Allahabad High Court
Smt. Vimla Devi vs State Of U.P. And 4 Others on 15 September, 2022
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT - A No. - 14003 of 2022 Petitioner :- Smt. Vimla Devi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rama Yadav,Tripurari Pal Counsel for Respondent :- C.S.C. Hon'ble Ashutosh Srivastava,J.
1. Heard Sri Tripurari Pal, learned counsel for the petitioner and learned Standing Counsel for the State-Respondents.
2. Considering the nature of the order that is proposed to be passed the notice upon the Respondent No.5 is being dispensed with.
3. The writ petition has been filed assailing the order dated 25.03.2022 passed by the Respondent No.3, District Basic Education Officer, Kaushambi, whereby and whereunder a direction has been issued to the Respondent No.4, the Finance & Account Officer, Basic Education District Kaushambi, to stop the payment of family pension to the petitioner and calculate the payment of Fund, Group Insurance and other benefits already paid for its recovery from the petitioner as also the consequential order dated 29.03.2022 passed by the Respondent No.4, Finance & Account Officer, Basic Education, Kaushambi, whereby the payment of the family pension has been stopped.
4. Learned counsel for the petitioner submits that in view of the admitted facts as set out in the writ petition and in the impugned order the writ petition may be decided on merits. Learned Standing Counsel does not dispute the above proposition, accordingly the Court proceeds to decide the writ petition at the admission stage without calling for a counter affidavit.
5. The facts shorn of necessary details necessary for the adjudication of the controversy involved in the instant writ petition briefly stated are that the writ petitioner claims to be the second wife of late Manoj Kumar, who was working as Assistant Teacher in Janta Junior High School, Faridpur (Audhan) Newada District Kaushambi, The institution is an aided institution run by a private management. The said Manoj Kumar is stated to have died-in-harness on 29.09.2017 leaving behind his wife Smt. Pushpa Devi, two daughters and two sons as well as old age parents. It is the admitted case of the petitioner that the first wife of the late Manoj Kumar namely Smt. Pushpa Devi is insane since last more than 17 years and the petitioner who happens to be the real younger sister of Smt. Pushpa Devi was got married to the said Manoj Kumar by the father of the petitioner who is stated to have consented to the marriage. It is also the case of the petitioner that in the service book of late Manoj Kumar the name of the petitioner and four children have been mentioned as nominee and after the death of Manoj Kumar the family pension was being paid to the petitioner since July, 2019. It is also the case of the petitioner that she is well educated with qualification of M.A. and B. Ed. to her credit and has also qualified TET Examination. The petitioner is stated to have claimed compassionate appointment on the death of Manoj Kumar the deceased Assistant Teacher under the Dying-in-Harness Rules 1974, as a dependent of the said Manoj Kumar. When no orders were being passed on the said application the petitioner is stated to have approached this Court by means of Writ (A) No.3854 of 2021 (Smt. Vimla Devi Vs. State of U.P. & others) which writ petition was disposed of vide order dated 21.06.2021 with a direction to the District Basic Education Officer, Kaushambi to consider the claim of the petitioner and take a decision thereon within four months. The Respondent No.3, the District Basic Education Officer, Kaushambi in compliance of the order dated 21.06.2021 passed in Writ (A) No.3854 of 2021 has passed the impugned order dated 25.03.2022 directing the stoppage of the payment of family pension to the petitioner and also directed for the recovery of the amount paid by way of Fund, Group Insurance and other benefits. The Respondent No.4, the Finance & Account Officer, Kaushambi, has proceed to pass the consequential order dated 29.03.2022. Both the orders dated 25.03.2022 and 29.03.2022 are under challenge in the writ petition.
6. Learned counsel for the petitioner has assailed the impugned orders principally on the following grounds:-
The impugned orders are ex-facie illegal and against the law in as much as the Respondent No.3, the District Basic Education Officer, Kaushambi, travelled beyond the direction of this Court in Writ (A) No.3854 of 2021. The Respondent No.3 was required to consider the claim of compassionate appointment of the petitioner instead he proceeded to decide the matter regarding payment of family pension The Respondent No.3 has nowhere discussed the claim of the petitioner regrading the compassionate appointment and as such the impugned orders cannot be sustained.
