JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner's husband was appointed as a driver in the Public Works Department (B&R), Bikaner w.e.f. 20.6.48. It is stated by learned counsel for the petitioner that petitioner's husband was substantively appointed. In the year 1964, Rajasthan Work Charged Employees Rules were framed, which are referred as Rules of 1954. According to these rules, a employee who works for two or more than two years can be granted status of semi-permanent employee and after completion of 10 years he may be granted status of permanent employee. According to learned counsel for the petitioner the deceased was since beginning claiming that he was a substantively appointed which is clear from the Annexure-1. In the Annex. dated 28th March, 1974 it is mentioned that "on examination of the case it is observed that the incumbent was initially appointed in service w.e f 20 6 48 as per entry recorded in his service book the appointment was also substantive even then petitioner was not treated as substantive appointee on the plea that some of the documents are not available on record. 3. According to learned counsel for the petitioner, the petitioners husband was wrongly treated as work charged employee and petitioners than husband was denied benefit of both namely, if he was work charge employee then benefit under the work Charge Rules, 1964 and if he was substantively appointed then benefit under the Service Rules which were applicable to the petitioner s husband. Neither the petitioner was paid amount of CPF nor pensionary benefits Even the husband of the petitioner was entitled for the gratuity benefits but was not paid for which petitioners husband initiated proceeding under the provisions of Gratuity Act before the competent authority in the life time of petitioners husband. This claim of gratuity was allowed by the competent authority in the year 1990, upon which payment of gratuity amount was given. It is also submitted that petitioners husband, in his life time, submitted option form for opting the pensionary benefits. This claim of gratuity was allowed by the competent authority in the year 1990, upon which payment of gratuity amount was given. It is also submitted that petitioners husband, in his life time, submitted option form for opting the pensionary benefits. Not only this but petitioners husband was retired at the age of 55 years only, which is the age of superannuation for the substantive appointed employee and not for the work charged employee, as work charged employee are superannuated on attaining the age of 58 years In the order of superannuation dated 22nd July, 1981 (Annex.6) even the respondents themselves said that in case the petitioners husband is a employee' of regular cadre and if he is willing to have pensionary benefits then for preparation of the pension papers he may approach the office so that pension case can be prepared of the petitioner's husband. 4. Learned counsel for the petitioner submits that the petitioners husband was regularly appointed employee, he was member of a regular cadre and since the respondents could not decide at their end, the status of the petitioner, therefore, could not make any deduction from salary of the petitioners husband against Contributory Provident Fund, State Insurance, GPP etc.... the petitioners husband was poor driver and he could not have compelled the respondents to either deduct the amount or to decide the case of the petitioners husband status. If at proper time the case of the petitioner would have been decided by the respondents, the petitioners husband could have persuaded his case for getting the pensionary benefits. Because of the total inaction of the respondents, the petitioners husband was deprived of valuable pensionary benefits and the petitioner cannot be denied family pension. 5. Learned counsel for the respondent submitted that the petitioners husband was work charge employee, he was given status of permanent only under the Work Charge Rules after completion of 10 years of his service and as per the Annexure-8 it is clear that petitioners husband himself accepted that he was working as work charge employee and his salary is being taken from the account from which the payment is made to the work charge employee. By Annexure-3, the petitioners husband was asked to give his option in case petitioners husband wanted to have the pensionary benefits, but no such option form was submitted by the petitioners husband and since petitioners husband has not contributed towards CPF, State Insurance etc., therefore, petitioners husband was not entitled for the benefit of the pension nor petitioner can claim any family pension. 6. I perused the facts of the case and relevant documents placed on record and it is clear that the petitioners husband was appointed as back as on 20th Jun, 1948. He was retired at the age of 55 years treating petitioners husband as substantively appointed employee otherwise he would not have ordered to retire at the age of 55 years only. It was the duty of the respondent-employer to decide the case of the employees, if there is any dispute or doubt about the status of the employee, after giving full opportunity to the employee. The employer has no right to say that unless fact of substantive appointment is supported by document by the employee, no decision can be taken by the respondents. If employer is in need of document from employee even then it is their duty to ask for document from the employee provided if it is in possession of the employee. The decision cannot be deferred till the retirement of the employee. The employee was in service since 1948 to 1981, by no stretch of imagination it can be presumed that employee was not had status of substantive appointee. The respondents also failed to discharge their statutory obligation of deduction of amount from the salary of employee and denied the employee from the benefit under the beneficial legislation for social security to the employee and now respondents want to take benefit of their own inaction. 