Nabla Banoo vs State of Jammu & Kashmir and Others

Mansoor Ahmad Mir, J.—The short controversy involved in this petition is whether first wife or both first and second wives are entitled to

family pension and other retiral benefits of the deceased employee.

Writ Petitioner Nabla Banoo filed this petition for grant of writ of mandamus commanding the Respondents to grant family pension including

death-cum-retire-ment gratuity in her favour, on the ground that she is the widow of deceased pension Dr. Abdul Hamid Mir Veterinary Surgeon.

During pendency of the writ petition, Respondent No. 6 Mst. Rafiqa, second widow of the deceased moved CMP No. 281/2007 for impleading

her as also Gousia Jan in their capacity as widow and daughter of deceased as Respondents to the writ petition. CMP came to be partly granted

and partly rejected, whereby Mst. Rafiqa came to be arrayed as Respondent No. 6 and the application, so far it relates to Gousia Jan, came to be

rejected with liberty to seek appropriate remedy from the competent forum.

Learned Counsel for the writ petition candidly conceded that Mst. Rafiqa is the second widow of the deceased employee Dr. Abdul Hamid

Mir. Mr. Shah also frankly conceded that the Petitioner is the first widow of the deceased employee.

Mr. Qayoom argued that only first widow is entitled to pension while as learned Counsel for the Respondents 5 and 6 argued that both the

widows are entitled to the family pension. Both the counsel relied in support of their arguments on Jammu and Kashmir Family Pension-gratuity

Rules 1964, for short ""Rules of 1964"" and referred to rules 11,20-B, 21 and 22. It is apt to reproduce Rule 11 hereunder:

For purposes of these rules the term ""Family"" shall mean, (a) Wife in the case of male officer (see Explanation below);

Explanation I,

(i).......

(ii) The term wife shall include plural wives;

While going through Rule 11, it is crystal clear that the family means wife in case of male officer and as per explanation appended, ""wife

includes plural ""wives"" also.

Rule 20 deals with Family Pension. Rule 21 also provides to whom the pension is payable and it contains some fetters also. Rule 22 provides in

whose favour pension is to be sanctioned. Rule 23 provides that if nomination is made by the deceased employee, then pension is payable in

accordance with such nomination, provided the nominee satisfies the requirement of rule 22. It is apt to reproduce Rule 22 hereunder:

Except as may be provided by nomination under rule 23:, (a) a person sanctioned under these rules will be allowed subject to the provisions of

rule 21:

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

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Note 1, xxxxxxxxxxxxxxxxxxxxxxx

Note 2. Notwithstanding the provisions contained at Sub-rule (i) in cases where there may be more than one widow left behind by the deceased

Government servant the Family Pension shall be shared equally by all the widows, unless the deceased has during his life time made a nomination,

in which case the pension will be payable to the nominee(s). On the death of the widow (who draws a share of family pension), the family pension

shall become payable to her eligible children provided that if the widow is not survived by any child, her share of family pension shall cease to be

payable.

While going through the aforesaid rule, it is clear that where nomination is not made, then the pension is to be sanctioned in favour of the

surviving widow(s). Note-2 clearly provides that when there are more than one widow left behind by the deceased Government servant, the

pension shall be shared equally by all widows, unless the deceased had during his life time made the nomination.

Admittedly the deceased has not made any nomination. It is also admitted that both are widows, thus are entitled to pension and gratuity in equal

shares. Accordingly this petition is admitted and taken up for final adjudication with the consensus of learned Counsel for the parties.

The petition is disposed of by provided that both the widows i.e. the Petitioner and Respondent No. 6 are entitled to pension and gratuity in

equal shares. The concerned authorities are directed to sanction and release family pension and gratuity in favour of both the widows in equal

shares, after completion of alt codal requirements.