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2012 DIGILAW 1017 (GAU)

Nand Sinha and Ors. v. Union of India and Ors.

2012-08-28

I.A.ANSARI, S.C.DAS

body2012
S.C. Das, J.;— 1. This writ appeal is directed against the judgment and order, dated 16.5.2008, passed by learned Single Judge of this court, in WP(C) No.316of 2003. 2. Heard learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Mr. R. Datta, for the appellants, and learned ASG, Mr. P.K. Biswas, appearing for respondent Nos.l and 2. We have also heard the learned Addl. G.A., Mr. S. Chakraborty, for respondent Nos.3, 4 and 5, and learned counsel, Mr. C.S. Sinha, for respondent No.6. 3. Facts may be summarized thus : The appellants along with Ms. Rumi Sinha (writ petitioner No.3) (since deceased), presented WP(C) No.316 of 2003 before this court, inter alia, stating that Gobinda Das Sinha, husband of petitioner No.1, and father of petitioner Nos.2,3 and 4, while working as an Assistant Teacher under the Directorate of School Education, Government of Tripura, attached with Kamalpur Madrasa H.S. School, died on 1.11.2001, living behind the writ petitioners as his legal heirs. It is the case of the appellants/writ petitioners that marriage between Gobinda Das Sinha and petitioner No.1, Smt. Nanda Sinha was solemnized in the year 1978, and that she was the second wife of Gobinda Das Sinha. That,Gobinda Das Sinha earlier married Smt. Bilasini Sinha (respondent No.6) in the year 1969 and she has a daughter, namely, Rubi Sinha, aged’ about 31 years, at the relevant point' of time and she had already been given in marriage. It is, inter alia, contended by the writ petitioners that after the death of Gobinda Das Sinha on 28.8.2002, petitioner No.1 made application to the Director of School Education for granting all benefits accrued due to death of Gobinda Das Sinha, including pensionary benefits and also for providing a job to petitioner No.2 under Die-in-Harness Scheme. The State respondents, considering the representation of the writ petitioners and respondent No.6, allowed Group Insurance, DCRG benefits. Leave Salary, etc., to respondent No.6 and petitioner Nos.2, 3, 4, in equal share. No benefit was granted to petitioner No.1, being second wife of the deceased public servant. It is the case of the writ petitioners that as per direction of respondent No.4, the Headmaster of the concerned school, sent pension proposal to respondent No.2 for granting family pension to respondent No.6 and petitioner Nos.2, 3 and 4 in equal share. No benefit was granted to petitioner No.1, being second wife of the deceased public servant. It is the case of the writ petitioners that as per direction of respondent No.4, the Headmaster of the concerned school, sent pension proposal to respondent No.2 for granting family pension to respondent No.6 and petitioner Nos.2, 3 and 4 in equal share. Even after such a proposal was sent from the State respondents, respondent No.2 issued P.P.O., granting family pension in favour of respondent No.6 alone vide Memo. No.PENI/FAM/1748/4829-30 (28th August, 2003) (Annexure 8 to the writ petition). It is the further case of the writ petitioners that the writ petitioners No.2, 3 and 4, being illegitimate children of the deceased, are entitled to get family pension in equal share with respondent No.6. By issuing the order, granting family pension to respondent No.6 alone, respondent No.2, virtually, has taken away the right of the writ petitioners. The writ petitioners, therefore, prayed for quashing Annexure 8 to the writ petition and to pass necessary order directing the respondents to grant family pension to writ petitioner Nos.2, 3 and 4 in equal share with respondent No.6. 4. Respondent Nos.1 and 2, in their counter affidavit, contended that according to rules, family pension shall not be payable to more than one member of the family at the same time and so, respondent No.6, being the first wife, is only entitled to receive the monthly family pension, and there is nothing wrong in the action taken by the respondents. 5. The 'stand of respondent Nos.3, 4 and 5 is that they have made the proposal to grant family pension in equal share to respondent No.6, being the first wife and the writ petitioner Nos.2, 3 and 4, being the illegitimate children, are entitled to get the family pension as unmarried minor daughters and minor son, left by the deceased. 6. Respondent No.6, in her counter affidavit, denied the claim of the writ petitioners and further contended that petitioner No. 1 is a stranger, having no marriage with the deceased, and so the petitioners are not entitled to get any benefit including family pension. 