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Judgment
Date : 01-09-2026
Re: Interlocutory Application No. 02 of 2026.
The present interlocutory application has been filed for impleading the name of the Pagava Devi @ Pago Devi, who claims to be the adopted daughter of the deceased employee, as party respondent/s in the present writ petition.
The disputed question of adoption whether it was legal in accordance with Hindu Succession Act, is an issue, which can only be decided by a competent Civil Court having jurisdiction.
Accordingly, the Interlocutory Application No. 02 of 2026 stands rejected.
Re: CWJC No. 11038 of 2026.
Heard learned counsel appearing on behalf of the petitioner; learned counsel for the State and learned counsel for the Accountant General, Bihar.
The petitioner in paragraph no. 1 of the present writ petition has sought, inter alia, the following relief(s), which is reproduced hereinafter:-
"(i)For seeking direction the Respondant to released the Pension and Gratuity which illegally stopped after issuance of Authorisationslip by the Account General, Bihar, Patna on 19.3.2024 in favour of the Petitioner without any noticing ignoring the settle principal once he Authorisation slip issued by the Accountant General Bihar, Patna the no any authority to stopped.
(ii)For that the Petitioner filed writ petition nature of mandamus for seeking directions the respondents authorities to pay the retiral due like, pension, gratuity, leave encashment, general provident fund and other retirement due of the widow i.e. the petitioner by which that her husband of the died on 13.06.2012 that the Account General Bihar Patna i.e. Respondent no 9. issued PPO no 202412211666 PPO and GPO no 202412211666 GO in favour of the Petitioner on 19 March 2024.
(iii). For that once issuance of authorisation slip by the Respondent no 9 in favour of the Petitioner on 19.3.2024 that the respondent no 7 illegally 'unconstitutionally, without any noticeing, without assigning any hold/stopped.
(iv). For seeking a direction the Respondents release pension with panel interest @18% delayed payment in the light of law laid down by this Hon'ble court in case of Lilawati Mishra Vs the state of Bihar and other from due date till date of payment is made with litigation cost as well as statutory interest illegally with hold the pension and Gratuity amount as well as other retiral benefits without any noticeing assurance of authorisation slip by the respondent no 9.
(v). For that the case of petitioner is fully squarely covered law laid down in case of Maheshwar lal Das vs the state of Bihar and other. Reported in 2001(2) PLJR 504.
(vi)For that any other relief or reliefs for which that the Petitioner is entitled may be granted by this Hon'ble.
(vii)For that quashing the letter no.140/स dated 16.07.2024 i.e. Annexure-16 of the I.A.Petition NO.1 of 2026 issued under the Respondent no.6 directed to the Senior Treasury Officer to stop the family pension no.202412211666 and further directed to stop the withdrawal from the Bank i.e. Annexure-R/F of the counter-affidavit."
Learned counsel appearing on behalf of the petitioner submitted that the petitioner claims to be the second wife of the deceased employee, who died in harness on 13.06.2012 while serving as Class-III employee in the office of Superintendent Press and Forms Gaya Ji. It is submitted that the petitioner is aggrieved by the order contained in Letter No. 140/स dated 16.07.2024, issued by the respondent no. 6 (the Superintendent of Press and Forms, Gayaji), by which, he has directed the Senior Treasury Officer to stop the family pension no. 202412211666 and to stop the withdrawal from the bank. He further submitted that the deceased employee had taken a loan from his G.P.F. account during his lifetime, wherein, he had described the petitioner as his daughter by mistake and that complicated the whole matter regarding payment of family pension to the petitioner. He further submitted that first wife of the deceased employee died issuless in the year 1990 and thereafter, the deceased employee had solemnized marriage with the petitioner in the year 1995 and out of the said wedlock, she has four children. Therefore, the question of adoption of one Pagava Devi doesn't arise and same cannot defeat the entitlement of the petitioner for the relief(s) as prayed for in the present writ petition. The petitioner has confined her relief only to the extent that she is entitled for family pension after the death of the first wife of the deceased employee in accordance with Rule 23(2) of the Bihar Government Service Conduct Rules, 1976
Governing Rule 23 of the Bihar Government Service Conduct Rules, 1976 which inter alia is reproduced hereinafter:
23. Restrictions regarding marriages.
(1)No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and
(2)No Government servant, having a spouse living shall enter into, or contract a marriage with any person.
