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Judgment
Biren Vaishnav, J
1 Rule returnable forthwith. Heard Ms.Harshal Pandya for the petitioner and Ms Vrunda Shah, learned advocate for the respondent. With consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
2 By way of this petition under Article 226 of the Constitution Of India, the petitioner has filed this petition for quashing and setting aside the communication dated 10.07.2020 and declare that the petitioner is entitled to receive family pension for life as per Rule 93 of the Gujarat Civil Services (Pension) Rules, 2002.
3 Facts in brief would indicate that father of the petitioner was serving in the Ahmedabad Municipal Transport Service (AMTS) as Senior Clerk since 1966 and had retired on 1.7.2003 on attaining the age of superannuation. The petitioner’s father rendered 37 years of service and died on 19.6.2007.
4 The father of the petitioner had firstly got married with Havabibbi and out of the wedlock they had three children (two sons and one daughter) including the present petitioner named Mubarakali who was born on 6.11.1970. Havabibbi died on 21.11.1975 and the petitioner’s father married Zubedaben on 6.2.1977 and out of wedlock had three children.
4.1 The petitioner’s father was a member of the Pension Scheme. On his death, the wife Zubedaben was granted family pension. She died on 26.4.2020.During the survival Zubedaben had made a representation to the authorities with supporting documents inter-alia requesting that after her death, family pension be granted to the petitioner. This representation was never replied. The representation was made on 21.05.2020.
4.2 By the impugned communication dated on 10.7.2020 on a representation made by the petitioner’s guardian and elder brother, the reply that was received was that since no action was taken by Zubedaben sharing the pension of the widow and eligible children for the first wife Havabibi, no family pension is payable to the petitioner. This communication was based on the opinion of the Chief Auditor.
5 Ms Harshal Pandya, learned counsel for the petitioner, would submit that the petitioner is physically and mentally challenged. Rule 91 read with Rule 93 of the Gujarat Civil Service Rules (2002) would entitled the petitioner for pension.
5.1 Ms.Pandya, learned advocate, would rely on an order passed by this Court rendered in Special Civil Application No. 1696 of 2014 dated 10/10/2014.
6 Ms.Vrunda Shah, learned advocate, appearing for the AMTS would submit that the petitioner’s mother had died in the year 1975. On the death of the petitioner’s father there was only one widow living and she after her receiving family pension had never informed the AMTS that the pension needs to be divided into half as per the Rules namely Rule 91 of the Pension Rules,2002.
6.1 She would submit that the name of the petitioner was deleted from the nomination and that the pensioner Zubedaben had also not named the petitioner and that since there was one widow the petitioner is not entitled to pension. She would rely on a decision in the case of A.Vimala Devi vs The Registrar (Administration) High Court of A.P.Hyderabad and Anr. of the Andhra Pradesh High Court dated 30.08.2017.
7 Having considered the submissions the facts that need to be noticed are that the petitioner’s father who worked with the AMTS died on 19.06.2007.The first wife,the petitioner’s mother Havabibi predeceased the petitioner’s father on 21.11.1975. The petitioner’s father on 6.2.1977 married Zubeda ben from who he had children. The petitioner was the son of the first wife and he is mentally challenged. Rule 91 and 93 of the Gujarat Civil Services (Pension ) Rules,2002 read as under:
“91. Family Pension to whom payable :
(1) The period for which family pension is payable shall be as follows :-
(i) In the case of a widow or widower, until the date of death or remarriage, whichever is earlier;
(ii) in the case of son, until he attains the age of twenty-five years or until he gets married, whichever is earlier; and
(iii) in the case of an unmarried daughter, until she attains the age of twenty-five years or until she gets married, whichever is earlier;
(2) (i) where the Family Pension is payable to more than one widows then, the Family Pension shall be paid to the widows in equal shares;
(ii) on the death of a widow, her share of the Family Pension shall become payable to her eligible child. In case of such child becoming ineligible to get the share of Family Pension, the same shall be payable to the surviving widow/widow or/ and their children in equal shares. Provided that if the widow is not survived by any child her share of the Family Pension shall be payable to other widows in equal shares. If there is one such widow full amount of family pension shall be payable to her.
(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.
(4) Where a deceased Government employee or pensioner leaves behind more than one child, the eldest eligible child shall be entitled to the family pension for the period mentioned in clause (ii) or clause (iii) of sub-rule (1), as the case may be and after the expiry of that period the next child shall become eligible for the grant of Family Pension.
(5) Where a deceased Government employee or pensioner leaves behind him/her no eligible child, the family pension shall be paid to his/her parents. The income criterion and certain other eligibility conditions for the grant of family pension to the dependent parents of the deceased Government employee shall be as under :-
(i) Parents who were wholly dependent on the deceased Government servant when he/she was alive will only be entitled to family pension.
(ii) The deceased employee had left behind him/ her neither widow/widower or a child at the time of his/her death.
(iii) The family pension wherever admissible to parents, the mother will receive the pension first and after her death the father will receive the family pension.
(iv) The income criteria will be that their earning is not more than Rs. 2550 per month.
