Gujarat High Court
Sureshbhai Somabhai Nayani vs State Of Gujarat Through Secretary - ... on 5 May, 2025
NEUTRAL CITATION
C/SCA/7198/2013 JUDGMENT DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7198 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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SURESHBHAI SOMABHAI NAYANI & ORS.
Versus
STATE OF GUJARAT THROUGH SECRETARY - PANCHAYAT RURAL
HOUSING & ANR.
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1,2,3
MS KAJAL L KALWANI(6623) for the Petitioner(s) No. 1,2,3
MS MUSKAN A GOGIA(6624) for the Petitioner(s) No. 1,2,3
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 05/05/2025
ORAL JUDGMENT
1. Heard Mr. Anand B. Gogia, learned counsel for the
petitioners No.1 to 3 and learned advocate Mr. H. S.
Munshaw along with learned advocate Mr. Devang R.
Bhatt for the Respondent No.2.
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2. Since the controversy involved is short, with the
consent of the learned advocates for the parties, the
matter is heard.
3. It is the specific case of the Petitioner which is
uncontroverted by the Respondent that the deceased wife
of the Petitioner No.1 - Shrimati Rekhaben Rameshbhai
Kabira died in harness while on duty while crossing the
culvert for going to school, on 11.08.2007. The Petitioners
herein are the legal heirs of the deceased - employee.
Late Shrimati Rekhaben was selected and posted as
Vidhya Sahayak vide an order dated 23.01.2001 and she
joined the said post on 25.01.2001. Thereafter, she was
inducted as primary teacher at the Regular Pay Scale of
Rs.4,000-100-6,000. Having completed five years as Vidya
Sahayak, deceased Shrimati Rekhaben continued on the
said post till her death.
4. The claim of the family pension of the said
deceased Rekhaben came to be denied by the
Respondents upon which the present petition came to be
filed. The Respondent No.2 by affidavit in reply affirmed
on 05.09.2013 and refuted the petitioner's claim as
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under:
"1. The respondent No.2 most respectfully
submits that as such the averments and allegations
made by the present petitioners against the respnt.
authority are thoroughly baseless and contrary to the
facts and material on record. It is stated that one
Rekhaben Rameshchandra Kabira was recruited as
Vidhya Sahayak by Rajkot District Panchayat through
appointment order dated 23.1.01 and a copy thereof is
annexed as ANNEXURE-A. It is submitted that the
said appointment was purely on temporary, adhoc and
with an honorarium of Rs.2500/- per month. It is
further stated that as per appointment order she was
required to serve as Vidhya Sahayak for a period of
five years and only thereafter eligible for various
benefits as per the policy of the State Govt. The
respnt. no.2 submits that on completion of satisfactory
service of five years as Vidhya Sahayak she was
appointed as Asstt. Teacher in a regular pay scale of
Rs.4000-6000 through order dated 29.3.06 and a copy
thereof is annexed as ANNEXURE-B. It is further
stated that only thereafter she was in regular
employment of Rajkot District Primary Education
Committee as per the Clause-10 of the appointment
order.
2. It is most respectfully submitted that
unfortunately she passed away on 11.8.07 and
thereafter petitioner was released all the benefits
payable as per the prevailing rules and regulations.
3. The respnt. no.2 submits that, however the
petitioners herein claimed benefits of Family Pension
on the basis that stipulated service of five years was
over as Vidhya Sahayak as she was appointed
through order dated 23.1.01. The respnt, no.2 submits
that as per the policy of the State Govt. late Ms.
Rekhaben Rameshchandra Kabira was recruited as
Vidya Sahayak through order dated 23.1.01 and the
appointment was purely on temporary, adhoc and
conditional one and she was entitled to a honorarium
of Rs.2500 per month. The respnt. no.2 submits that
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the said appointment was not on permanent basis
and the conditions of the appointment order are
categorically making the same clear. The respnt. no.2
submits that late Ms. Kabira was later on taken up
as Primary Teacher in the pay scale of Rs 4000-6000
as well as other allowances through order dated
29.3.06. It is pertinent to note that only thereafter
Ms. Kabira was entitled to various benefits as per
condition no.11 of the order dated 29.3.06. In other
words late Ms. Kabira was not entitled to any
benefit claimed by the present petitioner for the
service rendered as Vidya Sahayak. The respnt. no.2
submits that, however, the pension papers were
prepared for a release of benefit of family pension in
favour of the present petitioner on the basis that late
Ms. Kabira was taken up in regular pay scale of
Primary Teacher with effect from 1.4.05 pursuant to
order dated 29.3.06. However, the office of Asstt.
Examiner of Local Fund Audit at Rajkot after
verifying various facts and record as well as the
policy of the State Govt. returned the same through
order dated 22.5.08 on the ground that she was
taken in a regular pay scale after 1.4.05, petitioners
were not entitled to the benefit of old pension
scheme and a copy of said order is annexed as
ANNEXURE-C. It is submitted that accordingly the
Taluka Development Officer, Rajkot was informed
about the same through letter dated 30.7.08.
