities (CPF & G) Rules, 1969 came into force with effect from 2.8.1970 and, therefore, prior to that, the employees of the Ajmer-Merwara Municipalities were governed by the aforesaid Rules. It was, therefore, claimed that those who have retired before 2.8.1970 should be given pensionary benefits. At no point of time, the members of the petitioner-Association were entitled to pensionary benefits. Why pensionary benefits were extended to the members of the Ajmer-Merwara Municipalities was not brought to the notice of the learned single Judge, who decided S.B.C.W. No. 288 of 1989, Rajasthan Nagar Palika Sewa Niwaran Karamchari Sangh v. State, decided on 26.2.1991. Actually, that judgment was per incuriam because the facts were not disclosed to the Court by or on behalf of the Government why the members of the Ajmer-Merwara Municipalities were extended the benefit of pension, with effect from 2.8.1970 if they have retired prior to that date. As stated above, from 2.8.1970, the aforesaid Rules came into force and the employees of the Ajmer-Merwara Municipalities prior to that were governed by the aforesaid Rules and, therefore, those who were appointed/retired price to 2.8.1970 were governed by the Ajmer-Merwara Municipal Rules and hence they were extended the benefit of pension. Thus, this authority has no application to the facts of the present case.
23. Similar is the position about the decision rendered in Bhagirath's case (supra). He was earlier a member of the Dungarlancers, a Regiment of Bikaner State Army, where his post was pensionable and thereafter, he joined Bikaner Municipal Board. S.37 of the Bikaner Municipal Act also provided that the post is pensionable and, therefore, on parity of reasoning which prevailed with the Court in the case of erstwhile employees of Ajmer-Merwara Municipalities, the Court allowed him option of pension. Thus, this authority also has no application.
24. In the result, this writ petition is allowed in part. The members of the petitioner-Association, whose names are mentioned in Schedule-I appended to the writ petition are entitled to the payment of proportionate pension on the basis of the period spent by them in Govt. Service i.e. the date they entered the service of erstwhile Jodhpur Municipal Council till the date of their permanent absorbtion by the Municipal Board, Jodhpur i.c.31.3.1953, the date on which they opted to remain in Municipal Services. These benefits will be available to those members of the petitioner-Association, who have retired from service after 1.4.1951. They are further entitled to all other retirement benefits according to Rules. The amount of Government contribution towards their Contributory Provident Fund Account plus interest paid thereon and other retirement benefits already paid to them shall be adjusted against their pensionary and other retirement benefits payable to them in pursuance of this judgment. Filing of this writ petition by the member of the petitioner-Association will be deemed as an exercise of such an option in terms of the Notification dated 17.10.1987. All consequential benefits be made available to them as per Rules within a period of six months from today.
25. In the facts and circumstances of this case, the parties are left to bear their own costs of this writ petition.