IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3172 of 2007 MOSTT.SUNITA DEVI & ORS Versus THE UNION OF INDIA & ORS ----------- O r d e r 9. 18.3.2010. Heard Mr. Anjani Kumar, learned counsel appearing on behalf of the petitioner and Mr. B.N. Gupta, learned Central Government Counsel representing the Union of India and its authorities. Although the first wife of the deceased employee i.e. respondent no.7 had entered appearance through Mr. Rama Shankar Prasad, Advocate and who had appeared before this court on 26.2.2010 and prayed for time for filing counter affidavit but thereafter neither any counter affidavit has been filed on behalf of respondent no.7 nor Mr. Prasad has chosen to appear to assist the Court. With the consent of the parties, this matter has been taken up for disposal at the stage of admission. The petitioner who is the second wife of Late Jai Shankar Prasad, an ex Air Force employee, has raised a grievance for payment of family pension for herself and her children who are co- 2 petitioners in the writ petition by equal distribution of the family pension found admissible in between herself and respondent no.7 Mostt. Munga Devi who is undisputedly the first wife of the deceased employee. The facts of the case are rather brief. The husband of the present petitioner Sunita Devi Late Jai Shankar Prasad was appointed in the Indian Air Force on 2.12.1972 as a Junior Warrant Officer and superannuated while holding the said post with effect from 31.12.2001. It is after superannuation that Late Jai Shankar Prasad entered into a second marriage with the petitioner no.1 on 2.7.2003 even while his first wife, i.e respondent no.7 Mostt. Munga Devi was and is still alive. Late Jai Shankar Prasad expired on 28.11.2006. It is at this stage that the dispute arose as regarding the payment of family pension. According to the records available in the Air Force office, respondent no.7 was named as a nominee and as such the payment of family pension started in her favour. The present petitioners represented before the authorities for the payment of family pension but to no avail. It is in these circumstances that the 3 present writ petition came to be filed on behalf of the second wife and her three children born from the wedlock with Late Jai Shankar Prasad praying for issuance of writ in the nature of mandamus commanding the respondents to pay family pension to the petitioners together with arrears thereof and interest. Mr. Anjani Kumar, learned counsel appearing on behalf of the petitioners, submits that petitioner no.1 being the wife of Late Jai Shankar Prasad and other petitioners being the minor children born from their wedlock, had rightly claimed the share of family pension by reason of being widow and dependants of the deceased employee. Mr. Kumar does not dispute the fact that petitioner no.1 is the second wife of the deceased employee and in support of his contention, relies upon a genealogical certificate issued by the Circle Officer bearing no.171 dated 22.1.2007 (Annexure-5) certifying the family details of Late Jai Shankar Prasad. The said family genealogical certificate shows Munga Devi respondent no.7 as first wife together with her children born from the wedlock of said Munga Devi with Late Jai 4 Shankar Prasad. The genealogy also mentions the name of the present petitioner no.1 Sunita Devi as the second wife and also mentions the names of three children who are co-petitioners before this Court. Learned counsel further submits that petitioner no.1 being widow of the deceased employee and petitioner nos.2 to 4 being minor children of the deceased employee, are fully entitled to the reliefs set out in the writ petition. Mr. B.N.P. Gupta, learned Central Government Counsel representing the Union of India and its authorities opposed the contentions advanced on behalf of the petitioners and with reference to the statements made in the counter affidavit, submits that the claim of the petitioners for payment of family pension is not admissible. With reference to the statements made in the counter affidavit, it is stated that respondent no.7 has been mentioned as wife of the deceased employee Late Jai Shankar Prasad and thus on receipt of intimation of death from his widow, the payment of family pension was commenced through the State Bank of India, Bhagalpur under 5 letter dated 7.2.2007. The respondents do have admitted the receipt of the representation of the present petitioner no.1 for grant of family pension for herself but the claim has been repelled on ground that the second marriage did not have a legal sanctity and thus, the department was unable to recognize petitioner no.1 as wife of Late Jai Shankar Prasad. With reference to Air Force instructions, it is stated that marriage after retirement is not recognized for the purpose of family pension. During the course of hearing, learned counsel for the Union of India had filed the relevant Air Force instructions governing the family pension. The relevant provisions can be found at Rule 6, 7, 8 and 9 and which are reproduced hereinbelow for ready reference: “6.- „Family for the purpose of those orders will include the following relatives of the individual:- (a) Wife (b) Minor sons, and (c) Unmarried minor daughters. NOTES: (1) (b) and (c) above will include children adopted legally before retirement. (2) Marriage after retirement will not be recognized for the purpose of these orders. 