# Chandra Kali v. The State of U.P.&Ors

- **Citation:** (2019) 1 ILRA 755
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-31
- **Case number:** Writ-A No. 3288 of 2017
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-kali-v-the-state-of-u-p-ors-44472
- **Pages:** 8

## Headnote

A. Hindu Marriage Act, 1956 - Civil
Service Regulations- U.P. Retirement
Benefit Rules, 1961- U.P. Government
Servant Conduct Rules, 1956 - The
second wife, not being a member of the
family, is not eligible to family pension,
as long as, the first wife survives. Second
marriage with the eighth respondent
after the commencement of the Hindu
Marriage Act, was void and a nullity in
the eye of law.
Second wife would have no right of being a
legally wedded wife and would not fall within
the definition of ''family' of the employee. The
sixth and seventh respondent being nephews
of the deceased employee are also not family
of the employee within the definition of
''family' under the Rules, 1961. Release of
family pension to the first wife of deceased
employee refused due to pending litigations
between the petitioner and nephews and
second wife of the deceased employee. (Para
20,24,25,26,27)

Writ Petition allowed.

Case Law discussed/relied upon:-

## Text

1 All. Chandra Kali Vs. The State of U.P. & Ors.
755
this Court on 20 November 2007.
Petitioner pursuant thereof, continued in
service, however, has not been paid post
retiral dues due to the pendency of the
instant writ petition.

21. Having due regard to the facts and
circumstances of the case, the impugned
order dated 14 May 2007, passed by the
fourth respondent is set aside and quashed.
The writ petition is allowed. Petitioner is
entitled to post retiral benefits, to be released
by the fourth respondent within three months
from the date of filing of certified copy of
this order, failing which, petitioner shall be
entitled to interest @ 7% on the entire
amount from the due date.

22. No cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 3288 of 2017

Chandra Kali ...Petitioner
Versus
The State of U.P.&Ors. ...Respondents

Counsel for the Petitioner:
Sri Jitendra Prasad Mishra, Sri Santosh
Kumar
Upadhyay,
Sri
Vinod
Kumar
Upadhyay

Counsel for the Respondents:
C.S.C., Sri Mahadeo Singh Chandel, Sri
V.S. Chauhan

A. Hindu Marriage Act, 1956 - Civil
Service Regulations- U.P. Retirement
Benefit Rules, 1961- U.P. Government
Servant Conduct Rules, 1956 - The
second wife, not being a member of the
family, is not eligible to family pension,
as long as, the first wife survives. Second
marriage with the eighth respondent
after the commencement of the Hindu
Marriage Act, was void and a nullity in
the eye of law.
Second wife would have no right of being a
legally wedded wife and would not fall within
the definition of ''family' of the employee. The
sixth and seventh respondent being nephews
of the deceased employee are also not family
of the employee within the definition of
''family' under the Rules, 1961. Release of
family pension to the first wife of deceased
employee refused due to pending litigations
between the petitioner and nephews and
second wife of the deceased employee. (Para
20,24,25,26,27)

Writ Petition allowed.

Case Law discussed/relied upon:-
1. Nutan Kumar versus IInd Additional District
Judge, Banda and others, AIR 1994 ALL 298

2. Shubham Shukla and others vs. State of
U.P.) 2018 (8) ADJ 709

3. Shakuntala Devi (Smt.) Versus Executive
Engineer, Electricity Transmission Ist U.P.
Electricity Board, Allahabad and another,
(2001) 1 UPLBEC 869

4. Rameshwari Devi Versus State of Bihar and
others, 2000(1) ESC 577 (SC)

5. Manno Singh vs. State of U.P. and others,
2014 (9) ADJ 701 (E-3)

(Delivered by Hon'ble Suneet Kumar, J.)

1.

Heard
Sri
Vinod
Kumar
Upadhyay,
learned
counsel
for
the
petitioner, learned standing counsel for
the State-respondents, Sri V.S. Chauhan,
learned counsel appearing for the sixth,
seventh and eighth respondent.

