Panchi Devi Vs. State
of Rajasthan & Ors.  INSC 2226 (18 December 2008)
SUPREME COURT OF
INDIA 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
HON'BLE MR. JUSTICE
S.B. SINHA HON'BLE MR. JUSTICE CYRIAC JOSEPH For Petitioner(s) Ms. Nilofar
Ms. Kiran Kapoor,
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 ORDER 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
(Parveen Kr. Chawla)
(Pushap Lata Bhardwaj) Court Master 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 ORDER Leave granted.
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.
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.
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 -3- 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
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 -4- 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 -5- liability which was created
for the first time, cannot be given a retrospective effect.
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
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