JUDGMENT 1. - The petitioner who is an ex-officer of Municipal Council, Alwar and who retired from the service of the Municipal Council, Alwar on attaining the age of superannuation, has filed this write petition assailing the impugned notification, dated 26.5.1984 published in Rajasthan Gazette, dated 17.9.1987 whereby he has challenged the decision of the State Government, in denying the pensionary benefits to the petitioner who was an employee of the Municipal Council, Alwar on the ground that he cannot be discriminated qua the employees of the former Ajmer-Marwar region of the State of Rajasthan who are getting the relief of pensionary. benefits being the employees of Municipal Council. 2. By virtue of the powers conferred on the State Government under Section 297 of the Rajasthan Municipalities Act, 1959 (for short `the Act') to make rules or orders generally for the purpose of carrying into effect the provisions of the said Act in particular and without prejudice to the generality of the foregoing power the State Government has been authorised to make Rules and orders with reference to all matters expressly required or allowed by the said Act to be prescribed including the power of frame rules to be followed by the Municipalities functioning within the State of Rajasthan which includes the power to frame rules for extending pensionary benefits to the employees of the municipalities, i.e., municipal councils as well as Municipal Boards who have retired from service of the said municipalities on attaining the age of superannuation. 3. The State Government acting in exercise of the powers conferred by the, aforesaid provisions of the Act, issued a notification on 26.5.1984 by which the employees of the Municipal Board were given first appointment in the then erstwhile Ajmer State and the said employees were entitled for pensionary benefits subject to the fulfillment of certain requirements- and conditions as stipulated in the said order. It has further been mentioned in the said order that those employees of the municipalities who were appointed and retired from service prior to coming into force of the said Rules, such employees were entitled to get pensionary benefits in the following manner, who have been categorized as under: 1. Those who were appointed prior to 1.11.56 and retired before said date or were due to retire thereafter. will be governed by CSR Pension Rules which were in force prior to 1.11.1956. 2. Those who were appointed prior to 1.11.56 and retired before said date or were due to retire thereafter. will be governed by CSR Pension Rules which were in force prior to 1.11.1956. 2. Those who were appointed during the period 1.11.56 to 1.8.70 and who have retired or are due to retire during this period. will be governed by Rajasthan Service Rules, 1951 for short RSR, 1951. 3. Those who were appointed on 2.8.70 and retired thereafter. will be entitled to benefit of pension. 4. The aforesaid notification became effective after its publication in the Rajasthan Gazette, dated 17.9.1987. The proviso to the aforesaid notification stipulates that those employees of the municipalities who have already received the benefit of provident fund shall be entitled to claim the pensionary benefits subject to the condition that they shall refund the said amount with interest thereon in the treasury of the concerned municipality from whose jurisdiction the said employee has retired and only thereafter they shall be permitted to opt for pensionary benefits. The said notification was issued by the Director, Local Self Government. 5. The case of he petitioner in short is that he was appointed as Secretary Municipal Committee, Vijaynagar, Ajmer on 6.2.1957 and he retired from service as Commissioner of the Municipal Council w.e.f. 31.1.1984. Thereafter the petitioner submitted a representation before the Municipal Board, Vijaynagar, Ajmer on 19.9.1984 in accordance with the notification dated 26.5.1984 and prayed therein that since he is entitled to get pensionary benefits in terms of the aforesaid notification dated 26.5.1984 which became effective w.e.f. 7.9.1987, the said benefits should be extended to the petitioner as he was ready and willing to comply with the conditions stipulated therein. It was further contended by the petitioner that he is fully covered by the aforesaid notification having retired from service of the Municipal Council, Vijaynagar, Ajmer on 31.1.1984 and the Rajasthan Municipal Service (Pension) Rules, 1989 are discriminatory and open to challenge because the petitioner