Judgment G.B. Shah, J.—The question that crops up for decision of this Letters Patent Appeal is whether appellant Abedakhatun Yashinmiya Malek, who was independently living separately after completion of 27 years of married life with late Mr. Yashinmiya Malek can get the benefit of family pension or not on death of her husband late Mr. Yashinmiya Malek especially when during his lifetime, he had categorically informed the concerned officials that he does not want and wish to give any share from the amount of his pension to his wife as his wife had deserted him as well as his life and moreover, the said original pensioner has already nominated his nephew and niece in the column of Nomination and not nominated his own wife, i.e. the present appellant. 2. Referring the record and proceedings of this Letters Patent Appeal, it appears that on 7.3.2011, this Letters Patent Appeal was listed on Board for hearing and as the learned Counsel for the appellant remained absent even in the second call, the same was decided on merits and it was dismissed. Learned Counsel for the appellant preferred Misc. Civil Application No. 1593 of 2011 for review and the same has been allowed and accordingly, vide order dated 16.8.2011, office was directed to list the present Letters Patent Appeal for final hearing and accordingly, earlier order dated 7.3.2011 was recalled. 3. Being aggrieved by and dissatisfied with oral order rendered in Special Civil Application No. 12800 of 2010 dated 14.10.2010 passed by the learned Single Judge, the appellant has preferred the present Letters Patent Appeal, on the grounds as detailed in the memo of appeal. 4. We have heard learned Counsel Mr. M.A. Kharadi for the appellant and learned Assistant Government Pleader Mr. N.J. Shah for Respondent No. 1. 5. The brief relevant facts for adjudication of the present Appeal are that appellant- Abedakhatun is widow of late Mr. Yashinmiya Malek who was serving with Respondent No. 3 Experimental High School, Vasna, Ahmedabad in the capacity of a teacher. After retirement, late Mr. Yashinmiya Malek was eligible for pension and the same was fixed and accordingly, the retiral benefits were given to him. Late Mr. Yashinmiya Malek expired on 24.11.2008. On 26.12.2008, the appellant made an application to Respondent No. 2- District Education Officer to grant her benefit of family pension on the death of her husband. After retirement, late Mr. Yashinmiya Malek was eligible for pension and the same was fixed and accordingly, the retiral benefits were given to him. Late Mr. Yashinmiya Malek expired on 24.11.2008. On 26.12.2008, the appellant made an application to Respondent No. 2- District Education Officer to grant her benefit of family pension on the death of her husband. The children of the appellant, i.e. seven sons and one daughter, have executed a letter of No Objection in favour of the appellant. On receipt of such application, Respondent No. 3 -Experimental High School along with the said application has forwarded all the papers, including original service book, papers relating to pension of the deceased employee and other documents relating to the identity of the appellant, etc. to the Respondent No. 2. Similarly, the Respondent No. 2-the District Education Officer acting upon the recommendation made by Respondent No. 3-the Experimental High School, also after verification, forwarded the matter to Respondent No. 1, i.e. Director of Pension and Provident Fund, Gandhinagar, to take necessary steps to fix family pension of the appellant so that the same can be paid to her. Respondent No. 1 had informed the appellant through Respondent No. 2 by communication dated 2/8.3.2010 that the appellant is not entitled for family pension as the original pensioner had nominated his nephew and niece in the column of Nomination and thus, Respondent No. 1 in the said communication taking shelter of the stand taken by the original pensioner, i.e. Mr. Yashinmiya Malek, not to nominate his own wife during his lifetime as his nominee, has refused to extend the benefit of family pension to the appellant. The relevant translated version of the said letter dated 2/8.3.2010 reads as under:— “1. On verification of the pension case of Late Shri Malek, when the submission was first time made for the original pension case, Shri Malek himself has nominated his nephew Majiyuddin & niece Khairunisha in his letter and it has been also clarified in the letter dated 26.3.2003 addressed to the Principal Experimental School Vasna that his nephew and niece have been nominated as his nominees. Thus, during his survival Shri Malek has not shown his wife as his nominee. It is requested to make clarification in the aforesaid case at your level and return the same to this office.” 6. Thus, during his survival Shri Malek has not shown his wife as his nominee. It is requested to make clarification in the aforesaid case at your level and return the same to this office.” 6. The learned Counsel for the appellant has vehemently submitted that the appellant is a legally wedded wife of the original employee, i.e. Mr. Yashinmiya Malek, who was working with Respondent No. 3 and who had retired from Experimental High School on attaining the superannuation age. After the retirement of said Mr. Yashinmiya Malek, Respondent No. 1 had fixed his pension under the relevant papers supplied by Respondent Nos. 2 and 3. At the time of fixation of pension of the husband of the appellant, certain defects were surfaced and the employee-pensioner was directed to comply with the defects and while removing the defects, certain letters were addressed by late Mr. Yashinmiya Malek to the Respondent No. 3 wherein it was stated that the employee-pensioner does not want to give any share or benefit to his wife, i.e. the present appellant, out of the retirement benefits which may flow. The said pensioner has further mentioned that the appellant had lived with him for more than 27 years and had eight children out of the married wedlock and he has nominated his nephew and niece as his successors. It is important to note that the subsistence of the marriage life was never denied. Moreover, it is pertinent to note that the benefits which have been given to the nephew and niece were specified. In one of the letters, it is also stated by the deceased pensioner that the amount of gratuity is to be disbursed in a particular ratio of 30%, 30% and 40% to the nephew, niece and his own children respectively. Even otherwise, as per the statement made by the said deceased pensioner in the very letters, i.e. if at all the amount of pension is fixed during his lifetime and other retiral benefits have been provided during his lifetime, he would be lone person entitled for the same. The appellant has further submitted that in none of the letters, the pensioner has made any reference to the family pension and in any case, such reference could not have been made by the pensioner. 