The petitioner is the second wife of late Manoj Kumar and the real younger sister of the first wife. He first wife is insane since last more than 17 years and her marriage has been performed with Manoj Kumar with her consent and she is looking after the children of late Manoj Kumar and her name is entered in the service book of late Manoj Kumar. No objection was ever raised in that regard.
7. It is thus submitted that the impugned orders are liable to be set aside. The payment of family pension is liable to be resumed and her claim for compassionate appointment is liable to be considered.
8. Learned Standing Counsel in opposition to the writ petition submits that the District Basic Education Officer, Kaushambi, while passing the impugned order has considered all aspects of the matter and even got an inspection done through the Tehsildar, Chail, who recorded the statements of the family members of the deceased Manoj Kumar and concluded that late Manoj Kumar never entered into any marriage with the petitioner even though she is stated to have taken care and brought up the children of her sister Smt. Pushpa Devi, the wife of late Manoj Kumar. The conclusion so arrived at by the District Basic Education Officer cannot be faulted as the petitioner is not the legally wedded wife of the deceased and cannot be entitled to the terminal dues and family pension. It is, accordingly, prayed that the writ petition is liable to be dismissed.
9. Heard learned Counsel for the petitioner as also the learned Standing Counsel for the State-Respondents and perused the record.
10. The moot question for consideration can be enumerated as under:-
(1) Whether on the admitted facts, the petitioner who claims herself to be the second wife of the deceased Manoj Kumar even during the subsistence of the marriage and the first wife being alive is entitled to the terminal dues and family pension?
(2) Whether the amount already paid to the petitioner by way of the terminal dues of late Manoj Kumar and the family pension consequent to the death of Manoj Kumar is liable to be recovered from the petitioner?
(3) Whether the petitioner can claim compassionate appointment consequent to the death of Manoj Kumar as his second wife during the life time of the first wife and subsistence of the first marriage?
(4) Whether the impugned order can be sustained on the admitted facts?
11. The facts, inter-se parties are not in dispute. The family pension is governed by the provisions of the Civil Service Regulations and the U.P. Retirement Benefit Rules, 1961. "Family" is defined under sub Rule (3) of Rule 3, which reads as under:-
"(3) "Family" means the following relatives of an officer:
(i) wife, in the case of any male officer;
(ii) husband, in the case of a female officer;
(iii) sons (including step-children and adopted children)
(iv) unmarried and widowed daughters. (Including step-children and adopted children)
(v) brothers below the age of 18 years and unmarried and widowed sisters (including step-brothers and step-sisters);
(vi) father;
(vii) mother;
(viii) married daughters (including step-daughters), and
(iv) children of a pre-deceased son"
12. Rule 6 provides for nomination of one or more persons the right to receive any gratuity that may be sanctioned. The proviso clarifies that at the time of making nomination if the officer has a family, the nomination shall not be in favour of any person other than one or more members of the family. Rule 6 is extracted:
"6. Nomination. − (1) A Government Servant shall, as soon as he acquires or if he already holds a lien on a permanent pensionable right to receive any grauity that may be sanctioned under sub-rule (2) or sub-rule (3) of rule 5 and gratuity which after becoming admissible to him under sub-rule (1) of that rule is not paid to him before death :
Provided that if at the time of marking the Nomination the officer has a family, the nomination shall not be in favour of any person other than one or more of the members of the family."
13. Rule 7 of Part-III of the Rules provides that family pension may be granted to the family of the officer who dies, whether after retirement or while still in service after completion of not less than twenty years' qualifying service. Sub-Rule (4) of Rule 7 provides who shall be entitled to receive pension in the event the deceased employee had two wives. Sub-rule (4) is extracted:
(4) "Except as may be provided by a nomination under sub-rule (5) below:
(a) a pension sanctioned under this Part shall be granted―
(i) to the eldest surviving widow, if the deceased was a male officer or to the husband, if the deceased was a female officer;
(ii) failing the widow or husband, as the case may be, to the eldest surviving son;
(iii) failing (i) and (ii) above, to the eldest surviving unmarried daughter;
(iv) these failing, to the eldest widowed daughter; and
(b) in the event of the pension not becoming payable under clause (a) the pension may be granted―
(i) to the father;
(ii) failing the father, to the mother;
(iii) failing the father and mother both, to the eldest surviving brother below the age of 18;
(iv) these failing, to the eldest surviving unmarried sister;
(v) these failing (i) to (iv) above, to the children of a predeceased son in the order it is payable to the children of the deceased officer under clause (a) (ii), (iii) and (iv), above.