7. The Pension will be admissible; (a) to a widow up to the date of death or disqualification whichever is earlier; (b) to an unmarried daughter until she attains the age of 21 years or marriage whichever 6 is earlier; NOTE: With effect from 29th March, 1978, unmarried daughters/sons will continue to get family pension up to the age of 24 years and 21 years respectively. 8. Except as provided in para 9(a), below, family pension will not be payable to more than one member of an individual‟s family at the same time. It will first be admissible to the widow and thereafter to the eligible minor children. In the event of disqualification or death of the widow, the pension will be granted to the minor children through their natural guardian. In disputed cases, however, payment will be made through a legal guardian. NOTES: If minor sons are alive, unmarried minor daughters will not be eligible for pension. The family pension will be granted to the eldest minor son in the first instance. On his disqualification/death the other minor sons will be eligible for pension according to the seniority by age. The eligibility of unmarried minor daughters for pension will start only where there is no minor son eligible for pension. In their case also the one who is the senior-most in age, has prior claim for pension. 9 (a) Where an individual is survived by more than one widows the pension will be paid to them in equal shares. On the death of a widow her share of the pension will become payable to her eligible minor child. If at the time of her death, a widow leaves no eligible minor child, the payment of her share of the pension will cease. (b) Where an individual is survived by a widow and has also left behind an eligible minor child/children from another wife, the eligible minor child will be paid the share of pension which the mother would have received if she had been alive at the time of the death of the individual.” Notes: 2 placed under Rule-6 of the instructions in very clear terms provides that 7 marriage after retirement will not be recognized for the purpose of pension. Rule-7 provides that pension would be admissible to the widow up to the death or disqualification whichever is earlier and to an unmarried daughter until the age of 21 years or marriage whichever is earlier. The note appended to the said Rule has extended the facility with effect from 29.3.1978 to unmarried daughters up to 24 years and sons up to the age of 21 years. Rule-9 is very relevant for the issue raised in the writ petition for the reason that it does recognize a situation of a presence of more than one widows and provides that if the individual is survived by more than one widow, the pension would be paid to them in equal shares. It also provides that in case of death of the widow her share would become payable to her eligible minor child. Mr. Gupta, thus, with specific reference to the Note appended at Rule-6, submits that as undoubtedly the marriage of petitioner no.1 took place after the retirement of the deceased employee, hence, the claim of the petitioners stands disqualified. He submits that though Rule- 8 9 recognized payment of family pension to more than one surviving widows, but for that also, the widow would have to qualify within the requisites of Rule-6. He thus submits that as admittedly the marriage has taken place after retirement, hence, the claim of the petitioner is fit to be rejected. Mr. Anjani Kumar, responding to the objections raised by the counsel, placed reliance on a Supreme Court judgment reported in (1989) 4 SCC 397 (Smt. Bhagwanti Vrs. The Union for India). That was a case of a widow of an Army Subedar. In that case, the marriage between Smt. Bhagwanti and her husband took place after the retirement. The said employee superannuated in August, 1947 and while he was drawing his pension, his first wife died in the year 1955 and in 1965 he got married to the petitioner Smt. Bhagwanti. The ex Army man expired in 1985. By reason of the said eventuality the widow Smt. Bhagwanti and her two minor children applied for family pension which was rejected and was subject matter of the proceedings (supra). The case was being heard along with another case involving same issue relating to a railway employee. The 9 Supreme Court was deciding the issue in the back- drop of Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972, which runs as follows: “(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, provided the marriage took place before retirement of the government servant. (ii) son who has not attained the age of twenty- one years and unmarried daughter who has not attained the age of thirty years, including such son and daughter adopted legally before retirement but shall not include son or daughter born after retirement.” The contention of the learned counsel for the Union of India was that as admittedly the spouses got married and children were born after retirement, hence, no family pension was admissible. Considering the issue in the back-drop of the provisions aforesaid, the Supreme Court held that the definition of family pension suffered from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. The provision was found unsustainable on the touchstone of Article 14 of 10 the Constitution of India and the writ petitions were allowed. Mr. Anjani Kumar thus relying upon the said judgment of the Supreme Court submits that in so far as the first impediment on the way of the petitioner that is the marriage having taken place after retirement is concerned, it