Citation : 2021 Latest Caselaw 4912 Guj
Judgement Date : 31 March, 2021
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21702 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHARATI RAMRANGILA MOR D/O LATE SHRI RAM RANGILA RAM LAKHAN
Versus
UNION OF INDIA
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Appearance:
MS MINI M NAIR(2689) for the Petitioner(s) No. 1,2
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1,2,4,5
VIRAL K SHAH(5210) for the Respondent(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The petitioners have filed this petition praying for issuance of a writ of mandamus or any other appropriate writ or order, directing the respondent authorities to make
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payment of family pension and other benefits of late Shri Ram Rangila Ram Lakhan with Service No.MES/101944 and Pension Payment Order No.C/ENG/11700/97 to the petitioners along with interest at the earliest.
2. The brief facts leading to the present petition are as under:
2.1 The petitioners are the unmarried and dependent daughters of late Shri Ram Rangila Ram Lakhan with Service No.MES/101944 and Pension Payment Order No.C/ENG/11700/97. The petitioners' father late Shri Ram Rangila Ram Lakhan, Mason of the Office of the Garrison Engineer retired on 28.02.1998 and thereafter, he passed away on 23.12.2003.
2.2 On 15.03.2004 the certificate was issued by Garrison Engineer - respondent No.3 herein that MES/101944 Shri Ram Rangila Ram Lakhan was working as Mason in the said office retired on 28.02.1998, and as per the record, his wife's name is Sm. Rukmani Ram Rangila, aged 52 years and is eligible for pension as per the Government Existing order.
2.3 The mother of the petitioners and widow of late Shri Ram Rangila Ram Lakhan namely Smt. Rukmaniben was thereafter drawing the family pension of their father and petitioners were dependents on the income of family pension drawn by Smt. Rukmaniben. Smt. Rukmaniben was having a Pension Account No. 10272938780 with State Bank of India, Bhuj Main Branch. The petitioners' mother also passed away on 30.01.2014. A legal notice came to be issued on 22.03.2014 through the
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advocate requesting them to provide correct legal guidance for procuring legal family pension for unmarried daughters of retired persons.
2.4 According to the petitioners, as per Rule 54 of CCS(Pension) Rules, 1972, unmarried daughter is entitled to family pension till her marriage or till she starts earning or till she attains 25 years of age whichever is earlier. It further provides that unmarried daughter beyond 25 years of age is entitled to family pension in terms of Department of Pension and Pensioners Welfare Office Memorandum No. 1/19/03- P&PW(E) dated 06.09.2007 subject to fulfillment of income criteria and other conditions.
2.5 The respondent No.5 directed the respondent No.3 to resubmit the complete documents vide its communication dated 05.07.2014 for grant of family pension claim of unmarried daughter.
2.6 The respondent No.3 vide its communication dated 10.12.2014 requested the petitioner No.1 to submit the legal heirship certificate. On 24.02.2015 the respondent No.3 has forwarded all the documents to the respondent No.5 in triplicate in respect of grant of family pension claim of Ms. Bharatiben R. Mor, unmarried daughter of late Ram Rangila Ram Lakhan. However, the respondent No.3 vide communication dated 31.03.2015 had returned the documents back to the petitioner No.1 on the ground that as per record held with the said office, the name of Ms. Bharatiben R. Mor is not there in the family details duly signed by deceased government servant and counter signed by the Authenticated
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officer; it was denied.
2.7 The petitioners, thereafter, requested the office of Mamlatdar, Bhuj to issue legal heirship certificate in favour of the petitioners. However, the Office of Mamlatdar, Bhuj, had refused to issue the legal heirship certificate to the Central Government Employees.
2.8 Thereafter, the petitioners on 13.07.2015 had preferred Civil Misc. Application No. 32 of 2015 before the learned Additional Civil Judge, Bhuj-Kachchh for getting succession certificate for defence family pension to unmarried and dependent daughters for movable property like pension and pensionary benefits under Section 372 of the Indian Succession Act, 1925. The learned Additional Civil Judge, Bhuj-Kachchh vide order dated 06.10.2018 rejected the Civil Misc. Application No. 32/2015 on the ground that the scope of issuance of succession certificate under Section 372 of the Indian Succession Act, 1925, is confined only to the extent of debt and security and such power cannot be utilised for obtaining succession certificate in respect of other properties such as movable, immovable and benefits such as pension, gratuity etc. On 06.10.2018 the learned Additional Civil Judge, Bhuj-Kachchh had rejected the application essentially harping the scope of issuance of succession certificate under Section 372 of the Indian Succession Act.
