JUDGMENT : 1. By the present petition filed under Article 226 of the Constitution of India, the petitioner – mother of the deceased employee has made following prayers in para 7: “7. PRAYER The Petitioner therefore prays that this Hon’ble Court be pleased to issue a writ of mandamus or issue a writ of certiorari and/or writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased; (A) This Hon’ble Court may be pleased to direct respondent Provident Fund Organization to start paying monthly pension amount of Rs.1481 (Rupees one thousands four hundreds eighty one) and also pay unpaid arrear amount of pension from the date of application for transfer of pension i.e. dt. 30.5.2011 till the date of release of pension with interest of 12% as per para 17-A of the Employees Pension Scheme, 1995. ( on March, 2015, the total unpaid arrear amount with interest is Rs.50,354.00 (Rupees fifty thousand three hundred fifty four). (B) This Hon’ble Court may be pleased to pass an interim order to P.F. Organization to start paying pension to the petitioner until the final order is not passed by this Hon’ble Court. (C) This Hon’ble Court may be pleased to declare that the pension was supposed to be given as dependent pension and not as nominee pension as no nomination was declared by the petitioner's son. (D) This Hon’ble Court may be pleased to order Respondent Provident Fund Organization to pay expense of all the litigation as the arbitrary approach of PF Organization is the reason that petitioner has to approach Hon’ble Gujarat High Court. (E) This Hon’ble Court may be pleased to grant such other and further relief as the Hon’ble court deems fit and proper.” 2. As per the facts stated in the petition, son of the petitioner late Shri Apurva K. Nanavati was working with M/s. WIN HEALTH CARE (DIVISION WIN MEDI CARE) PVT. LTD. and he was member of Provident Fund and after his death on 29.4.2009, the husband of the petitioner applied for dependent pension on 9.1.2012. However, the respondents gave him nominee pension instead of dependent pension. After some time i.e. on 3.5.2012, husband of the petitioner passed away and the petitioner was left with no earning member in the family. LTD. and he was member of Provident Fund and after his death on 29.4.2009, the husband of the petitioner applied for dependent pension on 9.1.2012. However, the respondents gave him nominee pension instead of dependent pension. After some time i.e. on 3.5.2012, husband of the petitioner passed away and the petitioner was left with no earning member in the family. It is the case of the petitioner that on the death of her husband, she became entitled to receive dependent pension from the respondents. However, though she applied for such pension, no response is given to her which results into denial of the benefit of dependent pension to her under the Employees Pension Scheme, 1995 (“the Scheme” for short). 3. The petition is opposed by the affidavit in reply inter alia on the ground that the husband of the petitioner claimed nominee pension in Form 10B which was paid to him as per the provisions of para 16(5)(a) of the Scheme and, therefore, the petitioner is not entitled to receive the dependent pension. 4. Learned advocate Mr. Soneji submitted that the husband of the petitioner had claimed dependent pension and after he was released the pension benefit, he enjoyed such benefits of pension for himself and the petitioner and after his death, as per para 16(5) (aa) of the Scheme, the mother being the surviving dependent-member in the family became entitled to receive the dependent pension. Mr. Soneji submitted that simply because the husband of the petitioner received pension as nominee, such would not prevent the petitioner to apply for and receive the dependent pension as dependent mother of the deceased employee after the death of her husband. Mr. Mr. Soneji submitted that simply because the husband of the petitioner received pension as nominee, such would not prevent the petitioner to apply for and receive the dependent pension as dependent mother of the deceased employee after the death of her husband. Mr. Soneji submitted that para 16(5)(aa) of the Scheme clearly provides for giving pension benefits to the father or mother as dependent of the deceased employee in absence of spouse or children of the deceased employee and when the father and mother are entitled to receive the dependent pension on the demise of the employee, the petitioner mother could not be denied the dependent pension on the death of father of the deceased employee and, therefore, action on the part of the respondents in denying the dependent pension to the petitioner under the scheme is not only violative of the provisions of para 16(5) (aa) of the Scheme but is also violative of Article 14 and 21 of the Constitution of India and, therefore, this Court may quash and set aside such action and direct the respondents to start paying the dependent pension under the scheme to the petitioner and also to direct the respondents to pay arrears thereof from the date it accrued to the petitioner. In support of his arguments, Mr. Soneji has relied on the decision of Kerala High Court in the case of Rajamma K.T. Versus Assistant Provident Commissioner (Pension) Employees’ Provident Fund Organization reported in 2015 LLJ 242 copy whereof is placed at Annexure-N page 33. 5. Learned Advocate Ms. Shailja, on the other hand, submitted that the pension benefits under the Scheme are available in option i.e. either nominee pension or dependent pension under Para 16(5) of the Scheme. Ms. Shailja submitted that once the father of the deceased employee has chosen to accept the nominee pension under para 16(5)(a) of the Scheme, no further benefit of pension was available on his death to the petitioner. Ms. Shailja submitted that there is clear restriction provided in paragraph 16(5)(a) for grant of dependent pension after the benefit of nominee pension is availed. Ms. Shailja relied on the Unreported decision of the Andhra Pradesh High Court in Writ Appeal No.582 of 2007. 