IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 OP.No. 24022 of 2000(I) --------------------------------- PETITIONERS: --------------------- 1. N. JAGADAMMA, KANNEL VEEDU, CHINGOLI.P.O., ALAPPUZHA. 2. N. PRABHAKARAN, DO. DO. 3. N. KAMALAKSHI, DO. DO. 4. N. SYAMALA, DO. DO. 5. N. USHA, DO. DO. BY ADV. SRI.S.SANAL KUMAR. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO SURFACE TRANSPORT, CENTRAL SECRETARIAT, NEW DELHI. 2. THE OFFICER COMMANDING, 1585 PNR COY, GREFF, C/O. 99 APO. 3. SUDHARMA, SAJAYA BHAVANAM, CHINGOLI.P.O., ALAPPUZHA. BY ADV. SRI.N.KRISHNAMOORTHY,ADDL.ACGSC. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 40564/2000 IN O.P. NO. 24022/2000 DISMISSED 07/03/2008. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE AFFIDAVIT DTD. 08/11/1999. EXT.P.2: COPY OF THE RELEVANT EXTRACT FROM THE ELECTORAL ROLL OF THE HARIPPAD ASSEMBLY CONSTITUENCY (BOOTH NO. 103). EXT.P.3: COPY OF THE PLAINT IN O.S. NO. 367/99 BEFORE THE MUNSIFF COURT, HARIPAD. EXT.P.4: COPY OF THE ACKNOWLEDGMENT CARD DTD. 19/11/99. EXT.P.5: COPY OF THE APPLICATION FILED BY THE P.2. EXT.P.6: COPY OF THE COMMUNICATION DTD. 25/05/2000. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. P.N.RAVINDRAN,J. ========================= O.P. NO. 24022 OF 2000 ========================= Dated this the 7th day of March 2008 JUDGMENT Petitioners 1 and 3 to 5 are the sisters and the second petitioner is the brother of late Suseelan who died on 3.11.1999 while he was serving in the General Reserve Engineering Force. They have filed this Original Petition, aggrieved by the payment of the pensionary benefits due on account of the said Suseelan to the third respondent, seeking the following reliefs: i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and to recover from the third respondent the pensionary benefits due on account of the death of Suseelan, EX GS-145777x PNR wrongly paid to the third respondent. ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to disburse the pensionary benefits due on account of the death of Suseelan EX GS-145777x PNR to the petitioners. O.P.24022/2000 -2- iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to sanction family pension to the first petitioner till her death. 2. Late Suseelan was appointed as a Pioneer in the General Reserve Engineering Force on 20.9.1969. It is not in dispute that he was unmarried at the time of entry in service and had nominated his mother Smt.Narayani as his next of kin. Late Suseelan was discharged from the General Reserve Engineering Force on 14.4.1972 due to reduction in the strength of the establishment. He was reappointed as a Pioneer in the General Reserve Engineering Force on 8.11.1982. On being reappointed in the year 1982, late Suseelan had declared that he is unmarried and had nominated his mother Smt.Narayani as his next of kin. He had also declared that petitioners 1, 2 and 4 are his siblings. It appears that on 2.8.1993, late Suseelan nominated Smt.Sudharma, the third respondent herein as his next of kin, describing her as his `wife'. Suseelan passed away while in service on 3.11.1999. O.P.24022/2000 -3- 3. Shortly after Suseelan passed away, the second petitioner, his brother, submitted a representation dated 9.11.1999 along with the original of Ext.P1 affidavit pointing out that Suseelan was unmarried and that Smt.Sudharma - the third respondent herein is not his legally wedded wife. The second petitioner had, in the said affidavit, declared that Smt.Sudharma - the third respondent herein, is the legally wedded wife of Sri.Anandarajan and that three children were born to her in that marriage. The second petitioner had, in the representation dated 9.11.1999, requested that the terminal benefits payable to late Suseelan may be paid to his legal heirs named in the affidavit. On receipt of the representation dated 9.11.1999, the Officer Commanding, 62 RCC (GREF) sent Ext.P4 letter dated 19.11.1999 to 1581, Pioneer Coy (GREF) with copy to the petitioners. Ext.P4 discloses that the representation dated 9.11.1999 and the original of Ext.P1 affidavit were forwarded to the concerned authority for further action. Later, as no reply was forthcoming from respondents 1 and 2, the second petitioner submitted Ext.P5 representation dated nil re-iterating his earlier O.P.24022/2000 -4- contention that Smt.Sudharma - the third respondent, is the legally wedded wife of Sri.Anandarajan and is not the wife of late Suseelan. By Ext.P6 letter dated 25.5.2000, the Officer Commanding, 1581 Pioneer Coy (GREF) informed the second petitioner that the terminal benefits payable to late Suseelan were paid to his wife Smt.Sudharma based on the nomination made by him. 5. Sri.S.Sanal Kumar, the learned counsel appearing for the petitioner submitted that the third respondent is not the legally wedded wife of late Suseelan. The learned counsel placed reliance on the entries in Ext.P2 Electoral Roll in respect of the Harippad Assembly Constituency and Ext.P3 plaint in O.S.367/1999 on the file of the Court of the Munsiff of Harippad in support of the said contention. Against Sl.No.318 in Ext.P2, the name of Sri.Anandarajan is shown. Against Sl.No.319, the name of the third respondent is shown and she is described as the wife of Anandarajan. Ext.P3 is the plaint in O.S.367/1999 on the file of the Court of the Munsiff of Harippad, a suit instituted by the third respondent and her children against the second petitioner O.P.24022/2000 -5- herein. Though in the cause title to the plaint in O.S.367/1999, the third respondent had described herself as the wife of Suseelan, in paragraph-3 of the plaint, she had admitted in unequivocal terms that she is married to Sri.Anandarajan. The case set out by the third respondent in Ext.P3 plaint is that she was having an illicit relationship with late Suseelan. The learned counsel for the petitioner submitted with reference to the averments in Ext.P3 plaint and the contents of Ext.P2 Electoral Roll that on the terms of Rule 50, 51, 53 and 54 of the Central Civil Services Pension Rules, the third respondent is not entitled to receive the pensionary benefits payable to late Suseelan. The learned counsel contended with reference to the rules that only a legally wedded wife is entitled to receive the gratuity/family pension and that even if late Suseelan had nominated the third respondent as `his next of kin' describing her as `his wife', as the third respondent was the legally wedded wife of Sri.Anandarajan, the respondents were not justified in releasing the terminal benefits to the third respondent. 