Bombay High Court
Shakuntala Gulabrao Jagtap vs The State Of Maharashtra Through Its ... on 12 July, 2017
Author: Riyaz I. Chagla
Bench: B.R. Gavai, Riyaz I. Chagla
905-WP-11839_2015.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11839 OF 2015
Smt. Shakuntala W/o. Gulabrao Jagtap
Age 61 Yrs., Occ. Housewife,
R/o. A/P. Plot No.12, Swami Samarth
Housing Society, Sonori Road, Saswad,
Tq.Purandar, Dist. Pune ...Petitioner
Versus
1. The State of Maharashtra
Thru its Secretary,
Finance Department, Mantralaya,
Mumbai 400 032.
2. The State of Maharashtra
Thru its Secretary, School Education &
Sports Dept. Mantralaya, Mumbai 32.
3. The Accountant General - I
Accounts & Entitlement, Maharashtra,
101, Maharshi Karve Road,
Bombay - 400 020.
4. The Education Officer,
Secondary, Zilla Parishad,
Pune.
5. Superintendent,
Pay and Provident Fund Unit,
Education Department,
Pune, Dist. Pune.
6. the Head Master,
Shri Shivaji Maratha High School,
& Junior College, 425, Shukrwar Peth,
Pune- 411 002,
Tq. & Dist. Pune. ...Respondents
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905-WP-11839_2015.DOC
Mr J.G. Reddy, Adv for the Petitioner.
Ms Kavita Solunke, AGP for the Respondents - State.
CORAM : B.R. GAVAI AND
RIYAZ I. CHAGLA, JJ.
DATED: 12th July 2017
PC:-
J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. Rule. Rule made returnable forthwith. Heard by consent.
2. The Petitioner vide present Petition is challenging impugned orders dated 3rd December 2003 and 17th August 2009 passed by Respondent No.3 and Respondent No.1 respectively.
3. By the impugned orders, the Petitioner has not been granted full family pension including other benefits as per the 116(6) (a) (i) & (ii) of Maharashtra Civil Services (Pension) Rules, 1982 ("said Rules"), although the Petitioner No.1 claims that she is entitled.
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4. The Petitioner is the second wife of the deceased, one Gulabrao S/o. Sakharam Jagtap, who had worked as Assistant Teacher (Music) and had retired from Respondent No.6 school. The Petitioner's deceased husband had initially got married to one Chandrabhaga (first wife) and from the said wedlock, they had conceived a female child. The Petitioner got married to Gulabrao on 16th June 1974 with the consent of the first wife. The Petitioner gave birth to two male children from the marriage with the deceased Gulabrao. The Petitioner claims to have lived with her deceased husband till his death. The deceased Gulabrao's first wife Chandrabhaga and the Petitioner were the nominees of the deceased Gulabrao and after his retirement were entitled to get family pension in equal shares under the said Rules. The first wife of the deceased Gulabrao viz. Chandrabhaga died on 25th November 1992. The daughter of the deceased Gulabrao who was born from the first wife also died on 20th December 1993. The husband of the Petitioner viz. Gulabrao died on 2nd June 1996. After the death of the Petitioner's husband, the Petitioner submitted a proposal for family pension through Respondent No.6 to Respondent No.4 along Page 3 of 9 12th July 2017 ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:59:09 ::: 905-WP-11839_2015.DOC with all requisite documents. The Petitioner also applied for heirship certificate by way of Miscellaneous Application No. 944 of 1988 before the Civil Judge, Senior Division, Pune, Tq. & Dist. Pune. The Petitioner was granted heirship certificate for the purpose of property claim and monthly pension of the deceased Gulabrao. The Petitioner submitted the proposal for family pension along with heirship certificate on a few occasions. However, the Respondent No.3 rejected the proposal by the impugned order dated 3rd December 2003 claiming that the second marriage had taken place when the first wife was alive and hence as per Hindu Marriage Act, 1955, such marriage was void and the spouse can have no legal claims under the family pension scheme for Government Servants and directed the Petitioner to obtain orders from the Finance Department, Government of Maharashtra to relax the extent Rules to enable this office to authorize family pension to the Petitioner. Respondent No.5 recommended the claim of the Petitioner by addressing letter to Respondent No.2 and specifically mentioned that the Petitioner is the nominee of the deceased Gulabrao in the pension "Form - A" (in Form - 15). Respondent No.1 by the Page 4 of 9 12th July 2017 ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:59:09 ::: 905-WP-11839_2015.DOC impugned order dated 17th August 2009, directed Respondent No.4 to challenge the heirship certificate granted by the Civil Judge, S.D., Pune in favour of the Petitioner in Appeal or revision or else the department will be required to pay pension to the Petitioner. The Petitioner not having been granted pension filed Petition in this Court is challenging the non grant of pension payable by the Respondents.