6. Ms. Shailja submitted that there is clear restriction provided in paragraph 16(5)(a) for grant of dependent pension after the benefit of nominee pension is availed. Ms. Shailja relied on the Unreported decision of the Andhra Pradesh High Court in Writ Appeal No.582 of 2007. 6. Having heard the learned advocates for the parties, it appears that the deceased employee – son of the petitioner had no family of his own i.e. he was not survived by his spouse or children as he was unmarried. It therefore appears that he nominated his father – husband of the petitioner to receive the amount of Provident fund to his credit, and the pension under the Scheme. It appears that the father of the deceased employee – the husband of the petitioner applied for pension as nominee of his deceased son. Based on such application, pension was released to the husband of the petitioner. 7. As stated in the affidavit-in-reply filed on behalf the respondent no.1 and 2, father of the deceased employee was being paid the nominee pension of Rs.1481/-. The father of the deceased employee passed away on 13.5.2012 and immediately thereafter, the petitioner, being the surviving dependent mother of the deceased employee, applied for pension on 31.5.2012 as per para 16(5)(aa) of the Scheme. 8. Para 16(5)(a) & (aa) of the Scheme reads as under: “16(5)(a)A member who is not married or who does not have any living spouse and/or an eligible child may nominate a person to receive benefits as laid down hereinafter provided that in the event of his/her acquiring a family subsequently, the nomination so made shall become void. In the event of death of the member such a nominee shall be entitled to receive a monthly pension equal to the monthly widow pension, as admissible under sub-clauses (I) and (ii) of clause (a) of sub-paragraph (2). 16(5)(aa) If a member dies leaving behind no spouse and/or an eligible child falling within the definition of family and no nomination by such deceased member exists, the widow pension shall be paid under sub-clauses (I) and (ii) of clause (a) of sub-paragraph 2 either to dependent father or dependent mother as the case may be. On grant of Pension to such dependent father and in the event of death of the father pensioner, the admissible pension shall be extended to the surviving mother life long.” 9. On grant of Pension to such dependent father and in the event of death of the father pensioner, the admissible pension shall be extended to the surviving mother life long.” 9. As provided in para 16(5)(a) (aa) of the Scheme, in absence of the nomination by member-employee, the father or the mother of the deceased member-employee shall be entitled to receive the pension if there is no family of the deceased member-employee and if the father is granted pension, on the death of the father, surviving mother of the deceased member-employee would get the pension as dependent of such deceased member-employee. However, when a member-employee who has no spouse or children nominates anybody to receive the pension after his death, so long as such nomination exists, only the nominee remains entitled to receive the pension. But the question is, on death of nominee, whether father or mother as the case may be, who are otherwise entitled to receive the pension as dependent parents, could be denied such pension only because the nomination form was filled by the member-employee. 10. In the case of Rajamma K.T. (supra), Hon’ble Kerala High Court has, on interpretation of para 16(5(a)(aa), held and observed in para 2 to 4 as under: “2. The learned counsel appearing for the Provident Fund Organization has relied on clause (a) of subparagraph (5) of paragraph 16 wherein it is stated that the nominee shall be entitled to receive monthly pension equal to the monthly widow pension, as admissible under sub-clause(i) and (ii) of clause (a) of sub-paragraph (2). According to the learned Standing Counsel that would act as a restriction in any other person being granted a pension. If a nomination is so made by an employee covered under the scheme, then the pension would be payable only to such nominee and not to any other person on the death of such nominee, is the contention made. 3. This Court, however, cannot find any such restriction in clause (a) of paragraph 16(5). The restriction in clause (a) is insofar as the nominee being disentitled to draw pension if the employee has acquired a family after such nomination being effected. Hence, an inadvertent omission by an employee to revoke the nomination, after his marriage was of no consequence and that alone would not deprive his family of the family pension due under the scheme. Hence, an inadvertent omission by an employee to revoke the nomination, after his marriage was of no consequence and that alone would not deprive his family of the family pension due under the scheme. Relevant would be clause (aa), which reads as under: "(aa) If a member dies leaving behind no spouse and/or an eligible child falling within the definition of family and no nomination by such deceased member exists, the widow pension shall be paid under sub-clauses (i) and (ii) of clause (a) of sub-paragraph 2 either to dependent father or dependent mother as the case may be. On grant of pension to such dependent father and in the event of death of the father pensioner, the admissible pension shall be extended to the surviving mother life long." 4. In the case of dependent parents, if there is no nomination given by the employee, the pension would have to be first granted to the father and upon the father's death to the mother, till the latter's life time. Merely for the reason that the employee had nominated his father, the benefit conferred under clause (aa) cannot be taken away for reason only of the employee having made a nomination. The dependent mother cannot be denied such pension on the death of the father pensioner; which the dependent mother is entitled to under clause (aa) of sub-paragraph (5) of paragraph 16. At the risk of repetition clause (a) relied on by the learned Standing Counsel is, in fact, a restriction of payment to a nominee, if in the life time of the employee, after the nomination, the employee acquires a family. The spirit and tenor of the scheme is to provide succour to the immediate dependents and not to exclude a valid claim by a dependent legal heir on the basis only of a nomination. A restriction insofar as the pension to be granted to the dependent mother cannot be read into the provision of the scheme. There is no warrant for such an interpretation and clause (aa) of the beneficial scheme has to be interpreted broadly and liberally and in favour of the dependents of the deceased employee.” 