Services(Home), appearing on vs State of Maharashtra and Others dealt by High Court

Order

Heard Sri Muhammad Veqar Hussain, learned counsel appearing on behalf of the petitioner' learned Government Pleader for Services (Home)' appearing on behalf of resPondents' ,2 T e titi ne a h r e as und er: "...to iss.ue a writ in nature of Writ of Mandamus declaring the action of Respondent No'2 in rejecting the Petitioners' Pension Application dt' 24-08-2021 through Memo dt. 17-03-2022 vide No' E1l1101/Pension/ CYB/ 2O2O-2O22 as illegal, arbitrary, unconstitutional and in violation of TS Revise Pension Rules and also in violation of the Judgments of the Apex Court of india and also in violation of Article 21 of Indian Constitution and pass such other order or orders may deem fit and proper in the circumstances of the case' Consequently' to set- aside the Memo dt' t7-03-2O22 vide No' E]I/ ll}l/ Pension/CYB/2020-2022 issued by the Respondent No' 2 in the interests of justice"'

3.Thecaseofthepetitioner,inbrief,isthatpetitioner,Slate husband Mohd. Abdul Khader worked as Sub-Inspector of Police r 2 SN, J \\,P 35094 2023

and retired l,rom service on 31.03.2010 on superan luation and was rece vin<y pension and later, died on 28.08.2020. During the lifetime ,tf t re petitioner,s late husband, the petitroner,s late husband laci nominated his first wife i.e., Shabbeer Banu as his nominee n rrrncerned records and thereafter, the sairl Shabbeer Banu died or 16.L2.2077. It is further the case of tho petitioner that petiti tner,s late husband i.e.,Mohd. abdul Khader got legally married tr, the petitioner herein, on 24.0L.L996 as pr31- Shariah and Moha lrmr:dan Law and had been blessed with a son by name Mohamrred Abdul Muqtair on 29.11.1996 Th e petitioner submitted an application dated 24.08.202I for familv pension with effect frorn 29.08.2020 before the 2nd respondent but the 2nd responclent erroneously rejected the said application of the petitioner flrrotgh Memo dated 17.03.2022 vide procee(jiHgs No. E1l1101/persiot/CyB/ 2020_2022 without foilowing the statutory laws and solely relying on the proviso of Rule 50 Sub-Rule (( ) o. the Telangana State Revised pension Rules, which is contrar.y to Rule 25 of A. p. Civil Services ({)onduct) Rules, 1964. !.rlgrieved thereby, the petitioner approached the Court by filin3 th,: present writ petition. PE U s DT ECORD. 3 4 The Pro c ME o vide SN, J wP 35094 2021 o, ElILLo LI n 2 20- 2 o fice of hec e her n r o 2 2 s sro er ofP b i *with reference to the above cited, Smt Ahmedi wife of Sri late Md. Abdul Khader' SI has Anjum,2nd submitted pension papers along with Death Certificate and requested for sanction of family pension and pensionery benefits vide reference 1st cited' Further, while verifying the Service Book of the deceased employee, it is found to the notice of that' Sri Abdul Khader, SI (Retd) had performed second marriagewhileinservicewithoutanypriorpermission from the competent authorities' even first wife was alive, which obeys the Rule 50 Sub-rule (6) of TS Revised Pension Rules, Family pension is not admissible to the second wife as marrying another wife, (when one wife is living) without obtaining the approval of Government, is contrary to Rule 25 of A'P' Civil Services (Conduct) Rules' 1964' view of the In papers along pension respect of Smt Ahmedi Anjum' Abdul Khader, are returned family Pension benefits"' above circumstances, the with relevant documents in 2'd wife of Sri late Md' due to ineligibilitY of *t

