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Smt. Jairaji Devi vs State Of U.P. Thru … on 25 April, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Reserved on 09.04.2018

Delivered on 25.04.2018

Court No. – 17

Case :- SERVICE SINGLE No. – 26614 of 2016

Petitioner :- Smt. Jairaji Devi

Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Medical Health Ors.

Counsel for Petitioner :- Dinesh Kumar Singh (D.K.S)

Counsel for Respondent :- C.S.C.,Prakash Chandra Baranwal

Hon. Irshad Ali, J.

Heard learned counsel for the petitioner Sri Dinesh Kumar Singh, Advocate and the learned Addl. Chief Standing Counsel on behalf of the respondent nos. 1 to 5 and Sri Prakash Chandra Barnwal, Advocate for the respondent no. 6.

Factual matrix of the case is that the petitioner claimed that she is wife of late Sant Ram Verma. According to the petitioner her marriage was solemnized with Hindu rites and rituals in the year 1956 before he joined the Government service in the Department of Medical and Health, U.P. as Assistant at Meerut. The petitioner never resided with her husband during the period he was in government service and used to reside at her maternal house at district Ambedkar Nagar to look after responsibility of her in-laws and other responsibility of her maternal house.

Late Sant Ram Verma retired from the post of Health Supervisor on 31.01.1999 on attending the age of superannuation and subsequently he died on 21.11.2011. Thereafter the petitioner applied for the family pension and submitted papers before the respondents to pay family pension in accordance with law and upon a enquiry Senior Treasury Officer, Ambedkar Nagar submitted a report dated 15.02.2012, wherein it has been recorded that the petitioner is the first wife of late Sant Ram Verma. Thereafter, the authorities intimated to the petitioner that respondent no. 6 Smt. Rajkumari Bhatnagar has been nominated in the pension papers of late Santram Verma. Therefore, the family pension cannot be paid to the petitioner. Late Santram Verma during the posting at Ghaziabad on the post of Health Supervisor (Male) had the relationship with the respondent no. 6. As per the case of the petitioner, late Sant Ram Verma had never marriage with respondent no. 6.

Learned counsel for the petitioner submitted that in view of the provisions of Hindu Marriage Act, 1955 and in view of the provisions of U.P. Government Servant Conduct Rules, 1956, late Santram Verma cannot solemnize marriage with respondent no. 6 during the life of the petitioner. He further submitted that during the life time of the marriage of the petitioner, the marriage if any with respondent no. 6 is null and void in view of Section 5 read with section 11 of the Hindu Marriage Act, 1955. He next submitted that Part-III of Rules, 1961 deals with the family pension. Sub-rule 4 of rule 7 of 1961 provides that to be nomination under sub-rule 5, pension sanctioned under this form shall be granted to the surviving widow, if the deceased was male officer or was husband. He relied upon the explanation; oldest surviving widow defines under Clause a(i) of the aforesaid rule should be constitute with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widow.

Last submission of the learned counsel for the petitioner is that sub-rule 5 of rule 7 of 1961 Rules requires the Government servant to make a nomination indicating the order in which pension sanctioned would be payable to the members of his family. The pension will be payable in accordance with the such nomination provided that nominee concerned is not ineligible on the date on which pension may be become payable to him. Sub-rule 3(e) of Rule 7 of 1961 Rules provides that pension is not payable to a person who is not a member of the deceased/officer’s family. Rule 3(3) of 1961 Rules defines ‘family’, which includes the wife in case of male officer and husband in case of female officer. The word wife defines in the above section means a legally wedded wife and does not include second wife as long as the first wife survives.

Vide Government Order dated 28.04.1986 new family pension scheme 1965, brought in existence with the approval of the Governor, automatically made applicable on the employees appointed in the Government service on or before 01.04.1965, which provides that in the event of deceased employee having two wifes then pension shall be payable to the eldest surviving widow under her death/remarriage and only after the death of first wife, next surviving widow would be entitled for pension.

Learned counsel for the petitioner relied upon the judgmenet of this Court in the case of Shakuntala Devi (Smt.) vs. Executive Engineer, Electricity Transmission Ist U.P. Electricity Board, Allahabad and another, reported in 2001(1) UPLBEC 869. He has also placed reliance upon the judgment of the Apex Court in the case of Rameshwari Devi vs. State of Bihar and others, reported in (2004) 3 ESC 67 (SC) and on another judgment in the case of G.L. Bhatia vs. Union of India and another, reported in 2001(1) ESC 135 (SC).

In rebuttal learned Addl. Chief Standing Counsel submits that the claim set up by the petitioner is not justifiable in law. The respondents no. 6 is nominee in the pension papers, therefore the claim of the petitioner is liable to be rejected from the zone of consideration and she is not entitled to get family pension.

