JUDGMENT 1. - The petitioner who is widow of late employee of the Municipal Board, Alwar, has filed this writ petition in the matter of interpretation of Rules 35 and 36 of the Rajasthan Municipal Service Rules (for short `Rules of 1963) read with Rajasthan Service Rules, 1951 (for short the `R.S.R.') on the grounds inter-alia that the petitioner's late husband was appointed in service of the Municipal Board, Alwar .on 19.8.1947 on the post of `Khallasi' and he expired on 5.12.1983 after having completed nearly 36 years of service with the. Municipal Board. At the time of the death of the petitioner's husband, his service conditions were governed by the Rules of 1963. Under the said Rules, provision was made for provident fund, pension etc. . and for the sake of convenience and ready reference the said Rules are reproduced herein below as under: "Rule 35 -All members of the service including those who have since before the date of the constitution of the service, been regular subscribers to a contributory provident fund shall subscribe to that fund in accordance with the Rules applicable thereto, and the contribution, if any, of the Board on that account shall be determined in accordance with the provisions applicable to the fund : Provided that a member of the service who was entitled to the benefit of a pension under the Rajasthan Service Rules, before the date of the Constitution of the Service, shall be entitled to the payment of the pension by the Government out of the consolidated fund of the state and every Board shall make and pay pension contribution on that account in accordance with the rates laid down in the Rajasthan Service Rules. If any member of the service was entitled to the benefit of pension under any other rules before the constitution of the service he shall be entitled to the payment of pension by the Board out of its fund under the same rules." "Rule 36-Regulation of pay, allowance, leave, pension, gratuity, provident fund, discipline conduct etc. If any member of the service was entitled to the benefit of pension under any other rules before the constitution of the service he shall be entitled to the payment of pension by the Board out of its fund under the same rules." "Rule 36-Regulation of pay, allowance, leave, pension, gratuity, provident fund, discipline conduct etc. Subject to provisions of sub-section (4) of section 307 and except as provided in these ruled the pay, allowances, pension, leave and other conditions of the service of the members of the service shall be regulated by rules made under Section 297 of the Act, and depending the issue of such rules, by the following rules; (1) The Rajasthan Service Rules, 1951 except provisions relating to pension and payment of medical allowances as amended up to date : and, (3) The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 as amended up to date." By way of analogy the petitioner has also relied upon the provisions contained in Rule 35 of the Subordinate and Municipal Service Rules as well as class IV service rules, he has further contended that under the Rajasthan Town Municipalities Provident Fund Rules, 1965 (for short `Rules of 1965') which were brought into force w.e.f. 2.8.1970 every person who was drawing minimum salary of Rs. 25.00 per month, benefit of provident fund was extended to such employees. The petitioner's husband was also getting the benefits under the said Rules." 2. In order to bring uniformity amongst the employees of the Municipalities who were governed by Rules of 1963 as well as by the Rajasthan Town Municipalities Provident Fund Rules of 1965 an option was invited from the employees of the said Municipalities serving in erstwhile States to opt the Rules of 1965 as contemplated under Rule 4 of the Rules of 1969. Several other Rules were also brought into force with a view to have some rationality and , uniformity in the matter of service conditions of the employees. 3. On 17.9.1987 a gazette notification in respect of order dated 26.5.1984 was passed whereby the employees of Ajmer Marwar Municipalities who were appointed/retired prior to 2.8.1970 were granted pensionary benefits as indicated in the gazette notification dated 17.9.1987 published in the Rajasthan Gazette. 3. On 17.9.1987 a gazette notification in respect of order dated 26.5.1984 was passed whereby the employees of Ajmer Marwar Municipalities who were appointed/retired prior to 2.8.1970 were granted pensionary benefits as indicated in the gazette notification dated 17.9.1987 published in the Rajasthan Gazette. A perusal of the said gazette notification marked Annexure 1 to the writ petition reveals that the Director Local Self Government issued the said notification in supersession of earlier orders in accordance with the Rajasthan Municipal Rules. 1959 for the benefit of those employees who were appointed and retired from services of the Municipal Boards prior to coming into tor of the said Rules. Such employees were entitled to grant of pension in the following manner: (1) Those who were appointed prior to Will be governed by C.S.R. Pension 1.11.56 and retired either before said date or were due to retire thereafter. Will be governed by C.S.R. Pension Rules which were in force prior to 1.11.1956. (2) Those who were appointed during the period or are due to retire during this period this period. Will be governed by Raj. Service Rules, 1951 (3) Those who were appointed on 2.8.70 and retired thereafter. Will not be entitled to benefit of pension. Under Rule-5 of the Rules of 1989 : "If an employee who has availed of the Contributory Provident Fund benefits on his retirement on or after 1.10.1987, exercise option for the pension rules, the amount of contribution of the Board together with interest thereon till the date of retirement plus interest on this total amount C- 6% p.a. shall be refunded for being credited to the pension Fund. Interest w 6% p.a. shall be charged for the period from the date of receipt of benefit under the Contributory Provident Fund Rules to the date of refund." 