11. This Court is in respectful agreement to the view taken by the Hon’ble Kerala High Court on interpretation of para 16(5)(a)(aa) of the Scheme. 12. There is no warrant for such an interpretation and clause (aa) of the beneficial scheme has to be interpreted broadly and liberally and in favour of the dependents of the deceased employee.” 11. This Court is in respectful agreement to the view taken by the Hon’ble Kerala High Court on interpretation of para 16(5)(a)(aa) of the Scheme. 12. In the context of the very scheme, the Hon’ble Supreme Court has observed in paragraph 5 of its judgment rendered in the case of Otis Elevator Employees’ Union S. Reg. And Others versus Union of India and others, reported in 2003 (12) SCC 68 , as under: “5. A scheme of pension is different in scope and content from a scheme for provident fund and a scheme for gratuity. A provident fund scheme postulates a certain amount of contribution by the employer and equivalent amount of contribution by the employee, payable on his retirement or death. A pension is a periodic payment of a stated sum. However, these schemes have common objectives to achieve efficiency, orderly and humane elimination from industry of superannuated or disabled employees. “ 13. When the beneficial provision for payment of pension is made in the scheme, ordinarily, provisions for such purpose should receive liberal construction so as to lean towards the grant of pension subject to fulfillment of conditions if so provided. However, distinction is sought to be made by the respondents that once the pension was granted to the nominee, no further benefit of pension could be made available to the dependent of the member-employee even after the death of the nominee. The Court finds that such distinction, if accepted, the scheme will not serve the purpose for which it is made. In a given case, nominee other than the father or mother may die within very short period after he was granted the pension under the scheme and if the contention is accepted that the father or mother of the member-employee after the death of the nominee is not entitled to pension as dependent of the deceased member-employee, the dependent father or the mother of the deceased member-employee may be deprived of their legitimate right to receive financial assistance in their old age. Such could not be the intention behind making provisions for nomination by the member-employee. 14. Such could not be the intention behind making provisions for nomination by the member-employee. 14. In the case on hand, the deceased member-employee had nominated the father – husband of the petitioner to receive the pension under the scheme. The father who was otherwise entitled to receive the pension as one of the dependent parents would not cease to be entitled to receive the pension as dependent of the deceased member-employee simply because he was nominated by his son to receive the pension. Therefore, when the father who was receiving the pension under the scheme dies, such benefit of pension should go to the mother, if surviving. Learned advocate Ms. Shailja however relied on the unreported judgment of the Hon’ble Andhra Pradesh High Court in Writ Appeal No.582 of 2007 so as to submit that once the option was exercised for nominee pension, and once it was so received, the benefit of dependent pension could not be extended. 15. The Court finds that in the said case, the Hon’ble Andhra Pradesh High Court on perusal of the provisions of the Employees Family Pension Scheme 1971, observed that the option to join family pension scheme was given to the members of the employees provident fund but in the case of husband of the respondent therein, no such option was exercised, therefore, the Hon’ble Andhra Pradesh High Court held that in absence of the evidence exercising option to come under the Family Pension Scheme, benefit of the provisions under the said scheme could not be extended to surviving wife of respondent therein. Such decision of the Hon’ble Andhra Pradesh High Court shall have no application in the facts of the present case as the benefits of the pension to the petitioner is not being denied on the ground that the deceased member-employee – son of the petitioner had not exercised option for pension. 16. For the reasons stated above, the petition is allowed. The respondents are directed to start paying dependent pension to the petitioner on and from 1st August, 2016. The respondents shall also clear arrears of the dependent pension from the date the husband of the petitioner expired till 31st July, 2016 within a period of four weeks from the date of receipt of the order. The respondents are directed to start paying dependent pension to the petitioner on and from 1st August, 2016. The respondents shall also clear arrears of the dependent pension from the date the husband of the petitioner expired till 31st July, 2016 within a period of four weeks from the date of receipt of the order. If such arrears are not paid within a period of four weeks, the respondents shall pay interest at the rate of 12% per annum on the amount of arrears till such arrears are paid. Rule is made absolute accordingly. Petition allowed.