Gujarat High Court
Sheetalben D/O Parshottambhai Baldha ... vs State Of Gujarat on 12 December, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1421/2023 ORDER DATED: 12/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1421 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 12640 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In
R/LETTERS PATENT APPEAL NO. 1421 of 2023
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SHEETALBEN D/O PARSHOTTAMBHAI BALDHA W/O JITESHKUMAR
MANJIBHAI MANDANKA
Versus
STATE OF GUJARAT
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Appearance:
MR ARSHAD SHAIKH(11761) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
for the Respondent(s) No. 2,3,4,5
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2,3,4
MR PREMAL S RACHH(3297) for the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 12/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
The challenge in this Letters Patent Appeal under Clause
15 of the Letters Patent is advanced to judgment and order
dated 17.8.2022 of learned single Judge. The Special Civil
Application which was filed by the original petitioner-
respondent No.6 herein came to be allowed. The respondents
were directed to finalize pension case of the petitioner and pay
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family pension and other terminal benefits to the petitioner
stating further that, 'notwithstanding the pendency of Civil Suit
filed by daughters pending before the Civil Court, Dhoraji.'
2. The writ petition was filed by the respondent No.6 who
happened to be the second wife of deceased employee named
Parshottambhai Premjibhai Baldha. It was stated that the
deceased employee had remarried after the death of the first
wife. The said Parshottambhai was to retire on 24.4.2011,
however four days before that on 20.4.2011, he died.
2.1 What was prayed by the original petitioner was to direct
the respondents to approve final family pension and make
payment thereto to the petitioner. It was further prayed to the
respondents to pay the gratuity amount with interest.
3. The present appeal against the judgment and order of
learned single Judge came to be filed by the daughters of the
deceased employee, seeking leave to appeal. The married
daughters stake their claim for pension and terminal benefits
such as gratuity and provident fund as well as other admissible
benefits claiming that it is they and not the petitioner - the
alleged second wife who is entitled to receive the benefits.
3.1 The deceased Parshottambhai executed his Will dated
31.1.2011 which was registered with the Office of the Sub
Registrar, Jamkandorana. It was given out that based on said
Will, the appellants herein - the daughters have instituted two
proceedings, both before the court of learned Principal Senior
Civil Judge, Dhoraji. One is Regular Civil Suit No.45 of 2013
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wherein the grant of Letter of Administration is prayed for and
the other is Special Civil Suit No.9 of 2012 in which prayer is
made for paying the gratuity.
3.2 The disputes and the claim by the contesting relatives -
married daughters and the wife could thus be divided into two
categories- the family pension as well as the other terminal
retirement benefits.
4. The impugned order of learned single Judge was assailed
by learned advocate Mr.Majmudar asserting that the appellants-
the daughters of the deceased employee have prior right to
receive the benefits inasmuch as the petitioner happens to be
the second wife and even otherwise the status of the second wife
has also been disputed by them.
5. As far as the claim of family pension is concerned, Rule 88
and Rule 91 of the Gujarat Civil Services (Pension) Rules apply.
Also quoted by learned single Judge Rule 88 contains the
definition of 'family' in relation to government employee. It
reads as under,
"88. Terms used in this chapter : For the purposes of
this chapter -
(a) "family", in relation to a Government employee
means -
(i) wife in the case of a male Government employee or
husband in the case of a female Government employee,
even if the marriage took place before or after
retirement of the Government employee; (ii) a judicially
separated wife or husband, provided that the marriage
took place before the retirement of the Government
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employee. (iii) son or daughter who has not attained the
age of twenty-five years including such son and
daughter adopted legally before retirement and son or
daughter born after retirement from the marriage
which took place after retirement. (iv) Parents who
were wholly dependent on the Government servant
when he/she was alive, provided the deceased
employee had left behind neither a widow nor a child at
the time of his / her death."
5.1 The entitlement of the family members is encapsulated in
Rule 91, which provides the order of members of the family who
would be entitled to receive the family pension. Rule 91 reads as
under,
"91. Family Pension to whom payable : (1) The period
for which family pension is payable shall be as follows :-
(i) In the case of a widow or widower, until the date of
death or remarriage, whichever is earlier;
(ii) in the case of son, until he attains the age of twenty-
five years or until he gets married, whichever is earlier;
and (iii) in the case of an unmarried daughter, until she
attains the age of twenty-five years or until she gets
married, whichever is earlier;
(2) (i) where the Family Pension is payable to more
than one widows then, the Family Pension shall be paid
to the widows in equal shares; (ii) on the death of a
widow, her share of the Family Pension shall become
payable to her eligible child. In case of such child
becoming ineligible to get the share of Family Pension,
the same shall be payable to the surviving
widow/widow or/ and their children in equal shares.