4. The respnt. no.2 submits that the pension
papers prepared and submitted by the office of
District Primary Education Officer at Rajkot are
verified and returned by the office of Asstt. Examiner
of Local Fund Audit at Rajkot petitioners are not
entitled to family pension and therefore, the Hon'ble
Court is humbly prayed not to grant any interim
relief and reject the present petition in limine with
cost in the interest of justice."
5. Mr. Gogia, learned advocate for the Petitioners,
relying upon the G.R. dated 31.07.1987 at Annexure 'D'
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(page 33 of the paper book) submitted that regarding the
admissibility of family pension, the families of
Government employees who died in harness, it has been
categorically stated that the eligibility of such family
pension would be irrespective of the length of service of
the deceased employee. He relies upon the following
decisions of this Court in support of the said contention:-
1. Shree Yogkshem Foundation For Human Dignity Vs.
State Of Gujarat & Ors. reported in 2012 (1) GLH
2. Sugandhidevi Fakirchand Malaviya Vs. State of
Gujarat & 5 Others reported in 2020 (2) GLR 1567.
3. Anitkumar Amratbhai Patel and Ors. Vs. State Of
Gujarat & Ors. reported in 2020 (3) GLR 1766.
4. State Of Gujarat & Ors. Vs. Shantaben Maganlal
Chanchapana reported in Second Appeal No. 9 of
2014.
6. Mr. Gogia, learned advocate for the Petitioners
further submits by placing reliance on the G.R. dated
18.01.2007, particularly para-2 of the said resolution at
page 56 of the paper book, which reads as under:
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"(2) At present the five years' fixed pay tenure of
the employees appointed under the fixed pay scheme,
is not considered for any of the matters related to
service/ employment. After due consideration by the
State Government on the above mentioned issue, it
has been resolved that this five years' service of the
employees appointed on fixed pay under the scheme
dated 16-02-2006 of the Finance Department, shall
be taken into consideration for promotion, seniority,
higher grade pay scale as well as retirement benefits
admissible at the time of retirement."
7. The G.R. dated 18.01.2007 is clear and categorical
that once there is a continuous period of five years
service then all consequential benefits shall become
entitled to the said employee. Therefore, a conjoint
reading of G.R. dated 18.01.2007 with the G.R. dated
31.07.1987 makes it clear that the Petitioners herein are
entitled to family pension on the basis of continuous
employment of deceased Rekhaben.
8. On the other hand, Mr. Munshaw, learned advocate
for Respondent No.2 relying upon the office order dated
29.03.2006, particularly para 9 and 11 thereof submitted
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that since the deceased Rekhaben did not have the
fitness certificate as required in Clause 11 of the said
office order, she could not have been deemed to be a
regular employee and appointed to the post in question
and therefore, the Government Resolution of 31.07.1987
would be of no avail. In these circumstances, the office
of the Assistant Examiner of Local Fund Audit, Rajkot
has rightly verified the documents and papers relating to
the deceased Rekhaben and has returned the pension
papers submitted by the office of the District Primary
Education Officer at Rajkot with the categorical finding
that the Petitioners are not entitled to family pension.
Mr. Munshaw, further submitted that, in such view of
the matter, this Court may not interfere with the
decision of the Assistant Examiner of Local Fund Audit
at Rajkot and the petition therefore is bound to be
rejected.
9. Having heard the learned counsel and having
applied my mind to the facts and circumstances of the
case, I am of the opinion that the deceased Rekhaben
ought to be deemed in continued service till her death in
harness. The decisions of this Court cited by Shri Gogia
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on behalf of the Petitioners are squarely applicable to
the facts of this case, therefore G.R. dated 31.07.1987
which mandates that the admissibility of family pension
to the families of Government employees who die in
harness shall be allowed Family Pension irrespective of
their length of service, is squarely applicable to the
Petitioners. Regarding the objection of learned advocate
Mr. Munshaw founded on the condition No. 11 of the
office order dated 29.03.2006 has to be rejected for the
reason that this is not a case where the deceased
Rekhaben inspite of being in continuous service had not
obtained the requisite fitness certificate but it is due to
her untimely death in harness that the deceased
Rekhaben was unable to obtain the said medical
certificate during her duration of service while she was
alive.
10. It is also not the case of the Respondents that the
Respondents had taken out any proceedings against the
deceased Rekhaben during her life time that her initial
appointment as a primary teacher had become irregular
due to her failing to obtain the requisite medical fitness.
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11. In that view of the matter, there is no applicability
whatsoever or non-compliance of condition No.11 of the
office order dated 29.03.2006 which would come in the
way of granting the full family pension as applicable,
taking the continuous service of deceased Rekhaben from
her date of initial joining till her death in harness.
12. Therefore, the impugned communication dated
30.07.2008 is hereby quashed and set aside and the
Respondents are directed to workout the family pension
applicable to the Petitioners on the basis of the foregoing
portion of this Judgment and order within a period of 12
(twelve) weeks from today.
13. Accordingly, the present petition succeeds and is
hereby allowed. Rule is made absolute to the aforesaid
extent. No order as to costs.
(D.N.RAY,J)
MAYA
