Gujarat High Court
Smitaben Hiralalbhai Parmar vs The General Manager (Finance) on 3 February, 2021
Equivalent citations: AIRONLINE 2021 GUJ 811
Author: Sonia Gokani
Bench: Sonia Gokani, Sangeeta K. Vishen
C/SCA/17517/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17517 of 2019
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SMITABEN HIRALALBHAI PARMAR
Versus
THE GENERAL MANAGER (FINANCE)
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MS. JIGNA B SUCHAK(7004) for the Petitioner(s) No. 1
MR NIRAL R MEHTA(3001) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 03/02/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. By way of present petition, the challenge is made to the orders/communications dated 02.01.2019 and 07.01.2019 passed by the respondent nos. 1 and 2 respectively whereby they rejected the request of grant of family pension to the petitioner on the ground of ineligibility.
2. The facts of the present case, in detail, are as follows: -
2.1. The father of the petitioner late Shri Hiralalbhai Parmar was working on the post of Ex-cash Overseer, City Division, Ahmedabad, who retired from his post on 28.02.2002 and he was receiving pension from Khokhra Mahemdavad Post Office Page 1 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER vide PPO No. GT 3180. The mother of the petitioner passed away on 03.11.2006 and the father of the petitioner also passed away on 17.09.2017.
2.2. The petitioner herself got married to one Mr. Nilesh Manubhai Parmar on 17.05.1999, however due to matrimonial dispute, it was decided to take customary divorce on 03.06.2000.
accordingly, mutually on the stamp paper, customarily she separated from her husband and she continued to be with her father thereafter.
2.3. On the death of her father, the petitioner filed an application on 11.11.2017 before the respondent no.2 authority to grant pension as per the CCS (Pension) Rules, 1972 as being the divorced daughter as she would fit into the criteria of those who are eligible. However, when she went to submit the said application, she was orally informed by the respondent no.2 authority that she would have to obtain a decree of divorce from the Court of law.
2.4. According to the petitioner, when orally it was conveyed that as the divorce she has taken is by way of customary divorce in the year 2000, there is a requirement of obtaining decree of divorce from the Court of law, she by way of Family Suit No. 638 Page 2 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER of 2018 before the Family Court No. 4, Ahmedabad sought the same and she was granted the decree of divorce as per mutual consent.
2.5. She thereafter once again applied for the family pension on 13.04.2018 along with the copy of writ of divorce as was required of hers, therefore on 02.01.2019 and 07.01.2019 the communications have been sent to the petitioner holding the petitioner ineligible for grant of family pension. 2.6. It is the grievance on the part of the petitioner that she is unemployed and has given no maintenance amount or permanent alimony by her husband. She has customarily divorced from the year 2000 and the approach on the part of the respondent authority is hyper technical.
2.7. Reliance is also placed on the Office Memorandum dated 19.07.2017 which states that if the divorce proceedings are stretched for the lengthy period, the grant of pension given to those applicants whose divorce proceedings are pending as on date of death of the government servant is also accepted.
3. Hence, the present petition is filed with the following prayers: -
"(a) Be pleased to admit/allow this writ petition.Page 3 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER
(b) Be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned orders/communications dated 02.01.2019 and 07.01.2019 passed by present respondent No. 1 and No. 2 Authority respectively,
(c) Pending admission, hearing, and final disposal of present petition stay execution and implementation of impugned orders/communications dated 02.01.2019 and 07.01.2019 passed by present respondent authorities,
(d) Be pleased to grant any other and further relief/s in the interest of justice."
4. On issuance of notice for final disposal on 09.10.2019, the respondent appeared and filed the affidavit-in-reply. By way of filing affidavit-in-reply it is urged that the in the pension papers of late Shri Hiralalbhai Parmar, in form no.3, the name of the present petitioner was not mentioned coupled with the fact that the date of dissolution of marriage was declared w.e.f. 30.07.2018 and therefore, she is not found eligible to get the family pension, not being dependent.
