ITEM NO.202                 COURT NO.4               SECTION XV             S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).21083-21084/2005 (From the judgement and order dated 15/12/1998 in D.B.Special Appeal No.295/1997 and final order dated 7.4.2005 in DBCRP No. 43/2004 in DBCSA No. 295/1997 of The HIGH COURT OF RAJASTHAN AT JAIPUR)

PANCHI DEVI                                          Petitioner(s)

                     VERSUS

STATE OF RAJASTHAN & ORS.                            Respondent(s) (With  appln(s)  for  c/delay  in  filing  SLP,exemption  from  filing  c/c  of  the  impugned Judgment,permission to place addl. documents on record and office report)(for final disposal)

Date: 18/12/2008  These Petitions were called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE S.B. SINHA         HON'BLE MR. JUSTICE CYRIAC JOSEPH

For Petitioner(s) Ms. Nilofar Qureshi, Adv. Ms. Kiran Kapoor, Adv. Mr. Vipin Kumar, Adv.for

                    Mr. Shankar Divate,Adv.

For Respondent(s) Mr. Milind Kumar, Adv. Mr. Mukul Kumar, Adv.for  

                    Mr. Aruneshwar Gupta,Adv.            UPON hearing counsel the Court made the following                               O R D E R  

Leave granted.

For the reasons given in the Reportable signed order, we are of the opinion that apart from the question of delay, even on merit, the appellant has no case.

The Appeals are dismissed accordingly.  

(Parveen Kr. Chawla) Court Master

(Pushap Lata Bhardwaj) Court Master

[Reportable Signed Order is placed on the File]

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7556-7557 OF 2008       (Arising out of SLP(C) Nos.21083-21084 of 2005)

Panchi Devi ..Appellant

versus

State of Rajasthan & Others ..Respondents

O R D E R

Leave granted.

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  

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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.  

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.

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  

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repelled stating:

I  am  not  impressed  with  the  submission  of  learned  Additional Advocate General that the widows of the work charged employees died

after September1, 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.”

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 vs.  Girraj,  decided on 03rd January,

2003.

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  

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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 shall have to  be

exercised in writing within a period of six months from the date of amended rule came

into force from 17.08.1980.  Vide notification dated December 11, 1989 sub-rule (6) was

added in Rule 22 which was made effective from September 1, 1982, in terms whereof

widows of  the work charged employees were also given the liberty to  exercise such

option.  

The State, therefore, had indisputably made the said rules applicable with a

prospective effect i.e. from 1.9.1982. If that be so, the question of  grant of any benefit

in favour of the appellant herein did not and could not arise as admittedly her husband

died in the year 1978.  The question of exercising the right of option, as provided for,

under rule 22A would arise only if the employees were eligible therefor on the date of

coming  into  force  thereof.   It  has  not  been  given  retrospective  effect.   As  no

retrospective effect to the rule has been given, the question of extending the benefit

thereto to those who were not otherwise entitled thereto does not and cannot arise.  A

delegated legislation, as is well known, is ordinarily prospective in nature.  A right or a  

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liability which was created for the first time, cannot be given a retrospective effect.

Furthermore, the intention of the State in giving a prospective effect to that rule is clear

and explicit; the amendment in Rule 22A was also to be effective from 1.9.1982 itself.

No relief can be granted to the appellant herein on the basis of the decision in Prabhati

Devi (supra).  The said decision did not lay down the correct law.  Article 14 of the

Constitution of India has a positive concept.  Equality, it is trite, cannot be claimed in

illegality.  Even otherwise the writ petition as also the review petition have rightly not

been entertained on the ground of delay and laches on the part of the appellant.  

For the reasons aforementioned, we are of the opinion that apart from the

question of delay, even on merit, the appellant has no case.

The Appeals are dismissed accordingly.

.........................J. [S.B. SINHA]

NEW DELHI; ..........................J. DECEMBER 18, 2008. [CYRIAC JOSEPH]