Smt. Poonam Devi vs Bihar School Examination Board ...
2021 Latest Caselaw 1527 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.931 of 2017
     ======================================================

Smt. Poonam Devi, widow of late Birendra Sharma, resident of Mohalla - Rajapur, Mainpura, Ganga Gate No. 33, P.S. - Patliputra, District - Patna.

... ... Petitioner Versus

1. Bihar School Examination Board through its Secretary,

2. Chairman, Bihar School Examination Board, Patna.

3. Smt. Chintamani Devi, widow of late Birendra Sharma, resident of village -

Phulari, P.S. - Sandesh, District - Bhojpur.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Bhupendra Narayan Sinha, Advocate Mr. Shailendra Kumar, Advocate For the Respondent No.3: Mr. Ram Naresh Sharma, Advocate For B.S.E.B., Patna : Mr. Syed Arshad Alam, Advocate For the Respondent/s : Mr. Lalit Kishore, A.G. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT Date : 18-03-2021

Heard Sri Bhupendra Narayan Sinha, learned

counsel appearing on behalf of petitioner, Sri Ram Naresh

Sharma, learned counsel appearing on behalf of Respondent

No.3 and Sri Syed Arshad Alam, learned counsel appearing on

behalf of Bihar School Examination Board, Patna.

The petitioner seeks direction to the respondent

No.1 and 2, Secretary and Chairman, Bihar School Examination

Board, Patna (hereinafter referred to as the "Board") to pay

entire post retirement family pension to the petitioner.

The brief facts leading to this writ application is Patna High Court CWJC No.931 of 2017 dt.18-03-2021

that Birendra Sharma was married with respondent No.3

Chintamani Devi in the year 1960, but there was no issue out of

their wedlock. Thereafter, Birendra Sharma performed his

remarriage with the petitioner, namely, Poonam Devi in the

year 1987, with the consent of respondent No.3 Chintamani

Devi, and due to wedlock they were blessed with a male issue,

namely, Deepak Kumar, who is minor. Birendra Sharma was

working as Assistant in the office of Bihar School Examination

Board, Patna and he retired from the service on 31.05.2003 and

died on 01.01.2015 living behind his first wife respondent No.3

Chintamani Devi, second wife petitioner Poonam Devi and a

minor son, namely, Deepak Kumar, who born with the

petitioner. After death of Birendra Sharma, the petitioner,

being the second widow, filed an application before the Board

stating therein that she has been made nominee to get family

pension in the deed of Will executed by her husband Birendra

Sharma on 31.12.2008. After receiving the said application of

the petitioner, the Secretary, Bihar School Examination Board,

Patna (Respondent No.1) informed the matter to Chintamani

Devi (Respondent No.3) through its letter dated 18.06.2015

stating that after the death of her husband, she has not made

any claim regarding family pension, whereas petitioner has Patna High Court CWJC No.931 of 2017 dt.18-03-2021

filed an application along with the deed of Will to allow her to

get the family pension. On the same day, the Secretary of the

Board (Respondent No.1) also wrote a letter to the petitioner

informing her that in view of the decision of Hon'ble High

Court, Patna, the first wife of the deceased-employee is

entitled to get family pension. After receiving the said letter of

the Secretary of the Board (Respondent No.1), Chintamani Devi

(Respondent No.3) filed a petition on 10.07.2015 along with an

affidavit sworn before the Executive Magistrate, Patna making

request that though the first wife is entitled to receive family

pension, but she relinquish her right with free Will for

payment of family pension to second wife Poonam Devi

(Petitioner). In spite of filing of aforesaid application

supported with affidavit by Chintamani Devi (Respondent

No.3) the Board is sitting tight over the matter and no

communication was made to the petitioner with regard to the

payment of family pension to her. The petitioner along with

her minor son Deepak Kumar is living in Patna in a small house

constructed by her husband Late Birendra Sharma, but there is

no source of income to maintain herself as well as her minor

son.

