JUDGMENT Debasish Kar Gupta, J. 1. Vires of the proviso to clause (i) of sub-regulation (14)(b) of Regulation 37 of the Calcutta Port Trust Employees' (Pension) Regulations, 1988 is under challenge in this writ application. Consequential relief is prayed for so far as releasing of monthly pension in favour of the petitioner is concerned. The facts of this case are stated below in a nutshell:- 2. The husband of the petitioner, late Anil Kumar Das, was working for gain under the respondent No. 1 in the post of Driver'. He retired from the above service on and from July 1, 1982 on attaining the age of retirement on superannuation. It appears from the materials on record that the name of the petitioner was incorporated in the pension payment order (page-30 of this writ application). Aforesaid late Anil Kumar Das was enjoying family pension under the Calcutta Port Trust Employees'(Pension) Regulations, 1988 (hereinafter referred to as 'the said Regulations, 1988). The first wife of the aforesaid late Anil Kumar Das breathed her last on January 1, 1989. On January 31, 1990, the aforesaid late Anil Kumar Das married the petitioner. The aforesaid Anil Kumar Das breathed his last on September 23, 2008. The petitioner submitted an application dated November 7, 2008 before the respondent-authority for releasing the family pension arising out of the above service of Late Anil Kumar Das in her favour. By virtue of the impugned order dated November 11,2008, the respondent-authority rejected the claim of the petitioner for granting family pension in her favour. The impugned order is quoted below: Kolkata Port Trust 15, Strand Road, Kolkata-700001, No. FIN/P/C/08/888 Dated 11.11.08 Smt. Shibani Das, C/o Sri Chandan Majumder, Vill. Bishnupur, P.O. Purba Bishnupur, PS. Chakdaha, Dist. Nadia, West Bengal. Madam, Sub: Case No. 9128 C/A Reference your application for grant of family pension in your favour and forwarding of copies of documents in support of your claim. We have examined the file of papers and the documents submitted by you and it reveals that our ex-employee late Anil Kumar Das had retired from KoPT service from 01.07.1982 and your marriage with him was solemnized on 31.01.1990 i.e. after his retirement from the Trustees Service. We have examined the file of papers and the documents submitted by you and it reveals that our ex-employee late Anil Kumar Das had retired from KoPT service from 01.07.1982 and your marriage with him was solemnized on 31.01.1990 i.e. after his retirement from the Trustees Service. In terms of the Calcutta Port Trust Employees' (Pension) Regulations, 1988, as amended from time to time, family pension is admissible to a widow of ex-employee provided the marriage took place during his employment with KoPT. Since your marriage was solemnized long after the date of retirement of the ex-employee and as KoPT Rule do not entertain any post-retiral marriage for the purpose of family pension, your claim for family pension as a wife of late Anil Kumar Das cannot be acceded to. This is for your information. Yours faithfully, Sd/- (S. Sengupta) Officer on Special Duty (Finance) For Financial Adviser & Chief Accounts Officer. 3. It is submitted by Mr. Bhattacharya, learned Advocate appearing on behalf of the petitioner that the ground for rejecting the claim of the petitioner was the provision of proviso to clause (i) of sub-regulation (14)(b) of Regulation 37 of the said Regulations, 1988. In terms of the above regulation, the petitioner was not entitled to get the benefit of family pension. According to him, the above provision of the said Regulations, 1988 is ultra vires the Constitution of India. According to him, equals were treated unequally by virtue of the above provision. It is further submitted by him that the classification creating a difference in between two legally married wives taking into consideration the date of retirement of the husband attaining the age of superannuation was unreasonable. 4. Reliance is placed by Mr. Bhattacharya on the decision of Smt. Bhagwanti vs. Union of India reported in AIR 1989 SC 2088 in support of his above submissions. 5. It is submitted by the learned Additional Solicitor General, in his usual fairness, that the law is well-settled on this issue. He further submits that in the matter of Laxmi Kunwar vs. State of Rajasthan reported in 1994 SCC (Suppl. I) 303, this issue was taken up for consideration by the Hon'ble Supreme Court and the relevant provisions of Rajasthan Service (New Family Pension) Rules, 1951 was declared ultra vires the Constitution of India. 6. He further submits that in the matter of Laxmi Kunwar vs. State of Rajasthan reported in 1994 SCC (Suppl. I) 303, this issue was taken up for consideration by the Hon'ble Supreme Court and the relevant provisions of Rajasthan Service (New Family Pension) Rules, 1951 was declared ultra vires the Constitution of India. 6. I have heard the learned Counsels appearing' for the respective parties at length and I have given my anxious considerations to the facts and circumstances of this case on the basis of the materials on record. Admittedly, the petitioner got married with the aforesaid Anil Kumar Das. It is also not in dispute that the above marriage took place after retirement from the service of the respondent No. 1 on attaining the age of retirement on superannuation. In order to adjudicate the issue involved in this matter, the provisions of sub-regulation (14)(b) of regulation 37 of the said Regulations, 1988 are quoted below: 37 Family Pension I. Without prejudice to the provisions contained in sub-regulation (3) Where an employee dies *** *** *** *** (14) For the purpose of this regulation:- (a) *** *** *** (i) *** *** *** (ii) *** *** *** (b) 'family', in relation to an employee means- (i) wife in the case of a male employee or husband in the case of a female employee provided the marriage took place before retirement of the employee. *** *** *** 7. By virtue of the above provision, a classification has been made in between two similarly circumstanced persons. A legally married wife where the marriage has taken place after retirement of an employee is treated unequally with a legally married wife where the marriage has taken place before retirement of an employee. This is creation of a class within a class. By virtue of this provision, two equally circumstanced persons are treated unequally. Such classification is unreasonable and violative of Article 14 of the Constitution of India. Therefore, the above provision is ultra vires the Constitution of India. 8. The above issue has already been settled in the matter of Smt. Bhagwanti vs. Union of India (Supra) and the relevant portions of the above matter are quoted below: Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the Government servant. Payability of the family pension is basically on the self same consideration. Payability of the family pension is basically on the self same consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. There are instances where a Government service contracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedar's case, he had retired after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44. Premature or early retirement had indeed no relevance for deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the Government servant during his service career. In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age. The consideration upon which pension paper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family' by keeping the post-retiral spouse out of it. 9. In view of the above settled principle of law, the proviso to clause (i) of sub-regulation (14)(b) of regulation 37 of the said Regulations, 1988 is declared ultra vires the Constitution of India and the same is quashed and set aside. 10. The respondent-authority is directed to release the family pension in favour of the petitioner together with an interest at the highest prevailing rate payable on fixed deposit by a nationalised bank from the date preceding the date on which such payment became due and payable till the actual date of its payment within a period of two months subject to compliance of other formalities by the petitioner. 11. This writ application is, thus, disposed of. There will, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.