# Smt. Vimla Devi v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-15
- **Case number:** Writ-A No. 14003 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vimla-devi-v-state-of-u-p-ors-47760
- **Pages:** 10

## Headnote

Law
-
Compassionate
Appointment - Pension - Dying in Harness
Rules, 1974 - Civil Service Regulations and
the U.P. Retirement Benefit Rules, 1961 -
Rule 6, Rule 7 of part-III; The Hindu
Marriage Act, 1956 - Sections 4, 5, 11 & 29
- U.P. Government Servant Conduct Rules,
1956 - Rule 29 - Mere nomination of a
stranger, who is not a family member of
10 All. Smt. Vimla Devi Vs. State of U.P. & Ors.
59
the deceased employee is not be entitled
to family person. (Para 28)

In the case of two wives, the nomination
in favour of the second wife cannot defeat
the claim of the legally wedded wife, only
legally wedded wife is entitled to retrial
benefits, provident fund and appointment
under Dying-in-Harness Rules. (Para 24)

Civil Service Regulations and the U.P.
Retirement Benefit Rules, 1961: Rule 7 - 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. (Para 15)

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

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES

(b)
to
every
shop
or
establishment within the meaning of any
law for time being in force in relation to
shops and establishment in a State in
which ten or more persons are employed,
or were employed, on any day of the
preceding twelve months:

Provided
that
the
State
Government may, with the approval of
the Central Government, after giving not
less than two month's notice of its
intention of so doing. by notification in
the Official Gazette, declare that all or
any of the provisions of this Act shall
apply also to any other establishment or
class
of
establishments,
industrial,
commercial, agricultural or otherwise.

(2) Save as otherwise provided
in
sections
5-A
and
5-B,
nothing
contained in this Act shall apply to any
factory or other establishment to which
the provisions of the
Employees' State Insurance Act, 1948 (34
of 1948), apply for the time being.

14. It is not disputed that petitioner
is a government servant and it is also not
disputed that she is an employee of the
State Government and the Fundamental
Rules
153
applies
for
service
of
Government employees as also for the
grant of maternity leave. Petitioner is not
an employee under an establishment as
defined in Section 3 of sub-section (e) of
the Maternity Benefit Act, 1961, read
with Section 2 of sub-section (i).

15. Obviously, the petitioner is not an
employee in the department, mine or
plantation in a establishment so as to
exhibit of equestrian, acrobatic and other
performance etc. as provided under Act,
1961. Hence it is evident that petitioner is
not an employee of establishment. This
question has been considered and decided
by this Court in Renu Chaudhary Versus
State of U.P. and others 2022 (2) ADJ 14.

16. From the aforesaid, it is clear that
second application for maternity leave of
the petitioner is within two years from the
date of expiry of the first maternity leave
and in view of 3rd proviso to Rule 153 of
the Fundamental Rules, the maternity leave
could not be granted to the petitioner. The
petitioner is a government employee and
not an employee as provided in Section 3
(e) of the Maternity Benefit Act,1961 read
with section 2 (1) thereof.

17. In view of the above, the writ
petition is dismissed.
----------
(2022) 10 ILRA 58
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 14003 of 2022

Smt. Vimla Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Yadav, Sri Tripurari Pal

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - Pension - Dying in Harness
Rules, 1974 - Civil Service Regulations and
the U.P. Retirement Benefit Rules, 1961 -
Rule 6, Rule 7 of part-III; The Hindu
Marriage Act, 1956 - Sections 4, 5, 11 & 29
- U.P. Government Servant Conduct Rules,
1956 - Rule 29 - Mere nomination of a
stranger, who is not a family member of
10 All. Smt. Vimla Devi Vs. State of U.P. & Ors.
59
the deceased employee is not be entitled
to family person. (Para 28)

In the case of two wives, the nomination
in favour of the second wife cannot defeat
the claim of the legally wedded wife, only
legally wedded wife is entitled to retrial
benefits, provident fund and appointment
under Dying-in-Harness Rules. (Para 24)

Civil Service Regulations and the U.P.
Retirement Benefit Rules, 1961: Rule 7 - 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. (Para 15)

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. (Para 16)