5. Shri Reddy, learned counsel for the Petitioner has relied upon the Division Bench judgment of this Court at Aurangabad in Kantabai W/o. Dhulaji Shriram & Ors. V/s Hausabai Dhulaji Shriram & Ors1. which in turn is confirmed by the Hon'ble Supreme Court in its order dated 4th September 2015 passed in Special Leave to Appeal No. 5703 of 2014. By the said judgment, the Petitioner being the second wife of the deceased had been held entitled for an equal share of family pension along with Respondent No.1, the first wife of the deceased. The Aurangabad Bench relied upon an earlier judgment of the Supreme Court in the case of 1 2015 (3) Mh.L.J. 883 dated 25th October 2013. Page 5 of 9
12th July 2017 ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:59:09 ::: 905-WP-11839_2015.DOC Badshah V/s. Urmila Badshah Godse2, which has dealt with a situation of the second wife and the requirement to give relief to the women becoming "wife" under certain circumstances and the responsiveness of law to the changing social needs. The Aurangabad Bench of this Court after relying upon the said judgment of the Hon'ble Supreme Court has concluded that, the Petitioner was entitled under Rule 116 of the said Rules.
6. Shri Reddy has submitted that the present Petition is squarely covered by the said judgment of the Aurangabad Bench of this Court, which has been confirmed by the order of the Supreme Court dated 4th September 2015. Shri Reddy has also placed reliance upon a prior judgment of this Court, (Nagpur Bench) in the case of Laxmibai Shripat Kumar V/s. Chief Executive Officer, Zilla Parishad & Ors 3. wherein in paragraph 8 of the judgment, this Court has observed that "if deceased widow is not survived by any child, her share shall not lapse but shall be paid to other widow in equal shares or 2 Criminal M.A. No. 19530 of 2013 in SLP (Cri) No. 8596 of 2013 decided on 18th October 2013.
3 2004(6) Bom C.R. 744.
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7. Shri Reddy has submitted that in the present case the second wife of the deceased is entitled to the family pension under 116 of the said Rules. The first wife had expired and her only child had also expired and hence following the said judgments referred to, the Petitioner being a widow is entitled to the family pension.
8. Smt. Solunke, learned AGP for Respondent has contended that the Petitioner, being the second wife and whose marriage had taken place when the first wife was alive, such marriage would be void under the Hindu Marriage Act, 1955 and the Petitioner is not entitled any legal claims under the said Rules. Smt. Solunke has defended the impugned orders and contended that they have been validly passed.
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9. We are of the considered view that the present Petition is squarely covered by the judgment of the Aurangabad Bench of this Court dated 25th October 2013 as upheld by the order of the Hon'ble Supreme Court dated 4th September 2015. The said judgment as well as Nagpur Bench judgment relied upon involved an identical issue as in the present Petition and the Petitioner in those cases was held to be entitled under 116 of the said Rules to be granted family pension despite the Petitioner being the second wife who was married during the lifetime of the first wife. We are of the considered view that there is no bar to the second wife's entitlement under Rule 116 of the said Rules and that the Petitioner will be entitled to grant of family pension under the said Rules.
10. We accordingly allow the Petition with the following order:
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(i) It is held that the Petitioner is entitled to full family pension including other benefits under the provisions of the Maharashtra Civil Services (Pension) Rules 1982 from the date of which the husband of the Petitioner has died, the pension be paid from the month of August 2017. The arrears be cleared within a period of six months from today.
(ii) Rule is made absolute in the aforesaid terms.
(iii) No order as to costs.
(RIYAZ I. CHAGLA J.) ( B.R. GAVAI J.)
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