7. 6. Respondent No.6, in her counter affidavit, denied the claim of the writ petitioners and further contended that petitioner No. 1 is a stranger, having no marriage with the deceased, and so the petitioners are not entitled to get any benefit including family pension. 7. Learned Single Judge, after hearing learned counsel of both side, dismissed the writ petition holding that there was no wrong in the action taken by respondent No.2 in granting pension only to respondent No.6 in view of the provisions prescribed in CCS (Pension) Rules, 1972, and therefore, held that the writ petitioners are not entitled to any relief. 8. Learned senior counsel, Mr. A.K. Bhowmik has submitted that writ petitioner No.1 is admittedly the second wife of deceased Gobinda Das Sinha and so, she is not entitled to get pensionary benefits, but petitioner Nos.2, 3 and 4, being the illegitimate children, are entitled to get pensionary benefits in equal share with respondent No.6, the first wife of the deceased. Referring to the provisions of section 16 of the Hindu Marriage Act learned senior counsel has submitted that by way of amendment of the Hindu Marriage Act, in the year 1976, the right of the illegitimate children to the property left by the parents of such children has been recognized, whereas, CCS (Pension) Rules, which was compiled in 1972, has not been amended keeping consistence with the provisions prescribed in section 16 of the Hindu Marriage Act. So, while the Act of Parliament recognized right of inheritance of the legitimate children, it cannot be taken away applying Rules framed long back, which is inconsistent with the statutory provisions. He has further submitted that the provisions of Rule 54 of CCS (Pension) Rules are procedural in nature and it is obviously directory and should be construed harmoniously to ensure benefits to the people. The procedural law cannot overrides the statute made by the Legislature, and therefore, Annexure 8 to the writ petition, directing payment of the family pension to respondent No. 6 alone, has virtually taken away the right of the writ petitioner Nos.2, 3 and 4 in their claim to the family pension, therefore, liable to be interfered and quashed. 9. Learned ASG, Mr. 9. Learned ASG, Mr. Biswas has submitted that rule 54(8)(i) of CCS (Pension) Rules clearly stipulates that the family pension shall not be payable to more than one member of the family and so, respondent No.2 rightly issued Annexure 8, granting family pension payable to respondent No.6 alone, and hence, learned Single Judge has rightly decided not to interfere in Annexure 8 to the writ petition. 10. Learned Addl. G.A., Mr. Chakraborty has submitted that writ petitioner Nos.2, 3, 4 and respondent No.6 are entitled to get family pension in equal share according to law, and the action taken by respondent No.2 was not justified. 11. Learned counsel, Mr. Sinha has submitted that there was no wrong in the order passed by respondent No.2 granting family pension to respondent No.6, and the judgment and order passed by the learned Single Judge does not deserve interference. 12. Section 16 of the Hindu Marriage Act prescribes, thus : "16. Legitimacy of children of void and voidable marriages. - (1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or nor a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on petition under this Act. (2) Where a decree of nullify is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents." The above provision has been incorporated by Act No.68 of 1976 w.e.f. 27.5.1976, and thereby recognized the right of illegitimate children to the property of their parents. The Supreme Court in the case of Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors., (2003) 1 SCC 730 , has held that section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable, chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only. A laudable and noble act of the Legislature indeed in enacting section 16 to put an end to a great social evil. 13. Regarding entitlement of the family pension by respondent Nos.2, 3 and 4, on the death of Gobinda Das Sinha, has not been disputed by learned A.S.G. and even learned counsel, Mr. Sinha, in course of argument. Their only contention is that the P.P.O. issued by respondent No.2 (Annexure 8 to the writ petition) is according to law and, so, there should be no interference. Admittedly, provision prescribed in section 54 of the CCS (Pension) Rules, 