HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

D.B. Special Appeal (Writ) No. 24 / 2015

1.

Jodhpur Vidyut Vitran Nigam Limited near New Power House,

Jodhpur through its Managing Director.

2.

The Superintending Engineer (Bikaner Division), Jodhpur

Vidyut Vitran Nigam Limited, Power House Road, Bikaner.

3.

The Executive Engineer (DD), Jodhpur Vidyut Vitran Nigam

Limited, Power House Road, Bikaner. ----Appellants

Versus

Legal Representative of Late Shri Dinesh Kumar Shrivastav

1.

Shri Subhash Srivastav s/o Late Shri D.S. Shrivastav

2.

Vimla Devi Shrivastav w/o Shri Brij Bihari Lal Shrivastav,

Both are resident of Near Ramdev Tent House, Rani Bazar,

Bikaner. ----Respondents

_____________________________________________________

For Appellant(s) : Mr. Manoj Bhandari with Ms. Sonal Lalwani

For Respondent(s) : Mr. Sandeep Shah

_____________________________________________________

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

03/04/2018

1.

Heard learned counsel for the parties.

2.

With respect to the two directions issued by the learned

Single Judge in the impugned order dated 23.09.2014, in appeal

issue argued relates to the direction to release pension to the

deceased Dinesh Kumar Shrivastav.

3.

For its existing employees who were covered by the CPF

Scheme the appellant introduced a pension scheme in the year

1988 and vide office orders issued on different dates extended the

time by which positive option had to be exercised to opt for

pension.

4.

Whereas, as per the appellant the last date by which option

was to be exercised was 31.03.1996, but as per the respondent

the last date was 30.06.1997. We need not identify as to what

was the last date for submitting the necessary application for the

reason we find that from the pleadings of the respondent in the

writ petition he had submitted the option for pension at the time

he submitted his application seeking voluntary retirement, and for

which we only need to reproduce the pleadings in paragraphs 10

to 12 of the writ petition. They read as under:

"10.

That thereafter, the petitioner served a notice on the

respondents seeking his voluntary retirement with effect from

28.8.1999, which was forwarded to the Assistant Engineer [O

& M], RSEB, Loonkarnsar by the Executive Engineer [DD],

Bikaner with the request to accept his request for voluntary

retirment from Board’s Service with effect from 28.8.1999.

The copy of the said Notice for voluntary retirement is

submitted herewith and marked as Annexure/4A.

11.

That the Superintendent Engineer [Bikaner Division],

Bikaner vide his order dated 7.8.1999 accepted the

petitioner’s request for voluntary retirement with effect from

28.8.1999. He also ordered that due and admissible claims

of the petitioner may be settled as per Rules by adjusting

Board’s due, if any. The copy of the said order dated

7.8.1999 is submitted herewith and marked as Annexure/5.

12.

That it is just and proper to mention here that at the

time of seeking his voluntary retirement, the petitioner was

asked to opt either for pension or for CPF. Accordingly, the

petitioner opted for pension and submitted the said option

form to the Head Office through Assistant Engineer [O&M],

RSEB, Loonkaransar. The copy of the said Option Form

submitted by the petitioner is submitted herewith and

marked as Annexure/6.”

5.

If only these paragraphs were brought to the notice of the

learned Single Judge, it would have dawned that the positive case

pleaded by Dinesh Kumar Shrivastav was that he submitted

application for pension when he sought voluntary retirement from

service. In the pleadings the exact date when he submitted the

application seeking voluntary retirement has not been pleaded,

but from the pleadings in paragraph 10 the date has to be three

months prior to 28.08.1999 for the reason three months notic