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2005 DIGILAW 1354 (RAJ)

State of Rajasthan v. Anand Singh Parihar

2005-05-06

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard the learned Counsel for the parties. 2. This appeal is directed against the Judgment of the learned Single Judge dated 01.04.1997 allowing the writ petition filed by the respondent for treating the period between 08.07.1951 to 16.03.1959 as qualifying service for the purposes of computing pension payable to the petitioner-respondent. 3. The brief facts of the case are that the petitioner-respondent was initially appointed in the Jodhpur Municipality on 18.07.1951 and he continued to serve the Municipality until 16.03.1959. Thereafter he came to be appointed to the post of Economic Investigator Grade I after passing the requisite test through RPSC and ultimately retired on 31st August, 1988. 4. Prior to his retirement, the petitioner respondent has made an application on 20th March, 1988 for counting his services from 18.07.1951 to 15.03.1959 for determining pension and other retiral benefits. The petitioner received a reply dated 6th July, 1988 seeking certain clarifications about facts stated in his representation to which petitioner submitted a detailed reply vide his letter Annexure 9. However, on retirement when the petitioners pension case was determined, the aforesaid period in dispute was not included in his qualifying service nor it was included for his other retiral benefits considering it to be not pensionable service under the State. 5. This denial of inclusion of the aforesaid period in qualifying service was subjected to appeal before the Rajasthan Service Appellate Tribunal, Jaipur on 30th December, 1988 soon after the petitioner retired. 6. By order dated 3rd September, 1992, the Tribunal opined that w.e.f. 01.04.1953, the Municipal services became separated from the Government service, and, therefore, the services rendered by the petitioner between 18.07.1951 to 15.03.1959 cannot be counted as qualifying service for pension. It was stated that the petitioner has not submitted his option for continuing as Government service. 7. The order of the Tribunal was challenged by way of S.B. Civil Writ Petition No. 6562/92 wherein it was held by the learned Single Judge that the Municipal services for all practicable purposes are Government service and are liable to be considered as qualifying service holding the reason given for not calculating that service being improper and unacceptable. Accordingly, mandamus was issued and the order of the Tribunal dated 03.09.1992 was quashed. 8. During the pendency of the appeal, the operation of the Judgment of the learned Single Judge was stayed. 9. Accordingly, mandamus was issued and the order of the Tribunal dated 03.09.1992 was quashed. 8. During the pendency of the appeal, the operation of the Judgment of the learned Single Judge was stayed. 9. There does not appear to be any dispute about the status of the petitioner-respondent at least until 01.04.1953 that he was a Government servant. As per Annexure 1 dated 15.09.1954 issued from the Local Self -Government Department to the Accountant General, Rajasthan, Jaipur it was stated that Government has been pleased to order that with effect from 01.04.1953, the Provident Fund Contribution and bonus of the Municipal employees of Jodhpur should be charged to the Municipality. This order was endorsed to Director, Local Bodies as well as to President, Municipal Board, Jodhpur and Commissioner, Jodhpur Division directing the procedure to be adopted in regard to the disposal of the staff on the roll of the Municipality, Jodhpur on the above date. This order Annexure 1 and endorsements read as under:- Government of Rajasthan Local Self Government Department. No. F. 7(71)LSG/53 Jaipur, the 15th September, 1954 To The Accountant General, Rajasthan, Jaipur. Sub: Provident Fund Benefits of Municipal Employees in Jodhpur Ref . Your No. P.E. III/99 dated 08.04.1953. Government have been pleased to order that with effect from 01.04.1953 the Provident Fund contribution and bonus of the Municipal employees of Jodhpur should be charged to the Municipality. Sd/-Secretary to the Government. No. F. 7(71) LSG/53 Jaipur, the 15th September, 1954. 1. Director of Local Bodies, Rajasthan, Jaipur. 2. The President, Municipal Board, Jodhpur. The following procedure will be adopted in regard to the disposal of the staff on the role of Municipal Board, Jodhpur on the above date: .(1) From 01.04.1953 the Municipal service will be treated as quite separate from Government service. .(2) The staff which has opted for continuing in Government service will cease to be Municipal servants from the above date and will be absorbed in Government Departments as far as possible. A list of such persons is being sent to the Commissioner, Jodhpur for their taking further action in regard to their absorption. .(3) MunicipalBoard will take the liability for payment of Provident Fund and gratuity with effect from the above date to the remaining staff who have opted for continuing in Municipal service. .(4) Such persons as have opted for Municipal service will be governed by the provisions of Chap. .(3) MunicipalBoard will take the liability for payment of Provident Fund and gratuity with effect from the above date to the remaining staff who have opted for continuing in Municipal service. .(4) Such persons as have opted for Municipal service will be governed by the provisions of Chap. I to XII of the Rajasthan Service Rules in matters of pay leave, retirement and joining time as provided in Article 158 of the RSR. Their continuance in the service of the Municipal Board after the above date will be considered as fresh appointment. .(5) Commissioner, Jodhpur Division, Jodhpur for favour of taking further action in regard to the absorption of the Municipal employees who have opted for Government services into Government Departments. A list of such employees is enclosed herewith. Further particulars in respect of the above mentioned officials may be had from Secretary, Municipal Board, Jodhpur as required. .