1. In this petition the petitioner -- Muni Lal, a Subedar of the Orissa Military Police, (since retired) --prays for a writ of Mandamus to compel the State of Orissa to recognise his right to pension and to payment to him of pension according to the prevailing rules, on the grounds stated in the petition.
2. The petitioner then aged 16 years joined the Army in 1927. In due course he was promoted to the rank of Jamadar in 1937. He joined the Eastern States Joint Armed Police Force in 1939 and retired from the Army as a Jamadar. On October 10, 1939 he was appointed as Jamadar, Eastern States Joint Armed Police Force on contract service. He was promoted to the rank of Subedar, in the said Force on April, 1, 1940.
3. In pursuance of the Memo dated July 17, 1945 from the Secretary to the Crown Representative to the Resident for the Eastern States, the Eastern States Joint Armed Police Force Contributory Provident Fund Rules came into force with effect from August 1, 1945. Thereafter, the Post-war Conditions of Service, Eastern States Joint Armed Police, came into force with effect from July 1, 1946. The said Conditions of Service were to apply to all ranks of and below Subedar who were enrolled under them and with effect from the date of enrolment or the 1st of July, 1946 whichever be later. One of the Conditions of Service of the said Scheme as provided in Clause 2 thereof was that the present incumbents have the option of electing the said Conditions. In pursuance of the said clause in the Conditions of Service, there was an agreement dated March 5, 1947, which was signed by the petitioner, accepting the said Conditions of Service Rules, 1946.
4. Clause 8 of the said Post-war Conditions of Service Rules providing for pension, gratuity, Provident Fund reads as follows:
'8. The service is non-pensionable but all ranks from, and including Havildar Major to Constables who are enlisted under these conditions will earn a service gratuity according to prescribed rules, Ranks of and above Jamadar will be compulsory subscribers to the E. Ss. J. A. P. Contributory Provident Fund.'
The petitioner as Subedar having entered into the said agreement, as appears from an endorsement in the Service Book, is deemed to have joined the said Contributory Provident Fund Scheme.
5. In 1948 after merger, the Orissa Provincial Government issued a Press Communique dated March 5, 1948, inter alia to the following effect:
'Where an employee is at present In a State pensionable service, he will continue to be in the pensionable service of Government and his past service will count for purposes of pension. Where such an employee is a subscriber to a State Contributory Provident Fund, he will be given the option as between the Government Contributory Provident Fund and absorption in pensionable service. In the event of his electing pensionable service under Government his past service will count for purposes of pension; on the other hand, the contributions made to his Provident Fund by the State concerned will be credited to the Provincial revenues. In a case where a State employee is at present neither in pensionable service nor is a subscriber to a Contributory Provident Fund, he will be deemed to be a new entrant in Government pensionable service.'
6. In 1956, the petitioner retired from the Orissa Government service. He would be entitled to pension if he was a member of the pensionable service or if he was a compulsory subscriber to the Provident Fund. Undisputedly, he was not a member of the pensionable service. A question arises whether he can be deemed to have been a compulsory subscriber to the Provident Fund. The position was this:
The petitioner had opted the Post-war Conditions of Service Rules including Clause 8 providing for pension, gratuity and Contributory Provident Fund, quoted above. The petitioner had also by an agreement dated March 5, 1947 exercised his option under Clause 2 of the said Post-war Conditions of Service Rules. Thereafter, it was for the concerned authorities to make deductions towards Provident Fund from his salary from month to month. In our opinion, the concerned authorities having not so deducted towards the Provident Fund from the petitioner's salary, the petitioner should not be penalised for that; he should be deemed to have contributed under the scheme. In other words, by the said agreement dated March 5, 1947 the petitioner having exercised his option to accept the Post-war Conditions of Service including Provident Fund, had offered and made tender to subscribe to the Provident Fund and it was for the concerned authorities to make the appropriate deductions. This being the position, the petitioner should get the benefit of paragraph 4 of the Orissa Provincial Government Press Communique dated March 5, 1948, quoted above.
7. In this view of the position on the facts as stated above, the State Government is to fix his pension on the basis that he was a subscriber to the Contributory Provident Fund prior to January 1, 1948 when the merger took place. In the result, therefore, the State of Orissa is to recognise the petitioner's right to pension on the basis aforesaid and fix his pension accordingly. The writ petition is allowed in terms aforesaid. There will be no order as to costs.
8. I agree.