SCA/24760/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24760 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== UNION OF INDIA & 3 - Petitioner(s) Versus KAPILABEN NANDU SOLANKI WD/O LT.NANDU MOHAN & 1 - Respondent(s) ===================================================== Appearance : MR HARIN RAVAL, ADDNL.SOLICITOR GENERAL OF INDIA with MR AMAR D MITHANI for Petitioner : 1 - 4. MR ANAND L SHARMA for Respondent : 1. Respondent : 2 – EXPIRED. ===================================================== SCA/24760/2007 2/11 JUDGMENT CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 05/12/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. The respondent no.2 is reported unserved as he has expired. Learned advocate Mr.Mithani appears for the petitioners. He states that the respondent no.2 Mathibai was the legally wedded wife of the deceased Nandu Solanki. Since her death, there are no other persons in the family of the said Nandu Solanki who would be entitled to family pension under the relevant rules. He, therefore, seeks leave to delete the name of the respondent no.2 from the cause-title. Leave is granted. Name of the respondent no.2 be deleted from the cause-title. SCA/24760/2007 3/11 JUDGMENT RULE returnable today. Learned advocate Mr.Sharma appears for and waives service of notice of rule on behalf of the respondent. The petitioners - Union of India and others have preferred the present petition under Article 226 of the Constitution of India to challenge the order dated 19th November, 2004 made by the Central Administrative Tribunal, Ahmedabad Bench (hereinafter referred to as, “the Tribunal”) in Original Application No.449/2004 and to challenge the Certificate No.12/2006 issued by the Deputy Administrator General, Baroda division. The dispute is in respect of the claim for family pension made by the respondent on the death of her husband Nandu Solanki. The aforesaid Nandu Solanki was a member of the civilian staff in the Armed Forces and was employed under the petitioner no.2 – Commanding Officer, Manouri, Allahabad as a 'Lashkar'. On reaching the age of superannuation, the said Nandu Solanki retired SCA/24760/2007 4/11 JUDGMENT from service in the year 1983. Since his retirement, he was paid pension according to rules. In the year 1993 he passed away. During his life time, he had submitted relevant information in connection with his family. According to the information available with the petitioners, the said Nandu Solanki had a wife in the name of Mathibai (the respondent no.2 herein) and had a son and daughters. Since the death of the said Nandu Solanki, his wife Mathibai did not apply for family pension. It has further come on record that the said Nandu Solanki was estranged from his wife and children. The whereabouts of his wife and children were not known to the petitioners. It has also come on record that the said Mathibai was residing with her brother in some village in the Chhatarpur district in the State of Madhya Pradesh and was paid some pension by the concerned Gram Panchayat. She died in the year 2006. Her son was predeceased and daughter is married away. In the year 2002, long after the death of the aforesaid Nandu Solanki, the respondent Kapilaben SCA/24760/2007 5/11 JUDGMENT approached the petitioner no.2 to claim family pension. She claimed that she was legally wedded wife of the aforesaid Nandu Solanki. She had married the said Nandu Solanki on 18th March, 1983. On 18th March, 1983 the said Nandu Solanki had informed the petitioner no.2 about his divorce from his first wife Mathibai and his marriage to the respondent Kapilaben. She claimed that on the death of the said Nandu Solanki, she was entitled to receive family pension. Her claim was not accepted. Feeling aggrieved, she filed Original Application No.586/2002 before the Tribunal. The Tribunal, by its judgment and order dated 23rd October, 2003, dismissed the said application. The Tribunal recorded that, “there is no valid document to show that the applicant is widow of late Nandubhai Mohanbhai Solanki.” Since the rejection of the aforesaid application, the respondent appears to have approached the Deputy Administrator General under the Administrator General Act, 1963. The Deputy SCA/24760/2007 6/11 JUDGMENT Administrator General has, in exercise of power conferred by Section 29 of the Act, issued impugned Certificate No.12/2006 on 30th June, 2006. Under the said certificate, the respondent Kapilaben Solanki is authorized to manage the estate of late Nandubhai Mohanbhai Solanki and to recover the amount of family pension to the extent of Rs.1,52,625=00, as directed by the Tribunal by its order dated 19th November, 2004 made on Original Application No.449/2004. The respondent had approached the Tribunal in Original Application No.449/2004 for specifying the amount of family pension to enable her to obtain succession certificate. In the said application she made a categorical statement that, “...The applicant further declares