Ganeshbhai Yogendrakumar Pandya vs State Of Gujarat
2021 Latest Caselaw 13071 Guj

     C/SCA/10571/2019                             JUDGMENT DATED: 01/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10571 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA              Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                             NO

2     To be referred to the Reporter or not ?                          YES

3     Whether their Lordships wish to see the fair copy                 NO
      of the judgment ?

4     Whether this case involves a substantial question                 NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                    GANESHBHAI YOGENDRAKUMAR PANDYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2,3
RULE SERVED(64) for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 01/09/2021
                     ORAL JUDGMENT

1. In the present writ petition, the petitioner is praying for a direction directing the respondent authorities to grant death-cum-retirement gratuity to him, which he would be entitled to receive upon the demise of his mother.

2. The brief facts of the case are as under:

2.1 The mother of the petitioner namely, Naynaben Yogendrabhai Pandya was appointed as a Clerk vide order dated 10.05.1984 in the office of the Assistant District Registrar at Himmatnagar on compassionate

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ground upon death of her husband. As per the terms of appointment order, mother of the petitioner was required to pass pre-service training examination within stipulated chances i.e. three chances but she could not clear because of her social liabilities and responsibilities of three minor children and aged mother-in-law. However, though over and above three regular chances, two additional chances were available to widow, as per policy of the State Government. Despite request, she was not granted those additional chances.

2.2 Thereafter, the mother of the petitioner came to be terminated from service on the said ground by the District Registrar on 21.08.1993, which constrained her to approach this Court assailing her termination by way of filing Special Civil Application No.8517 of 1993. The mother of the petitioner was protected by this Court by granting stay against her termination and thus, she continued in service till final disposal of the said writ petition. The said petition came to be dismissed by the learned Single Judge vide order dated 28.07.2009, which led the mother of the petitioner to terminate again on 03.09.2009.

2.3 Being aggrieved by the said judgement rendered by this Court, mother of the petitioner preferred Letters Patent Appeal No.2200 of 2009. The Division Bench of this Court allowed the appeal by quashing and setting aside the termination and ordered reinstatement with 50% back wages and cost of

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Rs.5,000/- by judgement and order dated 24.09.2012. In compliance of the judgement, vide order dated 11.10.2012, the District Registrar at Himmatnagar passed an order reinstating the mother of the petitioner in service. As per the order, the mother of the petitioner was required to pass pre-service training examination in additional chances, after her reinstatement and till that date, she will not be entitled to any increments in salary.

2.4 On 11.10.2012, the mother of the petitioner resumed her duties and after joining, she filled up the form for the exam but before she could appear and clear the exam, she passed away on 27.11.2014. After death of the mother of the petitioner, the respondent authorities have paid her GPF amount, leave encashment and group insurance amount to her legal heirs i.e. petitioner and his siblings. Since all children of Naynaben are major, the family pension is not payable to them to which they do not have any grievance but the respondent authorities have till date not paid death-cum-retirement gratuity, though they are entitled to receive the same immediately after her death. All other terminal dues are paid to the petitioner, except the gratuity and, therefore, the petitioner requested the respondent No.3 to pay the amount payable to him after death of his mother vide letter dated 10.12.2014. Thereafter, the issue remained in correspondence between the respondent authorities inter se but it has not resulted into any decision or result. The petitioner had approached all

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the authorities personally uptill now but till date he has not been paid the amount of death-cum- retirement gratuity and hence, the petitioner is constrained to prefer the present petition with the aforesaid relief.

3. Learned advocate for the petitioner has submitted that the respondent authorities have not granted the benefit of death-cum-retirement gratuity on the ground that his mother has not cleared pre- service training examination. She has submitted that the provision of the Gujarat Civil Services (Pension) Rules, 2002 (for short "the GCS Rules"), more particularly Rules 81 and 83 thereof entitles the petitioner to receive the gratuity upon the death of his mother. She has submitted that there is no provision under any law which prohibits payment of death-cum-retirement gratuity for the reason of not clearing the pre-service training examination. She has submitted that the mother of the petitioner has rendered more than 25 years of service and as per Rules 81 and 83 of the aforesaid Rules, the petitioner is entitled to receive gratuity amount immediately.