2. The husband of the petitioner, Sri
Baijnath Gupta was appointed Assistant
Teacher in an Intermediate Institution in
756 INDIAN LAW REPORTS ALLAHABAD SERIES
1972, he retired on 30 June 2015 on attaining
the age of superannuation. He, however, died
on 26 November 2015, leaving behind his
sole legal heir i.e. petitioner. It appears that a
dispute arose between the petitioner and
other claimants i.e. sixth, seventh and eighth
respondent claiming right and title to the
movable and immovable property of the
petitioner, including, family pension. The
sixth and seventh respondent claim to be the
nephew, sons of the elder brother of the
deceased/employee,
whereas,
eighth
respondent Smt. Gayatri Devi claims to be
the second wife of Baijnath Gupta.

3. Family pension of the petitioner
was not released due to the dispute, inter
se,
parties.
Aggrieved,
petitioner
approached this Court by filing a petition
bearing Writ-A No. 46447 of 2016
(Chandra Kali vs. State of U.P. and 4
others) which was disposed of directing
the fifth respondent Senior Treasury
Officer, Banda, to consider and decide the
representation of the petitioner with
regard to her entitlement of family
pension.
Pursuant
thereof,
by
the
impugned order dated 5 December 2016,
the fifth respondent declined to release the
family pension in favour of the petitioner
due to the pending litigations, inter se,
contesting parties in various forums
including this Court and the Civil Court.

4. Learned counsel for the petitioner
submits that it is not in dispute between
the contesting parties that petitioner is the
legally
wedded
wife
of
the
deceased/employee, the dispute has been
raised by the nephews and a stranger
(eighth respondent) to deny the petitioner
of her right to family pension. It is,
further, urged that the eighth respondent
claiming to be the second wife is not
entitled to family pension. The marriage
solemnized after 1956 by a Hindu having
a living spouse is void marriage and
would not confer any right upon the
eighth respondent. The sixth and seventh
respondent being nephew do not fall
within the definition of ''family' under the
Pension Rules, therefore, are not entitled
to family pension. It is, further, urged that
the sixth and eighth respondent had filed a
petition bearing Writ-A No. 32931 of
2016 (Ajay Kumar and another vs. State
of U.P. and others) claiming pension and
other
retiral
dues
of
the
deceased/employee, however, the writ
petition came be dismissed as not pressed
(Withdrawal Application No. 275502 of
2016). The sixth and seventh respondent
have instituted a civil suit being Suit No.
231 of 2016 before the Court of Civil
Judge (Junior Division), Banda, seeking
mandatory
prohibitory/injunction
and
declaration in respect of the right and title
of movable and immovable property of
Baijnath Gupta, the deceased/employee.
The pension and other post retiral dues
admissible to Baijnath Gupta has also
been claimed.

5. In this backdrop, it is urged by the
learned counsel for the petitioner that the
pending suit instituted by sixth and
seventh respondent
would
have no
bearing
on the entitlement of
the
petitioner to family pension as the
contesting private respondents do not fall
within the definition of ''family', and the
second wife of the employee is not
entitled to family pension under the
Rules, further, she has withdrawn her writ
petition and no suit has been instituted by
her.

6. Learned counsel for the Staterespondent submits that due to pendency
of the litigations between the parties in
1 All. Chandra Kali Vs. The State of U.P. & Ors.
757
various forums, the fifth respondent by
way of caution denied the family pension
to the petitioner, and has made the
impugned order subject to the outcome of
the pending litigations.

7. Learned counsel appearing for the
private respondents does not dispute the
fact that the petitioner is the legally
wedded wife of Baijnath Gupta but
submits that there was no relationship
between the petitioner and Baijnath as
man and woman after marriage, the
petitioner left the matrimonial home and
was residing with her parents, thereafter,
as per the custom prevalent amongst
members of the community of the caste to
which Baijnath Gupta belonged, he
contracted second marriage with the
eighth respondent as the petitioner failed
to fulfil her obligation as a wife towards
him.
The
contesting
respondents,
therefore, are entitled to the family
pension and other retiral dues of the
deceased/employee.

