' KHALIL-UR-REHMAN KHAN, J.---This judgment will dispose of four Intra-Court Appeals (I.CAs.505- 92, 506-92, 507-92 and 281-94) and Writ Petition No, 10539-91 as the question of law involved in all these matters is one and the same. Bashir Ahmad, Niaz Ahmad, Abdul Momin, respondents and Qari Aizaz-un-Nabi, husband of respondent in I.CA. 506-92, and Nur Muhammad late husband of Mst. Jannat Bibi, petitioner in W.P. 10539-91, were employees of the Auqaf Department. All except Bashir Ahmad appellant have retired after completing the age of superannuation. Bashir Ahmad appellant, however, has retired after completing 25 years of qualifying service. The question involved is whether these employees are entitled to receive pension or contributory Benevolent Fund in lieu thereof. The case of the Auqaf Department is that these employees as have not exercised their options under rule 4 of the Punjab Auqaf Employees Pension Rules, 1973, are not entitled to receive pension and as such they can only claim contributory Benevolent Fund. Refusal to pay the pension was challenged by these employees by filing writ petitions which were accepted by a learned Judge of this Court vide the impugned judgments dated 22-11-1992 and 23- 4-1994. The Chief Administrator of Auqaf has then filed these intra-Court appeals, while the petitioner in W.P. 10539-91 has assailed the refusal to grant pension.
2. Mr. Riaz Kayani, Advocate, learned counsel for Auqaf Department has argued that failure to exercise option within six months from the enforcement of the Rules, which were published in the Punjab Gazette dated 20th April, 1973, disentitles an employee to claim pension and that the learned Judge erred in law in holding Otherwise. According to him rule 4 is mandatory and as such an employee who does not exercise and communicate his option within the time prescribed in sub-rule (2) is not entitled to the pensionary benefits. Reference was also made to IA. Sharwani v.
Government of Pakistan (1991 SCM R 1041) wherein it was held that entitlement to receive pension is subject to statutory rules.
3. Learned counsel for the employees, on the other hand, referred to the documents annexed with the appeals to show that the Chief Administrator of Auqaf had himself issued two memos. Dated 16th December, 1981 and 8th October, 1985, extended time for submission of options by asking the employees to submit their options. They pointed out that no such communication was addressed to these employees to submit their options and this being the position it does not lie in the mouth of the Department now to urge that failure to submit option within six months of the publication of the Rules disentitles them to seek pensionary benefits. It is also to be noted that the learned Judge in the impugned judgments observed that reference to Muhammad Ishaq v. Chief Administrator of Auqaf (PLD 1977 SC 639) would show that notification must be brought to the notice of the person concerned before he can be posted with its knowledge and that being so these employees cannot be denied their right to receive pension when they were never called upon to exercise their option.
The Chief Administrator of Auqaf having required some of the employees to exercise their options cannot refuse pensionary benefits to the employees to whom no such opportunity to exercise the option was admittedly given. The issuance of the two above-referred memos. Would show that the Chief Administrator was himself considering the factum of knowledge of the notification as condition precedent for exercise of option. These employees having never been informed of the enforcement of the Rules and having never been asked to exercise options cannot reasonably be denied pensionary benefits. No reasonable exception can, therefore, be taken to the view which prevailed with the learned Single Judge. The rule laid down in I.A. Sharwani (supra) cannot be pressed into service as the question involved in these matters is whether the respondents/petitioner are entitled to receive pension when they were not asked to exercise their options while other employees of the Department were so provided an opportunity. The Chief Administrator of Auqaf did not treat the Rules providing for the time limit as mandatory as he has himself issued direction twice requiring the employee to give their options much after the said time limit.
' For the reasons given above we do not find any merit in these IntraCourt appeals which are dismissed. The refusal to grant pensionary benefits in W.P. 10539-91 is also held to be illegal and without lawful authority and the writ petition is accepted. The parties are, however, left to bear their own costs.