2.9 However, on the ground of sympathy the Talati-cum- Mantri, Bhuj, had issued panchnama/pedigree on 18.12.2018 where the present petitioners and one Rajesh Ram Rangila Mor
- son of the deceased has been shown as the legal heirs of late Shri Ram Rangila Ram Lakhan. This was communicated to the
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advocate on 20.12.2018, however, no reply was received from the otherside, and therefore, the petitioners have filed the present petition seeking direction from this Court that the respondent authorities be directed to consider the case of the petitioners for family pension at the earliest on the plea that the petitioner No.1 is doing the work of a domestic servant and the petitioner No.2 is not working.
2.10 It is the grievance of the petitioners that the Central Government vide Office Memorandum dated 06.09.200 extended the scope of family pension to unmarried daughters of Central Government servants/pensioners and it is also provided that the unmarried daughters beyond 25 yeas of age are also eligible for family pension at par with the widowed/divorced daughters subject to other conditions being fulfilled, and therefore, they are entitled to get the family pension. Accordingly the petitioners have filed this petition by praying the following reliefs:
"9(a). That the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to make payment of family pension and other benefits of late Shri Ram Rangila Ram Lakhan with Service No.MES/101944 and Pension Payment Order No.C/ENG/11700/97 to the petitioners along with interest to the petitioners, as early as possible.
(b) That pending the hearing and final disposal of the petition, the Hon'ble Court be pleased to direct the respondent authorities to consider and expedite the case of family pension and other benefits of late Shri Ram Rangila Ram Lakhan with Service No.MES/101944 and Pension Payment Order No.C/ENG/11700/97 to the petitioners at the earliest.
(c) Ex-parte interim relief in terms of para (b) above.
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(d) For such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."
3. Pursuant to the issuance of notice, learned counsel Mr. Viral K. Shah appeared for the respondent. Reply on behalf of respondent No.1 was filed stating that the contentions raised by the petitioners are denied as the same are not matching with documentary evidences and the employee of the answering respondent i.e. Late Shri Ram Rangila Ram Lakhan has at no place ever declared about the petitioners in the service book held with Garrison Engineer (Air Force) Bhuj. It is also stated that late Shri Ram Rangila Ram Lakhan had filed nomination form and bare perusal discloses the name of some other person i.e. his wife and not the petitioners.
It is further stated by the answering respondent that the Civil Court, Bhuj, also did not declare the petitioners to be the legal heirs of deceased Ram Rangila Ram Lakhan whereas the Mamlatdar, Bhuj, had denied the legal heirship vide order dated 06.10.2018, succession panchnama is prepared. It is further stated by the respondent that on the basis of Succession Panchnama/Pedigree issued by Talati-cum-Mantri, Bhuj, the grievance cannot be redressed, and the Mamlatdar, Bhuj has denied the issuance of legal heirship. It is further contended by the respondent that they had also inquired from SDM, Bhuj, but, still the answer is awaited.
According to respondent, late Shri Ram Rangila Ram Lakhan had expired on 23.12.203, and after his demise, his wife was drawing family pension, but, she also died on 30.01.2014, and after her demise, the petitioners have raised the demand for family pension and that too, without any sufficient documentary proof. The legal heirship of individual
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cannot be ascertained based on Succession Panchnama issued by Talati-cum-Mantri, Bhuj on 06.1.2018. Therefore, under the said background, the respondent urges this Court to dismiss the petition.
4. Major Gouri Shankar Pandey, working as Garrison Engineer (Air Force) Bhuj with the respondent No.1 had filed additional reply stating therein that at no place names of petitioners are ever declared in the service book held with Garrison Engineer (Air Force)) as per CCS Pension (Rules), 1972, under Rule 54 of CCS Pension Rule, 1972. It is further stated in the rely that the family pension rule is authorised under sub-Rule (12(a)( of Rule 54 and sub-Rule 6 of Rule 54 of CCS Pension (Rules), 1972. It is further stated in the reply that at no point of time the name of Ms. Bharti Ram Rangilal Mor was reflected in the record as daughter of deceased Shri Ram Rangila Ram Lakhan. The daughter - father relationship cannot be ascertained based on Succession Panchnama issued by Talati-cum-Mantri, Bhuj, in absence of any other documentary evidence. The trial court also denied to give legal heirship to the petitioners. Based on the Succession Panchnama issued by Talati-cum-Mantri. However, Succession Certificate under the Indian Succession Act, 1952, can be granted in respect of debt or securities to which the deceased was entitled and family pension is neither a debt nor a security of the deceased employee or pensioner of which succession certificate can be applied for under Section 372 of Indian Succession Act, 1925, and therefore the legal heirship of individual cannot be ascertained based on Succession Panchnama issued by Talati-cum-Mantri.