8. On specific query, learned counsel
for the private respondents admits that the
marriage of Baijnath and the petitioner was
solemnized as per Hindu custom; the alleged
marriage with the eighth respondent came to
be solemnized after the promulgation of the
Hindu Marriage Act, 1956, as is evident from
the document filed by the eighth respondent in
the writ petition filed by her earlier, the date of
birth of the eighth respondent is recorded
1965. It is, further, not being disputed that in
the service record of the employee, petitioner
is recorded nominee and wife. The sixth and
seventh respondents are sons of the brother of
the deceased employee.

9. In the backdrop of admitted facts,
the question for determination is as to
whether the sixth, seventh and eighth
respondents, being nephew and second
wife of the deceased/employee, are
entitled to family pension, including,
gratuity under the Rules.

10. The facts, inter se, parties are not
in dispute. The family pension is
governed by the provisions of the Civil
Service
Regulations
and
the
U.P.
Retirement
Benefit
Rules,
19611.
''Family' is defined under Sub-Rule (3) of
Rule 3, which reads thus:

"(3) "Family" means the following
relatives of an officer:

(i) wife, in the case of any male
officer;

(ii) husband, in the case of a female
officer;

(iii) sons (including step-children and
adopted children)

(iv)
unmarried
and
widowed
daughters. (Including step-children and
adopted children)

(v) brothers below the age of 18
years and unmarried and widowed sisters
(including step-brothers and step-sisters);

(vi) father;

(vii) mother;

(viii) married daughters (including
step-daughters), and
(iv) children of a pre-deceased son"

11. Rule 6 provides for nomination
of one or more persons the right to receive
any gratuity that may be sanctioned. The
proviso clarifies that at the time of
making nomination if the officer has a
family, the nomination shall not be in
favour of any person other than one or
more members of the family. Rule 6 is
extracted:

"6. Nomination. - (1) A Government
Servant shall, as soon as he acquires or if
758 INDIAN LAW REPORTS ALLAHABAD SERIES
he already holds a lien on a permanent
pensionable right to receive any grauity
that may be sanctioned under sub-rule (2)
or sub-rule (3) of rule 5 and gratuity
which after becoming admissible to him
under sub-rule (1) of that rule is not paid
to him before death :

Provided that if at the time of
marking the Nomination the officer has
a family, the nomination shall not be in
favour of any person other than one or
more of the members of the family."

12. Rule 7 of Part-III of the Rules
provides that family pension may be
granted to the family of the officer who
dies, whether after retirement or while
still in service after completion of not less
than twenty years' qualifying service.
Sub-Rule (4) of Rule 7 provides who shall
be entitled to receive pension in the event
the deceased employee had two wives.
Sub-rule (4) is extracted:

(4) "Except as may be provided by a
nomination under sub-rule (5) below:

(a) a pension sanctioned under this
Part shall be granted―

(i) to the eldest surviving widow, if
the deceased was a male officer or to the
husband, if the deceased was a female
officer;

(ii) failing the widow or husband, as
the case may be, to the eldest surviving
son;

(iii) failing (i) and (ii) above, to the
eldest surviving unmarried daughter;

(iv) these failing, to the eldest
widowed daughter; and

(b) in the event of the pension not
becoming payable under clause (a) the
pension may be granted―

(i) to the father;

(ii) failing the father, to the mother;

(iii) failing the father and mother
both, to the eldest surviving brother below
the age of 18;

(iv) these failing, to the eldest
surviving unmarried sister;

(v) these failing (i) to (iv) above, to
the children of a predeceased son in the
order it is payable to the children of the
deceased officer under clause (a) (ii), (iii)
and (iv), above.

Note.―The
expression
"eldest
surviving widow" occurring in clause
(a) (i) above, should be construed with
reference to the seniority according to
the date of marriage with the officer
and not with reference to the age of
surviving widows."

