The main legal point established in the judgment is that failure to timely exercise the option for a pension scheme and receiving CPF benefits without protest precludes the claim for the pension scheme benefit.

JUDGMENT :

1. This petition under Article 226 of the Constitution of India is filed by the petitioner claiming following reliefs:-

“(A) Your Lordships may be pleased to admit and allow this Special Civil Application;

(B) Your Lordships may be pleased to issue appropriate writ, order or direction, declaring that, the petitioner is eligible and entitled to get family pension.

(C) Your Lordships may be pleased to issue appropriate writ, order or direction, directing the respondents to give Family Pension to the petitioner and further directing the respondents to give arrears alongwith interest to the petitioner from the date of death of the deceased employee Shri Kiritsinh Manglubhai Sarvaiya;”

2. Essentially, the petition is seeking a declaration that the petitioner widow of deceased employee of the respondent No.3 was entitled to pension.

3. Learned advocate for the petitioner submitted that the petitioner, who is the widow of one Kiritsinh Manglubhai Sarvaiya was appointed with the respondent Gram Panchayat in the year 1980 and since then had worked with the Gram Panchayat and had opted for pension in place of contributory provident fund and therefore, upon his retirement they were entitled to the pension.

3.1. Learned advocate submitted that the case of the husband of the petitioner for pension was perhaps not considered by treating him not to be a regular employee of the Gram Panchayat. However, he referred to the policy decision of the State Government to regularize appointment of all the employees, who are appointed between 1963 and 1984. Reference is made to the policy and the communication dated 09.9.2016.

3.2. Learned advocate submitted that in view of the policy of the State Government for giving an option to an employee either to continue in Contributory Provident Fund Scheme or joint pension scheme, the husband of the petitioner did exercise such option and thereafter, in the year 2006, made a detailed representation. This representation contained all the necessary details made in the service books of the deceased husband and giving out the details that the appointment of the husband of petitioner was against the sanctioned post and was a permanent appointment. Despite this, no response was received, as a result, Special Civil Application No.21640 of 2007 was filed Seeking direction for grant of family pension to the petitioner.

3.3. It is submitted that despite the order dated 28.02.2007 passed in aforesaid petition, the proposal of the petitioner for family pension was rejected and the ground for rejection was that the husband of the petitioner had not exercise the option in accordance with law.

3.4. Learned advocate has relied upon the decision of the Apex Court in case of Harijan Paniben Dudabhai v/s. State of Gujarat and others, in Civil Appeal No.5441 of 2016 to submit that in similar set of facts, the petitioner therein was given the benefit of family pension also. He has also relied upon decision of this court in Special Civil Application No.18634 of 2015, which was a case in connection with another Nagar Palika, wherein same set of facts had arisen.

4. As against this, learned advocate for the respondent-Gram Panchayat submitted that the case of the petitioner was duly considered. However, the petitioner had not exercised his option either to join the pension scheme in order to continue with the Contributory Provident Fund Scheme as per the policy and the option which was exercised was much beyond the time period prescribed to exercise such option. Moreover, the husband of the petitioner had expired in the year 2001 and at that time, all benefits also including contributory provident fund, received by the petitioner without any objection and thereafter, for the first time, in the year 2007, representation was made to claim family pension and thereafter, the earlier round of petition.

5. It is submitted that it in the earlier round of petition also, this Court has not granted any relief in favour of the petitioner though