1972, is a procedural law, prescribing thereby the procedure to be followed while making payment of pension to the family members of a deceased employee. A 'subordinate law' has all force of law but cannot override the substantive law. While a 'substantive law' prescribes the right of a person to a property, such right cannot be taken away or made nugatory by applying any 'subordinate law'. The procedural law is, no doubt, directory in nature, whereas, the substantive law as reproduced above, is mandatory. No doubt. While a 'substantive law' prescribes the right of a person to a property, such right cannot be taken away or made nugatory by applying any 'subordinate law'. The procedural law is, no doubt, directory in nature, whereas, the substantive law as reproduced above, is mandatory. No doubt. Rule 54(8)(i) has prescribed that the family pension shall be paid to one member of the family but it is to be kept in mind that the said law was made before amendment of section 16 of the Hindu Marriage Act in the year 1976. The procedural law ought to be amended keeping consistence with the substantive law legislated at a later stage. Though there is no change in the procedural law, in our considered opinion, it should be harmoniously construed so that the benefit of the statutory provisions is made available to all concerned legally entitled to such benefit. 14. Provision prescribed under section 16 of the Hindu Marriage Act is a mandatory provision, admittedly applicable to the deceased employee and his legal heirs,, being Hindus. Omission to follow the same will render the action illegal and void. Whereas, the provisions prescribed in rule 54 of the Pension Rules are directory provisions, observance of which is not necessary to validity of action. Rule has prescribed payment to one member of the family for convenience. It has not prohibited the respondent in making payment order to all legal heirs/survivors left by a deceased employee. 15. In the case at hand, respondent No.6 and the writ petitioners have been admittedly residing separately though left behind by Gobinda Das Sinha. It is submitted by learned counsel, Mr. Bhowmik that writ petitioner No.3, Rumi Sinha has died on 8.11.2006 and writ petitioner No.2 also attained the age of 25 years on 1.6.2005. So, now, only writ petitioner No.4 and respondent No.6 are entitled to get family pension in equal share. Writ petitioner No.2, being unmarried daughter is entitled to get the family pension till her attaining the age of 25 years or her marriage, whichever is earlier and respondent No.3, since died unmarried, was entitled to get the family pension till her date of death. The issue is pending since long and learned counsel prayed for passing an appropriate order so that the appellants get the benefits of family pension equally with respondent No.6. 16. The issue is pending since long and learned counsel prayed for passing an appropriate order so that the appellants get the benefits of family pension equally with respondent No.6. 16. Since it is an undisputed fact that respondent No.6 and the writ petitioner Nos.2, 3 and 4 were/are legally entitled to get the family pension in equal share on the death of Gobinda Das Sinha, their predecessor, and since the State respondents had also requested respondent No.2 to issue pension order for disbursement of pension to them in equal share, respondent No.2 would consider it and grant family pension to all of them in equal share. 17. Regarding entitlement of writ petitioner Nos.2, 3 and 4, learned Single Judge also arrived at a positive finding, but declined to interfere in the pension order, which, in our considered opinion, deprived the writ petitioners of their legal entitlement, and, therefore, to that extent, the judgment and order passed by the learned Single Judge is liable to be interfered and we do so accordingly. We consider it appropriate to quash Annexure 8 to the writ petition, i.e., the P.P.O. issued in favour of respondent No.6 alone and we direct respondent No.2 to issue P.P.O. in favour of respondent No.6 and also writ petitioner Nos. 2, 3 and 4 in equal share. Writ petitioner Nos.2 and 3 will be entitled to share the family pension till petitioner No.2 attains the age of 25 years or get married, whichever is earlier, and petitioner No. 3 will receive pension till her death. 18. The writ appeal is accordingly allowed to the extent as aforesaid. Respondent No.2 shall comply with the order within 45 days from the date of receipt of a copy of this judgment. _____________