IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8556 of 2007 1. MOSTT.SUNAINA DEVI, wife of Late Lakshmi Thakur 2. Bikram Kumar Thakur, minor son of Late Lakshmi Thakur, at present under the guardianship of his mother namely Mostt. Sunaina Devi (the petitioner no.1) who is his well wisher and next friend Both residents of village Chamarhara, Post office Mahnar Road (Near Railway Station), PIN CODE- 844 507, P.S. Mahnar, District Vaishali, State Bihar … Petitioners Versus 1. THE STATE OF BIHAR through the Home Commissioner cum Secretary, Home Department, Government of Bihar, Patna 2. Home Commissioner cum Secretary, Home Department, Government of Bihar, Patna 3. Director General of Police and Inspector General of Police, Bihar, Patna 4. Deputy Inspector General of Police, Munger 5. Superintendent of Police, Sheikhpura, District Sheikhpura 6. Sudhir Kumar Thakur, son of late Lakshmi Thakur, resident of village Chamarhara, Post Office Mahnar Road (Near Railway Station), PIN CODE No. 844 507, P.S. Mahnar, District Vaishali, State Bihar and at present posted as the District Police/ District Constable in the district Police Force, Sheikhpura, police/ Constable No. 283 at the official residence of Superintendent of Police, Sheikhpura, Post Office/ Police Station and District Sheikhpura, State Bihar … Respondents. ----------- 2. 6.8.2009 Heard counsel for the petitioner and the counsel for the State. The prayer in this writ application of the petitioner reads as follows: “(i) For issuance of a writ in the nature of writ of mandamus or any appropriate writ(s), order(s) or direction(s) commanding the respondents for deduction of one third (1/3rd) and one-sixth (1/6th) 2 separately of the total back, current and future wages/ salary of every month of Sudhir Kumar Thakur (the respondent no.6 herein), who was appointed on compassionate grounds on account of the death of his father (Late Lakshmi Thakur) on duty in his service period and posted as the District Police/ District Constable in the District Police Force, Sheikhpura, Police Constable No. 283, at the official residence of the Superintendent of Police, Sheikhpura, District Sheikhpura, State Bihar and for payment of the said amounts to his step-mother Mostt. Sunaian Devi (the petitioner no.1) and his step- brother Bikram Kumar Thakur, minor (the petitioner no.2) respectively from today, onwards and in future also. (ii) For issuance of a writ in the nature of writ of mandamus or any appropriate writ(s), order(s) or direction(s) commanding the respondents for payment of entire advance dues amount as Rs. 89,600/- (Rupess eighty nine thousand six hundred) only taken by Late Lakshmi Thakur, Hawaldar (a Heart Patient) of District Police Force, Sheikhpura for treatment by the monthly salary of the respondent 3 no.6 (Sudhir Kumar Thakur) on instalment basis who is appointed on the compassionate grounds as the District Police/ Constable No. 286 in the District Police Force, Sheikhpura on account of death of his father (late Lakshmi Thakur, Hawaldar of District Police Force, Sheikhpura, District Sheikhpura) and if the said total or some dues amount has been paid by the family pension of the petitioner no.1, then the said paid amount should be recovered and refunded to the petitioner no.1 and the entire dues amount of late Laxmi Thakur should be paid to the Department of the Government from the salary of every month of respondent no.6 (Sudhir Kumar Thakur) on instalment basis who is fully entitled for payment of the entire dues of his father late Lakshmi Thakur, deceased, Hawaldar of District Police Force, Sheikhpura.” Counsel for the petitioners would submit that since respondent no.6 was appointed on compassionate ground he owed a duty, in view of the undertaking given at the time of his appointment, to support the petitioners who are the wife and son of the 4 deceased employee who had died in harness and that having been not done by respondent no.6 this Court must issue a mandamus on respondent no.6 and/or to the official respondents for deduction of 1/3rd of his salary for maintenance of the petitioners and other dependent family members of late Lakshmi Thakur, who had died in harness. Counsel in this context has also placed reliance on the judgment of the Apex Court in the case of U.P.State Electricity Board vs. U.P. Bizali Karamchari Sangh & anor., reported in (1997) 11 SCC 372 and a judgment of the Division Bench of this Court in the case of Shyam Sunderi Devi vs. the State of Bihar & ors., reported in 2001(1) PLJR 272. Counsel for the State, on the other hand, would point out that the petitioner now has filed this writ application with a dubious design to over-come the earlier