On the other hand Sri Prakash Barnwal, Advocate appearing on behalf of respondent no. 6 submitted that family has been defined in the rules, which include the wife. The petitioner is not the legally wedded wife of late Santram Verma. The respondent no. 6 is legally and first wife. Therefore, the petitioner is not entitled to receive family pension from the State authorities. The writ petition is misconceived and is liable to be dismissed.

It is pertinent to mention here that vide order dated 08.11.2016 this Court directed to the respondents to calculate the family pension payable as per rules to the petitioner and apprise the Court with a rider that the same will not be paid to either of the parties till the next date of listing.

In pursuance to the order passed by this Court, learned Addl. Chief Standing Counsel placed an order dated 07.04.2018 before this Court, wherein calculation has been made and Rs. 7,96,053/- has been found to be paid to the right claimant. The order dated 07.04.2018 produced by the learned Addl. Chief Standing Counsel may be taken on record.

After having heard learned counsel for the parties and perusal of the material on record, the question arises for consideration before this Court is that whether the first wife of the deceased employee could deliquesces her claim of family pension upon the second wife under the rules.

It is not in dispute between the parties that the provision of the U.P. Retirement Benefit Rules, 1961 is applicable in respect of the grant of family pension. The rules have been framed in exercise of powers confined under the proviso to Article 309 of the Constitution of India. Rule 2 provides that the rules shall apply to all officers under the rule making power of the Governor.

Further, the pension provisions contained in Civil Service Regulations shall continue to apply to the officers except in so far as they are inconsistent with any of the provisions of these rules.

Sub-section (3) of rule 3 defines “family”, part relevant for the case is extracted:

“[(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)…………………..

(iv)……………………

(v)…………………….

(vi)……………………

(vii)……………………

(viii)………………….

(4)……………………

(5)…………………….

Part-II of the Rules provides for Death-cum-Retirement Gratuity and Part-III deals with Family Pension.

Rule 7(1) under Part-III provides, family pension may be granted to the family of an officer who dies. Rule 7(1) is as follows:-

“7. Family Pension.-(1) A family pension not exceeding the amount specified in sub-rule (2) below may be granted for a period of ten years to the family of an officer who dies, whether after retirement or while still in service after completion of not less than 20 years’ qualifying service:”

Sub-rule (3) of rule 7 provides that pension shall not be payable under this Part to a person mentioned thereunder and would include a widowed female member of the family, in the event of her remarriage and to a person who is not a member of the deceased officer’s family, sub-rule reads as follows:-

“(3) No pension shall be payable under this Part-

(a) to a persons mentioned in clause (b) of sub-rule (4) below, unless the pension sanctioning authority is satisfied that such person was dependent on the deceased officer for support;

(b) to an unmarried female member of the family, in the event of her marriage;

(c) to a widowed female member of the family, in the event of her remarriage;

(d) to a brother of the deceased officer on his attaining the age of 18 years; and

(e) to a person who is not a member of the deceased officer’s family.

(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

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.

(5) A Government Servant shall immediately after his confirmation, make a nomination in Form “E” indicating the order in which a pension sanctioned under his part should be payable to the members of his family, and to the extent it is valid, the pension will be payable in accordance with such nomination provided the nominee concerned 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). In case the nominee concerned is or has become ineligible to receive the pension under the said sub-rule, the pension shall be granted to the person next lower in the order in such nomination. The provisions of sub-rules (5)(b),(7) and (8) of Rule 6 shall apply in respect of nominations under this sub-rule.

(6)(a) a pension awarded under this part shall not be payable to more than one member of the deceased officer’s family at the same time.

(b) If a pension awarded under this part ceases to be payable before the expiry of the period mentioned in the proviso to sub-rule (1) on account of death or marriage of the recipient or any other causes, it will be regranted to the person next lower in the order mentioned in sub-rule (4) or to the person next lower in the order shown in the nomination under sub-rule (5), as the case may be, who satisfies the other provisions of this part.”

On perusal of the aforesaid rules it is crystal clear that under the definition of ”family’ the second wife is not included. 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 that 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.

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 concerned 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. Therefore, the scheme of the rule provides 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. Mere nomination in the paper of family pension does not entitle to the second wife to receive the family pension. She is ineligible to have been nominated under sub-rule (5), being not a member of the family.

The submission of the counsel representing respondent no. 6 is that taking a case that there is nomination in favour of respondent no. 6, the pension is payable to her in accordance with such nomination. In this regard I have referred to rules wherein under rule 9 (5) it has been provided that if the nominated person is not member of the family then he is ineligible to receive pension.

