JUDGMENT The petitioner has approached this Court seeking direction upon the respondents for payment of family pension with effect from 26.11.2005. 2. Heard the learned counsel appearing for the parties and perused the documents on record. 3. Mrs. Shubha Jha, the learned counsel appearing for the petitioner has submitted that, admittedly the petitioner is the legally wedded wife of deceased namely, late Surendra Kumar Bhagat however, for the reasons which cannot be justified in law, the grant of family pension to the petitioner has been denied. 4. From the counter-affidavit filed on behalf of the respondent-Jharkhand State Electricity Board, I find that the claim of the petitioner has been denied stating as under, 6. “That in the above circumstances necessary legal instruction regarding the legal heir of deceased employee sought from Board vide this letter no. 431 dated 15.6.11 and three nos. of other previous letter. Board has instruction vide letter no. 2041 dated 24.8.2011 that as per legal opinion, necessary action regarding sanction of death succession certificate of both family issued from competent court on the basis of the instruction Smt. Manju Devi has submitted succession certificate case No. 69 of 2011 on dated 19.7.2012 but the second family has not submitted the certificate as yet. 7. That in the other hand Sri Saroj Kumar Bhagat S/o Late Surender Bhagat (from second wife) has lodged complaint against the succession certificate vide his letter dated 28.7.2012 and 6.8.12. 8. That in the above circumstances, it is clear that Smt. Manju Devi is not single successor of late S.K. Bhagat and necessary further step regarding sanctioned of death claim cannot be taken.” 5. Mr. K. P. Choudhary, the learned counsel appearing for the respondent no. 6 has submitted that, though respondent no. 6 is the son born out of wed-lock from the second marriage of the late Surendra Kumar Bhagat, the respondent no. 6 being the son would be entitled for his share in the pensionary benefit of late Surendra Kumar Bhagat. The learned counsel has further submitted that, since pension and other retiral benefits of an employee are considered as property of the ex-employee and thus, would be self-acquired property therefore, the respondent no. 6 being son of the the late Surendra Kumar Bhagat would be entitled for his share in the retiral benefits of the deceased employee. The learned counsel has further submitted that, since pension and other retiral benefits of an employee are considered as property of the ex-employee and thus, would be self-acquired property therefore, the respondent no. 6 being son of the the late Surendra Kumar Bhagat would be entitled for his share in the retiral benefits of the deceased employee. Relying on judgments reported in (2000) 2 SCC 431 and 2013 (3) JLJR 537 (SC), the learned counsel for the respondent no. 6 has submitted that, the respondent no. 6 has a right in law to have a share in the self acquired property of the deceased employee namely, late Surendra Kumar Bhagat. The learned counsel has further submitted that, during the pendency of the present writ petition an agreement was signed by the petitioner and the respondent no. 6 on 02.08.2013 whereunder, the petitioner agreed to part with a part of retiral benefits of her husband namely, late Surendra Kumar Bhagat and therefore, a direction may be issued to the petitioner to honour the agreement. 6. Mr. Ram Subhag Singh, the learned counsel appearing for the respondent-Jharkhand State Electricity Board has submitted that, since there are more than one legal heirs of the deceased employee namely, Surendra Kumar Bhagat, family pension to the petitioner was not finalized. 7. Having appreciated the contentions raised on behalf of the learned counsel appearing for the parties, I find that it has been held by the Hon'ble Supreme Court in “Smt. Violet Issaac and Others Vs. Union of India and Others”, reported in (1991) 1 SCC 725 , that an employee has no right to nominate a person for family pension or to execute a Will in favour of a person making him entitled for the benefit of family pension. Since family pension would be payable only on the death of the employee, it would not form part of the estate of the employee. The Hon'ble Supreme Court has discussed the issue as under: 4. “………..The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The Hon'ble Supreme Court has discussed the issue as under: 4. “………..The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee……… 5. In Jodh Singh v. Union of India, this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The court observed: (SCC p. 310, para 10) “Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.” The court further held that what was not payable during the lifetime of the deceased over which he had no power of disposition could not form part of his estate. Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.” 8. In “G.L Bhatia Vs. Union of India and Anr.”, reported in (1999) 5 SCC 237 , though the nomination by the wife, a Central Government servant, was not in favour of the husband, as the relationship between the two was estranged and both were staying separately, the Hon'ble Supreme Court rejected the contention that since the nomination was not in favour of the husband he was not entitled for family pension. The Hon'ble Supreme Court held that though, there was no divorce between the husband and wife and even though they were staying separately, the husband would be entitled to the family pension in terms of the rules and the authorities therefore, committed error in not granting family pension to the husband relying upon the nomination made by the deceased wife. 9. Adverting to the contention raised on behalf of the learned counsel appearing for the respondent no. 6 that since the pension has been equated to right to property and therefore, it would be a self-acquired property of the employee and since the respondent no. 6 is son of ex-employee namely, late Surendra Kumar Bhagat, a fact which has not been disputed in the present proceeding, he would be entitled for his share in the pension of late Surendra Kumar Bhagat, I find that in view of the judgment of the Hon'ble Supreme Court in “Smt. Violet Issaac and Others Vs. Union of India and Others”, (supra), the contention raised by the learned counsel for the respondent no. 6 is not tenable and therefore, hereby rejected. 