5. Co r a res o delt No No.9 of r.hg_ 2 c 4 v th s e nf el v nt a o n a a ee tr c e SN, J wP 35094 2023 b h tf 4 n a h er: "In reply to para 4 & 5 : It is respectfully submttted that, all th,: avr:rments in this more particularly the diseased Late t4ohc. Abdul Khaderpara res a r r' ma rr ed,n " r",,,,"]11 ;':Trl"lil T. j Tjl],::: to merticr that in the application dt:24.Og.2L2lsubmitted by the petitioner mention wire * e s,r:tirioner r.,-.,"o"ortin-ot iff:t[".""1t:J ff;:: wife said to be expired on 76/t2/2oL7. Thereforr: the marria le 5etween the petitioner and Mohd. Abdul Kha Cer is false one. Hence present writ petition deserves to be dismiss ed irr limini. In reply t() para 6: It is respectfully submitted thai, we have re ceiv:d two applications one from the petitione,. (on 24/08/2 02 t ) and also < rhe 24 / ) B / 20 2r,,,.,,"n,i"t T ;T" T:'i]i"i""t : [;* Abdul r(hader and inf -:".::r;';:,;; 28 / o B/ 2 ) 2c a n d th ere T":, ::::"":"," pension on the ir nam€ appricati )ns. we n "," *.,oli1ll';J,." T:::r1 :h"i: Abdul Kl ader., and found mentione d i1 the Famiry ;:HJ:^.'":'il:il":"H,lj rotts in tlre F,ension proposals submitted O,,i",Jno. oOOr, Khader, Horv:ver as the n"'" informed as Mohd'Abdul Khader \^ as e rxpired on ;' 8/08/2o2o' as such' the same is noted. Both llre petitioner i'e' herein and one smt shaheen Begum, irr th.ir appricatic rn they have mentioned that, the -- ,-r, -. .-.. :,,. -:na,;t*,- 5 SN, J wP 1s094-2023 flrst wife of Mohd. Abdul Khader' Smt Shabbir Hano was expired on t6112/2017' But there after her death only these two women married Mr' Abdul Khader' The rule 25 of The Civil Services (Conduct) Rules 1964' it is very ar that, Rule 25. Bigamous marriages; which reads Tela nga na crystal cle an under:- (1) No Government employee who has a wife living shall contract another marriage without first obtaining the permission of the Government' notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him: [Provided that where the personal law provides for second or subsequent marriage, the Government employee shall while seeking permission to contract another marriage' produce documentary evidence in support of "Divorce or Talaq" in respect of previous marriage and the manner in which the same was secured or pronounced and intimated to the first or former wife.l [(2) No female Government Servant whether un-married or widowed or dlvorced, as the case may be' shall marry any person who has a wife living wlthout first obtaining the permission of the Government' through the parties are governed by the personal law which otherwise permits contractingmorethanonemarriagewhilethepriormarriage is subsisting. T r r r v r n w T .i ., Lgfi-t 6 f s r e tn vt ew of e petition fantlr_ .Keepino are reier;ted. SN'J \['P ]5094 2023 o r the above, n s u the AD Dli e n e r s d Be u In reply to para 7,g,g & 10: Are being the refererrces of vaTiot.rs jr_ dgments of hor to rh€ presenr case, as,J;:ffi"T]lj i.lliiijl:;lj intima tion or permissio the deceased em:loyee regarcing to his second permitred under his ,".J:i'',:t-: il:'::,,:: :ffi.; family pen!;ion without submitting proper documents,,. DISC o D o L I

6. The earrred counsel appearing on behalf of i:he Detitioner submits that th,: petitioner herein is the 2nd wife of Mohd. Abdul Khader, S.I, of )oiice (retired), who had been legally married to the petitionor orr 24.01.1996 as per Shariah and Moharnmedan Law and had bee n blessed with a son by name Mohammerd Abdur Muqtadir on 29.11.1996 and as the petitioner being the legally wedded 2nd wife of the deceased employee, the petitioner is erigibre for faniry pension of late Mohd. Abdul Khader with effect from 29.08..t02C in view of the Fact that the petitioner,s deceased hus5anrl Mohd. Abdul Khader had nominated his first wife by name Shabbeer Banu as his nominee and thereaft,_.r, his .,: g 7 SN, J wP 35094 2023 first wife Shabbeer Banu died on 16'12'2017 and the children of late Shabbeer Banu are not claiming any pension and therefore, the petitioner is entitled for familY Pension' an aPPlication on 24.08.202t for necessary certificates for sanction of 29.08.2020 before