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5. We have heard the learned advocates on both the sides. We could notice that the only reason for denying the family pension to the unmarried and dependent daughters by the respondent is absence of their names in the record of the respondent-authority. The deceased employee Shri Ram Rangila Ram Lakhan had not declared in the service book the names of these petitioners as heirs or dependents, and instead the name of his wife alone was disclosed and she continued to receive the family pension till she was alive, and after she passed away on 30.01.2014, although, these unmarried daughters have claimed pension, no dependents are receiving any amount. There appears to be a detailed correspondence of the parties with one another. A communication dated 31.03.2015 makes it clear that, as per the record held with the office of respondent, the name of Ms. Bharatiben R. Mor does not exist in the family details duly signed by deceased government servant and counter-signed by the Authenticated Officer since her name does not get disclosed, and therefore, absence of entry in the service record is the denial of the family pension.
5.1 We could notice that the application for succession certificate for the purpose of family pension to the unmarried and dependent daughters has been preferred being Civil Misc. Application No. 32 of 2015 where various proofs have been produced on record. After considering the pleadings on record, the trial court had framed the following issues:
"1. Whether the applicants are entitled to get the Succession Certificate under Section 372 of the Indian Succession Act for the Defence Family Pension as prayed for?
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2.What order?
5.2 It has been noticed by the court that the said application is made for the purpose of seeking succession certificate to claim the benefits of the pension of her father on the ground that the pension does not come within the meaning of debt or security and the pension is governed by the service rules and provisions pertaining to nominees and change of the nominees is also governed by the service rules. The trial court chose not to entertain the application and answered the issue no.1 in negation and rejected the application. It also held and observed that, addition or substitution in the name of nominee, it is for the concerned department to deal with the same and it is not for the court to interfere in such functioning.
5.3 We could also notice the fact that the names of daughters of the late employee were not entered in the record, and therefore, there was nothing under the law to justify the issuance of succession certificate. The scope of issuance of succession certificate is confined only to the extent of debt and security, however, no one can deny the relationship of the petitioners with the father who retired way back in the year 2003. It is required to be noted that the deceased employee had only entered the name of his wife as nominee in the service book and had not disclosed the names of other nominees in the record of the respondent-authority.
5.4 The succession panchnama/pedigree which has been issued by Talati-cum-Mantri on 18.12.2018 mentioned the names of three heirs of the deceased employee; two of the
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petitioners are before this Court, and therefore, it was denied only on the ground that their names were not reflected as nominees of the deceased employee and these issues are squarely covered by the decision of this Court in the case of Smitaben Hiralalbhai Parmar vs. The General Manager (Finance) rendered in Special Civil Application No. 17517 of 2019 decided on 03.02.2021. There also the father of the petitioner was working on the post of Ex-cash Overseer, City Division, Ahmedabad, who retired from his post on 28.02.2002 and he was receiving pension from Khokhra Mahemdavad Post Office vide PPO No. GT 3180. The mother of the petitioner passed away in the year 2006 and the father of the petitioner also passed away in the year 2017. The petitioner herself got married to one Mr. Nilesh Manubhai Parmar in the year 1999 and she had taken customary divorce in the year 2000 and accordingly she separated from her husband and she continued to be with her father thereafter. After the death of her father, the petitioner filed an application on 11.11.2017 before the respondent No.2 - authority to grant pension as per the CCS (Pension) Rules, 1972, as being the divorced daughter as she would fit into the criteria of those who are eligible. However, when she went to submit the said application, she was orally informed by the respondent No.2 - authority that she would have to obtain a decree of divorce from the Court of law. She was denied the same and therefore the Court had an occasion to deal with this very issue. Relevant findings and observations are being reproduced for the purpose of present petition:
"4.1 The Office Memorandum dated 19.07.2017 is also produced which shows that the family pension can be
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granted to the divorced daughter in case where the divorce proceedings have been filed in a competent Court during the life time of the employee - pensioner and the divorce takes place after the death provided the claimant fulfill all other conditions for grant of family pension under the CCS (Pension) Rules, 1972.
