The State Of Bihar vs Sunita Devi
2023 Latest Caselaw 2894 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.768 of 2019
                                         In
                   Civil Writ Jurisdiction Case No.4412 of 2018
     ======================================================

1. The State Of Bihar through the Principal Secretary, Water Resources Department, Government of Bihar, Patna.

2. The Executive Engineer, Western Emabnkment Division Nirmali, District Supaul.

3. The Treasury Officer, Jhanjharpur, District- Madhubani.

... ... Appellant/s Versus

1. Sunita Devi, Wife of Late Ram Sagar Mandal Resident of Village-

Ratansara, P.S.- Ghoghardiha, Dist. Madhubani.

... Petitioner / Respondent

2. The Accountant General (A and E), Bihar, Patna.

2nd Set Respondent/s / Respondent ====================================================== Appearance :

For the Appellant/s : M/s Anjani Kumar, AAG 4 Deepak Kumar Jamuar, AC to AAG-4 For the Respondent/s : Mr. Rajendra Kumar Jain, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)

Date : 11-07-2023

1. Heard learned counsel for the appellant and

learned counsel for the respondents.

2. The instant appeal has been preferred against the

order dated 4.1.2019 passed in C.W.J.C. No. 4412 of 2018.

3. The relevant facts in brief are that the writ

petitioner - respondent no. 1 filed C.W.J.C. No. 4412 of 2018

stating therein that her husband Ram Sagar Mandal had Patna High Court L.P.A No.768 of 2019 dt.11-07-2023

performed two marriages. While Gujari Devi was his first wife,

the petitioner - respondent no. 1 was his second wife. Ram

Sagar Mandal retired from service on 31.12.2004 and the name

of his first wife Gujari Devi was entered in the pension payment

order. The first wife, namely, Gujari Devi died on 20.4.2007

while Ram Sagar Mandal died on 5.1.2015. It was the case of

the petitioner - respondent no. 1 that she being the legally

wedded wife of Late Ram Sagar Mandal, she was entitled to

family pension and on the same being refused due to non entry

of her name in the pension papers, she filed C.W.J.C. No. 4412

of 2018 praying for a direction to the respondents to pay

family pension to her w.e.f. the date of death of her husband ie

5.1.2015. By order dated 4.1.2019, the writ application was

disposed of in light of the order passed in the case of Most.

Manorma Devi Vrs. The State of Bihar & Ors, directing the

respondent authorities to make payment of family pension to

the petitioner - respondent no. 1 within a period of three months

from the date of receipt / production of a copy of the order.

4. It is against this order dated 4.1.2019 disposing

of the writ application that the appellant State of Bihar and its

authorities have preferred the instant appeal.

5. Sri Anjani Kumar, learned Additional Advocate Patna High Court L.P.A No.768 of 2019 dt.11-07-2023

General 4 ( AAG 4) appearing for the appellant submitted that

the learned Single Judge, although referred to the executive

instruction dated 6.9.1996 of the Finance Department, Govt. of

Bihar, but the same has not been considered in the right

perspective. Learned senior counsel also placed reliance on the

Memo no. Pen- 103/64-9505 F dated 3.10.1964 and more

particularly Clause 7 thereof which provides that marriage

after retirement will not be recognized for purpose of the

scheme as also the resolution dated 27.6.2011 of the Finance

Department, Govt. of Bihar.

6. On the other hand, it was submitted by learned

counsel appearing for the respondent no. 1 that the deceased

employee, namely, Ram Sagar Mandal had two wives and the

respondent no. 1 was his second wife, but the marriage had

taken place with consent of the first wife. The marriage of

respondent no. 1 besides not being in dispute is also supported

from various documents like Aadhar Card, Ration Card,

nomination in the bank accounts etc.. The respondent no. 1 also

has children from the said wedlock and on the death of the first

wife, she is entitled for family pension, not having been granted

the same, the respondent no. 1 filed a writ application which

was allowed by the learned Single Judge by order dated Patna High Court L.P.A No.768 of 2019 dt.11-07-2023

4.1.2019, impugned herein. There is no illegality in the said

order, no merit in the instant appeal and thus the same be

dismissed.

