( 1 ) HEARD learned advocate Mr. Paresh Upadhyay for the petitioner, learned AGP Mr. Hukam Singh for respondent Nos. 1,2 and 3 and learned advocate Mr. J. B. Pardiwala for respondent Nos. 4 and 5. ( 2 ) THE husband of the petitioner " Mr. G. M. Gadhvi has expired while working as City Civil Judge, Ahmedabad on 31. 3. 2006. According to petitioner, as per Gujarat Civil Services Pension Rules, 2002, the petitioner is entitled to receive Rs. 15,713/- per month as a family pension plus allowances thereof. This amount was not sanctioned, therefore, present petition is filed. ( 3 ) THE husband of the petitioner had worked as a Lecturer in private Law College for which he was sanctioned pension and in the said pension payment order, the family pension of Rs. 2895/- was also sanctioned to the petitioner, which is now paid. On the basis of the aforesaid facts, family pension has been denied to the petitioner by the respondents on the ground that claim of two sets of family pension by the petitioner. The affidavit in reply is filed by one Bakul Shah, Under Secretary to Government, Legal Department. Then, affidavit in reply is filed by one N. M. shah, Deputy Director of Pension and PF, Gandhinagar. Learned advocate Mr. Pardiwala submitted that one compliance report is placed on record in pursuance to the order passed by this Court. ( 4 ) THE pension has been paid to the husband of the petitioner of Rs. 1,42,220/- for the period 5. 4. 2000 to 31. 3. 2006 and amount of gratuity of Rs. 73,244/- also paid to the husband of petitioner totaling to Rs. 2,15,464/-, which amount according to Director of Pension and PF, required to be recovered from the present petitioner from the amount of family pension and that is under dispute between the parties. ( 5 ) IN respect of the claim of petitioner for family pension that amount is fixed as Rs. 15,713/- per month. For the aforesaid amount of monthly family pension, there is no dispute between the parties and respondent has paid the arrears to the petitioner from 1. 4. 2006 till February,2007 and payment was made on 9. 3. 2007. Thereafter, regularly family pension is paid by the respondents to the petitioner. Therefore, now only the question arises is, whether respondent authorities entitle to recover any amount of Rs. 4. 2006 till February,2007 and payment was made on 9. 3. 2007. Thereafter, regularly family pension is paid by the respondents to the petitioner. Therefore, now only the question arises is, whether respondent authorities entitle to recover any amount of Rs. 2,15,464/- which was paid to the husband of the petitioner from the amount of the family pension of the petitioner. ( 6 ) LEARNED advocate Mr. Pardiwala submitted that aforesaid aspect made it clear by the Registrar (Administration) of the High Court by letter dated 7. 3. 2007 to the Principal Judge of City Civil Judge and Sessions Court and copy was forwarded to the Director, Pension and PF Office, Gandhinagar. The contents of the aforesaid letter are quoted as under : "with reference to the subject noted above, I am directed by the Honourable the Chief Justice and Judges to clarify the queries raised by the office of Pension and Provident fund, Gandhinagar, under their letter No. DDP/pr-4/5172/2, dated 21. 11. 2006, as under : 1. Late Mr. G. M. Gadhvi was practicing as an advocate since 4. 7. 1980. He joined Shri S. M. Shah Law College, Mahesana, as a part time lecturer on 1. 9. 1986 and he became full time lecturer from 28. 11. 1988 to 4. 4. 2000, and he voluntarily resigned from service w. e. f. 4. 4. 2000. Thereafter, Mr. G. M. Gadhvi was appointed as Judge, City Civil Court, Ahmedabad and he had taken charge as such, w. e. f. 11. 10. 2002 b. o. h. At Court, Ahmedabad, Mr,gadhvi, practicing advocate, having more than 7 years of practice at bar, thus, he fulfilled the eligibility criteria, as prescribed in Rule 6 (2) (ii) (a) of the Gujarat Judicial Services Recruitment Rules,1961 which were prevailing at that time. 2. In exercise of the powers conferred vide Rule 6 (2) (ii) (a) of the Gujarat Judicial Service Recruitment Rules,1961, under Government Notification, Legal Department, No. CCC/1094/368/d, dated 27. 9. 