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." 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. 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.
(3.) 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 majority in accordance with ratio laid down in Rameshwari Devi's case (supra),.;