ORDER : Sujoy Paul, J. 1. The core issue needs determination in this case is whether the petitioner No. 1, second wife of Late Hulkar Singh Maravi and other petitioners, children of that employee are entitled for pension/retiral dues? 2. The petitioners have invoked the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to direct the respondents to release the financial benefits in their favour relating to retiral dues of Late Hulkar Singh Maravi (hereinafter called as deceased-employee). The petitioners have stated that they are the legal heirs of the deceased-employee. They belong to Gond, a Scheduled Tribe community. The caste certificate of the deceased-employee is filed as Annexure P/1. It is stated that the deceased was working as Head Constable with the respondent-department. The deceased solemnized first marriage with one Nan Bai as per customs and rituals prevailing in the Gond community. The deceased-employee lived with Nan Bai for a limited period of time. Thereafter, he married the petitioner in the year 1988 as per the Gond customs and rituals. The petitioner No. 1 and Hulkar Singh lived together till death of Hulkar Singh in the year 2014. Out of said wedlock between petitioner No. 1 and Hulkar Singh, the remaining petitioners were born. The Ration Card is filed to establish this fact. 3. The petitioners have also filed the Medical Card issued to the deceased-employee to establish that they were part of the same family. The copy of passbook showing joint account is also filed as Annexure P/4. It is further submitted that the last rituals of Hulkar Singh were performed by petitioner No. 2 being the eldest son. 4. Shri Rahul Diwakar, learned counsel for the petitioner submits that the nomination filed by the respondents alongwith their return clearly shows that the deceased-employee mentioned the name of present petitioners as their nominees. Hence the petitioners are entitled for their share of retiral dues. Shri Diwakar also relied on Central Industrial Security Force Rules, 2001 to bolster his submission that as per these rules, if second marriage is permissible under the customs, the employee is not disqualified to be appointed. Thus the rules do recognise the existence of customary right of second marriage. Lastly, it is urged that even if second marriage is held to be illegal or void, the children cannot be deprived from their legitimate claim of retiral dues. Thus the rules do recognise the existence of customary right of second marriage. Lastly, it is urged that even if second marriage is held to be illegal or void, the children cannot be deprived from their legitimate claim of retiral dues. 5. Shri Mohan Sausarkar, learned counsel for the respondent-department and Shri U.S. Jaiswal, learned counsel for the respondent No. 4 opposed the relief. Shri Sausarkar urged that the deceased-employee was working as a constable. It is stated in the return that Hulkar Singh initially married the respondent No. 4 in the year 1983 i.e. prior to appointment in the respondent-department. The respondent No. 4 has a married daughter who is living separately. It is admitted by the department that Hulkar Singh again married the petitioner No. 1 in the year 1988 and the remaining petitioners are the children of petitioner No. 1. In the return it is stated that first nomination was submitted in the name of respondent No. 4 at the time of initial appointment. However, the second nomination was submitted in the name of petitioner No. 1 on 27.08.2001 (Annexure R-1/2). The stand of the department is that an enquiry relating to said two nominations was conducted. It was found that both the wives are staying together and respondent No. 4 is voluntarily given her consent by submitting an affidavit for making payment of pension and other benefits to petitioner No. 1. These documents are filed along with the return. 6. Shri Sausarkar argued that as per clarification issued by the department of pension and pensioners welfare dated 16.02.1987 published under Rule 54 of C.C.S. (Pension) Rules, 1972, the second marriage during the lifetime of first wife will be considered as a nullity and has no legal effect. The second wife will not be entitled to the family pension as a legally wedded wife. This clarification is filed as Annexure R-1/4. On the strength of this clarification, it is submitted that the department processed the pension papers in favour of respondent No. 4 only. However, in the return it is admitted that the petitioners belong to Scheduled Tribe community of Gond. The stand of department is that even Gond community is governed by Hindu Marriage Act, 1955. In absence of any exemption to a person belonging to Gond community, no benefits can be extended in favour of the petitioners. However, in the return it is admitted that the petitioners belong to Scheduled Tribe community of Gond. The stand of department is that even Gond community is governed by Hindu Marriage Act, 1955. In absence of any exemption to a person belonging to Gond community, no benefits can be extended in favour of the petitioners. The reliance is placed on Rule 54 and 81 of C.C.S. (Pension) Rules, 1972. 7. I have heard learned counsel for the parties the perused the record. 8. This is an admitted position between the parties that the claim of retiral dues is to be determined in the light of Governing Rules i.e. C.C.C. (Pension) Rules, 1972. 