7. The Petitioner made familY Pension along with family penslon ln her favour with effect from however, the 2nd the 2nd resPondent, petitioner's application throuqh Memo erroneouslY reiected the dated 17.03'2022 relying on the proviso of Rule S0 Sub-Rule (6) of T.S. Revised Pension Rules' resPondent had

8. The learned counsel appearing on behalf of the Petitioner contends that since it is very crearry indicated in the information furnished bY the deceased employee's son by name M'A' Muqtadir that in his Secondary School Certificate' his date of birth is 29.71'1996, and petitioner's name is indicated as his mother and the name of petitioner's late deceased husband Sri Mohd. Abdul Khader as his father' the petitioner had ample evidence indicating that the petitioner is the mother of said Mohammed Abdul Muqtadir who is shown as a family member of the deceased emploYee at Serial No'6 as per official records during the life time of petitioner's deceased husband' hence' the 8 wr, :sosa-liljj by personal petition()r,s claim cannot be rejected since petitioner is governed Law and the petitioner has sufficient ,:vidence on record s/royy ng that the petitioner is the legally wedrjed 2nd wife of the d:cetrsed employee. The learned counsel aflpearing on behalf ,:f tho petitioner also contends that petitionr:r was not provided witl a reasonable opportunity to put-rorth petitioner,s case before the 2rd respondent herein prior to passing of the impugned orrlers, dated 17.03. 2022 by the 2no respondent herein rr:je,::ing petitioner,s pension application, dated

24.08.202 t_. (Home), Jeceased 9, The learred Government pleader for Services appearing on tehalf of respondents submits that the employee ft iled to obtain prior permission of the Government for his second narr-iage whi ch is mandatory as per Rule 25 of the Telangana c vil :;ervices (Conduct) Rules, 1964 and further, the deceased ernp.c,yee Sri Mohammed Abdul euader lad not indicated the pe titioner,s name as 2nd wife in the particulars furnished by hinr to the Department though he clearly indicated the name of the son as M.A. Muqtadir at Serial No.6 and the deceased entplo zee sont date of b,rth as Therefore, the per:itioner is not entiUed

29.71.7996. for the relief as prayed - .,,. *.x.;;l_.*;_x;;*;Si&$l 9 SN, J wP 35094 2023 for in the Present writ Petition and the Present writ Petition needs to be dismissed' o rt n h e

10. 12 scc2 1oi sta ofJ arkh n f An n r va K m r e t e 1 a d V Iitendra r o 1 n 1 observed as under: "16. The fact remains that there the legal principle that the right to recognized as a right in "property"' Constitution of India reads as under: is an imprimatur to receive Pension is Article 3OO A of the *300-A. Persons not to be deprived of property save by authority of law"' - No person shall be deprlved of his property save by authority of law"' once we proceed on that premise' the answer to the question posed by us in the beginning of this judgment becomes too obvious' A person cannot be deprived of this pension without the authority of law' which is the Constitutional mandate enshrined in Artlcle 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced' 17. It hardly needs to be emphasized executive instructiofls are not having statutory and, therefore, cannot be termed as "law" that the character within the I I I l I 10 u*-''* ilii meaning of aforesaid Article lnna ^^ !L - , 3004' on the basis of such a circl rar, which is no, n't'" ca n n ot lr,ith h ord even " ;#'"rt"r'"'": ll i-I;.jij,r,r^:,,il noticed :bove, so far as s utory rules are concerned, there is nc pr()vision for withh pension or- gratuity in the giver sitL ation. gaa tnereTing rures, thr: postion *",,r;li"iil,o,i,::H::"is on in these