7. This is not enough but it is said in the arguments advanced by the learned Addl. Advocate General on behalf of the respondents that the petitioners husband was not entitled for the pensionary benefits on the ground that petitioner was not substantively appointed. If this is the stand till today then why the petitioners husband was asked to submit the option form by the department in the year 1972 vide Annex.32. Advocate General on behalf of the respondents that the petitioners husband was not entitled for the pensionary benefits on the ground that petitioner was not substantively appointed. If this is the stand till today then why the petitioners husband was asked to submit the option form by the department in the year 1972 vide Annex.32. The facts reveal undoubtedly that the employee was treated as substantively appointed and, therefore, he was asked to submit option form, but employee was deprived to take benefit illegally by the respondents. It is admitted case that the petitioner served for long period of about 33 years and still the petitioner denied the pensionary benefits. 8. It is also settled position that the pension is not the mercy of the employer. The question of not submitting option form is also a non-existent excuse in this matter because of the fact that once employer says that the employee was not entitled for the pension then how the employer asked for the submission of the option form. This was for the employer to decide first that whether this benefit can be given to the employee or not and when it is made clear to the employee that employee can exercise his option of getting pension then employee can submit the option form. Here in this case, it is alleged that the deceased-employee submitted option form in his life time. It is also pointed out that the benefit of pension was made available to the other employees, who could not submit option form In time and they were permitted to submit option form till end of the year 1992. Therefore, period of giving of the option form opting pension was not of so rigid nature that because of non-giving option by the petitioners husband can be denied the pension particularly when there was a false dispute raised by none else than employer himself. Therefore, without entering into question whether option was, in fact, submitted by the petitioners husband, it is held that the petitioners husband wrongly denied the relief. 9. Learned counsel for the petitioner relied upon the judgment of the Division Bench of this court delivered in the case of Dhalu Ram v. RSEB, Jaipur reported in WLR 1991 (5) Raj. 75 . 9. Learned counsel for the petitioner relied upon the judgment of the Division Bench of this court delivered in the case of Dhalu Ram v. RSEB, Jaipur reported in WLR 1991 (5) Raj. 75 . The Division Bench, while considering the matter with respect to the grant of pension, drawn adverse inference against the employer because of the reason that employer did not choose to produce the relevant service record of the employee. Here in this case, not only there is non-production of the service record of the employee, but as mentioned above the service record of the employee is admittedly, not kept in order by the respondent. The Division Bench in the facts of the above case found that when no deductions were either made from the salary of the employee towards the Contributory Provident Fund nor the Board even contributed its share towards the provident fund which it must have contributed regularly from month to month and this circumstance must have led the petitioner to believe that he was entitled to pension. The mistake of the Board, in not deducting monthly amount of provident Fund subscription and not making its contribution towards it, cannot be used by the Board for its own benefit and the benefit must naturally go to the employee. This proposition fully applies to the present case. 10. Therefore, the writ petition of the petitioner deserves to be allowed end it is held that the deceased Ashu Ram Mali was entitled for the pensionary benefits in his life time and he was substantially appointed employee. The petitioner is entitled for the full pensionary benefits from Dec., 1981 to April, 1988 as admissible under the Rules. Since the petitioner has not contributed towards the Contributory Provident Fund, GPF and State Insurance, therefore, the petitioner is not entitled for any amount towards GPF and Insurance claim, but respondents are entitled to deduct the contribution towards Contributory Provident Fund of the share of the petitioners husband if rule permits. The petitioner is also held to be entitled for interest @ 12% per annum from Dec., 1981 and the family pension as per the Rules. 11. The petitioner is also held to be entitled for interest @ 12% per annum from Dec., 1981 and the family pension as per the Rules. 11. The writ petition is, therefore, allowed and it is ordered that the case of the petitioners husband regarding pension be finalised by the respondents within a period of two months from today and it be forwarded to the concerned department and the pensionary benefits for which petitioners husband was entitled be paid to the petitioner alongwith interest @ 12% per annum and the petitioner be also paid the family pension amount alongwith interest @ 12% per annum from the date when it becomes due. No order as to costs.Writ Petition allowed. *******