Provided that if the widow is not survived by any child
her share of the Family Pension shall be payable to
other widows in equal shares. If there is one such
widow full amount of family pension shall be payable to
her.
(3) Where the deceased Government employee or
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pensioner is survived by a widow but has left behind
eligible child or children from another wife who is not
alive, the eligible child or children shall be entitled to
the share of Family Pension which the mother would
have received if she had been alive at the time of the
death of the Government employee or pensioner."
5.2 Two requirements emerged from the conjoint reading of
the aforesaid Rules. In order that the daughters can claim the
family pension, the daughters have to be unmarried and should
not have crossed the age of 25 years. Admittedly, the appellants
are married daughters of the deceased employee above the age
of 25 years.
5.3 The appellants therefore do not stand entitled to receive
the pension. The direction of learned single Judge requiring the
respondent authorities to pay the family pension to the
petitioner could not be set aside at the instance of the appellant-
daughters who as such lacks locus standi to put forth their
claims since they are not the persons eligible and entitled to
receive the family pension under the Rules as above. On the
other hand, original petitioner was claimed to be a second wife.
In that view, learned single Judge could be said to have
committed no error in directing the payment of family pension to
the original petitioners.
5.4 This leaves the court to advert to the second limb of the
dispute which is in respect of the payment of gratuity and
provident fund as well as other admissible retiral benefits.
5.5 An attempt was made by learned advocate Mr.Premal
Rachh for the respondent No.6- original petitioner by pointing
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out Rule 83 of the Gujarat Civil Services (Pension) Rules, 2002
that it provides that the nominee of the deceased government
employee would be entitled to receive the gratuity, to
immediately point out that the petitioner was nominated to
receive the gratuity.
5.6 Rule 83 of the Rules could not have been read in isolation
but has to be read together with Rule 85, which provides for
nomination to be done in favor of the family members from
Group-1, to provide that the nomination shall not be in favor of
any person other than the members of the family of the said
Group. Also sought to be relied on the provisions of the
Provident Funds Act, 1925 to submit that the petitioner would be
entitled to receive the provident fund.
5.7 The claim of gratuity and provident fund is in disputed
realm. It may be that the entitlement in that regard have to be
ascertained on the basis of the Rules to be applied to the facts.
The deceased employee has executed a registered Will. The said
Will is a subject matter of the proceedings before the civil court
as stated above. This court being a writ court is not inclined to
set at naught the civil proceedings pending before the civil court
relating to the civil rights of the parties, by a stroke of pen. It
would be trite that the entitlement regarding gratuity and
provident fund as well as other admissible benefits and the
dispute in that regard between the parties are tried and settled
by leading evidence in the suit.
6. In view of the above discussion and the position obtaining,
the following directions are issued.
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(i) The directions of learned single Judge regarding payment of
terminal benefits to the petitioner- respondent No.6 herein
notwithstanding the pendency of the suit filed by the daughters,
are hereby set aside.
(ii) In respect of the claim of the family pension put forward by
the appellants, the Letters Patent Appeal is dismissed.
(iii) As far as the payment of family pension is concerned, the
same shall be paid by the competent authority to the original
petitioner- respondent No.6 within a period of six weeks from
the date of receipt of the order, failing which it shall carry
interest at the rate of 6% from the date of filing of the petition.
(iv) The competent authorities - respondent Nos.1 to 4 State
shall calculate and deposit the amount of gratuity and provident
fund with the Nazir of the court of learned Principal Senior Civil
Judge, Dhoraji within eight weeks. The payment of which shall
follow the outcome of the civil suit. The Nazir of the court shall
invest the amount which shall be deposited by the State
authority in a Fixed Deposit with nationalized bank initially for a
period of one year and renewable till the suit is disposed of.
(v) The Dhoraji court shall endeavor to disposal of the suit
preferably within one year.
6.1 The rights and contentions of both the parties in respect of
all the issues, including status of wife, validity of Will and all
other attendant aspects and issue are open to be agitated before
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the civil court.
7. The present Letters Patent Appeal is partly allowed and
disposed of accordingly.
In view of disposal of the appeal, the Civil Application will
not survive. Accordingly, it is disposed of.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
Manshi
