Mostt. Shanti Devi vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11038 of 2026
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Mostt. Shanti Devi w/o late shukh Deo Bhuya, Resident of village Pathraura,
Police Station- Magadh Medical College, District-Gaya ji.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary Department of Finance,
Government of Bihar, Patna.
2. The Upper Secretary, Department of the Finance Government of Bihar,
Patna.
3. The Secretary, Department of Finance Government of Bihar, Patna.
4. The District Collector- cum- District Magistrate, Gaya Ji.
5. The Sub Divisional Officer, Sadar Gaya Ji, District Gaya Ji.
6. The Suprentendent of Press and Forms Jail press., District Gaya Ji.
7. The Treasury Officer, having the office Collector compound, District Gaya
Ji.
8. The Circle Officer Gaya Ji, District Gaya Ji.
9. The Accountant General (A and E), Bihar, Patna.
10. The Director Provident Fund, Pant Bhawan, Patna.
11. The District Provident Fund Officer, Gaya Ji.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Virendra Prasad, Advocate
For the State : Mr. Birja Prasad, GP-13
Mrs. Shweta Anand, AC to GP-13
For the A.G. : Mr. Binod Kumar Labh, Advocate
Mr. Sunil Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL 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
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party respondent/s in the present writ petition.
2. 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.
3. Accordingly, the Interlocutory Application No. 02
of 2026 stands rejected.
Re: CWJC No. 11038 of 2026.
4. Heard learned counsel appearing on behalf of the
petitioner; learned counsel for the State and learned counsel for
the Accountant General, Bihar.
5. 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
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'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."
6. 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/ dated 16.07.2024, issued by the respondent no. 6 (the
स
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
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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
7. 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.
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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
there are other grounds for so (b)
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)
8. 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 t hat 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
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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)
9. 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
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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.
10. 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
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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.”
11 . 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
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admissible retiral dues to them in accordance with law.
12. Accordingly, the present writ petition stands
disposed of.
(Purnendu Singh, J)
Niraj/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 03.09.2026
Transmission Date N/A