7. Having heard learned counsel for the parties and

having perused the material on record, it transpires that even as

per the case of the respondent no. 1, it was Gujari Devi who was

the first wife of the employee Ram Sagar Mandal, who retired

from service on 31.12.2004. It was her name which was

mentioned in the pension payment order. The said Gujari Devi

died on 20.4.2007. The respondent no. 1, neither in the writ

application nor in the instant appeal has given the date of her

marriage to Ram Sagar Mandal. The only averment made in

paragraph no. 7 of the writ application is to the effect that Ram

Sagar Mandal performed two marriages and that the respondent

no. 1 was the second wife.

8. So far as reliance placed by the learned AAG 4

appearing for the appellant on the family pension scheme 1964

is concerned, on perusal of the same it clearly transpires that

the definition of family for the purpose of the scheme includes

the wife and Note (ii) thereof further provides that marriage

after retirement will not be recognized for the purpose of this

scheme. Further the resolution dated 27.6.2011 provides that in Patna High Court L.P.A No.768 of 2019 dt.11-07-2023

case an employee has entered into a second marriage after

obtaining prior permission for the same in accordance with the

1976 Rules, the widows could be entitled for equal share of the

family pension. It may be noted here itself that the said

resolution clearly spells out that the same was being passed in

view of the direction of a Division Bench of this Court as

contained in its order dated 4.1.2011 passed in C.W.J.C. No.

9491 of 2010 asking the Government to reconsider its decision

in view of the Muslim Personal Law. We have to observe that in

the instant case the parties are Hindus and the second marriage

while the first was subsisting cannot be said to be valid, as is not

the case under Muslim Personal Law.

9. So far as Memo dated 6.9.1996 of the Finance

Department, Govt. of Bihar is concerned, which also finds

mention in the order of the learned Single Judge, it clearly

provides that in case of the employee having entered into

second marriage during the life time of the first wife, the second

wife would not be entitled for family pension. But in accordance

with the Family Pension Rules, the children born out of the

second marriage would be entitled for benefit.

10. The learned Single Judge placing reliance on

the judgment of this Court in the case of Most. Manorma Devi Patna High Court L.P.A No.768 of 2019 dt.11-07-2023

Vrs. The State of Bihar & Ors. [2001(4) PLJR 275] disposed of

the writ application with the direction to the appellants to make

payment of family pension to the respondent no. 1 within a

period of three months. In the opinion of this Court, the order in

the case of Most. Manorma Devi (supra) is of no assistance to

the respondent no. 1 as in the order itself it clearly states that the

stand of the State of Bihar therein is not based on any provision

of law. Further it is only the ratio decidendi of a judgment

which is binding and no issue having been decided in the case of

Most. Manorma Devi (supra), the learned Single Judge clearly

committed an error in placing reliance on the said order and

allowing the writ application.

11. In the opinion of this Court, the order of the

learned Single Judge has been passed without taking into

consideration various resolutions, family pension scheme etc,

reliance on which has been placed by the learned senior counsel

appearing for the appellant.

12. In view of the facts and circumstances of the

case, the Court finds merit in the instant appeal. The order dated

4.1.2019 passed in C.W.J.C. No. 4412 of 2018 is set aside and

the prayer made by the respondent no. 1 in the writ application

is dismissed.

Patna High Court L.P.A No.768 of 2019 dt.11-07-2023

13. At this stage it is submitted by learned counsel

appearing for the respondent no. 1 that the respondent no. 1 has

minor children born out of her wedlock with the deceased

employee and who would be entitled for share in the retiral

benefits even on the basis of the Finance Department

resolution with respect to family pension etc. relied on by

learned senior counsel appearing for the appellant. It goes

without saying that in case a representation is filed by the

respondent no. 1 with respect to the above before the

respondent authorities, the same will be decided without delay

in accordance with law.

14. The appeal stands allowed.

(K. Vinod Chandran, CJ)

(Partha Sarthy, J) Spd/-

AFR/NAFR
CAV DATE
Uploading Date          17.07.2023
Transmission Date