# Smt. Raman Pandey & others v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-24
- **Case number:** Civil Misc. Writ Petition No. 4006 of 2005
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raman-pandey-others-v-state-of-u-p-and-others-41608
- **Pages:** 4

## Headnote

Constitution
of
India-Art-226-
Post
retirel benefits-claim by second wife on
basis of nomination made by deceased
employee even the marriage of second
wife declared void- in view of law laid
down by apex court children of the
second wife entitled equally half share
with first wife.

Held: Para 5

In
the
present
case,
daughter
of
petitioner Priyanka Pandey ( Petitioner
no. 1/1), who had filed impleadment
application, has also attained majority.
But Deepak Pandey ( petitioner no. 1/2 )
son of the deceased with the petitioner-
Smt. Raman Pandey is still a minor being
13 years of age, therefore, he is entitled
to retirement benefits of the deceased
employee particularly in the backdrop
that Smt. Raman Pandey had been
nominated as wife by the deceased in
the service records for receiving his
benefits.
Case law discussed:
[200(1) E.S.C. Page 577 (SC)

## Text

996 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
or direction in the nature of certiorari
calling for the record of the case and
quashing the order dated 11th November,
2009 passed by the the Sub Divisional
Magistrate
Sadar,
district
Deoria-
respondent no.3, filed as Annexure 7 to
the writ petition by which the residence
certificate issued to the petitioner on 23rd
July, 2009 has been cancelled on the basis
of the complaint made on 9th November,
2009 by one Sanjay Tiwari, respondent
no.6.

2. According to the petitioner the
complaint was made on 9th November,
2009
and
without
affording
any
opportunity to show cause or hearing the
order has been passed in haste on 11th
November, 2009. The entire exercise has
been done within a short span of two days
which according to the petitioner itself
speaks about the motive. The averment
regarding neither issuing any show cause
notice nor affording any opportunity of
hearing to the petitioner has been made in
paragraph 16 of the writ petition.

3. We have heard Sri Ashok Khare,
learned Senior Advocate assisted by Ms.
Durga Tiwari, learned standing counsel
appearing for respondent nos. 1 to 4, Sri
Sunil Kumar Singh, learned counsel
appearing for respondent no.6 and Sri
Sanjiv Singh has filed his appearance on
behalf of respondent no.5.

4. With the consent of the learned
counsel for the parties, the writ petition is
being disposed of at the admission stage
without calling for counter affidavit. From
a perusal of the impugned order dated
11th November, 2009, we find that the
Sub Divisional Magistrate has mentioned
that the complaint was filed by Sri Sanjay
Tiwari on 9th November, 2009, an
enquiry
was
conducted
on
10th
November, 2009 and the impugned order
has been passed on 11th November, 2009
whereby
the
petitioner's
residence
certificate has been cancelled. It does not
mention that any showcause notice or
opportunity of hearing was given to the
petitioner before passing the impugned
order.

5. From a perusal of the order and
the averments made in paragraph 16 of
the writ petition, we are of the considered
opinion that neither any show cause
notice nor any opportunity of hearing was
afforded
to
the
petitioner
stands
established and the impugned order has
been pased in gross violation of principle
of equity, fair play and natural justice.
The same cannot be sustained which is
hereby set aside. The respondent no.3
may proceed in accordance with law.

6. The writ petition succeeds and is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 4006 of 2005

Smt. Raman Pandey & others ...Petitioners
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioners:
Sri A.C. Tiwari
Sri Akhilesh Kuamr Pandey
Sri D.K. Jaiswal
Sri Pawan Kumar Tiwari

Counsel for the Respondents:
Sri H.M.B. Sinha (S.C.)
3 All] Smt. Raman Pandey and others V. State of U.P. and others
997
C.S.C.

Constitution
of
India-Art-226-
Post
retirel benefits-claim by second wife on
basis of nomination made by deceased
employee even the marriage of second
wife declared void- in view of law laid
down by apex court children of the
second wife entitled equally half share
with first wife.

