Gujarat High Court

Ushaben Seturam Vaghela vs Director Of Pension And Provident Fund on 7 July, 2025

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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                            C/SCA/5633/2023                                     JUDGMENT DATED: 07/07/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 5633 of 2023


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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                                   Approved for Reporting                      Yes           No
                                                                               √
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                                            USHABEN SETURAM VAGHELA
                                                      Versus
                                  DIRECTOR OF PENSION AND PROVIDENT FUND & ORS.
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                      Appearance:
                      HARSH V GAJJAR(7828) for the Petitioner(s) No. 1
                      MS NIRALI SARDA, AGP for the Respondent(s) No. 1,2,3
                      MS E.SHAILAJA(2671) for the Respondent(s) No. 4
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                           CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                                        Date : 07/07/2025
                                                        ORAL JUDGMENT

1. Heard learned Advocate Mr. Harsh V. Gajjar for the petitioner,

learned AGP Ms. Nirali Sarda for the respondent-State and learned

Advocate Ms. E. Shailaja for the respondent No.4.

2. By way of this petition, the petitioner seeks for issuance of a writ

directing the respondents to pay family pension and arrears thereof due

from May, 2021 till date of payment and for regular payment thereof and

the petitioner also seeks for interest at the rate of 10% upon the arrears of

pension.

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3. It appears that the petitioner is the legally wedded wife of one

Seturam Laxmanbhai Vaghela, who had retired as Auditor, Grade -II,

from the Office of the Registrar, Cooperative Societies, Gujarat State. It

would appear that the employee, who had retired on 30.06.2020, and had

expired on 28.04.2021, had filled in his pension papers and whereas in

the nomination from, the employee has shown himself as unmarried and

has named his sister i.e. respondent No.4 herein as his nominee. It

appears to be the case of the petitioner that the petitioner is legally

wedded wife of the said deceased employee and whereas the deceased

employee is survived by the petitioner and a son namely Sumitkumar

Vaghela, aged about 30 years. It is the case of the petitioner that the

petitioner and the deceased employee, though being husband and wife,

had issues inter-se and whereas the petitioner who was residing separately

from the late husband had also filed application under Section 125 of the

Criminal Procedure Code for grant of maintenance and whereas orders

passed therein, had been challenged by the petitioner and later on, by the

late husband of the petitioner. It is the case of the petitioner that under the

extant rules, it is the wife who would be entitled to receive family pension

and whereas the employee does not have any right whatsoever to

nominate anyone else other than the wife, in case of a male employee , as

the recipient of the family pension.

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4. Learned Advocate Mr. Gajjar for the petitioner would take this

Court through the relevant Rules namely Rules, 82, 85, 88 as well as 91

of the Gujarat Civil Services (Pension) Rules, 2002 and would submit

that the Rules inter alia do not envisage the employee being entitled to

nominate anyone else i.e. in case of a husband, a wife and in case of a

wife, a husband, as the nominee. Learned Advocate would further submit

that while the marriage had run into rough weather, but at the same time,

there was no legal separation between the husband and wife. Learned

Advocate would submit that, under such circumstances, the petitioner as a

wife of the deceased employee would be entitled to payment of family

pension. Learned Advocate would also rely upon decision of this Court in

case of Parvatiben wd/o Shankarbhai Patel Vs. State of Gujarat and

another, dated 01.04.2024 in Special Civil Application No. 5094 of

2024 in support of his submissions.

4.1 Learned Advocate Mr. Gajjar would also rely upon decision of the

Hon'ble Supreme Court in case of D.D. Tiwari (Dead) Through Legal

Representatives Vs. Uttar Haryana Bijli Vitran Nigam Limited and

Others, reported in (2014) 8 SCC 894, in support of his submission that

the petitioner should be paid interest upon the arrears of pension.

5. Learned AGP Ms. Nirali Sarda for the respondent-State would

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submit that as such, the dispute had arisen on account of the deceased

husband of the petitioner having mentioned in the nomination form as

being an unmarried person and whereas upon verification, while the State

is clear that the petitioner is the legally wedded wife of the deceased

employee and whereas the petitioner would, as per the law laid down by

this Court, entitle to pension and arrears of pension and whereas learned

AGP would submit that the State may not be saddled with interest on the

arrears of pension, more particularly since the State was not responsible

for the delay, rather it was the wrong fact being mentioned in the

nomination form which led to this impasse.

6. Learned Advocate Ms. E. Shailaja for the respondent No.4 would

submit that the respondent No.4 i.e. the sister of the deceased employee is

the nominee and whereas while the sister would not dispute the marriage

of the deceased employee with the petitioner herein, it is submitted that

the parties were litigating with regard to their matrimonial issues.

Learned Advocate would fairly submit that as such, there is no material

with the respondent No.4 to show that there was any severance of the

marriage.

