HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 12854/2017
Dhanna Lal Jat S/o Shri Hari Narayan, aged about 61 years, R/o
Village Post Chosla, Tehsil Malpura, District Tonk (Raj.)
----Petitioner
Versus
1. Rajasthan State Road Transport Corporation Through Its
Chariman Cum Managing Director, Head Office, Parivahan
Marg, C-Scheme, Jaipur.
2. Financial Adviser, Rajasthan State Road Transport
Corporation, Head Office, Parivahan Marg, C-Scheme,
Jaipur.
3. Chief Manager, Jaipur Depot, Rajasthan State Road
Transport Corporation, District Jaipur.
----Respondents
For Petitioner(s) : Mr. Kailash Choduhary
For Respondent(s) : Mr. Vinayak Kumar Joshi
HON'BLE MS. JUSTICE REKHA BORANA
Order
Judgment Reserved On : 26.11.2021
Judgment Pronounced On : 01.12.2021
The brief facts of the case are as under:
The petitioner was appointed as Conductor with the
respondent-Department on 08.05.1985 as a daily-wager. On 23.03.1999, his services were regularized and he was appointed on regular basis with one year probation period. As the benefit of regularization of the petitioner was belated, he challenged the action of the department before the Industrial Tribunal. An award dated 27.01.2009 was passed by the Industrial Tribunal in favour of the petitioner against which a writ petition was preferred by the Department before this Court.
(Downloaded on 02/12/2021 at 09:52:39 PM)
(2 of 6) [CW-12854/2017] The said Writ petition (S.B. Civil Writ Petition No. 1018/2010) came to be decided on 26.10.2010 on the basis of settlement entered into between the parties in the spirit of Lok Adalat. Vide the said order it was directed that the continuity of service of the petitioner be deemed to commence from 08.05.1985 and notional fixation of the salary be made on completion of 9,18,27 years of service. The fixation of salary was directed to be made by the Department within a period of one month and the arrears w.e.f. 23.03.1999 were directed to be paid within a period of 45 days.
In pursuance to the directions as aforesaid, the fixation of the petitioner was made on 09.12.2010 w.e.f. 08.05.1985.
It is the grievance of the petitioner in this writ petition that along with the fixation on 09.12.2010, the amount qua Contributory Provident Fund (CPF) has been stated to be deducted by the respondent-Department whereas he had been a member of the GPF Scheme right from the inception of the service. On the same date, that is 09.12.2010, the petitioner filed a representation stating that he had been getting the GPF deducted from his salary right from the inception and therefore he cannot be transferred to the CPF Scheme at this stage. The petitioner further stated that the said representation may also be treated to be his option for inclusion in GPF Scheme. Further he stated that when he was transferred from Vaishali Nagar Depot to Jaipur Depot then too, he had requested vide letter dated 17.12.2013 that he may be treated to be a member of GPF only.
The petitioner superannuated on 30.09.2016 and on 04.01.2017, he was sanctioned the amount qua CPF and gratuity.
The petitioner has further stated that although he had been allotted a GPF Account number and GPF was deducted regularly (Downloaded on 02/12/2021 at 09:52:39 PM) (3 of 6) [CW-12854/2017] from his salary as per the Rules, he has not been declared to be a member of GPF Scheme by the Department and therefore no pension is being granted to him post retirement.
Aggrieved of the same, present writ petition has been filed by the petitioner.
Reply to the writ petition has been filed by respondent- Department and it has been stated that as the notional benefits had been granted to the petitioner w.e.f. 08.05.1985, GPF Pension Rules of 1989 were not applicable on him. Further, it has been urged by the respondents that in the year 1992 and 1996, Options were invited from the employees to give their choice to be included in CPF/GPF Schemes but no such option was given by the petitioner. Even at the time of reinstatement/regularization, the petitioner did not give any such option which he was required to give within a period of 60 days. It has been further the case of the petitioner that CPF and gratuity amount had already been sanctioned in favour of the petitioner and therefore Order dated 04.01.2017 is perfectly valid.