4.1. The Office Memorandum dated 19.07.2017 is also produced which shows that the family pension can be granted to the divorced daughter in case where the divorce proceedings have been filed in a competent Court during the life time of the employee - pensioner and the divorce takes place after the death provided the claimant fulfill all other conditions for grant of family pension under the CCS (Pension) Rules, 1972. Page 4 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER
5. Today the matter had been taken up for final hearing considering the plight of the petitioner. Learned advocate Ms. Suchak who is appointed in Legal Aid for the petitioner has urged that the financial condition of the petitioner is quite vitiable. She also has urged that she has a genuine customary divorce in the year 2000 and thereafter, as there was a need for the decree of divorce, by preferring the Family Suit No. 638 of 2018, she had obtained the same and yet, for no reason, the denial has come from the respondent authority. She has further urged that there are two sisters of the petitioner and both are married and settled in their own life and there is no objection from any of the heirs.
5.1. Learned advocate Ms. Suchak has heavily relied on the decision of this Court rendered in Special Civil Application No. 324 of 2018 dated 10.02.2020.
6. We have heard learned advocate Mr. Niral Mehta appearing for the respondent authorities, who has urged that there is neither decree of customary divorce nor the decree which has been obtained by the mutual consent, is being brought, however, when the father died and thereafter she needed to fill-up the form of pension, the petitioner is shown to be his dependent. In Page 5 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER absence of her being reflected as a dependent by the father, the authority had not considered the case. He further has submitted that there neither any reason nor ineligibility criteria which impediment the authority to consider the case except the factum of not being reflected as a dependent by the employee.
7. Thus, having heard both the sides and also having closely examined the material on record, we notice that the denial which has come for and on behalf of the respondent for the first time was on 11.11.2017. We noticed that the father of the petitioner after serving for the life time, had passed away on 17.09.2017. He retired from his post on 28.02.2002 and had continued to receive the pension from the Khokhra Mahemdavad Post Office vide PPO No. GT 3180. He survived till 17.09.2017 and in the interregnum, the mother of the petitioner passed away on 03.11.2006.
7.1. On the death of the father, the petitioner made an application after two months on 11.11.2017 for grant of pension under the CCS Pension Rules, 1972, however, she was orally conveyed of the impediment being the customary divorce paper of the year 2000. She was required to obtained the decree of divorce from the Court of law and resubmit her application. She, for obtaining the decree of divorce had filed Family Suit No. 638 Page 6 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER of 2018 and obtained the decree of divorce by mutual consent on 30.07.2018. This also has a reference of the couple having decree of divorce by mutual consent in customary way. The reference is also made of the divorce date on a stamp paper of Rs. 50/- which is 03.06.2000. She also had waived her right to claim the maintenance from her husband. Accordingly, the Court awarded decree on 30.07.2018.
7.2. We noticed that after the decree of divorce was produced with a request to reconsider her request of being a dependent of the employee and eligible to receive the family pension, a communication dated 02.01.2019 was sent to her which reads as under: -
"Sub: - Family Pension - Case of Smita H. Parmar D/O S.H.Parmar holder of PPO NO. GP-3180 Who Retired on 28/02/2002 & then expired on 17/09/2017 Ref: - Your office letter no. C-2/2/FP-
CHILD/SHP/18-19 Dt.26.11.2018.
With reference to your letter cited above in connection with family pension case, it is intimated that postal pensioner expired on 17/09/2017. The Family pension claimed by Divorcee daughter Smita H Parmar. As per Divorce paper divorce paper was filed on 21.03.2018 and case was decided on 30.07.2018 after the death of postal pensioner S.H.Parmar expired on 17/09/2017. As per CCS pension rule 1972 rule 54 clarification no 27 the Divorcee daughter Smita H Parmar is not eligible for family pension the rule is reproduced here as under
Only those children who are dependent and Page 7 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER meet other condition are eligible for family pension at the time of death of the Government servant or his/her spouse. Kindly cause to return copy of pensioner portion of PPO/Revised PPO Dt. 17/11/2017 (Both copies) and intimate upon which period the Family Pension was paid."
7.3. This categorically recognizes the fact that only those children who are dependent and meet other conditions are eligible for the family pension at the time of death of the Government Servant or his/her spouse, and the pension can be given to them. As per the CCS Pension Rules, 1972, the reference is made of Rule 54 Clarification No. 27 to state that the petitioner is not one of those dependents who could meet the criteria of getting the family pension.