7. The appellant has further submitted that in none of the letters, the pensioner has made any reference to the family pension and in any case, such reference could not have been made by the pensioner. 7. We have carefully perused the record and proceedings along with the order dated 14.10.2010 passed by learned Single Judge as well page Nos. 20 (21A, 21B and 21C) and page Nos.22 (Page No. 23A, 23B and 23C), referred in the said order. It appears that though the disputes were surfaced of route between the pensioner and the appellant, the marriage had subsisted and after completion of 27 years of married life, it appears that both had started living separately. The appellant had started living with her eight children and also the appellant had brought them up with love and concern. It further appears that the nomination given by the pensioner, i.e. late Mr. Yashinmiya Malek, to his nephew and niece does not have any bearing on the fixation of the family pension for which primarily, the wife is only entitled for. So far as the Rules are concerned, the learned Counsel for the appellant has drawn our attention to Rule 88(a)(i) of the Gujarat Civil Services (Pension) Rules, 2002, which describes family means- “88(a)(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.” The learned Assistant Government Pleader has not denied the above legal position. 8. The learned Counsel has also put reliance on various citations, which are as under:— (1) Jodh Singh vs. Union of India and Another (1980) 4 SCC 306 , in which, it has been held that, “benefit of special family pension admissible under Regulation 74 of the Pension Regulations for Indian Air Force admissible to wife of the officer only in the event of the death of the officer and such benefit would be the exclusive property of his widow and the officer is not entitled to make testamentary disposition of the same during his lifetime”. (2) Rampyari Bai vs. Municipal Corporation and Another 1987 (Supp) SCC 263, wherein it was found that, ‘there was no valid marriage and therefore, there could be no valid nomination in favour of the petitioner by the deceased for payment of family pension’ and so the Hon’ble Apex Court had not interfered with. By citing the said decision, the learned Counsel for the appellant has submitted that whether the marriage was valid one and it was subsistence at the time of death of the pensioner, is the main criteria to be considered while deciding the question of family pension and there appears force in it. (3) Smt. Violet Issaac and others vs. Union of India and others (1991) 1 SCC 725 , wherein it has been held that: “... The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee...” (4) G.L. Bhatia vs. Union of India and Another, (1999) 5 SCC 237 . Relevant Paragraphs 3,4 and 5 reproduced hereunder: “3. Under Rule 54 Sub-rule (14)(b)(i) the expression “family” has been defined thus: “54. (14)(b)(i) Wife in the case of a male government servant, or husband in the case of a female government servant...” 4. Sub-rule (8)(ii) of Rule 54 states that: “54.(8)(ii) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child.” 5. (14)(b)(i) Wife in the case of a male government servant, or husband in the case of a female government servant...” 4. Sub-rule (8)(ii) of Rule 54 states that: “54.(8)(ii) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension 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.” 9. We have considered the above referred legal position and we are agreeable to the submissions made by the learned Counsel for the appellant and in our view, the same are squarely applicable to the present case on hand. It appears that during the lifetime of deceased pensioner Mr. Yashinmiya U. Malek, his marriage was subsisted and till he expired, no divorce has taken place between the deceased pensioner and the appellant. It is important to note that family pension is provided by statutory provisions and notifications and circulars issued by the competent authority from time to time and the concerned officials are supposed to follow the same. In the computation for the claim of family pension, it would not be open to decide the issue of desertion and to attribute the cause of desertion because the issue of desertion is never a criteria for granting and denying the family pension. For grant of family pension, the only consideration would be that the claimant ought to be legally wedded wife or husband of the pensioner and he/she be alive on the date of death of the pensioner. Even if the pensioner has nominated third person excluding his wife, then also, the right of the legitimate wife/widow to claim family pension cannot be brushed aside. 10. Considering the overall aspect of the case and considering the entire welfare scheme to provide family pension, the present appeal deserves to be allowed and hence it is allowed. Even if the pensioner has nominated third person excluding his wife, then also, the right of the legitimate wife/widow to claim family pension cannot be brushed aside. 10. Considering the overall aspect of the case and considering the entire welfare scheme to provide family pension, the present appeal deserves to be allowed and hence it is allowed. Order passed by the learned Single Judge in Special Civil Application No. 12800 of 2010 dated 14.10.2010 is hereby set aside. Respondent No. 3 as well as Respondent No. 2 are hereby directed to retransmit the family pension case papers, related to present appellant, if at all the same are lying with them, to Respondent No. 1 and on receiving the same, the Respondent No. 1 is directed to fix the family pension of the appellant from the date of death of her husband within a period of two months following all due procedure for the same. Direct service is permitted. P P P P P