Gujarat High Court
Kapilaben Jamesbhai Macwan vs State Of Gujarat on 15 October, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/12740/2025 ORDER DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12740 of 2025
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KAPILABEN JAMESBHAI MACWAN
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR ADITYA PATHAK, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/10/2025
ORAL ORDER
1. Heard learned Advocate Mr.A.S.Asthavadi for the petitioner and learned Assistant Government Pleader Mr.Aditya Pathak for the respondent-State
2. By way of this petition, the petitioner seeks for issuance of a writ directing the respondents to pay family pension and arrears thereof due from November, 2016 till date of payment and for regular payment thereof and the petitioner also seeks for interest upon the arrears of pension.
3. It appears that the petitioner is the legally wedded wife of one James Ashirvadbhai Macwan, who had retired as Sales Tax Inspector from the Office of the Assistant Sales Tax Commissioner, Anand. It would appear that the employee, Page 1 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined who had retired on 28.02.2010, and had expired on 13.11.2016, had filled in his pension papers and whereas in the nomination from, the employee has shown his son Markoni as his nominee. It appears to be the case of the petitioner that the petitioner is legally wedded wife of the said deceased employee and whereas the deceased employee is survived by the petitioner and two sons namely Markoni aged 37 years and Allan aged 31 years and two daughters namely Arica aged 38 years and Jacqlin aged 34 years. It is the case of the petitioner that the petitioner and the deceased employee, though being husband and wife, had issues inter-se and whereas the petitioner who was residing separately from the late husband had also filed application under Section 125 of the Criminal Procedure Code for grant of maintenance and whereas orders were passed therein in favour of the petitioner. It is the case of the petitioner that under the extant rules, it is the wife who would be entitled to receive family pension and whereas the employee does not have any right whatsoever to nominate anyone else other than the wife, in case of a male employee , as the recipient of the family pension.
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4. Learned Advocate Mr. Asthavadi for the petitioner would take this Court through the relevant Rules namely Rules, 82, 85, 88 as well as 91 of the Gujarat Civil Services (Pension) Rules, 2002 and would submit that the Rules inter alia do not envisage the employee being entitled to nominate anyone else i.e. in case of a husband, a wife and in case of a wife, a husband, as the nominee. Learned Advocate would further submit that while the marriage had run into rough weather, but at the same time, there was no legal separation between the husband and wife. Learned Advocate would submit that, under such circumstances, the petitioner as a wife of the deceased employee would be entitled to payment of family pension. Learned Advocate would also rely upon decision of this Court in case of Parvatiben wd/o Shankarbhai Patel Vs. State of Gujarat and another, dated 01.04.2024 in Special Civil Application No. 5094 of 2024 in support of his submissions.
4.1 Learned Advocate Mr. Asthavadi would also rely upon decision of the Hon'ble Supreme Court in case of D.D. Tiwari (Dead) Through Legal Representatives Vs. Uttar Haryana Bijli Vitran Nigam Limited and Others, reported Page 3 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined in (2014) 8 SCC 894, in support of his submission that the petitioner should be paid interest upon the arrears of pension.
5. Learned AGP Mr.Aditya Pathak for the respondent-State would submit that as such, the dispute had arisen on account of the deceased husband of the petitioner having mentioned in the nomination form the name of his son and whereas upon verification, while the State is clear that the petitioner is the legally wedded wife of the deceased employee and whereas the petitioner would, as per the law laid down by this Court, entitle to pension and arrears of pension and whereas learned AGP would submit that the State may not be saddled with interest on the arrears of pension, more particularly since the State was not responsible for the delay, rather it was the wrong fact being mentioned in the nomination form which led to this impasse.
6. Having heard the learned Advocates for the respective parties and having perused the documents on record as well as the decision of this Court dated 01.04.2024, it would appear that the issue in question is in a very narrow compass. As noticed, the deceased employee at the stage of filling up of his nomination form had nominated his son, and whereas as Page 4 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined far as the State Government is concerned, till material is shown to the contrary, the State Government was justified in accepting the nomination form as it had been filed by the employee. On the other hand, it clearly appears that the petitioner herein is the legally wedded wife of the deceased employee and no material is shown to this Court to contend that the marriage between the deceased employee and the petitioner had legally come to an end.
7. At this stage, this Court would refer to certain observations made by this Court in the decision dated 01.04.2024 in Special Civil Application No. 5094 of 2024 (supra), wherein a similar issue was under consideration. Paragraphs No. 6 and 7 being relevant for the present purpose are quoted hereinbelow for benefit.
