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Judgment
J. C. Doshi, J
With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
This intra Court appeal under clause 15 of the Letters Patent is directed against the impugned oral judgment dated 15.9.2022 passed in Special Civil Application No.10200 of 2020, whereby the learned Single Judge allowed the petition and quashed and set aside order dated 10.7.2020 and directed the appellant herein i.e. AMC to pass order granting family pension to the petitioner therein in accordance with the Rules together with arrears.
The respondent herein is the petitioner in the captioned petition and for the sake of bravity and convenience, he is referred to as per his status before the learned Single Judge.
Some facts necessary for disposal of present appeal can be stated thus:-
4.1 The petitioner, who is mentally challenged person, had filed captioned petition through his guardian and next best friend, stating that the father of the petitioner i.e. Ismailbhai Patel was serving in the Ahmedabad Municipal Transport Services on the post of Senior Clerk since 1966. On attaining the age of superannuation, he retired from the service on 1.7.2003. He was getting pension as per the Rules. However, he died on 19.6.2007. The father of the petitioner had firstly got married with Havabibi. Out of said wedlock, they begotten two sons and one daughter, which includes the petitioner, namely, Mubarakali Ismailbhai Patel, born on 6.11.1970. Thereafter, by natural death, Havabibi died on 21.11.1975. The father of the petitioner thereafter, contracted Nikah with Zubedaben on 6.2.1977. Out of this second marriage, three children were born.
4.2 Since at the time of death of the father of the petitioner, second wife of the father of the petitioner i.e. Zubedaben was alive, as per the Rules, the family pension was approved and fixed and she was granted family pension, but she died on 26.4.2020. During her life span, Zubedaben had made representation to the authority with supporting documents requesting that in the event of her death, the family pension should be granted to the petitioner as he is mentally challenged person, but the representation remained without any answer.
4.3 On 10.7.2020, the appellant authority replied the representation made by guardian of the petitioner and elder brother denying the pension to the mentally challenged petitioner on the ground that since Zubedaben - 2nd wife of the deceased was not sharing the family pension with the petitioner, the petitioner is not entitled to receive family pension. Hence, captioned petition was filed under Article 226 of the Constitution of India challenging said communication.
In captioned petition, the learned Single Judge, having heard learned advocates appearing for the respective parties and considering Rule 91 and 93 of the Gujarat Civil Services Pension Rules, 2002 (in short “Rules”), held that the petitioner is entitled to get the family pension and consequent thereto, quashed and set aside communication dated 10.7.2020.
Assailing the impugned oral judgment, learned advocate Ms. Vrunda Shah appearing for the appellant would submit that the learned Single Judge has not properly considered Rule 91 r/ w Rule 93 of the Rules. The petitioner has never shared the family pension by the second wife of the deceased, which is condition precedent for granting the pension to the mentally challenged child of the deceased employee. She would further submit that since the learned Single Judge has not considered this aspect, the impugned oral judgment is perverse and against the settled provisions of law.
6.1 In light of above submissions, learned advocate Ms. Shah prays to allow present LPA and to quash and set aside the impugned oral judgment passed by the learned Single Judge.
Learned advocate Ms. Harshal Pandya for the respondent herein – petitioner, who appeared on advanced copy, having strongly objected to this LPA, would argue that the learned Single Judge has rightly appreciated Rule 91 r/w Rule 93 of the Rules. She would further submit that undisputedly, since the petitioner is mentally challenged son of the deceased employee, he is entitled to family pension. She would further submit that sharing of family pension by the deceased widow of deceased employee is not a condition precedent for fixing the family pension of the mentally challenged child, which has been appreciated in its true perspective as well as rightly by the learned Single Judge and thus, under the limited jurisdiction of the LPA, this Court should not interfere with the impugned oral judgment.
7.1 Upon such submissions, learned advocate Ms. Harshal Pandya for the respondent herein – petitioner prays to dismiss present LPA.
Having heard learned advocates appearing for both the parties and on perusal of the impugned oral judgment, it indicates that the learned Single Judge has taken into consideration Rule 91 and 93 of the Rules for the decision. In para 7.3 to 7.6, the learned Single Judge held as under:-
“7.3 Be that is may what is also evident from the facts that the lady Zubebdaben had made a representation to the AMTS on 10.2.2007 much before she died in the year 2020 that the petitioner on the basis of the certificate of the Civil Hospital the name of the petitioner be included in the nomination and on her death the pension be paid to him.
7.4 Reading Rule 93 indicates that it deals with payment of family pension to mentally retarded and blind children etc.
7.5 When this Rule is read with Rule 91(3) it provides that where the deceased Government Employee or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive,the eligible child or children shall be entitled to the share of Family pension which the mother would have received if she had been alive at the time of death of the Government Employee.
7.6 Reading these Rules therefore makes it abundantly clear that the petitioner who was the son of the widow wife who was not alive would be entitled to the share in pension and since the petitioner is mentally challenged he shall be eligible and entitled to receive family pension for life.”
Learned advocate Ms. Vrunda Shah for the appellant, who seeks reversal of the impugned oral judgment, could not point out any illegality in interpretation of Rule 91 and 93 of the Rules. Learned Single Judge has considered the provisions of the Rules in background of the facts. It is undisputed that deceased Ismailbhai retired after serving for 37 years. It is also undisputed that during his lifetime, he has contracted Nikah twice. It is also undisputed fact that Havabibi – first wife of the deceased, who is mother of the present petitioner, died during the service tenure of deceased Ismailbhai. It is also undisputed that deceased Ismailbhai, after retiring from the service, had received the pension as per the Rules. It is also not disputed that on his demise, his second wife Zubedaben was also given family pension in view of the Rules. Pension to the petitioner, who was otherwise, entitled under Rule 93 of the Rules was denied inter alia on the ground that Zubedaben was not sharing family pension with the petitioner or at least, she has not informed the authority that she is sharing pension with the petitioner.
Learned advocate Ms. Vrunda Shah has relied upon Sub Rule (3) of Rule 91 of the Rules to contend that since the family pension was not shared by the second widow to the children of the deceased widow, the petitioner is not entitled to claim family pension. Sub Rule (3) of Rule 91 of the Rules reads as under:-
“91. Family Pension to whom payable :
(1) xxxxxxxxx
(2) xxxxxxxxx
(3) Where the deceased Government employee or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of Family Pension which the mother would have received if she had been alive at the time of the death of the Government employee or pensioner.”
Plain reading of Sub Rule (3) of Rule 91 of the Rules indicates that it gives right to child or children to get the family pension or share from the family pension which the widow mother was getting. But, in view of the facts stood in the present case, it cannot be considered as a condition precedent for fixing the pension for the mentally challenged petitioner.
Rule 93 of the Rules governs payment of family pension to the mentally challenged child or blind child slates with various conditions to grant family pension to the mentally challenged or blind child or children. It is undisputed that in the present case, only one child of the deceased employee is claiming pension under the category of being mentally retarded or mentally challenged and no other son or daughter is claiming family pension. The learned Single Judge has rightly assessed and encompassed the facts along with the provisions of law. Thus, no palpable error is crept or even seen remotely, which compels the Court to exercise limited jurisdiction under Letters Patent.
In the result, present LPA sans merits and accordingly, it is dismissed at admissions stage.