Shakuntala Gulabrao Jagtap vs The State Of Maharashtra Through ...
2017 Latest Caselaw 4383 Bom

                                                      905-WP-11839_2015.DOC




 Jsn



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                   WRIT PETITION NO. 11839 OF 2015

 Smt. Shakuntala W/o. Gulabrao Jagtap
 Age 61 Yrs., Occ. Housewife,
 R/o. A/P. Plot No.12, Swami Samarth
 Housing Society, Sonori Road, Saswad,
 Tq.Purandar, Dist. Pune                                      ...Petitioner

         Versus

 1. The State of Maharashtra
 Thru its Secretary,
 Finance Department, Mantralaya,
 Mumbai 400 032.
 2. The State of Maharashtra
 Thru its Secretary, School Education &
 Sports Dept. Mantralaya, Mumbai 32.
 3. The Accountant General - I
 Accounts & Entitlement, Maharashtra,
 101, Maharshi Karve Road,
 Bombay - 400 020.
 4. The Education Officer,
 Secondary, Zilla Parishad,
 Pune.
 5. Superintendent,
 Pay and Provident Fund Unit,
 Education Department,
 Pune, Dist. Pune.
 6. the Head Master,
 Shri Shivaji Maratha High School,
 & Junior College, 425, Shukrwar Peth,
 Pune- 411 002,
 Tq. & Dist. Pune.                                      ...Respondents



                                Page 1 of 9
                               12th July 2017


::: Uploaded on - 20/07/2017                    ::: Downloaded on - 28/08/2017 09:59:09 :::
                                                            905-WP-11839_2015.DOC




 Mr J.G. Reddy, Adv for the Petitioner.
 Ms Kavita Solunke, AGP for the Respondents - State.


                               CORAM : B.R. GAVAI AND
                                       RIYAZ I. CHAGLA, JJ.

DATED: 12th July 2017 PC:-

J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. Rule. Rule made returnable forthwith. Heard by

consent.

2. The Petitioner vide present Petition is challenging

impugned orders dated 3rd December 2003 and 17th August

2009 passed by Respondent No.3 and Respondent No.1

respectively.

3. By the impugned orders, the Petitioner has not been

granted full family pension including other benefits as per the

116(6) (a) (i) & (ii) of Maharashtra Civil Services (Pension)

Rules, 1982 ("said Rules"), although the Petitioner No.1

claims that she is entitled.

12th July 2017

905-WP-11839_2015.DOC

4. The Petitioner is the second wife of the deceased, one

Gulabrao S/o. Sakharam Jagtap, who had worked as

Assistant Teacher (Music) and had retired from Respondent

No.6 school. The Petitioner's deceased husband had initially

got married to one Chandrabhaga (first wife) and from the

said wedlock, they had conceived a female child. The

Petitioner got married to Gulabrao on 16th June 1974 with

the consent of the first wife. The Petitioner gave birth to two

male children from the marriage with the deceased Gulabrao.

The Petitioner claims to have lived with her deceased

husband till his death. The deceased Gulabrao's first wife

Chandrabhaga and the Petitioner were the nominees of the

deceased Gulabrao and after his retirement were entitled to

get family pension in equal shares under the said Rules. The

first wife of the deceased Gulabrao viz. Chandrabhaga died

on 25th November 1992. The daughter of the deceased

Gulabrao who was born from the first wife also died on 20th

December 1993. The husband of the Petitioner viz. Gulabrao

died on 2nd June 1996. After the death of the Petitioner's

husband, the Petitioner submitted a proposal for family

pension through Respondent No.6 to Respondent No.4 along

12th July 2017

905-WP-11839_2015.DOC

with all requisite documents. The Petitioner also applied for

heirship certificate by way of Miscellaneous Application No.

944 of 1988 before the Civil Judge, Senior Division, Pune, Tq.

& Dist. Pune. The Petitioner was granted heirship certificate

for the purpose of property claim and monthly pension of the

deceased Gulabrao. The Petitioner submitted the proposal for

family pension along with heirship certificate on a few

occasions. However, the Respondent No.3 rejected the

proposal by the impugned order dated 3rd December 2003

claiming that the second marriage had taken place when the

first wife was alive and hence as per Hindu Marriage Act,

1955, such marriage was void and the spouse can have no

legal claims under the family pension scheme for

Government Servants and directed the Petitioner to obtain

orders from the Finance Department, Government of

Maharashtra to relax the extent Rules to enable this office to

authorize family pension to the Petitioner. Respondent No.5

recommended the claim of the Petitioner by addressing letter

to Respondent No.2 and specifically mentioned that the

Petitioner is the nominee of the deceased Gulabrao in the

pension "Form - A" (in Form - 15). Respondent No.1 by the

12th July 2017

905-WP-11839_2015.DOC

impugned order dated 17th August 2009, directed

Respondent No.4 to challenge the heirship certificate granted

by the Civil Judge, S.D., Pune in favour of the Petitioner in

Appeal or revision or else the department will be required to

pay pension to the Petitioner. The Petitioner not having been

granted pension filed Petition in this Court is challenging the

non grant of pension payable by the Respondents.