5. Today the matter had been taken up for final hearing considering the plight of the petitioner. Learned advocate Ms. Suchak who is appointed in Legal Aid for the petitioner has urged that the financial condition of the petitioner is quite vitiable. She also has urged that she has a genuine customary divorce in the year 2000 and thereafter, as there was a need for the decree of divorce, by preferring the Family Suit No. 638 of 2018, she had obtained the same and yet, for no reason, the denial has come from the respondent authority. She has further urged that there are two sisters of the petitioner and both are married and settled in their own life and there is no objection from any of the heirs.
5.1. Learned advocate Ms. Suchak has heavily relied on the decision of this Court rendered in Special Civil Application No. 324 of 2018 dated 10.02.2020.
6. We have heard learned advocate Mr. Niral Mehta appearing for the respondent authorities, who has urged that there is neither decree of customary divorce nor the decree which has been obtained by the mutual consent, is being brought, however, when the father died and thereafter she needed to fill-up the form of
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pension, the petitioner is shown to be his dependent. In absence of her being reflected as a dependent by the father, the authority had not considered the case. He further has submitted that there neither any reason nor ineligibility criteria which impediment the authority to consider the case except the factum of not being reflected as a dependent by the employee.
7. Thus, having heard both the sides and also having closely examined the material on record, we notice that the denial which has come for and on behalf of the respondent for the first time was on 11.11.2017. We noticed that the father of the petitioner after serving for the life time, had passed away on 17.09.2017. He retired from his post on 28.02.2002 and had continued to receive the pension from the Khokhra Mahemdavad Post Office vide PPO No. GT 3180. He survived till 17.09.2017 and in the interregnum, the mother of the petitioner passed away on 03.11.2006.
7.1. On the death of the father, the petitioner made an application after two months on 11.11.2017 for grant of pension under the CCS Pension Rules, 1972, however, she was orally conveyed of the impediment being the customary divorce paper of the year 2000. She was required to obtained the decree of divorce from the Court of law and resubmit her application. She, for obtaining the decree of divorce had filed Family Suit No. 638 of 2018 and obtained the decree of divorce by mutual consent on 30.07.2018. This also has a reference of the couple having decree of divorce by mutual
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consent in customary way. The reference is also made of the divorce date on a stamp paper of Rs. 50/- which is 03.06.2000. She also had waived her right to claim the maintenance from her husband. Accordingly, the Court awarded decree on 30.07.2018.
7.2. We noticed that after the decree of divorce was produced with a request to reconsider her request of being a dependent of the employee and eligible to receive the family pension, a communication dated 02.01.2019 was sent to her which reads as under: -
"Sub: - Family Pension - Case of Smita H. Parmar D/O S.H.Parmar holder of PPO NO. GP-3180 Who Retired on 28/02/2002 & then expired on 17/09/2017
Ref: - Your office letter no. C-2/2/FPCHILD/ SHP/18- 19 Dt.26.11.2018.
With reference to your letter cited above in connection with family pension case, it is intimated that postal pensioner expired on 17/09/2017. The Family pension claimed by Divorcee daughter Smita H Parmar. As per Divorce paper divorce paper was filed on 21.03.2018 and case was decided on 30.07.2018 after the death of postal pensioner S.H.Parmar expired on 17/09/2017. As per CCS pension rule 1972 rule 54 clarification no 27 the Divorcee daughter Smita H Parmar is not eligible for family pension the rule is reproduced here as under Only those children who are dependent and meet other condition are eligible for family pension
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at the time of death of the Government servant or his/her spouse. Kindly cause to return copy of pensioner portion of PPO/Revised PPO Dt. 17/11/2017 (Both copies) and intimate upon which period the Family Pension was paid."
7.3. This categorically recognizes the fact that only those children who are dependent and meet other conditions are eligible for the family pension at the time of death of the Government Servant or his/her spouse, and the pension can be given to them. As per the CCS Pension Rules, 1972, the reference is made of Rule 54 Clarification No. 27 to state that the petitioner is not one of those dependents who could meet the criteria of getting the family pension.
7.4. We noticed that what has been objected to by the other side is that at the time of filling-up the nomination form, the petitioner is not being shown as a dependent. Such nomination form has not come on the record. At the same time, there is no date which is being referred to as to on which date such nomination form is being filled-in. It is ordinarily to be filled-in at the time when the service record is initiated. At a later stage, a person can make changes and make nomination also and even if there is a complete absence of nomination, that would not take away the right of the dependent to get the family pension. As submitted by learned advocate Mr. Mehta fairly that she is not in any manner ineligible for being a divorced daughter and for want of any objection on the part of
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any other heirs, it is only because her name is missing in the nomination form filled-in by the father that she is being denied the pension. In our opinion, such could hardly be the criteria which should weigh with the respondent for denying eligible dependent the amount of pension under the Pension Rules.