11. fn the case of "Kamalbai W/o. Venkatrao Nipanikar Versus S tater of Ma harashtra and Others dealt by High Court of Bontbay (Aurangabad) Full Bench),, reported in 2O19 SCC OnLine Bom.22L9 (2019) 3 Mh. LJ s21 (FB) (2019) 3 ArR Bom. R. 642 2O19 Lab rc 2s66 (FB) (2019) 3 KLr. (sN 3e) 28, passed in w.P. Nos. 9933 11256 anrt 1t23OB of 2Ot6 dated 31.O1.2019 at para .47 t so erved as under: "47. Ct(,nsidering r Rures, I t7, t72, ;;.,";"i::',:;''::.;':::"H,r; amendeo or 1g.01.201 repraced by:rre word "r: [J::':_,r: Hil:.;.,::; (a) (i) re erred in earlier ou* ot the judgment and decis on of the A,ex :ourt in ,n state of eir,". 1.rp."y, ffi.T.:: ;:5H:::ff:. :; woman in voirl marriage is not a widow, I .o*r.-,r,,n anu view expr.ess(rd by my learned brother Justice s. V. Gangapu|walr that the wife in generar parran(:e wourd not be :.rtired ,o. ,,tutono lmily pension unless she is Iegally t1 SN, J wP 3s094 2023 wedded wife' A second wife who is not legally wedded wife wouldnotbeentitledforfamilypensionunderRulel16of thePensionRules'However,asecondwifeifislegally wedded wife would be entitled for family pension' Rule 116 (O) (a) (i) of the Pension Rules cannot be read de hors the concept of legally wedded wife and that the view taken by the Division Bench in the case of Chanda Hinglas Bharti vs.stateofMaharashtra(supra)'RamabaiGulabrao Jamnik (supra) and the view of the learned single Judge in the case of Indubai Jaydeo Pawar and another (supra) appears to be correct view"' t2. n h a e c ofB 6 5 o o 2020 3 o R 7 ,,r o 1 s f d dA erV rs s t lr m oft e 2 co Li 2 AI B 3 in W. o 6 7 o 2 1 t 4 20 r N 1 o n r "12. In view of these conflicting decisions' the matter referred to Full Bench of this Court in case of Kamlabai VS. State of Maharashtra (2019) (3) Mah. L.J. (FB) 921. Ihe sider tion asw et er seco d tionf or n theFull Be ch hasanswered the rss ue th t f e u CO t n r D w c nt f n n it h s entitted for familv Penslon . In fact all these ludgment I 12 u], 15094 t, U wp6 g 7:r. 16 the prrr ",is mafl iage s spec fied in decisions relate to parties who are governe dbv rons of Hindu Marriage Act. Apparent y, any olemnized in contravention to the co-tditions Clauses til, Iivl and [v] of Section 5 would be void ma:r-iag e within the meaning of Section 11 of th(l Hindu Marri:ge A ct. In that context, it is expressed that a second wife is nct a lega lly wedded wife and therefore, she cannot be ,:a llec a s a widow and th erefore she is not entitied to family pension that rf th she is the p rrties marria le is p void, a nd t.herefore, second witb Ganeshibai Ghasira m, rJec 75 of U^e 19 93 n As elaborated erbove unity where s econd e said marriage s not rnage being legal. the can be termed as wido\v of eased railwa y employee, and in view of Rule Rules she rs entifled to family pension,, In the above case oF Union of fndia and Another cited (supra) the Divisjon Bench had clarly clarified that if ther second wife is leqa lly weddgj wife, then she is en >r re ls entitled fo. family pension. are from Gond comm ermissible in custom. Th the second ma d h e H a n r

