Central Administrative Tribunal - Allahabad
Smt Neeta vs General Managar, N Rly on 11 March, 2024
OA No. 330/623 of 2018
(Reserved on 08.02.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Allahabad this, the 11th March day of March, 2024
Original Application No. 330/623 of 2018
HON'BLE MR. JUSTICE RAJIV JOSHI, MEMBER (J)
Smt. Neeta, W/o Late Ram Ratan, R/o 110A, Chandra Shekhar Azad
Marg, District-Moradabad, UP-244001
....Applicant
By Advocate: Shri Yogesh Mishra
VERSUS
1. Union of India through its Secretary, Ministry of Railway,
Government of India, New Delhi
2. The Railway Board through its Secretary, Rail Bhawan, New
Delhi
3. The General Manager, Northern Railway Baroda House, New
Delhi
4. The Divisional Rail Manager, Moradabad, Northern Railway,
Moradabad
......Respondents
By Advocate: Shri Saurabh
ORDER
1. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for setting aside the order dated 23.05.2017 passed by the Divisional Railway Manager, Northern Railway, Moradabad (Respondent-4). Further, for a Page 1 of 8 OA No. 330/623 of 2018 direction upon the respondents to pay the entire family pension, which has become due till date to the applicant along with regular payment of family pension.
2. The facts leading to this Original Application as apparent from the record that after the death of her first husband, the applicant got married with father-in-law namely Shri Ram Ratan on 11.09.2016 (just after seven days of death of her first husband), which was also registered in the office of Registrar, Hindu Marriage on 29.09.2016. The second husband of the applicant was an employee of the respondents, who superannuated on 28.02.1995 after attaining the age of superannuation. After marriage on 11.09.2016 (registered on 29.09.2016), the 2nd husband of the applicant (father of his first husband), filed an application on 13.10.2016 for recording the name of applicant (2nd wife) as a nominee in the service record for the purpose of payment of family pension as his first wife died on 27.03.2012, but the respondents have not passed any order on the said application.
3. It is further the case of the applicant as averred in original application that later on, second husband of the applicant was died on 06.11.2016 i.e., within two months from his 2nd marriage with applicant. Subsequently, the applicant approached the respondent-4, Divisional Railway Manager, Northern Railway, Moradabad for inclusion of her name as a nominee in service record for the purpose of payment of family pension of her late 2nd husband namely Late Ram Ratan (Pensioner) vide application dated 25.05.2017 followed by a reminder dated 27.10.2017. In the meantime, the Respondent-04, Divisional Railway Manager, Northern Railway, Moradabad vide order dated Page 2 of 8 OA No. 330/623 of 2018 23.05.2017, rejected the representation dated 13.10.2016, filed by the second husband of the applicant in his life time regarding change of name in service record for the purpose of payment of family pension on the ground that as per the provisions of Hindu Marriage Act, 1955, the 2nd wife of the deceased (Ram Ratan) cannot be recorded in service record, the said order is appended at page 18A-18B (Annexure-8).
4. Aggrieved by the same, the applicant has approached this Tribunal, challenging the order dated 23.05.2017 by way of this Original Application.
5. On the other hand, counter-affidavit has been filed from the side of the respondents and resisted the claim of the applicant. In counter-affidavit, it is stated that the original pensioner i.e., second husband of the applicant was superannuated on 28.02.1995 and was getting pension w.e.f., 01.03.1995. The applicant is daughter-in-law (wife of his elder son) of the original pensioner. The elder son of the original pension was died on 04.09.2016, leaving behind his wife Smt. Neeta, the applicant and two minor children and just after seven days of death of his first husband, the applicant solemnized her marriage with his father-in-law, aged about 79 years on 11.09.2016. As per death certificate, the original pensioner was suffering from chronic Kidney Disease and Sepsis and hospitalized on 20.10.2016 and ultimately died on 06.11.2016 i.e., just after one month and ten days from his alleged marriage. The marriage of the applicant with original pensioner was solemnized within a week after the death of applicant's first husband, which is neither permissible nor acceptable as per Hindu/ any Customary Law.
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OA No. 330/623 of 2018
6. It is further stated in the counter affidavit that as per provisions contained in Section 5 (iv) of the Hindu Marriage Act, 1955, the marriage may be solemnized between two Hindus, if the parties are not within the degrees of prohibited relationship. In the present case, the applicant is mother of two grandson of the original pensioner and as such, applicant and original pensioner comes within the degrees of prohibited relationship and their marriage thus becomes null and void.
7. Rejoinder-affidavit has been filed by the applicant to the said counter-affidavit, filed by the respondents, wherein it has been stated that father-in-law is not covered under the prohibited blood relation as per Hindu Marriage Act and marriage of the applicant with original pensioner has not been cancelled by any competent Court of law and as such, the applicant is entitled for family pension.
8. Shri Yogesh Mishra, learned counsel for the applicant assailed the impugned order on the ground that the applicant is legally second wedded wife of original pensioner and got marriage after the death of first wife of original pensioner. The marriage of the applicant and Ram Ratan-original pensioner has been registered in the office of Registrar Hindu Marriage on 29.09.2016 itself and same has never been cancelled by any competent court of law and as such, she is entitled for family pension on account of death of her second husband- original pensioner.
