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2018 DIGILAW 450 (KAR)

Adamsaheb v. Raziyabegum

2018-04-02

KRISHNA S.DIXIT

body2018
ORDER : 1. This Revision Petition is directed against the Judgment and Order dated 15.07.2017 made by the Family Court at Belagavi, whereby the application filed by the Petitioner/Defendant under Order VII Rule 11(d) of C.P.C-1908 seeking dismissal of the suit is rejected. 2. The brief facts of the case are, (a) The Respondent has filed a Civil Suit in O.S.No.58 of 2016 seeking a decree for declaration and mandatory injunction. Paragraph No.10 of the Plaint reads as under: “[10] It is most humbly prayed that setting aside the contentions of the defendants if any, a decree in the following terms may kindly be passed. (a) Declaring that Smt. Raziyabegum W/o. Adamsaheb Mulla is the nominee of Shri. Adamsab S/o. Babalal Mulla in his Govt. service records. (b) Mandatory injunction be granted with the direction to the defendant No.1 to 7 jointly and severally to enter the name of Smt. Raziyabegum W/o. Adamsaheb Mulla in the service record of defendant No.1. (c) Any other relief this Hon’ble court deemed fit. (d) Permission to amend the plaint if necessary.” 3. After service of summons the Defendant appeared before the Court and filed his Written Statement resisting the suit claim inter alia contending that, the prayer in terms of Paragraph No.10 of the Plaint above is legally not maintainable. Respondent/Plaintiff regardless of her marital status does not have a litigable interest and in any circumstances there is no choate cause of action on which suit can be founded, etc., although the contentions are so much articulated or pointed. 4. The Petitioner/Defendant also filed an application under Order VII Rule 11(d) of C.P.C.-1908 seeking rejection of the Plaint/dismissal of the suit on the same grounds. The Respondent/Plaintiff filed her objections to this, specifically contending that wife’s right to nomination in the husband’s Service Register maintained by the Government is not dependant upon the whims and fancy of the Government servant inasmuch as there are various service rules put into the place. 5. The Court below considered the rival contentions of the parties as to the maintainability of the suit and made the Judgment and Order dated 15.07.2017 rejecting the Revision Petitioner’s application for dismissal of the suit. The same is in challenge before this Court. 6. 5. The Court below considered the rival contentions of the parties as to the maintainability of the suit and made the Judgment and Order dated 15.07.2017 rejecting the Revision Petitioner’s application for dismissal of the suit. The same is in challenge before this Court. 6. The learned counsel for the Petitioner firstly contends that, it is exclusively the right of Government servant concerned to decide, whether he should nominate any member of his family as a nominee in the Service Register, either for the purpose of receipt of Death Cum Retirement Gratuity (for short ‘DCRG’) or for other terminal benefits or for compassionate appointment as the case may be. He further submits that, in any event there is no justiciable right vested in the spouse to compel the husband to make her the nominee for the service benefits. 7. Per Contra, the learned counsel for the Respondent/Plaintiff submits that, the matter of nomination is longer left to the sweat will of the civil servant of the Government, inasmuch as it is also a condition of service regulated by the provisions of Rule-302 of the Karnataka Civil Serves Rules, (for short ‘KCSR’) in relation to DCRG and Rule-7 of the Karnataka Government Servants (Family Pension) Rules, 1964. He submits that, these rules having been promulgated under Article 309 of the Constitution of India or the Karnataka Civil Services Act, 1978 have statutory force and there violation gives the spouse of a civil servant a justiciable right to litigate. These Rules, according to the counsel impose an obligation on the person employed in the Government to nominate his or her spouse in the Service Register. 8. I have carefully considered the rival contentions of the parties. Rule-7 of the KGS (Family Pension) Rules, 1964 defines “Family” for the purpose of grant of Family Pension. The definition of Rule-7 of the said Act, reads as under: “7. In these rules unless the context otherwise (sic) ‘Family’ means the following relatives of a Government servant; (a) Wife or as the case may be, Husband; (b) Minor [sons]; (c) Unmarried minor [daughters];” 9. Obviously the wife is included in this definition. Rule- 8 of the said Rules, reads as under : “8. In these rules unless the context otherwise (sic) ‘Family’ means the following relatives of a Government servant; (a) Wife or as the case may be, Husband; (b) Minor [sons]; (c) Unmarried minor [daughters];” 9. Obviously the wife is included in this definition. Rule- 8 of the said Rules, reads as under : “8. Family Pension admissible under these rules shall be sanctioned to the Family of the deceased Government servant in the following order.