Heard counsel for both the parties and perused the material available on record.
During the course of the arguments both the Counsel for the petitioner and the respondents relied upon the Notification dated 02.01.1990 and amended notification dated 15.06.1996 issued by the Department. A perusal of Notification dated 02.01.1990 makes it clear that employees were directed to furnish their option within a period of 90 days regarding their inclusion in the CPF or the GPF Scheme. It was also mentioned in the notification that if no option would be given by the employee, he would be deemed to be governed by the Pension Rules, 1989.
(Downloaded on 02/12/2021 at 09:52:39 PM)
(4 of 6) [CW-12854/2017] It is relevant to note that Clause-11 of the said notification specifically laid down that the Pension and GPF Scheme would be applicable only on the regular employees and would not be applicable on the daily-wagers, contractual employees and the temporary employees and therefore they were not entitled to furnish any option in terms of the notification.
In view of the said notification, it is clear on record that at the relevant time the petitioner was not entitled to furnish any option and therefore, did not give the same. As the services of the petitioner have been regularized on 23.03.1999 only, he could not have given option at the relevant time in terms of the notification dated 02.01.1990. Therefore, the argument of the respondents that the petitioner did not give his option at the relevant time is of no substance.
Clause-4 of the amended notification dated 15.06.1996 reads as under:
Þfnukad 1-4-89 ds i'pkr fu;fer osru J`a[kyk esa fu;qDr deZpkfj;ksa ds fodYi izLrqr djus dk vko';drk ugha gS D;ksafd mu ij Lor% gh isa'ku ;kstuk ykxw gSaA߯ A perusal of the amended notification shows that the last date for giving option was fixed for 15.08.1996 which date is also a date prior to the date of regularization of the services of the petitioner. Therefore too, the petitioner could not have given his option at that particular point of time. Even if it is assumed that as the fixation of salary of petitioner had been made with effect from 08.05.1985, both the notifications will be applicable on him then too in view of the above mentioned Clause-4 of the (Downloaded on 02/12/2021 at 09:52:39 PM) (5 of 6) [CW-12854/2017] notification dated 15.06.1996, the petitioner was not required to give any option.
Further even if the argument of the respondents is accepted that petitioner was required to furnish his option then too, it is clear on record that on the very first date of information that is 09.12.2010, the petitioner had submitted his option of being included in the GPF Scheme in future too.
Viewed from any angle, the ground of the respondents that the petitioner was required to give his option which he failed to do therefore he would not be entitled to the GPF Pension Scheme cannot be held to be tenable.
In support of his submissions regarding the deduction of GPF amount, the petitioner has placed on record his Last Pay Certificate and the pay certificate for the month of January 2011.
A perusal of both these documents shows that amount qua the GPF had been deducted from the salary of the petitioner and even a loan qua his GPF deposit had been sanctioned to him during his course of employment. The said documents have neither been denied nor any pleading of denial of the same has been made by the respondents in their reply. Therefore too, it can be concluded that the petitioner was a member of GPF Scheme from the inception of the services and cannot be transferred to the CPF Scheme arbitrarily in the year 2017, after his superannuation.
The petitioner has also placed on record an Office Order pertaining to one similarly situated employee who has been directed to be allotted a GPF Account in place of CPF Account.
No denial of the said document has also been made by the respondents and in the circumstances it would be deemed to be admitted that the person was similarly situated to the petitioner. (Downloaded on 02/12/2021 at 09:52:39 PM)
(6 of 6) [CW-12854/2017] Therefore too, if the similarly situated person has been granted the benefit of GPF Pension Scheme, the petitioner cannot be declined the grant of the same.
In view of the above observations, the writ petition of the petitioner is allowed. The respondents are directed to grant the petitioner the benefit of GPF Scheme and to grant the GPF Pension to the petitioner with effect from the date of his retirement.
Stay petition and all pending applications stand disposed of.
(REKHA BORANA),J ashu /95 (Downloaded on 02/12/2021 at 09:52:39 PM) Powered by TCPDF (www.tcpdf.org)