1. ' SAEEDUZZAMAN SIDDIQUI, J.-The petitioner who is a retired Railway Guard has filed this petition challenging the action of respondents refusing to admit him to the pensionary benefit as admissible under Finance Department Memo. No, 80 (SR)-V-257/67, dated 27th April, 1967.
2. ' The admitted position in the case is that prior to 24th April, 1967 the petitioner was governed under the S.P.R. Fund Rules. The Revised Pension Rules as contained in Finance Department Memo. No, 80 (SR)-V-257/67, dated 27th April, 1967 (we will hereafter refer the rules as the Revised Pension Rules) were initially framed for the employees in Government Service but it is common ground between the parties that these Revised Pension Rules were made applicable to the Railway employees as well. Under para 2 of Revised Pension Rules an employee was required to give his option for the purpose of application of these rules to him within 6 months of the issue of the memorandum containing these rules which is, dated 27th April, 1967. The Railway Board also issued Memorandum No, E. 66-P.N.I./11-II, dated 10th May, 1967 to give effect to the above rules which is as follows :- "Sub : Revised of Pension Rules and Rates Recommendation of the Pay and Service Commission.
3. ' A copy of the Government of West Pakistan, Finance Department's letter No, 80(SR)-V-257/67, dated 27th April, 1967 is forwarded for information and necessary action.
(2) As provided in paras. 2 and 3 of their letter referred to above, Fresh Option should be invited from all Railway servants, who were in Service of the 1st July, 1966 to elect either their own existing retirement benefits or to elect New Pension Rules, within a period of six months from 27th April, 1967.
4. The option already exercised by them under the previous instructions are to be treated as cancelled.
5. ' This supersedes the rules copies of which were forwarded to you with this office letter of even number, dated 21st September, 1966.
6. (Sd.)
7. Iqbal A. Siddiqui, Section Officer, Esstt.-II"
8. ' It is an admitted position that the time limit fixed under para. 2 of Revised Pension Rules was extended by letter No, S.O. (SR)-V-E (PN)-4 (64)-58/417-69, dated 8th April, 1969 issued by the Finance Department, Government of West Pakistan, Lahore, addressed to all the Administrative Secretaries of the Government of West Pakistan etc., and the period for exercising option by the employees who desired to be governed under the Revised Pension Rules was extended for a further period of six months from the date of issuance of that letter. This extension of time was also made applicable to the employees of Railway as is evident from the letter of the Vice-Chairman Pakistan Western Railway addressed to all Divisional Superintendents including D.S.W., Mughalpura and Extra Divisional Offices Pakistan Western Railways bearing No, 720-E/O-VII1 (E-II/ Policy), dated 7th May, 1969 filed alongwith the counter-affidavit of respondents and a copy of the Railway Board's letter No, E-69.P N-I/II-II, dated 11th August, 1969 addressed to F. A. And C.A.O., P.W.R., Lahore filed as Annexure 'B' with the petition. The petitioner proceeded on L.P.R. On 29th September, 1968 and retired from service on 29th September, 1969. Since the petitioner did not exercised his option within the period allowed by the authorities, under the Revised Pension Rules, his case was finalized under S.P.R. Funds and he was paid accordingly. It appears that on 16th June, 1977 the petitioner alongwith some other employees of Railway made a representation to the authorities concerned offering to refund the benefits received by them under S.P.R. Fund and paying that their cases may be treated under the Revised Pension Rules and decided accordingly. It further appears from the simple copy of letter written by the Deputy Chief Administrative Officer to the Secretary. Railway Board, Government of West Pakistan, Lahore, on 20th October, 1977 which is filed in this petition as Annexure 'C' that the representation made by the petitioner and others was recommended for sympathetic consideration on the ground mentioned in paragraphs 3 and 4 of that letter which are as follows :- "(3) In this Context, it is reiterated that the staff concerned had already proceeded on L.P.R. Before the Receipt of Rly. Board's letter No, E. 66-P.N.I./II-II, dated 10th May, 1967 and E. 66P.N.I./II-II, dated 6th May, 1969. In such circumstances, it was lost sight of to inform them regarding the date allowed by the Government for exercising option in favour of Pension Rules, 1966. Also the forms prescribed by this Administration for this purpose, were not supplied to them. Therefore, it will appear incompatible to say that they did not avail the chance of option offered to them.
(4) In view of the position explained above, it may be appreciated that Nine Persons being on L.P.R.
9. During the currency of option period, were never offered the opportunity to elect pension rules and, therefore, their cases merit exceptional treatment."
10. ' The above recommendations made by the Deputy Chief Administrative Officer were, however, not accepted by the authorities who turned down the representation of petitioner and other on the ground that they had failed to exercise their option in accordance with the rules. The petitioner thereafter appears to have made further representation to the Ministry of Railways which too was turned down and he was informed letter No, E.D./P.E.N./6/77, dated 8th November,. 1979 to that effect. The petitioner in the meantime alongwith 50 other railway employees moved a petition before the Services Tribunal, Islamabad, but the same was rejected on 24th November, 1980 on the ground that the Services Tribunal had no jurisdiction in the matter. The petitioner, therefore, moved this petition.