The Respondent No.3 Chintamani Devi has filed Patna High Court CWJC No.931 of 2017 dt.18-03-2021

her counter affidavit admitting the facts that she is the first

wife and the petitioner is second wife of Late Birendra Sharma,

but she has not denied about birth of male issue, namely,

Deepak Kumar (minor) due to wedlock of petitioner and

Birendra Sharma. She has further stated that she has not given

her consent to the Board to pay full family pension to the

petitioner. In fact, the petitioner obtained her signature on

blank papers and, subsequently, the petitioner converted the

same in form of application and affidavit, which is said to be

filed before the Board in her name making the claim to receive

the family pension. The Respondent No.3 Chintamani Devi,

further, stated in her counter affidavit that being the first

widow of the deceased-employee Birendra Sharma, she is

entitled to get full family pension and according to the

amended Family Pension Scheme 1964 amended later on

through Notification dated 06.09.1996, the petitioner, being

the second wife, is not entitled to get share in the family

pension.

Learned counsel appearing on behalf of petitioner

submits that since the deceased-employee Late Birendra

Sharma performed his remarriage with the petitioner with the

consent of respondent No.3 and due to wedlock of petitioner Patna High Court CWJC No.931 of 2017 dt.18-03-2021

and deceased Birendra Sharma, there is male issue, namely,

Deepak Kumar, who is minor, the petitioner is entitled to

receive the family pension after the death of her husband

Birendra Sharma, especially, in the circumstances that the

respondent No.3, who is the first wife of the deceased-

employee Birendra Sharma has filed an application before the

Board supported with affidavit relinquishing her claim to

receive family pension, but the Respondent Board is sitting

tight over the matter in spite of several representations made

by the petitioner for releasing the family pension in her

favour. The learned counsel for the petitioner relied on the

Judgment dated 25.07.2018 passed in C.W.J.C. No. 14577 of 2017

(Shanti Devi versus The Magadh University and others) and

also the Judgment of the Apex Court dated 04.03.2020 passed in

Civil Appeal No(s). 1835 of 2020 (Tulsa Devi Nirola and others

versus Radha Nirola and others) in support of his submission.

Per contra, learned counsel appearing on behalf of

Respondent No.3 Chintamani Devi submits that while in Family

Pension Scheme for Government employee 1964 as per note (1)

of Clause 7 (iii) there was provision to the effect that if an

employee dies leaving behind him more than one widow, the

pension would be paid to them in equal share, but after Patna High Court CWJC No.931 of 2017 dt.18-03-2021

Notification dated 06.09.1996 of the Finance Department

Government of Bihar note (1) of paragraph 7 (iii), the

Notification dated 03.10.1964 has been deleted. As such, after

Notification dated 06.09.1996 of the finance department,

Government of Bihar, the petitioner being the second wife of

deceased-employee Birendra Sharma is not entitled for family

pension.

Mr. Syed Arshad Alam, learned counsel appearing

on behalf of Bihar School Examination Board, Patna argued

that while in the Family Pension Scheme, 1964 there was

provision that if the deceased-employee died living behind

him more than one widow, all widows will be entitled to get

family pension in equal share, but after Notification dated

06.09.1996 issued by the Finance Department, Government of

Bihar that provision has been deleted. As such after the

notification dated 06.09.1996 only first widow is entitled to get

family pension. In the present case it is not in dispute that

there is minor son, namely, Deepak Kumar due to wedlock of

deceased employee Birendra Sharma and his second wife

petitioner Poonam Devi hence her minor son Deepak Kumar

would also be entitled for family pension till attaining the

majority.

Patna High Court CWJC No.931 of 2017 dt.18-03-2021

From the pleadings of the parties and arguments,

as advanced on behalf of the parties, it is not in dispute that

Late Birendra Sharma, who was working as an Assistant in the

office of Bihar School Examination Board, Patna retired from

service on 31.05.2003 and later he died on 01.01.2015. Late

Birendra Sharma had performed marriage with Respondent

No.3 Chintamani Devi in the year 1960, but they were not

blessed with any issue. Thereafter, he performed his

remarriage with the petitioner Poonam Devi and due to their

wedlock, there is one male issue, namely, Deepak Kumar, who

is minor. While petitioner has stated in her writ petition that

Respondent No.3 Smt. Chintamani Devi by filing an application

supported with affidavit (Annexure-3) relinquished her claim

to receive the family pension in favour of the petitioner, but

Respondent No.3 Smt. Chintamani Devi in her counter affidavit

clearly denied the said facts saying that petitioner obtained

her signature on plain papers and, maliciously, she converted

the same into application and affidavit (Annexure-3) and she is

only entitled to receive the fmily pension.

