Suka Nayak alias Bewa vs State of Orissa and Others

A.S. Naidu, J.—The point which needs determination in the present writ application is as to whether "two widows" of a Government employee are entitled to receive family pension in consonance with Rule 49(6)(i) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as "Pension Rules, 1992") read with Rule 56 (6)(a)(i) of the said Rules. For the sake of brevity, the aforesaid two rules are quoted herein below:

"49. Death/retirement gratuity - (1) In the case of a Government servant, who has completed five years of qualifying service, on retirement from service shall be paid a Retirement Gratuity equal to one-fourth of his last emoluments for each completed six monthly period of qualifying service subject to a maximum of 16 1/2 times of the emoluments.

xx xx xx xx (6) For the purpose of this rule and Rules 50.52 and 53, "family" in relation to a Government servant means-

(i) wife or wives (including judicially separated wife or wives) in the case of a male Government servant:"

Rule 56 of the Pension Rules deals with family pension which reads as follows :

"56. Family Pension - (1) The Provisions of this rule shall apply -

(i) to a Government servant entering service in a pensionable establishment on or after the 1st January, 1964; and

XX XX XX XX (6)(a)(i) Where the family pension is payable to more than one widow the family pension shall be paid to widows in equal shares."

Relying upon the aforesaid two Rules, the petitioner, claiming to be the second wife of late Gati krishna Nayak who retired as a primary school teacher of Rasal L.P. School of Dhenkanal district and has expired on 30.9.76, has filed this writ application for issuance of writ of mandamus to the opp. parties, directing them to release 50% of family pension along with T.I. in her favour. It is asserted that in consonance with Rule 8 of the Orissa Aided Educational Institutions (Non-Govt. Filly Aided Primary School Teacher Retirement Benefit) Rules, 1986, her husband, late Gati Krishna Nayak, was entitled to receive pension and after his death, the two widows of late Gati Krishna Nayak are also entitled to receive family pension. It is emphatically asserted that the petitioner married said Gati Krishna Nayak prior to 1947 and out of the said wed-lock, a son was born on 1.7.1947. The marriage being before 18th May, 1955, when the Hindu Marriage Act was not promulgated, the same could not be treated as void though the first wife of late Gati Krishna Nayak was alive at the relevant time.

It is no more res integra that in consonance with Section 5 of the Hindu Marriage Act (Act 25 of 1955), for a lawful marriage the necessary condition required is, neither party should have a spouse living at the time of marriage. The marriage in contravention of this condition would be null and void.

Similarly in consonance with Rule 24 (2) of the Orissa Government Servants Conduct Rules, 1959, no Government servant having a spouse living can enter into or contract a marriage with any person. The proviso to the said rule reads as follows :

"Provided that the Government may permit a Government servant to enter into or contract any such marriage as is referred to in Clause (1) or Clause (2), if they are satisfied, that :

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing."

Thus, though the Orissa Government Servants'' Conduct Rules creates a bar for second marriage, under the provisions of Rule 24(2), a Govt. servant can marry after obtaining prior permission, if his case is covered under the proviso. The Orissa Government Servants'' Conduct Rules, 1959 was promulgated only on April 7, 1950 and cannot be retrospectively made applicable.

3.. The learned Addl. Govt. Advocate submits that according to the provisions of the Hindu Marriage Act, the second marriage being ab initio void, the word ''wives'' appearing in the Pension Rules is to be read as ''wife'' applying the principles of Section 13(2) of the General Clauses Act. It is also submitted that the Rules (Pension Rules) cannot override an Act (Hindu Marriage Act) and thus, the petitioner who asserts to be the second wife, is not entitled to the reliefs claimed.

Heard learned counsel for the parties, carefully scrutinised different provisions of the Pension Rules vis-a-vis the provisions of the Hindu Marriage Act and Service conditions of the Govt. employees. It is the duty of the Court, whenever it is possible to do so, to construe provisions which appear to conflict with each other, so that they harmonise. It is well settled that if two constructions are possible, the Court must adopt that which will implement and which will ensure the smooth and harmonious working of the Act or the Rule and reject that which will stultify the apparent intention and, therefore, eschew the other which leads to absurdity or gives rise to practical inconvenience or makes well-established provisions of law nugatory. [See Directorate of Enforcement Vs. Deepak Mahajan and another, .

The Hindu Marriage Act (Act 25 of 1955) strictly prohibits plural marriage during the life time of the spouse. Rule 24(2) of the Orissa Government Servants'' Conduct Rules, 1959, however, permits plural marriage, if the same is permissible under the personal law and/or customs, subject to prior permission of the State Government. The rule has been framed, of course, keeping in mind the provisions of other personal law and customs, so that the employee''s religious sentiments are not hurt otherwise. Rule 49(b)(i) of the Orissa Pension Rules, 1992 makes the provision for family pension to ''wives''. The inevitable conclusion thus, is the word ''wives'' appearing in Rule 49(6)(i) and Rule 56(6)(a)(i) of the Orissa Civil Services Pension Rules, 1992 should be made applicable to the cases, only where a Government servant had married during the life time of a spouse, prior to promulgation of the Hindu Marriage Act (Act 25 of 1955). At the cost of repetition, it is once again reiterated that claims relating to plural marriages solemnised, during the life time of a spouse, after promulgation of the Hindu Marriage Act (Act 25 of 1955) shall, however, be subject to satisfaction of the provisions of Rule 24 (2) of the Orissa Government Servants'' Conduct Rules. Such interpretation according to me, shall bring about harmony between the provisions of the Orissa Pension Rules, 1992, Orissa Government Servants Conduct Rules, 1959 vis-a-vis Hindu Marriage Act (Act 25 of 1955). The question posed is thus answered.

In the case at hand, specific assertion is made by the petitioner, that she got married to Gati Krishna Nayak much prior to 1947, it appears, there is no embargo in granting 50% of the family pension along with T.I. in her favour and rest 50% in favour of opp. party No. 5, the first wife, if the assertion is correct. It is stated that the petitioner is at fag end of her life and is subjected to unsurmountable hardship and financial difficulties. Pension, as has been held by the Apex Court, is no more a bounty and the pension-holder has a right to receive the same. I, therefore, dispose of this writ application with the direction that the authorities- opp. parties shall expeditiously examine the pension documents submitted by the petitioner in consonance with the law discussed above and if the petitioner satisfies the legal requirements, necessary steps should be taken for disbursement of family pension and T.I. in her favour within a period of six months from the date of communication of this order, failing which an interest '' 12% per annum shall accrue on the arrear pension.