A. K. Shrivastava, J. -- 1. This appeal has been filed under section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 4.10.2007 passed by learned Writ Court in W.P. (S) No. 1290/04 dismissing the petition filed by the appellant/writ petitioner.

2. The writ petitioner filed a writ petition under Article 226 of the Constitution of India before the learned Writ Court seeking following reliefs which read thus:

"(a) That, order dated 6.8.2003 Annex. P/1 may kindly be declared illegal and respondents may kindly be directed to grant family pension to the petitioner by counting the part of service which petitioner's husband rendered as daily wager in employment.

(b) That, any other relief which this Hon'ble High Court may deem fit with cost of petition."

3. As per the case of writ petitioner/appellant, the petitioner is the wife of Late Ashraf Khan, who was serving on the post of Driver in the office of the respondents and had died on 5.3.2002 and after the death of her husband, the petitioner submitted an application for seeking the benefit of family pension and other service benefits. However, the respondents vide letter dated 6.8.2003 informed the reasons and denied the benefit of pension and other service benefits to her on the ground that the deceased employee did not complete the requisite period of qualifying service for allowing the family pensionary benefits to the writ petitioner. A copy of the order of the Executive Engineer in that regard dated 6.8.2003 had been placed an annexure P/1 before the learned Writ Court.

4. The respondents filed their return and took a stand that because the husband of the writ petitioner did not qualify the requisite service for obtaining the pension, therefore, she is not entitled for any family pension or other service benefits.

5. The learned Writ Court by the impugned order dated 4.10.2007 has dismissed the Writ petition holding that in the light of the decision of the Division Bench Shrikrishna Shrivastava v. State of M.P. and others, 2004 (1) MPWN 115 = 2003 (4) MPLJ 376 and in view of the decision of the Supreme Court State of Rajasthan v. Kunji Raman, AIR 1997 SC 693 and as per the provisions of M.P. Irrigation Department Work Charged and Contingency Paid Employees Recruitment and Conditions Service Rules, 1977 as well as M.P. Civil Services (pension) Rules, 1976 (in short "the Pension Rules of 1976") since the husband of the writ petitioner was engaged as daily wager was not entitled to count his services prior to regularization order viz. 31.12.1998 for the purpose of pension and gratuity and further held that the husband of the petitioner since did not complete five years and ten years of qualifying service as per Rule 43 of the Pension Rules of 1976, hence, the writ petitioner is not entitled for the family pension and gratuity after the death of her husband.

6. We have heard Shri S.K. Sharma, learned counsel for appellant and Shri M.P.S. Raghuvanshi learned Additional Advocate General for respondents/State.

7. Shri S.K. Sharma, learned counsel for appellant by inviting our attention to para 5 (4) of the writ petition has contended that the husband of the petitioner died on 5.3.2002 and further it has been contended by him that the service of the husband of the petitioner were regularized on 31.12.1998 and in this regard he has invited our attention to Annexure P/2. In para 5 (4) of the writ petition it is pleaded that the husband of the petitioner Ashraf Khan was an employee in the respondent-department nom May, 1980 as a driver for full time in the office as daily wager and has been paid monthly amount in lieu of salary from the contingency fund and his services were regularized vide order dated 31.12.1998. Hence, the appellant/writ petitioner is entitled for family pension. The husband of the appellant/writ petitioner would be deemed to be a 'permanent employee' as envisaged under Rule 2 (c) of Madhya Pradesh (Work Charg