13. It is noted in the impugned order
that the competent Revenue Authority
issued
succession
certificate
to
the
petitioner being the legally wedded wife
of Baijnath; her name is recorded in the
Family Register, whereas, name of the
eighth respondent is not recorded in the
Family Register. It is further noted that
the documents pertaining to pension &
gratuity, including, the service record of
the employee does not record the name of
the eighth respondent. From the extract of
the service book placed on record it
reflects that the employee in Column-23
recorded the name of the sixth and
seventh
respondents
alongwith
the
petitioner as heirs to provident fund &
salary, but that would also not help the
contesting private respondents insofar it
pertains to family pension/gratuity. The
pending suit would have no bearing on
the entitlement of family pension and
other retiral dues to the petitioner. Claim
of
the
sixth,
seventh
and
eighth
respondent
towards
family
pension/gratuity
can
be
considered
1 All. Chandra Kali Vs. The State of U.P. & Ors.
759
provided they fall within the scope and
ambit of the definition ''family' as defined
in Rules, 1961. Petitioner is the eldest
surviving widow, even if it is taken that
the eighth respondent is the second wife
of the employee.

14. A bare perusal of the Rules,
1961, is indicative that the definition of
''family' does not include the second wife,
it only refers to 'wife', and family pension,
as per Rule 7(1), is granted to the member
of the 'family' of an officer, sub-rule 3(e)
of Rule 7 provides that pension is not
payable to a person who is not a member
of the deceased/officer's family, sub-rule
4(a)(i) provides that pension shall be
sanctioned under Part III to the eldest
surviving widow and the note appended to
the rule clarifies the expression "eldest
surviving widow" should be construed
with reference to the seniority according
to the date of marriage with the officer
and not with reference to the age of
surviving widows.

15. Sub-rule (5) requires the
Government Servant to make nomination
indicating the order in which pension
sanctioned would be payable to the
members of his 'family', provided the
nominee is not ineligible, on the date on
which the pension may become payable to
him or her to receive the pension under
the provisions of sub-rule (3) of rule 7.
Thus, the scheme of the Rules provide
that in case the Government Servant
leaves behind two wives, the second wife,
not being a member of the family, is not
eligible to family pension, as long as, the
first wife survives. Further, there could
not have been any nomination in favour
of the second wife as she was ineligible to
have been nominated under sub-rule (5),
being not a member of the family of the
employee, thus, ineligible to receive
pension under sub- rule (3) of Rule 7.

16. Taking a case that there was
nomination in favour of the second wife,
the pension would have been payable in
accordance to such nomination provided
the nominee is not ineligible, on the date
on which the pension became payable to
her under sub-rule (3) of Rule 7. In the
facts of the present case, since the first
wife is alive on the date on which the
family pension became due, the second
wife cannot set up a claim for family
pension even on the consent of the first
wife, further, nomination in favour of
second wife would be invalid as she being
not a member of the government servants
family [sub-rule (3)(e) of Rule 7].

17. The Hindu Marriage Act, 19562
came into force on 18 May 1955, the Act
amended and codified the law relating to
marriage among Hindus. Section 4
provides that the Act has an overriding
effect. Section 4 is extracted:

"4. Overriding effect of Act.-Save as
otherwise expressly provided in this Act.-

(a) any text rule or interpretation of
Hindu law or any custom or usage as part
of that law in force immediately before
the commencement of this Act shall cease
to have effect with respect to any matter
for which provision is made in this Act;

(b)
any
other
law
in
force
immediately before the commencement of
this Act shall cease to have effect in so far
as it is inconsistent with any of the
provisions contained in this Act."

18. Section 5 provides the the
conditions for Hindu marriage between
two Hindus and one of the condition
provides that neither party should have a
760 INDIAN LAW REPORTS ALLAHABAD SERIES
spouse living at the time of marriage.
Section 5(i) is reproduced:-

"5. Conditions for a Hindu marriage.-
A marriage may be solemnized between
any two Hindus, if the following
conditions are fulfilled, namely:-

(i) neither party has a spouse living
at the time of marriage;"

Section
11
provides
for
void
marriages. Section 11 reads thus:

"11. Void Marriages.- Any marriage
solemnized after the commencement of
this Act shall be null and void and may,
on a petition presented by either party
thereto [against the other party], be so
declared by a decree of nullity if it
contravenes any one of the conditions
specified in clauses (i), (iv) and (v) of
section 5."