10. The learned counsel for the respondent no. 6 has submitted that, before the death of his father, the learned trial court had already granted divorce and subsequently, after the restoration of the divorce case the son of the petitioner withdrew the divorce case only with a view to claim the pensionary benefits of late Surendra Kumar Bhagat and therefore, no relief can be granted to the petitioner and the writ-petition is liable to be dismissed. I find that by order dated 18.12.2004 passed in Matrimonial Divorce Suit No. 41 of 1998, an ex-parte decree of divorce was granted. The petitioner preferred Misc. Petition No. 01 of 2009 which came to be dismissed by the High Court on 22.03.2010. The petitioner moved the Hon'ble Supreme Court and by order dated 20.09.2010 passed in C.A. No. 8175 of 2010, the Matrimonial Divorce Suit was restored and thus, as on today there is no decree of divorce. The conduct of the petitioner in contesting the case right during the life-time of her husband and thereafter also shows her willingness to remain married. The fact that the divorce case was withdrawn after remand from the Hon'ble Supreme Court would have no consequence as the husband of the petitioner had already died. The conduct of the petitioner in contesting the case right during the life-time of her husband and thereafter also shows her willingness to remain married. The fact that the divorce case was withdrawn after remand from the Hon'ble Supreme Court would have no consequence as the husband of the petitioner had already died. Since only the widow and the minor children are entitled for family pension, the petitioner's claim for grant of family pension cannot be denied on the basis of ex-parte decree of divorce. 11. From the counter-affidavit filed on behalf of the respondent-Board, I find that a plea has been taken by the respondent-Jharkhand State Electricity Board that, since there are more than one legal heirs to the late Surendra Kumar Bhagat, the family pension to the petitioner could not be granted. I am of the view that the stand taken by the respondent-Jharkhand State Electricity Board is unfair. The husband of the petitioner died on 26.11.2005 and thereafter, the petitioner has been compelled to approach this Court seeking a direction for grant of family pension. It is settled law that unless the Rules specifically provides, only widow and minor children of the deceased employee would be entitled for family pension. However, in so far as, amount of G.P.F., leave encashment etc. are concerned, it has to be distributed according to law of succession and thus, all legal heirs of the deceased employee would be entitled for their share in the same. Though, the petitioner is the son born out of second wedlock, he would be entitled for his share in the self-acquired property of the deceased employee. 12. In Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others”, reported in (2003) 1 SCC 730 , the Hon'ble Supreme Court has held that the children born out of illegal marriage would be entitled to a share in the self-acquired property of the parents. The Hon'ble Supreme Court has observed thus, 5. 12. In Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others”, reported in (2003) 1 SCC 730 , the Hon'ble Supreme Court has held that the children born out of illegal marriage would be entitled to a share in the self-acquired property of the parents. The Hon'ble Supreme Court has observed thus, 5. “So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that 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”. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.” 13. In “Bharatha Matha and Another Vs. R. Vijaya Renganathan and Others”, reported in (2010) 11 SCC 483 , the Hon'ble Supreme Court has held thus, 29. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.” 13. In “Bharatha Matha and Another Vs. R. Vijaya Renganathan and Others”, reported in (2010) 11 SCC 483 , the Hon'ble Supreme Court has held thus, 29. “Thus, it is evident that in such a fact situation, a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties, if any.” 14. In “Rameshwari Devi Vs. State of Bihar and Others”, reported in (2000) 2 SCC 431 , the children from a woman who had been living with the employee claimed the share in retiral benefits along with children born from the legal wed-lock. The Hon'ble Supreme Court held that under Section 16 of the Hindu Marriage Act is children of void marriage are legitimate. 15. In Revanasiddappa and Others Vs. Mallikarjun and Others”, reported in (2011) 11 SCC 1 , the Hon'ble Supreme Court noticed earlier judgments and came to a conclusion that the children who are covered under Section 16 (3) of the Hindu Marriage Act would have a right to property of their parents whether self-acquired or ancestral. 16. In view of the aforesaid discussion, the writ petition is allowed to the extent that the respondent-Jharkhand State Electricity Board is directed to pay family pension to the petitioner within a period of six weeks with interest @ 6 % from 26.11.2005. The other retiral dues of late Surendra Kumar Bhagat would be apportioned according to law of succession and the law laid down by the Hon'ble Supreme Court. 17. The writ petition is disposed of in the aforesaid terms. (Shree Chandrashekhar, J.)