Provided that 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 it is 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.
(3)A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government. (emphasis supplied)
It is well settled that personal laws have historically occupied a distinct position from ordinary statutory enactments. It has been noticed by the Apex Court in the case of Rameshwari Devi vs State of Bihar & Ors. reported in AIR 2000 SC 735, which case arose from the judgment passed by this Court, the Apex Court observed in paragraph no. 12 that the law says that no government employee who has a wife/husband living shall contract another marriage without previously obtaining the dissolution of the first marriage in accordance with law for the time being in force, notwithstanding such second marriage is permissible in the personal law of the community to which he or she belongs. The paragraph no. 12 of the Rameshwari Devi (Supra), is reproduced hereinafter:
"12.In State of W.B. v. Prasenjit Dutta [(1994) 2 SCC 37 : 1994 SCC (L&S) 638 : (1994) 26 ATC 902] departmental proceedings were initiated against the respondent, who was a member of the Police Service of the State of West Bengal under Rule 5(4) of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 for having contracted a second marriage. That rule says that no government employee who has a wife/husband living shall contract another marriage without previously obtaining the dissolution of the first marriage in accordance with law for the time being in force, notwithstanding such second marriage is permissible in the personal law of the community to which he or she belongs. On an inquiry made by an officer, appointed for the purpose, and on his report that the respondent was guilty of misconduct alleged, an order of dismissal was passed by the disciplinary authority. The respondent approached the High Court and the order of his dismissal was stayed. Nevertheless the High Court was of the view that the second marriage was a serious matter, which could not be left to be decided by the departmental authorities, in proceedings such as these, and a civil or matrimonial court needs to pronounce thereon properly and finally. On appeal filed by the State Government this Court said:
“5.The view of the High Court may be correct that a matter such as the present one concerning the existence or not of a relationship of husband and wife is normally to be dealt with in a matrimonial or a civil court. It cannot at the same time be said that the departmental authorities cannot go into such question for the limited purposes of sub-rule (4) of Rule 5 of the aforesaid rules. When contracting another marriage, in the presence of the previous one, has been termed to be misconduct visiting departmental punishment it is difficult to keep suspended action under the rule till after a proper adjudication is made by the civil or matrimonial court. It would, thus, have to be viewed that the departmental proceeding could not be shut in the manner in which the High Court has done and it would have to go on to some finality at a departmental end, on the culmination of which, it may then give rise to the delinquent approaching the civil court for determining his matrimonial status.” (emphasis supplied)
I find that, the provision of Rule 23(2) of the Bihar Service Code entitles a widow to claim family pension in certain circumstances. In the present case, the deceased employee solemnized the marriage with the petitioner in year 1995 after the death of first wife namely Mahgi Bhuiyani , and has given birth to four children out of the wedlock and the deceased employee and the petitioner had lived and cared for each other, post the death of Mahgi Bhuiyani (first wife) and at the old age the petitioner should not be denied the ‘status of spouse’, which entitles her to receive family pension.
The Apex Court in case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr., reported in AIR 2013 SC 3383, has categorically held that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Relying on the judgment of the Apex Court in cases of D.S. Nakara and Ors. Vs. Union of India, reported in (1983) 1 SCC 305 and Deoki Nandan Prasad Vs. State of Bihar and Ors., reported in (1971) 2 SCC 330, the Apex Court in case of Jitendra Kumar Srivastava (supra) held that pension and pensionary benefits are like private property and the right to property is a constitutional right under Article 300A of the Constitution. The relevant paragraph of the case of Jitendra Kumar Srivastava (supra) is reproduced hereinafter:
“16.The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:
“300-A.Persons not to be deprived of property save by
authority of law.—No person shall be deprived of his property save by authority of law.”
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17.It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.”
In view of the reasons assigned in the enquiry report and the admitted position that the petitioner is the second wife of the deceased employee, namely, Late Sukhdeo Bhaiya, who died in harness on 13.06.2012 while serving as a Class-III employee in the office of the Superintendent, Press and Forms, Gaya, the retiral dues of the deceased employee, which have remained unpaid under different heads, are required to be released in favour of the person(s) legally entitled to receive the same, in accordance with the applicable rules. The competent authority shall accordingly determine the entitlement of the legal heirs of the deceased employee and ensure payment of the admissible retiral dues to them in accordance with law.
Accordingly, the present writ petition stands disposed of.