In the present case since the first wife is alive on the date on which the family pension became due, the respondent no. 6 cannot set up a claim for family pension even on the basis of the nomination in the service-book. The nomination in favour of respondent no. 6, being second wife, would be invalid, as she being not a member of the family of the Government servant as per sub-rule 3(e) of Rule 7.

In light of the provisions contained under the Hindu Marriage Act, 1955, the second marriage would be void. Therefore, the claim of respondent no. 6, who had been married with late Sant Ram Verma is ineligible for family pension.

In view of the above, the argument advanced by the learned counsel for the petitioner has merit and is liable to be accepted.

The Hindu Marriage Act came into force on 18.05.1955, 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 consistent with any of the provisions contained in this Act.”

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;”

Section 11 provides for void marriages. Section 11 is as follows:-

“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]4, 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.”

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.”

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. Thus, the marriage between the deceased government servant and the petitioner cannot be said to be a void marriage, as being solemnized prior to the enactment of the Hindu Marriage Act. Had the Government servant contracted a second marriage after the commencement of the Hindu Marriage Act, the marriage would have been void under the Hindu Marriage Act and a nullity in the eye of law, second wife would have no right of being a legally wedded wife.

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 as follows:-

“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.”

Thus, two 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, the “second wife” as referred to under the pension rules would only include second wife whose marriage is permissible under the personal law, 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.

As regards, eligibility to family pension, the pension is to be disbursed as per the provisions of the Rules. The rules clearly state that only eligible person is entitled to receive family pension but where pension awarded ceases to be payable on the death or marriage of the recipient or for any other reason, it will be regranted to the persons next lower in the order mentioned in sub-rule (4) of Rule 7. The hindu second wife would not be eligible for family pension as long as the first wife is alive and has not remarried. There is no provision in the Rules for relinquishment of family pension in favour of another person.

In the case of Shakuntala Devi (Smt.) Versus Executive Engineer, Electricity Transmission Ist U.P. Electricity Board, Allahabad and another 6 (supra), while dealing with the issue between two wifes, wherein nomination was in favour of the second wife, it has been held that the second wife cannot defeat the right of the legally wedded wife. Only legally wedded wife is entitled to receive retiral benefits as provident fund and appointment under the Dying-in-Harness Rules.

In the case of Rameshwari Devi Versus State of Bihar and others 8 (supra) the Apex Court has held that under Hindu Marriage Act a Government employee, having two living wifes, the second marriage is void. The second wife has no status of widow and therefore is not entitled to get benefit of retiral dues like gratuity and family pension as per law.

In the judgment of G.L. Bhatia vs. Union of India and another (supra) the Apex Court has held that if the nomination is made contrary to the statutory provision, the same would be inoperative. In the facts of that case the husband of the deceased employee claimed family pension, while nomination was not in his favour. The authorities rejected the claim of the husband for the reason that he was residing separately from the wife and therefore was not entitled to family pension. The Apex Court held that the husband was entitled to get family pension, where the rights of the parties are governed by the statutory provisions. The individual information contrary to the statute will not operate.

The Apex in the case of Smt. Sarbati Devi and another vs. Smt. Usha Devi, AIR 1984 SC 346 held that mere nomination made in an insurance policy does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount on the payment of which the insure gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.

At best the children from the second wife would have right to get benefit in the retiral dues of the deceased, otherwise benefit to the second wife is not permissible in law.

On perusal of the material on record it is established that the petitioner is first surviving wife of the deceased Sant Ram Verma. Thus, on the basis of the nomination in the pension papers, entitlement of respondent no. 6 is not permissible in law.

The learned counsel for the respondent no. 6 could not be able to establish that the petitioner is not the first wife. She has set up her claim that she is nominee in the record and is wife of late Sant Ram Verma. Thus, she is entitled to get pension. The claim set up by the respondent no. 6 is contrary to law, as referred above. Thus, her case for pension is rejected.

For the reasons and law referred herein above, the second wife (respondent no. 6), being second wife, cannot claim pension on the basis of nomination in the service records.

In view of the above, the respondent nos. 2 and 3 are directed to sanction the family pension to the petitioner within a period of one month from the date of production of a certified copy of this order and the other retiral amount sanctioned shall be paid to the petitioner within a period of two weeks thereafter and further monthly family pension shall be paid to the petitioner regularly. It is further directed that arrears of family pension shall be paid to the petitioner with interest of 8% per annum within a further period of two months thereafter.

With the aforesaid observations/directions, the writ petition succeeds and is allowed.

No orders as to cost.

Dated:25.04.2018

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