Renurani Wd/O Omprakash Sharma & 1 Other(s) vs State Of Gujarat & 3 Other(s)

N.V.Anjaria, J

Heard learned advocate Mr.Bharat T. Rao for the petitioners and learned Assistant Government Pleader Mr.K.M.Antani for the respondentÂState

and its authorities.

The prayer made in this petition is as under,

“To direct the respondent No.4 to forthwith withdraw the proposal/s submitted by it to all the government authorities for making payment of

pension, provident fund, gratuity, leave salary and retiral/terminal benefits of late Omprakash Sharma only to minor Sahil Omprakash Sharma and to

submit fresh proposal by including the names of petitioners as well as minor Sahil Omprakash Sharma.â€​

Petitioner No.1 is widow of deceased Omprakash Sharma who was serving as Clerk in the Prerna Hindi Higher Secondary School, Chandkheda,

Gandhinagar respondent No.4 herein, run and managed by one Sarvodaya Education Trust. Petitioner No.2 is a married daughter of petitioner No.1

who stays with her husband. Petitioner No.1 obtained divorce from her first marriage and thereafter married with said Omprakash Sharma, now

deceased. Said Omprakash Sharma who died on 15.05.2017 was earlier married to one Smt.Meenaben. Out of the wedlock between the deceased

Omprakash Sharmaa and his first wife Meenaben, son named Sahil and daughter named Binali were born. The son is aged seventeen years and the

daughter is of the age of twenty seven years for the present. Out of the second marriage between Omprakash Sharma and petitioner No.1, daughter

named Suruchi was born who is now aged ten years.

3.1 The first wife of deceased Omprakash Sharma died on 02.06.2010. Thereafter the marriage of Omprakash Sharma with petitioner No.1 took

place. It is stated that after the said marriage, petitioner No.1 started residing with her husband at matrimonial house along with the two children born

out of first marriage as above as well as with the daughter Suruchi born out of the wedlock between Omprakash Sharma and petitioner No.1. It is

further stated that name of petitioner No.1 and the name of Suruchi have been entered in the Ration Card of her late husband Omprakash Sharma. It

is further stated that the Aadhar Card issued to petitioner No.1 shows the address of matrimonial house to evidence that petitioner No.1 stays at the

matrimonial house, being the residence of deceased Omprakash Sharma.

3.2 It is further mentioned by petitioners that subsequent to the death of husband Omprakash Sharma, petitioner No.1 had applied for getting the

benefit of Widow Help Scheme (Vidhva Sahay) from the office of Mamlatdar, Sabarmati. The authority has sanctioned the financial assistance of

Rs.1,000/Â per month to petitioner No.1 as widow of late Omprakash Sharma. This benefit is granted to petitioner No.1 for her lifetime or till she

remarries. The petitioners have also produced order dated 26.12.2017 from the City Mamlatdar, Sabarmati, Ahmedabad, sanctioning the said Vidhva

Sahay.

3.3 It is the case of the petitioners that after demise of the husband Omprakash Sharma, petitioner No.1 as widow and petitioner No.2 as daughter are

entitled to get the amount of provident fund, gratuity, pension and other terminal benefits to the deceased Omprakash Sharma. It was stated that since

the stepÂson of petitioner No.1 is minor, the benefit is receivable by the petitioners. The petitioners have averred in some details the alleged conduct

of inÂlaws of petitioner No.1, that is the brother of Omprakash Sharma, alleging that said brother and other inÂlaws connived with the Principal and

Managing Trustee of the school and the management, and created certain false documents. It was alleged that the documentation forged were

produced and are being sought to be utilized to deprive the petitioners and legal heirs of the deceased Omprakash Sharma of the retiral benefits. It is

the grievance that the inÂlaws of petitioner No.1 have been wrongly projecting their names to receive the terminal benefits and retiral benefits of said

Omprakash Sharma as if they were the nominees. It is further alleged that the said inÂlaws and authorities of the school management all are in

collusion and projecting that only Sahil Sharma is the legal heir to receive the benefits.

3.4 It is in the above context and facts and allegations that the prayer as above is made in the petition.

The petition was contested by respondent No.3 in which it was inter alia stated that the entitlement of pensionary benefits or terminal benefits to

deceased Omprakash Sharma was not disputed, however, the question is one of disbursement. It was further stated that neither of the parties is

shown as a nominee for the purpose of receiving the amount of gratuity. It was further stated that name of the son Sahil has been added in the school

record as nominee for the purpose of disbursement of benefits, however, the petitioners have alleged such insertion and the documents in that regard

to be forged. It was further stated that Rs.4,00,000/Â has already been disbursed in favour of the said minor son. The affidavitÂinÂreply thereafter

proceeded to rely on the relevant rules from Gujarat Civil Service (Pension) Rules, 2002.

In order to determine as to who could be said to be entitled in law to receive the family pension after deceased Omprakash Sharma, it is necessary

to consider the relevant provisions of the Gujarat Civil Service (Pension) Rules, 2002. Chapter X of the said Rules contains group of the provisions

under the title “Family Pension Scheme, 1972â€​. Rule 91 has the provision as to whom the family pension is payable.