7. Having heard the learned Advocates for the respective parties and

having perused the documents on record as well as the decision of this

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Court dated 01.04.2024, it would appear that the issue in question is in a

very narrow compass. As noticed, the deceased employee at the stage of

filling up of his nomination form has shown his marital status as being

unmarried and had nominated his sister, and whereas as far as the State

Government is concerned, till material is shown to the contrary, the State

Government was justified in accepting the nomination form as it had been

filed by the employee. On the other hand, it clearly appears that the

petitioner herein is the legally wedded wife of the deceased employee and

no material is shown to this Court to contend that the marriage between

the deceased employee and the petitioner had legally come to an end.

8. At this stage, this Court would refer to certain observations made

by this Court in the decision dated 01.04.2024 in Special Civil

Application No. 5094 of 2024 (supra), wherein a similar issue was under

consideration. Paragraphs No. 6 and 7 being relevant for the present

purpose are quoted hereinbelow for benefit.

"6. Considering the submissions made by the learned advocates for the respective parties and having perused the documents on record, it appears to this Court that the issue raised in the present petition is covered by the decision of the learned Co-ordinate Bench referred to hereinabove. In the considered opinion of this Court, the question which requires answer is whether in case of wife or the husband as the case may be, who is serving with the Government, would the employee have the sole

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right to nominate any person other than their spouse or would the rules have precedents over the wish of the employee concerned.

Before answering the question, this Court deems it appropriate to refer to observations of the learned Co- ordinate Bench in case of Manjulaben Narsinhbhai Ranapariya (Supra). Paragraph nos.9 to 16 of the said decision, being relevant for the present purpose is reproduced hereinbelow for benefit.

"9. The facts, as narrated hereinabove, are not in dispute. The deceased husband of the petitioner filed an application dated 20.04.2017 informing the Taluka Development Officer, Taluka Panchayat Jasdan that after his demise, his retirement may be paid to the legal heirs i.e. son as well as the daughter-in-law. The respondent authorities, acting on such communication, are not paying the pension to the petitioner, who is widow of the deceased husband. It is not disputed by the respondent authorities that no divorce or judicial separation has taken place between the petitioner and the deceased husband.

10. At his stage, it would be apposite to incorporate the provisions of Section 88 of the Gujarat Civil Services (Pension) Rules, 2002, which 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 employee. (iii) son or daughter who has not attained the age of twenty-five

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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. (b) "pay"

means the basic pay drawn by the Government employee at the time of retirement or death while in service."

11. As per the said statutory provisions, for the purpose of family pension and as per the definition mentioned therein, the wife, in case of a male government employee, would be entitled to the family pension.

12. The Rule 91 of the Pension Rules, 2002 is also incorporated 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;

13. Rule 91 stipulates about the family pension to be payable to widow or widower only (i) until the date of death or remarraige, whichever is earlier and (ii) in case son of a until he attains the age of 25 years. Thus, preference is first given to widow and not the son of the deceased employee.

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14. At this stage, it would be apposite to refer to the decision of the Supreme Court of India in the case of G.L..Bhatia (supra) where the Apex Court, while examining analogous provisions of Rule 54 of the Central Civil Services (Pension)Rules, 1972, has held thus : -

"2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.

3. Under Rule 54 sub-rule (14(b)(i) the expression "family" has been defined thus:

"54. (14(Z?)(i) Wife in the case of a male government servant, or husband in the case of a female government servant..."

4. Sub-rule (8)(r) of Rule 54 states that:

"54. (8)(r) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension

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shall become payable to the widow or widower, failing which to the eligible child."

5. In the light of the aforesaid provisions and there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant. The impugned order is, accordingly, set aside and this appeal stands allowed."

15. The Apex Court has thus held that the husband would be entitled to family pension even if there is error committed in the nominee form committed by the deceased wife. Though in the said case the nomination was not in favour of the husband and the husband was staying separate from the wife, the Apex Court has held that the husband would be entitled to the family pension as per the statutory provisions.

16. In the present case, the facts, which are analogous to the case which were before the Apex Court, the petitioner, who is widow and falls within a definition of Rules 88 and 91 of the Pension Rules, 2002, will be entitled to the pension and retirement benefits, even the deceased employee / late husband has expressed his desire of nominating his son and daughter-in- law as legal heirs, who would be entitled to the family pension as well as retirement benefit. The respondent - authority had informed the son of the petitioner that she has lodged her claim for pension vide communication dated 03.02.2020 and 23.06.2020, however he has not responded to such communications. He has neither cooperated with the authorities nor has he filed any legal proceedings before any forum."

