Judgment:
Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 4.9.92 with a prayer that by an appropriate writ, order or direction, the respondents be directed to grant pensionary benefit to the petitioner with effect from 1.9.78 and respondents be further directed to pay pension to the petitioner in further months by month in accordance with the provisions of Rajasthan Service Rules with the benefit of commutation of pension etc.
2. It arises in the following circumstances:-
i) The petitioner was appointed as Cattle Pound Clerk on 17.2.53 with the respondent No. 3. The petitioner retired as Asstt. Revenue Inspector vide order dtd. 9.8.78 issued by the Executive Officer of respondent No. 3. For convenience the service history of the petitioner is quoted hereunder:
Date of birth 2.8.23Date of appointment & post on 17.2.53which first appointed Cattle pound clerkDate of Retirement 31.8.78 ii) The petitioner after retirement was having the benefit of Bikaner Provident Fund Rules. However, in the year 1969 for whole of the State of Rajasthan unified Rules were framed which were known as the Rajasthan Municipalities (Contributory Provident Fund and Gratuity) Rules, 1969 (hereinafter referred to as the Rules of 1969) which came into force with effect from 2.8.1970.
iii) Rule 4 of the Rules of 1969 gave only alternative benefit to the employees regarding electing either the benefit of pension or the benefit of contributory Provident Fund. The petitioner accordingly gave his preference for the benefit of Contributory Provident Fund and the same were paid to him.
iv) Before merger of various State in the State of Rajasthan, the matter about the contribution towards the Provident Fund was governed under the various State Rules such as Ajmer Merwara Provident Fund Rules, 1937, Bikaner Provident Fund Rules, Udaipur Provident Fund Rules, Jodhpur Govt. Service Regulation etc.
v) on 1.11.59, Ajmer and Merwara merged with the State of Rajasthan and thereafter Rajasthan Town Municipalities Act was repealed and in that place Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act of 1959) was brought into force which was applicable in whole State of Rajasthan including all the States which merged in the State of Rajasthan and thereafter Rajasthan Municipal Service Rules, 1963 (hereinafter referred to as the Rules of 1963) were framed under the provisions of Act of 1959.
vi) That an order issued by the respondent No. 2 vide order No. 16/B/DLB/76/7803-7811, GSR 64 dated 26.5.84 was published in the Rajasthan gazette on 17.9.87 by virtue of which in exercise of the powers conferred under Section 297(1)(ii) (1)(T) of the Rajasthan Municipalities Act, 1959, the pensionary benefits were given to the officers and employees of the Municipalities. The pensionary benefit was given to the officers and employees of the Municipalities of the former Ajmer state to those employees who had been appointed before coming into force of Rajasthan Municipalities (Contributory Provident Fund and Gratuity) Rules, 1970. A copy of order dtd. 26.5.84 is marked as Annex.3.
vii) The main case of the petitioner is that since employees belonging to former Ajmer State were given the benefits of pension inspite of currency of contributory provident fund, the employees of other former constituent states were deprived of pension of the ground that they had already opted for the provident fund. Thus, Annex.3 is violative of Articles 14 and 16 of the Constitution of India.
viii) Aggrieved by the order dtd. 26.5.84 (Annex.3), the Rajasthan Nagar Palika Sewa Nivrat Karamchari Sangh filed a writ petition before this Court at Jaipur Bench being S.B. Civil Writ petition Nov 288/1989 which was deckled on 26.2.1991. Jaipur Bench of this Court and this Court took the view that the order dtd. 26.5.84 was discriminatory and arbitrary and Field that pensionary benefits which were given to the employees of erstwhile Ajmer State should also be given to the employees of other municipalities of the constituent State of respondent No. 1. The date fixed in the order dtd. 26.5.84 was also quashed and it was stated that all the employees irrespective of the date of their appointment or retirement were entitled to the pensionary benefits notwithstanding the coming into force the Rules of 1970. A copy of judgment dtd. 26.2.91 is marked as Annex. 4.
3. It is submitted by the learned counsel for the petitioner that since Annex.3 was held to be discriminatory and arbitrary through judgment dtd. 26.2.91 by this Court, hence, the petitioner should be given pensionary benefits with effect from 1.9.78 (the date of his retirement). The learned counsel for the petitioner has placed reliance on DB judgment of this Court in the case of Ass. of Retired Empl. M.C. Jodhpur v. State, WLR 1992(2) Raj. 718 as according to him the case of the petitioner is squarely covered by the decision of this Case in Ass. of Retired employees M.C. Jodhpur (supra) and, therefore pensionary benefit should be allowed as they were allowed to the employees of Municipal Council, erstwhile Jodhpur of this Court in the case of Rajasthan Nagar Palika Seva Nivrat Karamchari Sangh (supra).
