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Gujarat High Court · body

2019 DIGILAW 8 (GUJ)

Bhartiben Indulal Joshi v. State of Gujarat

2019-01-08

N.V.ANJARIA

body2019
JUDGMENT : N.V. ANJARIA, J. 1. Heard learned advocate Mr. Shakeel Qureshi for the petitioner and learned Assistant Government Pleader Ms. Ritu Guru for the respondent-State and its authorities at length. 2. What the petitioner has prayed by filing the present petition is to direct the respondent authorities to pay to her the family pension upon the death of one Gatubhai Dwarkadas Joshi who died on 02.05.2015. 3. The petitioner happens to be the niece of said deceased Gatubhai Dwarkadas Joshi. The deceased was serving as Assistant Teacher in Sangramsinhji High School, Gondal, and was unmarried. It is the case of the petitioner that the deceased was residing with the petitioner and her mother who were the family members of the deceased. It is stated that on 06.08.2004, during his life, the deceased had filled up a nomination form as per State Government Resolution dated 28.04.1984, nominating the petitioner for the purpose of family pension. Said Gatubhai Dwarkadas Joshi died on 02.05.2015. The petitioner thereafter obtained an heir-ship certificate under Rule 166 of the Gujarat Civil Services (Pension) Rules, 2002. 3.1 While it is the case and claim of the petitioner that the heir-ship certificate was issued by the Mamlatdar after making due inquiry and that the petitioner was found to be the heir of the deceased. However, despite addressing representations dated 11.01.2016, 26.05.2016 and 22.09.2017 to the authorities, since the family pension was not paid to the petitioner, this petition came to be filed. 4. Contesting the petition and the prayers made therein, respondent No. 2 in its affidavit-in-reply inter-alia stated and contended that uncle of the petitioner who was an Assistant Teacher in the school at Gondal retired with effect from 31.01.2004 and started receiving the pension who however died on 02.05.2015. It was stated that the deceased was not survived by any family member of the first class and the only survivors were the brother and the niece. As there was no nominee mentioned in the service-book of the deceased for the purpose of repaying the dues of the nominal pension, the petitioner was informed. The petitioner thereupon produced the Varsai certificate called the heir-ship certificate, which was issued by the Mamlatdar under Rule 166 of the Gujarat Civil Services (Pension) Rules, 2002, in accordance with Notification of the State Government dated 03.05.2010. The petitioner thereupon produced the Varsai certificate called the heir-ship certificate, which was issued by the Mamlatdar under Rule 166 of the Gujarat Civil Services (Pension) Rules, 2002, in accordance with Notification of the State Government dated 03.05.2010. It was further contended that on the basis of such certificate the petitioner did not become entitled to claim family pension under the Rules and that the petitioner could not be classified as member of the family of the deceased. 4.1 The stand of the authorities is thus that the petitioner being a niece cannot come under the purview of “family” to be entitled to receive the family pension unless she is adopted by the pensioner which is not the case. 5. In order to consider and answer the moot question as to whether the petitioner could be considered as member of family of the deceased pensioner, provisions of the Gujarat Civil Services (Pension) Rules, 2002, are required to be surveyed since they govern for the eligibility and payability of family pension. Chapter-X of the said Rules, 2002, contains group of rules under the title “Family Pension Scheme, 1972.” Rule 91 has the provisions as to whom the family pension is payable. Sub-rule (1) of Rule 91 states about the period for which the family pension is payable. 5.1 In case of widow or widower, the family pension is provided to be payable until death or remarriage, whichever is earlier. In case of son, the payability of the family pension is until he attains the age of twenty five years or until he gets married, whichever is earlier. The family pension will be payable to the unmarried daughter until she attains the age of twenty five years or until she gets married, whichever is earlier. Sub-rule (3) and (4) of Rule 91 make provisions where deceased government employee is survived by widow but has left behind eligible child or children from another wife who is not alive. Sub-rule (5) contemplates the eventuality when the family pension would become payable to the parents of the pensioner. These provisions indicate the class, category and type of persons in the family who may receive the family pension. 5.2 Rule 88 of the Rules mentions and defines the different terms used in Chapter IX. Sub-rule (5) contemplates the eventuality when the family pension would become payable to the parents of the pensioner. These provisions indicate the class, category and type of persons in the family who may receive the family pension. 5.2 Rule 88 of the Rules mentions and defines the different terms used in Chapter IX. Thereunder definition of “family” in clause (a) becomes significant, which is extracted hereunder: (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 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.” 5.3 Under the above concept of family defined under Rule 88(a), family of government employee means a wife where the government employee is male and husband if the government employee is female. The family also includes a judicially separated wife or husband. In both the above cases, the wife or husband would be construed as “family” even if the marriage took place before or after retirement of government employee. After sub-clause (i) and (ii) of clause (a), encapsulating as above, the members who are mentioned in clause (iii) are the son or daughter who has not attained the age of twenty five years including such son or daughter legally adopted before retirement. 5.4 The family also includes son or daughter born after retirement from the marriage took place after retirement. As per sub-clause (iv), the word “family” would include the parents who are wholly dependent on government servant when the government servant was alive, provided that the deceased employee had neither left behind a widow nor a child at the time of his death. As per sub-clause (iv), the word “family” would include the parents who are wholly dependent on government servant when the government servant was alive, provided that the deceased employee had neither left behind a widow nor a child at the time of his death. It would be seen that the categories of members included in the concept of “family” under sub-clauses (i) to (iv) of clause (a) of Rule 88 have a necessary interaction with the provisions of Rule 91. 