5. Shri Reddy, learned counsel for the Petitioner has relied

upon the Division Bench judgment of this Court at

Aurangabad in Kantabai W/o. Dhulaji Shriram & Ors. V/s

Hausabai Dhulaji Shriram & Ors1. which in turn is confirmed

by the Hon'ble Supreme Court in its order dated 4th

September 2015 passed in Special Leave to Appeal No. 5703

of 2014. By the said judgment, the Petitioner being the

second wife of the deceased had been held entitled for an

equal share of family pension along with Respondent No.1,

the first wife of the deceased. The Aurangabad Bench relied

upon an earlier judgment of the Supreme Court in the case of

1 2015 (3) Mh.L.J. 883 dated 25th October 2013.

12th July 2017

905-WP-11839_2015.DOC

Badshah V/s. Urmila Badshah Godse2, which has dealt

with a situation of the second wife and the requirement to

give relief to the women becoming "wife" under certain

circumstances and the responsiveness of law to the changing

social needs. The Aurangabad Bench of this Court after

relying upon the said judgment of the Hon'ble Supreme Court

has concluded that, the Petitioner was entitled under Rule

116 of the said Rules.

6. Shri Reddy has submitted that the present Petition is

squarely covered by the said judgment of the Aurangabad

Bench of this Court, which has been confirmed by the order

of the Supreme Court dated 4th September 2015. Shri Reddy

has also placed reliance upon a prior judgment of this Court,

(Nagpur Bench) in the case of Laxmibai Shripat Kumar V/s.

Chief Executive Officer, Zilla Parishad & Ors 3. wherein in

paragraph 8 of the judgment, this Court has observed that "if

deceased widow is not survived by any child, her share shall

not lapse but shall be paid to other widow in equal shares or

2 Criminal M.A. No. 19530 of 2013 in SLP (Cri) No. 8596 of 2013 decided on 18th October 2013.

 3       2004(6) Bom C.R. 744.



                                 12th July 2017



                                                       905-WP-11839_2015.DOC

if there is only one such other widow, in full to her". Shri

Reddy has contended that the Nagpur bench judgment of this

Court also squarely applies to the present Petition.

7. Shri Reddy has submitted that in the present case the

second wife of the deceased is entitled to the family pension

under 116 of the said Rules. The first wife had expired and

her only child had also expired and hence following the said

judgments referred to, the Petitioner being a widow is entitled

to the family pension.

8. Smt. Solunke, learned AGP for Respondent has

contended that the Petitioner, being the second wife and

whose marriage had taken place when the first wife was

alive, such marriage would be void under the Hindu Marriage

Act, 1955 and the Petitioner is not entitled any legal claims

under the said Rules. Smt. Solunke has defended the

impugned orders and contended that they have been validly

passed.

12th July 2017

905-WP-11839_2015.DOC

9. We are of the considered view that the present Petition

is squarely covered by the judgment of the Aurangabad

Bench of this Court dated 25th October 2013 as upheld by

the order of the Hon'ble Supreme Court dated 4th September

2015. The said judgment as well as Nagpur Bench judgment

relied upon involved an identical issue as in the present

Petition and the Petitioner in those cases was held to be

entitled under 116 of the said Rules to be granted family

pension despite the Petitioner being the second wife who was

married during the lifetime of the first wife. We are of the

considered view that there is no bar to the second wife's

entitlement under Rule 116 of the said Rules and that the

Petitioner will be entitled to grant of family pension under the

said Rules.

10. We accordingly allow the Petition with the following

order:

ORDER

12th July 2017

905-WP-11839_2015.DOC

(i) It is held that the Petitioner is entitled to

full family pension including other

benefits under the provisions of the

Maharashtra Civil Services (Pension)

Rules 1982 from the date of which the

husband of the Petitioner has died, the

pension be paid from the month of

August 2017. The arrears be cleared

within a period of six months from today.

(ii) Rule is made absolute in the aforesaid

terms.

                  (iii)        No order as to costs.




        (RIYAZ I. CHAGLA J.)                              ( B.R. GAVAI J.)





                                      12th July 2017