13. fn the f is observed as under: SN, J -;&.*;&i 13 sN, I wp 35094 2023 *16. At this stage, we would like to address the effect of "Conduct Rules", while determining the claim of the family pension. As noted earlier, the learned Single Judge has referred to Rule 26 of the ,,Conduct Rules"; which has put a second marriage. certain pre-conditions for contracting not totallY Prohibit AdmittedlY the "Conduct Rules" do marriage, provided it is permitted under the personal law and custom of the concerned Government employee' The only rider is to obtain permlssion from the Government' In our considered opinion, any violation of the Conduct Rules may entail disclplinary proceeding during the service tenure of a Government employee but any such viotation does not amount to declaring 2nd marriage between the two Muslim spouses void, provided it is otherwise legal and valid' Hence' the rejection of the claim of a second Mohemadan wife with the did of "Conduct Rules" is unsustainable in law'

17. In the case of Deokinandan Prasad (supra)' their Lordships have held that ,,Pension is a property of a Govt' servant and withholding of the same for no valid reason offends Article 19(1Xf) of the Constitution of India' In our view also a "property" is an actionable claim and the rights and liabilities over such properties have to be determined in accordancewiththepersonallawsoftheparties.Inother words, we are of the opinion that the view taken in the case of Amina Khatun (supra) appears to be more rational than in the case of SuraiYa sultana the judgment rendered (supra).

18. For the foregoing reasons, we are in agreement with the view taken in the case of Amina Khatun (supra) tn I 1 l i l I I I i 14 :re,rce to the decision taken in Su rra ) as well as the impugned judgment. mpugned judgment is hereby set aside. (sul \\'P 15094 SN, J 2023 Drop Assa cla rif Mohe ratio, Y_li e ratio of the w a h r m a f c o e t h ef m a o MD nt ctvllco urt. 19. In thr_. result, the appeal stands allowed, subject 1.o the obse:v:tic,rrs made in the preceding ,u.rgr"pnr,,. 14. A bar.e p-.rusal of the view taken by the Division Bench of the Gauhat Hicrh Court at para No.16 (referred to and r:xtracted above) cle.rrly indicates that in the event employee fails to obtain prio - permission as mandated under the t{ules of intimating t he Government, disciplinary proceedings may be initiated aqainst the said employee. But the said lapse on the part of the rieceased employee cannot amount to decraring 2nd marriage between the two Muslim spouses void, provid3d it is otherwise leg:l and valid. A bare perusal of the para No.1fi of the said judgment cloarly indicates that in the said case, ther Court felt that the vr rit f )etitioners therein are entiUed for proporlionate 15 SN. J wP 35094 2023 Family Pension, which would be determined by the office of the AccountantGeneral,Assamandforthispurposethesaid authority may ask both the surviving widows of the deceased to clarify the ratio of their claim in accordance with the Mohemadan law and further in the event of any dispute about the ratio' the parties may be asked to bring appropriate decree from a competent Civil Court.

15. This Court opines that the reasons assigned in the impugned order of the 2nd respondent' dated L7'O3'2O22 rejecting the request of the petitioner for grant of family pension made vide petitioner's pension application' dated 24.OA.2O21 are not tenable in view of the fact that the deceased employee died on 28'O8'2O2O and the 1"t wife of the deceased employee expired on 16'12'2o17 itself even before the death of the petitioner's deceased husband late Mohd' Abdul Khader and since admittedly as borne on record parties are governed by Mohemadan law' This Court also takes note of the fact as borne on record and even admitted by the learned Government Pleader for Services (Home) that the deceased employee had indicatedsecondwife'ssonasfamilymemberinthe i i I 7 I 16 SN. -I wl, 3 i09,1 2023 particulrrs furnished by him during his life time,, As borne on recr)rcf , in the Secondary School Certificate of petitionr:r's son, his date of birth is mentioned as 29.11.19,96 and the said certificate issued in the year 20L2 irrdicates petitioner,s name as mother and petitioner,s late husband,s name i.e., Mohd.Abdul Khader as father. This court opines that the representation of the petitioner- darted 24.Og.2O21 seeking family pension with effect from .29.0g.2020 had been rejected mechanically by the 2nd rerspc,ndent without application of mind, without providing an opportunity of personal hearing to the Petitioner a rrd all concerned in clear violation of principles of raturat justice and hence, the subject issue needs to tre reconsidered in the light of the observations of the Cou rts in the Judgments (referred to and extracted above) in :rccc,rdance to taw, in conformity with principles of natural j ustice,