could not be deprived of the pensionary benefits merely for the reason that he was appointed before the period 1.11.1956 to 1.8.1970 and was entitled to get pension from the erstwhile municipality of Vijaynagar, Ajmer under the provisions of Rajasthan Service Rules, 1951 having been retired from service in accordance with Rule 56 of R.S.R. vide (Annexure-2) on the record w.c.f. 18.1.1984. Thus being the original appointee of the Municipal Committee, Vijaynagar, Ajmer and having not opted for the benefits of provident fund in pursuance of the notification, dated 26.5.1984/17.9.1987, the petitioner represented his case to the then Chairman, Municipal Board, Vijaynagar (Ajmer) that the petitioner should be extended benefits of pension in terms of the aforesaid notification, since he was covered within the cut off date between 1.11.1956 and 1.8.1970 having retired from service of the Municipal Council, Alwar as Commissioner w.e.f. 31.1.1984 being the original appointee of Municipal Council, Vijaynagar and was thus entitled to the pensionary benefits from Municipal Board, Vijaynagar (Ajmer). He made representation in this regard to the Chairman, Municipal Board Vijaynagar vide (Annexure-3) dated 3.9.1984. 6. Learned counsel for the petitioner contended during the course of hearing that as per Rule 5 of the Rajasthan Municipal Service (Pension) Rules, 1989 the employees of the municipalities of the State have option to continue to be governed either by the Contributory Provident Fund Rules (for short 'CPF Rules') or by Rules of 1989. The said option has to be exercised in writing so as to reach the authorities mentioned in Rule 6 within three months of the date of publication of the said Rules in the Official Gazette in the form appended to these Rules. Proviso (3) of Rule 5 mandates that if the option is not received within the aforesaid time limit, the employee shall be deemed to have opted for pension Rules. The option once exercised shall be final. It is not sufficient for an employee to exercise option within specified period but also to ensure that it reaches the concerned authorities mentioned in Rule 6 within the stipulated time and the said option given by the employee shall be pasted in the service book of the said employee. The option once exercised shall be final. It is not sufficient for an employee to exercise option within specified period but also to ensure that it reaches the concerned authorities mentioned in Rule 6 within the stipulated time and the said option given by the employee shall be pasted in the service book of the said employee. The natural corollary which emerges as a consequence of interpretation of sub- rule (3) of Rule 5 of the Rules of 1989 is that those employees of the municipalities who did not opt for C.P.F. benefits under the C.P.F. Rules, would automatically be entitled to the benefit of pension and shall be deemed to have opted for the benefits admissible to them under the Pension Rules of 1989 and since the petitioner did not exercise his option for C.ER, he shall automatically be deemed to have exercised his option for pensionary benefits and since he did not waive the said option and rather had made several representations in the past before approaching this court by way of instant writ petition which he filed in this court on 22.7.1994, there is no reason or justification for the respondents as to why he should have been denied the pensionary benefits. This fact is also borne out not only from the representation (Annexure-3) as well as the contentions advanced by the learned counsel for the petitioner and also the acknowledgement thereof made by the respondents in the letter, dated 23.7.1985 (Annexure 6) from the Municipal Council, Vijaynagar (Ajmer) which is self explanatory to the effect that the said Municipal Council had remitted the provident fund amount of Rs. 16307.11 lying in the petitioner's account to Municipal Board, Vijaynagar after deduction of the amount of Rs. 9448.50 on account of gratuity and thereafter a sum of Rs. 6858.61 was due to the petitioner and accordingly the Municipal Board, Alwar remitted the said amount by cheque dated 18.7.1985 drawn at Punjab National Bank, Ajmer in favour of the petitioner with a request that he should send receipt in lieu thereof for total amount of Rs. 16307.11. It is apparent from the perusal of Annexure 7 dated 31.8.1985 which is a communication from Municipal Council, Alwar addressed to the Executive Officer. Municipal Board, Vijaynagar that a clearance certificate was also issued in favour of the petitioner. 