order of this Court, inasmuch as when on an earlier occasion the official respondents had sought to recover an amount of advance taken by the deceased employee from the family pension sanctioned to the petitioner 5 no. 1 in capacity of her being a widow of late Lakshmi Thakur, the employee who had died in harness, such writ petition was dismissed by a reasoned order passed by the learned Single Judge of this Court which was also affirmed in appeal, preferred by the petitioner. It has thus been contended that the petitioners have tried to make out a new case for recovering the some amount of advance from respondent no.6 and that is how this writ application has been filed even without approaching the authorities with this particular demand. Counsel for the petitioners, on the other hand, in reply has placed reliance on the averments made in the representation filed by the petitioner no. 1 as contained in Annexure 11, to submit that the prayer therein was confined to the extent that the amount of advance of Rs. 89,600/- recovered from the petitioner no. 1 should have been recovered from respondent no.6 and that 1/3rd of his salary should be given to petitioner no.1, the wife and 1/6th of his salary should be given to petitioner no.2, the minor son 6 of the deceased employee. From the materials on record in this writ petition itself, it would be clear that it is basically a family dispute involving a money claim which is sought to be resolved by a writ petition. That apart, it would also appear from the pleadings of this case that late Lakshmi Thakur had been married to one Urmila Devi out of whom respondent no.6 is the only off-spring. The said Urmila Devi is said to have died in the life time of her husband whereafter the petitioner claims to have been married to late Lakshmi Thakur and from the said second marriage there are six issues in all. Soonafter the death of late Lakshmi Thakur a dispute arose with regard to succession of the assets including entitlement of late Lakshmi Thakur and it was amicably resolved between petitioner no.1 and respondent no.6 wherein it was agreed by both of them that while the family pension and all other retirement benefits of the deceased employee will be claimed by petitioner no.1, the respondent no.6, the step son, would only 7 confine his claim for an appointment on compassionate ground. Pursuant to such agreement between the parties which was also acted upon by them inasmuch as it is an admitted fact that all the retirement benefit was paid to the petitioner no.1 in capacity of the wife of late Lakshmi Thakur and it is she who has also been receiving also the family pension till date. As indicated above the respondent no.6 got appointment on the post of Constable by way of compassionate appointment and he is also now residing separately in Sheikhpura district with his wife and two minor children. As a matter of fact after enforcement of the aforesaid family settlement, an order came to be passed by the official respondents seeking to recover an advance of Rs. 89,600/- taken by the husband of the petitioner and when an order was passed to recover the said amount from the family pension of the petitioner, she had moved this Court by taking a plea that first of all the official respondents were 8 not entitled to recover the amount and if at all such recovery could have been made it had be made from the salary of respondent no.6 and not from the family pension of the petitioner no.1. True it is that respondent no.6 was not made party to the earlier writ petition, C.W.J.C.No. 11326/2002 filed by petitioner no. 1, but then this Court after noticing the following relief prayed by the petitioner no. 1 "(i) For issuance of an appropriate writ, order or direction commanding the respondents for quashing and setting aside of the impugned orders vide Letter/Memo nos. 180 dated 9.3.2002, 489 dated 17.7.2002 and 592 dated 24.8.2002 as contained in the Annexure-15, 16 and 17 respectively to this petition, passed/issued by the respondent no. 7 Superintendent of Police, Sheikhpura whereby and whereunder the payment of Final Full Pension of Late Lakshmi Thakur, Havildar to his wife the petitioner has been withheld/stopped/restrained/closed presently with effect from 1st July, 2002 onwards and further the petitioner has been informed/asked by the aforesaid annexures to refund the total Rs. 89,600/- (Rupees eighty nine thousand six hundred) only to the Government Fund i.e. in the office of the Superintendent of Police, Sheikhpura (Respondent no. 7) which was taken as advance amount by Late Lakshmi Thakur, Havildar, the husband of the petitioner for his 9 treatment of his heart disease in the All India