Nov - High Court of Judicature at Allahabad

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998 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 Notices were issued vide order dated 4.5.2007 to respondent no. 4 to 6. His Lordship Hon. Mr. Justice Sabhajeet Yadav vide order dated 10.4.08 directed the office to submit report about service upon aforesaid respondents and they were directed to file counter affidavit within four weeks. From the service report submitted by the office, it appears that neither acknowledge nor registered cover has been received back, therefore, in view of the High Court Rules, service is deemd to be sufficient upon respondent no. 4 to 6 who have not put in appearance in the matter. Counsel for the petitioner has also submitted that respondent no. 6- Smt. Savitri is now living with one Ramfer Yadav, resident of Pura Meharban Ka Purva, village Panchayat Gobari, Tehsil Sadar, Pratapgarh after death of her husband and has now six issues from him. 3. In support of his second prayer, the counsel for the petitioner has placed reliance upon the judgment of the Apex Court in Rameshwari Devi Vs. State of Bihar,( 2000 (1) E.S.C. page 577 (S.C.) wherein it was held that where a Govt. servant being a Hindu having two living wives, died while in service, then his second marriage was void under the Hindu law and as regards the status of second wife and children from second marriage is concerned, considering the question whether they were entitled to any share in the family pension and death cum retirement gratuity etc, , the Apex Court ruled that second wife having no status of widow is not entitled for anything. However, children from the second wife would equally share the benefits of death cum retirement gratuity and family pension till they attain their majority. In the present case, it appears that first wife of deceased employee is now living with another person.Both her sons have attained majority. One of the sons has also been given appointment by the department on compassionate ground. While the present petitioner- Smt. Raman Pandey, who is said to be the second wife, is nominated in the service records by the deceased whereas first wife Savitri Devi is not so nominated. 4. The standing counsel on the basis of paragraph no. 4 of the counter affidavit submitted that marriage of Smt. Raman Pandey-second wife, is void as has also been held in Writ Petition No. 18397 of 2002 referred to above, therefore, she is not entitled to any claim on retiral dues of the deceased govt. employee. The argument is fallacious and incorrect. The Court had not decided the status of Smt. Raman Pandey, the petitioner in that case as second wife nor had declared the marriage as void. The Court has laid emphasis that if Raman Pandey is second wife, even her marriage is void. Until and unless it is so declared, it cannot be said tobe a void marriage unless it is so declared by a court of cmpetent jurisdiction . The claim in her petition was for compassonate appointment and not for any declaration or adjudication that Smt. Raman Pandey is not the wife of the deceased. However, even if the petitioner can be said to be the second wife, in that case also she may not have any status of widow and will be entitled to anything but progenies of the deceased govt. employee through her, would equally share the benefits of death cum retirement gratuity and family pension till they attain
3 All] Smt. Shailendra Rai V. State of U.P. and others 999 majority in accordance with ratio laid down in Rameshwari Devi's case (supra),. 4. In the present case, daughter of petitioner Priyanka Pandey (Petitioner no. 1/1), who had filed impleadment application, has also attained majority. But Deepak Pandey (petitioner no. 1/2) son of the deceased with the petitioner- Smt. Raman Pandey is still a minor being 13 years of age, therefore, he is entitled to retirement benefits of the deceased employee particularly in the backdrop that Smt. Raman Pandey had been nominated as wife by the deceased in the service records for receiving his benefits. 5. For all the reasons stated above, this petition is allowed. The respondents are directed to release retiral dues in favour of minor son Deepak Pandey in the form of Fixed Deposit in a nationalised bank earning maximum interest payable to him on his attaining majority i.e. 18 years of age. The F.D. shall be made in the name of the minor Deepak Pandey, expeditiously within a period of two months from the date of presentation of a certified copy of this order and the petitioner who is natural guardian of the minor at present, will be entitled to draw interest half yearly on the deposit so made to meet expenses of education etc. of the children. No order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 28.10.2009 BEFORE THE HON’BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 43643 of 2006 Smt. Shailendra Rai Versus State of U.P. and others Counsel for the Petitioner: Sri Markandey Rai Sri D.S.P. Tripathi Counsel for the Respondents: Sri R.P. Dubey Sri C.K. Rai Sri Vipul Tripathi Sri Neeraj Tripathi Sri Prabhat Rai C.S.C. …Petitioner …Respondents Constitution of India, Art.-226-Salary Art.21, 300-A- Salary of petitioner withheld since March 2005-inspite of repeated direction R-5 neither filed counter non appeared-only after issuing warrant- although payment made through cheque- but the fact remain regarding fixing liability- R.5 and R3 both equally responsible direction for release of arrears of salary with 8% interest given- considering conduct of authorities exumplory cost imposed of Rs.2 lacs, out of which Rs.1,5000/ shall be recover from the personal benefit of R.5 an remaining 50,000/- from R3 in case of default to recover the same as arrears of land Revenue. Held: Para 22 and 25 In this case, as already discussed above, the act of respondent no. 5 in non payment of salary to the petitioner is wholly unjustified and illegal. Simultaneously, this Court cannot leave
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Page 9 and 10: 3 All] Anil Kumar Vashisth V. State
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3 All] Matloob Gaur V.State of U.P.
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3 All] Ashutosh Kumar Tripathi V.St
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Nov - High Court of Judicature at Allahabad

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