16307.11. It is apparent from the perusal of Annexure 7 dated 31.8.1985 which is a communication from Municipal Council, Alwar addressed to the Executive Officer. Municipal Board, Vijaynagar that a clearance certificate was also issued in favour of the petitioner. From the perusal of Annexure 8 dated 18.12.1984 which is a communication from Municipal Council, Vijaynagar to Municipal Board Ajmer, that pension papers in favour of the petitioner should be prepared at the earliest so that the necessary pensionary benefits may be extended to the petitioner in accordance with the Rules. From the perusal of Annexure 9, dated 1.3.1993 which is a letter from the Director, Local Self Government Rajasthan, Jaipur to the Executive Officer, Municipal Board, Vijaynagar (Ajmer) that in view of the pendency of the departmental inquiry against the petitioner, a sum of Rs. 11872.21 was deducted from the pensionary benefits as admissible to the petitioner and sanction was also granted for disbursement of the balance of pensionary amount with a further rider that the aforesaid deducted amount shall be released in favour of the petitioner subject to the result of the departmental enquiry. 7. Consequently by a notification dated 3.2.1994 vide (Annexure-10) from the Officer on Special Duty, Directorate of Local Bodies Raasthan to the Executive Officer, Municipal Council, Vijaynagar (Ajmer) the said Municipal Council was communicated to the effect that since the pension scheme as admissible to the municipalities employees was introduced w.e.f. 1.10.1987: whereas the petitioner had retired from service of Municipality in the year 1984 and hence the resolution of the Board was not applicable to the petitioner and, therefore, the petitioner could be extended the pensionary benefits by treating him the employee of Ajmer-Marwar municipality since his first appointment was made by the Vijay Nagar Municipality as is apparent from his service book. 8. 8. The respondents on being noticed by this court have contended that after the appointment of the petitioner in Municipal Board, Vijay Nagar, the said Municipality was converted into Gram Panchayat by the State Government vide its notification dated 14.9.1959 and the municipal area so converted into Gram Panchayat continued up to 11.10.1974, when by another Notification, the State Government converted Gram Panchayat, Vijay Nagar into Municipal Board, Vijay Nagar and the Petitioner has not disclosed this fact when as a result of the aforesaid conversion, the services of the petitioner were transferred from Vijay Nagar to Deoli hence the Notification dated 26.5.1984 is not applicable to the petitioner. 9. On merits the respondents have not disputed the correctness of the aforesaid contention of the petitioner regarding the non-petitioners having already deposited the amount due to the petitioner on account of the Provident Fund with the State Government in pension fund as received from Municipal Council, Alwar. The respondents have further contended that since at the time of petitioner's appointment, the Provident Fund Scheme was not applicable and there was no deduction from the petitioner or from the Municipal Board, Vijay Nagar against the Provident Fund account of the petitioner, a sum of Rs. 16,405.00 was received from Municipal Council, Alwar on 18.7.1985, which was deposited by the Respondent Board along with the interest in the pension fund as of the petitioner aforesaid. 10. I have heard learned counsel for the parties, examined their rival claims and contentions, relevant documents on the record as well as the Rules on the subject. 11. 16,405.00 was received from Municipal Council, Alwar on 18.7.1985, which was deposited by the Respondent Board along with the interest in the pension fund as of the petitioner aforesaid. 10. I have heard learned counsel for the parties, examined their rival claims and contentions, relevant documents on the record as well as the Rules on the subject. 11. Prima-facie, I am of the view that since once the petitioner was appointed during the period 1.11.1956 to 1.8.1970, which are cut off dates with reference to the notification dated 26.5.1984 which came into effect w.e.f. 17.9.1987 soon after its publication and the petitioner retired from service of the Municipal Council, Alwar as Commissioner w.e.f. 31.1.1984 vide Annexure-2, his case is fully covered in the second category of the employees who were appointed between 1.11.1956 and 1.8.1970 vide aforesaid notification and since he retired from service of the Municipal Council, Alwar w.e.f. 31.1.1984, he is entitled for the pensionary benefits having not opted for the Provident Fund Scheme and also having not availed the benefit of Provident Fund, he is entitled to claim pensionary benefits after the deduction of gratuity amount which he had already received and which was remitted in his account by the Municipal Council, Alwar to the Municipal Board, Vijay Nagar (Ajmer) vide Annexure-6 dated 23.7.1985 as referred to above. 