4. Hence in accordance with the above Rules, if the petitioner wishes to avail the benefit of pension, she has to refund the amount received by her late husband or/legal heir of deceased, if received on account of CPF 6% per annum which has to be refunded for being credited to the pension fund of the deceased as aforesaid. 5. Hence in accordance with the above Rules, if the petitioner wishes to avail the benefit of pension, she has to refund the amount received by her late husband or/legal heir of deceased, if received on account of CPF 6% per annum which has to be refunded for being credited to the pension fund of the deceased as aforesaid. 5. Those employee who have already received the benefit of the provident fund shall be entitled to claim the benefit of pension subject to the condition that they shall refund the said amount with interest by depositing the same accrued thereon at the rate of 6% p.a. as per rules in the treasury of the Municipality and only thereafter they can opt for pensionary benefits. Perusal of the above notification issued by the Director, Local Self Government reveals that those employees of the municipalities who were appointed/retired from service prior to 1.11.1956, shall be governed by C.S.R. Pension Rules, while those who are appointed/retired during the period 1.11.56 to 1.8.70 shall by governed by R.S.R., 1951 and those who were appointed/retired after 2.8.1970 shall not be entitled to claim the pensionary benefits since they have already received the benefit of provident fund. However, they were given option to claim benefit of pension only subject to the condition of their refunding the amount of provident fund with interest thereon with the concerned municipalities. Hence they could not claim the dual benefit of pension as well as the provident fund at one and the same time. The aforesaid notification dated 17.9.1987 was challenged by the petitioner association in the matter of Rajasthan Nagar Palika Seva Nirwat Karmchari Sangh v. The State of Rajasthan & others : S.B. Civil Writ Petition No. 288/1989 decided by this court on 26.2.1991 reported in 1991 (2) WLN page 562 on the ground that action of the State Government was discriminatory between different set of employees of the municipalities serving in the State of Rajasthan qua the employees of the municipalities under Ajmer-Marwar and they have been discriminated in the matter of pensionary benefits. The grievance was to the effect that both set of employees i.e., the employees of Ajmer-Marwar and other Districts of Rajasthan State should be subjected to similar treatment and not discriminated in this manner. The grievance was to the effect that both set of employees i.e., the employees of Ajmer-Marwar and other Districts of Rajasthan State should be subjected to similar treatment and not discriminated in this manner. The petitioner in the aforesaid writ petition had contended before this court that there was no lawful justification in denying the pensionary benefits to the members of the petitioner's association when the said benefits had equally been extended to the employees of the erstwhile Ajmer-Marwar municipalities and the same should be equally extended to them. This court allowed the aforesaid writ petition by declaring the impugned orders dated 26.5.1984 published in the State gazette on 17.9.1987 and the order dated 9.9.1988 by which the members of the petitioner association were denied pensionary benefit discriminatory with a direction that they shall be entitled to the same pensioner benefits as has been extended to the erstwhile municipal employees of Ajmer-Marwar district of the state. It was further directed that if the members of the petitioner association have made any contribution on account of Provident Fund or deducted by the Employer in the said Account, it shall stand adjusted towards the arrears of total amount of pension to which they may be held entitled from the date of their entitlement. They shall further be entitled to paid pension in future on monthly basis in accordance with the provisions of Rajasthan Service Rules, 1951 with the benefit of commutation of pension etc. including all such facilities which are being provided to the persons similarly placed. 6. During the course of hearing learned counsel for the petitioner while placing reliance on the aforesaid decision of this court has contended at the bar that the petitioner's case is fully covered by the ratio of the aforesaid decision of this court and she is entitled to be given the benefit of family pension by the respondents. It was further contended by the learned counsel for the petitioner that inspite of the several representations having been made by the petitioner, nothing has been done by the respondents and failing to illicit any response from them, they were served a notice of demand for justice on 29.6.1992 vide Annexure 2. It was further contended by the learned counsel for the petitioner that inspite of the several representations having been made by the petitioner, nothing has been done by the respondents and failing to illicit any response from them, they were served a notice of demand for justice on 29.6.1992 vide Annexure 2. It was contending in the said Notice that since the respondents have already allowed the benefit of pension/family pension to the employees as well as the legal heirs of the deceased employees, the said benefit should have been equally extended to those employees who retired from service of the municipal boards on or after 11.2.1970. 