9. The department heavily relied on a note which is reproduced for ready reference as under:- "It is specifically a question arising under the Hindu Marriage Act, 1955. Under Rule 54 (7) of the C.C.S. (Pension) Rules, 1972, in case a deceased Government servant leaves behind more than one widow or a widow and eligible offspring from another widow, they are entitled to family pension in respect of that deceased Government servant. Section 11 of the Act provides that any marriage solemnized after the commencement of the Act shall be null and void can be annulled against the other party by a decree of nullity if the same contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. Section 5 (1) stipulates that the marriage cannot be legally solemnized when either party has a spouse living at the time of such marriage. Therefore, any second marriage by a Hindu male after the commencement of 1955 Act during the lifetime of his first wife will be a nullity and have no legal effect. Such marriage cannot be valid on the ground of any custom. In fact, a custom opposed to an expressed provision of law is of no legal effect. So under these circumstances, the second wife will not be entitled to the family pension as a legally wedded wife." (Emphasis supplied) 10. Such marriage cannot be valid on the ground of any custom. In fact, a custom opposed to an expressed provision of law is of no legal effect. So under these circumstances, the second wife will not be entitled to the family pension as a legally wedded wife." (Emphasis supplied) 10. It is apt to note that Rule 53 (3) (i) of the said rules reads as under:- "(3) A Government servant may provide in the nomination - (i) that in respect of any specified nominee who predeceases the Government servant, or who dies after the death of the Government servant but before receiving the payment of gratuity, the right conferred on that nominee shall pass to such other person as may be specified in the nomination:" Rule 54 (7) (a) (i) reads as under:- "(7)(a)(i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. (ii) On the death of a widow, her share of the family pension shall become payable to her eligible child." (Emphasis supplied) 11. Rule 81 is based on Rule 54 aforesaid. The Rule 54 (7)(a)(i) indicates that family pension can be paid to more widows than one. In such cases, the family pension needs to be paid to the widows in equal share. It is apposite to mention here that this Rule 54 (7)(a)(i) is pari-materia to Rule 47 (7)(a)(i) of M.P. Civil Services (Pension) Rules, 1976. This rule was considered by a Division Bench of this Court in Sitabai Sinodia and Others vs. R.P.F. Commissioner and Others, 2002 (3) MPHT 277 . In the said case, the deceased had two wives. The second wife also claimed benefit of pension and retiral dues as per Rule 47 (7)(a) (i) of Pension Rules of Madhya Pradesh. The Division Bench opined that this rule is to be read in the context of law of marriages, namely Hindu Marriage Act, 1955. The said Act prohibits contracting of more than one wife and if one does so, the second marriage would be void. It was decided that the said prohibition is not applicable to marriages under the Muslim Law. 12. In Dropti Bai vs. High Court of M.P. and Another, 2002 (2) MPLJ 497 , this Court held that petitioner is neither a bounty nor a matter of grace depending upon the sweet will of employer. It was decided that the said prohibition is not applicable to marriages under the Muslim Law. 12. In Dropti Bai vs. High Court of M.P. and Another, 2002 (2) MPLJ 497 , this Court held that petitioner is neither a bounty nor a matter of grace depending upon the sweet will of employer. It is a social welfare measure rendering socioeconomic justice to those who had served the employer and is governed by the rules. Family pension is a benefit which is in consonance with and in furtherance of the goals of Constitution. The amount of family pension admissible to a family does not depend on the persons entitled to receive it; family pension is calculated on the basis of formula which does not depend upon the fact that in how many persons, the same has to be apportioned. Whether it is a case of one widow, two widows or sons or daughters of a pre-deceased widow, this fact is not in dispute that amount of family pension does not depend upon the number of family members. When family pension is apportioned, it is with a view and underlying idea that every dependent should get some amount. That cannot be said to be in negation of right to obtain a particular sum which is not variable nor dependent upon the number of persons obtaining it. Apportionment is simply a facility; substantive right is to obtain the family pension payable to a family computed under the rules. 13. It is noteworthy that in the present case admittedly the deceased-employee filed a nomination in favour of the petitioner No. 1. The effect of nomination was considered by Supreme Court in Vidhyadhari and Others vs. Sukhrana Bai and Others, 2008 (2) SCC 238 . In the said case, the appellant Vidhyadhari was second wife of the deceased-employee. A nomination was existing in her favour. The Apex Court held that first wife Sukhrana Bai was legal wife while Vidhyadhari could not claim that status. However, it was held that the Vidhyadhari was a nominee which is not disputed by anyone. Vidhyadhari had four children whose status as legitimate heirs of deceased-employee could not be disputed. In this factual backdrop, it was held that the law is clear on this issue that a nominee like Vidhyadhari, who was claiming the death benefits arising out of employment can claim the benefits of retiral dues. Vidhyadhari had four children whose status as legitimate heirs of deceased-employee could not be disputed. In this factual backdrop, it was held that the law is clear on this issue that a nominee like Vidhyadhari, who was claiming the death benefits arising out of employment can claim the benefits of retiral dues. The Apex Court observed that the High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of deceased-employee. Their names were also found in the statutory Form-A/nomination. After considering the judgment of Rameshwari Devi vs. State of Bihar and Others, 2000 (2) SCC 431 wherein it is held that even if a Government servant had contracted second marriage during the subsistence of first marriage, children born out of second wedlock would still be legitimate though the second marriage itself would be void. The Apex Court held that in view of nomination and other facts, the second wife and children are entitled to get the succession certificate. 