5.5 The idea of “family” under the Gujarat Civil Services (Pension) Rules, 2002, is a codified concept. It is statutorily defined under the Rules of 2002. The family includes class of persons mentioned therein in the particular way as included in the concept. Evidently, the petitioner who happens to be the niece of the pensioner does not fall within the said codified concept of “family” under the Rules. It is a trite canon of interpretation that when a statute defines a particular word or term, in that case such term or word has to be construed, understood and applied in the same way wherever it occurs in the different parts and provisions of the statute. Therefore, in view of the definition of word “family” in Rule 88(a) of the Rules, the word “family” wherever occurs in the Pension Rules of 2002, will be read and construed accordingly. It necessarily follows that only such persons who could be viewed as members of “family” as defined, could lodge claim for receipt of family pension. 5.6 What also becomes relevant to be noticed is Rule 95 of the Rules. It deals with the relief in case of death of pensioner who is in receipt of service pension. Rule 95 reads as under: “95. Relief in the case of death of pensioner in receipt of service pension: (1) In case of death of a pensioner who is in receipt of a service pension, a lump sum amount equal to one months pension shall be payable to a nominee, who has been nominated by the pensioner under this rule. (2)..................... (3)..................... (4)..................... (5)..................... (6) In cases where the pensioner, the nominee and alternate nominee dies simultaneously either in an accident or in air crash etc. (2)..................... (3)..................... (4)..................... (5)..................... (6) In cases where the pensioner, the nominee and alternate nominee dies simultaneously either in an accident or in air crash etc. or the nominee and the alternate nominee expires before the death of the pensioner and the pensioner dies without making revised nomination, the amount shall be paid to the person entitled to receive family pension under rule91, or otherwise to the relatives of the family of deceased pensioner’s family in the following order of priority: (a) wife (in the case of male Government employee). (b) husband (in the case of female Government employee). (c) sons. (d) unmarried & widowed daughters. (e) father. (f) mother. (g) sons of predeceased son. (h) married daughter. (i) brothers.” 5.7 Sub-rule (6) of Rule 95 extracted above inter-alia mentions the list of relatives of the family of deceased pensioner in sub-clause (a) to (i) which are in consonance with the concept of “family” as defined in Rule 88(a) read with Rule 91 of the Rules. It does not include the relation the petitioner bears to the deceased pensioner. The conjoint reading of the definition of “family” and the provisions of interactive Rules would invariably and finally suggest that in the concept of “family” envisaged under the Rules for the purpose of entitlement to be paid the family pension, the members included cannot be except the wife, husband, sons, unmarried and widowed daughters, father, mother, sons of predeceased son, married daughter or brother. It may also include a son or daughter who is adopted legally before retirement of the government employee or born after the retirement from the marriage which took place after the retirement. 5.8 When the definition of family in Rule 88(a) is considered either independently or conjointly with other provisions of the rules, the petitioner who is niece of the pensioner by relation, fails to classify herself anywhere and thus stands nowhere to be within family to be entitled to receive the family pension. 6. 5.8 When the definition of family in Rule 88(a) is considered either independently or conjointly with other provisions of the rules, the petitioner who is niece of the pensioner by relation, fails to classify herself anywhere and thus stands nowhere to be within family to be entitled to receive the family pension. 6. Adverting to the aspect of heir-ship certificate obtained by the petitioner on the basis of which she has put-forth her claim for family pension, Rule 166 of the Rules under which the same is issued falls under Chapter XVII titled as “Payment of Pensions.” The provisions of group of Rules 160 to 167 in this chapter deal with the date from which the pension becomes payable, procedure for payment of pension to a lunatic, date of commencement of payment of wound or injury pension and the family pension and further about the procedural aspects necessary to be satisfied for the purpose of payment of pension. It is in such class of provisions that Rule 166 occurs. This Rule deals with the procedure for payment of arrears of pension on the death of pensioner. 6.1 When the petitioner does not fall within the concept of “family” as legally ascribed, the certificate under Rule 166 by the Mamlatdar cannot invest eligibility with the petitioner as a person entitled to receive the family pension. Nor the certificate under Rule 166 of the Rules could take place of a nomination. In the present case, admittedly the deceased had not made any nomination in the service-book and no family member was mentioned who could receive the family pension after the death of the deceased. Under the guise of certificate under Rule 166 of the Rules, the petitioner could not project herself as the person entitled to or nominated as the person to receive the family pension when the petitioner did not fall within the codified concept of family under the Rules. 7. In view of the foregoing discussion, the stand on the part of the respondent authorities in denying the petitioner the family pension under the Gujarat Civil Services (Pension) Rules, 2002, by not treating the petitioner as a member of family to be not entitled to receive the family pension, could be said to be eminently in accordance with law. The petition fails and is hereby dismissed. Notice is discharged. No costs.