4. Reply to the writ petition was filed by the respondent No. 3 on 20.9.94 and it has been averred that there is no discrimination between the employees belonging to the State of Rajasthan and the employees belonging to former Ajmer State. It is a contractual matter and at the time of merger the condition can be imposed. Since all other employees of the Municipalities of Rajasthan accepted the provisions of contributory provident fund benefit and took the full advantage, therefore, now to say that they were also entitled to the pensionary benefits is a wrong stand and it should not be accepted and the writ petition should be dismissed. The respondent No. 2 also filed reply on 3:5.2002. It has been averred by the respondent No. 2 that judgment dtd. 26.2.1 (Annex. 4) would not be helpful to the petitioner as in D.B. Judgment in the case of Ass. of Retired Emp. M.C. Jodhpur (supra) on which reliance was placed by the petitioner himself, observations made in S.B. Judgment dtd. 26.2.91 (Annex.4) were not found correct. For convenience para 23 of DB judgment in the case of Ass. of Retired Emp. M.C., Jodhpur (supra) is reproduced hereunder:
'23. The authorities cited by Mr. Mridul as regards the application of pensionary benefits to the employees of Ajmer - Merwara Municipalities do not held good so far as the case of the petitioner - Association is concerned. The employees of Ajmer - Merwara municipalities were governed by the Rules of Central Services and those Rules provided for pensionary benefits. The Rajasthan municipalities (CPF and G) Rules, 1969 came into force with effect from 2.8.70. Merwara Municipalities were governed by the aforesaid Rules. It was, therefore, claimed that those who have retired before 2.8.70 should be given pensionary benefits. At no point of time, the members of the petitioner-Association were entitled to pensionary benefits. Why pensionary benefits were extended to the members of the Ajmer-Merwara Municipalities was not brought to the notice of learned Single Judge who decided Rajasthan Nagar Palika Sewa Niwarat Karamchari Sangh v. State (S.B. C.W. No. 2888 of 1989) decided on 26.2.91. Actually, that judgment was per incuriam because the facts were not disclosed to the Court by or on behalf of the Government why the members of the Ajmer - Merwara municipalities were extended the benefits of pension with effect from 2.8.70 if they have retired prior to that date. As stated above, from 2.8.70, the aforesaid Rules came into force and the employees of the Ajmer-Merwara Municipalities prior to that were governed by the aforesaid Rules and, therefore, those who were appointed/retired prior to 2.8.70 were governed by the Ajmer-Merwara Municipal Rules and hence they were extended the benefit of pension, thus, this authority has no application to the facts of the present case.'
5. It has been further submitted by the learned counsel for the respondents that the present controversy is squarely covered by the decision of this Court in the case of Ichchha Lal v. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 5668/93 decided on 18.8.2000 and relief sought was not given to the petitioners in those cases and writ petitions were dismissed. Hence it was submitted by the learned counsel for the respondents that placing reliance on SB judgment of Ichchha Lal (supra) the present writ petition be dismissed.
6. I have heard both and perused the record.
7. There is no dispute on the point that the petitioner retired on 31.8.78 and after coming into force of Rules of 1969, the petitioner opted for contributory provident fund which was paid to him.
8. So far as the argument that the case of the petitioner is squarely covered by DB judgment of this Court in the case of Ass. of Retired Emp. M.C. Jodhpur (supra) is concerned, for that para 23 has been quoted above and from the observations of Division Bench, it becomes crystal clear that the judgment dtd. 26.2.91 (Annex.4) was not correctly decided by the learned Single Judge because all the facts were not put before the learned Single Judge as the employees of former Ajmer Municipality were governed by the Rules of Central service and these rules provided for pensionary benefit and if pensionary benefits were given to the employees of erstwhile Ajmer Municipality, it does not mean that they should be given to all the employees of Municipalities other than Ajmer Municipalities and that judgment was held per incuriam. Hence DB Judgment of this Court in the case of Ass. of Retired Emp. M.C. Jodhpur (supra) is not helpful to the petitioner.
9. On the contrary, this Court in the case of Ichchha Lal (supra) has clearly taken a view that the persons who have taken benefit of Contributory Provident Fund Scheme are not entitled to the pensionary benefits and those writ petitions were dismissed, From this point of view also, the present writ petition is liable to be dismissed,
10. The State Government framed Rajasthan Municipal Service (Pension) Rules, 1989 (hereinafter referred to as the Rules of 1989) and these Rules came into force with effect from 1.10.87. As per Rule 3 of the Rules of 1989, it was clearly mentioned that the employees retired or retiring on or after 1.10.87 shall only be eligible for pension under the provisions of these rules provided they opt for these rules. Thus, the petitioner is not entitled to any relief even under the Rules of 1989 as he retired long back on 31.8.78 and these Rules came into force with effect from 1.10.87.
11. The Hon'ble Supreme Court in catena of judgments has held that a person cannot get benefit of both i.e. of Provident Fund Scheme as well as pensionary benefit. The Hon'ble Supreme Court in the case of State of Rajasthan v. Rajasthan Pensioner Samaj, 1991 Supp. (2) SCC 141 has held that the contributory provident fund retirees form a different class from those who opted for pension Scheme according to the decision in Krishna Kumar's case, 1990 (4) SCC 207 and as such they are not entitled to claim as of right to switch over from Provident Fund Scheme to Pension scheme and consequently the Contributory Provident Fund Scheme retirees are not entitled to the benefits granted to the Pension Retirees, The Hon'ble Supreme Court in another case of All India Reserve Bank Retired Officers Association and Ors. v. Union of India and Anr., 1992 Supp. (1) SCC 664 has held that in the case of an employee governed by the Contributory Provident Fund Scheme his relations with the employer come to an end on his retirement and receipt of the Contributory Provident Fund amount, but in the case of an employee governed under the Pension Scheme his relations with the employer merely undergo a change but do not snap altogether. The Hon'ble Supreme Court in yet another case of V.K. Ramamurthy v. Union of India, SLJ 1997(1) (SC) 16 has held that Contributory Provident Fund retirees are not entitled to claim to switch over from Provident Fund Scheme to pension Scheme.
12. Thus, there is legal bar that a person who has taken the benefit of Provident Fund Scheme cannot take the benefit Of Pension Scheme after his retirement.
13. Since in the present case, the petitioner has already opted benefit of Contributory Provident fund Scheme under the Rules of 1969, and the same was paid to him, therefore, now he cannot switch over or get benefit of pension Scheme.
14. For the reasons mentioned above, the petitioner is not entitled to the relief claimed for in the writ petition and the writ petition filed by the petitioner is liable to be dismissed.
Accordingly, this writ petition is dismissed. Cost made easy.