1996 Supreme(Raj) 1361
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Arun Madan, J.
Jamal Khan Bisavati - Appellant
Versus
State of Raj. and ors. - Respondent
S.B. Civil Writ Petition No. 2432 of 1994.
Decided On : 7-11-1996
Employees who retired from service prior to the effective date of the Rajasthan Municipalities Service (Pension) Rules, 1989 were entitled to pensionary benefits under the rules, provided they refunded the provident fund benefits they had received, along with interest.
Headnote:
PENSION - RAJASTHAN MUNICIPALITIES SERVICE (PENSION) RULES, 1989 - RULE 5(4) - PENSIONARY BENEFITS - ENTITLEMENT - RETIREMENT PRIOR TO EFFECTIVE DATE OF RULES - ADJUSTMENT OF PROVIDENT FUND BENEFITS - INTEREST ON PROVIDENT FUND CONTRIBUTION - INTERPRETATION.
Fact of the Case:
The petitioner, an ex-employee of the Municipal Board, Sarwar, retired from service on 30.9.87, one day before the Rajasthan Municipalities Service (Pension) Rules, 1989 (Rules of 1989) came into effect on 1.10.87. He applied for pensionary benefits in 1992, but his claim was rejected on the ground that the rules were not retrospective. The petitioner challenged the rejection of his claim.
Finding of the Court:
The court held that the petitioner was entitled to pensionary benefits under the Rules of 1989, even though he had retired prior to the effective date of the rules. The court relied on its earlier decisions in Rajasthan Nagar Palika Seva Niwrat Karmachari Sangh v. State of Rajasthan, Mohan Lal v. State of Rajasthan & Anr., and Brij Bhushan Sharma & ors. v. State of Rajasthan & Ors., which held that the impugned circular denying pensionary benefits to employees who had retired prior to the effective date of the rules was arbitrary and violative of the employees' rights.
Issues: 1. Whether the petitioner was entitled to pensionary benefits under the Rules of 1989, even though he had retired prior to the effective date of the rules? 2. Whether the petitioner was required to refund the provident fund benefits he had received, including the employer's contribution, in order to be eligible for pensionary benefits?
Ratio Decidendi: 1. The court held that the petitioner was entitled to pensionary benefits under the Rules of 1989, even though he had retired prior to the effective date of the rules, because: a. The impugned circular denying pensionary benefits to employees who had retired prior to the effective date of the rules was arbitrary and violative of the employees' rights. b. The Rules of 1989 did not contain any bar on the grant of pensionary benefits to employees who had retired prior to the effective date of the rules. 2. The court held that the petitioner was required to refund the provident fund benefits he had received, including the employer's contribution, in order to be eligible for pensionary benefits, because: a. Rule 5(4) of the Rules of 1989 required employees who opted for pension to refund the provident fund benefits they had received, along with interest. b. The petitioner had not refunded the provident fund benefits he had received, and therefore, he was not entitled to pensionary benefits.
Final Decision: The court allowed the petition and directed the respondents to release the pensionary benefits admissible to the petitioner in accordance with the rules and the ratio of the earlier decisions of the court. The court also directed the petitioner to refund the provident fund benefits he had received, along with interest, before he could be eligible for pensionary benefits.
JUDGMENT
1. - The petitioner, who is an ex-employee of Municipal Board, Sarwar, Distt. Ajmer has filed this writ petition seeking the relief of pensionary benefits on the grounds inter alia that the petitioner retired from the service of the aforesaid Municipal Board on attaining the age of superannuation as a 'Bagwan' (Class-IV employee) w.e.f. 30.9.87 vide (Annexure-1). The Rajasthan Municipal Service (Pension) Rules 1989 were made effective and applicable to the employees of the Municipal Board w.e.f. 1.10.87 while the petitioner retired one day earlier i.e. on 30.9.87 as referred to above. Subsequent to the retirement of the petitioner, the petitioner represented his case to the Municipal Board for grant of pensionary benefits. He was, however, orally informed that his claim had been rejected by the Directorate of Pensions. Consequently he served a notice for demand of justice through his counsel on the Director, Local Bodies vide (Annexure-5) dated 4.2.94 with its copy to the Regional Dy. Director, Local Bodies but all to no effect. It is pertinent to mention that before sending the notice for justice demand, the appointing authority of the petitioner viz. the Executive Officer, Municipal Board, Sarwar had recommended the case of the petitioner for grant of pensionary benefits vide (Annexure-3) dated 26.3.93. but the said request was turned down by the Regional Deputy Director. Local Bodies, Jaipur vide (Annexure-4) dated 31.3.93 on the ground that the request of the petitioner could not be considered since he had retired from services of the Municipal Board on 30.9.87 i.e. one day prior to the issuance of the Notification dated 1.10.87 and hence the petitioner was not entitled for grant of any pensionary benefits as the rules were not retrospective in their operation.
2. In the reply, filed on behalf of the respondent No. 5 (Municipal Board, Sarwar, Distt. Ajmer), it has been contended by the said respondent that the petitioner retired from service w.e.f. the forenoon of 30.9.87 while the Rajasthan Municipalities Service (Pension) Rules 1989 (here in after referred to as the Rules of 1989) were made applicable by the State of Rajasthan to the employees of the Municipal Board w.e.f. 1.10.87. The petitioner had applied to the respondent, Municipal Board for grant of pensionary benefits on 26.11.92 i.e. almost 5 years after coming into force of the aforesaid rules and in any case after the lapse of more than 3 years when the said rules were published. Hence according to the respondents he is not entitled for grant of pensionary benefits. It has further been contended by the said respondents in their reply that since the petitioner had already received the benefit on account of the provident fund including the employer's contribution made by respondent-Board in equal sum, which was contributed by the petitioner, he is not entitled for grant of pension.
3. At this stage it will be pertinent to refer to Rule 5 (4) of the Rules of 1989, which contemplates inter alia that any one who wants to opt for the pension and if he has received the Provident Fund along with the contribution made by the respondent-Board, he has to refund back the contribution of the Board together with interest accrued thereon till the date of retirement plus interest on this total amount @ 6% per annum for being credited to the Pension' Fund. The interest was supposed to be paid for the period from the date of receipt of the Provident Fund to the date of refund.
4. It has been contended in this regard that since the petitioner has not refunded the contribution made on account of provident fund by the employer-Municipal Board nor the interest as envisaged in Sub-rule 5(4) of the Rules 1989, he is not entitled for grant of pension.
5. I have heard learned counsel for the parties and have also perused the Notification dated 1.10.87 as well as the relevant documents on the record and also the judgments of this Court in the matter of Rajasthan Nagar Palika Seva N
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