In 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 servant's family. (Para 17)

The second wife does not fall within the
definition of 'Family' and cannot be
entitled to the terminal dues of the
deceased Manoj Kumar. The petitioner cannot
be a regarded as a family member of the
deceased Manoj Kumar by virtue of her being
the real sister of the first wife of Manoj Kumar.
The petitioner cannot be entitled to
compassionate appointment on the demise
of Manoj Kumar in harness. (Para 28, 29)

B. Where the Government servant being a
Hindu having two wives died while in
service, the second marriage being void
under the Hindu law, hence, the second
wife having no status 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. (Para 25)

The Hindu Marriage Act, 1956: Ss. 11, 29 -
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 u/s 29 of the Act and
would not be void u/s 11. (Para 22)

U.P. Government Servant Conduct Rules,
1956: Rule 29 - 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 present case,
admittedly the second marriage is stated
to
have
been
contracted
after
enforcement of the Hindu Marriage Act,
60 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, the marriage is void. The
petitioner would have no right in law to claim
family pension, nor can she claim the status of
widow of the deceased employee. (Para 26, 27)

C. Recovery of the amount of terminal
dues and family pension already disbursed
to the petitioner - There is no allegation
that the amount received towards the
terminal dues of late Manoj Kumar and
the
family
pension
has
been
usurped/misappropriated
by
the
petitioner. In such circumstances, the
Court is of the opinion that the amount
already disbursed to the petitioner shall
not be recovered from her. Petitioner has
been looking after her elder sister Smt. Pushpa
Devi the lawfully wedded wife of deceased
Manoj Kumar as also the children begotten from
the marriage of Pushpa Devi and Manoj Kumar.
However, in future the family pension shall be
drawn up in the name of Smt. Pushpa Devi, the
legally wedded wife of deceased and the
dependent children as per law instead of the
petitioner. (Para 30)

D. Words and Phrases - 'void' - 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.
(Para 23)

Writ
petition
is
partly
allowed.
The
impugned order dated 25.03.2022 and the
consequential order dated 29.03.2022, so far as
they direct for stoppage of family pension and
recovery against the petitioner are set aside.
The order dated 25.03.2022, is modified to the
extent that the family pension shall now be
drawn in the name of Smt. Pushpa Devi. (Para
31) (E-4)

Precedent followed:

1. Nutan Kumar Vs IInd A.D.J., Banda & ors.,
AIR 1994 Alld. 298 (Para 23)

2.
Shakuntala
Devi
(Smt.)
Vs
Executive
Engineer,
Electricity
Transmission
Ist
U.P.
Electricity Board, Allahabad & anr., 2001 (1)
UPLBEC 869 (Para 24)

3. Rameshwari Devi Vs St. of Bihar & ors., 2000
(1) ESC 577 (SC) (Para 25)

Present
petition
assails
order
dated
25.03.2022,
passed
by
District
Basic
Education Officer, Kaushambi and also
order
dated
29.03.2022,
passed
by
Finance
&
Account
Officer,
Basic
Education, Kaushambi.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri Tripurari Pal, learned
counsel for the petitioner and learned
Standing
Counsel
for
the
StateRespondents.

2. Considering the nature of the order
that is proposed to be passed the notice
upon the Respondent No.5 is being
dispensed with.

3. The writ petition has been filed
assailing the order dated 25.03.2022 passed
by the Respondent No.3, District Basic
Education Officer, Kaushambi, whereby
and whereunder a direction has been issued
to the Respondent No.4, the Finance &
Account Officer, Basic Education District
Kaushambi, to stop the payment of family
pension to the petitioner and calculate the
payment of Fund, Group Insurance and
other benefits already paid for its recovery
from
the
petitioner
as
also
the
consequential
order
dated
29.03.2022
passed by the Respondent No.4, Finance &
Account
Officer,
Basic
Education,
Kaushambi, whereby the payment of the
family pension has been stopped.

4. Learned counsel for the petitioner
submits that in view of the admitted facts
as set out in the writ petition and in the
impugned order the writ petition may be
decided on merits. Learned Standing
10 All. Smt. Vimla Devi Vs. State of U.P. & Ors.
61
Counsel does not dispute the above
proposition, accordingly the Court proceeds
to decide the writ petition at the admission
stage without calling for a counter affidavit.

