( 1. ) PETITIONER has filed this petition challenging the order, annexure P-1 dated 6-8-2003. By the aforesaid order the petitioner has been denied the benefit of family pension and gratuity.

( 2. ) THE husband of the petitioner was appointed as Driver in May, 1980 on daily wage basis. His services were regularised vide order dated 31-12-1998 on the post of Driver in the work-charged and contingency paid establishment. He died on 5-3-2003. After the death of husband the petitioner submitted an application for grant of family pension and gratuity. Vide impugned order the respondents rejected the claim of the petitioner with regard to grant of family pension and also gratuity on the ground that her husband had not completed 5/10 years of service for the purpose of pension and gratuity.

( 3. ) IN the return the respondents stated that the husband of the petitioner was initially engaged as daily rated employee in the year 1980. Vide order dated 31-12-1998 he was regularised in work charged establishment as driver and posted at Datia Sub-Division. He died on 5-3-2002. The husband of the petitioner completed regular service in the department only for three years and two months, hence the petitioner is not entitled family pension or gratuity.

( 4. ) LEARNED counsel for the petitioner has submitted that the husband of the petitioner was engaged in 1980 and he was paid from the contingency fund hence the petitioner is entitled for family pension and gratuity because the services rendered by the husband of the petitioner prior to his regularisation as contingency paid employee has to be counted for the purpose of pension as per the provisions of Madhya Pradesh Work Charged and Contingency Paid employees Pension Rules, 1979. In support of his contention the learned counsel relied upon the judgments of this Court in Samim Begum vs. State of M, P. and others, reported in 2006 (4) MPLJ 112 and Shrikrishna Shrivastava vs. State of m. P. and others, reported in 2003

(4) MPLJ 376.

( 5. ) CONTRARY to this learned Dy. Government Advocate has submitted that the husband of the petitioner was engaged on daily wage basis in the year 1980 and he was regularised on the post of driver in work charged and contingency paid establishment vide order dated 31-12-1998, hence the petitioner is not entitled for gratuity and family pension because the husband of the petitioner had not completed qualifying service as per the rules.

( 6. ) THE petitioner in the petition pleaded that the husband of the petitioner was employed in May, 1980 for full time in the office as daily wager and he was paid salary from contingency fund. Thereafter, in para 5. 5. in the petition the petitioner further pleaded that husband of the petitioner joined services in May, 1980 as daily wager driver.

( 7. ) THE respondents in the return stated that the husband of the petitioner, late Mr. Ashraf Khan, was engaged as daily rated employee and worked as driver in the department from May, 1980 and worked in the aforesaid status upto 11-1-1999. As per the policy of the Government the husband of the petitioner was regularised vide order dated 31-12-1998 from the date of the order as driver in work charged establishment. He died on 5-3-2003, hence he completed three years and two months service.

( 8. ) THE State has framed rules under Article 309 of the Constitution, namely, M. P. Irrigation Department Work Charged and Contingency Paid employees Recruitment and Conditions Service Rules, 1977 hereinafter referred to as Rules of 1977. Rule 2 (b) of the aforesaid Rules defines the words "contingency-paid employee" which is as under :-

" (b) "contingency Paid employee" means a person employed for full time in an office or establishment and who is paid on monthly basis and whose pay is charged to "office Contingencies". Excluding the employees who are employed for certain periods only in the year. "

Rule 7 prescribes the procedure for appointment and promotion. As per the aforesaid rules the procedur