An employee who has completed more than 10 years of service, including the period of suspension, is entitled to receive pension under the voluntary retirement scheme, even if there is a break in service due to the termination of employment. The employer is liable to deposit the pension contribution and interest for the period of break in service.

JUDGMENT :

Sanjeev Prakash Sharma, J.

1. The petitioner filed this writ petition claiming following prayers :-

"It is, therefore, most respectfully prayed that your lordships may graciously be pleased to accept this writ petition by an appropriate writ order or direction in the nature thereof:-

(i) all the pensionary benefits may be given to the petitioner;

(ii) from 8.12.1988 to 6.7.2001 all the salary during this period and all consequential benefits may be given to the petitioner;

(iii) Selection grade may kindly be paid to the petitioner as per his service;"

2. The brief facts which required to be noticed are that the petitioner was appointed on 22nd May, 1979 with the Rajasthan State Road Transport Corporation (for short "RSRTC") on the post of "Driver". His services were terminated vide order dated 08.12.1988, which has been challenged by preferring a civil suit. The civil suit was dismissed on 02.09.1994 by the Additional Civil Judge (Junior Division) No. 5, Jaipur. Thereafter, he preferred a Civil Regular Appeal No. 89/1998 before the learned Additional District Judge No. 3, Jaipur, who set aside the termination order with further direction to the respondent-RSRTC to conduct enquiry fresh, during the pendency of the enquiry, services of the petitioner were to remain under suspension. The enquiry was concluded vide order dated 04.06.2001. The Disciplinary Authority held the petitioner guilty of charges and withheld his two annual grade increments with cumulative effect. The remaining salary apart from substance allowances was also forfeited for the suspension period and the petitioner was reinstated on duty.

3. Thereafter, the petitioner has sought voluntary retirement by moving an application on 31.05.2002 and the same was accepted by the respondent-RSRTC by 28th May, 2002 with effect from 31st May, 2002. The case of the petitioner is for release of pension in terms of voluntary retirement order dated 18.10.2002, however, it has not been released for the reasons that the total actual services rendered by the petitioner was treated as less than 10 years.

4. Learned counsel for the petitioner submits that as per the scheme of voluntary retirement, a person can seek voluntary retirement if he has completed more than 10 years of service or has attained age of 40 years. It is further submitted that the petitioner had completed more than 23 years of service and therefore his voluntary retirement was accepted and he was entitled to receive pension in terms of the years of service rendered. Learned counsel further submits that the respondents although have not passed any order but have sent the reply of the legal notice informing that the respondents have counted the petitioner's service as 9 years and 9 days only treating the entire period from 08.12.1988 till reinstatement as break in service.

5. A reply has been preferred by the contesting respondents No. 1 & 2 and respondent No. 3 separately. Respondents No. 1 & 2 in their reply state that the petitioner was a member of the Family Pension Scheme of 1971 under the Employee Contributory Provident Fund, it was later on converted as Employee Pension Scheme 1965 w.e.f. 16.11.1995. The pension case of the petitioner was sent to respondent No. 3 who objected that the petitioner has not completed 10 years of service thus not eligible for pension. Thereafter, his contribution of employees has been refunded to him as amounting Rs. 5,749/- and has been deposited in his account, thus, it is submitted that pension is not payable to him. Respondent No. 3 i.e. Provident Fund Department in its reply submitted that the petitioner has not completed qualified pensionable service of 10 years as such he was found not eligible for pension and also states that after having sent the letter from respondent-RSRTC for release of pension, it was noticed that the petitioner was having one more code number i.e. RJ/272/14087. As the pension scheme is linked with pension contribution and total period of service,