Dhanna Lal Jat vs R S R T C And Ors
2021 Latest Caselaw 7082 Raj/2

       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.

(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

(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.

(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

(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.

(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

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