8. In Special Civil Application No. 324 of 2018, the Court was dealing with the question as to whether the divorced daughter was entitled to receive the benefit of family pension and was required to produce divorce decree duly authenticated or issued by the competent Court of law and could she be denied the benefit if she only produces the customary divorce deed for seeking the benefit of family pension. In that matter, family pension recipient mother died on 25.10.2011 and on account of her demise, the sole surviver in the family i.e. the original applicant - divorced daughter became eligible to receive family pension who approached the authority by making an application in the month of August, 2012 and made a request for grant of pension as per the provision of Rule 75 of the Railway Services (Pension) Rules. This request was rejected on the ground that she was needed to produce a valid divorce decree issued by the competent Court. The person with whom she had taken the customary divorce had died on 09.07.2013 and in this circumstances, the Court needed to consider the request of grant of pension. Some of the findings and observation would deserve reproduction at this stage: -
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"15. The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in pari-materia with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29(2), then perhaps rightly the author of Rule 54 and/or Rule 75 have not thought it fit to qualify the word "divorced daughter" by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is
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permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary divorce factum which have remain unchallenged before the authority and which have been recorded by the Tribunal in its orders at length and elaborately. Section 29(2) of the Hindu Marriage Act, read as under:
"Section 29(2):- Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."
16. In other words, it can well be said that when the factum of customary divorce in both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exists no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the from of dissolution
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of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also.
17. As Bombay High Court has observed rightly in its judgment the important factor is the family in which the daughter is residing when the pensioner/recipient of the family pension dies. When the said factum has not been disputed in both the cases and when it is clearly recorded by the Tribunal as a fact that both the applicants were residing with the pensioner/recipient of the family pension, then the insistence for dissolution of marriage by the competent Court only by way of decree, in our view, was not justified."
9. In the instant case, undoubtedly, the father of the petitioner - the employee who retired was serving as an Ex-cash Overseer in City Division, Ahmedabad, but, that would not mean that he may not make a mistake of not introducing daughter as a nominee and sometimes, it may not occur to the employee to show his/her daughter as a dependent. The employee retired on 28.02.2002 whereas the customary divorce of his daughter had taken place already on 03.06.2000 and therefore, the daughter could have been shown as his dependent. What is vital, however, is that later on
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also before the Court of law, there is a recognition of this document of customary divorce in a decree of divorce and the Court has also acknowledged the fact that she has not asked for any kind of alimony from her husband.
9.1. The customary divorce proceedings as mentioned hereinabove started before his retirement and there is not a semblance of doubt with regard to the genuineness of the divorce and even otherwise also, in the judgment of Special Civil Application No. 324 of 2018, the customary divorce also has been held valid whereas in case of the very petitioner, the decree of divorce is also obtained and the same has a reference of the customary divorce. In no manner, can she be called ineligible for the family pension.
10. In every each way, under the rules which are guiding the respondent for availing the pension to the family of the ex-employee, the petitioner is fitting into the criteria and therefore, the orders/communications passed by the respondent authorities on 02.01.2019 and 07.01.2019 deserves to be interfered with.
11. The present petition is allowed accordingly. The orders/communications of respondent nos. 1 and 2 dated 02.01.2019 and 07.01.2019 respectively are hereby quashed and set aside."
6. In the instant case, when the relationship of the petitioner with the retired employee cannot be questioned in
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wake of pedigree prepared by Talati-cum-Mantri and the employee who was retired in the year 2003 may not be an occasion to introduce his daughter as dependent and the nomination was already in the name of his wife, the rejection on the part of the trial court for grant of succession certificate was based not on the absence of any relationship of the petitioner with the deceased employee, but, such application for grant of pension, according to the court, as mentioned hereinabove is not fitting into the scheme of the Act. The pension, according to the court, would neither get covered under the debt and security and pension is governed by the service rules.
7. The petition is allowed, accordingly. The communication on the part of the respondent No.1 of the year 2015 and subsequently made in this respect denying the family pension to the petitioners being unsustainable, we direct the respondent-authority to consider the request of the petitioner for grant of family pension and other benefits of late Shri Ram Rangila Ram Lakhan with Service No.MES/101944. Let the same be considered within the period of ten weeks from the receipt of writ of this Court.
(SONIA GOKANI, J)
(GITA GOPI,J) A.M.A. SAIYED
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