THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 6271 of 2006 Oral order: The petitioner claims that she is the wife of one Late Sri. D. Madhusudhana Rao, who was employed with the respondents and retired from service as Senior Assistant on 30.04.1994 on attaining the age of superannuation. She filed this writ petition to declare the action of respondent Nos. 1 to 3 in not releasing the eligible family pension, including the arrears thereof to her, consequent upon his death on 04.09.2003, as illegal and arbitrary. The petitioner states that her husband died leaving behind her and her daughter Smt. D. Kalyani. That her husband during his lifetime has executed a registered Will dated 22.07.1998, bequeathing his moveable and immoveable properties in her favour. As she was nominated by her husband, after his death, she submitted representation to the official respondents for grant of family pension, duly enclosing the Legal Certificate dated 22.10.2005 issued by the Mandal Revenue Officer, Eluru. However, she was informed by the official respondents that on the representation made by respondent No.4, Smt. D. Nirmala, who claimed to be the wife of her husband, and on the opinion of the Government Pleader, her name was deleted as nominee vide proceedings dated 27.06.1995 of respondent No.3, and incorporated the name of respondent No.4 as nominee. The learned counsel for the petitioner submitted that the petitioner’s husband nominated her as his nominee to receive the service benefits, and in fact, during his lifetime, he had bequeathed all his moveable and immovable properties in favour of the petitioner. However, respondent No.3 without issuing any notice and without any jurisdiction, on the representation made by respondent No.4 who allegedly claimed to be the wife of her husband, and on the basis of the legal opinion given by the Government Pleader, had passed orders dated 27.06.1995, deleting the name of the petitioner as nominee of her husband and incorporated the name of respondent No.4, which is illegal and arbitrary. Hence, he prayed the action of respondent No.3 in deleting the name of the petitioner as nominee of her husband and not paying her the eligible family pension, including arrears of pension, be declared as illegal and arbitrary, and consequently, direct the official respondent Nos. 1 to 3, to release eligible pension to the petitioner and also pay her the arrears. Respondent No.3 filed counter. The learned Government Pleader for Transport and R & B appearing on behalf of the official respondents reiterating the counter averments submitted that Sri D. Madhusudhana Rao, Senior Assistant, who the petitioner claims is her husband, retired from service on 30.04.1994 on attaining the age of superannuation. After his expiry on 04.09.2003, based on the nomination papers, in which the name of the petitioner was mentioned, the Accountant-General, A.P., Hyderabad, vide his order dated 10.04.2003, declared that the petitioner is the family pension beneficiary, as the legal heir certificate dated 22.10.2003 issued by the Mandal Revenue Officer, Eluru and the Will Deed dated 27.07.1998 produced by her confirmed that she is the legal heir of late Sri D. Madhusudhana Rao. However, it came to light that after retirement of Sri. D. Madhusudana Rao, from service, that one Smt. D. Nirmala, who was impleaded as respondent No.4, had made representation dated 16.08.1994 to the Accountant General, Andhra Pradesh, Hyderabad, for sanction of family pension claiming that she is the legally wedded wife of Sri. D. Madhusudana Rao. It is admitted in the counter that the name of Smt. D. Nirmala, was not mentioned as nominee in the pension papers. However, on the legal opinion of the Government Pleader, vide orders dated 27.06.1995, the name of the petitioner was deleted as nominee in the pension papers and instead the name of respondent No.4 was incorporated. Accordingly, the Accountant General, Andhra Pradesh, has addressed letter dated 04.09.1997 to the District Treasury Officer, Eluru to delete the name of the petitioner as family pension beneficiary from both the halves of Pension Payment Order No. 20-S-009104 stating that the name of family pension beneficiary will be intimated in due course and requested the Superintendent Engineer (R & B), Eluru, to forward family pension proposals of respondent No.4 along with all the required documents. Upon noticing this, the Deputy Director, Treasury, West Godavari, Eluru, addressed letter dated 23.07.2004 to the Accountant General, A.P. Hyderabad, whether or not to make payment of family pension to the petitioner or not. While so, the petitioner made representation dated 09.08.2004 to the Accountant General, A.P. Hyderabad, to issue family pension to her. But the Accountant General. A.P. Hyderabad, vide letter dated 17.08.2004, requested the Superintendent Engineer (R &B) to issue necessary sanction orders to release family pension to the eligible person. As both the petitioner and respondent No.4 are claiming to be the legally wedded wives of late Sri. D. Madhusudana Rao, they are unable to decide as to who should be paid the family pension. The petitioner approached Lokayukta and Upa Lokayukta on 06.12.2004, who vide orders dated 01.09.2005, as communicated vide Memo dated 23.09.2005, advised the official respondents to consider the representation of the petitioner in the light of the past litigation that ensued between late Sri. D. Madhusudana Rao and respondent No.4, and accordingly take appropriate decision, and till then to withhold the payment of family pension either to the petitioner or respondent No.4. The petitioner without giving time for the authority to decide the matter, has filed the writ petition. Hence, it is submitted that the writ petition be dismissed. