Gujarat High Court
Sureshbhai Somabhai Nayani vs State Of Gujarat Through Secretary - ... on 5 May, 2025
NEUTRAL CITATION
C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7198 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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SURESHBHAI SOMABHAI NAYANI & ORS.
Versus
STATE OF GUJARAT THROUGH SECRETARY - PANCHAYAT RURAL
HOUSING & ANR.
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1,2,3
MS KAJAL L KALWANI(6623) for the Petitioner(s) No. 1,2,3
MS MUSKAN A GOGIA(6624) for the Petitioner(s) No. 1,2,3
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 05/05/2025
ORAL JUDGMENT
1. Heard Mr. Anand B. Gogia, learned counsel for the petitioners No.1 to 3 and learned advocate Mr. H. S. Munshaw along with learned advocate Mr. Devang R. Bhatt for the Respondent No.2.
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2. Since the controversy involved is short, with the consent of the learned advocates for the parties, the matter is heard.
3. It is the specific case of the Petitioner which is uncontroverted by the Respondent that the deceased wife of the Petitioner No.1 - Shrimati Rekhaben Rameshbhai Kabira died in harness while on duty while crossing the culvert for going to school, on 11.08.2007. The Petitioners herein are the legal heirs of the deceased - employee. Late Shrimati Rekhaben was selected and posted as Vidhya Sahayak vide an order dated 23.01.2001 and she joined the said post on 25.01.2001. Thereafter, she was inducted as primary teacher at the Regular Pay Scale of Rs.4,000-100-6,000. Having completed five years as Vidya Sahayak, deceased Shrimati Rekhaben continued on the said post till her death.
4. The claim of the family pension of the said deceased Rekhaben came to be denied by the Respondents upon which the present petition came to be filed. The Respondent No.2 by affidavit in reply affirmed on 05.09.2013 and refuted the petitioner's claim as Page 2 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025 NEUTRAL CITATION C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025 undefined under:
"1. The respondent No.2 most respectfully submits that as such the averments and allegations made by the present petitioners against the respnt. authority are thoroughly baseless and contrary to the facts and material on record. It is stated that one Rekhaben Rameshchandra Kabira was recruited as Vidhya Sahayak by Rajkot District Panchayat through appointment order dated 23.1.01 and a copy thereof is annexed as ANNEXURE-A. It is submitted that the said appointment was purely on temporary, adhoc and with an honorarium of Rs.2500/- per month. It is further stated that as per appointment order she was required to serve as Vidhya Sahayak for a period of five years and only thereafter eligible for various benefits as per the policy of the State Govt. The respnt. no.2 submits that on completion of satisfactory service of five years as Vidhya Sahayak she was appointed as Asstt. Teacher in a regular pay scale of Rs.4000-6000 through order dated 29.3.06 and a copy thereof is annexed as ANNEXURE-B. It is further stated that only thereafter she was in regular employment of Rajkot District Primary Education Committee as per the Clause-10 of the appointment order.
2. It is most respectfully submitted that unfortunately she passed away on 11.8.07 and thereafter petitioner was released all the benefits payable as per the prevailing rules and regulations.
3. The respnt. no.2 submits that, however the petitioners herein claimed benefits of Family Pension on the basis that stipulated service of five years was over as Vidhya Sahayak as she was appointed through order dated 23.1.01. The respnt, no.2 submits that as per the policy of the State Govt. late Ms. Rekhaben Rameshchandra Kabira was recruited as Vidya Sahayak through order dated 23.1.01 and the appointment was purely on temporary, adhoc and conditional one and she was entitled to a honorarium of Rs.2500 per month. The respnt. no.2 submits that Page 3 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025 NEUTRAL CITATION C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025 undefined the said appointment was not on permanent basis and the conditions of the appointment order are categorically making the same clear. The respnt. no.2 submits that late Ms. Kabira was later on taken up as Primary Teacher in the pay scale of Rs 4000-6000 as well as other allowances through order dated 29.3.06. It is pertinent to note that only thereafter Ms. Kabira was entitled to various benefits as per condition no.11 of the order dated 29.3.06. In other words late Ms. Kabira was not entitled to any benefit claimed by the present petitioner for the service rendered as Vidya Sahayak. The respnt. no.2 submits that, however, the pension papers were prepared for a release of benefit of family pension in favour of the present petitioner on the basis that late Ms. Kabira was taken up in regular pay scale of Primary Teacher with effect from 1.4.05 pursuant to order dated 29.3.06. However, the office of Asstt. Examiner of Local Fund Audit at Rajkot after verifying various facts and record as well as the policy of the State Govt. returned the same through order dated 22.5.08 on the ground that she was taken in a regular pay scale after 1.4.05, petitioners were not entitled to the benefit of old pension scheme and a copy of said order is annexed as ANNEXURE-C. It is submitted that accordingly the Taluka Development Officer, Rajkot was informed about the same through letter dated 30.7.08.