"6. Considering the submissions made by the learned advocates for the respective parties and having perused the documents on record, it appears to this Court that the issue raised in the present petition is covered by the decision of the learned Co-ordinate Bench referred to hereinabove. In the considered opinion of this Court, the question which requires answer is whether in case of wife or the husband as the case may be, who is serving with the Government, would the employee have the sole right to nominate any person other than their spouse or would the rules have precedents over the wish of the employee concerned.Page 5 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025
NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined Before answering the question, this Court deems it appropriate to refer to observations of the learned Co- ordinate Bench in case of Manjulaben Narsinhbhai Ranapariya (Supra). Paragraph nos.9 to 16 of the said decision, being relevant for the present purpose is reproduced hereinbelow for benefit.
"9. The facts, as narrated hereinabove, are not in dispute. The deceased husband of the petitioner filed an application dated 20.04.2017 informing the Taluka Development Officer, Taluka Panchayat Jasdan that after his demise, his retirement may be paid to the legal heirs i.e. son as well as the daughter-in- law. The respondent authorities, acting on such communication, are not paying the pension to the petitioner, who is widow of the deceased husband. It is not disputed by the respondent authorities that no divorce or judicial separation has taken place between the petitioner and the deceased husband.
10. At his stage, it would be apposite to incorporate the provisions of Section 88 of the Gujarat Civil Services (Pension) Rules, 2002, which reads as under :-
"88. Terms used in this chapter : For the purposes of this chapter - (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 Page 6 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined 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.
(b) "pay" means the basic pay drawn by the Government employee at the time of retirement or death while in service."
11. As per the said statutory provisions, for the purpose of family pension and as per the definition mentioned therein, the wife, in case of a male government employee, would be entitled to the family pension.
12. The Rule 91 of the Pension Rules, 2002 is also incorporated as under :-
"91.Family Pension to whom payable :
(1) The period for which family pension is payable shall be as follows :-
(i) In the case of a widow or widower,
until the date of death or
remarriage, whichever is earlier;
(ii) in the case of son, until he attains the age of twenty-five years or until he gets married, whichever is earlier; and
(iii) in the case of an unmarried daughter, until she attains the age of twenty-five years or until she gets married, whichever is earlier;Page 7 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025
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13. Rule 91 stipulates about the family pension to be payable to widow or widower only (i) until the date of death or remarraige, whichever is earlier and (ii) in case son of a until he attains the age of 25 years. Thus, preference is first given to widow and not the son of the deceased employee.
14. At this stage, it would be apposite to refer to the decision of the Supreme Court of India in the case of G.L..Bhatia (supra) where the Apex Court, while examining analogous provisions of Rule 54 of the Central Civil Services (Pension)Rules, 1972, has held thus :
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"2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short "the rules") notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the rules. It is too well settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.Page 8 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025
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3. Under Rule 54 sub-rule (14(b)(i) the expression "family" has been defined thus:
"54. (14(Z?)(i) Wife in the case of a male government servant, or husband in the case of a female government servant..."
4. Sub-rule (8)(r) of Rule 54 states that:
"54. (8)(r) 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."
15. The Apex Court has thus held that the husband would be entitled to family pension even if there is error committed in the nominee form committed by the deceased wife. Though in the said case the nomination was not in favour of the husband and the husband was staying separate from the wife, the Apex Court has held that the husband Page 9 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined would be entitled to the family pension as per the statutory provisions.
16. In the present case, the facts, which are analogous to the case which were before the Apex Court, the petitioner, who is widow and falls within a definition of Rules 88 and 91 of the Pension Rules, 2002, will be entitled to the pension and retirement benefits, even the deceased employee / late husband has expressed his desire of nominating his son and daughter-in-law as legal heirs, who would be entitled to the family pension as well as retirement benefit. The respondent - authority had informed the son of the petitioner that she has lodged her claim for pension vide communication dated 03.02.2020 and 23.06.2020, however he has not responded to such communications. He has neither cooperated with the authorities nor has he filed any legal proceedings before any forum."
7. Perusing the observations of the learned Co- ordinate Bench, it would clearly appear that the learned Co-ordinate Bench interpreting provision of Section 88 and 91 of the Gujarat Civil Services (Pension) Rules had inter alia come to a conclusion that the said rules clearly reveal the intent that family in relation to a Government employee means the wife in case of a male Government employee and the husband in case of a female Government employee. The rules also stipulate that the family pension would be payable to the widow or widower until the date of death or remarriage etc. In the instant case, it clearly appears that while the petitioner i.e. the wife of the late Government servant, was the first in hierarchy for being paid pension, merely, because the Government servant had expressed his desire for nominating his son as the nominee for payment of family pension, the petitioner has been denied her rights.