Note.―The expression "eldest surviving widow" occurring in clause (a) (i) above, should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows."
14. Claim of the petitioner towards family pension can be considered provided she falls within the scope and ambit of the definition ''family' as defined in Rules, 1961.
15. A bare perusal of the Rules, 1961, is indicative that the definition of ''family' does not include the second wife, it only refers to 'wife', and family pension, as per Rule 7(1), is granted to the member of the 'family' of an officer. Sub-rule 3(e) of Rule 7 provides that pension is not payable to a person who is not a member of the deceased/officer's family. Sub-rule 4(a)(i) provides that pension shall be sanctioned under Part III to the eldest surviving widow and the note appended to the rule clarifies the expression "eldest surviving widow" should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows.
16. Sub-rule (5) requires the Government Servant to make nomination indicating the order in which pension sanctioned would be payable to the members of his 'family', provided the nominee is not ineligible, on the date on which the pension may become payable to him or her to receive the pension under the provisions of sub-rule (3) of rule 7. Thus, the scheme of the Rules provide that in case the Government Servant leaves behind two wives, the second wife, not being a member of the family, is not eligible to family pension, as long as, the first wife survives. Further, there could not have been any nomination in favour of the second wife as she was ineligible to have been nominated under sub-rule (5), being not a member of the family of the employee, thus, ineligible to receive pension under sub- rule (3) of Rule 7.
17. Taking a case that there was nomination in favour of the second wife, the family pension would have been payable in accordance to such nomination provided the nominee is not ineligible, on the date on which the family pension became payable to her under sub-rule (3) of Rule 7. In the facts of the present case, since the first wife is alive on the date on which the family pension became due, the second wife cannot set up a claim for family pension even on the consent of the first wife, further, nomination in favour of second wife would be invalid as she being not a member of the government servants family [sub-rule (3)(e) of Rule 7].
18. The Hindu Marriage Act, 1956 came into force on 18 May 1955, the Act amended and codified the law relating to marriage among Hindus. Section 4 provides that the Act has an overriding effect. Section 4 is extracted:
"4. Overriding effect of Act.-Save as otherwise expressly provided in this Act.-
(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
19. Section 5 provides the the conditions for Hindu marriage between two Hindus and one of the condition provides that neither party should have a spouse living at the time of marriage. Section 5(i) is reproduced:-
"5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of marriage;"
20. Section 11 provides for void marriages. Section 11 reads thus:
"11. Void Marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."
21. Section 29 of the Hindu Marriage Act saves the marriages performed between Hindus before the commencement of the Act. Section 29(1) is reproduced:-
"29. Savings.-(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste."
22. Thus as per the scheme of the Hindu Marriage Act, marriage between two Hindus solemnized before the commencement of the Hindu Marriage Act, which was otherwise legal and valid, would be saved under Section 29 of the Act and would not be void under Section 11. The marriage as per the case of the petitioner between the deceased employee Manoj Kumar and the petitioner came to be solemnized after the enactment of the Hindu Marriage Act. The employee contracted the second marriage with the petitioner after the commencement of the Hindu Marriage Act, the marriage, therefore, is void and a nullity in the eye of law, petitioner would have no right of being a legally wedded wife.
23. In a Full Bench decision of this Court in the case of Nutan Kumar versus IInd Additional District Judge, Banda and others; (AIR 1994 Alld 298) in paragraph 8 of the majority judgement, the Court has observed as under:
"The appellation 'void' in relation to a juristic act, means without legal force, effect or consequence; not binding; invalid; null; worthless; cipher; useless; and ineffectual etc."
24. This Court in Shakuntala Devi (Smt.) Versus Executive Engineer, Electricity Transmission Ist U.P. Electricity Board, Allahabad and another, [2001(1) UPLBEC 869] while dealing with two wives wherein the nomination was in favour of the second wife it was held that it cannot defeat the claim of the legally wedded wife, only legally wedded wife is entitled to retiral benefits, provident fund and appointment under Dying-in-Harness Rules.
25. In Rameshwari Devi Versus State of Bihar and others, [2000(1) ESC 577 (SC)] where the Government servant being a Hindu having two wives died while in service, Supreme Court held that the second marriage was void under the Hindu law, hence, the second wife having no status of widow is not entitled to anything, however, children from the second wife would equally share the benefits of gratuity and family pension as per law.