2002, Mr. G. M. Gadhvi was appointed as Judge, City Civil Court, Ahmedabad. Hence, the appointment of Mr. G. M. Gadhvi as Judge, City Civil court, Ahmedabad is a fresh appointment and, therefore, provisions of Rules 168 and 169 of the Gujarat Civil Service (Pension) Rules,2002 will not be attracted in the case of Mr. Gadhvi, as his appointment as such, is not continued employment. Hence, the appointment of Mr. G. M. Gadhvi as Judge, City Civil court, Ahmedabad is a fresh appointment and, therefore, provisions of Rules 168 and 169 of the Gujarat Civil Service (Pension) Rules,2002 will not be attracted in the case of Mr. Gadhvi, as his appointment as such, is not continued employment. Therefore, it is not necessary to obtain the orders from the Government, as per Rule 168 of Gujarat Civil Service (Pension) Rules,2002, for calculating pensionable service previously rendered by late Mr. G. M. Gadhvi at the S. M. Shah Law College, Mahesana for the period from 1. 9. 1986 to 4. 4. 2000, and the new service rendered on the establishment of City Civil Court, Ahmedabad, for the period from 11. 10. 2002 to 31. 3. 2006, thereby treating both service period as one whole pensionable service. 3. It is also clear from the Biodata submitted by late Mr. G. M. Gadhvi, while applying for the post of Judge, City Civil Court, Ahmedabad, that, though he worked as lecturer for the period from 1. 9. 1986 to 4. 4. 2000; he did not cease to be a lawyer and he was in active practice. Thus, the appointment of Mr. Gadhvi as Judge, City Civil court, Ahmedabad, was not re-employment. In light of the above clarifications, I am to request you to be so good as to move the office of Pension and Provident Fund Office, Gujarat State, Gandhinagar, to sanction full family pension as per Rules, to the family of late Shri G. M. Gadhvi, the then Judge, City Civil Court, Ahmedabad. " ( 7 ) AS against that, contention raised by the Director of Pension and PF office in Para. 6 that aforesaid amount of Rs. 2,15,464/- is required to be recovered from the amount of family pension of the petitioner. ( 8 ) LEARNED advocate Mr. Upadhyay appearing on behalf of petitioner submitted that whatever the family pension received by the petitioner w. e. f. 1. 4. 2006 , Rs. 62,071/- can be deducted by the respondent authorities from the amount of family pension of the petitioner, which according to learned advocate Mr. Upadhyay already deducted by the respondent authorities. ( 9 ) LEARNED AGP Mr. Hukam Singh appearing for respondent Nos. 1,2, and 3, on having instructions from Mr. 4. 2006 , Rs. 62,071/- can be deducted by the respondent authorities from the amount of family pension of the petitioner, which according to learned advocate Mr. Upadhyay already deducted by the respondent authorities. ( 9 ) LEARNED AGP Mr. Hukam Singh appearing for respondent Nos. 1,2, and 3, on having instructions from Mr. Mehta, Superintendent submitted that according to letter given by the High Court, the earlier service rendered by Mr. Gadhvi as a lecturer cannot be counted as a continue one, therefore, the Director of Pension and PF office is entitled to recover the earlier pension and amount of gratuity received by Mr. Gadhvi during the service period as a City Civil Judge. ( 10 ) AS against that, learned advocate Mr. Pardiwala submitted that submissions made by learned AGP Mr. Hukam Singh on instructions from the Mr. Mehta, is not correct because there is no base or any Rules which permits the respondents to deduct the amount of pension and gratuity received by Mr. Gadhvi for the service rendered as lecturer in law college. ( 11 ) I fail to understand the submission and logic behind the submission made by learned AGP Hukam Singh on instructions from Mr. Mehta, Superintendent. If service of husband of petitioner is not considered continuous and both services are considered separate and distinct and appointment made in the post of City Civil Judge was fresh appointment for all purposes then what is rational behind action of deducting the amounts, which was paid to the husband of petitioner for earlier service and which has no connection to subsequent service. The amounts paid to the husband of petitioner for rendering earlier service cannot be deducted from family pension based on fresh appointment as City Civil Judge. The learned AGP Mr. Hukam Singh has not cited any rules, regulation or any statutory provision which authorize respondent No. 3 to deduct said amounts from family pension. Receiving family pension on the