Bombay High Court
Tilottama Sharad Bansi Thr G.P.A. ... vs The State Of Maharashtra And Others on 30 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1903-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1081 OF 2022
Smt. Tilottama W/o Sharad Bansi,
Age-47 years, Occu:Household,
Through G.P.A. Holder,
Prashant S/o Bhoraji Ahire,
Age-41 years, Occu:Advocate,
R/o-21, Ganesh Colony,
Sakri Road, Dhule,
Taluka and District-Dhule.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through its Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai,
2) The Chief Executive Officer,
Zilla Parishad, Jalgaon,
3) The Education Officer (Secondary),
Zilla Parishad, Jalgaon,
4) P.R. High School Society,
Dharangaon, Taluka-Dharangaon,
District-Jalgaon,
Through its Secretary/President,
5) P.R. High School,
Dharangaon, Taluka-Dharangaon,
District-Jalgaon,
Through its Headmaster,
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6) Smt. Mathabai W/o Ramlal Bansi,
Age-84 years, Occu:Nil,
R/o-Matoshri Nagar, Dharangaon,
Tal-Dharangaon, District-Jalgon.
...RESPONDENTS
...
Mr. S.B. Solanke Advocate for Petitioner.
Mr. S.K. Shirse, A.G.P. for Respondent Nos.1 and 3.
Mr. M.S. Sonawane Advocate for Respondent No.2.
Mr. A.G. Talhar Advocate for Respondent No.5.
Mr. Vinod P. Patil Advocate for Respondent No.6.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE : 30th JANUARY, 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel appearing for the respective parties finally, by consent.
2. Present Writ Petition has been filed for following relief:-
"(B) By issuing a writ of mandamus or any other writ, order in
the like nature, this Hon'ble Court may be pleased to direct the
respondent Nos.2 to 5 to pay the pension and pensionary benefits
including gratuity, leave encashment and other benefits to the
petitioner, within stipulated period and for that purpose issue
necessary orders."
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3. The factual matrix leading to the Petition are that the
husband of the petitioner, Sharad Ramlal Bansi was working as
an assistant teacher with respondent No.5 school as permanent
employee. Sharad died on 26th September 2020 at Gold City
Hospital, Jalgaon due to Covid-19. After demise of her husband,
the petitioner had filed applications to respondent No.3 for
payment of gratuity and other benefits and also with the prayer
to start the pension in her favour. However, no action has been
taken by respondent Nos.2 to 5. The petitioner had filed Civil
Misc. Application No.585 of 2020 before the Civil Judge, Junior
Division, Dhule for issuance of heirship certificate. However,
respondent No.6 had filed application under Order 1 Rule 10 of
the Code of Civil Procedure for impleading her as party in the
said proceeding. Accordingly, respondent No.6 came to be
added as party respondent. Further, respondent No.6 and one
Smt. Meena had filed Civil Misc. Application No.160 of 2020
before the Civil Judge, Junior Division, Dharangaon for issuing
heirship certificate. In the said proceeding, present petitioner
and her son were added as party respondents. From the said
application, the petitioner came to know that said Smt. Meena is
claiming to be the second wife of deceased Sharad. The second
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wife is not entitled to get pension and pensionary benefits in
view of the provisions of Maharashtra Civil Services (Pension)
Rules. The respondent authorities are not paying any heed to the
request made by the petitioner and they are insisting for heirship
certificate. The respondent authorities are not forwarding the
documents in respect of the pension and other benefits for
further process. Hence this Writ Petition.
4. Respondent No.6, who is mother of deceased Sharad
Bansi, has filed affidavit-in reply. Respondent No.6 is contending
that petitioner is not concerned with the service benefits of
deceased Sharad. After the death of son, the mother is entitled
to receive the service benefits. Proceedings had filed by her
before the Civil Court for grant of succession certificate. The
name of the present petitioner is not appearing in the service
record of deceased Sharad and therefore, petitioner is not
entitled to get any service benefits.
5. Heard learned Advocate Mr. Solanke for the petitioner,
learned AGP Mr. Shirse for respondent Nos.1 and 3, learned
Advocate Mr. Sonawane for respondent No.2, learned Advocate
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Mr. Talhar for Respondent No.5 and learned Advocate Mr. Patil
for respondent No.6.
6. At the outset, it is to be noted that it is not in dispute that
respondent No.6 is the mother of deceased Sharad. The
application filed by the petitioner before Dhule Court appears to
have been dismissed in default on 7 th February 2023. But
respondent No.6 has admitted that she along with one Meena,
have filed application before the Civil Judge, Junior Division,
Dharangaon for succession certificate, to which the present
petitioner and her son are party respondents. The copy of the
said Miscellaneous Application has been filed on record. The
pleadings of the same would make it very clear that said Smt.
Meena, who is applicant No.2 in the said Civil Misc. Application
No.160 of 2020, claims that she is the second wife of deceased
Sharad. Further respondent No.6 accepts that present petitioner,
who is respondent No.1 therein, is the first wife of deceased
Sharad and respondent No.2 therein is the son of present
petitioner and deceased Sharad. It is the say of respondent No.6
that as there was dispute between present petitioner and
deceased Sharad, their relationship got strained and then
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present petitioner left the matrimonial home when she was
pregnant of three to four months and thereafter never returned.
There is absolutely no mention that there was legal divorce
between deceased Sharad and the present petitioner before the
alleged marriage between Sharad and Smt. Meena. Thus, when
present respondent No.6 along with Smt. Meena accepts that
present petitioner is the first wife of deceased Sharad, the
burden is on them to show that there was legal divorce between
deceased Sharad and present petitioner. Even the affidavit-in-
reply filed on behalf of respondent No.6 is silent about it.
7. The position of law as regards the pensionary benefits is
concerned, it has been not res integra. The Full Bench of this
Court in Kamalbai w/o Venkatrao Nipanikar vs. State of
Maharashtra and others, 2019 (3) Mh.L.J. 921, held that:-
"The second wife in general parlance would not be entitled for
family pension unless she is legally wedded wife. A second wife
who is not legally wedded wife would not be entitled for family
pension under Rule 116 of the Pension Rules."
8. Certainly, the mother would also be entitled to get the
pensionary benefits as per the rules. The objection, if any, on
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behalf of the petitioner to that effect cannot be considered taking
into consideration the legal position. In view of this position of
law, respondent Nos.4 and 5 who are duty bound to forward the
pension papers and other communication for release of the
gratuity, leave encashment and other service benefits, ought not
to have waited for the decision by any Court. We reiterate that in
view of the plain and simple pleadings, the decision ought to
have been taken by respondent Nos.4 and 5 for forwarding the
pension papers and other communications to higher authorities.
Under the said circumstance, the Petition deserves to be
allowed. Following order is, therefore, passed:-
ORDER
(I) Writ Petition is hereby allowed.
(II) Respondent Nos.4 and 5 to forward the pension papers and
also to make the other correspondence for release of gratuity,
leave encashment and other service benefits to the petitioner
and respondent No.6, as per the provisions of law, discussed
above, within the period of TWO MONTHS from today.
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(III) After the pension papers and other correspondence as
stated above is received to respondent No.3, he should take
further necessary actions within a period of ONE MONTH,
thereafter.
(IV) Rule is made absolute in above terms.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN24