Held: Para 5

In
the
present
case,
daughter
of
petitioner Priyanka Pandey ( Petitioner
no. 1/1), who had filed impleadment
application, has also attained majority.
But Deepak Pandey ( petitioner no. 1/2 )
son of the deceased with the petitioner-
Smt. Raman Pandey is still a minor being
13 years of age, therefore, he is entitled
to retirement benefits of the deceased
employee particularly in the backdrop
that Smt. Raman Pandey had been
nominated as wife by the deceased in
the service records for receiving his
benefits.
Case law discussed:
[200(1) E.S.C. Page 577 (SC)

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties.

This petition has been filed by Smt.
Raman Pandey claiming herself to be wife
of deceased employee Jayanti Prasad
Pandey.

Son of Smt. Savitri Devi claimed
appointment on compassionate ground on
the basis that Smt. Raman Pandey, the
second living wife of the deceased is not
entitled to the benefits on compassionate
ground under Dying in Harness Rules as
she is not within the definition of family
therein. In that context, the Court in Writ
Petition No. 18397 of 2002, wherein
present petitioner- Smt. Raman Pandey
was a party as respondent no. 4 and had
also filed counter affidavit, held as
follows :

"In my opinion, If Smt. Raman
Pandey is not legally wedded wife and the
marriage of Smt. Raman Pandey is void.
According to Hindu Marriage Act, she
can not claim the benefits to claim and
appointment under Dying in Harness
because she does not come under the
definition of family. The judgment relied
upon by the counsel for the petitioner
fully supports the contention of the
petitioner."

2. Now by means of this petition,
Smt. Raman Pandey claims for a writ in
the nature of mandamus commanding
opposite party no. 1 to 3 to appoint the
petitioner
on
compassionate
ground
according to eligibility on any suitable
post. This prayer has not been pressed by
the counsel for petitioner in the backdrop
that Rajesh Kumar Pandey, elder son of
the deceased employee has been provided
appointment under Dying in Harness
Rules pursuant to order passed by the
Court in the aforesaid writ petition No.
18397 of 2002.

Counsel
for
the
petitioner
has
confined his arguments only in respect of
prayer no. 2 which is for a writ of
mandamus "commanding the opposite
parties to make payment of G.P.F., Group
insurance and other dues in favour of the
petitioner and family pension month to
month towards the services rendered by
her husband late Jayanti Prasad Pandey on
consideration of the fact that she is only
nominee of her husband in the service
records."
998 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Notices were issued vide order dated
4.5.2007 to respondent no. 4 to 6. His
Lordship Hon. Mr. Justice Sabhajeet
Yadav vide order dated 10.4.08 directed
the office to submit report about service
upon aforesaid respondents and they were
directed to file counter affidavit within
four weeks.

From the service report submitted by
the
office,
it
appears
that
neither
acknowledge nor registered cover has
been received back, therefore, in view of
the High Court Rules, service is deemd to
be sufficient upon respondent no. 4 to 6
who have not put in appearance in the
matter.

Counsel for the petitioner has also
submitted that respondent no. 6- Smt.
Savitri is now living with one Ramfer
Yadav, resident of Pura Meharban Ka
Purva, village Panchayat Gobari, Tehsil
Sadar, Pratapgarh after death of her
husband and has now six issues from him.

3. In support of his second prayer,
the counsel for the petitioner has placed
reliance upon the judgment of the Apex
Court in Rameshwari Devi Vs. State of
Bihar,( 2000 (1) E.S.C. page 577 (S.C.)
wherein it was held that where a Govt.
servant being a Hindu having two living
wives, died while in service, then his
second marriage was void under the
Hindu law and as regards the status of
second wife and children from second
marriage is concerned, considering the
question whether they were entitled to any
share in the family pension and death cum
retirement gratuity etc, , the Apex Court
ruled that second wife having no status of
widow is not entitled for anything.
However, children from the second wife
would equally share the benefits of death
cum retirement gratuity and family
pension till they attain their majority.