26. Further, the U.P. Government Servant Conduct Rules, 1956, which came into force on 28th July, 1956, Rule 29 prohibits a Government Servant from bigamous marriage. Rule 29 reads thus:
"29. Bigamous marriages-(1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him."
27. Thus, Hindus cannot contract marriage after the enforcement of the Hindu Marriage Act, if any of them is having a living spouse, the marriage would be a nullity and would also not be protected under the Conduct Rules, as well as, the pension rules, therefore, it follows that the "second wife" as referred to under the Rules, 1961 would only include second wife whose marriage was otherwise permissible under the personal law or law prevalent at the time of marriage, but in the case of Hindus the second wife will have no right, whatsoever, as the law prohibits second marriage, as long as, the government servant has a spouse who is alive. Thus for harmonious construction of the Rules governing pension, wherever, the rule provides for ''wives', it has to be interpreted as per the law governing marriage as applicable to the government servant and in cases where the second marriage is void under the law, second wife will have no status of a widow of the government servant. In the facts of the case in hand admittedly the second marriage is stated to have been contracted after enforcement of the Hindu Marriage Act, therefore, the marriage is void. The petitioner would have no right in law to claim family pension, nor can she claim the status of widow of the deceased employee.
28. Having regard to the facts and circumstances brought on record it is not in dispute that the petitioner claims to be the second wife of the deceased Manoj Kumar though the impugned order dated 25.03.2022 of the Basic Education Officer records that no formal marriage took place between Manoj Kumar and the petitioner as per the report of the Naib Tehsildar, Chail, Kaushambi. In any case even if it is assumed that the petitioner did enter into a marriage with the deceased Manoj Kumar the second marriage cannot have any sanctity in law and is void as the first wife is very much alive and no divorce has taken place. The second wife does not fall within the definition of Family and cannot be entitled to the terminal dues of the deceased Manoj Kumar. The petitioner cannot be a regarded as a family member of the deceased Manoj Kumar by virtue of her being the real sister of the first wife of Manoj Kumar. Mere nomination of a stranger, who is not a family member of the deceased employee is not be entitled to family person.
29. Likewise, the petitioner cannot be entitled to compassionate appointment on the demise of Manoj Kumar in harness. The claim of the petitioner for compassionate appointment is thus not tenable in law and does not merit consideration for the reasons stated herein before. Besides the Court on the perusal of the pleadings in the writ petition finds that though grounds and pleadings have been set up with regard to compassionate appointment but no relief in that regard has been claimed by the petitioner and the relief has been confined to quashing of the impugned orders and grant of family pension.
30. Now coming to the question as to whether the respondents are entitled to the recovery of the amount of terminal dues and family pension already disbursed to the petitioner as per the impugned orders. In this regard the Court finds that the petitioner has been looking after her elder sister Smt. Pushpa Devi the lawfully wedded wife of deceased Manoj Kumar as also the children begotten from the marriage of Pushpa Devi and Manoj Kumar. The marriage of the elder daughter namely Jigyasa has also been solemnized by the petitioner. There is is no allegation that the amount received towards the terminal dues of late Manoj Kumar and the family pension has been usurped/misappropriated by the petitioner. In such circumstances, the Court is of the opinion that the amount already disbursed to the petitioner shall not be recovered from her. However, in future the family pension shall be drawn up in the name of Smt. Pushpa Devi, the legally wedded wife of late Manoj Kumar and the dependent children as per law instead of the petitioner.
31. In view of the above, the writ petition is partly allowed. The impugned order dated 25.03.2022 passed by the District Basic Education Officer, Kaushambi and the consequential order dated 29.03.2022 passed by the Finance and Accounts Officer, Basic Education, Kaushambi, so far as they direct for stoppage of family pension and recovery against the petitioner are set aside. The order dated 25.03.2022 passed by the District Basic Education Officer, Kaushambi, is modified to the extent that the family pension shall now be drawn in the name of Smt. Pushpa Devi, the legally wedded wife of late Manoj Kumar and the dependent children and the same shall be released month to month as and when the same falls due. Necessary orders to the above effect shall be passed by the District Basic Education Officer, Kaushambi, within three weeks of receipt of the certified copy of this order.
32. It is clarified that the amount already disbursed to the petitioner shall not be recovered.
Order Date :- 15.9.2022 pks (Ashutosh Srivastava,J.)