IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1081 of 2011. Date of Decision: 23rd November, 2011. _______________________________________________________ Uma Devi ….Petitioner. Versus State of H.P. and others. ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1Yes. For the petitioner: Mr. Sanjeev Bhushan, Advocate. For respondents No.1 & 2: Mr. A.K. Bansal, Additional Advocate General. For respondent No.3: Mr. Janesh Mahajan, Central Government Counsel. For respondent No.4: Mr. Lokinder Paul Thakur, Advocate. _________________________________________________________ Surinder Singh, J. (Oral). The petitioner is the first wife of deceased Ramesh Kumar Sharma, a retiree of the respondent- Department, getting pension. He died on 29.7.2007. One Sushma Sharma also laid a claim to be the widow of deceased Ramesh Kumar Sharma. Thus the family pension case got stuck-up. 2. Master Deepanshu Sharma, the son of the second wife Smt. Sushma Sharma filed OA before the erstwhile Tribunal which on its abolition was 1 Whether the reporters of Local Papers may be allowed to see the judgment? transferred to this Court and registered as CWP (T) No.1678 of 2008. Vide order dated 16.3.2010, the learned Single Judge directed Deepanshu Sharma, petitioner to supply the copy of the legal heir certificate dated 19.5.2009 to the respondents within a period of two weeks and the respondents were directed to consider his case for the release of the family pension within a period of ten days. The petitioner herein was not made a party in that petition, as such, she filed Civil Review No.50 of 2010, which came to be decided on 15.9.2010 and vide its clarificatory order/judgment petitioner Uma Devi was permitted to make a representation to the competent authority to substantiate her independent claim for retiral/pensionary benefits within three weeks and the respondents were directed to take a decision in the matter within three months from the date of production of the certified copy of the said judgment. 3. In the meantime, vide decree passed by the Civil Judge (Junior Division) Master Deepanshu Sharma was held to be the legitimate child of the deceased Ramesh Kumar from the second wife, which decree, according to learned Counsel for the petitioner, is under challenge. 4. Vide Annexure P6 respondent-Department while taking note of above facts took the final decision and recommended the case of both, i.e., petitioner Uma Devi and Master Deepanshu Sharma (minor) to third respondent, holding them entitled for the retiral benefits of late Shri Ramesh Kumar Sharma and issuance of revised order of pension and retiral benefits in their favour. 5. By means of present petition, Smt. Uma Devi, petitioner challenged Annexure P6 and prayed for its quashment and sought the mandamus directing the respondents to grant family pension to the exclusion of fourth respondent. 6. Shri Sanjeev Bhushan, learned Counsel for the petitioner referred to Government of India decision No.18 under Rule 54 of the CCS (Pension) Rules and submitted that at the best such legitimate child/children shall have no claim whatsoever to receive the family pension as long as the legally wedded wife is the recipient of the same. 7. Shri Lokinder Thakur, learned Counsel for respondent No.4 submitted that the said clarification on which the petitioner relies is only an administrative instruction, whereas, the Division Bench of this Court in Premi Devi v. Director of D.G. Boarder and others, 2007 (1) Shim.L.C. 311, has held that the first wife and the minor child/children of the second wife entitled for the family pension of the Government employees to the equal extent. 8. I have carefully considered the rival contentions of the parties. 9. Sub-rule 7 of Rule 54 of the CCS (Pension) Rules) reads as under: “7(a)(i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. (ii)On the death of a widow, her share of the family pension shall become payable to her eligible child: Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her. (b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner. Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows and/or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child. (c) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so divorced. Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares, shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child. (d) where the family pension is payable to twin children it shall be paid to such children in equal shares : Provided that when one such child ceases to be eligible his/her share shall revert to the other child and when both of them cease to be eligible the family pension shall be payable to the next eligible single child/twin children”. 10. Sub-rule 8 of Rule 54 says: “(8) (i) Except as provided in sub-rule (7), the family pension shall not be payable to more than one member of the family at the same time. (ii) If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child. (iii) family pension to the children shall be payable in the order of their birth and the younger of them will not be eligible for family pension unless the elder next above him/her has become ineligible for the grant of family pension : Provided that where the family pension is payable to twin children it shall be paid in the manner set out in clause (d) of sub-rule (7) of this rule”. 11. The harmonious reading of the above sub- rules makes it clear that sub-rule 8 carves out an exception and it shall not apply to the cases which are covered under sub-rule 7 of Rule 54 above. 12. In the instant case fourth respondent minor child has been held to be the legitimate child of late Shri Ramesh Kumar from the second wife by a decree of the civil Court as per the provisions of Section 16 of the Hindu Marriage Act, 1956. In case the entire family pension is paid to the petitioner, the interest of minor child would get jeopardized. The money is also required for his upkeep and education, and this would have been the liability of his deceased father had he been alive. 13. In Premi Devi’s case (supra), based upon the judgment of the Apex Court, in the aforesaid factual scenario held that first wife and minor children from the second wife would share the family pension of the deceased to the extent of 50:50, i.e., first wife and the child/children of the second wife to the extent of 50%. Therefore, in view of the above judicial pronouncement, the Government of India’s decision relied upon by the learned Counsel for the petitioner is of no avail. 14. For the aforesaid reason, the relief sought by the petitioner cannot be granted and the petition stands accordingly dismissed. However, it is clarified that the petitioner, herein and the fourth respondent Master Deepanshu Sharma shall share the pension of deceased Ramesh Kumar Sharma to the extent of equal share till he attains the age of majority. Thereafter, the petitioner shall be entitled for full family pension. Thus, the third respondent is hereby directed to finalize the family pension within a period of four weeks from the receipt of certified copy of this judgment and respondents No.1 and 2 are also directed to release all the retiral benefits/family pension in the above ratio to the petitioner and fourth respondent within two months thereafter. 15. The petition stands disposed of. 16. In view of the disposal of the writ petition, all pending application(s) shall also stand disposed of. November 23, 2011. (Surinder Singh), (rc) Judge.