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7. Perusing the observations of the learned Co- ordinate Bench, it would clearly appear that the learned Co-ordinate Bench interpreting provision of Section 88 and 91 of the Gujarat Civil Services (Pension) Rules had inter alia come to a conclusion that the said rules clearly reveal the intent that family in relation to a Government employee means the wife in case of a male Government employee and the husband in case of a female Government employee. The rules also stipulate that the family pension would be payable to the widow or widower until the date of death or remarriage etc. In the instant case, it clearly appears that while the petitioner i.e. the wife of the late Government servant, was the first in hierarchy for being paid pension, merely, because the Government servant had expressed his desire for nominating his son as the nominee for payment of family pension, the petitioner has been denied her rights.

As noted by the learned Co-ordinate Bench, the petitioner who is the widow would fall within the definition of family within Rules 88 of the Pension Rules, 2002 and whereas the petitioner would be entitled to pension and retiral benefits, even if the deceased employee had expressed his desire for nominating somebody else i.e. the son here, in place of the wife i.e. the present petitioner. As noted by the learned Co- ordinate Bench, the wife of the late Government employee i.e. the petitioner would be entitled for the pension and other retiral benefits in ileu of the services rendered by her late husband."

9. Having perused the observations of this Court hereinabove, and

having appreciated the scope and ambit of Rule 88 and Rule 91 of the

Gujarat Civil Services (Pension) Rules, it would appear to this Court that

Rule 88 explains about the term "family", in relation to a Government

employee. It would appear that in case of a male employee, it would be

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the wife of the employee concerned and whereas Rule 88(ii) of the Rules

goes further to observe that wife would include a judicially separated

wife, provided, that the marriage took place before retirement of the

Government Employee. In the instant case, as it would appear, while

there were litigations between the late Government employee and the

petitioner as his wife, it is nobody's case that there was a severance of

marriage and as it is, it is not even contended that the husband and wife

were judicially separated. The Rules envisaging that even a judicially

separated wife, would be entitled to payment of family pension, in the

instant case, since the late employee and the petitioner had not even

judicially separated, as a natural corollary, the wife i.e. the petitioner

would be entitled to family pension. The entitlement for being paid

family pension, as per Rule 91, would be to the widow i.e. the petitioner

until the date of demise or remarriage whichever is earlier. Thus, as far as

the claim of the petitioner is concerned, reading Rule 88 with Rule 91 of

the Rules, as explained by this Court as above, the petitioner would be

entitled to, subject to the rider as found in Rule 91.

10. Insofar as the aspect of interest is concerned, normally in cases

where the Court is of the opinion that non payment of retiral benefits, as

in the present case, the family pension was on account of any negligence

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or fault on part of the State or its Officers, then as a natural consequence,

interest and/or costs would be imposed upon the State or its Officers. In

the instant case, while the legal position as regards the wife being entitled

to family pension upon demise of her husband is undoubtedly clear, yet, it

would also appear that the issue is not as simple as that. This Court has

perused the nomination papers which are annexed with the petition,

which clearly show that the employee during the time of filling up of the

nomination form, more particularly on 30.06.2020 had shown his marital

status as unmarried. Again, it does not appear that the same is on account

of any error. Rather having said that he is unmarried, the deceased

employee had also named his sister i.e. respondent No.4 herein as his

nominee. It also requires to be noted that the deceased employee was not

an employee more connected with the menial part of the Government

employment, rather the deceased employee was an Auditor, Grade - II,

meaning thereby he was well aware and conscious about what he was

doing. Under such circumstances, since it appears that the employee

himself had mentioned his marital status as being unmarried, while it is

true that the petitioner being the legally wedded wife would be entitled to

pension, but this Court does not find any fault with the Government

Officers for not having decided the pension case in favour of the

petitioner till now. Once an employee has filled a nomination in the

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manner as above, to this Court it would appear that unless there is some

intervention at a different level, like in the present case, it would not have

been opened for the authorities concerned to have suo motu decided to

ignore the nomination filled in by the employee himself and direct that

pension would be paid to somebody other than the nominee. While the

legal position in the present case is clear, but permitting the Government

employees as above, rather penalizing the Government employees for not

doing as the above, to this Court, would lay down a very dangerous

precedent which should be avoided. Under such circumstances, in the

considered opinion of this Court, while the petitioner would be entitled to

arrears of pension and regular payment of pension, the prayer for

payment of interest is hereby rejected.

11. In view of the above discussion, observations and conclusion, the

following directions are issued.

                               (i)     The present petition is allowed.


                               (ii)    The respondents are directed to pay family pension to the

petitioner as the legally wedded wife of the deceased employee

namely Seturam Laxmanbhai Vaghela.

(iii) The arrears of pension from May, 2021 shall be calculated

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by the respondents within a period of four weeks from the date of

receipt of this order and appropriate disbursement shall be made

within a week thereafter.

(iv) It is further directed that the respondents shall ensure that

family pension is regularly paid to the petitioner as per the extant

rules.