12. I am further of the view that the case of the petitioner is fully covered by the proviso to aforesaid notification since he had not opted for CPF Scheme and hence he is entitled to claim the pensionary benefit and since the case of the petitioner had already been recommended for grant of pensionary benefits vide Annexure- 7 dated 31.1.1985 as well as the letter dated 1.8.12.1984 (Annexure-8) deserves to succeed and is entitled to pensionary benefits as admissible to him. I am fortified in my observation by the ratio of the decision of this court in the matter of Rajasthan Nagar Palika Seva Nivrat Karmchari Sangh v. State of Rajasthan & Others : S.B. Civil Writ Petition No. 288/1989 decided on 26.2.1991 reported in 1991(2) WLN 562. wherein similar controversy had arisen for consideration of this court. I am fortified in my observation by the ratio of the decision of this court in the matter of Rajasthan Nagar Palika Seva Nivrat Karmchari Sangh v. State of Rajasthan & Others : S.B. Civil Writ Petition No. 288/1989 decided on 26.2.1991 reported in 1991(2) WLN 562. wherein similar controversy had arisen for consideration of this court. Learned Single Judge of this court while allowing the writ petition held that no discrimination could be made by the Municipalities or Municipal Boards after the promulgation of Rajasthan Municipal Service Rules, 1963 and all the employees of the Municipalities including those of erstwhile Ajmer-Marwar State became one class and therefore no discrimination could be made qua Ajmer-Marwar Municipality employees as throughout Rajasthan State including employees of 'Ajmer Municipalities who belong to Contributory Provident Fund Scheme. In the matter of Devki Nandan Prasad v. State of Bihar & Others, AIR 1971 S.C. 1409 Constitution Bench of the Supreme Court by majority judgment held that the grant of pension does not depend upon an order being passed by the authorities to that effect but the right to receive pension flows to the officer/employee not because of the said order but by virtue of the Rules. It was further held that right to pension is a `Property' under Articles 19(1)(f) and 31 of the Constitution of India. It is neither a bounty payable in sweet will and pleasure of the Government or the execution of authority to oppose valuable right vested in a Government servant and the State Government by an executive order has no power to withhold the same. The same view was later on again reiterated by the Apex Court in the matter of Union of India v. D.S. Nakara reported in 1983(7) SCC 305. 13. The same view was later on again reiterated by the Apex Court in the matter of Union of India v. D.S. Nakara reported in 1983(7) SCC 305. 13. Consequently I am of the view that the petitioner deserves to succeed and no discrimination can be made against the petitioner qua the employees of Ajmer-Marwar Municipality and since the respondents have themselves given the necessary recommendation as well as the clearance for grant of pensionary benefits to the petitioner subject to the result of pending disciplinary enquiry against the petitioner, the respondents are accordingly directed that if the petitioner is exonerated in the aforesaid departmental enquiry, the amount which has been deducted from the petitioner's account on account of gratuity should also be released to the petitioner apart from the pensionary benefits which will be admissible to him in accordance with the rules. The respondents are further directed to expedite and complete the departmental enquiry and in any case not later then 30 days from the receipt of certified copy of this order and the amount due to the petitioner on account of arrears of pension from due date as well as the amount deposited on account of gratuity shall be released to the petitioner within a period of 3 months thereafter. The petitioner shall also be entitled for payment of monthly pension as admissible to him in accordance with the rules. 14. With the above observations, the writ petition is consequently allowed with no order as to costs.Writ Petition Allowed. *******