SHARMA, J. - (1.) THE litigation is between the mother and wife of deceased IAS officer of 1993 batch. Mother in law, the petitioner herein claims 50% of service emoluments of her deceased son and seeks to assail the letters/orders issued by Union of India and State of Rajasthan in favour of her daughter in law, who is also an IAS Officer.
(2.) THE brief facts as detailed out in the writ petition are that the son of the petitioner late Nirmal Kumar Wadhwani, IAS, the then Collector Bikaner, died in a road accident on May 6, 2002 while going to attend Collectors meeting from Ajmer to Jaipur. THE petitioner through her Advocate sent a notice on June 10, 2002 to the State of Rajasthan not to pay to the widow of the deceased 1/2 of the amount payable to the deceased. THE Department of Personnel of Government of Rajasthan vide letter dated June 24, 2002 informed the petitioner as well as the widow of deceased that since deceased had not made any nomination, the distribution of service emoluments may be made either on the basis of agreement between them or through sucession certificate. THEreafter the petitioner vide communication dated July 2, 2002 requested to distribute the emoluments in the ratio of 50:50 to her and her daughter in law. THE Government of India Ministry of Personnel, non-petitioner No. 2 vide their communication dated October 18, 2002 (Annexure 7) informed the State of Rajasthan for making the payment of various death cum retirement benefits to the wife only as per their opinion and denied the same to the petitioner. THE petitioner sent a telegram on October 26, 2002 to Union of India and State of Rajasthan asking them not to implement the directions issued vide letter dated October 18, 2003. THE State of Rajasthan vide letter dated December 16, 2002 (Annexure 10) informed the petitioner that as per the directions of the Union of India there was no base to reconsider the matter. THE petitioner assails letters Annexure 7 and 10 on the following grounds- (a) THE action of the respondents by which they denied the benefits to the petitioner is arbitrary, illegal and unjust. (b) THE son of petitioner became IAS officer in the year 1993 and at that time only the mother and father were with him and he got married after 7 years of service, in such a situation it is difficult to believe that he had not filled up the column of nomination in service record. (c) THE petitioner being mother of late Nimal Kumar Wadhawani was with him since his birth and mere fact that her son got married in year 2000 and remained in the company of his married wife the interpretation of any law, denying the benefits to mother, is perverse illegal, arbitrary and unjust and contrary to law on following points: (i) he respondents denied the family pension to the petitioner as per Rule 22 B (14) of the AIS (DCB) Rules, 1958, but overlooked the Rule 21 which provides nomination and purpose of the rule in which wife and mother are on same footing and the petitioner is equally entitled for the family pension as per Rule 19 of the Rules of 1958. (ii) Only in the garb that clear nomination is not available, the amount shall be paid to all the members of the family but the respondents have not taken any steps to pay the same. THE gratuity is payable to the family members, then how under the same rule the benefit of family pension can be denied. (iii) Hindu Succession Act, 1956 is applicable and the definition of heirs as provided in the Act, generally the legal heirs are given the succession in case of death. As per this deinition relatives specified in Class I of the Schedule are entitled. Mother and wife are Class I in the schedule. As such the right of mother cannot be denied on the basis of non- applicable and contrary definition given in the letter in view of Section 4 of Hindu Succession Act, which is having overriding effect in respect of any law in force before commencement of the Act of 1956. (iv) In relation to group insurance, the respondents have concealed the factum of nomination and given impossible version that if no nomination is available then they will proceed as per 1955 Rules. 1955 Rules are not at all applicable because the Hindu Succession Act, 1956 is over riding effect and it gives equal share to the petitioner being the mother and legal heir of Class I alongwith wife. In this manner the Ex-gratia and leave encashment are also entitled to be given to the petitioner as per the provisions of the Hindu Succession Act. (d) THE State of Rajasthan gave correct opinion on composite reading of all the applicable Rules and Act (Vide annexure 3) but the Government of India took contrary view which is arbitrary and liable to be quashed. (e) THE Government of India has not considered the circular dated June 18, 1988, providing definition of legal heir which protects the rights of the petitioner and provides equal rights to the petitioner alongwith wife of the deceased. (f) THE respondents have not considered the definition of family given in the Rules and the Act. THE family never means wife, if this would be ultimate meaning of family then there would be no use to refer word `family' and then the framers of the rules use the word `wife' instead of family. Thus the respondents acted perversely and arbitrarily deprived the poor mother from her rights of getting 50% retiral benefits and family pension. The respondents filed separate replies to the writ petition, denying the right of the petitioner. The Union of India took the objection that as per the provisions of Rule 22 (4) the benefits were given to the wife of late Shri N. K. Wadhwani by the competent authority, hence the writ petition is not maintainable. Having scanned the material on record I notice that the petitioner has filed a petition under Section 372 of the Indian Succession Act 1925 in the Court of District Judge Jaipur City for issuance of succession certificate, which is pending in the said court. Smt. Mugdha Sinha, the widow of late Shri N. K. Wadhwani filed her reply in the said proceedings. When this case was listed before me on August 4, 2005 I provided time to the parties to settle the matter amicably but it is unfortunate that the dispute could not be resolved. In order to erase the impression from the mind of the petitioner in regard to nomination made by the deceased, the relevant record was summoned and learned counsel for the petitioner examined the said record on August 17, 2006. Since emoluments of deceased come under the definition of property, in my opinion the petitioner ought to have moved under Section 372 of the Indian Succession Act, 1925. Although the rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion, in an appropriate case inspite of availability of the alternate remedy, the High Court may still exercise its writ jurisdiction in atleast three contingencies:- (i) When the writ petition seeks enforcement of any of the fundamental rights. (ii) Where there is failure of principles of natural justice. (iii) When the orders or proceedings are wholly without jurisdiction or the view of an Act is challenged. As the present case does not attract any of the three contingencies, I direct the petitioner to take recourse of the provisions contained in Indian succession Act, 1925. I grant one month time to the petitioner for taking appropriate step in the matter till then the parties are directed to maintain status quo as it exists today.
(3.) THE petition stands disposed of as indicated above. .;