death of petitioner s husband is a legal right of petitioner, recognized under Pension Rules wherefrom no deduction is permissible unless it is authorized by statutory rules and regulation. There is no rational in the submission of learned AGP Mr. Hukam Singh. The husband of petitioner received pension and amounts of gratuity for earlier service for which he was legally entitled to. It was not unauthorized payments made to the husband of the petitioner. There is no rational in the submission of learned AGP Mr. Hukam Singh. The husband of petitioner received pension and amounts of gratuity for earlier service for which he was legally entitled to. It was not unauthorized payments made to the husband of the petitioner. When any payment of pension and gratuity is paid to the employee as per rules for which he was entitled then such amounts cannot be deducted subsequently from the legal right or statutory right of petitioner to received family pension for new or fresh appointment. It amounts to unauthorized deduction which is not recognized by any statutory rules. No such rules and regulations are pointed out by learned AGP Mr. Hukam Singh in support of his submission. Claiming full pension from 01. 04. 2006 is an independent legal right of petitioner as per Pension Rules. From that any kind of deduction is not permissible except the one which is authorized by statutory provision. If the service of husband of petitioner is not considered continuous and if it is accepted by respondent No. 3 in pursuance of High Court letter dated 07. 03. 2007 and same is not disputed by respondent No. 3 that there is no continuity between two separate services, then there is no question of deducting any amounts which was paid to husband of petitioner from the amount of family pension. The petitioner has not received family pensions on the basis of earlier service of husband of petitioner. The petitioner has received family pension on the basis of earlier service with effect from 01. 04. 2006 which comes to Rs. 62,071/- and she gave consent to adjust the same from payments of family pension on the basis of service as City Civil Judge. The claim of petitioner is independent one. No benefit was received by petitioner on the basis of earlier service of husband of petitioner. If there was no earlier service of husband of petitioner, even though petitioner is legally entitled said benefit of family pension. Then where is question to link up earlier service benefits with the petitioner right to receive family pension on the basis of service rendered as Judge by husband of petitioner. If there was no earlier service of husband of petitioner, even though petitioner is legally entitled said benefit of family pension. Then where is question to link up earlier service benefits with the petitioner right to receive family pension on the basis of service rendered as Judge by husband of petitioner. Whatever benefits received by husband of petitioner of earlier service in law college, that comes to end with the death of her husband and such chapter must have to considered to be closed and cannot be extended to service as City Civil Judge of husband of petitioner. Right to receive family pension is fundamental right. It cannot be curtailed by respondents and the respondents are legally not entitled it to claim or demand benefits which was paid to husband of petitioner from the petitioner right to receive family pension. ( 12 ) IN view of the aforesaid facts, when both the services are not continued counted by the High Court as per letter dated 7. 3. 2007 then, respondents are not entitled to deduct any amount from the family pension which has been sanctioned and received by the petitioner. The amount which was paid to Mr. Gadhvi, husband of the petitioner, total of which comes to Rs. 2,15,464/ -. The said amount cannot be deducted from family pension of petitioner. Therefore, the respondents are not entitled to it and if any amount as referred above is deducted or withheld by the respondent from the amount of family pension received by the petitioner, the same shall have to be refunded to the petitioner by the respondents, within a period of one month from the date of receiving the copy of this order. ( 13 ) IN view of the aforesaid observations and directions, present petition is disposed of. Notice is discharged.