stands sorted out in view of the judgment of the Supreme Court. He thus submits that once the said impediment and the objection raised by the respondent authorities is taken care of, apparently there is nothing in the way of the petitioners in getting the relief prayed in the writ petition. He submits that the limitation set out at Note-2 under Rule-6 having been declared arbitrary and discriminatory by the Supreme Court while testing similar provisions, the case of the petitioners has to be considered by the authorities on the basis of the provisions of Rule 9(a) and which in no uncertain terms provides for equal distribution of family pension amongst the parties. In response to the other arguments of the learned counsel for the Union of India that there is no document available on the record to show 11 that the petitioner no.1 is the widow of the deceased employee, Mr. Kumar submits that there are several contemporaneous documents available on the record of the proceedings which fully supports the claim of the petitioner no.1 of being the second wife of Late Jai Shankar Prasad. He refers to the family genealogy placed at Annexure-5 and submits that being a document issued by a competent authority of the State Government, its genuineness cannot be doubted. He also refers to a document which has been brought on record by way of supplementary counter affidavit placed at Annexure-8 thereof and which is the final form submitted in a case bearing Complaint case No.1456 of 2009 instituted by respondent no.7 Munga Devi against petitioner no.1 Sunita Devi and her husband Jai Shankar Prasad charging them for assaulting and insulting respondent no.7. The said complaint case was registered as first information report and the police submitted a final form on 30.6.2008. Mr. Kumar submits that the final form submitted by the police also supports the contention of the petitioner no.1 of being the second wife of the deceased employee. He submits 12 that the identity of the petitioner as the second wife of Late Jai Shankar Prasad has been found by the police after verifying the documents issued by the Notary Public, the Circle Officer, Savings Bank Account of State Bank of India, Sultanganj Branch and the Mukhiya of the Gram Panchayat. He thus submits that these are sufficient evidence to prove that the petitioner is the second wife of Late Jai Shankar Prasad. I have heard the rival submissions advanced on behalf of the parties and considered the material available on record. Undoubtedly, the limitation in the way of the petitioner in the form of Note-2 under Rule-6 of the Air Force instructions, stands removed in the light of the Supreme Court judgment passed in the case of Smt. Bhagwanti (supra). Once this limitation goes, then the case of the petitioners has to be tested in the light of the provisions of Rule-9(a), but for that the petitioner has to satisfy the competent authorities of the Air Force by placing the relevant documents supporting her identity and her contention of being the second wife of Late Jai Shankar Prasad, as also placed in the present 13 proceedings. Learned counsel for the petitioner has also, in support of his contention, relied upon a Supreme Court judgment reported in AIR 2000 SC-735 (Rameshwari Devi Vs. The State of Bihar). That was a similar case being contested by two widows of the deceased employee in terms of the provision governing the State government employees. In terms of the relevant provisions governing the employees of the State Government it was held that though the second wife would not be entitled to any pension, but her minor children would be entitled to her share until the age of attaining majority in terms of the Rules. In so far as the Rule in question is concerned, the Air force instructions do not disqualify a second wife. On the other hand, Rule 9(a) of the Rules consciously provides equal share to all the widows and further provides that in case of death of widow, her share would evolve on her eligible minor child and whereafter the share would cease. In that view of the matter, there is no impediment on the way of the present petitioners in drawing the family pension which is only 14 conditional on her establishing to be a widow wife of the deceased employee. Having regard to the circumstances as set forth, this writ petition is disposed of with a direction to the Controller of Defence Accounts to consider the claim of the petitioner in the light of the supportive documents noticed in this writ petition after issuing notice and after giving hearing to the petitioner no.1 and the respondent no.7 Munga Devi the first wife of the deceased employee, Late Jai Shankar Prasad. The petitioner would be at liberty to file all the relevant documents in support of her claim of being a widow of Late Jai Shankar Prasad. The respondent no.3 would consider and take a final decision in respect of the claim of the petitioners and dispose of the same by speaking order to be passed within three months from the of filing of the claim petition by the petitioners. Let it be made clear that in case the authority concerned chooses to reject the claim of the petitioners, it should be accompanied by a sound reasoning in the light of the settlement of issue by the Supreme Court and the documents supporting the identity of petitioners as set out 15 in the present proceedings and also taken note of in this order. The writ petition is disposed of with the directions aforesaid. ahk (Jyoti Saran, J.)