- (a) Where the Government servant dies leaving his or her surviving widow or widower, to such widow or as the case may be widower of the Government servant.” 10. On the basis of the text of these rules, the learned counsel for the Respondent submits that, in the event of death of the Civil Servant, his spouse will be entitled to Family Pension and this right to receive the Family Pension gives her the right to have her name as the nominee in the Service Register. 11. The learned counsel for the Respondent/Plaintiff also reads Rule-302 of KCS Rules, which defines “Family” for the purpose of nominations in relation to DCRG as under : “302. (i) “Family” for the purpose of this rule will include the following relatives of the Government servant, namely :- (a) wife, in the case of a male Government servant, (b) husband, in the case of female Government servant, (c) sons including step-children and adopted children, (d) unmarried and widowed or divorced daughters, (d) brothers below the age of 18 years and unmarried or widowed or divorced sisters, (e) brothers below the age of 18 years and unmarried or widowed or divorced sisters, (f) Father including adoptive parents in case of individuals whose personal law permits adoption, (g) Mother including adoptive parents in case of individuals whose personal law permits adoption, (h) Married daughters, and (i) Children of predeceased son. 12. On the basis of the text of this rule, the counsel for Respondents submits that, the wife will have a legal right to receive the DCRG and this right necessarily includes the right to have her name entered in the Service Register of the civil servant husband. He further submits that, an argument to the contrary would be defeative of the object of these rules which intend to protect not only the private interest of the family members of the Government servant, but a larger object that underlines these rules. 13. He further submits that, an argument to the contrary would be defeative of the object of these rules which intend to protect not only the private interest of the family members of the Government servant, but a larger object that underlines these rules. 13. The learned counsel for the Respondent quotes paragraph No.14 of the Judgment dated 04.01.2002 rendered by the Division Bench of Andhra Pradesh High Court in the case of Gettem Israil v M. Siromani in support of his contention. The said paragraph reads as under : “14. Since plaintiff continues to be the wife of 1st defendant and since as per the Regulations of the 2nd defendant, family members can only be nominated to receive the death or retrial benefits, 1st defendant nominating Koteswaramma as his wife is not proper. The 1st defendant, after taking steps to get the marriage between him and the plaintiff dissolved, only can make such a nomination, but till such time as the marriage between him and then plaintiff is subsisting, he cannot nominate a woman who is not his wife or a family member to receive the death or retiral benefits.” 14. The learned counsel for the Petitioner banked upon the Judgment of the Apex Court in the case of Sarbati Devi (Smt) and another v. Usha Devi (Smt) reported in (1984) 1 SCC 424 as to the rights of the nominee in a Life Insurance Police. He contends that, nominee is mere in the nature of a trustees who would receive benefit and hold it in trust for and on behalf of those who are legally entitled to the say. The head note of the judgment prepared from paragraph No.5, 8 and 12 reads as under : “A mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. Under Section 39 the policy-holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy-holder. Under Section 39 the policy-holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy-holder. Therefore, on the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. Section 39 does not operate as a third kind of succession which can be styled as a ‘statutory testament’. A nominee cannot be treated as being equivalent to an heir or legatee. The amount received under the policy therefore, can be claimed by the heirs of the assured in accordance with the law of succession governing them.” 15. The learned counsel for the Petitioner/Defendant also banks upon the Judgment of this Court in Shakuntala Bai and Another v. Sailatha Anand reported in ILR 2005 KAR 4550 which in turn refers to Sarbati Bai’s case. It does not lay down any new law or otherwise defines the scope of ratio of the above case, either. But, it only follows the judgment of the Apex Court. 