9. It is further stated by the learned counsel for the applicant that the father-in-law is not covered under the prohibited blood relation as per the provisions of Hindu Marriage Act,1955. The impugned order Page 4 of 8 OA No. 330/623 of 2018 dated 23.05.2017 was passed against the dead person, which is not tenable in the eyes of law.
10. On the other hand, Mr. Saurabh, learned counsel appearing on behalf of the respondents submitted that as per death certificate, the original pensioner was suffering from chronic Kidney Disease and sepsis and hospitalized on 20.10.2016, who died on 06.11.2016 i.e., just after one month and ten days from his alleged marriage and as such, marriage during such a serious condition that too with prohibited relationship is neither feasible nor permissible under the law.
11. It is further submitted by the learned counsel for the respondents that the marriage of the applicant with original pensioner was solemnized within a week after the death of applicant's first husband, neither which is permissible nor acceptable as per Hindu/ customary Law. The applicant and original pensioner comes within the degrees of prohibited relationship and their marriage thus becomes null and void and as such, applicant is not entitled for family pension as claimed.
12. I have heard the learned counsel for both the parties and considered the submissions so raised by them and perused the records.
13. It reflects from the records that admittedly, the applicant got 2nd marriage with her father-in-law on 11.09.2016, which was also registered in the office of Registrar, Hindu Marriage on 29.09.2016. In the impugned order dated 23.05.2017, the respondent-4 has taken plea in the impugned order that as per the provisions of Hindu Page 5 of 8 OA No. 330/623 of 2018 Marriage Act, 1955 the name of 2nd wife of the deceased-applicant, cannot be recorded in service record, whereas in the counter-affidavit, the respondents have taken a different plea that the marriage of the applicant with original pensioner was solemnized within a week after the death of applicant's first husband, which is neither permissible nor acceptable as per Hindu/ Customary Law and also the applicant and original pensioner comes within the degrees of prohibited relationship and their marriage thus becomes null and void. The ground of rejection order cannot be improved by reasons stated in the counter-affidavit.
14. Similar issue fell for consideration before the Apex Court in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16 and the Apex Court has clearly held that ' impugned order cannot be improved, by way of reasons assigned in the counter-affidavit'. The same view was reiterated by the Hon'ble Apex Court in case of Mohinder Singh Gill & Anr. Vs. the Chief Election Commissioner, New Delhi & Ors., reported in 1978 Volume 1 SCC,
405.
15. Further, Rule 54(14)(b) of the Central Civil Service (Pension) Rules, 1972, defined the term, "family" in relation to a Government servant and meant wife in case of a male Government servant or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant. In Bhagwanti v. Union of India, reported in (1989) 4 SCC 397, the said rule was challenged. The Apex Court held as under in Para 11, at page 498:
"Pension is payable on the consideration of past service rendered by the Government servant, payability of the family Page 6 of 8 OA No. 330/623 of 2018 pension is basically on the self-same consideration. Since pension is linked with past service and the avowed purpose of the pension rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. Thus, there is no justification to keep post retirement marriage out of the purview of the definition of the term "family" in rule 54(14)(b) of the Rules...."
16. The Supreme Court also held that the limitation included in rule 54(14)(b) incorporated in the definition of "family" suffered from the vice of arbitrariness and discrimination and that the same could not be supported by nexus or reasonable classification. Accordingly, the words, "provided the marriage took place before the retirement of the Government servant", in Cl.(i) and, "but shall not include son or daughter born after retirement" in Cl.(ii) of rule 54(14)(b) were declared ultra vires of Art. 14 of the Constitution of India and those were struck down.
17. Further, the impugned order has not assigned any reason and simply refused to enter the name of the applicant/2nd wife in the service record of original pensioner for the purpose of payment of family pension on the ground that as per the provisions of Hindu Marriage Act, 1955, the name of 2nd wife cannot be entered into the service record. Even the said order has been passed on the day, when the original pensioner died.
18. I find that the impugned order, being a cryptic and non- reasoned order, the same is unsustainable in law and deserves to be set aside. Accordingly, I set aside the order dated 23.05.2017 passed by the Respondent-4. Since the original pensioner was died on 06.11.2016 before passing of impugned order dated 23.05.2017 and subsequently, the applicant filed a representation on 25.05.2017, Page 7 of 8 OA No. 330/623 of 2018 therefore, the matter is remitted back upon the respondent-4, the Divisional Railway Manager, Northern Railway, Moradabad to take a fresh decision on the representation of the applicant, in accordance with the relevant rules, taking into consideration the judgment passed by the Apex Court in case of Bhagwanti Vs. Union of India (supra), by passing a speaking and reasoned order, within a period of three months from the date of receipt of a certified copy of this order.
19. With the aforesaid observations and direction, instant O.A. stands allowed.
20. All MAs pending in this O.A. also stand disposed off.
21. No order as to costs.
(Justice Rajiv Joshi) Member (J) PM/-
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