Bombay High Court
Fauziya Anjum Wd/O. Aftab Patham ... vs Nasiba Wd/O. Akbar Pathan on 5 December, 2017
Bench: A.S. Chandurkar
950-WP-1482-16 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1482 OF 2016
1. Fauziya Anjum wd/o Aftab Pathan
aged about 23 years.
2. Aaliya Naaz d/o Aftab Pathan
aged about 4 years,
through her mother/guardian
Fauziya Anjum Aftab Pathan
Both residents of c/o Mustafa Sabir Sheikh
Plot No.18, Bambal Layout, Kalmeshwar,
Dist. Nagpur. ... Petitioners.
-vs-
Nasiba wd/o Akbar Pathan
aged about 57 years,
R/o Gandhi Nagar, Bachelor Road,
Arvi Naka, Wardha, Dist. Wardha. ... Respondent.
Shri S. Zia Qazi, Advocate for petitioners.
Shri A. A. Pannase, Advocate for respondent.
CORAM : A. S. CHANDURKAR, J.
DATE : December 05, 2017
Oral Judgment :
Rule. Heard finally with consent of counsel for the parties.
The short question that arises for consideration is with regard to
the validity of the order dated 30/09/2015 passed by the trial Court in
proceedings for issuance of heirship certificate vis-a-vis entitlement to
950-WP-1482-16 2/4
retirement benefits.
2. One Aftab Pathan was employed as a Surveyor in the Land
Revenue Department of the State Government. The petitioner No.1 married
said Aftab Pathan on 17/12/2010 and out said wedlock petitioner No.2 was
born. The respondent is the mother of said Aftab Pathan. On account of
serious ailment the husband of petitioner No.1 expired on 27/10/2012. As
the petitioner No.1 sought release of pensionary benefits, the employer called
upon her to produce legal heirship certificate. Accordingly proceedings
under Bombay Regulation Act, 1827 were initiated by the petitioner. In the
application it was stated that the certificate was required for release of
service benefits. Pursuant to public notice issued, the respondent appeared
and raised an objection. It was stated that being a Class-I heir, the mother
was also entitled to get the service benefits. The trial court after considering
the material on record directed issuance of heirship certificate to the
petitioner No.1 as well as the respondent.
3. Shri S. Z. Qazi, the learned counsel for the petitioner submitted
that the application for grant of heirship certificate was made for the limited
purpose of release of service benefits. This included release of pension and
an amount of gratuity. As per provisions of Rule 116 of the Maharashtra
Civil Services (Pension) Rules, 1982 (for short, the said Rules), family
950-WP-1482-16 3/4
pension is not payable to more than one member of the family. Referring to
Rules 116(7) and 116(16) of the said Rules it was submitted that the
expression 'family' would mean a dependent mother who has no
independent source of income and if the government servant is single. In
other words, the government servant should be the only surviving heir and
unmarried. It was therefore submitted that in the light of this clear
stipulation, the mother of the deceased was not entitled for grant of any
pensionary benefits as her son was not single.
4. Shri A. A. Pannase, learned counsel for the respondent supported
the impugned order. According to him the respondent being a Class-I heir
she was also entitled to the benefits that could be received by virtue of
service of her son. It was then submitted that this heirship certificate could
be used in other proceedings so as to claim legal rights under the civil law.
5. I have heard the learned counsel for the parties and I have
perused the impugned order. The application moved by the petitioners
clearly indicates that it was only for the purpose of getting family pension
and future retirement benefits on account of service rendered by the husband
of petitioner No.1. It is not in dispute that the respondent is the mother of
the deceased government servant, while petitioner No.1 was his wife. On a
reading of provisions of Rule 116 of the said Rules it is clear that if the male
950-WP-1482-16 4/4
government servant is survived by his widow, she would be entitled for
pension. If the government servant is single in the sense that he is
unmarried or if married has no surviving spouse and children then the
dependent mother and father in that order of preference having no
independent means of economic sustenance would be entitled for pension.
As noted above, the deceased government servant- the husband of petitioner
No.1 was not single. Therefore entitlement of the petitioner No.1 as widow
is apparent in view of Rule 116 of the said Rules.
6. However, at the same time it is to be noted that the respondent
being the mother of the deceased, she would be entitled to use said
declaration in other proceedings as and when the occasion arises. It is
therefore necessary to clarify the sphere within which the impugned order
would operate. Accordingly, while maintaining the impugned order it is
clarified that in so far as entitlement of pensionary benefits and other service
benefits, the rights of the parties would be governed by Rule 116 of the said
Rules. Observations to the contrary made in the impugned order would
therefore not operate.
With these observations, the writ petition is disposed of. No costs.
JUDGE
Asmita