16. Takino int oco nsr dera ion:- a) The afor(:said facts and circumstances of the case. b) The srrbmissions made by the learned counset appearing on beharf of the petitioner and learned SN' J wP 35094 2021 Government Pleader for Services(Home), appearing on behalf of the respondents' c) The contents of SSC certificate issued to petitioner's son in the Year 2O1-2 d) The judgments of the Apex Court and other Courts enlisted below (referred to and extracted above):- i) In State of Jharkhand and Others Vs' litendra Kumar Sravastava and Another" reported in (2013) 12 SCC 210 ii) In Kamalbai W/o' Venkatrao Nipanikar Versus State of Maharashtra and Others dealt by High Court of BombaY (Aurangabad) Full 2019 SCC OnLine Bom'2219 iii) In Union of India and Another Versus Ganeshibai Alias Sunderibai W/o' Late Ghasiram of the High Court of Bombay reported in 2O2O SCC Online Bom Bench)" rePorted 615 iv) In Sirazun Nessa Versus State of Assam and High Court of Gauhati" rePorted in Others of the (2012) 5 Gauhati Law Reports 15' I l8 SN, J wP 35094 2023

24.O8.2027, Ac,:orclingty, the writ petition is allowecl and the tmpugne:d proceedings vide Memo No,E7/L7oL/ Pension,'cyt3/2O2O-2O22, dated lr7.o3.2o22 is set aside and the rnatter is remitted to the 2nd respondent herein to reconsidr:r the application of the petitionL,r dated duly taking into consideration the observa tio n s in the judgments referred to and extracted above in acc,lrdance to law, in conformity with prin ci ples of natura ;us;tice by providing an opportunity of personal hearing to the petitioner and all concerned and pass aPProPrial:e crders pertaining to the request of the petitioner for sanction of Petitioner's application, reconsidering petitioner,s specific plea that the petitioner is legally vrecl,jed second wife of the deceased employee Sri Mohd. /\bct.rl Khader, within a period o f six (6) weeks from the d,rte of receipt of a copy of this order and duly communicate the decision on petitioner,s application dated 24.08.202L to the petitioner. However, there shalt be no order as i:o costs. family pension made dated 24.O8.ZOZI l9 SN. J wP 15094 202i Themiscellaneousapplications,pendingifany,shallstand closed. ,,TRUE COPY/' SD'-A.V.S. EPUTY RE PRASAD GISTRAR SECTION OFFICER To riat HYderabad' State 1Th e Principal Secretary' Department of Home' Sec of Telanagana f Police, C missioner o The Co Two CCstoGPFO R HOME, High Court for the State of Telangana, at 2 HAMIMAD to SRI MU a One CC J 4 Hyderabad [our] 5T wo CD CoPies hi Bowli HYderabad-500032 AIN, Advocate toPUCI vberabad, EQAR H Gac USS PSK, BS HIGH COt,R-r DATED:1 1t03it212i CC TODAY i r;r =1:- AT€ o 1 ?- t-? rt It $N6 I A.; ,Lf2Y ',\-, .t/./ i 'S-;::- ORDER WP.No.35094 of 2023 ALLOWING TFIE WRIT PETITION WITHOUT COSiTS o*S! /s\