5. The facts shorn of necessary details
necessary for the adjudication of the
controversy involved in the instant writ
petition briefly stated are that the writ
petitioner claims to be the second wife of
late Manoj Kumar, who was working as
Assistant Teacher in Janta Junior High
School, Faridpur (Audhan) Newada District
Kaushambi, The institution is an aided
institution run by a private management.
The said Manoj Kumar is stated to have
died-in-harness on 29.09.2017 leaving
behind his wife Smt. Pushpa Devi, two
daughters and two sons as well as old age
parents. It is the admitted case of the
petitioner that the first wife of the late
Manoj Kumar namely Smt. Pushpa Devi is
insane since last more than 17 years and the
petitioner who happens to be the real
younger sister of Smt. Pushpa Devi was got
married to the said Manoj Kumar by the
father of the petitioner who is stated to
have consented to the marriage. It is also
the case of the petitioner that in the service
book of late Manoj Kumar the name of the
petitioner and four children have been
mentioned as nominee and after the death
of Manoj Kumar the family pension was
being paid to the petitioner since July,
2019. It is also the case of the petitioner
that she is well educated with qualification
of M.A. and B. Ed. to her credit and has
also qualified TET Examination. The
petitioner is stated to have claimed
compassionate appointment on the death of
Manoj Kumar the deceased Assistant
Teacher under the Dying-in-Harness Rules
1974, as a dependent of the said Manoj
Kumar. When no orders were being passed
on the said application the petitioner is
stated to have approached this Court by
means of Writ (A) No.3854 of 2021 (Smt.
Vimla Devi Vs. State of U.P. & others)
which writ petition was disposed of vide
order dated 21.06.2021 with a direction to
the District Basic Education Officer,
Kaushambi to consider the claim of the
petitioner and take a decision thereon
within four months. The Respondent No.3,
the District Basic Education Officer,
Kaushambi in compliance of the order
dated 21.06.2021 passed in Writ (A)
No.3854 of 2021 has passed the impugned
order dated 25.03.2022 directing the
stoppage of the payment of family pension
to the petitioner and also directed for the
recovery of the amount paid by way of
Fund, Group Insurance and other benefits.
The Respondent No.4, the Finance &
Account Officer, Kaushambi, has proceed
to pass the consequential order dated
29.03.2022.
Both
the
orders
dated
25.03.2022 and 29.03.2022 are under
challenge in the writ petition.

6. Learned counsel for the petitioner
has
assailed
the
impugned
orders
principally on the following grounds:-

The impugned orders are ex-facie
illegal and against the law in as much as
the Respondent No.3, the District Basic
Education Officer, Kaushambi, travelled
beyond the direction of this Court in Writ
(A) No.3854 of 2021. The Respondent No.3
was required to consider the claim of
compassionate
appointment
of
the
petitioner instead he proceeded to decide
the matter regarding payment of family
pension

The
Respondent
No.3
has
nowhere discussed the claim of the
petitioner regrading the compassionate
appointment and as such the impugned
orders cannot be sustained.
62 INDIAN LAW REPORTS ALLAHABAD SERIES

The petitioner is the second wife
of late Manoj Kumar and the real younger
sister of the first wife. He first wife is
insane since last more than 17 years and
her marriage has been performed with
Manoj Kumar with her consent and she is
looking after the children of late Manoj
Kumar and her name is entered in the
service book of late Manoj Kumar. No
objection was ever raised in that regard.

7. It is thus submitted that the impugned
orders are liable to be set aside. The payment
of family pension is liable to be resumed and
her claim for compassionate appointment is
liable to be considered.

8. Learned Standing Counsel in
opposition to the writ petition submits that the
District Basic Education Officer, Kaushambi,
while passing the impugned order has
considered all aspects of the matter and even
got an inspection done through the Tehsildar,
Chail, who recorded the statements of the
family members of the deceased Manoj
Kumar and concluded that late Manoj Kumar
never entered into any marriage with the
petitioner even though she is stated to have
taken care and brought up the children of her
sister Smt. Pushpa Devi, the wife of late
Manoj Kumar. The conclusion so arrived at
by the District Basic Education Officer
cannot be faulted as the petitioner is not the
legally wedded wife of the deceased and
cannot be entitled to the terminal dues and
family pension. It is, accordingly, prayed that
the writ petition is liable to be dismissed.