By Notification dated 06.09.1996 issued by the

Finance Department, Government of Bihar note (i) of Clause

7(iii), the Notification No. 9505, dated 03.10.1964 is deleted Patna High Court CWJC No.931 of 2017 dt.18-03-2021

under which there was provision that if the deceased-

employee has more than one widow, they are entitled to

receive equal share in pension. While under Clause 7(iii)(b) of

notification dated 03.10.1964 the minor son till attaining the

age of 18 years is entitled to receive pension.

In case of Most. Kiran Devi vs. The State of Bihar

and others, reported in 2014 (3) PLJR 792, a Bench of this Court

held that there will be difficulty for the Court to issue mandamus in

favour of the second wife ignoring the right of the claim of private

respondent No.5 and, therefore, the Court rejected the writ

application with liberty to the petitioner to seek appropriate remedy

of obtaining Succession Certificate from Civil Court of competent

Court jurisdiction.

In C.W.J.C. No. 3694 of 2012 (Mehrun Nisha versus

The State of Bihar and others), a Bench of this Court held that

in terms of the Government Notification dated 06.09.1996 only

the first wife is entitled for payment of family pension and

none of it can be paid to the second wife.

The Judgment dated 25.07.2018 passed in C.W.J.C.

No. 14577 of 2017 (Shanti Devi versus The Magadh University

and others) will not be applicable in the present case, as in that

case, there was family arrangement deed signed by all family Patna High Court CWJC No.931 of 2017 dt.18-03-2021

members during the life time of deceased-employee for

receiving the family pension by the second wife and her son. In

Judgment dated 04.03.2020 passed by the Hon'ble Apex Court

in Civil Appeal No(s). 1835 of 2020 (Tulsa Devi Nirola and

others versus Radha Nirola and others) also there was family

settlement in the life time of the deceased-employee regarding

the family property debarring the family pension to the first

wife. In the present case, there is no family settlement deed

executed by the deceased employee during his life time about

receiving the family pension by his second wife. While the

petitioner has claimed that an application supported with

affidavit (Annexure-3) was filed by the Respondent No.3 after

death of the deceased-employee to relinquish her right

allowing the petitioner to receive the family pension, but

Respondent No.3 Chintamani Devi has denied the same with

contention that petitioner had obtained her signature on plain

papers and maliciously that papers were used by petitioner for

preparing the application supported with affidavit (Annexure-

3). As such, in view of Notification dated 06.09.1996 issued by

Finance Department, Government of Bihar deleting the note (I)

of Clause 7 (iii) of notification dated 03.10.1964 issued by the

Finance Department, Government of Bihar in respect to Patna High Court CWJC No.931 of 2017 dt.18-03-2021

Family Pension Scheme, the petitioner being the second widow

of deceased-employee Birendra Sharma is not entitled to

receive family pension. However, it is made clear that Deepak

Kumar, minor son of the petitioner, who is second wife of

deceased-employee Birendra Sharma is entitled to receive the

family pension in equal share with respondent No.3

Chintamani Devi till attaining his majority in view of

paragraph 7(2)(c) of Family Pension Scheme for State

Government employees 1964.

In view of the above, this writ application is

dismissed with aforesaid observation and the petitioner would

be at liberty to approach before appropriate Forum for family

pension to her minor son.

                                                        (Rajendra Kumar Mishra, J)


Manish Kumar
AFR/NAFR                N.A.F.R.
CAV DATE                N.A.
Uploading Date          23.03.2021
Transmission Date       23.03.2021