Institute of Medical Science (AIIMS), New Delhi during his life period who was working as a Havildar in the District Force/Police, Sheikhpura but Sri Lakshmi Thakur, Havildar, husband of the petitioner died in harness i.e. during Government Service on duty on 29.4.1999 at Sheikhpura due to heart attack, Late Lakshmi Thakur, Havildar was no granted medical leave, so he was working his duty in Sheikhpura P.S. and was also taking medical treatment from doctors of Sheikhpura and Patna but he (Sri Lakshmi Thakur) did not go to the All India Institute of Medical Science (A.I.I.M.S.), New Delhi for treatment of his heart disease on the second time, consequently, Sri Lakshmi Thakur died on 29.4.1999 in harness. Show cause or explanation has not been asked from the petitioner by the Respondents before withholding/ stopping/closing of the payment of Final Full Pension of Late Lakshmi Thakur, Havildar, husband of the petitioner to the petitioner, which shows that actions of the Superintendent of Police, Sheikhpura and other respondents are arbitrary, illegal, malafide, extraneous, without jurisdiction and against the principles of natural justice and against the provisions of law which cannot be sustained in the eye of law. (ii) For issuance of a writ in the nature of a writ of mandamus or any appropriate writ, order or direction commanding the respondents to restore the payment of Final Full Pension of husband (Late Lakshmi Thakur) of the petitioner to his wife the petitioner without any deduction of amount of Final full Pension as before and status quo may/should be maintained/passed with regard to 10 the payment of Final Full Pension to the petitioner as prior to the withholding stoppage of her Final Full Pension. The petitioner should be paid with 18% interest on payment of arrears/dues amount of pension of the petitioner. (iii) For issuance of a writ in the nature of mandamus or any appropriate writ, order or direction commanding the respondents to condone the total amount of Rs. 89,600/- only which was taken as advance by the husband (Late Lakshmi Thakur) of the petitioner while in Government Service for his treatment of his heart disease in the All India Institute of Medical Science (A.I.I.M.S.) New Delhi but he died in harness ie. During Government Service on duty on 29.4.1999. Unfortunately, it is stated that the said total advance amount of Rs. 89,600/- was expended during his life period for his treatment and no any rest amount was saved. Now, the petitioner and his children are starving and the respondents have no jurisdiction to withhold or to stop or to recover the advance amount of Rs. 89,000/- which was taken by the husband of the petitioner during his life period for his treatment from the Final Pension granted to the petitioner. (iv) For issuance of an appropriate writ, order or direction commanding the respondents for exoneration of charge/allegation of recovery of taking total amount Rs. 89,600/- (Rupees Nine Thousand Six Hundred only) in advance by the husband (Late Lakshmi Thakur, Havildar) for his treatment of his heard disease in the All India institute of Medical Science (A.I.I.M.S.) New Delhi from the Family Pension of the petitioner. The husband died 11 due to heart attack in harness i.e. during his service on duty on 29.4.1999 and the same advance amount ahs not been refunded by the petitioner as yet. All the advance amount taken by the husband of the petitioner was expended in the treatment of husband of the petitioner. Therefore, the said advance amount taken by the husband of the petitioner for his treatment of heart disease in the All India Institute of Medical Science, New Delhi cannot be recovered from the family pension of the petitioner. The petitioner and her family members are now starving and they are in mental agony. (v) For issuance of a writ in the nature of mandamus or any appropriate order or direction commanding the respondents to pay entire arrears/dues amount of revised pension according to revised pay scale according to 5th Pay Revision Commission with effect from 1st January, 1996 to 31st December, 199 to the petitioner along with 18% thereon. (vi) For issuance of a writ in the nature of mandamus or any appropriate writ, order or direction commanding the respondents to pay the welfare Pension Allowance with effect from 1st April, 1999 onwards the rate of at total amount Rs. 6000/- only per year for studying, maintenance and welfare of the minor wards/children of the husband of the petitioner after death of husband of the petitioner, Husband (Late Lakshmi Thakur, Havildar) died in harness i.e. during Government Service working as a Havildar in District Force/Police, Sheikhpura on duty