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondent No. 3. Despite taking out notice to respondent No.4 by post as also substituted service, none appeared on her behalf, even though the matter was adjourned on several occasions. As directed by the Court, the officer concerned has appeared before the Court along with the relevant record. Though the petitioner contends that she is the legally wedded wife of late Sri. D. Madhusudana Rao and that during his life time, he had nominated her as his nominee to receive the pension benefits and also executed registered Will bequeathing all his moveable and immoveable property, and as such, she alone is entitled to receive the pension of her late husband, the fact remains, and as is evident from the relevant record produced before the Court, respondent No. 3 on the basis of the representation dated 16.08.1994 and the opinion dated 07.11.1994 given by the Government Pleader, vide his orders dated 27.06.1995, had deleted the name of the petitioner and incorporated the name of respondent No.4 as nominee in the papers. Respondent No.3 had passed these orders while Sri. D. Madhusudana Rao, was alive. However, it appears that Sri. D. Madhusudana Rao, who the petitioner claims is her husband, did not question the same. Even though on the basis of the claim made by the petitioner, pension was sanctioned in her favour, but since respondent No.4, made a rival claim, respondent No.3, sought advise from respondent No.2, and as advised by him vide his orders 17.08.2004 stopped payment of the pension. At this point of time, the petitioner approached the Lokayukta and Upa Lokayukta, who vide orders dated 01.09.2005, having considered the material placed before him, closed the complaint observing and holding as follows: The report of PS-2 and also PS-1 and 3 would show that they are just based on the legal opinion stated to have been obtained from the Government Pleader of West Godavari District, Eluru. The copy of the legal opinion submitted along with the report of PS-2 discloses that earlier there were cases in the Court of II Addl. Judicial first Class Magistrate, Eluru in M.C. No. 18/1973 and C.R.P. No. 25/75 arising out of the said M.C. on the file of Additional District Court, Eluru and also O.P. No. 70/74 filed by Sri. Madhusudhana Rao on the file of Sub Court, Eluru for restitution of conjugal rights. Basing on these proceedings the Government Pleader of West Godavari District, Eluru seems to have given the opinion that nomination given by Sri D. Madhusudhana Rao in favour of the complainant need not be acted upon. After obtaining the legal opinion from the Government Pleader PS-2 should have given notice to the complainant and asked her to submit her representation in the light of the legal opinion rendered by the Government Pleader dated 7.11.1994. Instead of taking adecision on his own, PS-2 could have even directed both the parties to establish their legal status in competent Civil Court. As the complainant was not given any before the Superintending Engineer (PS-2) addressed the Accountant General of A.P. (PS-1) for deleting complainant’s name as such PS-2 is advised to give opportunity to the complainant for making her representation in the light of earlier litigation between Sri Madhusudana Rao and Smt. D. Nirmala and thereafter he may take appropriate decision. Till then, it is advisable to withhold the payment of family pension to either of the claimants. From the above, it is clear that respondent No.4 appears to be the estranged wife of Sri. D. Madhusudana Rao, with whom he had matrimonial disputes and had litigated for quite some time. It is not known whether there existed any relationship of wife and husband between respondent No.4 and Sri. D. Madhusudana Rao, when he died. However, it appears that Sri. D. Madhusudana Rao married the petitioner and had a daughter to her, and whether he married her after obtaining divorce from respondent No.4, is not known, since no material is placed before this Court to that effect, and in fact, respondent No.4 also despite service of notice, had not entered her appearance to contest the matter. Be that as it may, as of now, the fact remains, the order dated 27.06.1995, passed by respondent No.3 deleting the name of the petitioner and incorporating the name of respondent No.4, remain unchallenged and is still in force. However, having regard to the fact that the legal status of both the petitioner and respondent No.4 with the late Sri. D. Madhusudana Rao, as wife and husband, is in doubt, inasmuch as both of them are claiming to be legally wedded wives, and having regard to the orders passed by the Upa Lokayukta, as indicated above, I am of the considered opinion, it would not be proper for this Court to give any directions to the official respondents to direct payment either to the petitioner or respondent No.4, until the legal status of both the petitioner and respondent No.4 with late Sri. D. Madhusudana Rao is resolved by competent civil Court. Hence, the writ petition is dismissed. The petitioner is at liberty to move the competent Court seeking declaration that she is the legally wedded wife of late Sri. D, Madhusudana Rao, and after obtaining necessary declaration to that effect, make representation to the official respondents to grant family pension in her favour. No costs. _________________ N.V. RAMANA, J. Date: 15th December, 2008. KSR