ORDER :

Leave granted.

2. Appellant's husband, who was working as work charge employee in the Public Works Department in the year 1958 and confirmed on the said post vide order dated 22.8.1972 with effect from 31.3.1970, died in the year 1978. Appellant after 14 years of her husband's death claimed family pension of her husband under Rule 22A of the Rajasthan Public Works Department (B&R) including Garden, Irrigation, Water Works and Ayurvedic Department Work Charge Employees Service Rules, 1964 (for short 'the Rules) which came into force with effect from 17.09.1980. Since, no order was passed on her representation, she filed a writ petition bearing No. 6890 of 1992 before the High Court of Rajasthan, Jaipur Bench, Jaipur. A learned Single Judge of the High Court dismissed the said writ petition. Appellant thereafter filed a Special Appeal bearing No. 295 of 1997 before the Division Bench of the High Court. By reason of the impugned order dated 15.12.1998, the said Special Appeal has been dismissed, inter alia, on the premise that the appellant had approached the High Court after 14 years of her husband's death and since all the dues admissible to the appellant's husband were duly settled during his life time and the widow of the deceased (appellant herein) received all the dues including gratuity and, thus, the question of her entitlement to family pension does not arise.

3. Being aggrieved, the appellant filed a review petition No. 43 of 2004 along with an application for condonation of delay. The said review application has also been dismissed on the premise that the application for condonation of delay in filing the review petition has been dismissed.

4. Learned counsel appearing on behalf of the appellant, however, would draw our attention to the fact that in the case of one Prabhati Devi, whose husband was also working as a work charge employee and did not opt for pension, a learned Single Judge of the same High Court held that the benefit of the said rule can be claimed even by the widows whose husbands died prior to coming into force of the said Rules. Before the said learned Judge, a contention was raised that the sub-rule (6) of Rule 22A having prescribed a date namely 01.09.1982, the same was prospective in nature. The said contention was repelled stating :

I am not impressed with the submission of learned Additional Advocate General that the widows of the work charged employees died after September 1, 1982 were only entitled to opt for pension. I do not find any difference between two widows to work charged employees, one who died prior to September 1, 1982 and another who died after the said date. Interpretation of sub-rule (6) of Rule 22A, that discriminates between the two widows cannot be accepted. Language of sub rule (6) is very clear and it mandates that with effect from September 1, 1982 the widows of deceased work charged employees who were permanent and eligible for CPF but died without opting for pension, could also exercise option for pension."

5. The special appeal filed by the State of Rajasthan against the order of the learned Single Judge was dismissed as withdrawn by the High Court on the plea that issue was settled by another Division Bench of the High Court in D.B. Civil Special Appeal No. 782 of 2002 titled State of Rajasthan v. Girraj, decided on 03rd January, 2003.

6. The Rajasthan High Court did not declare the said provision to be ultra vires. Prior to insertion of Rule 22A by way of amendment in the Rules, there was no provision for grant of pensionary benefits to the employees who retired as work charge employees. The amendment was made vide notification dated September 17, 1980. It was provided by Rule 22 that a work charge employee having been or on being declared permanent on completing 10 years service shall have the option to elect either to continue to contribute towards contributory provident fund or to opt for pensionary benefits. Sub-clause (iv) of the said rule provides that the option