on 29.4.1999. At the rate of Rs. 500/- per month i.e. total Rs. 6000/- per year under Welfare Pension Allowance is paid to the minor wards/children of Police 12 men/Havildars from fund of the Director General of Police, Bihar, Patna allotted by the Home (Police), Bihar, Patna allotted by the Home (Police) Department, Government of Bihar, Patna for studying, maintenance and welfare of their minor wards/children of policemen/Havildars, Home (Police) Department, Government of Bihar, who died in harness. But unfortunately the said amount has not been paid to the three minor wards/children of husband of the petitioner after death of husband (Late Lakshmi Thakur) of the petitioner on 29.4.1999, which is illegal, malafide and arbitrary intension of the respondents which can not be sustained in the eye of law. (vii) For issuance of an appropriate writ, order or direction for quashing and setting aside of the other impugned actions of the respondents which are arbitrary, illegal, malafide and against the principles of natural justice and against the provisions of law. (viii) For issuance of a writ, order or direction to the respondents to award exemplary compensation/cost to the petitioner along with cost of this case. (iv) For issuance of a writ, order or direction to the respondents for any other relief or reliefs to which the petitioner to found entitled be granted to the petitioner in the facts and circumstances of the case.” Had rejected them by an order dated 22.11.2002 holding that the advance taken by the deceased husband of the petitioner no. 1 was to be adjusted from the amount payable 13 to petitioner no. 1, the wife receiving the family pension and to that extent the order of this Court dated 22.11.2002 being relevant is quoted hereinbelow: “ By the impugned orders contained in Annexures 15, 16 and 17 the authorities concerned have conveyed to the petitioner and others concerned, a decision to realize certain advances paid to the deceased husband of the petitioner while he was in service. According to learned counsel for the petitioner such advances cannot be realized unless there is a proceeding decided against the concerned employee in accordance with Rule 43(b) of the Bihar Pension Rules. This Court finds no merit in the aforesaid submission because proceeding under Rules 43(b) of the Rules is required only in case of misconduct etc. and the same is not applicable for realization of advances and other admitted dues which may be standing against a deceased employee. This writ petition is, accordingly, dismissed. It is made clear that while realizing the advances from the retiral benefits the authorities 14 must ensure that family pension payable to the widow is not reduced to a level where she cannot maintain herself. Hence, any recovery from the family pension must be in reasonable instalments.” It has to be only noted that the said order even when assailed by way of appeal in L.P.A.No. 41/2003 by the petitioner no. 1 was not interfered and this Court by a judgment dated 10.1.2003 in L.P.A.No. 41/2003 had affirmed the order of the learned Single Judge. In fact after the said recovery was made from the petitioner no.1 she had again indulged into a series of litigation by way of putting a claim that since she had to pay Rs. 89,600/- which ought to have been paid by the step-son, the respondent no.6, she must be allowed to get an adjustment. It is in this context that the petitioner no. 1 has referred to some deed of agreement in paragraph 9 of the writ application and an information petition No. 1435/2004, a proceeding u/s 107 Cr.P.C. being Case No. 53/2004, all of which would go to show that 15 this writ petition is wholly an extension to the earlier writ petition regarding recovery of Rs. 89,600/-. In such a situation, the concealment of fact by the petitioner no. 1 by not at all stating about the earlier writ petition C.W.J.C. No. 11326 of 2002 filed by her and its dismissal by this Court and also affirmance in appeal which had made petitioner no.1 personally liable for refund of the amount of advance in the pleadings of this writ petition seems to be deliberate and also good enough for dismissal of this writ petition on the ground of suppression of material facts. In this context it has to be noted that the petitioner no. 1 has made a false statement in paragraph no.24 that she had never moved this Court for the reliefs being sought in this writ application, whereas one of the reliefs prayed herein is directly the same which was also prayed by the petitioner no. 1 in C.W.J.C. No. 11326/2002 inasmuch as once again she has made a prayer for recovery of that very amount of advance of her husband 16 of Rs. 89,600/- from