Jharkhand High Court
Smt. Sarwari Khatoon @ Bakridan vs Ranchi University on 10 June, 2020
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.5633 of 2013
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Smt. Sarwari Khatoon @ Bakridan ... ... Petitioner Versus
1. Ranchi University
2. Vice Chancellor, Ranchi University
3. Registrar, Ranchi University
4. Principal Ranchi College, Ranchi
5. Aisha Nizami ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. A.Alam, Sr. Advocate
For the University : Mr. A.K.Mehta, Advocate
For Respondent No.5 : None
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08/10.06.2020 Heard Mr. A. Alam, learned sr. counsel for the petitioner and
Mr. A. K. Mehta, learned counsel for the University through V.C.
2. The instant application has been preferred for a direction upon the respondent to issue family pension to the petitioner as she is alone entitled to receive family pension being the first wife of the deceased employee who during his service period had also re-married respondent no.5 but the second marriage was void-ab-initio as per the service rule.
3. The case of the petitioner is that she is the first wife of deceased employee-late Dr. Qayumuddin Ansari and she lives in the same house which was owned and possessed by her husband and was given to the petitioner. It is the further case of the petitioner that out of wedlock of the petitioner with the deceased employee eight children were born. Her husband retired as Reader from the Department of Chemistry, Ranchi University, Ranchi on completion of 60 years of age in February, 2000 and thereafter, he started drawing his pension regularly. It has been specifically stated in para- 16 of the writ petition that her husband was given option for giving nomination of wife and children in the nomination paper and in response thereto, the petitioner's husband gave name of his second wife-Aisha Nezami-respondent no.5 as a nominee (wife) along with children of the first wife and the second wife, which was recorded in the service book. It is stated that after the death of her husband the petitioner filed an application before the Registrar, Ranchi University along with an affidavit about her marital status and the status of children of late Dr. Qayumuddin Ansari which was duly received by the Registrar for release of family pension in her favor but no action has been taken by the University.
4. A counter affidavit has been filed in this case stating inter-alia that while in service Dr. Qayumuddin Ansari submitted his -02- nomination form containing list of dependents wherein the name of Smt. Aisha Nezami-respondent No.5 was recorded as his wife. It has been specifically stated in paragraph no.8 of the counter affidavit that in the said nomination form the name of the petitioner does not appear. Further it has been mentioned in paragraph-9 that in the pension paper also submitted by the deceased employee, the name of his spouse has been written as Aisha Nezami-respondent no.5. As a matter of fact, all the entries have been made by the employee himself along with joint photographs with his wife Aisha Nezami. Even the pension paper also contains the specimen signature of respondent no.5 as wife along with late Dr. Qayumuddin Ansari. Subsequently, after the death of Dr. Qayumuddin Ansari, husband of the petitioner, respondent no.5-Aisha Nezami had submitted an application form for family pension on 14.05.2013 which has been duly authenticated by the Principal, Ranchi College, Ranchi on 20.05.2013 and pursuant thereto, an official order was issued on 25.04.2014 fixing family pension in the name of Aisha Nezami- respondent no.5.
5. Mr. A. Allam learned senior counsel for the petitioner submits that it is not in dispute that the petitioner is the first wife of late employee-Dr. Qayumuddin Ansari and it is also not in dispute that she was living along with her husband during his life time. He further submits that after the death of her husband, he approached the University for Payment of family pension as she is the first wife of late employee-Dr. Qayumuddin Ansari. The learned senior counsel further relied upon Bihar Pension Rule, wherein it has been categorically stated in appendix 5, part II that where an officer is survived by more than one widow, the pension will be paid to them in equal share. Learned senior counsel further referred two judgments of the Hon'ble Apex Court reported in AIR 2000 Supreme Court 2747 and AIR 2016 Supreme Court 139. Relying upon the aforesaid judgments he submits that the University is duty bound to settle the family pension in favor the petitioner and not in favor of respondent no.5. He further submits that even the children are not being paid any amount out of family pension which is received by the respondent no.5 in spite of nomination.
6. Mr. Anoop Kumar Mehta, learned counsel for the University submits that this is a disputed question of fact and the issue involved in this case need not be decided by this Court in exercise of its writ jurisdiction. He further submits that the entire -03- action of the University is in accordance with law and procedure inasmuch as the pension papers were duly filled up by deceased employee along with joint photograph of the deceased employee and the respondent no.5 and in the nomination paper also the name of Aisha Nezami-respondent no.5 appears to be as wife. In that view of the matter it cannot be said that the respondent has committed any mistake. He further contended that there was employer and employee relationship between the late employee-Dr. Qayumuddin Ansari and the University and after his death the documents sworn by him at the time of his retirement has to be abided by the University. He concluded his argument by submitting that the petitioner at best can move before the court of District Judge to procure the succession certificate for his grievance and get the pension settled in her favor.
7. After going through the documents annexed with the writ application and the counter affidavit and after hearing the arguments adduced by the learned counsel for the parties, I am of the opinion that the University has acted in accordance with law, rules & regulation of the University. From the pension papers it clearly transpires that the name of his spouse has been mentioned as Aisha Nezami and not the petitioner. In fact, all the entries have been made by the employee himself and at every entry where the name of spouse is required; the name of Aisha Nizami is mentioned. It further appears from record that the deceased employee retired in the year 2000 and this issue has never been raised by the petitioner that her name has not been mentioned in the nomination paper. It is not in dispute that as per the rule, if a person is having two wives, the family pension can be divided in equal share. However, there is nothing on record to show that the petitioner is his wife. As a matter of fact, the contention of the petitioner that she is wife of Dr. Qayumuddin Ansari is only on the basis of her voter identity card where the name of her husband is mentioned is "Abdul Qaiyum Ansari" and not "Qayumuddin Ansari". The petitioner in para-20 herself has stated that the nominee under the Indian Succession Act has a right to receive the dues on behalf of the person who dies before the nominee. The grievance of the petitioner that the respondent no.5 is not looking after her and the children as such she should also be given at least 50% share in the pension amount cannot be decided in a writ Court for the simple reason that this is a pure question of fact as to whether the petitioner is the wife of "Dr. Qayumuddin Ansari" and whether "Abdul Qaiyum Ansari" and "Dr. -04- Qayumuddin Ansari" are one and the same person. The judgments relied upon by the petitioner is not applicable in this case due to this very reason that in the instant case there is no documents with the University which can prove that the petitioner is the wife of the deceased employee-Dr. Qayumuddin Ansari. Even in the Pension claim paper which is filled up by the late employee in which the list of entire family members is mentioned; the name of this petitioner does not appear. It is true that a nomination does not in fact, override the law of succession and a nominee is a mere trustee and not a legatee but it is also settled principal of law that a question of fact unless admitted cannot be looked into by a writ court under Article 226 of the Constitution of India. Further, the University has to act as per the nomination paper filled up by the deceased employee if the same is not in contravention of any provisions of law. However, in the interest of justice the petitioner may approach the court of competent jurisdiction for redressal of her grievances.
8. In view of the aforesaid facts and circumstances of the case and the discussion made herein above, the instant writ application is dismissed on contest.
(Deepak Roshan, J.) Fahim/-