that she has not previously filed any application, writ petition or suit regarding the matter in respect of which this application has been made before any court or any other authority or any other Bench of the Tribunal, nor any such application, writ petition or suit is pending before any of them.” Evidently, that was the misleading statement made by the respondent on oath. She did not mention the factum of Original Application SCA/24760/2007 7/11 JUDGMENT No.586/2002 and the above referred decision dated 24th October, 2003. It appears that the said application was not contested. The Tribunal, by its order dated 19th November, 2004, directed that, “...No reply is filed in this OA by the respondents and the particulars asked for pertaining to the family pension payable to the applicant are not furnished by the respondents. However, in view of not prolonging the matter any further and in view of the fact that the minimum family pension being payable was Rs.375/- prior to 1996 and is Rs.1275/- p.m. with effect from 01.01.96 we dispose of this OA with observation that family pension amount can be treated as Rs.375/- prior to 01.01.96 and Rs.1275/- per month with effect from 01.01.96 and this should be considered to be amount for Succession Certificate.” The impugned succession certificate has been issued on the strength of this order dated 19th November, 2004. The respondent has now sought to recover the amount of family pension on the strength of the impugned succession certificate. Therefore, the present petition. SCA/24760/2007 8/11 JUDGMENT Mr.Mithani has appeared for the petitioners. He has challenged the above referred order of the Tribunal dated 19th November, 2004. He has submitted that the said order has been made on a presumption that the respondent was the legally wedded wife of the deceased Nandu Solanki and that she was entitled to family pension. The said order was obtained by the respondent on misrepresentation and on suppression of the fact of earlier judgment by the Tribunal made in Original Application No.586/2002. He has submitted that as a consequence the impugned certificate also requires to be set-aside. The petition is contested by Mr.Sharma. He has submitted that the challenge to the order dated 19th November, 2004 made on Original Application No.449/2004 is grossly belated and requires to be rejected on the grounds of delay, laches and acquiescence. He has also relied upon the copy of the communication dated 18th March, 1983. He has submitted that the respondent was married to the deceased Nandu Solanki prior to his retirement from service. The fact that the deceased Nandu Solanki had divorced his SCA/24760/2007 9/11 JUDGMENT wife Mathibai and was married to the respondent Kapilaben was brought to the knowledge of the petitioners authorities. The respondent is, therefore, entitled to receive family pension on the death of the late Nandu Solanki. It is not in dispute that the late Nandu Solanki was in a pensionable service and was governed by the Central Civil Services (Pension) Rules, 1972 and the Payment of Arrears of Pension (Nomination) Rules, 1983. It is also not in dispute that on the death of the said Nandu Solanki, his family was entitled to receive family pension admissible under Rule 54 of the Rules of 1972. The question really is, whether the respondent was the legally wedded wife of the deceased Nandu Solanki. As to the official record of the petitioners, the above referred Mathibai and her children were the family of the deceased Nandu Solanki. The name of the respondent Kapilaben did not appear in the official record as the legally wedded wife of the aforesaid Nandu Solanki. The claim made by the respondent SCA/24760/2007 10/11 JUDGMENT before the Tribunal as late as in the year 2002 also came to be rejected as the respondent could not prove her marriage to the deceased Nandu Solanki. This fact was not brought to the notice of the Tribunal in Original Application No.449/2004. The Tribunal proceeded on the premise that the respondent was entitled to receive family pension on the death of the said Nandu Solanki. The Tribunal was clearly in error. The order dated 19th November, 2004 was evidently made on misrepresentation by the respondent no.2 and on surmises without ascertaining the fact whether or not the respondent was entitled to family pension. The said order is, therefore, illegal, null and void. Consequently, the impugned certificate issued by the Deputy Administrator General, Baroda on 30th June, 2006 is also bad and illegal. For the aforesaid reasons, we allow this petition. The order dated 19th November, 2004 made by the Central Administrative Tribunal in Original Application No.449/2004 and the Certificate No.12/2006 dated 30th June, 2006 issued by the Deputy Administrator General, Baroda are quashed and set- SCA/24760/2007 11/11 JUDGMENT aside. The Original Application No.449/2004 is rejected. Rule is made absolute with cost. (K.M.Thaker, J.) (Ms. R.M.Doshit, J.) /moin