4. Per contra, learned Assistant Government Pleader, while placing reliance on the affidavit, has submitted that the mother of the petitioner was required to pass the pre-service training examination however, she has not cleared the same despite of being given opportunity of passing the same.

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5. I have heard the learned advocates for the respective parties and perused the documents on record.

6. It is not in dispute that by the judgement and order dated 24.09.2012 passed in Letters Patent Appeal No.2200 of 2009, the Division Bench of this Court had set aside the impugned order of termination and directed the State authorities to reinstate the mother of the petitioner with 50% back wages and accordingly, she was reinstated in service with the condition passing of the pre-service training examination. In compliance of the said judgement, vide order dated 11.10.2012, the District Registrar, Himmatnagar passed the order for reinstatement subject to pass the pre-service training examination in the additional chances, after her reinstatement. The mother of the petitioner resumed her duty on 11.10.2012 and filled up the form for appearing in the said examination but could not appear as she passed away on 27.11.2014. It is also not in dispute that because of non-clearance of the said examination, her increments were not released till death however, her pay-scale was revised as per regular pay commission. The respondent authorities are denying the entitlement of gratuity to the petitioner for the reason that his mother has not given pre-service training examination. It is not in dispute that the mother of the petitioner has rendered more than 25 years of service and she has been reinstated pursuant to the aforesaid order. As

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per Rule 82 of the GCS Rules, the family members, as specified therein are entitled to the gratuity amount, which is incorporated as under:

"82. Family for the payment of death-cum-retirement gratuity : For the purpose of rules-81 and 83 to 85 'family', in relation to a Government employees, means-

Group -1 (1) wife in the case of male Government employee. (2) husband, in the case of a female Government employees, (3) unmarried sons, (4) married sons, (5) unmarried daughters, (6) married daughters, (7) widowed daughters, (8) widow of the predeceased sons, (9) children of a predeceased son, (10) brothers below the age of eighteen years, (11) unmarried sisters, (12) widow sisters, (13) father, and (14) mother.

Note-1 : Sons/Daughters include step/adopted sons/ daughters.

Note-2 : Brothers/Sisters include step brothers/ sisters.

83. Persons to whom gratuity is payable : (1)(a) The gratuity payable under rule-81(1)(b) shall be paid to the person or persons in favour of whom the nomination is made under rule-85.

(b) If there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the following manner:-

(i) in case there are one or more surviving members if the family from Group-1 referred to in rule-82, to all such members in equal shares;

(ii) in case there are no such surviving members of the family are shown in sub-clause (i) above, but there are one or more members from members of the family from Group-2 referred to in rule-82, to all such members in equal shares.

(2) If a Government employee dies after retirement without receiving the death-cum-retirement gratuity admissible under sub-rule(1) of rule 81, the same shall be disbursed to the family in the manner shown in sub- rule (1).

(3) The right of female member of the family, or that of brother, of a Government employee who dies while in

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service or after retirement, to receive the share of gratuity shall not be affected if the female member marries or re-marries or the brother attains the age of eighteen years, after the death of the Government employee and before receiving her or his share of the gratuity.

(4) Where gratuity is granted to a minor member of the family of the deceased Government employee, it shall be payable to the guardian on behalf of the minor after the guardian executes an indemnity bond in Form-9 and furnishes an affidavit about guardianship."

7. The State authorities are not disputing that the petitioner's case is covered under the aforesaid Rules 82 and 83 for the reason that since his mother has not passed the pre-service training examination, she would not be entitled for death-cum-retirement gratuity. No provision of law is pointed out before this Court that if a deceased employee has not cleared or passed the examination, the family members, as mentioned in Rules 82 and 83 are not entitled for the benefit of the death-cum-retirement gratuity.

8. In light the afore-going observations, the present petition succeeds. The respondents are directed to grant the benefit of death-cum-retirement gratuity as envisaged under the Gujarat Civil Services (Pension) Rules, 2002, more particularly Rule 80, within a period of three months. The respondents are further directed that the amount of gratuity shall be paid with 9% interest, as per the provisions of Government Resolutions dated 20.12.2002 and dated 04.02.2015. RULE is made absolute accordingly. Sd/-

(A. S. SUPEHIA, J) NVMEWADA