4. The respnt. no.2 submits that the pension papers prepared and submitted by the office of District Primary Education Officer at Rajkot are verified and returned by the office of Asstt. Examiner of Local Fund Audit at Rajkot petitioners are not entitled to family pension and therefore, the Hon'ble Court is humbly prayed not to grant any interim relief and reject the present petition in limine with cost in the interest of justice."
5. Mr. Gogia, learned advocate for the Petitioners, relying upon the G.R. dated 31.07.1987 at Annexure 'D' Page 4 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025 NEUTRAL CITATION C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025 undefined (page 33 of the paper book) submitted that regarding the admissibility of family pension, the families of Government employees who died in harness, it has been categorically stated that the eligibility of such family pension would be irrespective of the length of service of the deceased employee. He relies upon the following decisions of this Court in support of the said contention:-
1. Shree Yogkshem Foundation For Human Dignity Vs. State Of Gujarat & Ors. reported in 2012 (1) GLH 321.
2. Sugandhidevi Fakirchand Malaviya Vs. State of Gujarat & 5 Others reported in 2020 (2) GLR 1567.
3. Anitkumar Amratbhai Patel and Ors. Vs. State Of Gujarat & Ors. reported in 2020 (3) GLR 1766.
4. State Of Gujarat & Ors. Vs. Shantaben Maganlal Chanchapana reported in Second Appeal No. 9 of 2014.
6. Mr. Gogia, learned advocate for the Petitioners further submits by placing reliance on the G.R. dated 18.01.2007, particularly para-2 of the said resolution at page 56 of the paper book, which reads as under: Page 5 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025
NEUTRAL CITATION C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025 undefined "(2) At present the five years' fixed pay tenure of the employees appointed under the fixed pay scheme, is not considered for any of the matters related to service/ employment. After due consideration by the State Government on the above mentioned issue, it has been resolved that this five years' service of the employees appointed on fixed pay under the scheme dated 16-02-2006 of the Finance Department, shall be taken into consideration for promotion, seniority, higher grade pay scale as well as retirement benefits admissible at the time of retirement."
7. The G.R. dated 18.01.2007 is clear and categorical that once there is a continuous period of five years service then all consequential benefits shall become entitled to the said employee. Therefore, a conjoint reading of G.R. dated 18.01.2007 with the G.R. dated 31.07.1987 makes it clear that the Petitioners herein are entitled to family pension on the basis of continuous employment of deceased Rekhaben.
8. On the other hand, Mr. Munshaw, learned advocate for Respondent No.2 relying upon the office order dated 29.03.2006, particularly para 9 and 11 thereof submitted Page 6 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025 NEUTRAL CITATION C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025 undefined that since the deceased Rekhaben did not have the fitness certificate as required in Clause 11 of the said office order, she could not have been deemed to be a regular employee and appointed to the post in question and therefore, the Government Resolution of 31.07.1987 would be of no avail. In these circumstances, the office of the Assistant Examiner of Local Fund Audit, Rajkot has rightly verified the documents and papers relating to the deceased Rekhaben and has returned the pension papers submitted by the office of the District Primary Education Officer at Rajkot with the categorical finding that the Petitioners are not entitled to family pension. Mr. Munshaw, further submitted that, in such view of the matter, this Court may not interfere with the decision of the Assistant Examiner of Local Fund Audit at Rajkot and the petition therefore is bound to be rejected.
9. Having heard the learned counsel and having applied my mind to the facts and circumstances of the case, I am of the opinion that the deceased Rekhaben ought to be deemed in continued service till her death in harness. The decisions of this Court cited by Shri Gogia Page 7 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025 NEUTRAL CITATION C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025 undefined on behalf of the Petitioners are squarely applicable to the facts of this case, therefore G.R. dated 31.07.1987 which mandates that the admissibility of family pension to the families of Government employees who die in harness shall be allowed Family Pension irrespective of their length of service, is squarely applicable to the Petitioners. Regarding the objection of learned advocate Mr. Munshaw founded on the condition No. 11 of the office order dated 29.03.2006 has to be rejected for the reason that this is not a case where the deceased Rekhaben inspite of being in continuous service had not obtained the requisite fitness certificate but it is due to her untimely death in harness that the deceased Rekhaben was unable to obtain the said medical certificate during her duration of service while she was alive.
10. It is also not the case of the Respondents that the Respondents had taken out any proceedings against the deceased Rekhaben during her life time that her initial appointment as a primary teacher had become irregular due to her failing to obtain the requisite medical fitness. Page 8 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025
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11. In that view of the matter, there is no applicability whatsoever or non-compliance of condition No.11 of the office order dated 29.03.2006 which would come in the way of granting the full family pension as applicable, taking the continuous service of deceased Rekhaben from her date of initial joining till her death in harness.
12. Therefore, the impugned communication dated 30.07.2008 is hereby quashed and set aside and the Respondents are directed to workout the family pension applicable to the Petitioners on the basis of the foregoing portion of this Judgment and order within a period of 12 (twelve) weeks from today.
13. Accordingly, the present petition succeeds and is hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(D.N.RAY,J) MAYA Page 9 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu May 15 2025 Downloaded on : Sat May 17 09:07:35 IST 2025