R. A. MEHTA, J. ( 1 ) THE petitioner who is a widow of an ex-employee of Gujarat Electricity Board claims family pension. Her husband was an employee in the former State of Rajkot and thereafter in Saurashtra Electricity Board Bombay Electricity Board of Gujarat Municipality Board successively. He retired on 14-12-1970 and he was in receipt of regular superannuation pension till the date of his death i. e. 20-10-1983. From that date onwards the window of the employee claims family pension. ( 2 ) THE respondent Board contends that the family pension is not payable to her Para 7 of the affidavit-in-reply reads as follows:the Gujarat electricity Board has also adopted the G. R. of Finance Department dated 1-1-1972 for grant of family pension copy of the Revised Family Pension Scheme is annexed at Annexure Y. The said Resolution Annexure shown that it come into force with effect from 1-1-1971 and it applies in case of those employees who retired on or after 1-6-1971. It is specifically stated in this Resolution that the Family Pension Scheme is not applicable to the persons who retired from 1-6-1971. Than even under the Revised Pension Scheme contained In the Resolution dated 1-1-1972 the petitioner is not entitled to receive family pension. That Government Resolution dated 1-1-1972 Annex. Y is at page 24 in the paper book. Para 1 of that Scheme provides that the Scheme shall be applicable to all the regular employees who severe in service on 1-6-1971 and thereafter. The deceased employee was not in service on 1-4-1971 because he had retired on 14-12-1970. Para 2 of the Scheme provides that the family pension would also be admissible in case of a retired Government servant who has retired on or after 1 and who has died thereafter. In the present case the retired Govt. servant had not retired after 1-6-1971. It is because of these provisions that the Board contained that since the petitioners because had retired on 14-12-1970 and was not in service on 1-6-1971 the Scheme is not applicable to the present case and therefore the window of that employee who has retired before 1-6-1971 is not entitled to family pension. servant had not retired after 1-6-1971. It is because of these provisions that the Board contained that since the petitioners because had retired on 14-12-1970 and was not in service on 1-6-1971 the Scheme is not applicable to the present case and therefore the window of that employee who has retired before 1-6-1971 is not entitled to family pension. ( 3 ) MISS Trivedi learned Counsel for the petitioner has relied on the case of INDUMATI A. PATEL V. STATE OF GUJARAT 1987 (1) GLH 328 : ( 1987 (1) GLR 389 ) In that case this very Government Resolution dated 1/01/1972 was considered and it was held that the cut off date of 1 was irrational arbitrary and illegal. It was held that pensioners constitute a class by themselves and no further classification could be made by introducing a criteria of being in service on a particular date and retiring thereafter and therefore the provision regarding the cut- off date by insertion of words who were in service on or after 1 was held to be discriminatory. The judgment of the Supreme Court in D. S. NAKARA V. UNION OF INDIA AIR 1983 SC 130 was followed wherein also the similar artificial cut-off date was struck down. Another Supreme Court judgment in the case of POONAMALE ORS. V. UNION OF INDIA 1985 (3) SCC 345 was also referred and followed ( 4 ) THE learned Counsel for the Board submitted that the petition is grossly delayed. The petitioners husband had expired in 1983 and the petition has been filed in 1987 and therefore even civil suit would have become time barred. The petitioner is an old and illiterate widow of a small employee. Before filing the petition the petitioner had made an approach to the Chairman of the Board by way of a notice through Advocate provided by the Legal Aid and the petition was filed thereafter whom there was no response from the Board. Having regard to these circumstances this delay cannot be said to be fatal so as to result into dismissal of the complaint. The petitioners husband died on 28 and the petition was filed on 2-9-1987. So the claim for the period from September 1984 to September 1987 would be within the period of limitation. In the facts and circumstances of the case even the earlier claim cannot be said to he barred. The petitioners husband died on 28 and the petition was filed on 2-9-1987. So the claim for the period from September 1984 to September 1987 would be within the period of limitation. In the facts and circumstances of the case even the earlier claim cannot be said to he barred. The delay has prejudiced the case of the petitioner and not of the respondent Board. ( 5 ) THE learned Counsel for the respondent Board drew my attention to para 7 of the Scheme in the Government Resolution where employees were required to exercise their option either for the old pension rules or for the new scheme and that option was required to be exercised by 31-5-1972. This para is not applicable to the facts of the present case in view of the fact that by the terms of the Resolution it was not applicable to the persons who had retired after 1-6-1971 and therefore the deceased employee could not have exercised that option. Moreover Para 10 of the Scheme provides for deemed option if this Scheme is more beneficial to the family of the Government servant who had died during the period between 1-6-1971 to 1-1-1972. This deeming fiction would apply to the Government servants who had retired prior to 1-6-1971. In such cases the family members of the deceased Govt. servant entitled to receive family pension under the Scheme has to surrender the amount equal to two months pay. That amount can be adjusted from the amount that would become payable to the petitioner. ( 6 ) IN the result the petition succeeds and rule is made absolute by directing that the respondent Board shall pay family pension according to the aforesaid Scheme adopted by the Gujarat Electricity Board and contained in Govt. Resolution dated 1-1-1972. Such family pension would by payable from November 1983 at the rates applicable from time to time. ( 7 ) AN amount of Rs. 15. 000. 00 has been deposited in this Court under the interim orders and is lying in deposited. The Board is directed to deposit all the arrears of family pension accruing till 31 in this Court on or before 31-1-1990. The family pension accruing from 1-1-1990 shall be remitted to the petitioner regularly On such deposit further orders regarding investment and withdrawal would be passed hereafter. The Board is directed to deposit all the arrears of family pension accruing till 31 in this Court on or before 31-1-1990. The family pension accruing from 1-1-1990 shall be remitted to the petitioner regularly On such deposit further orders regarding investment and withdrawal would be passed hereafter. For the time beings the petitioner is permitted to withdraw a sum of Rs 2500/- the case is directed to make payment of a sum of Rs. 2000. 00 to the petitioner No order as to costs. Rule made absolute. .