(6) Finance Department with one spare copy C. No. To their No. 7629/II/54 dated 28th August, 1954. Sd/-Secretary to the Government. 10. The Jodhpur Municipality was originally constituted under the Jodhpur Municipal Act, 1943 enacted by the erstwhile Indian State of Marwar. In terms of the provisions of the Jodhpur Municipal Act, employees of the Municipality were to be appointed by the Government and the funds were to be provided the Government. Section 66 of the Jodhpur Act makes this position clear which is also not in dispute. The Jodhpur Municipal Act was not repealed until Rajasthan Municipalities Act, 1959 came into force, and continued to govern the affairs of Jodhpur Municipality until then. By executive order, the statutory provision could not have been negated. 11. From the aforesaid directions contained in Annexure-1 which clearly states that the Municipal services will be separately constituted from Government service and option was invited for continuing in Government Service, therefore, so far as period from 18.07.1951 to 15.03.1959 is concerned, there cannot be any doubt that this was the period served under the Government service and was eligible to be computed for qualifying service under the relevant Pension Rules applicable to the Government services. 12. So far as the period from 01.04.1953 until the dates petitioner-respondent was appointed to the post of Economic Investigator Grade-I, the stand taken by the petitioner is that he has opted for continuing in service of the Government. 12. So far as the period from 01.04.1953 until the dates petitioner-respondent was appointed to the post of Economic Investigator Grade-I, the stand taken by the petitioner is that he has opted for continuing in service of the Government. The stand taken by the respondent-appellant is that he has not submitted any option. The finding of the Tribunal is that there is no material to suggest that the petitioner has submitted any option. However, it appears that this contention and the decision of the Tribunal misses the point that it was not envisaged under the directions to the Jodhpur Municipality or other Municipal Board that the employees were required to furnish only singular option namely whether to continue in service. If that were so, perhaps there would be room for those who do not exercise option for continued status of the Government service to come under Municipal service. But under the said order, the option was ultimately required to be positively either way; whether to continue as a Government servant or to become a municipal servant. In case second option has been exercised the authority can act on the basis of that exercise of an option. However, in case no option was exercised, the presumption would be for continued status of the incumbent as Government servant and presumption is that he did not opt for a new service. .13. This is apart from the fact that under the statutory provision of the Jodhpur Municipality Act, which remained in force until the Rajasthan Municipalities Act, 1959 came into operation and only under which the Jodhpur Municipality Act was repealed the petitioner-respondent was having a status .of Government servant under Statute. The legislative provision and its effect could not have been set at naught by the executive directions of the State Government. 14. A Division Bench of this Court has occasion to come across a converse case in which the option has been exercised by the incumbent to become Municipal servant. The Court after referring to the provisions of the Rajasthan Municipalities Act concluded that the employees of the Jodhpur Municipal Council were the Government servant until they have opted for the municipal service. Thus, in the case before the Division Bench, the petitioners, who had opted for municipal service, cease to continue as Government servant after 01.04.1953, only on exercise of his option to become a member of municipal service. 15. Thus, in the case before the Division Bench, the petitioners, who had opted for municipal service, cease to continue as Government servant after 01.04.1953, only on exercise of his option to become a member of municipal service. 15. In the present case, it is admitted by the respondents, there was no exercise of option by the petitioner. The petitioners positive assertion is that he opted to continue as Government servant. 16. In the absence of any other material assuming that the petitioner has failed to give any option then he continued as Government servant and it cannot be held, in absence of any positive option by the respondent to deprive him of his continued status in Government service. If appellants assertion is accepted then too he continued in Government service as per his option. .17. In view thereof , we are in agreement with the conclusion reached by the learned Single Judge that the services rendered by the petitioner from 18.07.1951 to 15.03.1959 until his appointment as an Economic Investigator Grade-I were also service rendered under the Government and was eligible to be computed as qualifying service for the purpose of determination of pension and retiral benefits. .18. Accordingly, the appeal fails and is hereby dismissed without any order as to costs. 19. The appellants are directed to revise the petitioners pension by computing his entire period of service until the date of retirement including service between 18.07.1951 to 15.03.1959 as qualifying service and the arrears of the pension payable as a result of this revision shall be released to the petitioner within a period of three months from the date of service of writ or submission of certified copy of this order whichever is earlier. The petitioner shall be entitled to interest on such arrears of pension and retiral benefits at the rate of 9% P.A. from the date he retired. The amount of contributory Provident Fund, if already paid to the petitioner respondent shall be adjusted against the arrears and the interest shall be calculated after adjustment of the said amount.