As noted by the learned Co-ordinate Bench, the petitioner who is the widow would fall within the Page 10 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined definition of family within Rules 88 of the Pension Rules, 2002 and whereas the petitioner would be entitled to pension and retiral benefits, even if the deceased employee had expressed his desire for nominating somebody else i.e. the son here, in place of the wife i.e. the present petitioner. As noted by the learned Co- ordinate Bench, the wife of the late Government employee i.e. the petitioner would be entitled for the pension and other retiral benefits in ileu of the services rendered by her late husband."
8. Having perused the observations of this Court hereinabove, and having appreciated the scope and ambit of Rule 88 and Rule 91 of the Gujarat Civil Services (Pension) Rules, it would appear to this Court that Rule 88 explains about the term "family", in relation to a Government employee. It would appear that in case of a male employee, it would be the wife of the employee concerned and whereas Rule 88(ii) of the Rules goes further to observe that wife would include a judicially separated wife, provided, that the marriage took place before retirement of the Government Employee. In the instant case, as it would appear, while there were litigations between the late Government employee and the petitioner as his wife, it is nobody's case that there was a severance of marriage and as it is, it is not even contended that the husband and wife were judicially separated. The Rules envisaging that even a judicially separated wife, would Page 11 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined be entitled to payment of family pension, in the instant case, since the late employee and the petitioner had not even judicially separated, as a natural corollary, the wife i.e. the petitioner would be entitled to family pension. The entitlement for being paid family pension, as per Rule 91, would be to the widow i.e. the petitioner until the date of demise or remarriage whichever is earlier. Thus, as far as the claim of the petitioner is concerned, reading Rule 88 with Rule 91 of the Rules, as explained by this Court as above, the petitioner would be entitled to, subject to the rider as found in Rule 91.
9. Insofar as the aspect of interest is concerned, normally in cases where the Court is of the opinion that non payment of retiral benefits, as in the present case, the family pension, was on account of any negligence or fault on part of the State or its Officers, then as a natural consequence, interest and/or costs would be imposed upon the State or its Officers. In the instant case, while the legal position as regards the wife being entitled to family pension upon demise of her husband is undoubtedly clear, yet, it would also appear that the issue is not as simple as that. This Court has perused the nomination papers which are annexed with the petition, which clearly Page 12 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined show that the employee during the time of filling up of the nomination form had shown his son as nominee. Again, it does not appear that the same is on account of any error. It also requires to be noted that the deceased employee was not an employee more connected with the menial part of the Government employment, rather the deceased employee was a Sales Tax Inspector, meaning thereby he was well aware and conscious about what he was doing. Under such circumstances, since it appears that the employee himself had nominated his son instead of his wife, while it is true that the petitioner being the legally wedded wife would be entitled to pension, but this Court does not find any fault with the Government Officers for not having decided the pension case in favour of the petitioner till now. Once an employee has filled a nomination in the manner as above, to this Court it would appear that unless there is some intervention at a different level, like in the present case, it would not have been opened for the authorities concerned to have suo motu decided to ignore the nomination filled in by the employee himself and direct that pension would be paid to somebody other than the nominee. While the legal position in the present case is clear, but permitting the Government Page 13 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025 NEUTRAL CITATION C/SCA/12740/2025 ORDER DATED: 15/10/2025 undefined employees as above, rather penalizing the Government employees for not doing as the above, to this Court, would lay down a very dangerous precedent which should be avoided. Under such circumstances, in the considered opinion of this Court, while the petitioner would be entitled to arrears of pension and regular payment of pension, the prayer for payment of interest is hereby rejected.
10. In view of the above discussion, observations and conclusion, the following directions are issued.
(i) The present petition is allowed.
(ii) The respondents are directed to pay family pension to the petitioner as the legally wedded wife of the deceased employee namely Kapilaben Jamesbhai Macwan.
(iii) The arrears of pension from November, 2016 shall be calculated by the respondents within a period of four weeks from the date of receipt of this order and appropriate disbursement shall be made within a week thereafter.
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(iv) It is further directed that the respondents shall ensure that family pension is regularly paid to the petitioner as per the extant rules.
11. With the above observations and directions, the present petition stands disposed of as allowed. Direct service is permitted.
(NIKHIL S. KARIEL,J) Bhoomi Page 15 of 15 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:01:48 IST 2025