High Court
Legal Reasoning
wp-1081.221 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1081 OF 2022Smt. Tilottama W/o Sharad Bansi,Age-47 years, Occu:Household,Through G.P.A. Holder,Prashant S/o Bhoraji Ahire,Age-41 years, Occu:Advocate,R/o-21, Ganesh Colony,Sakri Road, Dhule,Taluka and District-Dhule. ...PETITIONER VERSUS 1) The State of Maharashtra, Through its Principal Secretary, Rural Development Department, Mantralaya, Mumbai,2) The Chief Executive Officer, Zilla Parishad, Jalgaon,3) The Education Officer (Secondary), Zilla Parishad, Jalgaon,4) P.R. High School Society, Dharangaon, Taluka-Dharangaon, District-Jalgaon, Through its Secretary/President,5) P.R. High School, Dharangaon, Taluka-Dharangaon, District-Jalgaon, Through its Headmaster,
Legal Reasoning
wp-1081.2226) Smt. Mathabai W/o Ramlal Bansi, Age-84 years, Occu:Nil, R/o-Matoshri Nagar, Dharangaon, Tal-Dharangaon, District-Jalgon. ...RESPONDENTS ... Mr. S.B. Solanke Advocate for Petitioner. Mr. S.K. Shirse, A.G.P. for Respondent Nos.1 and 3. Mr. M.S. Sonawane Advocate for Respondent No.2. Mr. A.G. Talhar Advocate for Respondent No.5. Mr. Vinod P. Patil Advocate for Respondent No.6. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 30th JANUARY, 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent. 2.Present Writ Petition has been filed for following relief:-“(B)By issuing a writ of mandamus or any other writ, order inthe like nature, this Hon’ble Court may be pleased to direct therespondent Nos.2 to 5 to pay the pension and pensionary benefitsincluding gratuity, leave encashment and other benefits to thepetitioner, within stipulated period and for that purpose issuenecessary orders.” wp-1081.2233.The factual matrix leading to the Petition are that thehusband of the petitioner, Sharad Ramlal Bansi was working asan assistant teacher with respondent No.5 school as permanentemployee. Sharad died on 26th September 2020 at Gold CityHospital, Jalgaon due to Covid-19. After demise of her husband,the petitioner had filed applications to respondent No.3 forpayment of gratuity and other benefits and also with the prayerto start the pension in her favour. However, no action has beentaken by respondent Nos.2 to 5. The petitioner had filed CivilMisc. Application No.585 of 2020 before the Civil Judge, JuniorDivision, Dhule for issuance of heirship certificate. However,respondent No.6 had filed application under Order 1 Rule 10 ofthe Code of Civil Procedure for impleading her as party in thesaid proceeding. Accordingly, respondent No.6 came to beadded as party respondent. Further, respondent No.6 and oneSmt. Meena had filed Civil Misc. Application No.160 of 2020before the Civil Judge, Junior Division, Dharangaon for issuingheirship certificate. In the said proceeding, present petitionerand her son were added as party respondents. From the saidapplication, the petitioner came to know that said Smt. Meena isclaiming to be the second wife of deceased Sharad. The second wp-1081.224wife is not entitled to get pension and pensionary benefits inview of the provisions of Maharashtra Civil Services (Pension)Rules. The respondent authorities are not paying any heed to therequest made by the petitioner and they are insisting for heirshipcertificate. The respondent authorities are not forwarding thedocuments in respect of the pension and other benefits forfurther process. Hence this Writ Petition.4.Respondent No.6, who is mother of deceased SharadBansi, has filed affidavit-in reply. Respondent No.6 is contendingthat petitioner is not concerned with the service benefits ofdeceased Sharad. After the death of son, the mother is entitledto receive the service benefits. Proceedings had filed by herbefore the Civil Court for grant of succession certificate. Thename of the present petitioner is not appearing in the servicerecord of deceased Sharad and therefore, petitioner is notentitled to get any service benefits. 5.Heard learned Advocate Mr. Solanke for the petitioner,learned AGP Mr. Shirse for respondent Nos.1 and 3, learnedAdvocate Mr. Sonawane for respondent No.2, learned Advocate wp-1081.225Mr. Talhar for Respondent No.5 and learned Advocate Mr. Patilfor respondent No.6.6.At the outset, it is to be noted that it is not in dispute thatrespondent No.6 is the mother of deceased Sharad. Theapplication filed by the petitioner before Dhule Court appears tohave been dismissed in default on 7th February 2023. Butrespondent No.6 has admitted that she along with one Meena,have filed application before the Civil Judge, Junior Division,Dharangaon for succession certificate, to which the presentpetitioner and her son are party respondents. The copy of thesaid Miscellaneous Application has been filed on record. Thepleadings of the same would make it very clear that said Smt.Meena, who is applicant No.2 in the said Civil Misc. ApplicationNo.160 of 2020, claims that she is the second wife of deceasedSharad. Further respondent No.6 accepts that present petitioner,who is respondent No.1 therein, is the first wife of deceasedSharad and respondent No.2 therein is the son of presentpetitioner and deceased Sharad. It is the say of respondent No.6that as there was dispute between present petitioner anddeceased Sharad, their relationship got strained and then wp-1081.226present petitioner left the matrimonial home when she waspregnant of three to four months and thereafter never returned.There is absolutely no mention that there was legal divorcebetween deceased Sharad and the present petitioner before thealleged marriage between Sharad and Smt. Meena. Thus, whenpresent respondent No.6 along with Smt. Meena accepts thatpresent petitioner is the first wife of deceased Sharad, theburden is on them to show that there was legal divorce betweendeceased Sharad and present petitioner. Even the affidavit-in-reply filed on behalf of respondent No.6 is silent about it. 7.The position of law as regards the pensionary benefits isconcerned, it has been not res integra. The Full Bench of thisCourt in Kamalbai w/o Venkatrao Nipanikar vs. State ofMaharashtra and others, 2019 (3) Mh.L.J. 921, held that:-“The second wife in general parlance would not be entitled forfamily pension unless she is legally wedded wife. A second wifewho is not legally wedded wife would not be entitled for familypension under Rule 116 of the Pension Rules.” 8.Certainly, the mother would also be entitled to get thepensionary benefits as per the rules. The objection, if any, on wp-1081.227behalf of the petitioner to that effect cannot be considered takinginto consideration the legal position. In view of this position oflaw, respondent Nos.4 and 5 who are duty bound to forward thepension papers and other communication for release of thegratuity, leave encashment and other service benefits, ought notto have waited for the decision by any Court. We reiterate that inview of the plain and simple pleadings, the decision ought tohave been taken by respondent Nos.4 and 5 for forwarding thepension papers and other communications to higher authorities.Under the said circumstance, the Petition deserves to beallowed. Following order is, therefore, passed:- O R D E R(I)Writ Petition is hereby allowed.(II)Respondent Nos.4 and 5 to forward the pension papers andalso to make the other correspondence for release of gratuity,leave encashment and other service benefits to the petitionerand respondent No.6, as per the provisions of law, discussedabove, within the period of TWO MONTHS from today. wp-1081.228(III)After the pension papers and other correspondence asstated above is received to respondent No.3, he should takefurther necessary actions within a period of ONE MONTH,thereafter.(IV)Rule is made absolute in above terms.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/JAN24