1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.2992/2006 (Smt. Heer Kanwar Vs. State of Raj. & Ors.) Date of order : May 30th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. L.D. Khatri, for the petitioner. Mr. Rameshwar Dave, Dy. Govt. Counsel. In the instant writ petition, the petitioner has prayed for directions to the respondents for providing pensionary benefits to the petitioner being wife of late Megh Singh with all consequential benefits. The petitioner is widow of Govt. servant late Megh Singh, who was physical Education Teacher under the respondent Nos. 3 and 4. Late Megh Singh died 2 while in service on 3.12.2004. Late Megh Singh was having three minor children and his wife. The respondents after death of late Megh Singh were under obligation to pay pension but the respondents denied the benefits of pension on the ground that late Megh Singh solemnized second marriage in his life time when his first wife was alive, therefore, the petitioner is disqualified for pensionary benefits and for the said denial letter dated 25.7.2005 Annexure-1 was sent by the pension department. In this writ petition, it is specifically stated by the petitioner that her husband late Megh Singh never solemnized second marriage in the life time of his first wife late Chandra Kanwar who died on 20.10.1991. As per the contention of the petitioner, late Megh Singh solemnized marriage with the petitioner on 11.11.1992 after death of first wife Chandra Kanwar, therefore, denial of family pension on the aforesaid ground is totally illegal. Further, it is submitted that one Bhom Singh filed a false complaint to snatch the property of Narayan Singh, who is father of Smt. Chandra Kanwar, who was first wife of petitioner's husband and the said complaint was filed in the month of August, 1991 before the respondent No.4 in which a departmental enquiry was conducted and show cause notice was given to the petitioner's husband on 16.8.1991. After 3 receiving the said show cause notice of the departmental enqiry late Megh Singh filed an affidavit of Smt. Chandra Kanwar in favour of Megh Singh and the said affidavit was filed in the Department by late Megh Singh in which late Smt. Chandra Kanwar specifically stated that the complaint filed by Bhoma Ram is totally false. Bhom Singh wants to take in possession the property of late Narayan Singh, father in law of late Megh Singh. In fact, late Megh Singh has not solemnized any second marriage, therefore, the complaint is totally false. It is stated by the petitioner in the writ petition that there was no issue from wedlock of late Megh Singh and Smt. Chandra Kanwar (first wife) and marriage was solemnized after death of Smt. Chandra Kanwar and late Megh Singh got three issues from the wedlock with the petitioner. Out of three, two are sons and one is daughter. After unfortunate death of Megh Singh on 3.12.2004, the respondent No.4 passed an order on 12.1.2005 as per provisions of Rule 250 (C) of the Rajasthan Civil Service Rules for the purpose of pensionary benefits in which it is specifically mentioned that no departmental enquiry/proceeding is pending even not proposed or recommended, therefore, the pension matter may be decided as early as possible. The petitioner has placed on record the said order as Annexure-6. The said communication, which is passed by the District Education Officer 4 (Secondary), Jaiselmer. The petitioner served a notice for demand of justice on 16.11.2005 upon the respondents along with relevant documents, which were received in the Office of the respondents but no response was given to the notice and no pension was sanctioned in favour of the petitioner. Therefore, while facing financial hardship, at last the petitioner has preferred the present writ petition for seeking directions to the respondents for providing pensionary benefits. Learned counsel for the petitioner argued that as per Rajasthan Civil Services (Pension) Rules, 1996, the petitioner is entitled for pension because the petitioner's husband late Megh Singh was working as Physical Teacher substantively in the respondent Department and after his death he left four members in the family including three children and wife (petitioner), therefore, the petitioner and her children are entitled for pensionary benefits because late Megh Singh was permanent employee and there was no penalty inflicted against him for any misconduct by the respondents. Further, it is argued that the allegations against late Megh Singh that he solemnized second marriage during the life time of first wife is totally false and for this also, no punishment was imposed against the petitioner's husband. Therefore, admittedly, Megh Singh was in service till his death 5 and after his death his family is entitled for family pension. Upon above grounds, the petitioner is seeking directions to the respondents for granting family pension and retiral benefits. Per contra, by way of filing