14. No doubt, as per the Division Bench judgment of Sitabai Sinodia (supra), the Hindu Marriage Act, 1955 comes into play for the purpose of determining rights of the parties. However, in the said case, the petitioner was not belonging to Scheduled Tribe community. It is profitable to note that Section 2 (Part-II) of the Hindu Succession Act, 1956 and also Section 2 (ii) of Hindu Marriage Act, 1955 have same terminology which reads as under:- "2(ii) (of both the above referred Acts) Notwithstanding anything contained in sub-section (1) nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution, unless the Central Government by notification in the official gazette, otherwise directs." 15. Needless to mention that these acts apply to Hindus, Buddhist, Sikhs and also to anyone who is not a Muslim, Christian, Parsy, Jues by religion. Indisputably, in the present case, the petitioner No. 1 is the second wife of the deceased-employee. The petitioners and the deceased-employee belong to Gond community. The said community is Scheduled Tribe within the meaning of Clause-25 of Article 366 of the Constitution of India. The Hindu Succession Act do not apply to Gond community in view of Sub-clause (ii) of Section 2 of the aforesaid acts. The petitioners and the deceased-employee belong to Gond community. The said community is Scheduled Tribe within the meaning of Clause-25 of Article 366 of the Constitution of India. The Hindu Succession Act do not apply to Gond community in view of Sub-clause (ii) of Section 2 of the aforesaid acts. It is relevant to note here that as per Article 366 (25) and Article 342 of Constitution of India, the President has power to specify the tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to a State. The tribe Gond is mentioned in entry No. 66 in relation to Madhya Pradesh as per presidential order issued under Article 342 of the Constitution of India. As per Section 2 (ii) of the said act, the Hindu stood modify by customs prevailing in the S.T. community. The respondents have not denied the specific averments of the petition that the second marriage was solemnized by the deceased-employee with petitioner No. 1 as per customs prevailing in S.T. Community. Thus, the facts of the present case are different and the Division Bench judgment in the case of Sitabai Sinodia (supra) will not come in the way of the petitioners to get the benefits of retiral dues. This Court in Shakun Bai vs. Siya Bai, 1999 (2) MPLJ 307 held that there exists a custom in Gond community to have more than one wife. This Court further held that the petitioners and the respondents will get equal share in the money left by the deceased-employee namely Somnath. 16. The G.O.I. instructions/clarification on which heavy reliance is placed by Shri Sausarkar does not have any statutory force. The same is only an advice given by Ministry of Law. Thus, this is not even an executive instructions. The such instructions/extract is based on Section 5 of Hindu Marriage Act. As noticed, Section 2 (ii) of Hindu Marriage Act begins with a non-obstent, a clause which makes it crystal clear that nothing contained in the act shall apply to a person of Scheduled Tribe within the meaning of Clause-25 of Article 366 of the Constitution of India. In view of this overriding effect of Section 2, prohibitions/limitations mentioned in the said act cannot have any adverse impact on the present petitioners, who belong to S.T. Community. 17. In view of this overriding effect of Section 2, prohibitions/limitations mentioned in the said act cannot have any adverse impact on the present petitioners, who belong to S.T. Community. 17. In view of the aforesaid analysis, in my judgment, the respondents have erred in not extending the benefit of nomination in favour of the petitioner. The petitioners are admittedly legal heirs of the deceased-employee. Accordingly, I deem it proper to disapprove the stand of the respondent-department that the petitioners are not entitled to get benefits of pension/retiral dues. The petitioner No. 1 being widow of deceased- employee and remaining petitioners being children of deceased-employee are entitled to get pension/retiral dues as per C.C.S. (Pension) Rules, 1972. The respondents are required to work out their pension/retiral dues in accordance with said rules. Resultanly, the respondents are directed to treat the present petitioners as eligible/entitled to get pension/retiral dues of deceased-employee. The department is required to undertake the exercise of quantifying the pension/retiral dues from due date which is to be paid to the petitioners and the respondent No. 4 herein. The entire exercise be completed within 60 days from the date of production of copy of this order. The necessary payments be made to the eligible parties within aforesaid time. 18. The petition is allowed to the extent as indicated above. No cost.