DEVINATH DIXIT Vs. STATE & ORS

JUDGEMENT

(1.) This writ petition has been filed by Devinath Dixit with the prayer that the order of penalty dated 30.10.2001 be quashed and set aside and the respondent-Rajasthan State Road Transport Corporation (for short-'RSRTC') be directed to pay him pensionary benefits along with arrears and interest @ 12% per annum.

(2.) Shri Suresh Kashyap, learned counsel for the petitioner has argued that petitioner was appointed as Conductor in the State Roadways Department of the Government on 12.9.1961. Subsequently, when the RSRTC was incorporated, the petitioner by order dated 17.5.1968 was posted with the Corporation in its Jaipur Depot. He was subsequently made permanent on the post of Conductor by order dated 7.7.1971. In the course of time, he was posted in Bharatpur Depot of the Corporation. On attaining the age of superannuation on 31.7.2001, he retired from service from that date. It was argued that petitioner was illegally placed under suspension at the time of his retirement for absence of period of one day and was awarded penalty of Rs.1,000 by order dated 30.10.2001 with further direction to forfeit the differential amount between the subsistence allowance and salary. The respondents are under an obligation to pay to the petitioner the amount of pension and gratuity, but the same was not paid. The Depot Manager by order dated 29.9.2005 directed payment of gratuity, but the computation of gratuity was not made on the basis of last drawn wages, rather the gratuity was computed on the basis of reduced salary payable to him as subsistence allowance. Despite repeated requests, the petitioner's prayer was not accepted. As regards pensionary benefits, learned counsel invited attention of the Court towards the additional affidavit filed by the petitioner on 19.11.2013. It is argued that petitioner has submitted option to the State Government for receiving pension on 26.4.1966, which is evident from document Annexure-12. At the time the option was asked from the petitioner whether he wanted to elect the contributory provident fund scheme or receive pension, he opted in favour of pension. Reference is made to the Government notification dated 15.4.1966, in clauses-2 and 7 whereof, it was stipulated that a permanent State Government employee, entitled to receive pension in the Rajasthan Service Rules when transferred to service of the Corporation, would not be again placed on probation there and would be treated as permanent employee and that he would be entitled to opt either for receiving pension under the Rajasthan Service Rules or for contributory provident fund. In clause-8 of the said notification, it is provided that if a government servant opts for pension, the Government would pay pension to him, provided on retirement of such employee the capitalised value of pension and gratuity would be received by the corporation. If such employee while in the services of the Corporation gives option for receiving pension under the Rajasthan Pension Rules, his family would be on his death, entitled to death pension and gratuity as per Rajasthan Service Rules. Learned counsel submitted that once the petitioner opted for pension at the time of his absorption in the services of the Corporation in terms of the said notification dated 15.4.1966, conditions of his service cannot be later altered to his prejudice without his consent.

(3.) Shri Suresh Kashyap, learned counsel for the petitioner further argued that the petitioner even otherwise has submitted a fresh option in response to the notice put by the respondents on the notice board on 19.1.1990. Copy of the said notice was forwarded by the Assistant Divisional Manager to the Assistant Electrical Engineer/Assistant Depot Manager (Admn.) and to all Check-Post-In-charge/Booking-Incharge vide letter no.1406 dated 16.3.1990. Petitioner in response to that submitted his option on 23.3.1990, copy of which is placed on record along with the additional affidavit, which was duly attested by Assistant Divisional Manager, RSRTC, Bharatpur. Learned counsel submitted that the respondent-RSRTC issued an office order dated 2.1.190 notifying that the RSRTC Employees Pension Regulations, 1989 have been enforced with effect from 1st April, 1989 with the approval of the Government and the existing employees as on 1st April, 1989, who were on regular pay scale shall be required to submit their option either to continue as member of existing CPF scheme or for pensionary benefits along with adoption of RSRTC Employees G.P.F. Regulations, 1989. Learned counsel has referred to clause 3(l) of the RSRTC Employees Pension Regulations, 1989 according to which any existing employee, who does not exercise the option within specified period of 90 days shall be deemed to have exercised option in favour of the Pension & GPF Regulations. This issue was taken up for consideration by the Board of Directors of the Corporation in its 164th meeting on 16.12.1994 and the aforesaid clause was substituted to the effect that those who do not exercise the option within specified period of 90 days, shall be deemed to have exercised the option in favour of pension & GPF Regulations. Notification to that effect was issued on 15.6.1996, but in clause-4 of that circular, it was submitted that those who were appointed in the regular pay scale after 1.4.1989 are not required to submit their option as the pension scheme, as it is, would be applicable to them. Learned counsel argued that petitioner on that day was receiving his salary in regular pay scale, therefore, he was even otherwise not required to submit the option. Learned counsel in support of his submissions has relied on the judgement of this Court in Rajnikant Sharma vs. State & Ors., S.B.Civil Writ Petition No.1155/2005 decided on 27.9.2008 and division bench judgement of this Court in RSRTC & Anr. vs. Ranjikant Sharma & Ors., D.B. Civil Special Appeal (Writ) No.71/2009 decided on 16.3.2009 whereby the aforesaid judgement was upheld. Learned counsel argued that Special Leave Petition against the aforesaid division bench judgement was dismissed by Supreme Court. Learned counsel for the petitioner has also relied on the judgement of this Court in Laxmikant Sharma vs. RSRTC, Jaipur & Ors., S.B. Civil Writ Petition No.4586/2000 decided on 19.1.2009.