7.4. We noticed that what has been objected to by the other side is that at the time of filling-up the nomination form, the petitioner is not being shown as a dependent. Such nomination form has not come on the record. At the same time, there is no date which is being referred to as to on which date such nomination form is being filled-in. It is ordinarily to be filled-in at the time when the service record is initiated. At a later stage, a person can make changes and make nomination also and even if there is a complete absence of nomination, that would not take away the right of the dependent to get the family pension. As submitted by learned advocate Mr. Mehta fairly that she is not in Page 8 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER any manner ineligible for being a divorced daughter and for want of any objection on the part of any other heirs, it is only because her name is missing in the nomination form filled-in by the father that she is being denied the pension. In our opinion, such could hardly be the criteria which should weigh with the respondent for denying eligible dependent the amount of pension under the Pension Rules.
8. In Special Civil Application No. 324 of 2018, the Court was dealing with the question as to whether the divorced daughter was entitled to receive the benefit of family pension and was required to produce divorce decree duly authenticated or issued by the competent Court of law and could she be denied the benefit if she only produces the customary divorce deed for seeking the benefit of family pension. In that matter, family pension recipient mother died on 25.10.2011 and on account of her demise, the sole surviver in the family i.e. the original applicant - divorced daughter became eligible to receive family pension who approached the authority by making an application in the month of August, 2012 and made a request for grant of pension as per the provision of Rule 75 of the Railway Services (Pension) Rules. This request was rejected on the ground that she was needed to produce a valid divorce decree issued by the Page 9 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER competent Court. The person with whom she had taken the customary divorce had died on 09.07.2013 and in this circumstances, the Court needed to consider the request of grant of pension. Some of the findings and observation would deserve reproduction at this stage: -
"15. The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in pari-materia with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29(2), then perhaps rightly the author of Rule 54 and/or Rule 75 have not thought it fit to qualify the word "divorced daughter"
by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary Page 10 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER divorce factum which have remain unchallenged before the authority and which have been recorded by the Tribunal in its orders at length and elaborately. Section 29(2) of the Hindu Marriage Act, read as under:
"Section 29(2):- Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."
16. In other words, it can well be said that when the factum of customary divorce in both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exists no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the from of dissolution of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also.
17. As Bombay High Court has observed rightly in its judgment the important factor is the family in which the daughter is residing when the pensioner/recipient of the family pension dies. When the said factum has not been disputed in both the cases and when it is clearly recorded by the Tribunal as a fact that both the applicants were residing with the pensioner/recipient of the family pension, then the insistence for dissolution of marriage by the competent Court only by way of decree, in our view, was not justified."
9. In the instant case, undoubtedly, the father of the petitioner - the employee who retired was serving as an Ex-cash Page 11 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER Overseer in City Division, Ahmedabad, but, that would not mean that he may not make a mistake of not introducing daughter as a nominee and sometimes, it may not occur to the employee to show his/her daughter as a dependent. The employee retired on 28.02.2002 whereas the customary divorce of his daughter had taken place already on 03.06.2000 and therefore, the daughter could have been shown as his dependent. What is vital, however, is that later on also before the Court of law, there is a recognition of this document of customary divorce in a decree of divorce and the Court has also acknowledged the fact that she has not asked for any kind of alimony from her husband.
9.1. The customary divorce proceedings as mentioned hereinabove started before his retirement and there is not a semblance of doubt with regard to the genuineness of the divorce and even otherwise also, in the judgment of Special Civil Application No. 324 of 2018, the customary divorce also has been held valid whereas in case of the very petitioner, the decree of divorce is also obtained and the same has a reference of the customary divorce. In no manner, can she be called ineligible for the family pension.
10. In every each way, under the rules which are guiding the respondent for availing the pension to the family of the ex- Page 12 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021 C/SCA/17517/2019 ORDER employee, the petitioner is fitting into the criteria and therefore, the orders/communications passed by the respondent authorities on 02.01.2019 and 07.01.2019 deserves to be interfered with.
11. The present petition is allowed accordingly. The orders/communications of respondent nos. 1 and 2 dated 02.01.2019 and 07.01.2019 respectively are hereby quashed and set aside.
12. Let the case of the petitioner be considered as directed above and the amount of pension be refunded by the authorities in a period of eight weeks from the date of receipt of copy of this order.
(SONIA GOKANI, J) (SANGEETA K. VISHEN,J) Bhoomi Page 13 of 13 Downloaded on : Wed Sep 01 05:56:32 IST 2021