9. Heard learned Counsel for the
petitioner as also the learned Standing
Counsel for the State-Respondents and
perused the record.

10.

The
moot
question
for
consideration can be enumerated as under:-

(1) Whether on the admitted facts,
the petitioner who claims herself to be the
second wife of the deceased Manoj Kumar
even during the subsistence of the marriage
and the first wife being alive is entitled to
the terminal dues and family pension?

(2) Whether the amount already
paid to the petitioner by way of the
terminal dues of late Manoj Kumar and the
family pension consequent to the death of
Manoj Kumar is liable to be recovered
from the petitioner?

(3) Whether the petitioner can
claim
compassionate
appointment
consequent to the death of Manoj Kumar as
his second wife during the life time of the
first wife and subsistence of the first
marriage?

(4) Whether the impugned order
can be sustained on the admitted facts?

11. 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, 1961. "Family" is defined
under sub Rule (3) of Rule 3, which reads
as under:-

"(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;
10 All. Smt. Vimla Devi Vs. State of U.P. & Ors.
63

(viii)
married
daughters
(including step-daughters), and

(iv) children of a pre-deceased
son"

12. 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 he already holds a lien on a
permanent pensionable right to receive any
grauity that may be sanctioned under subrule (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."

13. 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."

14. Claim of the petitioner towards
family pension can be considered provided
she falls within the scope and ambit of the
definition ''family' as defined in Rules,
1961.

15. 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
64 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

16.

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.

17. Taking a case that there was
nomination in favour of the second wife, the
family pension would have been payable in
accordance to such nomination provided the
nominee is not ineligible, on the date on
which the family 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].

18. The Hindu Marriage Act, 1956
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."

19. Section 5 provides the the
conditions for Hindu marriage between two
Hindus and one of the condition provides that
neither party should have a 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;"

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

"11.
Void
Marriages.-
Any
marriage
solemnized
after
the
10 All. Smt. Vimla Devi Vs. State of U.P. & Ors.
65
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."

21. 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."

22. 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 as per the case of the petitioner
between the deceased employee Manoj
Kumar and the petitioner came to be
solemnized after the enactment of the
Hindu
Marriage
Act.
The
employee
contracted the second marriage with the
petitioner after the commencement of the
Hindu
Marriage
Act,
the
marriage,
therefore, is void and a nullity in the eye of
law, petitioner would have no right of
being a legally wedded wife.

23. In a Full Bench decision of this
Court in the case of Nutan Kumar versus
IInd Additional District Judge, Banda and
others; (AIR 1994 Alld 298) 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."

24. This Court in Shakuntala Devi
(Smt.)
Versus
Executive
Engineer,
Electricity
Transmission
Ist
U.P.
Electricity Board, Allahabad and another,
[2001(1) UPLBEC 869] while dealing with
two wives 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-in-Harness
Rules.

25. In Rameshwari Devi Versus State
of Bihar and others, [2000(1) ESC 577
(SC)] 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 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.

26. 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
66 INDIAN LAW REPORTS ALLAHABAD SERIES
Government, notwithstanding that such
subsequent marriage is permissible under
the personal law for the time being
applicable to him."

27. 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 is
stated to have been contracted after
enforcement of the Hindu Marriage Act,
therefore, the marriage is void. The
petitioner would have no right in law to
claim family pension, nor can she claim the
status of widow of the deceased employee.

28. Having regard to the facts and
circumstances brought on record it is not in
dispute that the petitioner claims to be the
second wife of the deceased Manoj Kumar
though
the
impugned
order
dated
25.03.2022 of the Basic Education Officer
records that no formal marriage took place
between Manoj Kumar and the petitioner as
per the report of the Naib Tehsildar, Chail,
Kaushambi. In any case even if it is
assumed that the petitioner did enter into a
marriage with the deceased Manoj Kumar
the second marriage cannot have any
sanctity in law and is void as the first wife
is very much alive and no divorce has taken
place. The second wife does not fall within
the definition of Family and cannot be
entitled to the terminal dues of the deceased
Manoj Kumar. The petitioner cannot be a
regarded as a family member of the
deceased Manoj Kumar by virtue of her
being the real sister of the first wife of
Manoj Kumar. Mere nomination of a
stranger, who is not a family member of the
deceased employee is not be entitled to
family person.