5.1 Under the rules, the concept of 'family' is a codified concept. Family members are mentioned in their order who would be entitled to receive the

family pension in that order. “Familyâ€​ is defined in Clause

(a) of Rule 88. Rule 88(a)(i) includes within the concept of family, the wife or husband as the case may be of the government employee. In clause (ii),

(iii) and (iv), the family includes judicially separated wife or husband, son or daughter who has yet to attain the age of twenty five years and the wholly

dependent parents of the government servant. Rule 91 provides for family pension. It firstly provides that in case of widow or widower, family pension

will be paid until the date of remarriage whichever is earlier. Here also the widow or widower is mentioned first in order, who would receive the

pension. Rule 92 says that where family pension is granted to minor it shall be payable to the legal guardian on behalf of the minor.

5.2 When read with aforesaid provisions of the Rules, Rule 95 becoming relevant in case of death of pensioner who is in receipt of service pension,

throws the final light. Under SubÂ​rule (6) of Rule 95, it is provided as under,

“95. Relief in the case of death of pensioner in receipt of service pension: (1) In case of death of a pensioner who is in receipt of a service pension,

a lump sum amount equal to one months pension shall be payable to a nominee, who has been nominated by the pensioner under this rule.

(2) … … …

(3) … … …

(4) … … …

(5) … … …

(6) In cases where the pensioner, the nominee and alternate nominee dies simultaneously either in an accident or in air crash etc. or the nominee and

the alternate nominee expires before the death of the pensioner and the pensioner dies without making revised nomination, the amount shall be paid to

the person entitled to receive family pension under ruleÂ91, or otherwise to the relatives of the family of deceased pensioner’s family in the

following order of priority :Â​

(a) wife (in the case of male Government employee),

(b) husband (in the case of female Government employee),

(c) sons,

(d) unmarried & widowed daughters,

(e) father,

(f) mother,

(g) sons of predeceased son,

(h) married daughter,

(i) brothers.â€​

5.3 Thus in the order of entitlement, the wife stands first in case of married government employee. Otherrelations would come subsequently.

Petitioner No.1 who is the wife of deceased Omprakash Sharma having married with him. The status of petitioner as wife is recognized by the

government and authorities as petitioner No.1 has been gettingVidhva Sahay from the government in her capacity as wife of deceased Omprakash

Sharma. Under the Rules of 2002, petitioner No.1, therefore, would be entitled in capacity of wife to receive the family pension and other pension

relatedbenefits after the death of deceased Omprakash Sharma. The objection raised by inÂlaws of petitioner No.1 would not sustain and would not

stand valid in wake of the provisions of rule mentioned above.

5.4 In Violet Issaac vs. Union of India [(1991) 1 SCC 725,] the Supreme Court came to conclusion that the family pension does not form part of the

estate of deceased. Therefore, even an employee has no right to dispose of the same under the Will by giving a direction for someone other than the

one who is entitled to, should be given the same. After referring to the decision in Violet Issaac (supra), the Supreme Court in Nitu vs. Sheela Rani

and others [(2016) 16 SCC 229], held that the pensionary benefits are given under the provisions of the applicable scheme and the entitlement of

person is as per the scheme. It was reiterated that family pension does not form part of the estate of the deceased and as such even the employee has

no right to dispose it of in his Will. It was held that the provisions of the Hindu Succession Act, 1956, would not be applicable in case of family

pension.

5.5 In the present case also, as already noticed, Gujarat Civil Service (Pension) Rules, 2002 and the scheme of the rules operates and governs the

right to receive family pension by petitioner No.1 after the death of said Omprakash Sharma, who was husband of petitioner No.1. Petitioner No.1

being the person standing in capacity of wife, would be entitled to receive the family pension and other retiral benefits arising out of pension to the

deceased husband. The petitioner's prayer deserves to be granted on the count of entitlement of family pension to her. It is declared that petitioner

No.1 being the wife would stand entitled for the same.

As far as the payment of gratuity is concerned, Rule 82 of the Rules provides that for the purpose of Rules 81 and 83 to 85, the family in relation to

a government servant means those relations mentioned in Rule 82 in that order in Group 1.Rule 83 speaks about the person to whom the gratuity is

payable. Rule 84 clarifies about the payment of gratuity when no nomination exists. It inter alia provides that where government employee dies while

in service or after retirement without receiving the amount of gratuity and leaves behind no family or has not made any nomination or nominees may

not substitute the amount in respect of such government employee shall be payable to the individual in whose favour the heirship certificate has been

given by the Court. Rule 85 is about nominees.

For the foregoing reasons, it is declared and held that petitioner No.1 is entitled to receive the family pension and other terminal benefits pursuant to

the death of her husband the government servant named Omprakash Sharma. The payment towards gratuity shall however be guided by the Rules

mentioned above. As a result, the petition is allowed in terms of prayer 28(A) of the petition.

Direct service is permitted.