The distinction between work-charged establishment and regular establishment, as interpreted by relevant rules and previous court decisions, determines the entitlement to family pension for employees.

1. This appeal is directed against the judgment and order by which a learned Single Judge of this court dismissed the writ petition filed by the appellant-petitioner and declined to accept her claim for grant of family pension for the death of her husband who, according to the respondent State, was working at the time of his death on 7.3.1973 in the work-charged establishment.

2. The facts of the case are brief and simple. Ram Ayodhya Tiwari, the deceased husband of the appellant was engaged on 6.2.1967 to work as Helper-cum-Jeep Driver in the work-charged establishment in Ganga Project of the Irrigation Department. He was engaged by the Executive Engineeer, Main Western Canal Division, Balmikinagar. From the Main Western Canal Division, Balmikinagar, he was transferred to Canal Main Division, Raxaul which was later renamed as Ghora Sahan Canal Division, Raxaul. Later, by office order issued by the Executive Engineer under his memo no. 3585, dated 8.12.1970 he was promoted with effect from 1.12.1970 to the post of Tractor Driver in the work-charged establishment in the scale of Rs. 100-212-230/-. He was working in that capacity when he died in a road mishap on 7.3.1973. After his death the appellant, his widowed wife gave birth to a male child.

3. After more than twenty years of his death, the appellant came to this court seeking a direction to the concerned authorities for payment of family pension for herself and her son. Though the claim was raised before the court for the first time after an extra-ordinary delay of more than twenty years, it was not rejected on that ground and the writ court proceeded to consider her claim on merits.

4. On behalf of the State the appellants claim was resisted on the ground that pension/family pension was not available to employees in the work-charged establishment and since Ram Ayodhya Tiwari, at the time of his death, worked in the work-charged establishment, his widow, the present appellant was not entitled to any family pension.

5. The writ court accepted the position that Ram Ayodhya Tiwari was, at the time of his death, in the work-charged establishment and he/his heirs was/were, therefore, not entitled to any pension/family pension and accordingly, dismissed the writ petition filed on behalf of the appellant-writ petitioner.

6. In appeal Mr. Ashok Jung Bahadur, learned counsel appearing on behalf of the appellant did not dispute the position that under the relevant provision of the Bihar Pension Rules, pension/family pension was not available to employees in the work-charged establishment. He, however, strongly submitted that Ram Ayodhya Tiwari, the husband of the appellant was taken in the regular establishment of the State Govt. and at the time of his death on 7.3.1973 he was no longer a work-charged employee.

7. In support of the submission he mainly relied upon the fact that Ram Ayodhya Tiwari the husband of the appellant was given promotion coupled with a time scale of pay. He also relied upon certain provisions of the Bihar Financial Rules, Bihar Public Works Department Code and Bihar Pension Rules and two earlier decisions of the court. Learned counsel submitted that in the work-charged establishment there was no provision for promotion or a time scale of pay and the mere fact that the appellants husband was granted promotion coupled with the time scale of pay would indicate that he was taken in the regular establishment of the Government. He invited the courts attention to Rules 281 and 283 of the Bihar Financial Rules. Rule 281 describes work-charged establishment and Rule 283 lays down the conditions of employment. It provides that each appointment under work-charged establishment would require a previous sanction of the Divisional Officer, the Superintending Engineer or the State Govt. in which, inter alia, the consolidated rate of pay should be specified. From Rule 283 learned counsel sought to infer that the employees under the work-charged establishment should o