IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11374 of 2008 SMT.KULWANTI DEVI wife of late Ramdeva Singh,resident of 171, Radha Niwas, Anugrajpuri Colony, P.S. Rampur,District- Gaya. Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Gaya. 3. The Treasury Officer, Gaya. 4. The Assistant Director of Agriculture Sugar Cane Development Department, Department of Agriculture, Gaya. 5. The Accountant General, Bihar,Patna. ----------- 2 19.3.2009 Petitioner being the second wife of late Ramdeva Singh, a State Government employee, filed this writ petition claiming full family pension on death of the first wife. From the counter affidavit of Accountant General, it is clear that this refusal to give full family pension to her was communicated by the Accountant General under memo no. 428, dated 14.8.2008 to the petitioner while the writ petition was pending. The Accountant General has relied on a Circular issued by the State Government in the Department of Finance, being Circular no. 9505 dated 3.10.1964, which has been appended as Annexure A to the counter affidavit.The question now is about the correctness and the validity of the said Circular. Petitioner’s husband Ramdeva Singh retired from the Agriculture Department of the State Government on 1.12.1967. It appears that out of his first marriage he could get no child. He accordingly married the second time. It is apparent that this second marriage took place prior to 1955 when Hindu Marriage Act came 2 into force. Because the petitioner superannuated in 1967 (12 years thereafter). After his superannuation, he was drawing his pension till his death on 14.12.1975. After his death, question arose as to payment of family pension to the two widows. The Accountant General permitted division of family pension half and half in between the two widows and they were accordingly being paid. In 1982, the first wife, who was issueless, died on 18.1.1982. Since then the petitioner is inclined to get the full family pension of herself which has now ultimately by letter dated 14.8.2008 of the Accountant General been turned down in view of the Circular aforesaid. Learned counsel for the petitioner states that under Bihar Pension Rules, there is nothing statutorily provided for such a contingency, except that if there are more than one widow, pension has to be equally divided . This contingency is fully provided for in the Central Civil Services Pension Rules wherein under Rule 54(7) it is specifically provided that where family pension was being divided amongst several of the widows on death of one of them leaving behind no eligible child, the pension would then be divided amongst the surviving widows in full. In Bihar, the situation is just otherwise around if one refers to Circular of 1964, as referred to by the Accountant General. In my view, the Circular is neither logical nor free from arbitraryness. On death of a pension holder, the State is under obligation to pay family pension. That obligation cannot be reduced 3 except in contingencies statutorily provided. The division of family pension amongst several widows is for the purposes of equitable distribution amongst heirs who have right to receive the pension. Merely because the number of widows is more than one, the liability to pay family pension does not increase but the right to receive family pension is equitably divided. Thus seen, the liability to pay family pension is one aspect of the matter and the right to receive family pension is another aspect of the matter. The right to pay family pension does not increase or decrease based upon number of dependent widows of the pensioners. Thus seen, death of one of the widows would oblige the State nevertheless to pay the entire family pension to the surviving widow in case there was no eligible child from the first wife. What change is the right to receive pension . If there is more than one widow, the right to receive pension is proportionately reduced. The moment a widow dies without eligible heir, the right to receive increases but in no case the total liability of the State would either increase or diminish . It remains the same. By the death of one of the widows, the State cannot deny or the State cannot with-hold the family pension of the dead widow and thus effectively reduce its liability to pay family pension. Thus, in my view, the Circular of 1964 in so far as it deprives the surviving widow of the right to get full family pension is not legal. It is clearly ultra vires under Article 14 of the Constitution being arbitrary. Thus, the rule, as referred to above, has correctly contemplated the legal position. Similar would be the legal position so 4 far as State Government employees are concerned, that is based on common civil law. In view of the aforesaid letter of Accountant General denying full family pension to the petitioner is set aside as well as the Circular, as referred thereto to the extent, as indicated above. Petitioner is entitled to receive the balance amount of family pension, which should be calculated and paid to the petitioner within two months from the date of production of a copy of this order before the Director, Agriculture, Govt. of Bihar, Patna. With the aforesaid observation and direction, this writ petition stands disposed of. SINGH (Navaniti Pd. Singh, J.)