(v) They will have to produce an annual certificate to the effect that their earning is not more than Rs. 2550 per month.
(vi) It will be the responsibility of the pension sanctioning authorities concerned to satisfy themselves, based on a scrutiny of the service records and other relevant documents, that the parents were, in fact, wholly dependent on the deceased Government servant when he/she was alive and that he/she has not left behind any of the other specified beneficiaries who have a prior claim to the family pension.
(vii) The parents will get Family Pension at the rate of 30% of the basic pay of the deceased employee, subject to a minimum of Rs. 1275 per month.
(6) In case both wife and husband are Government employees and are governed by the provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of death of the husband or wife, the surviving child or children shall be granted two family pensions in respect of the deceased parents.
(7) Except as provided in sub-rule (2), the Family Pension shall not be payable to more than one member of the family at the same time; (8) If deceased Government employee or pensioner leaves behind a widow or widower, the Family Pension shall become payable to the widow or widower, failing which to the eligible child; (9) If sons and unmarried daughters are alive, unmarried daughters shall not be eligible for Family Pension unless the youngest son attains the age of twenty five years and thereby becomes ineligible for the grant of Family Pension.
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Payment of Family Pension to mentally retarded, blind etc. children : Without prejudice to the provisions contained in rule-91, if the son or daughter of a Governments employee born before or after retirement, from the marriage which took place before or after his retirement is suffering from any disorder or disability of mind or is physically crippled or disabled or is blind so as to render him or her unable to earn a living even after attaining the age of twenty-five years the family pension shall be payable to such son or daughter for life subject to the following conditions, namely :-
(1) the handicap is of such a nature as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a Medical Officer not below the rank of a Civil Surgeon or Superintendent of Civil Hospital setting out, as far as possible, the exact mental or physical condition of the child;
(i) if such son or daughter is one among two or more children of the Government employee, the family pension shall be initially payable to the children in the order set out in sub-rule (9) of rule-91, until the last minor child attains the age of twenty-five and thereafter the Family Pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind or who is physically crippled or disabled or blind and shall be payable to him/her for life;
(ii) if there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled or blind the family pension shall be paid in the following order namely :-
(a) firstly to the son, and if there are more than one son, the younger of them will get the family pension only after the lifetime of the elder;
(b) secondly, to the daughter, and if there are more than one daughter, the younger of them will get the Family Pension only after the life time of the elder;
(iii) the family pension shall be paid to such son or daughter through the guardian as if he or she were a minor;
(iv) before allowing the Family Pension for life to any such son or daughter, the sanctioning authority shall satisfy itself that the person receiving the Family Pension as guardian of such son or daughter shall produce every three years a certificate from a Medical Officer not below the rank of a Civil Surgeon/ Superintendent of Civil Hospital to the effect that he or she continues to suffer from disorder or disability of mind or continue to be physically crippled or disabled.
(v) Where the names of eligible children have not been mentioned in the Pension Payment Order and the child is post retiral one or post retiral manifestation of disability of the child, the pensioner, if so he/she so desires can furnish the list of eligible children to the pension sanctioning authority inter-alia indicating whether any child is handicapped or not. Receipt of this may be acknowledged by the pension sanctioning authority mentioning the details of eligible children taken on record. This acknowledgement may be preserved by members of the family of the pensioner for production at the time of claim for family pension in their own turn to the pension sanctioning authority. In case of mentally retarded children or minor children who would draw pension through guardian, the responsibility of producing this acknowledgement will, however, not be a pre-condition to the processing of claims for family pension. Explanation :
(a) Disability or blindness which manifests itself before the retirement or after the death of the Government employee while in service but before the son/daughter attained the age of twenty-five years shall be taken into account for the purpose of grant of Family Pension under this sub-rule.
(b) A son or daughter shall become ineligible for Family Pension under this sub-rule from the date he or she gets married.
(c) The Family Pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood.
(d) In such cases it shall be the duty of the guardian to furnish a certificate to the Treasury or Bank, as the case may be, every month that (i) he or she has not started earning his/her livelihood, and (ii) he or she has not yet married.
(2) they are already not in receipt of any pension or are eligible therefor, under any other rules of any other State Government or the Central Government and/or a public sector undertaking or Autonomous body under the State Government or Central Government.”
7.1 What is evident on reading the Rules makes it evident is that sub-rule (2) indicates that where a family pension is payable to more than one widows then,the family pension shall be paid to two widows in equal share.
7.2 From the dates what is evident is that Havabibi pre- deceased the petitioner’s father in as much that she died in 1975 whereas the petitioner’s father died on 19.6.2007.On the death of the petitioner’s father the only surviving widow was Zubedaben. There was therefore no need or an occasion that the pension could be divided into two halves.
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.
8 In light of this position the petition is allowed. The Order dated 10.7.2020 is quashed and set aside and the petitioner is entitled to received family pension for life and the respondent is directed to pass orders granting family pension to the petitioner in accordance with rules together with arrears. The order shall be complied with within 10 weeks from the date of receipt of the certified copy of his Order. Rule made absolute with no order as to costs.