19. Section 29 of the Hindu
Marriage
Act
saves
the
marriages
performed between Hindus before the
commencement of the Act. Section 29(1)
is reproduced:-

"29.
Savings.-(1)
A
marriage
solemnized between Hindus before the
commencement of this Act, which is
otherwise valid, shall not be deemed to be
invalid or ever to have been invalid by
reason only of the fact that the parties
thereto belonged to the same gotra or
pravara or belonged to different religions,
castes or sub-divisions of the same caste."

20. Thus as per the scheme of the
Hindu Marriage Act, marriage between
two
Hindus
solemnized
before
the
commencement of the Hindu Marriage
Act, which was otherwise legal and valid,
would be saved under Section 29 of the
Act and would not be void under Section
11. The marriage between the deceased
government servant and the petitioner
came
to
be
solemnized
after
the
enactment of the Hindu Marriage Act.
The Government Servant contracted the
second
marriage
with
the
eighth
respondent after the commencement of
the Hindu Marriage Act, the marriage,
therefore, is void and a nullity in the eye
of law, second wife would have no right
of being a legally wedded wife.

21. In a Full Bench decision of this
Court in the case of Nutan Kumar
versus IInd Additional District Judge,
Banda and others; in paragraph 8 of the
majority
judgement,
the
Court
has
observed as under:

"The appellation 'void' in relation to
a juristic act, means without legal force,
effect or consequence; not binding;
invalid; null; worthless; cipher; useless;
and ineffectual etc."

(Refer:
Shubham
Shukla
and
others vs. State of U.P.)

22. This Court in Shakuntala Devi
(Smt.)
Versus
Executive
Engineer,
Electricity Transmission Ist U.P. Electricity
Board, Allahabad and another, while
dealing
with two
wifes wherein
the
nomination was in favour of the second wife it
was held that it cannot defeat the claim of the
legally wedded wife, only legally wedded
wife is entitled to retiral benefits, provident
fund and appointment under Dying-inHarness Rules.

23. In Rameshwari Devi Versus State
of Bihar and others, where the Government
servant being a Hindu having two wives died
while in service, Supreme Court held that the
second marriage was void under the Hindu
law, hence, the second wife having no status
1 All. Chandra Kali Vs. The State of U.P. & Ors.
761
of widow is not entitled to anything, however,
children from the second wife would equally
share the benefits of gratuity and family
pension as per law.

(Refer: Manno Singh vs. State of
U.P. and others)

24. Further, the U.P. Government
Servant Conduct Rules, 1956, which
came into force on 28th July, 1956, Rule
29 prohibits a Government Servant from
bigamous marriage. Rule 29 reads thus:

"29. Bigamous marriages-(1) No
Government servant 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."

25. Thus, Hindus cannot contract
marriage after the enforcement of the Hindu
Marriage Act, if any of them is having a living
spouse, the marriage would be a nullity and
would also not be protected under the
Conduct Rules, as well as, the pension rules,
therefore, it follows that the "second wife" as
referred to under the Rules, 1961 would only
include second wife whose marriage was
otherwise permissible under the personal law
or law prevalent at the time of marriage, but in
the case of Hindus the second wife will have
no right, whatsoever, as the law prohibits
second marriage, as long as, the government
servant has a spouse who is alive. Thus for
harmonious
construction
of the Rules
governing pension, wherever, the rule
provides for wives, it has to be interpreted as
per the law governing marriage as applicable
to the government servant and in cases where
the second marriage is void under the law,
second wife will have no status of a widow of
the government servant. In the facts of the
case in hand admittedly the second marriage
was contracted after enforcement of the Hindu
Marriage Act, therefore, the marriage is void.
The second wife would have no right in law to
claim family pension.

