IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.29129 of 2008 Between: 1 K. Vijaya W/o. Late K. Sura Reddy R/o. Gumpula Thirumalagiri Village, Chivemula Mandal, Nalgonda District. 2 K. Naga Jyothi D/o. Late K. Sura Reddy being Minor under the Guardianship of her natural mother K. Vijaya, i.e., 1st Petitioner, R/o. Gumpula Thirumalagiri Village, Chivemula Mandal, Nalgonda District. ..... PETITIONERS AND 1 The Government of Andhra Pradesh, rep. by District Educational Officer, Nalgonda, Nalgonda District. 2 The Head Master, Z.P.High School, Gumpula Thriumalagiri Village, Chivemula Mandal, Nalgonda District. 3 Kontham Lingamma R/o. Lakkaram Village, Huzurnagar Mandal, Nalgonda District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to call for the records relating to the order dated 15.10.2008 in O.A.No.530 of 2006 on the file of the A.P. Administrative Tribunal, Hyderabad and issue a writ, order or direction more particularly one in the nature of Writ of Certiorari and quash the same and consequently direct the respondents 1 and 2 not to pay retiremental benefits and pension of Late K. Sura Reddy to the 3rd respondent. Counsel for the Petitioner:MR.M.VENKAT RAM REDDY Counsel for the Respondent No.: GP FOR SERVICES I The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.29129 of 2008 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) Heard the learned counsel for the petitioner, learned Government Pleader for R-1 and R-2 and the learned counsel for R-3. The 3rd respondent herein filed O.A.No.530 of 2006 on the file of the A.P. Administrative Tribunal, Hyderabad, to declare that she is eligible and entitled to family pension and other pensionary benefits like Provident Fund, Gratuity, etc., of late Sri K.Sura Reddy, who died while he was in service and consequently to direct respondents 1 and 2 herein to release pensionary benefits in her favour. The petitioners herein are respondents 3 and 4 in the said O.A. The said O.A. was filed by the 3rd respondent claiming that she is the legally wedded wife of late K.Sura Reddy, who died on 02-08-2005. She also placed reliance on an order passed by the Judicial First Class Magistrate, Suryapet in Crl.M.P.No.4069 of 1995 in M.C.No.4 of 1991, in which maintenance was granted to her. It is further stated that her deceased husband also filed a petition for divorce, which was dismissed and the application filed by her to grant legal heir certificate was not granted on the ground that the 1st petitioner herein is also claiming as the wife of the deceased. After hearing both sides, the Tribunal while disposing of the said O.A. vide order dated 15-10-2008, observed as follows:- “It is for the appointing authority/pension sanctioning authority to make an enquiry into the claims and counter claims of the two wives of the deceased employee and decide the issue with regard to the person who is eligible to receive the pensionary benefits in respect of the deceased employee. Therefore, since there is no material based on which such an order can be passed by this Tribunal, this O.A. is disposed of directing the 1st and 2nd respondents to consider the issue without waiting for the judicial proceedings to conclude and pass appropriate orders with regard to pensionary and other retiral benefits pertaining to the said Sura Reddy within a period of 12 weeks from the date of receipt of a copy of this order.” Aggrieved by the aforesaid order, this writ petition has been filed contending that the 1st petitioner herein is the legally wedded wife of late K.Sura Reddy and there is no marriage between late K.Sura Reddy and the 3rd respondent and it is not possible for the pension sanctioning authority to decide the claim with regard to the marital status of the 1st petitioner and the 3rd respondent and, therefore, it is for the civil court to decide the claim of the 1st petitioner and the 3rd respondent. It is further stated that under Rule 46 (5) (d) of the A.P.Revised Pension Rules, 1980 (for short “the Rules”), retirement gratuity is not admissible to the second wife as marrying another wife (when one wife is living) without obtaining the approval of Government, is contrary to Rule 25 of the A.P. Civil Services (Conduct) Rules 1964. Under Rule 47 of the Rules, gratuity is payable to the person, who is nominated and if there is no such nomination or if such nomination is not subsisting, the gratuity shall be paid to the surviving family members in equal shares. It is further stated that the Government servant shall not nominate any person other than the member of the family. On the other hand, learned counsel for the 3rd respondent submits that there is no dispute with regard to the fact that the 3rd respondent herein is a member of the family and in fact in the maintenance case in M.C.No.4 of 1991 on the file of Judicial First Class Magistrate, Suryapet, the court had granted maintenance. It is further stated that the name of the 3rd respondent was only nominated in the service record of late K.Sura Reddy, as she is the legally wedded wife of the deceased. It is further stated that her deceased husband also filed a petition for divorce and the same was also dismissed. Neither the counsel appearing for the petitioners placed any material papers with regard to the suit said to have been pending before the civil suit to decide the marital status of the parties, nor the learned counsel for the 3rd respondent placed any material papers with regard to the alleged divorce petition said to have been filed by late K.Sura Reddy, which was said to have been dismissed. The only contention of the learned counsel for the petitioners is that the pension sanctioning authority is not entitled to decide the claim with regard to marital status of the 1st petitioner as well as the 3rd respondent for the purpose of paying retiral benefits of late K.Sura Reddy. Admittedly, the 1st petitioner is claiming that she is the legally wedded wife of late K.Sura Reddy whereas the 3rd respondent is claiming that she is the legally wedded wife of late K.Sura Reddy and that in fact, her name was also nominated in the service record of late K.Sura Reddy. In the maintenance case filed by her, maintenance amount was also granted. After enactment of the Hindu Marriage Act, 1955, the question of claim by any second wife does not arise. Insofar as the muslim law is concerned, there can be claim by the second wife also. But, in the instant case, the question that arises for consideration is as to who is entitled for the retiral benefits of late K.Sura Reddy. If the 1st petitioner is claiming that she is the legally wedded wife, it is for her to file a civil suit and get an order of the civil court, so as to enable the pension sanctioning authority to consider her claim. In the absence of any order from the competent court of law, it is for the pension sanctioning authority to conduct an enquiry and pass appropriate orders with regard to sanction of the retiral benefits. Therefore, we are of the opinion that the Tribunal has not committed any error either legal or factual, so as to interfere by this Court, as it has rightly directed the sanctioning authority to make an enquiry into the claims and counter claims of the 1st petitioner and the 3rd respondent, so as to pay pensionary and other retiral benefits of late K.Sura Reddy. Therefore, we do not see any merits in the writ petition and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J _____________________ P.SWAROOP REDDY, J Date: 05-06-2009 Prv .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{MSN}