11. ' The only contention of Mr. Muhammad Ahmad, the learned counsel for the petitioner, before us is that the petitioner having not been informed by the Railway Administration of the enforcement of Revised Pension Rule, the joint representation made by him in 1977 alongwith others should be treated as the exercise of option under the revised rules and relief be given to him accordingly. It is further contended by the learned counsel that the fact that the petitioner was entitled to be informed by the authorities regarding, enforcement of Revised Pension Rules is also borne out and established by the letter, dated 20th November, 1977 addressed by the Deputy Chief Administrative Officer to the Secretary Railway Board, recommending the cases of petitioner and others. On the other hand the learned counsel for the respondents contended before us that in terms of rules 2 and 3 of the Revised Pension Rules the option was to be exercised by the employee under the Revised Pension Rules within six months of the issuance of the letter of Finance Department, dated 27th April, 1967 but this period was extended from time to time and the last extension granted in this regard was communicated by the letter, dated 8th April, 1969 and the option was to one exercised within a period of six months from the date of this letter. It is further contended that those employees who failed to exercise their option within the time limited under the relevant Rules continued to be Government under the old rules. In order to appreciate the contentions of the learned counsel for the parties it will be advantageous to reproduce here rules 2 and 3 of the Revised Pension Rules which are as follows :- "2. Option for Government servants in pensionable service.-(1) Government servants who were in pensionable service on 1st July, 1966 shall be allowed the option to retain their existing pensionary benefits. This option should be exercised in writing and communicated, in the case of Gazetted Officers, to the Accounts Officer, and, in the case of non-Gazetted Government servants, to the Head Office concerned, so as to reach him within six months from the date of issue of this letter. If, on the date, a Government servant is on leave or temporary deputation outside Pakistan, he may exercise his option and communicate it within six months from the date of his return from leave or deputation abroad.
(2) An option exercised by a Government servant under sub-para. (1), shall be duly acknowledged by the Accounts Officer, or, as the case may be, the Head of Office concerned, and placed on the Service Record of the Government servant.
(3) An option, once exercised and communicated to the Accounts Officer or the Head of Office shall be final.
(4) A Government servant who does not exercise and communicate his option within the time limit prescribed in sub-para. (1), shall be deemed to have accepted the new pensionary benefits sanctioned in this letter.
3. Option for Govement servant entitled to Contributory Provident Fund.-(1) Government servants in non-pensionable service on 1st July, 1966 excluding those employed on contract or otherwise for a specified on term which did extend to the age of superannuation, and who were entitled to the benefits of a Contributory Provident Fund has been paid, be allowed to opt, for the pensioner benefits sanctioned in this letter in lieu of the existing retirement benefits admissible to them. This option shall be exercised and communicated in the manner, subject to the conditions and within the time limits, prescribed in subparagraphs (1)-(3) to paragraph 2. Those Government Servants who do not exercise and communicate their options for the pensionary benefits sanctioned in this letter within the prescribed time limit, shall not be entitled to the benefits thereof and shall continue on their existing terms.
(2) In the case of those who opt for the pensionary benefits sanctioned in this letter-
(1) The amount of contribution made by Government with interest there on to the Contributory Provident Fund of such Officials shall be repaid to the Government.
(ii) The amount of subscription, together with interest thereon, which was contributed by them to the Contributory Provident Fund, shall be transferred to the General Provident Fund and shall for all purpose be governed by the rules of that Fund ; provided that interests shall be calculated at the rate prevailing in the year in which the contributions were actually made.
(iii) The service rendered by such Government servants from the date of joining the Contributory Provident Fund or the date of attaining the age of 20 years, whichever is later, shall subject to the rules for reckoning the qualifying service for pension, count for such service.
(iv) Such Government servants as opt for pensionary benefits under these orders shall be governed by the West Pakistan Civil Services Pension Rules, as amended from time to time."
12. ' It is an admitted position that the petitioner was in the non-pensionable job and was entitled to Contributory Provident Fund under the existing condition of his service on the date of enforcement of Revised Pension Rules and, therefore, he fell under rule 3 reproduced above. A reading of rule 3 will show that an employee who wanted to avail of the benefit of these rules was required to exercise the option in writing within six months from the date of issue of the letter, dated 27th April, 1967. It is an admitted position that the above time limit was extended from time to time and the final extension came by the letter of the Finance Department, dated 8th April, 1969 which provided that such option could be exercised within six months of the issuance of that letter. It is, therefore, clear that an option to be governed under the Revised Pension Rules could be exercised by the petitioner latest within six months of the issuance of the letter of the Finance Department which is dated 8th April, 1969. In the case before us it is not disputed that the petitioner for the first time wrote to the authorities concerned to avail of the benefits under the Revised Pension Rules, on 16th June, 1977. The learned counsel for the petitioner is unable to draw our attention to any provision in the relevant rules or any other law for the time being in force which required the Railway.
13. Administration to notify its employee individually in such '1 circumstances. In the absence of any statutory provision requiring Railway Administration to notify its employees individually in such cases, it is not possible to hold that the authorities were under any legal obligation to notify the petitioner personally in this regard and ask him to exercise his option for application of Revised Pension Rules in his case. It is admitted in para. 2 of the petition that the Revised Pension Rules were published in Railway Gazette No, 13, dated 1st July, 1967. It is also admitted in para. 3 of the petition that the letter of Finance Department, dated 9th April, 1969 extending the period of option under the Revised Pension Rules was circulated under the Railway Board, letter. No, 69-P.N.I. II-II, dated 11th April, 1969. In view of these admissions in the petition we cannot accept the contention that the petitioner was unaware about the application of Revised Pension Rules to Railway Employee and, therefore, could not opt for application of these rules to his case. In our opinion the publication of the Revised Pension Rules in Pakistan Western Railway Gazette and circulation of the subsequent letter extending the time limit for exercise of option by the employees of Railway through Railway Board letter to all the subordinate and attached department, amounted to sufficient notice to the petitioner and his failure to exercise the option within time dissent titled him to the benefit of those rules as provided under rule 3.
14. ' There is no substance in this petition, which is accordingly dismissed but in the circumstances of the case there will be no order as to costs.