26. As regards, eligibility to family
pension, the pension is to be disbursed as
per the provisions of the Rules, 1961. The
Rules clearly state that only eligible
person is entitled to receive family
pension but where pension awarded
ceases to be payable on the death or
marriage of the recipient or for any other
reason, it will be regranted to the persons
next lower in the order mentioned in subrule (4) of Rule 7. The Hindu second wife
would not be eligible for family pension
as long as the first wife is alive and has
not remarried. There is no provision in the
Rules for relinquishment of family
pension in favour of another person. The
eighth respondent would not fall within
the definition of ''family' of the employee.
The sixth and seventh respondent being
sons of the deceased employees brother
are also not family of the employee within
the definition of ''family' under the Rules,
1961.

27. In the circumstances, the writ
petition is allowed by passing the
following orders:

i) the impugned order dated 5
December 2016 passed by the fifth
respondent-Senior
Treasury
Officer,
District Banda, is set aside and quashed;

ii) the respondents are directed to release
the family pension/gratuity to the petitioner
within two months from date of filing of
certified copy of this order, failing which,
petitioner shall be entitled to interest @ 7% per
annum on the entire sum from the due date.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

28.

It
is
clarified
that
the
observations made herein above would
have no bearing in the pending suit
instituted by the sixth and seventh
respondent in respect to the other reliefs
claimed therein.

29. No cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 17904 of 2018

Dr. Anupma Mehrotra ...Petitioner
Versus
The
Hon'ble
Chancellor,
MahatmaJyotibaPhuleRohilkhandUnivers
ity,Bareilly&Ors. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents:
Sri Neeraj Tripathi, Sri Arvind Srivastava.
C.S.C., Sri Kshitij Shailendra Khare, Sri
Vivek Verma, Sri Manish Tandon

A.
U.P.
Higher
Education
Service
Commission
Act-
Inter-se
seniorityPetitioner appointed on substantive post
of
lecturer-private
respondents
appointed
on
ad-hoc
basis
but
subsequently regularized - Chancellor
held that as under Statute 15.08 (e) of
the University, the respondents are
entitled to seniority from the date of
their initial appointment, they are senior
to the petitioner-representation of the
Petitioner challenging regularization of
the petitioner barred by limitation.

In view of provision of Statute 15.01 (c) the
seniority of the Petitioner has to be reckoned
by the length of her continuous service from
the date of appointment in substantive
capacity- private respondents No. 8 to 11
though appointed earlier to the petitioner,
their
said
appointments
were
not
in
substantive capacity rather on ad-hoc basis
under Section 16 of the Commission Act and
were regularized under Section 31-C (2) of the
Commission Act and hence, their substantive
appointment would be from the date of their
regularization/substantive
appointmentRegularization
of
the
contesting
private
respondents No. 8 to 11 not under Section 31
(3) (b) of the Act but under Section 31-C (2)
of the Commission Act- Clause (e) of Statute
15.08 would not apply for determining the
continuous
length
of
service
of
the
respondents and their seniority- The Statute
15.08 (e) wrongly applied by the Vice
Chancellor to the case of the private
respondents No. 8 to 11 for determining their
seniority- The cause of action for deciding the
matter of seniority is a recurring cause of
action which survives till the person or the
persons with whom a seniority is disputed
retires or leaves the job- Petition allowed.
(Para18,21,22,25,26,27,30,31,39,45,52,54,59)

Case Law discussed/relied upon:-
1.Secretary, Minor Irrigation Department and
R.E.S. vs. Narendra Kumar Tripathi, 2015 (11)
SCC 80

2.Direct Recruit Class-2 Engineering Officers'
Association Vs. State of Maharashtra, AIR
1990 SC1607

3. Keshav Chand Joshi and others vs. Union of
India and others,AIR 1991 SC 284 (E-3)

(Delivered by Hon'ble Pankaj Mithal, J.
Hon'ble Saral Srivastava, J.)

1. Under challenge in this writ
petition is the order of the Chancellor,
Mahatma
Jyotiba
Phule
Rohilkhand
University, Bareilly dated 06.08.2018 by
which the representation of the petitioner
filed under Section 68 of the U.P. State
Universities Act (hereinafter referred to as
"Act")
has
been
rejected.