Full Judgment
R.L. Narasimham, C.J.
1. This writ petition has been filed against the order of the Government of Orissa fixing the pension for the petitioner under the new pension scheme as provided in Rule 8 fa) of the Liberalized Pension Rules published in No. 13795F, dated 19 September 1951.
2. The petitioner Joined Government service in 1921 and retired in the Orissa Subordinate Educational Service as headmaster of Government High School, Koraput, with effect from 7 December 1954. When the new liberalized pension rules were brought into force, he was given an option, by Rule 8 thereof, to come under the new scheme of pensions. This option was to be exercised by all old entrants. Three choices were open to them: firstly they may agree to come under the new liberalized pension rules; secondly they may express their willingness to continue under the old pension rules as a whole; and thirdly they may exercise their option of continuing to be governed by the old pension rules subject to death-cum-retirement gratuity as provided under the new rules. Rule 11 contained detailed provisions as to how this option should be exercised. The option was required to be exercised within one year from the date of issue of the resolution and it was further stated that the option should be given in writing and communicated by the Government servant concerned to the head of his office. The petitioner's case was that while he was on leave he received the memorandum of the Inspector of Schools, Southern Circle, No. 6660-C (4)/4C~8-52, dated 9 September 1952, requiring him to exercise his option under the new rules, before 15 September 1952. According to the petitioner this memorandum was received by him(only on 17 September 1952 and on that date he sent the following reply--
From
Sri S. K. De,
To
The Inspector of Schools, Berhampur.
[Subject.-Liberalization of pension rules. Reference.-No. 6660 (4)/4C-8-52, dated 9 September 1952, of the Inspector of Schools, Berhampur].
Sir,
I have been on leave ever since 14 August 1951 and have not seen the rules as yet. Hence I cannot opt in favour of the new rules. I shall express my view on it when I resume duty.
Yours faithfully,
(Sd.) S.K. De,
Headmaster.
Subsequently as no further intimation was received from him, a telegram was sent to him to his Benaras address by the Inspector of Schools, Apparently, on receipt of the same he exercised the option of coming under the old pension rules as a whole [Rule 8(b)]. This appears to have been done sometime in June 1953. But as it was received beyond the period of one year from the date of commencement of the new pension scheme, the Direotor of Public Instruction held that by virtue of the deeming provision contained in Rule 11 he should be deemed to have exercised the option of coming under the new pension rules [Clause (a) of Rule 8], Against this order, the petitioner submitted further representations but they were all rejected,
3. Sri Misra for the petitioner ingeniously contended that the letter sent by the petitioner to the Inspector of Schools on 17 September 1952 (already quoted) must be deemed to be an exercise of hia option not to come under the new scheme. That letter was sent admittedly within one year of the coming into force of the liberalized pension rules and hence he was entitled to pension under the old rules in accordance with Clause (b) of Rule 8. We are unable to accept this contention. There is no doubt, from a scrutiny of his letter dated 17 September 1952, that the petitioner unequivocally declared that he was not prepared to exercise any option because he had not seen the new rules as yet. In the last sentence he further stated that he would express his views after resuming duty. The question of exercising option does not arise unless the person is aware of the contents of the rules and when the petitioner himself clearly stated that he would express his views later, it is difficult to accept the contention of Sri Misra that the letter must be deemed to be an exercise of option one way or the other.
4. The position, therefore, is that within the stipulated period of one year option was not exercised. Doubtless in June 1953 the option was exercised, but it was too late by then and, on a strict interpretation of the rules, the authorities were justified in applying the deeming: provisions and holding that the petitioner came over to the new scheme under Clause (a) of Rule 8.
5. There is some force in the contention of Sri Misra that the authorities themselves were to blame for having delayed in intimating to the petitioner, to exercise the option. The letter of the Inspector of Schools, Berhampur, is dated 9 September 1952. There is no special reason why the Government did not call upon the petitioner to exercise his choice long before his going on leave. But from the counter-affidavit filed by the Joint Director of Public Instruction we find that the petitioner is also partly responsible for the unfortunate result. Intimation was sent to him, at his leave address at Cuttact, but apparently he went away to Bhubaneswar and hence there was delay in his receiving the letter. Even then, on receiving the letter on 17 September 1952 he could have straightaway gone to the office of the Inspector of Schools and given his option in writing after going through the new pension rules. He should not have asked for time saying that he would express his views after resuming his duties. Under these circumstances, the authorities had no choice but to interpret the rules strictly.
6. The application is dismissed, but without costs.
G.K. Misra, J.
7. I agree.