29. Likewise, the petitioner cannot be
entitled to compassionate appointment on
the demise of Manoj Kumar in harness.
The
claim
of
the
petitioner
for
compassionate appointment is thus not
tenable in law and does not merit
consideration for the reasons stated herein
before. Besides the Court on the perusal of
the pleadings in the writ petition finds that
though grounds and pleadings have been
set up with regard to compassionate
appointment but no relief in that regard has
been claimed by the petitioner and the
relief has been confined to quashing of the
impugned orders and grant of family
pension.

30. Now coming to the question as to
whether the respondents are entitled to the
recovery of the amount of terminal dues
and family pension already disbursed to the
petitioner as per the impugned orders. In
this regard the Court finds that the
petitioner has been looking after her elder
sister Smt. Pushpa Devi the lawfully
10 All. Smt. Baby Vs. State of U.P. & Ors.
67
wedded wife of deceased Manoj Kumar as
also the children begotten from the
marriage of Pushpa Devi and Manoj
Kumar. The marriage of the elder daughter
namely Jigyasa has also been solemnized
by the petitioner. There is is no allegation
that the amount received towards the
terminal dues of late Manoj Kumar and the
family
pension
has
been
usurped/misappropriated by the petitioner.
In such circumstances, the Court is of the
opinion that the amount already disbursed
to the petitioner shall not be recovered from
her. However, in future the family pension
shall be drawn up in the name of Smt.
Pushpa Devi, the legally wedded wife of
late Manoj Kumar and the dependent
children as per law instead of the petitioner.

31. In view of the above, the writ
petition is partly allowed. The impugned
order dated 25.03.2022 passed by the District
Basic Education Officer, Kaushambi and the
consequential order dated 29.03.2022 passed
by the Finance and Accounts Officer, Basic
Education, Kaushambi, so far as they direct
for stoppage of family pension and recovery
against the petitioner are set aside. The order
dated 25.03.2022 passed by the District Basic
Education Officer, Kaushambi, is modified to
the extent that the family pension shall now
be drawn in the name of Smt. Pushpa Devi,
the legally wedded wife of late Manoj Kumar
and the dependent children and the same shall
be released month to month as and when the
same falls due. Necessary orders to the above
effect shall be passed by the District Basic
Education Officer, Kaushambi, within three
weeks of receipt of the certified copy of this
order.

32. It is clarified that the amount
already disbursed to the petitioner shall not
be recovered.
----------
(2022) 10 ILRA 67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 17008 of 2001

Smt. Baby ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Lavkush Kumar Shukla, Sri Lokesh
Kumar Dwivedi

Counsel for the Respondents:
C.S.C., Sri Arun K. Singh Deshwal

A.
Service
Law
-
Compassionate
Appointment - Dying-in-Harness Rules,
1974 - Rule 2(C)(iii); Employees Service
Regulations, 1980 - Rule 104 - U.P.
Cooperative Societies Employees Service
Regulations, 1975 - Regulation 104(5) -
The Rule of Compassionate Appointment
for dependents of deceased Government
Employee
Dying-in-Harness
has
been
carved out as an exception of the general
rule of equal opportunity in employment
u/Article 16 of the Constitution. The
reason for carving out for such exception
is to save a dependent of a deceased
employee from destitution and penurious
conditions. (Para 11)

The petitioner's case has not been rejected on
the ground of failure of the petitioner to prove
her dependence on her dead mother. The
Respondents have not said that the petitioner is
not a deserted woman left to fend for herself
and her two children and that she was not living
with her mother at the time of her death. The
rejection of the petitioner's case has never been
on the merits of the case of the petitioner for
seeking compassionate appointment because of
the indigent circumstances, she was facing. The
Respondents have always relied upon the