16. It is true that, the Service Rules which the learned counsel for the Respondent reads prescribe a duty to the civil servant to nominate any one of the persons enlisted in Rule-7 of the KGS (Family Pension) Rules or Rule-302 of KCS Rules for the receipt of certain service benefits. But the corresponding right to this duty is vested in the employer Government. In other words, it is a bargain between the employer and the employee which is regulated by these Rules which do not intend to vest any justiceable right in any member of the family including the spouse. The Government servant can change/alter the nomination in accordance with the rules. Therefore even if there is an infraction of this Rule, no cause of action accrues to the spouse or any other member of the family of the Government servant. 17. The contention of the Respondent/Plaintiff that, her right to receive the Family Pension under Rule-7 Read with Rule- 8 of KGS (Family Pension) Rules, 1964 includes the right to have her name entered as the nominee in the Service Register is misconceived. 17. The contention of the Respondent/Plaintiff that, her right to receive the Family Pension under Rule-7 Read with Rule- 8 of KGS (Family Pension) Rules, 1964 includes the right to have her name entered as the nominee in the Service Register is misconceived. The grant of Family Pension is to the widow or the widower as the case may be when the employee dies in harness after putting in the qualifying service. It does not depend upon who the nominee is although such nomination eases the task of employer in identifying the widow or the widower or the children who are entitled to Family Pension in variable conditions. So also, the right of a person to the appointment on compassionate ground does not depend upon he or she being the nominee in the Service Register. Those rights are governed by the Rules concerning grant of compassionate appointment. 18. The learned counsel for the Respondent-wife is not justified in placing reliance on the decision of Andhra Pradesh High Court in the case of Gettem Israil in as much as there, the husband had nominated a particular lady who was not in a relation enlisted in the Service Regulations. There is a lot of difference between the right of a spouse to seek for nomination and the right of the husband to nominate a relative who is not enlisted in the service regulations. It has long been settled by the decision of Lord Helsbery in Quinn Vs. Leathem reported in [1901] AC 495, that a case is an authority for the proposition that it actually lays down and not for all that logically follows from it. This apart, the facts of Gettem Israil’s case differ from the facts of this case. Therefore, the said decision of Andhra Pradesh High Court does not come to the aid of the Plaintiff. 19. The very important aspect which both the counsel on either side miss is that Article 309 of the Constitution of India empowers the Central or State Government to promulgate the rules governing the conditions of service and therefore such rules must necessarily confine to the relationship between the employer and employee. The rules relied upon by the Respondent – Plaintiff have to be understood ordinarily in this background. These rules create a right in the employer and the corresponding duty in the employee. The rules relied upon by the Respondent – Plaintiff have to be understood ordinarily in this background. These rules create a right in the employer and the corresponding duty in the employee. In any circumstance, the breach of such a rule is not intended to give a cause of action or right of action to a third party like the spouse. In other words, these rules do not vest a justiciable right in the spouse so that when there is a breach, she can knock at the doors of the Court or the Tribunal for redressed of her grievance. 20. The contention of the learned counsel for the Revision Petitioner that, the nomination only makes the nominee a trustee who has a right to receive the specific benefit for and on behalf of those who are otherwise entitled to the same in accordance with the personal law applicable to them has got lot of force. The said legal position is well established by a catena of decisions of the Apex Court and of this Court too. The provisions of Rule-302 of KCS Rules do not alter this position at all. Therefore I hold that, the Respondent/Plaintiff does not have a litigable interest or a choate cause of action to maintain the suit in question. 21. For the above reasons, I make the following ORDER (i) The Revision Petition is allowed; (ii) The impugned judgment and order are reversed; (iii) The suit of the respondent/wife in O.S. No.58 of 2016 pending on the file of the Family Court at Belagavi is hereby dismissed as being not maintainable; (iv) However this judgment does not come in the way of respondent wife making a representation to the Government for the redressal of her grievance agitated in the suit; (v) Costs made easy.