6. Sri.S.Krishnamoorthy, the learned Central Government O.P.24022/2000 -6- Standing Counsel appearing for respondents 1 and 2, on the other hand contended that the official respondents had disbursed the terminal benefits payable on account of late Sri.Suseelan to the third respondent based on the nomination made by him on 2.8.1993. The learned counsel further submitted that late Suseelan had produced a marriage agreement dated 28.1.1993 registered before the Sub Registrar, Keerikad which disclosed that the third respondent was his legally wedded wife and that it was based on the nomination made by late Suseelan that the DCRG/Family Pension and other terminal benefits were disbursed to the third respondent. The learned counsel further submitted that as the DCRG/Family Pension and other terminal benefits have already been paid to the third respondent, it is not possible to recover the same from the third respondent and to pay it over to the first petitioner, who, according to the petitioners, is the person entitled to receive the said benefits. 7. I have considered the rival contentions. Sub Rule -6 of Rule 50 of the Central Civil Services Pension Rules reads as follows: O.P.24022/2000 -7- Sub Rule - 6: For the purposes of this rule and Rules 51,52 and 53, `family', in relation to a Government Servant, means- i) wife or wives including judicially separated wife or wives in the case of a male Government servant, ii) husband, including judicially separated husband in the case of a female Government servant, iii) sons including stepsons and adopted sons, iv) unmarried daughters including step daughters and adopted daughters, v) widowed daughters including stepdaughters and adopted daughters, vi) father, including adoptive parents in the case of individuals whose personal law permits adoption. vii) mother viii) brothers below the age of eighteen years including stepbrothers, ix) unmarried sisters and widowed sisters including stepsisters, x) married daughters, and xi) children of a pre-deceased son. 8. Sub Rule 14(b) of Rule 54 of the Central Civil Services Pension Rules which deals with the Family Pension reads as O.P.24022/2000 -8- follows: 14(b): "family" in relation to a Government servant means- (i) wife in the case of a male Government servant, or husband in the case of a female Government servant. (ia) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery. (ii) son who has not attained the age of twenty five years and unmarried daughter who has not attained the age of twenty five years, including such son and daughter adopted legally; 9. It is evident from Sub Rule-6 of Rule 50 and Sub Rule-14 (b) of Rule 54 referred to above that only the legally wedded wife of a government servant is entitled to receive gratuity/family pension on the death of the government servant. As rightly contended by the learned counsel for the petitioners, the nomination contemplated under Rule-53 of the Central Civil Services Pension Rules can only be in respect of a legally wedded wife and not a stranger or a paramour. The learned counsel for the petitioner is right in contending that a government servant can nominate only his legally wedded wife as the person entitled O.P.24022/2000 -9- to receive the gratuity or family pension in the event of his death. The marriage agreement dated 28.1.1993 said to have been entered into between late Suseelan and the third respondent, who admittedly had a spouse living, is invalid and no rights flow therefrom. 10. An agreement of marriage is not recognized either in the Hindu Marriage Act 1956 or in the Special Marriages Act 1954 as a valid form of marriage. It is not in dispute that in any case, the third respondent had conceded in Ext.P3 that she is the legally wedded wife of Sri.Anandarajan. If that be so, the third respondent could not have entered into a valid marriage with late Suseelan. The marriage agreement dated 28.1.1993 does not in this view of the matter, confer the status of a legally wedded wife on the third respondent. Hence I hold that the third respondent was not entitled to receive the DCRG/Family Pension and other terminal benefits payable to or on account of late Suseelan. 11. It is not in dispute that the first petitioner who is an unmarried sister of late Suseelan is entitled to receive the O.P.24022/2000 -10- gratuity due on account of late Suseelan. On the terms of Sub Rule-6 of Rule 50, none of the petitioners are, however, entitled to receive the family pension. In the view that I have taken, I hold that the payment of DCRG/Family pension and other retirement benefits due on account of late Suseelan to the third respondent is illegal. The third respondent being the legally wedded wife of Sri.Anandarajan cannot claim to be the legally wedded wife of late Suseelan and she is not entitled to receive the gratuity/family pension or any of the terminal benefits payable to or on account of late Suseelan. I, therefore, direct respondents 1 and 2 to pay the gratuity due on account of late Suseelan to the first petitioner herein. Steps shall also be taken to recover the gratuity/family pension and the other benefits referred to in Ext.P6 from the third respondent. The payment of gratuity on account of late Suseelan to the first respondent shall be made within three months from today. Respondents 1 and 2 shall take prompt and expeditious steps within three months from today to recover the amounts paid to the third respondent by way of DCRG/Family pension and other terminal benefits referred O.P.24022/2000 -11- to in Ext.P6. After such recovery, the terminal benefits described in items (c) to (f) in Ext.P6 shall be paid over to the petitioners, if they are eligible for the same, ignoring the nomination, if any, made by late Suseelan in favour of the third respondent. The Original Petition is allowed as above. No costs. P.N.RAVINDRAN, JUDGE css/