reply, it is specifically stated by the respondents that in the family pension papers, the date of death of first wife of late Megh Singh was shown as 24.10.1991 whereas his marriage date with the present petitioner is shown as 27.6.1988 that is to say prior to the death of Smt. Chandra Kanwar . The marriage during the life time of first wife is void under the provisions of Hindu Marriage Act, therefore, since the marriage of petitioner was void as the same was solemnized during the life time of the first wife, therefore, in view of the provisions of Rule 68 of the Rules of 1996, the petitioner is not entitled to family pension. It is also stated in the reply that as per Rule 68 of the Rules of 1996, the petitioner is not entitled for family pension while claiming that she is wife of late Megh Singh because Megh Singh solemnized second marriage during the life time of his first wife - Smt. Chandra Kanwar. The respondents have filed a certificate dated 17.4.2007 issued by the Secretary, Gram Panchayat, Denok, P.S. Phalodi in which it is stated that there is no record available in the Gram Panchayat with regard to marriage of petitioner with 6 late Megh Singh on 27.6.1988. Similarly an affidavit of one Bhanwar Lal Paliwal, D.E.O., Secondary, Jaiselmer has also been filed in which it is stated by the Officer Incharge that the petitioner's husband was served with a charge-sheet with the allegation of bigamy and photostat copy of charge-sheet has been placed on record as Annexure-R/2. It is submitted in the additional affidavit that in the departmental proceedings, the husband of petitioner was penalized vide order dated 21.10.1994, which is placed on record as Annexure-R/3 along with the affidavit. In the said documents, it is stated that for the said misconduct of second marriage, a penalty of withdrawal of two grade increments without cumulative effect was inflicted against late Megh Singh. Meaning thereby, the husband of the petitioner late Megh Singh was in service on the date of his death and there is no dispute with regard to this fact. Therefore, in my opinion when admittedly the petitioner's husband was in service on the date of his death and minor penalty was inflicted against him, then, there is no question of denial of family pension to the petitioner. Further as per record of the case, late Megh Singh has admitted that the present petitioner is his wife, in my opinion, when it is nowhere proved by documentary evidence by the respondents that the petitioner's services were terminated. More so, it is brought to the notice of this Court that in the departmental enquiry only two grade increments were withhold, 7 therefore, in my opinion, the petitioner is very much entitled for family pension because the day on which late Megh Singh was died he was in service and admittedly there is no denial that the petitioner is wife of late Megh Singh, so also, by way of filing additional affidavit, it is stated by the respondents themselves that the services of the petitioner's husband were not terminated on the ground of solemnizing second marriage during life time of first wife. Along with the additional affidavit the order of penalty has not been produced only there is mention in Annexure-3 that the petitioner was penalized under Rule 17 of the CCA Rules for committing misconduct of second marriage. In these circumstances, in my opinion, when first wife already died on 24.10.1991 without any child then, the denial of family pension to the petitioner and minor children of late Megh Singh, who was in service on the post of Physical Teacher on the date of his death is not proper and the petitioner is legally entitled for family pension along with all retiral benefits as a wife of late Megh Singh. The contention of the respondents that petitioner is not entitled under Rule 68 of the Pension Rules is also baseless because Rule 68 supports the claim of the petitioner. Rule 68 of the Pension Rules reads as under : 8 “68. Order of Allotment (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, of 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 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 9 shares, or if there is only one widow or child, in full, to such widow or child. (c) Where the deceased Governments 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 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 ceased 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.” Accordingly, the writ petition is allowed. The respondents are directed to grant family pension to the petitioner and to pay all the retiral benefits 10 of late Megh Singh within a period of three months from the date of receipt of certified copy of this order and grant all the consequential benefits. If the case for grant of family pension will not be decided within the stipulated period, then the petitioner will be entitled for simple interest @ 6%. No order as to costs. (GOPAL KRISHAN VYAS), J. arun