7. Learned counsel for the petitioner has further contended that vide certificate issued by the office of the municipal board, Alwar (Annexure 3) the husband of the petitioner was appointed in service of municipal board, Alwar on 19.8.1947 and died on 5:12.1983 after having rendered about 36 years of-service and she being the widow of the deceased employee of the municipal board, Alwar is entitled to get the benefit of family pension w.e.f. 5.12.1983, i.e., the date of demise of her husband. 8. In reply to the show cause notice issued by this court, the respondents have controverted the aforesaid contentions of the petitioner on the grounds inter-alia that the petitioner is not entitled to invoke the extraordinary jurisdiction of this court under Art. 226 of the Constitution of India and the Rules 35 and 36 of the Rules of 1963 are not applicable to the case of the petitioner. On the contrary the relevant Rules which are applicable to the petitioner are Rajasthan Municipalities (Class IV service) Rules, 1964. The respondents have however, not disputed the correctness of the gazette notification dated 17.9.1987 (Annexure 1) which covers the municipal employees of the erstwhile Ajmer-Marwar State who were appointed/retired from services of the Municipal board prior to 2.8.1970. The respondents have further contended that the ratio of the decision of this court in the above referred matter is not applicable to the petitioner's case nor she is entitled to have any benefit under the same. On merits it has been contended that no discrimination has been meted out to the petitioner nor the same has been specifically pleaded and as such the writ petition deserves dismissal. On merits it has been contended that no discrimination has been meted out to the petitioner nor the same has been specifically pleaded and as such the writ petition deserves dismissal. By way of additional pleas it has been contended that the petitioner is not entitled to claim double benefits, namely, the pension as well as her appointment in service in lieu of her late husband and under such circumstances no equitable remedy could be availed of by her. 9. The respondents have further assailed the maintainability of the writ petition on the ground of undue laches for the reason that the petitioner has approached this court by filling the instant writ petition on 23.7.1992; whereas the death of her husband had taken place `on 5.12.1983 and as such the writ petition being highly belated having been presented with the delay of about nine years deserves dismissal on the ground of delay and laches. 10. I have heard learned counsel for the parties and have examined their rival claims and contentions as well as the relevant rules on the subject and also the ratio of the decision of this court in above referred matter. 11. Prima-facie I am of the view that the petitioner is entitled to succeed and there is no lawful justification in denying the pensionary benefits to the petitioner, since the notification dated 26.5.1984 which was published in the State Gazette w.e.f. 17.9.1987 and which was challenged by the respondents in the above referred writ petition was held discriminatory by this court and it was held by this court that there is not lawful justification in denying the pensionary benefits to the members of the petitioner's association and since the said benefits have been extended to the employees of erstwhile Ajmer Marwar Municipalities, therefore, the same benefits should be equally extended to the members of the petitioner's association as well subject to the condition that the benefit of provident fund if received by them shall stand adjusted towards the arrears of total amount of pension which they are found entitle from due date, the said benefit cannot be depend to the petitioner in view of the ratio of the aforesaid decision of this court which is fully attracted to the instant case. I am of the view that the case of the petitioner is fully covered by the Rules of 1963 which have already been referred to and discussed above and the impugned action of the respondents in denying the benefit of the family pension to the petitioner is per-se discriminatory being violative of Articles 14 & 16 of the Constitution of India and since the petitioner's Late Husband had already rendered about 36 years of service to the respondents w.e.f. 19.8.1947 to 1983 prior to his demise, she is entitled for the benefit of family pension subject to the condition that in case she is willing to deposit by refunding the amount of provident fund along with interest thereon at the rate of 6% p.a. in accordance with Rule 5 of the Rules, 1959 to the respondents having been received by her or by her Late husband, the same shall stand adjusted towards the arrears of total amount of pension to which she may be found entitled from due date, i.e. 05.12.1983 when the husband of the petitioner expired. She will be further entitled to the benefit of revised pension etc. in accordance with the Rules. In case she is willing to fulfil the above condition by exercising her option for family pension within a period of 3 months from the date of this order, she will be entitled to family pension including the arrears as may be calculated by the respondents within a period of 3 months thereafter. 12. In the light of the above directions the writ petition is consequently allowed with no order as to costs.Writ Petition Allowed. *******