Sumitra Devi vs State And Ors

Tashi Rabstan, J

Through the medium of this petition, the petitioner is seeking a direction to the official respondents to pay her 33% of the monthly pension out of the monthly pension of respondent No.7 including the amount gratuity, leave salary etc. in the same proportion.

The facts, as projected in the petition, are that the marriage of petitioner with Rajinder Singh Manhas, respondent No.7 herein, was solemnized in February 1973 at Village Marh, Tehsil Jammu. During the currency of marriage, respondent No.7, who was a Government Teacher, contracted second marriage with one Smt. Kailash Devi in November, 1990. It is averred that the petitioner filed a criminal complaint under Section 494 RPC before the Court of learned First Additional Sessions Judge, Jammu and, ultimately, respondent No.7 entered into an agreement with the petitioner herein, which was duly registered before the Court of learned Sub Registrar, Jammu on 11.09.1998. In terms of the said agreement, besides other conditions, respondent No.7 had agreed to pay Rs.1400/- per month as maintenance to the petitioner herein till he remains in active Government service and after the retirement of respondent No.7, he had agreed to pay 33% of the total pensionary benefits to the petitioner herein. It is averred that respondent No.7 attained the age of superannuation in the month of March 2006 and till then he had been paying the amount of Rs.1400/- per month to the petitioner herein in terms of the agreement. However, after his retirement, respondent No.7 stopped paying 33% of the total pensionary benefits to the petitioner herein. Hence, the present petition.

Learned counsel appearing for petitioner argued that the petitioner is a lady having no source of income and is fully dependent upon the income which was being received by her pursuant to the agreement arrived at between respondent No.7 and the petitioner herein. Now, because of non-payment of monthly pensionary benefits, she has been suffering badly.

Objections have been filed on behalf of respondents. Respondents 1 to 4 in their objections have averred that they are not bound by any agreement executed interse between the parties and that petitioner cannot claim pensionary benefits available to respondent N.7 in contravention of the rules and regulations governing the subject.

In the objections filed on behalf of Accountant General, respondent No.6 herein, it is averred that it has already released all the pensionary benefits in favour of respondent No.7 on the receipt of pension case from the Pension Sanctioning Authority, wherein one Smt. Kamlesh Devi had been shown as spouse of Rajinder Kumar Manhas, respondent No.7 herein, and not Sumitra Devi, petitioner herein.

Though respondent No.7 in his objections has admitted the execution of agreement between him and the petitioner herein thereby admitting the contents of paragraphs 4, 5, 6 and 7 of the writ petition, yet he has argued that the agreement-in-question can be enforced only by way of a Civil Suit and not through the writ petition.

I have heard learned counsel for the appearing parties, considered their rival contentions and perused the writ file.

Admittedly, the petitioner has admitted the contents of paragraphs 4, 5, 6 and 7 of the writ petition. At page-4, after paragraph-16 of the objections, respondent Rajinder Singh Manhas has admitted that petitioner cannot claim anything more than what has been contained in the agreement executed in the month of September 1998 between him and the petitioner; meaning thereby respondent Rajinder Singh Manhas is admitting that petitioner is entitled to receive 33% of the total pensionary benefits payable to him, a clause incorporated in paragraph-2 of the agreement-in-question. Further, in paragraph-8 of the objections, respondent Rajinder Singh Manhas has stated that pension was not released till August 2007 and that at no point of time the petitioner has approached him; meaning thereby what respondent No.7 wanted to convey is that had the petitioner would have approached him after the release of his pension in August 2007, he would have been paying 33% of the total pensionary benefits to the petitioner in terms of the agreement. However, as the claim put forth by the petitioner flows through an agreement, the same cannot be enforced by way of present writ petition. This Court, therefore, is constrained by law. A writ of mandamus cannot be issued for enforcement of private rights/duty arising out of a non-statutory contract/agreement, for, the rights of the parties, who have entered into an agreement, fall under the domain of private law, which oust the writ jurisdiction of this Court under Article 226 of the Constitution.

Viewed thus, the writ petition is dismissed along with connected miscellaneous petition(s), if any. However, if so advised, the petitioner can approach the appropriate forum for redressal of her grievances.