In the present case, it appears that
first wife of deceased employee is now
living with another person.Both her sons
have attained majority. One of the sons
has also been given appointment by the
department on compassionate ground.
While the present petitioner- Smt. Raman
Pandey, who is said to be the second wife,
is nominated in the service records by the
deceased whereas first wife Savitri Devi
is not so nominated.

4. The standing counsel on the basis
of paragraph no. 4 of the counter affidavit
submitted that marriage of Smt. Raman
Pandey-second wife, is void as has also
been held in Writ Petition No. 18397 of
2002 referred to above, therefore, she is
not entitled to any claim on retiral dues of
the
deceased
govt.
employee.
The
argument is fallacious and incorrect. The
Court had not decided the status of Smt.
Raman Pandey, the petitioner in that case
as second wife nor had declared the
marriage as void. The Court has laid
emphasis that if Raman Pandey is second
wife, even her marriage is void. Until and
unless it is so declared, it cannot be said
tobe a void marriage unless it is so
declared
by
a
court
of
cmpetent
jurisdiction . The claim in her petition was
for compassonate appointment and not for
any declaration or adjudication that Smt.
Raman Pandey is not the wife of the
deceased. However, even if the petitioner
can be said to be the second wife, in that
case also she may not have any status of
widow and will be entitled to anything but
progenies of the deceased govt. employee
through her, would equally share the
benefits of death cum retirement gratuity
and family pension till they attain
3 All] Smt. Shailendra Rai V. State of U.P. and others
999
majority in accordance with ratio laid
down in Rameshwari Devi's case (supra),.

4. In the present case, daughter of
petitioner Priyanka Pandey (Petitioner no.
1/1),
who
had
filed
impleadment
application, has also attained majority.
But Deepak Pandey (petitioner no. 1/2)
son of the deceased with the petitioner-
Smt. Raman Pandey is still a minor being
13 years of age, therefore, he is entitled to
retirement benefits of the deceased
employee particularly in the backdrop that
Smt. Raman Pandey had been nominated
as wife by the deceased in the service
records for receiving his benefits.

5. For all the reasons stated above,
this petition is allowed. The respondents
are directed to release retiral dues in
favour of minor son Deepak Pandey in the
form of Fixed Deposit in a nationalised
bank earning maximum interest payable
to him on his attaining majority i.e. 18
years of age. The F.D. shall be made in
the name of the minor Deepak Pandey,
expeditiously within a period of two
months from the date of presentation of a
certified copy of this order and the
petitioner who is natural guardian of the
minor at present, will be entitled to draw
interest half yearly on the deposit so made
to meet expenses of education etc. of the
children. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43643 of 2006

Smt. Shailendra Rai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Markandey Rai
Sri D.S.P. Tripathi

Counsel for the Respondents:
Sri R.P. Dubey
Sri C.K. Rai
Sri Vipul Tripathi
Sri Neeraj Tripathi
Sri Prabhat Rai
C.S.C.

Constitution of India, Art.-226-Salary
Art.21,
300-A-
Salary
of
petitioner
withheld since March 2005-inspite of
repeated direction R-5 neither filed
counter non appeared-only after issuing
warrant-
although
payment
made
through cheque- but the fact remain
regarding fixing liability- R.5 and R3
both equally responsible direction for
release of arrears of salary with 8%
interest given- considering conduct of
authorities exumplory cost imposed of
Rs.2 lacs, out of which Rs.1,5000/ shall
be recover from the personal benefit of
R.5 an remaining 50,000/- from R3 in
case of default to recover the same as
arrears of land Revenue.

Held: Para 22 and 25

In this case, as already discussed above,
the act of respondent no. 5 in non
payment of salary to the petitioner is
wholly
unjustified
and
illegal.
Simultaneously, this Court cannot leave