the respondent no. 6 through the official respondents. That apart a writ of mandamus can only be issued by this Court if there be any legal right vested in the petitioner. In the present case when the petitioner no.1 herself is drawing family pension and has also got benefit of all other retirement benefit including the entire lump sum amount of gratuity, leave encashment and general provident fund, she cannot be heard to say that respondent no.6 was under any liability to apportion the same. It is not a case that the other dependants of the deceased employee are not having access to the income of the deceased employee and that all of them are totally dependent on the salary of respondent no.6. It is this distinction on facts in the present case which would make both of the cases heavily relied by the petitioners in the case of U.P.State Electricity Board (supra) and Shyam Sunderi Devi (supra) totally distinguishable as in none of the aforesaid two cases the person claiming apportionment was also in receipt 17 of the family pension or had entered into a similar family agreement as has been reduced in writing between the petitioner no. 1 and the Respondent no. 6 and also acted upon by them inasmuch as the petitioner no. 1 had received the entire retirement benefit as well as monthly pension whereas the Respondent no. 1 had got the job on compassionate ground. That apart in a subsequent Panchayati held on 21.12.2003 between the petitioners and the Respondent no. 6 i.e. after dismissal of the writ petition and L.P.A. filed by the petitioner no. 1 it appears that the petitioner no. 1 did not get the 1/3rd of income of salary or the amount of Rs. 89,600/- being claimed in this writ petition inasmuch as the terms thereof reads as follows : - ^^vkt fnukad 21-12-03 jkst jfookj dks fuEukafdr iapksa ds le{k lq/khj Bkdqj] v:.k dqekj] larks"k dqekj fodze Bkdqj ¼12 o"kZ½ ,oa eq- lquSuk nsoh ifr Lo0 y{eh Bkdqj xkze pejgjk ds chp vkil esa ?kj dk tehu ,oa lq/khj Bkdqj dh iRuh ds fcekjh esa gq, [kpZ dk vkilh lc le>kSrk gqvk tks fuEu izdkj gSA ¼1½ lq/khj Bkdqj dh iRuh dh chekjh dks gq, [kpZ dk dqy 9000@& ¼ukS gtkj :i;k½ ja/khj flag dks lq/khj Bkdqj dks ikap eghuk ds vUnj ns nsuk gksxkA ¼2½ misUnz flag okyk dqy :i;k tks v:.k Bkdqj vnk dj fn;k gS og jkf'k Hkh lq/khj Bkdqj dks eq- lquSuk nsoh dks lqfo/kkuqlkj nsuk gksxkA dqy jde 11000@& ¼X;kjg gtkj :i;k½ ¼3½ ?kj okyk dqy tehu dk tks 50 QhV yxrk gS mlesa ikapoka fgLlk if'pe ls 10 QhV yEck vFkkZr if'pe okyk iwjk 18 ?kj lq/khj Bkdqj ds fgLls esa fn;k tkrk gSA ¼4½ lq/khj Bkdqj dks eq- lquSuk nsoh ds fy, ,d ?kj uhps cus ?kj ds tSlk fnlEcj 2004 rd cuk nsuk gksxkA tks eq- lquSuk nsoh ,oa vU; rhuksa HkkbZ ds fgLls esa cusxkA ¼5½ fnlEcj 2004 rd tc rd lq/khj Bkdqj] eq- lquSuk nsoh dks ?kj ugha cuk oSlk gh rc rd vHkhrd ftl ?kj esa lq/khj Bkdqj jgrk gS jgrk jgsxk ,oa iwoZ esa cus 'kkSpky; ,oa lh<+h dk mi;ksx djrk jgsxkA ?kj cu tkus ds ckn lq/khj Bkdqj vius if'pe okys cus ?kj esa jgsxs ,oa b/kj 'kSpky; ,oa lh<+h ij nkok ugha jgsxkA ¼6½ iwoZ esa vpy lEifr tks tehu ds eq- lquSuk nsoh ds e`R;q ds ckn dqy tehu dk pkSFkk fy[kk lq/khj Bkdqj dks fn;k tk;sxkA i{kksa dk gLrk{kj fu0& lquSuk nsoh lq/khj dqekj v:.k Bkdqj lsrks"k dq0 Bkdqj fodze dq0 Bkdqj iapksa dk gLrk{kj 1- jke thou flag] eqf[k;k] pejgjk 2- jke ,doky flag 3- j.k/khj flag 4- pUnzdsr flag 5- vksadkj ukFk flag 6- jktsUnz iz0 flag 7- pUnz'ks[kj flag 8- mes'k ikloku 9- vfuy dqekj Bkdqj 10- vejs'k dqekj lkg 11- g0 vLi"V 12- /kzqo dqekj That apart it is also an admitted fact by the petitioner no. 1 in her earlier writ petition had already stated that:- "That a succession case no. 18 of 1999, Mostt. Sunaina Devi Versus Sudhir Thakur and others was filed on 8.7.1999 in the learned court of District Judge, Vaishali at Hajipur for obtaining a succession certificate under Section 372 of the Indian Succession Act for payment of amount from Bank deposited in the account of his husband, Late Lakshmi Thakur, for payment of Family Pension, and Gratuity etc. of her husband to the 19 petitioner and for this, the petitioner deposited Rs. 4,800/- only as Court fees in this case. The succession certificate was made on 22.7.2000 by putting signature of the Learned District Judge, Hajipur (Vaishali) through which Pension, Gratuity etc. of the husband of the petitioner was paid to the petitioner." Thus it is more than apparent that the parties have already contested a succession case no. 18/1999 and have also entered into private agreement/family settlement in 1999 and 2003 and therefore the relief of getting apportionment of the salary of respondent no. 6 and/or the realization of the amount of advance of Rs. 89,600/- by the petitioner from Respondent no. 6 as prayed in