Mr. B.D. Sharma vs Deputy Education Officer And Ors.
2004 Latest Caselaw 671 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petition is taken up for hearing and disposal.

2. Petitioner by this writ petition impugnes the order dated 3.5.2002 by which the request made by the petitioner for counting his past service rendered with Department of Education, Nainital (Uttaranchal) for the purpose of pension and other benefits had been declined.

3. By the impugned order, the petitioner was intimated that on the basis of a technical ground, the request was not being processed and was being treated as cancelled. Petitioner was willing to deposit the GPF amount received from the previous employer but the respondents were not willing to accept the same. Vide order dated 12.7.2004, Deputy Education Officer (Admn.) West Zone, MCD was directed to personally present in the court with the record on the next date so as to understand the nature of technical objections by which the plea of the petitioner was sought to be declined. Again vide order dated 23.7.2004 after hearing counsel for the parties and Deputy Education Officer, the Accounts Officer (Education) was directed to be present and bring any rules prohibiting the acceptance of GPF from the employee to whom the previous employer has released the GPF directly. Further, if there were any contingencies or events stipulated in the rules by which the benefit of previous service can be denied to the petitioner be also brought to the attention of the court. Today, Account Officer (Education) is present.

4. Mr. Ashok Bhasin, learned counsel for the respondents has tendered in court copy of resolution no.1381 dated 23rd March, 1987 from which extracts of clause 6, which is relevant for the present writ petition is reproduced:-

" Every employees will have an option to retain the benefits received from his previous employer and to get the retirement benefits from the Municipal Corporation only for the period of service rendered or surrender the benefit received from the previous employer and get the pensionary benefits on the basis of combined service. Every employee who want to get the benefit of past service for the purpose of retirement benefits will have to exercise his option within one year from the date of absorption in the Corporation or from the date of issue of orders, whichever is later. If no option is exercised within the stipulated period, the employee shall be deemed to have opted to get the retirement benefits only for the period of service rendered in the Corporation. The option once exercised shall be final. The right to count previous service as qualifying service shall not revive until the amount on account of pro-rata retirement benefits or other terminal benefits already received is refunded Along with interest thereon from the date of receipt of their benefits till the date of deposit with the Corporation. The length of previous service may be accepted on the basis of incontrovertible evidence like service certificate and other service record. The past service will not count towards seniority.

5. Learned counsel for respondents has submitted that the petitioner who had joined the respondents on 21.2.1994 and whose probation period ended on 7.3.1996 was deemed to have absorbed from the said date. An order confirming his appointment and end of probation period was also issued on 7.3.1996 to the petitioner. In view of clause 6 as reproduced above, it would be seen that the petitioner was required to exercise his option for counting of past service for pension benefits within one year from the date of absorption in the Corporation or from the date of issue of orders, whichever is later. In the instant case, 7.3.1996 being the date of his absorption in the Corporation, the petitioner should have exercised his option by 6.3.1997. It is stated that petitioner made a request for his past service being counted for pensionary and other benefits on 23.7.2000, which is a highly belated one. It is also pointed out by the Accounts Officer that the petitioner has only been seeking to deposit GPF amount and the amounts with regard to employer's contribution for pension, leave salary contribution from Education Department, Government of Uttaranchal, have not been received which were also required.

6. Be that as it may, it appears prima facie from the record that the petitioner has failed to exercise the option as required for availing the benefit of past service for the purpose of pensionary and retirement benefits. There is no plausible explanation coming forth for the non-exercise of option within the stipulated time. The plea of the petitioner not being aware of the said memorandum and service condition also would not advance petitioner's case as ignorance of the same cannot be urged.

7. In these circumstances, cost imposed vide order dated 12.7.2004 on respondents is waived. However, respondents should be careful in intimating an employee, properly the reasons for non-grant of the request for counting of his service which was merely labelled as a "technical objection". Moreover, the respondents should ensure that the existing instructions and memorandum are brought to the knowledge of any employee who joins in future.

8. Petition is dismissed with the aforesaid observations and directions.