IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 5872 of 1999 Between: Smt.D.Anasuya @ Saidamma, S/o Late D.Yellaiah, R/o Flat No.16, A.P.Housing Board, Baghlingampally, Hyderabad District. ..... PETITIONER AND 1 The Indian Audit & Accounts Department, Office of the Accountant General ( A& E), Andhra Pradesh, Hyderabad - 500 463. 2 The Commissioner of Land Revenue/ Chief Commissioner of Land Administration, Abids, Hyderabad. .RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, Order or direction, more particularly one in THE nature of Writ of Ceritorari quashing the proceedings No.3/II/Y-70/FP-64/98-07/Urgent-717/1486 dt. 23.2.1999 issued by the 1st Respondent so far as withholding half share of the family pension and two shares of Death-cum Retirement gratuity as illegal, arbitrary and violative of the judgments of this Hon'ble Court in W.P.No.6098/95 and as confirmed in W.A.No.628/97 and violative of fundamental rights guaranteed under the constitution of India. Counsel for the Petitioner:MR.A.SATYA PRASAD Counsel for the Respondent No.1: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.2: Mrs. H.Seetha Devi. The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.5872 OF 1999 ORDER: This Writ Petition is filed seeking to declare the proceedings of the 1st respondent, dated 23.02.1999, in withholding half share of the family pension and two shares of death-cum-retirement gratuity, as arbitrary and illegal and in violation of the judgment of this Court in W.P.No.6098 of 1995 as confirmed in W.A.No.628 of 1997. 2. The petitioner claims to be the legally wedded wife of late Yellaiah and to have four sons and one daughter. Her husband was working as the Assistant Secretary General in the officer of the Commissioner of Land Revenue when he died on 10.11.1994. The petitioner would further contend that, on the death of her husband, the Government had provided compassionate appointment to her third son, that, when terminal benefits were to be paid, one Dasari Anasuya claimed that she was the wife of late Yellaiah and had filed W.P.No.6098 of 1995 for payment of terminal benefits to her. Petitioner would further state that this Court, by order dated 22.11.1996, had directed the respondents to pay arrears of maintenance as awarded in M.C.No.20 of 1992, in the Court of the Judicial First Class Magistrate, Miryalaguda, as the decree has not been set aside in appropriate proceedings and had directed the 2nd respondent to disburse the same to the petitioner. It is stated that the 2nd respondent paid Rs.37,598.20 ps. to Smt.D.Anasuya, as directed by this Court, from out of Rs.2,17,854/- payable to her . Aggrieved by the order, Smt.Dasari Anasuya is said to have filed W.A.No.628 of 1997 and the Division Bench of this Court, by its order dated 10.06.1997, had confirmed the order of the learned Single Judge holding that the said Anasuya, if married at all, was married to a person whose first wife and children were alive and her marriage with late Yellaiah was subsisting. 3 . The 2nd respondent, vide proceedings dated 20.07.1998, processed the papers and, on receipt thereof, the 1st respondent, vide proceedings dated 04.08.1998, sought certain clarifications including whether there were any children to the second wife. Pursuant to the reply given by the 2nd respondent on 11.11.1999, the 1st respondent issued proceedings dated 23.02.1999 releasing six shares of death-cum-retirement gratuity benefits, retaining two shares of death-cum-retirement gratuity benefit, releasing half share of the family pension and retaining another half share of family pension, holding that the remaining amount would be released in favour of the children of the second wife. Aggrieved thereby, the present writ petition. 4. This Court, in W.P.No.6098 of 1995 filed by Smt. D.Anasuya, held that Smt. D.Anasuya was not entitled to claim the terminal benefits due to late Yellaiah since his marriage with Smt.D.Anasuya was performed while the first marriage was subsisting. In Writ Appeal No.628 of 1997 the Division Bench of this Court, by order dated 10.06.1997, upheld the order of the learned Single Judge and observed that the relief sought for by Smt. D.Anasuya could not be granted as her entitlement was itself in doubt and could not be examined in the proceedings under Article 226 of the Constitution of India 5. In the order impugned in the writ petition, the Senior Accounts Officer, Indian Audit and Accounts Department, office of the Accountant General, relying on the Memo dated 16.11.1993, held that the children of the second wife i.e. Sri D.Prashant Babu and Sri D.Praveen Kumar were also eligible for half share of family pension and a share in the death-cum-retirement gratuity. Accordingly, half share of the family pension and two shares of the death-cum-retirement gratuity were withheld for want of clarification and the other half share of family pension and six shares of death-cum-retirement gratuity were released in favour of the petitioner and her children separately. 6. Whatever may be the claim of Smt. D.Anasuya for payment of terminal benefits to her, since her marriage was performed during the subsistence of the marriage of late Yellaiah with the petitioner herein, it is beyond dispute that even illegitimate children of the deceased are entitled for a share in the terminal benefits payable to such an employee. While the impugned order specifically indicates that Smt. D.Anasuya had two children, Sri D.Prashant Babu and D.Praveen Kumar through late Yellaiah, the affidavit filed in support of the writ petition is silent in this regard. Further the petitioner herein has not even chosen to array the said children of Smt. D.Anasuya as respondents in the writ petition. 7. This Court, by order dated 13.06.2008, permitted the petitioner to take necessary steps to file an application to implead Smt. Anasuya. Learned Counsel for the petitioner would state that, while a notice was sent to the second wife, the same was returned with the endorsement ‘address insufficient’. Since, despite being given an opportunity to implead Smt.D.Anasuya, no steps whatsoever have been taken by the petitioner either to implead her or her children as respondents in the writ petition, the Writ Petition is liable to be dismissed for non-joinder of necessary and proper parties. 8. The Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. ______________________________ RAMESH RANGANATHAN, J. Date: 03.07.2008. GS